Barry v Green

[1989] TASSC 89

Serial No. B11/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Barry v Green [1989] TASSC 89; B11/1989

PARTIES:  BARRY, Ian Keir
  v
  GREEN, Desmond George

FILE NO/S:  600/1983
DELIVERED ON:  17 April 1989
JUDGMENT OF:  Wright J

Judgment Number:  B11/1989
Number of paragraphs:  23

Serial No B11/1989
File No 60/1983

IAN KEIR BARRY v DESMOND GEORGE GREEN & ANOTHER

REASONS FOR JUDGMENT  WRIGHT J

17 April 1989

1. The plaintiff has recovered interlocutory judgment in a negligence action arising out of a motor vehicle accident on 9 July 1982. He now comes before the court for an assessment of damages. The plaintiff was born on 23 April 1945 and will celebrate his 44th birthday in a few days time. On the day of the accident he was a passenger in a motor vehicle which collided with another vehicle on the Mussleroe Bay Road in North–Eastern Tasmania. The vehicle in which the plaintiff was travelling overturned and he sustained extensive injuries. As a consequence he was admitted to the Launceston General Hospital where he remained as a patient for approximately five weeks. His main injury was a dislocated left hip. An initial attempt was made to achieve closed reduction but this was unsuccessful and it was necessary to proceed to open reduction of the joint. He also sustained a left haemothorax and fractured ribs on the right hand side resulted in a pleural effusion which a few days post operatively required aspiration of accumulated blood. However, the left haemothorax continued to cause difficulty and the plaintiff was returned to the theatre on 20 July 1982 where a fibreoptic bronchoscopy allowed the removal of accumulated mucous from the bronchial orifices. Following this he slowly improved.

1. The plaintiff also sustained multiple lacerations of the tongue and a ragged laceration under the jaw. He claims to have lost the tip of the tongue and a piece from the side of the tongue. The plaintiff also claims to have sustained a strain type injury to the left knee and although this is not noted as a separate injury in the hospital records, there is no reason to doubt his evidence, particularly as Mr Dermot Morgan found evidence of retropatellar tenderness and slight anterior cruciate laxity in the knee when he examined the plaintiff on 30 November 1982. Although painful and disabling at first, the knee has ceased to be a problem. The plaintiff was discharged from hospital on 10 August 1982 and was followed up as an outpatient. When seen on 22 September 1982, it was noted that he had been slowly mobilizing and was then walking with only slight difficulty. The movements in the hip joint were good and he was advised to return to work in one week's time following that consultation.

1. With this optimistic assessment in mind, it may be expected that the plaintiff would sustain no significant residual disability, but such is not the case. His claim was presented on the basis that he was now virtually unemployable and had been unable to obtain anything but intermittent casual employment since the date of the accident. It is accordingly necessary to examine the plaintiff's background and to consider his progress since 1982.

1. At the time of the accident the plaintiff was employed as a stockman on the Icena Estate which is a large pastoral property in the North–Eastern corner of Tasmania. He had been employed on that property in that capacity for approximately 12 or 13 years and it is plain from the evidence of his employer that he was regarded as a valuable employee. He lived on the property with his wife and three daughters in a 3 bedroom house provided by his employer free of charge. For a period of 4 years prior to his accident it had been his practice to go on shooting expeditions with his wife 6 nights per week, for the purpose of culling kangaroos and wallabies which were coming onto the Estate from adjacent properties. He was able to sell the meat from the slaughtered animals and thus establish for himself a small but profitable side–line business which was carried on with the approval, if not the encouragement, of his employer.

1. In addition, he was provided with a number of fringe benefits by his employer which, although probably taxable under the law as it existed at the time, were in fact enjoyed by the plaintiff free of any taxation impost. No doubt all these benefits would now be the subject of taxation under the more strictly defined provisions contained in amending legislation in recent years. He was entitled to take as much firewood as he required from the property and was provided with equipment to cut and collect it. He was provided with petrol at a cost of approximately 4 cents per gallon less than it was obtainable from retail outlets and he was provided with half a lamb carcass per week, free of cost. He had a flourishing vegetable garden which provided all the vegetables he required and he kept poultry. He and his wife enjoyed a normal marriage relationship and there were no signs of the rift in that relationship which was evident at the time of the trial.

