Doddridge v Kimberley Clark Australia No. DCCIV-97-306 Judgment No. D3786
[1998] SADC 3982
•8 April 1998
DODDRIDGE v KIMBERLEY CLARK AUSTRALIA
Judge Bright
Civil
This is an assessment of the damages suffered by the plaintiff, a male born in 1950, as a result of an incident at work, when he received an electric shock, and for which the defendant admits liability.
The plaintiff was raised in the near country. He was educated to year 12. He appears to have been an average student. The evidence does not point to anything unusual in his childhood or education of relevance to this case. On leaving school he completed a four year apprenticeship, before qualifying as an “electrical mechanic, grade A”. Over succeeding years he worked at that trade. He also studied and became proficient at motor car mechanics, though he did not gain a trade qualification. He was sufficiently well qualified to be permitted to take apprentices. He married in 1972 and has two daughters, born in about 1984 and 1987, respectively.
In about 1972, he moved to Millicent. There he worked as a maintenance electrician for about a year until that employer closed its factory. He got a job as a storeman at another factory, soon returning to work as an electrician when a vacancy occurred at that factory. He held that job for seven years. That employer began to wind down its operations, and he left to run a service station and workshop. After six months, he transferred to a service station, which he built up to a good business. Apparently noting the profit he was making, the fuel company which leased the station to him elected to run it for itself. He then ran the local Holden dealer’s workshop, managing about ten employees. After about nine months he left, believing the wages were too low. Thereafter he did a variety of part time jobs, including truck driving, automotive repairs and electrical repairs. After a while he set up his own automotive mechanical repair workshop, including buying quite expensive equipment to machine cylinder heads. Trade was good, in the sense that he had plenty of work. However, he found it hard to collect payment from his customers and he had to close.
He is a big, fit looking man, who was always interested in sport. He played football and cricket (and still does). He drove at speedways with some success. At Millicent he personally erected a kit home and developed a six acre block, where his family lived. He worked and played hard. He was Master of the local Hunt Club and trained horses, which he rode in the show jumping competitions in the area. He was gregarious and worked on a variety of local club and community committees.
I accept the evidence of his wife that he was rather a perfectionist. Although he sees himself as having been relaxed and happy in his life, that trait meant that he was, at times, somewhat anxious. I am sure that he was not conscious of any difficulty in coping with life, but, in hindsight, it appears probable that he was not free of anxiety. He consulted his general practitioner on a few occasions in respect of sleeplessness and tightness in the chest (? Cardiac pain). They were probably not caused by any organic problem.
Having said that, I reject the suggestion that, prior to his accident, he was already functioning badly. No-one is immune to pressure. The symptoms I have related may have been associated with business problems, or with some other aspect of his life. I cannot say. It is enough to find that they did not restrict him from living a full, busy life.
Because of certain factories in the area which employ them, there are, or were, many electricians in the Millicent district. Many of them did private work as well as working in the factories. The plaintiff’s qualification did not include much expertise in electronics. As a result of this, and of his period working with motor cars, he was not doing a great deal of electrician’s work by 1993. However, he did do some.
On 4/5/93, he was working with a Mr Cassington at the factory of the defendant. He had been offered a week’s work by a local contractor. He was to help install certain high voltage switch gear, which was contained in a cabinet perhaps two metres high, a metre deep and six hundred millimetres wide. It was quite heavy. It had to be aligned with and bolted to a row of similar cabinets. The factory had closed for a maintenance period.
Other employees of the defendant did the work of isolating the items to be worked on, which would otherwise have carried eleven thousand volts. The plaintiff seems aggrieved that he was excluded from the process of isolating the equipment. I am unsure whether he was so aggrieved at the time, or whether only by virtue of what later happened.
In any event, he and Cassington were manoeuvring the new cabinet into position, but having difficulty in completing that task. Cassington was standing in a trench about a metre deep at the back of the cabinets, while the plaintiff was at the front, trying to push the new cabinet into place, so that certain bolt holes were aligned. In the course of this, Cassington reached inside the adjoining cabinet. He noticed the hair on his hand stand up, a sign to him that it was “live”.
