Morrison v Thomas Borthwick & Sons (Australia) Pty Ltd
[2008] QSC 93
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- Morrison v Thomas Borthwick & Sons (Australia) Pty Ltd[2008] QSC 93
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Morrison v Thomas Borthwick & Sons (Australia) Pty Ltd[2008] QSC 93
Morrison v Thomas Borthwick & Sons (Australia) Pty Ltd[2008] QSC 93
SUPREME COURT OF QUEENSLAND
CITATION: | Morrison v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 93 |
PARTIES: | MORRISON (plaintiff) v THOMAS BORTHWICK & SONS (AUSTRALIA) PTY LTD ACN 120 065 535 104 (defendant) |
FILE NO/S: | Mackay S127 of 2007 |
DIVISION: | Trial Division |
PROCEEDING: | Trial |
ORIGINATING COURT: | Supreme Court at Mackay |
DELIVERED ON: | 16 May 2008 |
DELIVERED AT: | Rockhampton |
HEARING DATE: | 8 and 9 May 2008 |
JUDGE: | McMeekin J |
ORDERS: | 1. There will be judgment for the plaintiff in the sum of $84,587.09. |
CATCHWORDS | DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – loss of earnings and earning capacity – where the plaintiff’s injury was an aggravation of a degenerative condition – damages for loss of future earning capacity assessed on the basis that plaintiff is unemployable in former capacity but has gained and retains better paying employment with the defendant DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – loss of earnings and earning capacity – pre-existing health problems and intervening accident contributing to the incapacity – where the plaintiff would not have reached retirement age in former employment regardless of the accident. Hopkins v WorkCover Queensland [2003] QSC 257 applied Hopkins v WorkCover Queensland [2004] QCA 155 followed Medlin v State Government Insurance Commission (1995) 182 CLR 1 followed Nilon v Bezzina [1988] 2 Qd R 420 applied Purkess v Crittenden (1965) 114 CLR 164 followed Wilson v Peisley (1975) 7 ALR 571 followed |
COUNSEL: | J Baulch SC for the plaintiff J Miles for the defendant |
SOLICITORS: | Macrossan and Amiet Solicitors for the plaintiff Bruce Thomas Lawyers for the defendant |
- MCMEEKIN J: In this action the plaintiff, Mr Steven Morrison, seeks damages for negligence, breach of contract and breach of statutory duty against his employer, Thomas Borthwick & Sons (Australia) Pty Ltd. The action arises out of an incident on 10 August 2006 when Mr Morrison slipped on a mat at work and fell heavily onto his back. He suffered personal injury.
- Liability is admitted. Damages must be assessed. Only three aspects of the damages are in issue – pain, suffering and loss of amenities, future economic loss and future recurring expenses
The Issues
- There are three principal issues to be resolved:
- What is the impact of an incident that occurred on 6 October 2006?
- How vulnerable was Mr Morrison to developing the symptoms that he now has, assuming that the incident complained of had not occurred?
- How should damages for lost earning capacity be assessed given that Mr Morrison has obtained a better paying position as a leading hand supervisor and trainer with the defendant?
The Fall
- The fall that is the subject of the action was witnessed by Mr Kenneth Painter. He said that Mr Morrison’s feet went out from under him. He motioned in a forward direction when giving his evidence. He landed “pretty much on his back”. He landed heavily. That accords with Mr Morrison’s description.
- The following day Mr Morrison attended on his GP, Dr Hansrajh. Dr Hansrajh’s record of the visit is brief:-
“Mild tenderness - - lower back area.”[1]
- Mr Morrison had only one day off work and then returned to work following the weekend. He had light duties for a short period but returned to his normal duties fairly quickly.
The Injuries Suffered
- By his pleading, the plaintiff alleges that the injury that he sustained in the subject incident consists of an aggravation of the degenerative changes that were identified on the CT scan.[2] That is not controversial. What is controversial is how permanent was that aggravation. I will come to that later.