1. The plaintiff was 15 years of age when he left school and thereafter engaged in manual work of an unskilled or semi–skilled kind. He had no academic qualifications. Before going to work on the Icena Estate, his employment record was good and I am quite satisfied that had it not been for the accident, he would have continued in his employment at the Icena Estate indefinitely. He enjoyed his work and his environment and gave satisfaction to his employer. His wife and family were well adapted to living in a remote area. He was receiving a good wage which, at the time, was $16 per week over the award together with substantial fringe benefits. He was conducting a regular and modestly profitable business enterprise. The plaintiff said that he fully expected to live out his life on the Icena Estate, working as long as he was able, probably beyond the age of 65 years. Whilst the plaintiff's credit was not attacked in any significant way, I think that he tended to see his expectations through rose–coloured glasses and in light of medical evidence to which I will shortly refer, coupled with evidence of the plaintiff and his wife, it appears that his claim to have been in sound physical condition at the time of the accident, is open to question.

1. He was a regular but apparently not excessive drinker at that stage but he also smoked approximately 20 cigarettes a day. Furthermore, he had suffered intermittent but disabling chest pain on occasions and this condition was under medical investigation at the time of the accident and in addition, he had had a "turn" of some kind on one occasion. This was of a fairly dramatic nature but was not fully explained by the evidence. Dr McGinity who was called to give evidence on behalf of the plaintiff, tended to suggest that the chest pains were due to attacks of anxiety rather than cardiac trouble and Mr Morgan also described them as "anxiety induced palpitations." Nonetheless, there is a medical report by Dr John Sands to whom the plaintiff was referred by Dr McGinity in July 1982, which forms part of the medical records which were tendered by consent during the course of the trial. Dr Sands was not called to give evidence and therefore the views expressed in the report must be given limited weight. However, in that report he does suggest that the plaintiff had a heart murmur and that his condition at that time may have been due to epilepsy. He recommended further examination by Dr Robert Cutforth, a cardiac specialist, but before that assessment could be carried out, the plaintiff's accident had occurred. On the state of the evidence it would not be possible to conclude that the plaintiff had a serious or potentially disabling heart complaint before the accident but the fact remains that he was not quite "as fit as a mallee bull" as his brother–in–law, Athol Arnold, suggested.

1. Dr McGinity also gave evidence during the course of the trial which strongly indicates to me that the plaintiff when assessed by him in November 1988, had a serious restrictive disease of his small airways resulting in a reduction of his forced expulatory flow rate to about 35% of normal. Dr McGinity agreed that continued heavy smoking would cause the plaintiff's lung function to deteriorate even further, with the result that by the age of 55 or thereabouts, he would be "completely severely incapacitated". Bearing in mind that the plaintiff claims that he is now unemployable as a consequence of the injuries sustained in the accident, it is necessary to seriously consider whether or not this factor has the effect of substantially diminishing his claim. Normally, this would be the inevitable result in light of the evidence just mentioned but it is complicated by two matters.

1. Firstly, the plaintiff claims that as his chest cavity and lungs were injured in the course of the accident, some part of his present reduced lung function should be attributed to those injuries. However, there is nothing in the hospital records (which were tendered in evidence) which would support a claim that the chest injuries caused or were likely to cause any or any significant residual disability and only brief and inconclusive evidence was given by Dr McGinity on this point. He was asked by Mr Jones:–

Q"When you examined him in 1986 his respiratory function was somewhat diminished in that it was about 76% of normal". A "Yes".

Q"And at that time you attributed that to a number of things – partly the accident he had, partly heavy smoking". A "Yes".

Q"And partly lack of exercise". A "Yes".

1. At the conclusion of his evidence I asked Dr McGinity if there was any residual incapacity in the lungs which he can attribute to the accident. He replied, "I Sir couldn't say what component the accident" (caused) "lung injuries would relate to his present problem now".

1. Secondly, the plaintiff claims that since the accident his cigarette consumption has doubled due to his enforced idleness. He now smokes between 120 and 150 cigarettes per week. However, unlike the cases of drug addiction referred to in Luntz, Assessment of Damages, 2nd Edn par2.7.06, it seems to me there is only a tenuous and, at best, indirect relationship between the plaintiff's increased smoking and the accident. Unlike drug addiction, which sometimes results from practically irresistible impulses created by legitimate medical treatment, smoking is really something over which the plaintiff does have, or should have, effective control even though the fact that time is weighing heavily on his hands may tend to increase his opportunities to smoke. I therefore regard it as unjustified to attribute the plaintiff's likely future incapacity resulting from restrictive airways disease to the accident the subject of these proceedings.

1. In considering the plaintiff's future economic loss attributable to the accident it is not without relevance that the plaintiff was engaged in an occupation in which hard riding and physical contact with animals was a daily occurrence so he was plainly somewhat exposed to the possibility of injury from other causes which may have shortened his working life, although, no doubt, such injury may well have been compensable under the provisions of workers compensation legislation. It was submitted by defence counsel that it may therefore be appropriate to apply a discount to the present claim based upon the possibility of such an event occurring. This submission is not without merit.