They checked and were assured that it was not - and it appeared to them that the isolation was complete. In fact it was not. When Cassington resumed, he touched an earthing bar in the adjoining cabinet. He felt a shock and pulled back sharply. He observed an arc between his finger and the bar as he pulled back. It appears that some eleven thousand volts must have passed up his arm and out through his cheek were it was touching the new cabinet.
The plaintiff was crouched in front and appears to have completed the circuit with electricity flowing from his right hand, which was pushing the new cabinet, across his chest to his left hand, which was in contact with the adjoining cabinet.
The plaintiff heard a “crack”, like a rifle shot, as did Cassington. The plaintiff does not know how he came to be there, but, a moment later he was standing a metre or so back from where he had been crouching. He is not able to say whether that was the result of voluntary or of involuntary movement on his part. Cassington had a similar experience, and is unable to say how he got to a position a metre back from his original position.
They exchanged expletives. The plaintiff particularly recalls the sight of Cassington looking up at him. He recalls a moment of pain across his chest and shoulders which he described as being far worse than the 240 volt shocks he had sometimes received in the course of prior work.
A mistake had been made and the module on which they were working was still energised. They were both most fortunate not to have been killed. The event was potentially lethal. I note that Cassington’s perception of the shock which he received was that it was like touching an electric cattle fence. His perception was of a less severe sensation than the plaintiff describes. As will appear, I do not place great importance on this difference.
Neither suffered any immediately identifiable injuries. Neither was burned. Each is vague about his movements at the instant of the shock, but that is as likely to be a result of a sudden and unexpected event as of any impairment of consciousness. If the latter occurred, and I doubt it, there is no evidence that it had any sequelae.
At times, the plaintiff has described being “blown back” and “flying fifteen feet through the air”. This is an obvious dramatisation and does not reflect the facts. It is, however, a manifestation of the seriousness with which the plaintiff views the incident.
I pause to comment on the way he gave his evidence. In general he was perfectly straight forward. He did not generally exaggerate. However, as questioning approached the details of the incident, he became visibly upset. It began with him twisting and fiddling with his hands, and progressed to tears (a state which obviously embarrassed him). For whatever reason, it was obvious that he was highly emotionally charged about it.
In his other evidence, he was irritable - at one stage reacting to cross-examination with a silly comment. This said, I found him a witness of truth. I did not think he consciously embellished his story. In fact, other evidence (particularly his wife’s) suggested that he understated the seriousness of his irritability and emotional instability at home. Although he did not volunteer or admit to it, he is plainly almost impossible to live with at present. The question in the case is whether that is caused by the incident.
The incident occurred on a Tuesday. That night when he got home (at the expected hour) he said words to the effect: “I’m lucky to be here.” That was perfectly true. He had come close to death for an instant.
He was out of sorts and did not eat his evening meal. He retired to bed feeling nauseous. He developed a burning pain behind his eyes and felt dizzy. He refused his wife’s suggestion to see a doctor. He worked on Wednesday and Thursday. He was not on work specifically selected to be light work, but it was in fact light. On Friday he could not work, as a result of the same symptoms. He still would not see the doctor. He felt pain across his shoulders and chest. His week of employment ran out on that Friday, so later absence was also because there was no work.
In my opinion the evidence does not establish that the plaintiff suffered any identifiable physical injuries. Subsequent cardiograms and nerve conduction studies detected no abnormalities.
In 1985 the plaintiff had an arthroscopy, following complaint of swelling and pain in his left knee. A tear to the posterior horn of the meniscus was found and repaired. Mr Martin, who performed that operation, told me that such an injury could be caused by sudden movement and strain while in a squatting position. Accordingly, it is possible that jumping up at the time of the incident could have caused the damage.
As against that, Mr Martin was looking back over a couple of years. He accepted that it was usual for pain to be felt at once after such an injury. The plaintiff did not feel pain for at least several months. This fact does not rule out a link, but it is against it. It is to be noted that the plaintiff did not, in his history to Mr. Martin, refer to the incident. He did refer to cricket and horse riding “three years ago”, which would be prior to the incident. That may have been an inaccurate history, however, the onus is on the plaintiff to establish the link. In my view, he has failed to do so.