- Evidence was given by three orthopaedic surgeons – Drs Shaw, McPhee and Cook. The only significant difference of opinion as to the nature of the injuries suffered is that Dr Cook asserts that the injuries included damage to both sacroiliac joints, right side worse than left.[3] His diagnosis is supported in some degree by the fact an injection of local anaesthetic into the site resulted in a loss of pain for about an hour. I observe that establishment that there was a sacroiliac joint dysfunction at the time of the injection is not the same as establishing its causal link to the August incident, the subject of the action. However, Dr Cook recognises that his opinions in this regard are not universally accepted by orthopaedic surgeons (and more to the contrary) and they are not supported in this case by either of his orthopaedic colleagues.
- I think the most cogent evidence comes from Dr Shaw who treated Mr Morrison and who saw him at the earliest time after the subject incident. He found no evidence of sacroiliac joint dysfunction at that time. Perhaps, as Mr Baulch of senior counsel submitted, the point is largely academic.
Mr Morrison’s Reliability
- Mr Morrison gave a very strong impression in the witness box of having no clear idea of what symptoms of pain and discomfort he had had and when. He failed to inform any of the orthopaedic surgeons of anything like an accurate history of his pre-accident back problems and treatment.
- Mr Morrison’s history of back pain was significant - he had had onsets of back pain requiring treatment well before the subject incident. He insisted that the permanent and significant pain came on only after the subject incident. This is against a background of a strong debate between the parties as to the significance of the subject incident. By its pleading, the defendant alleges that the injury suffered in the subject incident was minimal and the more significant insult to the spine was in the October incident not in the August incident.
- One cannot gloss over Mr Morrison’s failure to recall to the Orthopaedic Surgeons his history. At the very least it demonstrates that Mr Morrison’s recollections of his own symptoms, their severity and timing is completely unreliable.
- Nor was the picture made any clearer by the witnesses that were called in the plaintiff’s case for the purpose of establishing the before and after picture. Messrs Walkon and Eddy had known Mr Morrison for many years prior to the subject incident. They were plainly unaware that he had had symptoms of back pain sufficiently serious to have had time off work and to require Chiropractic treatment on a repetitive basis over a period of two years. That I suspect reflects Mr Morrison’s stoical nature.
- Mr Walkon’s evidence was opened as intending to show that Mr Morrison’s symptoms came on after the incident in August and before the incident in October 2006. However, it became apparent through Mr Mile’s cross-examination of Mr Walkon[4] that his recollections as to when he shared a house with Mr Morrison, which was crucial to him knowing whether he did or did not have symptoms between August and October, were very unreliable. Indeed the strong probability was that he did not share accommodation with Mr Morrison until February 2007. He could shed no real light on when it was that Mr Morrison’s symptoms became particularly acute.
Pre – Accident Back Pain
- Mr Morrison first suffered injury to his lower back on 27 January 2000 when lifting oxy-bottles and stacking the bottles onto a pallet. He attended on his General Practitioner (GP) and was placed on light duties for about a week.
- Although not mentioned in his statement[5], it is evident from the Slade Point Medical Centre records[6] that Mr Morrison attended on his GP on 12 August 2002 complaining inter alia of a sore hip and low back pain (“LBP”). An X-ray was ordered. A report of the X-ray then performed showed degenerative osteophyte formation “at T11-12, T12-L1, and L3-4 without significant disc space narrowing consistent with mild disc degeneration”.[7]
- In June of 2003 Mr Morrison developed lower back pain and numbness of the left leg. He was at the time working as a packer at the meatworks. He related the pain that he suffered to the posture that he was required to adopt in carrying out his work. He attended on a Chiropractor. The Chiropractor recorded[8] at the time of the initial visit under the heading “Major complaints and symptoms” an entry which reads:
“LBP [i.e. low back pain] + Leg numb long standing problem with recent exacerbation.”