1. One can approach the question of assessment of future economic loss in a number of ways according to the circumstances of the case. In some instances because of the multiple contingencies involved, it is appropriate to assess a lump sum exercising a broad judgment of the positive and negative features affecting the claim. In other cases, an almost mathematical approach can be adopted by applying the discount tables to the plaintiff's wages at the time of the accident or his assumed earning capacity at the time of trial and then applying a further discount or, less frequently, an increment to the claim after allowing for contingencies. In the present case, counsel for the defendant urged me to take the former course and counsel for the plaintiff urged me to take the latter. However, I think that neither approach is particularly appropriate. I think there is a sound foundation in the evidence for assessing the plaintiff's future earning capacity on the basis that he would have continued in active work, earning at levels equivalent to those that he was achieving in 1982, until he turned 55 years of age. I think that had it not been for the accident, he would probably have continued to work on the Icena Estate until that time. Now, according to Mr Dermot Morgan's evidence, the plaintiff has a 25% disability of the left leg and is unfit for heavy labouring work or work involving agility or heavy lifting. Counsel for the defendant urged upon me that the plaintiff should not be assessed as being totally incapacitated for work as a consequence of the accident because, although his hip injury had deteriorated between 1982 and February 1988 to such an extent that a hip replacement operation became necessary at that time, he had been able to work, albeit in a limited capacity, in the interim period and, on Mr Morgan's prognosis, he would be likely to have a capacity for light work in the future. Superficially attractive though this argument may be, I am reminded in cases of this kind of the sentiments expressed by Everett J in Harvey v The Electrolytic Zinc Company of Australasia Limited, 50/1980, when he observed that in the current economic climate when so many fit young Australians cannot find employment it is unrealistic to expect a plaintiff of more advanced years who is still subject to substantial pain and indeed disability to be able to re–enter the work–force on such a level as to produce a regular and adequate income. Regrettably the views so expressed in 1980 are equally relevant today.

1. The plaintiff has obtained casual work to a limited degree since the accident and he has also made enquiries for employment, perhaps not very diligently, but without success. He has worked as a scallop splitter, a bull–dozer driver, a shearing shed–hand, a fencer and a market–garden assistant. I regard him as being very much an odd–lot in the work–force at the present time. Whilst he retains some degree of earning capacity, I think it is so small as to warrant no more than a 5% allowance in favour of the defendant on the basis that that is the degree of earning capacity which the plaintiff retains. Apart from reducing the plaintiff's future loss to his 55th birthday, I think no other discounts should be made for contingencies.

1. I have been much exercised by the measure of the plaintiff's economic loss attributable to the lost opportunity to shoot kangaroos and wallabies. The plaintiff did not look on this as a pleasurable occupation but rather as a necessary undertaking in his employer's interests and a money making enterprise for his family. I am satisfied by the evidence that at the time of the accident the plaintiff and his wife were earning a nett $120 per week (averaged over the year) during the 10½ months per annum when they were engaged in this enterprise. It was submitted that the plaintiff should only recover half of this sum as it was a partnership undertaking. I have considered this submission carefully, particularly as I raised the matter with counsel in the first place. However, it seems to me upon reflection that this was not really the sort of partnership which has been discussed in the reported cases. It was a simple unstructured joint enterprise between husband and wife which, in the circumstances, was quite incapable of surviving the disablement of either one of the participants. The fact that the relationship of husband and wife exists, is plainly a matter of some relevance in assessing the quantum of such a loss. See Dahm v Harmer [1955] SASR 250 and Szittner v Harriott [1967] 1 NSWR 233. It would have been quite impracticable for either party to consider the employment of another person in the enterprise in the event of illness or disability of the other and I think that in the absence of an exploration of this issue during the course of the trial, by cross–examination or otherwise, it would be unfair and inappropriate to allow a diminution of the plaintiff's claim on the basis that only half of the nett loss proved was recoverable because of an assumed entitlement of his wife to half the nett income. I doubt if either of them ever considered their respective legal entitlements to the money earned which appears to have been used for general family purposes. There remains, of course, the question as to the period over which this loss should be allowed. Counsel for the defendant pointed out that the plaintiff's brother–in–law and his wife who formerly conducted a similar enterprise on the Icena Estate, had ceased in recent years and that the culling operations were now carried out, apparently satisfactorily, by weekend shooters who were allowed on to the property for this purpose. It was also pointed out that the plaintiff in the course of giving evidence (when he was being cross–examined about the possibility of carrying on a shooting business in other parts of the State) claimed that he no longer had the stomach for this kind of activity or to use his own words "I have just turned a little bit soft–hearted. I don't like to kill them anymore I don't think".