I mention that the operation to the knee is regarded by the plaintiff as a complete success. His ready acknowledgment of this is a matter to be considered in his favour when one has to consider his other continuing complaints.
It seems to me that the only compensable results of the incident are non organic. In saying that I do not rule out the evidence of Professor MacFarlane to the effect that certain problems may relate to slight, but permanent, alterations to certain nerves as an organic result of the shock. Any such damage is too slight to be detected by ordinary tests. If it had occurred, it would strengthen the case for claiming that future recovery is unlikely. That remains possible, but no such permanent injury has been proved.
The plaintiff complains of continuing pain across his shoulders and to the back of his neck. He lacks stamina and tires easily. He says he needs to take afternoon naps, particularly when driving. He says he has become less coordinated. At cricket his bowling action has changed. He says his dexterity with tools is diminished and, for example, he tends to hammer his thumb instead of a nail, and that sort of thing.
Of more significance, he is now prone to explosive tantrums, where mild irritability would appear to be more appropriate. These outbursts terrify his family. They are unpredictable and involve imminent violence. So far, actual violence has not been great. He is no longer gregarious. Few guests are invited to the house. His wife tries to organise their children and their childrens’ friends so that they can avoid him.
In particular, the plaintiff claims that he is too frightened of electricity to work as an electrician. Soon after the incident, there was a need to change an ordinary light globe in his home. He avoided doing it for so long that his wife had to get a friend to do it.
More recently, he tried to install an electric pump for a rainwater tank. His wife came home unexpectedly and apparently unnoticed. As she went around to the back of the house, where he was working, she saw him leaning against the tank dry retching near the electric motor. He was unable to complete the job.
To be precise, it appears that he can work on electric cables or equipment which are clearly not “live”. He has worked on a washing machine when it was unplugged. He did some work installing domestic wiring in a building not yet connected to mains electricity. But he says he cannot cope with the final connection to electricity or with circuits which have the potential to be “live”. His wife had to get a sympathetic electrician to complete the connection of his electric pump. His employer had to arrange to connect the domestic wiring the had performed to the mains.
Though he still plays a bit of sport, he is not as good as he was and does not stay on after games to mix with others, as he used to do.
He is now prone to nightmares and insomnia. His nightmares are so frequent that his wife often leaves their bed to sleep elsewhere in the house. He thrashes about and sweats profusely (so much that the bedding must frequently be changed). While in a nightmare, he becomes rigid, but shaking.
He says that he has fewer nightmares if he goes to bed at, say, l a.m., but going to bed so late exhausts him. If he goes to bed at a normal time, he is prone to nightmares in the early hours of the morning, after which he will not get back to sleep. That is also exhausting. His wife is exhausted. I am sure that this lack of sleep for both plays a part in the difficult situation in which they now find themselves.
He has not had much work since the incident. He drove trucks for a Millicent firm from time to time, but could not keep up a full time schedule. He is, at least in a lay sense, depressed and lethargic. I accept that he is presently “in a mess”. There is great superficial attraction in accepting his attribution of all of his problems to the incident, but I doubt whether the situation is so black and white.
The family left Millicent for Victor Harbor about three years ago. Work in the Millicent district had become harder and harder for most people to find and there was a general exodus from the town. The plaintiff was afraid of falling land values and decided to sell his house. He had always intended to move to Victor Harbor and it appears that he moved at about the time he would have moved in any event. However, that move took him away from the company for whom he sometimes drove trucks and away from a community which knew him well, and for whom he had worked in the past. Given his state, it is not surprising he has found it hard to re-establish himself.
I judge him to be a man who tries to bottle up his feelings. He has not been willing to see his problems as anything other than organic. He is not accepting of psychological or psychiatric help. I do not see him as consciously making a meal of his situation. Interestingly, a course of psychological treatment has been followed by significant improvement in his state, as measured by a number of questionnaires. Were he consciously malingering, one might have expected no such improvement.