- Mr Morrison then attended the chiropractor on nine occasions between 23 June 2003 and 22 October 2003. On 20 November 2003 he informed his employer in writing that he was suffering from recurring back pain.[9]
- Mr Morrison attended at the same Chiropractor once a month from February 2004 to October 2004 inclusive. Whilst Mr Morrison referred to these monthly visits during 2004 as “tune ups” reflecting the ordinary aches and pains expected in carrying out labouring work, the Chiropractor’s records show entries for low back pain in each month save June and August. Left leg numbness is recorded on the first visit on 23 June 2003. Left sciatica is recorded on 23 February 2004. There is reference to left leg pain on 20 October 2004.
- On 8 December 2005 Mr Morrison missed his step and jarred his back. He asserts that he suffered pins and needles running down his left leg as a result. He attended on his GP at the time, Dr Hansrajh. He was off work for four days. Dr Hansrajh was sufficiently concerned to request an X-ray of the lumbar sacral spine.[10]
Other Health Problems
- Apart from the entries relating to low back pain there are other medical records indicating problems requiring treatment. There are references to shoulder problems, weakness and pins and needles in the left arm, rheumatoid arthritis, and osteoarthritis.
- For some years prior to the subject incident Mr Morrison was taking prescription medication for his various problems. Medication included Tramal, Celebrex, and Keflex – pain killers and anti-inflammatories. In the year prior to the subject incident there is reference in the records[11] to prescriptions for such medications in September 2005, November 2005, January 2006 and May 2006.
- Mr Morrison was described by the Human Resources Manager employed by the defendant as a stoical individual.
The October Incident
- On 6 October 2006 – about 2 months after the subject incident - Mr Morrison lifted a box of offal off a set of rollers and reached out to place the box on a scale. He says that he suffered severe pain in his lower back at that time. The box weighed either 13.86 kg or 15.28 kg.
- Mr Morrison attended on a GP on the Sunday following, 8 October 2006. The GP recorded:
“Back strain after lifting heavy boxes at work. No radiation of pain. Forward bending/extension. Pain along L1 L2 facet joint. H/O [history of] chronic back pain. Adv [advise] hot pack.”
He prescribed Tramal capsules.
- Mr Morrison saw Dr Hansrajh again on 12 October when it was recorded that his lower back pain was “as previously documented”. On examination it was noted that he was tender over the right paravertebral area and lower lumbar area. There is a record “no neurology”.[12]
- On 18 October 2006 a CT scan of the lumbar spine was performed.[13] The radiologist recorded a history of “severe low back ache left sciatica”. The findings are said to include a broad based L4-5 disc protrusion, facet joint hypertrophic changes present bilaterally with ligamentum flavum buckling causing central canal stenosis, suggestion of compromise to the left L5 nerve root and a small broad based L3-4 disc protrusion.
- As I understand the testimony from the medical experts the changes shown on that scan are degenerative in nature and pre-dated the subject incident.
- Mr Morrison attended on his GP on three more occasions in October, five times in November and three times in December of 2006. An injection into his spine on 23 November 2006 largely relieved his left leg pain but he had continuing back pain. Mr Morrison was treated by Dr Shaw and received physiotherapy and occupational therapy.
- I note that the entry for 21 December 2006 a Dr Banik has recorded “lower back pain getting better”. Complaints of back pains were made to GPs, according to the medical records on 16 February 2007, 13 March 2007, 13 April 2007, 14 May 2007, 14 June 2007, 9 July 2007, 21 September 2007, and 24 October 2007.
Subsequent Work History
- Following the October incident Mr Morrison returned to work for a few days but he could not continue.
- He attempted a return to work in early December 2006 but suffered severe back pain and could not continue again. Mr Morrison eventually returned to work in about mid December 2006 on limited hours and duties. He gradually built up to normal hours working as a first aid attendant and then supervisor. Eventually in June 2007 Mr Morrison was appointed a leading hand supervisor and trainer.
The Medical Opinions
- In the end the evidence of all three Orthopaedic Surgeons seemed to me to reach some common ground in that it was improbable that Mr Morrison would have seen out a working life as a labourer at the meatworks (taking that to be to age 65) even had the subject incident not occurred.