1. These considerations both provide strong argument that the plaintiff would not have continued shooting indefinitely even if the accident had not occurred but it is perhaps worth mentioning that the plaintiff's change of attitude was only brought about by his reaction to shooting horses for dog meat, an exercise which he would have been unlikely to experience if he had remained on the Icena Estate as an employee. My overall impression is that had he remained in that job, he would probably have continued kangaroo and wallaby shooting for several years. As already mentioned, he saw it as necessary to protect the Icena pastures. It was also a source of income. I think these factors suggest that but for the accident his new found squeamishness would not have occurred. On the other hand, with advancing years, deteriorating health and the financial burden of children probably diminishing as they grew up and got married (I do not overlook the fact that he currently has two daughters living at home with their ex–nuptial off–spring), I think that the plaintiff or his wife or both of them, may well have tired of this nocturnal activity in favour of a more peaceful life at home. I therefore propose to allow the plaintiff the nett loss of income derived from his shooting activities over a period of 12 years, calculated from the date of the accident.

1. Logically, I should reduce the claim by the amount earned by the plaintiff and his wife when they rejoined his brother–in–law and his wife to carry out similar activities for a brief period in late 1985 and early 1986 but, this sum has already been taken into account between the parties in figures agreed between them. It would be inappropriate to regard the plaintiff as having any residual earning capacity in this particular field so no discount will be made on that account.

1. I turn now to consider the plaintiff's claim for pain, suffering and loss of amenities. As a result of the accident, the plaintiff lost his job on the Icena Estate and as a consequence he lost not only his source of livelihood but also a life style of which he was extremely fond. He now lives in a Housing Commission Estate at Scottsdale. He finds the environment disturbing and depressing. He is anxious to return to life in the country as soon as he is able. He blames the breakdown of his marriage upon this change of environment. He says it caused him to drink more frequently and he developed a change in his attitude to his wife. He is hopeful that the rift can be repaired but Mrs. Barry expressed the view in her evidence that the break was final. Furthermore, she finds the Scottsdale environment congenial enough and has no present desire to leave it. Mrs. Barry, whom I accept as a witness of the truth, said that she and her husband had separated about 3½ months before the trial. She summarized the factors leading to the breakdown as follows:–

"Well he was irritable, couldn't get a job, no one would have him because he was an insurance risk plus he started drinking and abusing".

1. She said that he was awake for long periods at night apparently in pain from his injured hip. The plaintiff confirms this. Whilst it has been no easy question to resolve, I think the plaintiff's abrupt change of life style coupled with the debilitating effects of chronic pain and the removal of a secure job which though not so expressed, was clearly an important component in his self–esteem, have all combined to a significant extent to contribute to the breakdown in the marriage, although I have little doubt there are other significant factors of which I am unaware. However I should add that I am far from convinced that the separation will be permanent and consequently I only allow a small component for this factor under the general heading of pain and suffering.

1. The plaintiff complains that he is self conscious about the scar under the chin and, although the scar is barely noticeable, I think it is a genuine claim although of minimal significance in the overall picture. It does cause him minor difficulty from time to time while shaving. He also has a damaged tongue and although there is no medical evidence to support it, he claims that this causes unpleasant sensations. He has scars on his left hip and chest as a result of the operations he has undergone. Although Mr Morgan was of the opinion that the plaintiff did not now limp, other evidence which I accept, suggests that he has a tendency to do so. I think he also continues to experience pain and discomfort although to a much reduced extent since the hip replacement in February last year. One worrying aspect (as to which no medical evidence was lead however) is that the plaintiff claims that his tendency to redistribute his body weight to the right–hand side when he is walking tends to cause pain in the right hip. He initially took tablets for the painful left hip and leg but does not do so now, although he requires sleeping tablets at night. He struck me as a man of somewhat phlegmatic disposition not given to exaggeration of his symptoms and I accept his description of them. He enjoyed fishing fairly regularly prior to the accident and I think to some extent he has been limited in this pastime since 1982 due to the strain that prolonged walking, or walking in rough terrain, places upon his leg. His mobility has also been affected by the breakdown of the marriage as his wife was the only licensed driver in the family. He lost his licence as a result of a drink/driving charge when he was aged 25, and due to an abnormal and unexplained fear that he may be caught for a similar offence on a subsequent occasion, he failed to renew his driving licence thereafter. However, he appears to be a capable driver and I see no reason why he should be unable to obtain a driving licence in the future. He will, of course, have to curb his present drinking habits if he does so. Nonetheless, he is a man who has undergone considerable pain and more than usual upheaval in his environment and marital relationship as a consequence of the accident and he must be compensated accordingly. An allowance, albeit small, must also be made for the possibility of future surgery. I assess his general damages under this head at $24.000.