There is room for debate about whether his symptoms followed the incident so closely that an association is clear. He did not reveal much to his local doctors. It was only in Victor Harbor that he was referred to a psychiatrist, following a diagnosis of post traumatic stress disorder by his G.P. It is implicit in this diagnosis that, although made belatedly, those doctors who espouse it are satisfied that the plaintiff’s state is attributable to the incident.
Three doctors, Professor MacFarlane, Dr Seidel and Dr Burvill, albeit with slightly varying views as to its severity, diagnosed it. Dr Scanlon did not. Dr Scanlon, correctly, points to the fact that where a number of people are exposed to the same event, many may not develop post traumatic stress disorder. In general, he seems to regard it as a rarer condition than does Professor MacFarlane. He drew a somewhat disparaging comparison between his own extensive clinical experience and the views of “academics”, as he appeared to class Professor MacFarlane, who reciprocated with like irritation.
On the surface, the plaintiff does present as a fit, hardy man. Yes, he has done “electrical work” and has done some professional driving. But, it did not seem to me that great rapport had been established between Dr Scanlon and the plaintiff. I think that the plaintiff’s problems are more serious than Dr Scanlon realised.
I accept that there must be a perception on the part of a sufferer from post traumatic stress disorder that he or she was involved in a serious and life threatening experience. It is not entirely clear, whether, in fact, the current source of the plaintiff’s shock was great enough to kill him. It very well may have been. There is no evidence, apart from the plaintiff’s survival, that it was not. Whether it was, or not, I have no doubt that a person in the plaintiff’s position could regard it as an immediate threat to his life. It was in an area normally supplied with a great quantity of eleven thousand volt electricity, quite capable of killing.
Dr Scanlon referred to the extremely short duration of the shock and seemed to compare it with, for example, stepping onto a road, seeing an oncoming vehicle, and stepping back, thereby averting a potentially lethal situation. I can only say that I expect that people will vary greatly in their reactions. I see nothing odd in the plaintiff believing that he had nearly died. I find that the incident was one capable of giving rise to post traumatic stress disorder.
Dr Scanlon appeared to me to infer from the plaintiff’s limited activities a much greater capacity for work and life generally than I do. Having said all that, I accept that the situation is not free from ambiguity. One problem is that when the general practitioner at Victor Harbor suspected that the plaintiff may suffer from post traumatic stress disorder, he put a list of symptoms before the plaintiff and then asked whether he had them. All psychiatrists agreed that this blatantly leading inquiry was a poor basis for diagnosis. They considered whether problems now seen might merely be a result of the plaintiff being suggestible. Despite concern, I am persuaded by the views of Professor MacFarlane and Drs. Seidel and Burvill that it is probable that the plaintiff did suffer post traumatic stress disorder as a result of the incident - and so find.
Post traumatic stress disorder is not an absolute, or black and white state. It varies in severity. Its severity is not necessarily related to the severity of the initiating incident. In assessing this case, I am largely dependent on the veracity of the plaintiff in relating his symptoms, albeit paying close attention to the assessments of the doctors. It is hard to use precise words, but, for what it is worth, I class his condition as “rather severe”. On my personal scale as a layman it rates five out of ten. It is far from the worst imaginable case.
I suspect that, if it had been diagnosed and dealt with early on, it would not have become so bad. Bottling it up did no good. It is now nearly five years since the incident. It has been part of the plaintiff’s life for so long that it will not be easy to cure. However, the impression I have is that the plaintiff is normally a positive, active man. He readily acknowledges some improvement since treatment. I believe he has better chances than many might have in his position of major improvement. The conclusion of litigation will relieve some tension and let him focus more on his future, but it will not, of itself, work any miracles.
I expect a slow battle to get back to where he was, in a difficult labour market. I doubt he will ever be fully rehabilitated. I expect he will get back to most things. He will probably, with time, get back to being able to deal with electricity, at least in most circumstances. I think he will always be nervous about it. There is a strong contingency that he will never relax enough to work as an ordinary electrician. He will have set backs, when incidents accepted by ordinary electricians rearouse fear in him.