- Whilst Dr Cook expressed the opinion in his written reports that Mr Morrison would have been able to continue working until normal retirement age had he not sustained injury in August and October 2006[14], he moderated the stance in the course of his oral evidence. He then said that he thought Mr Morrison could have worked “close” to such an age.
- Dr Shaw and Professor McPhee were much more sceptical of Mr Morrison’s prospects.
- Both Professor McPhee and Dr Shaw conceded that any view that they expressed in relation to Mr Morrison’s probable future had the subject incident not occurred involved to some extent guesswork or speculation. Nonetheless it is guesswork or speculation based on their decades of experience. As Professor McPhee put it in his first report[15]:
“The degenerative process in the lumbar spine is consistent with normal constitutional changes in a 56 year old male. He has had previous episodes of back pain as a prelude. It is consistent with the natural history of non-specific back pain arising from a spondylosis that after a series of episodes of back pain an instant or episode will fail to resolve resulting in ongoing chronic back pain. To some extent his current presentation is the natural history of the underlying condition. Had it not been for the fall in August 2006 on the balance of probability he would have experienced a further injury and probable chronic back pain within five years.”
- At the time that Professor McPhee expressed that opinion he was unaware of the full detail of Mr Morrison’s previous history of back pain. In fact the episodes of back pain were greater in number, and more chronic than he had supposed. The evidence of Mr Morrison’s attendance on the chiropractor in 2003 and 2004 led Professor McPhee to say that he would date his five year period from 2003 instead of 2006.[16]
- In a conference note[17] Professor McPhee further expanded on his views as to the “natural history” for lower back pain given the degenerative condition from which Mr Morrison suffers. He explains that “in most cases” the history is:
“For occurring and relapsing episodes of back pain, occurring at increasing frequency.”[18]
As a result Professor McPhee’s view was that it was:
“…impossible to now identify whether [Mr Morrison’s] ongoing pain is the consequence of the natural progression of that usual history...or the effects that the injury caused at work.”
- Mr Baulch of senior counsel for the plaintiff cross-examined Professor McPhee at some length as to what was meant by his concepts of chronic back pain as opposed to episodic back pain. It seems to me beyond doubt that Mr Morrison had a chronic condition evident through 2003 and 2004. The chiropractic records are entirely consistent with that. Mr Morrison explained that he ceased attending the Chiropractor because of difficulty in obtaining an appointment once the Chiropractor ceased to open his practice after 3.00 pm. The last entry in the Chiropractor’s notes of 20 October 2004 speaks of both lower back pain and left leg pain. A further appointment was recommended. It seems unlikely that the chronic condition came to an end on that date or shortly thereafter.
- Dr Shaw’s approach was slightly different to that of Professor McPhee. In his view the incidents of August and October 2006 had some effect but that effect had resolved within, at the latest, 12 months. In his view both the August and October events each caused significant aggravation of the lumbar spondylosis. He thought that the later event was more significant as, on Mr Morrison’s history, left leg pain then developed and it was necessary to take several weeks off work before returning to light duties. The return to normal duties after the injury in August 2006 indicated a lesser impact on Mr Morrison’s ability to perform his normal work.
Factors relevant to Causation
- Of crucial relevance to the question of future economic loss is whether the effects of the August 2006 incident are now having any on going impact on his capacities.
- Mr Morrison bears the onus of establishing the ongoing effects of the injury suffered as a result of the August 2006 incident. Significantly he must show that the symptoms identified following the October 2006 incident are in fact due to the earlier one on which he sues.
- The difficult issue that I have found in the case is in determining whether the October 2006 incident was overwhelming in its effect. Where there is an intervening incident after the tort then it is not simply a question of whether a pre-existing condition might have had a similar effect. No submission was directed to the principles explained in Nilon v Bezzina[19] but they seem to me to be apposite. In particular the question is whether the supervening happening falls into the first or second of the two classes discussed by Windeyer J in Faulkner v Keffalinos[20] - one that prevents damage occurring as a result of the tort or one that causes the harm caused by the tort to have added gravity. It is irrelevant as to whether the second event is tortious or otherwise: per McPherson J in Nilon.[21]
- There is a great deal of force, in my view, in Dr Shaw’s approach that the best guide to the impact that these various incidents and the pre-existing degeneration play in Mr Morrison’s present condition is to be found in his demonstrated capacities. I have little confidence in his recollections. The facts are that he had one day off work following the August 2006 incident, a brief period on light duties, and then returned to his normal duties until the October incident occurred.