1. It is also claimed that the plaintiff is likely to incur further medical expenses in future. This claim was based upon Mr Morgan's evidence that there is a 10% chance over a 10 year period of a further hip replacement being required. On this basis a claim was made totalling $8,630.00 including components for hospital accommodation, theatre fees, physiotherapy, radiology, a surgeon, an anaesthetist, pharmacy costs and a prosthesis. Whilst it would be reasonable to allow that total amount if it represented the certain expense of an immediate operation, it must be substantially discounted because firstly, there is no certainty that it will ever take place and secondly, if it does it will be at some time well into the future. In these circumstances, I consider it would be unreasonable and unrealistic to allow any more than $1,200 under this head.

1. The plaintiff's claim will be assessed as follows:–

A     Past loss of earning capacity.

(1)   Loss of earning capacity 9 July 1982

to 18 December 1988 (including award

wages plus $16 pw over–award

payments)(as agreed.)  $ 73,930.48

(2)   Loss of earning capacity 19 December

1988 to 17 April 1989 (including award

wages plus $20 pw over–award

payments) 17 weeks @ $298.10

gross pw($241.15 pw nett).  $   4,099.55

(3)   Loss of benefits from employment.

9 July 1982 to 18 December 1988

as follows:

(a)   Rent –               $50.00 gross pw

(b)   Meat –              $13.00 gross pw

(c)   Firewood –       $  3.50 gross pw

(d)   Electricity –      $  4.00 gross pw

(e)   Petrol –             $10.00 gross pw

  

––––––––

       

Total.                $80.50 gross pw

Less tax and Medicare levy of 31 c.

in the $1.00 ($24.95) – $55.55

pwnett.

336 weeks @ $55.55 pw nett.  $ 18,664.80

(4)     Loss of benefits from employment

19 December 1988 to 17 April 1988

as per Item (3) above but increasing

sub–item (e) (petrol) to $26.00

gross pw After allowing for tax and Medicare levy (31c per

$1.00) the total nett weekly figure

becomes $66.59 17 weeks @ $66.59

pw nett.  $ 1,132.03

(5)   Loss of income from kangaroo and

wallaby shooting @ $120 gross pw

(after deduction of expenses)

9 July 1982 to 17 April 1989.

Less tax and Medicare levy of 31c.

 

per $1.00 – $82.80 pw nett.

$ 28,897.20

  

–––––––––––

  

$126,724.06

Less unemployment benefits, MAIB

disability allowance, and nett

earnings received (as agreed).  $ 57,615.25

  

–––––––––––

Total Items (1)–(5)  $ 69,108.81

  

–––––––––––

B     Future Loss of Earning Capacity.

(6)   Calculated on gross wages and

over award payment of $298.10.

pw($241.15 pw nett) and

benefits as per Item A(4) above

($66.59 pw nett), i.e.

$307.74 pw nett from 17 April

1989 to 23 April 2000

(i.e. 11 years and 1 week)

discounted at 3% $307.74 x 490  $151,100.34

Less 5% residual earning capacity.  $    7,555.02

  

––––––––––––

  

$143,545.32

(7)   Kangaroo and wallaby shooting

(to terminate after (12 years

from date of accident)

17 April 1989 to 10 July 1994

@ $82.80 pw nett – i.e. 5¼

years discounted @ 3%

$82.80 x 254     $  21,031.20

  

–––––––––––

Total Items (6)–(7)  $164,576.52

  

–––––––––––

C     Special Damages.

Medical and hospital

expenses (as agreed).  $ 14,315.18

  

–––––––––––

D     Future hospital &

medical expenses

(as allowed).  $  1,200.00

  

–––––––––––

E     Pain, Suffering &

Loss of Amenities

(as assessed).    $ 24,000.00

  

–––––––––––

Summary.

Item A.  $   69,108.81

Item B.  $ 164,576.52

Item C.  $   14,315.18

Item D.    $     1,200.00

Item E.  $   24,000.00

  

–––––––––––

  

$ 273,200.51

Less paid (Item C.)  $   14,315.18

  

–––––––––––

       

Total.  $ 258,885.33

  

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1. There will be final judgment for the plaintiff for $258,885.33.