He tells me that his automotive skills are rather out of date - he does not have experience with computer controlled ignition or fuel injection. I believe that the only impediment to him brushing up on these skills is the difficulty in concentrating and persevering which is associated with his mild to moderate depression. I expect this to improve when the case is over.
There is no physical reason why he should not return to driving and other semi skilled occupations for which he is otherwise suited. If there are problems with fine co-ordination, separate from inability to maintain concentration, there is no clear evidence that that are great.
In the twelve to fourteen years before the incident, and after his four year electrical apprenticeship, he worked about eight years as a full time electrician and did part time electrical work for the remainder of the time, except for periods of full time automotive work. It is true that electrical work was not full time in the period immediately proceedings the incident. Despite that, I believe that, but for the incident, over half of his work in the five years following it would have been as an electrician. He would have got other work.
As things ran down in Millicent, there would have been periods of unemployment. His move to Victor Harbor and the need to re-establish himself would also have caused that. Trying to be conservative, I guess he would have worked for three and a half years out of the five that have elapsed and would have worked as an electrician for about two and a half of those years.
I doubt that he will work much over the next year, but, thereafter, he should be able to do a good deal of work in most fields. He will need to find sympathetic employers, and that will not be easy. He carries the stigma of a “work injury”. He has written a great number of job applications with virtually no success. There is no suggestion in those letters that he makes any point about having been injured which might discourage an employer. Nevertheless, I cannot accept that he will never work again. The best guess I can make is that, but for the incident, he would have worked for three quarters of the time to age sixty five, but will now work only about half of that time. I shall assess on the basis that he has lost about a quarter of his earning capacity. The work he gets may not be as well paid as it would have been.
I cannot hope for precision. The losses will include periods in the immediate future and others far in the future. He is now forty eight, and I guess has about seventeen years of work ahead of him. I shall work on a quarter of the value of the whole period, to allow for accelerated payment for distant losses. I accept that this is a crude approach. In it I have attempted to allow for the fact that he is, or should soon be, fit for many types of work, despite which small limitations will affect earning capacity to a disproportionate extent. There will be many times where there will be work which could be coped with, albeit with minor assistance or other allowance, but which will not be given to anyone not one hundred percent fit. I cannot further define the basis for my assessment.
On that basis I turn to his tax returns to assess his pre-incident earning capacity and his earnings since the incident. I set out his taxable income for the years covered by the returns tendered.
......... 1995/1990 - $3,2206
1990/1991- $11,506, less DSS benefit of $7,300 $4,206
......... 1991/1992 - $17,105, less DSS benefit of $10,141 $6,964
1992/1993- $22,700, less DSS benefit of $8,090 $14,610 *
......... 1993/1994 - $15,869, less DSS benefit of $12,257 $3,612
1994/1995- $10,403, less DSS benefit of $8,235 $2,168
......... 1995/1996 - $18,652, less DSS benefit of $3,261 $15,391
1996/1997- $7,839, less DSS benefit of $7,634 $ 205
* ..... Accident 4/5/93.
He was not doing well in the years 1989 to 1992, though he was getting more work in the 1993 tax year. In that year, prior to 6/11/92, he worked for an electrical contractor, generating a gross income of $13,153.20. I note that that job ended some six months before the incident. There was a week of work in May 1993, but his income in this year, over a period of little more than four months suggests a capacity to earn $30,000 to $40,000 per annum, if in full employment as an electrician, no doubt also with overtime. The award rate for an electrical mechanic grade A, depending on the year, and on the precise work, has been around $480 per week gross or $25,000 per annum. The plaintiff told me that he did odd bits of work for cash payments, not declared for tax. It did not appear that they amounted to much. They are not proved and I shall virtually ignore them.
Having suggested that the plaintiff had potential earnings in full employment of around $30,000, it is clear that he had not reached that potential for any of the years covered by the tax returns. While working full time in factories, he would have been paid award rates, and that covers more than eight of the thirteen years before the accident.