- Mr Baulch of senior counsel submitted, in respect of the significance of the pre-existing back problems, that the brevity of time off work following the incidents of back pain over the years prior to August 2006 is indicative of only a temporary and relatively minor insult to the spine. Of relevance to this issue of causation is that exactly the same can be said of the incident in August 2006. There was limited time off work and limited treatment. The difference is said to be that Mr Morrison asserts that following the August 2006 incident he had ongoing back pain and particularly with leg pain. But that pre-supposes that Mr Morrison can be relied upon for his recollection of what type and degree of pain he suffered and the timing of its onset. As well the medical records do not support him. The first reference that I can find to left leg pain, following the August incident, is the reference to sciatica in the CT scan report of 18 October i.e. after the incident in October.
- However there are significant factors going the other way.
- The first is the defendant’s admission of the past economic loss claimed by the plaintiff. The sum admitted was $6,351.23. The composition of that sum is set out at paragraph 147 of exhibit 1. That shows that all but $108 of that sum consists of losses suffered subsequent to the October 2006 incident. The admission of the amount carries with it the implicit admission of the causal relationship between the August 2006 incident and the subsequent impairment which prevented Mr Morrison continuing in his employment through until the end of June 2007. It is consistent too with the notion that the August 2006 incident caused a step down in Mr Morrison’s functioning and caused the effects of the October 2006 incident to be of greater significance than they would otherwise have been.[22]
- In my view the admission of past economic loss was properly made reflecting as it did the probabilities and the evidence. The August 2006 incident was one which involved very substantial forces coming onto to Mr Morrison’s degenerate spine. He is a large man. The incident that he and Mr Painter describes of Mr Morrison’s feet suddenly shooting out from under him and he landing heavily onto his buttocks and back would inevitably involve a significant insult, especially to a degenerate spine. The forces involved would appear to be by far the most significant he had encountered.
- Secondly, it seems to be clear that each of the specialists agree that the August 2006 incident would still be having an ongoing effect at the time that the October incident occurred. The medical specialists are agreed that the incident in August 2006 caused a significant aggravation of the pre-existing lumbar spondylosis. Effectively, it was a step down in Mr Morrison’s level of functioning and brought him closer to the day when he could no longer continue in manual work. Similarly the October incident also aggravated the pre-existing condition and it was a further step down.
- Thirdly, there is little doubt that Mr Morrison is a stoical individual and persisted with reasonably demanding labouring work despite reoccurring pain as evidenced in the Chiropractic records in 2003-2004. He probably did so following the August incident.
- Fourthly, the level of symptoms suffered following the October event, as evidenced by the records and by the observations of the witnesses called, were very significant. They were certainly more extreme than those observed or reported following the earlier incidents of back pain.
- Medical science cannot tell us with precision what distinction can be made between the contributions made by each incident. Twisting whilst carrying a load (the October 2006 incident) is well recognised as carrying the potential to destabilise and damage a spine, particularly a degenerate one. The natural history expected of a degenerate spine, the significant symptoms suffered after the October incident as evidenced by the records, and the major impact on Mr Morrison’s work capacities following that incident, all convince me that the October incident was a major step down in functioning.
- In my view the probabilities are that each incident has contributed approximately equally to the end result.
Vulnerability
- The second issue is to weigh up the effects of the undoubtedly degenerate spine.
- The evidence is overwhelming that Mr Morrison had a pre-existing degenerate spine, that his condition was likely to worsen with time, that he had had several incidents of back pain in the past, and that they were of significance.
