Coughlan v United Precast (Vic) Pty Ltd - [2020] VSC 671

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S ECI 2019 01275

MICHAEL COUGHLAN	Plaintiff
v
UNITED PRECAST (VIC) PTY LTD	Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2020
DATE OF JUDGMENT:	13 October 2020
CASE MAY BE CITED AS:	Coughlan v United Precast (Vic) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 671

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NEGLIGENCE – Damages for personal injury – Workplace accident where negligence admitted – Assessment of damages consequent upon injury – Brain and facial injuries involving impairment to memory and effect on mood, loss of eyesight in one eye, loss of sense of smell and partial loss of sense of taste – Loss of stereoscopic vision – Assessment of pain and suffering damages for such injuries – Successful return to work, subsequent gain of more remunerative employment and remains employed – Assessment of pecuniary loss damages - Question of extent to which injuries expose injured plaintiff to risk of future employment or less remunerative employment – Cullen v Trappell (1980) 146 CLR 1, Todorovic v Waller (1981) 150 CLR 402, Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594, Malec v Hutton (1990) 169 CLR 638, State of New South Wales v Moss [2000] NSWCA 133.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell QC with Mr G Coldwell	Maurice Blackburn Lawyers
For the Defendant	Ms B Myers with Ms A Bannon	Russell Kennedy

TABLE OF CONTENTS

Introduction and Summary.............................................................................................................. 1

Injuries and effects............................................................................................................................ 2

Brain injury (memory, mood)..................................................................................................... 4
Loss of eyesight........................................................................................................................... 10
Loss of sense of smell and taste................................................................................................. 12
Facial injury and scarring.......................................................................................................... 13

Pain and suffering damages........................................................................................................... 13

Future pecuniary loss...................................................................................................................... 16

Applicable legal principles........................................................................................................ 16
Employment experience and qualifications............................................................................ 19
Work capacity since injury........................................................................................................ 21
Assessment of damages for incapacity to earn income......................................................... 25

Conclusion......................................................................................................................................... 29

HIS HONOUR:

Introduction and Summary

Michael Coughlan, now 39 years of age, was struck in the face by a heavy steel chain as he operated a gantry crane while employed as a rigger by the defendant (United Precast). The blow rendered him unconscious for several minutes. It broke bones in his nose, cheek and jaw causing some bony protrusion into the frontal lobe. He spent 12 days in hospital, including having cranial surgery to insert plates. From the surgery, he has scarring over his head mostly behind his hairline. He has been left virtually blind in his left eye. He has lost sensation on the left side of his forehead and cheek. He lost his sense of smell and, because of that, most of his sense of taste. He has some degree of memory impairment and some mood effects.

After four months he had recovered sufficiently to return to his work as a rigger, on light duties. A month later he was back to full hours and after about another month he was doing his full pre-injury duties. Nevertheless, he no longer felt comfortable performing those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] VSC 671
Decision Date: 13 October 2020

CaseChat Overview and Summary

Coughlan v United Precast (Vic) Pty Ltd involved a claim for damages for personal injury sustained by the plaintiff in a workplace accident where negligence was admitted by the defendant. The dispute was heard in the Supreme Court of Victoria. The plaintiff alleged that due to the defendant's negligence, he suffered brain and facial injuries which resulted in impairment to memory, mood effects, loss of eyesight in one eye, loss of sense of smell, partial loss of sense of taste, and loss of stereoscopic vision. The court was required to assess the damages for pain and suffering attributable to these injuries, as well as the pecuniary losses resulting from the injuries.

The primary legal issue before the court was the quantification of damages for pain and suffering and pecuniary loss in light of the plaintiff's injuries. The court had to consider the extent of the impact of the injuries on the plaintiff's life and future prospects, including the risk of future employment or less remunerative employment. The court examined relevant case law, including Cullen v Trappell, Todorovic v Waller, Victorian Stevedoring Pty Ltd v Farlow, Malec v Hutton, and State of New South Wales v Moss, to determine the appropriate assessment of damages.

The Supreme Court of Victoria determined that the plaintiff's injuries were severe and would cause significant pain and suffering. The court noted that the plaintiff had successfully returned to work and subsequently gained more remunerative employment, which was a positive indicator of his resilience and ability to adapt. However, the court also recognised the long-term implications of the plaintiff's injuries, including the potential for future employment difficulties. The court awarded damages for pain and suffering and pecuniary loss, considering both the immediate impact of the injuries and their long-term effects.

The court ordered that the defendant pay the plaintiff damages for pain and suffering and pecuniary loss, reflecting the severity and long-term impact of his injuries. The precise amount of the damages was determined by the court after considering the evidence and legal principles relevant to the case.

Orders