I do not have details of income during the years when he claims he built up a profitable service station business, beyond his claim that he made enough to pay off his house and land. Thereafter, I accept that his earnings were affected by a surfeit of local electricians who worked at the local factories and moonlighted. As work ran down in Millicent they left, but the local economy also ran down, thereby reducing opportunities for the plaintiff.
All in all, I guess that, in Millicent, and following relocation to Victor Harbor, he was likely to have grossed around $10,000 to $15,000 per annum attributable to his own efforts. To allow for tax I round that down to a net figure of $10,000 per annum. His best year since the accident was 1995/6 when he got work on a local heritage project through a Government subsidised work retraining scheme.
......... I note a few figures:-
1.Two and a half years at award rates (net) would be about $50,000, plus one year not working as an electrician but at, say, $15,000 per annum would give an estimate of $65,000 for the amount that might have been earned since the accident.
2...... On an estimate of income potential of $10,000 to $15,000 per annum for the five years, one might estimate the potential at $50,000 (net).
3.The amount actually earned was $21,400.
Having regard to all of the uncertainties, I assess past loss of earnings at $40,000 net.
For purposes of calculating interest I shall assume that it accrued evenly over five years at the rate of $8,000 per annum. I shall adopt a rate of 8% per annum. The claim was lodged nearly two years ago. Accordingly, I allow
$16,000 x 8% x 3 years = $3,840 to date of issuing proceedings, plus
$2,400 x 8% x 2 years ≈ 2 = $1,920 for the period since proceedings were issued. This gives a total of $5,760.
For the future, I note that work is freely available for electricians at award rates at present, in areas readily accessible from Victor Harbor. But for the accident, I expect that the plaintiff would now be in much more secure employment than has prevailed over the last decade. I expect he could have earned a regular wage of around $400 per week (net) with reasonable continuity of employment.
I have noted my guess that he has lost about a quarter of his earning capacity, which I propose to calculate as equating to a loss of $100 per week. Using a table 3A to “Luntz”, the value of $1 per week to a forty eight year old, to age sixty five, is $650, giving a loss of $65,000. I have allowed for many contingencies in this approach and feel no need to adjust the figure further. The contingencies applicable to the plaintiff are as likely to be favourable as to be adverse.
I assess future loss in the sum of $65,000.
The plaintiff is entitled to damages for non economic losses, principally pain and suffering. I assess them (unconstrained by the Wrongs Act) at $40,000, of which I attribute half to the past. I notionally attribute $12,000 to period before proceedings were issued and $8,000 to the subsequent two years. Again I assess interest at 8%.
$12,000 x 8% x 3 = $2,880.
$8,000 x 8% x 2 ≈ 3 = $640.
This gives a total for interest of $3,520.
I turn to special damages. They are set out in P13, and are agreed as to rate, but are subject to analysis as to whether they relate to the injuries I have found proved. I have found against the plaintiff in relation to treatment to his knee. That appears to have cost $1,525.60. There are unpaid accounts for Dr N. Barnes, amounting to $495. It has not been shown what they relate to. I propose to deduct $2,020 from the total of $3,147.70, which is shown on P14, to give a figure of $1,127.70. I will hear the parties further on this point. All special damages have been met by the Workcover Corporation, so no interest is payable on this component.
I sum up.
Non economic loss:
......... Past $20,000
Future$20,000.00
......... Economic Loss:
Past$40,000.00
......... Future $65,000.00
Interest$ 5,670 plus $ 3,520 $ 9,280.00
......... Special Damages
Past$ 1,622.70
......... Future Special damages $ 1,200.00
Total$157,102.70
Subject to hearing the parties in regard to special damages, I propose to enter judgment in that amount. However, I am informed that there are complications as to the amount that the Workcover Corporation is entitled to claim pursuant to notices of charge served on the defendant’s solicitors, which it would be better to resolve before judgment is formally entered. For that reason, I shall adjourn further consideration for about six weeks, with liberty to the parties to call the matter on sooner, should problems be resolved sooner.
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