- The principles relevant to a consideration of such an issue were explained by Mullins J in Hopkins v WorkCover Queensland[23] where her Honour considered and applied the decisions of the High Court in Watts v Rake,[24]Purkess v Crittenden[25] and Malec v Hutton.[26] Her decision was confirmed on appeal.[27]
- Where proof as to the pre-existing condition and its likely future effects is necessarily unobtainable the court must assess the degree of probability that an event would have occurred or might occur and adjust damages accordingly to reflect that degree of probability.[28]
- Of particular relevance in this case is the observation in Wilson v Peisley:[29]
“The trauma of the accident for which the appellant was responsible no doubt made a present reality of that which was ever a real possibility. Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that the condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellant’s negligence intervened.”
- The effect of the evidence of all specialists was that it was highly unlikely that Mr Morrison would have seen out a working life to age 65 as a labourer. I think it a fair summary of the positions of Professor McPhee and Dr Shaw that his probable time was a lot more limited than that. Dr Shaw advances the view that the effect of the incidents in August and October 2006 had resolved and did so within 12 months. The difficulty with that opinion is identifying why it should be so. It presupposes a view that there is an injury of a particular type and that effects of an injury of that type only last for a particular period of time. If medical science has reached such certainty I am surprised that all the doctors were not of the same mind.
- Professor McPhee thought that Mr Morrison would have probably reached much the same stage within five to 10 years of the insult that caused him to seek constant chiropractic care in 2003. On his view that would mean that Mr Morrison’s time as a labourer would be ended, at the latest, by about age 61.
- As I have mentioned, Dr Cook’s view was more sanguine. Even he, however, thought only that Mr Morrison would have gone close to making age 65 years. The weight that I can give to his views is considerably weakened by the fact that he did not have a full history when he first formed his views and had not seen the X-rays or the reports of them, save for the CT scan,[30] until cross examined.
- The medical evidence in my view indicates that the strong probability was that Mr Morrison would not have continued in his labouring work to age 65. It was very likely that at some stage between age 55 and his early sixties he could not have continued. As well account must be taken of the pre-existing health problems, none of which would of itself have prevented him continuing, but which in all probability would have contributed to a decision to cease labouring work.
- The effects of the two incidents of August and October have brought forward the incapacity to perform labouring work to October 2006. They have accelerated that process by about seven years.
Conclusions as to Future Economic Loss
- Thus Mr Morrison has lost something like seven years of his working life as a labourer of which about half is attributable to the subject incident. He is in well paid employment. The appropriate award must bring into account the chances of him finding himself out of that employment over the next five years or so.
- The difficult question is how to assess damages when there is an undoubted loss of capacity i.e. the capacity to carry out manual work as a labourer at the meatworks, but where the plaintiff has obtained and retains better paying employment as a supervisor and trainer.
- The principle is that the plaintiff must demonstrate not only the loss of capacity but that that loss will or may be productive of financial loss.[31]
- The evidence does not disclose the present day net difference between Mr Morrison’s wage as a leading hand and the wage he would be earning as a labourer. On my calculation he is earning nearly $700 net per week at the present time.[32] The wage that he received as a labourer towards the end of 2006 was $540 net per week. If the wages of a labourer have not moved in that time then he is considerably better off – by nearly 30 per cent.
- The reality of his position is that if he does not maintain employment at the meatworks – because of the meatworks shutting down, or deciding it does not need him in that position, or through a reduction in his capacities – then he will be extremely vulnerable in the open labour market. It is plain that he has some residual capacity[33] but there is little doubt he would have great difficulty persuading an employer to take him on given his age, limited experience and training and his history of back problems.
- It seems probable, but not certain, that Mr Morrison can persist with his present work. Whether the employer will persist with him is not certain either.[34]
- In my view the prospective loss is best assessed in a global sum of $50,000. I have endeavoured to include a component for the unlikely prospect of Mr Morrison working past his early sixties had he not suffered the subject fall.
Pain Suffering and Loss of Amenities of Life
- The assessment of damages for pain, suffering, and loss of amenities must reflect the foregoing findings. Mr Morrison is entitled to be compensated for an acceleration in his degenerative condition which has brought on significant symptoms about seven years earlier than they would have otherwise come on and to which the August incident has contributed approximately one half. I assess the general damages, to reflect the complaints that Mr Morrison makes in his statement, supported as it is by the observations of his friends, in the sum of $25,000.
Future recurring expenses
- The only remaining item in dispute is what amount should be allowed for the costs of medication and treatment. Again that must be limited by the findings that I have made. The plaintiff claims for the cost of Tramal and Celebrex at $10 per week[35] and gym membership and physiotherapy at $15 per week.[36] These claims must be moderated for various reasons. Mr Morrison had a demonstrated need for Tramal and Celebrex prior to the accident. There is no specialist evidence to support the need for monthly physiotherapy treatment. Mr Morrison has a home gymnasium. That is not to say that his condition does not require an increased need for medication, and some treatment. I will allow the sum of $1,500.[37]
Summary
- In summary I assess the damages as follows:
Pain, suffering and loss of amenities | $25,000.00 |
Interest on $15,000 - 2 per cent x 1.75 years | $ 525.00 |
Past loss of earning capacities | $ 6,351.23 |
Interest | $ 43.00 |
Past loss of superannuation benefits | $ 571.61 |
Future loss of earning capacity | $50,000.00 |
Future loss of superannuation | $ 4,500.00 |
Future reoccurring expenses | $ 1,500.00 |
Special damages | $12,556.05 |
Interest on special damages @ 5 per cent | $ 157.50 |
Fox v Wood | $ 824.00 |
Total | $102,028.39 |
Less refund to WorkCover | $ 17,441.30 |
Net Damages | $ 84,587.09 |
- There will be judgment for the plaintiff in the sum of $84,587.09. I will hear from counsel as to costs.
Footnotes
[1] See P 5 of Exhibit 26.
[2] See para 9 prior to its amendment at the end of the trial.
[3] I gave leave to amend the pleading at the end of the trial to add this injury.
[4] Mr Miles is to be commended for persevering, as he did, to arrive at an accurate answer
[5] Exhibit 1.
[6] Exhibit 11.
[7] Exhibit 2.
[8] Exhibit 15.
[9] Exhibit 10.
[10] See entry at P 3 of Exhibit 26 for 9 December 2005. The X-ray report is Exhibit 3.
[11] P 16 of Exhibit 26.
[12] See p 5 of Exhibit 26.
[13] See report Exhibit 4.
[14] See P 4 of the Exhibit 7.
[15] See P 4 of Exhibit 22.
[16] See P 2 para 3 of Exhibit 23.
[17] See Exhibit 25.
[18] Para 11 of Exhibit 25.
[19] [1988] 2 Qd R 420
[20] (1970) 45 ALJR 80, 85
[21] [1988] 2 Qd R 420 at 427
[22] Mr Miles submitted that no such inferences should be drawn – that the admission merely reflected the reality that Mr Morrison was obliged to repay the amount as part of the refund due pursuant to s 270 of the Workers’ Compensation & Rehabilitation Act 2003. No argument was addressed to the question of the proper interpretation of that section but I draw attention to the different approach under the previous workers’ compensation legislation: see Fechner v Yerkovich [1993] 1 Qd R 249
[23] [2003] QSC 257
[24] (1960) 108 CLR 158
[25] (1965) 114 CLR 164,168
[26] (1990) 169 CLR 638, 642-643
[27] [2004] QCA 155
[28] Hopkins v WorkCover Queensland [2004] QCA 155 per Mackenzie J at [34]; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643
[29] (1975) 7 ALR 571 at 574 per Barwick CJ
[30] Ex 4
[31] Graham v Baker (1961) 106 CLR 340 at 347; Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3
[32] See Exhibit 9.
[33] Mr Baulch submitted a 50% reduction in capacity. That if anything underestimates the true loss if it encompasses all relevant matters - including the aggravation caused by the October incident
[34] The position was not filled prior to being offered to Mr Morrison.
[35] Exhibit 1 para 141-142.
[36] Exhibit 1 para 144 and 145.
[37] Roughly $5 pw for 5 years (232) plus a small component for the future thereafter