Gehrke v Jensen
[2001] QSC 381
•08 October 2001
SUPREME COURT OF QUEENSLAND
CITATION: Gehrke v Jensen and Anor [2001] QSC 381
PARTIES: GREGORY HANS FREDERICK GEHRKE
(Plaintiff)
v
NIGEL JOHN JENSEN
(First Defendant)
v
SUNCORP METWAY INSURANCE LIMITED
(Second Defendant)
FILE NO: S427/2001
DIVISION: Trial Division
DELIVERED ON: 8 October 2001
DELIVERED AT: Rockhampton
HEARING DATE: 2nd and 3rd October 2001
JUDGE: Dutney J
ORDERS:Judgment for the plaintiff against the second defendant in the sum of $160,913.60.
CATCHWORDS: PERSONAL INJURIES – MOTOR VEHICLE ACCIDENT – QUANTUM – Whether plaintiff but for injury would have retained shift allowance.
Croney v Nand (No 524 of 1998, McGill DCJ, 10/07/1998) referred to.
Crosson v McIlveen trading as M & I Roofing (Repairs) (No 70 of 1997, McGill DCJ, 23/11/1998) referred to.
Lawton v Oakey Abattoir Pty Ltd (No 111 of 1995, Robertson DJC, 28/02/1997) referred to.
Ward v Hyne & Son Pty Ltd (No 35 of 1995, Botting DCJ, 16/07/1996) referred to.
COUNSEL: AJ Williams for the Plaintiff
G Crow for the Defendants
SOLICITORS: KM Splatt & Associates for the Plaintiff
Grant & Simpson for the Defendant
Dutney J: The plaintiff was injured in a motor vehicle accident on 4 October 1999. Liability is not disputed. The only matter for determination is quantum.
The plaintiff suffered a muscular ligamentous injury to his back which resolved quickly. This injury was not explored at trial. The more significant and controversial injury was to the plaintiff’s left wrist. That injury has not resolved and medical opinions as to the precise complaint and its severity differed widely. I will come to that evidence shortly. It is first necessary to set out some history.
The plaintiff was born on 14 May 1975. He was thus 24 when injured and 26 at trial. He completed grade 12 in Rockhampton. Upon leaving school the plaintiff enlisted in he army but was discharged 7 weeks into basic training as a result of chronic asthma.
Mr Gehrke returned to Rockhampton and obtained a position as a trainee manager with Woolworths at Allenstown. This includes a 13 week college course. At the completion of the traineeship Mr Gehrke was retained as a general employee stacking shelves, assisting customers and operating a check out. He was then 19.
Mr Gehrke left Woolworths to work as a salesman with Super Cheap Autos which was just opening an outlet in Rockhampton. The outlet was not successful and the plaintiff was laid off after 3 months. Mr Gehrke was unemployed for 3 or 4 months.
Mr Gehrke’s next job was as a casual labourer with Direct Air, an airconditioning company. That position started in about August or September 1995. The plaintiff stayed with that company for about 12 months before being laid off as a result of the company’s for lack of work. He moved to Gladstone where he worked in a similar capacity for another company installing industrial air conditioners. This job only lasted a couple of weeks before Mr Gehrke was again offered a position with Direct Air which had by then obtained contracts at the Boyne Island smelter and the Central Queensland University in Gladstone.
As the Direct Air contracts in Gladstone neared completion the plaintiff was told the company didn’t have a lot of future work available and the plaintiff began applying for different jobs in Gladstone. He was successful in obtaining a position as a labourer with Queensland Alumina Limited (“QAL”). The plaintiff commenced with QAL on 18 August 1997.
At QAL the plaintiff was classified as an aluminium producer 1 (“AP1”). Jobs were classified from AP1 through to AP5 which was essentially a management position. Throughout his time with QAL the plaintiff was employed in the plant services division. The work was heavy. It included descaling tanks with jackhammers and sledge-hammers and other similar work. Up to the time of the plaintiff’s accident the work was done in shifts of 12 hours with four work days followed by four rostered days off. As a result a substantial shift allowance was paid.
In December 1999 the shift system was changed. All workers in the plant services division were shifted to day work only and the shift allowances cancelled. There were by this time and still are 35 plant service division positions. From January 2000 workers were selected by the Plant Services Supervisor, Mr Richard Duff for transfer back to shift work. Ultimately 24 of the 35 workers were returned to shift work.
The plaintiff’s case is that but for the injury to his wrist he would have retained his shift allowances and should be compensated on that basis. The defendant disputes this.
Following the accident the plaintiff had about two weeks off work. He says that at the end of that time his wrist which was initially painful seemed to be settling. He returned to work. The work caused the wrist to flare up and the plaintiff consulted the plant doctor, Dr Hough. Dr Hough diagnosed a sprain and placed the plaintiff on light duties. Light duties in this instance involved largely bobcat and dump truck driving.
The plaintiff says that the pain got steadily worse. It began interfering with his sleep. The wrist ached, throbbed and suffered from pins and needles. It began to swell. Dr Hough continued to treat the plaintiff. This mainly seemed to involve cortisone injections. On 3 January 2001, Dr Walter performed an arthroscopy.
The plaintiff continued at work until October 2000. After ceasing work the plaintiff says that his wrist was painful less often but flared up when he did things like carrying groceries or his young daughter who now weighs around 15 or 16 kilograms.
The precise cause of the plaintiff’s symptoms is uncertain. Dr Boyce diagnosed reflex sympathetic dystrophy or complex regional pain syndrome. Symptoms of this condition include excessive sweating in the affected region, discolouration of the skin swelling.
The apparent intermittent nature of the plaintiff’s condition makes precise diagnosis difficult.
Since the injury the plaintiff has consulted to following medical practitioners who gave evidence either orally or in the form of a report – Dr Walters on 21 August 2000; Dr Pentice on 9 October 2000; Dr Boyce on 24 October 2000; Dr South on 2 November 2000; Dr Walters on 3 January 2001 for an arthroscopy; Dr Agar-Wilson 20 February 2001; Dr Holt on 1, 2 March 2001; Dr Gillett on 17 April 2001; Dr Saines on 17 April 2001 and Dr Walters on 23 April 2001. In addition the plaintiff consulted Dr Hough on 25 occasions between the accident and May 2001.
The only doctor who noted any significant abnormality on examination was Dr Boyce. The arthroscopy did not reveal anything likely to be related to this injury.
Despite this all doctors accept the complaint of intermittent pain and all recommend that the plaintiff not return to heavy work. Percentage disabilities vary from 2% to 15% of the left arm. I get no assistance from percentage disability in this case. They seem to me to have no necessary connection to actual pain or actual workplace disadvantage.
The plaintiff has suffered a painful wrist injury causing long-term discomfort and inconvenience. It has interfered with his child rearing by making it difficult on occasions for him to show proper affection for his children by picking them up. This is obviously a matter which causes the plaintiff distress and is properly reflected here as a component of pain and suffering.
I assess pain and suffering in this case at $30,000.[1] I assess $20,000 of this as past pain and suffering and allow interest on that sum less the WorkCover lump sum payment of $4,845 at 2% for 2 years in the total amount of $606.20.
[1] Reference has been had to Lawton v Oakey Abattoir Pty Ltd (No 111 of 1995, Robertson DJC, 28/02/1997); Ward v Hyne & Son Pty Ltd (No 35 of 1995, Botting DCJ, 16/07/1996); Croney v Nand (No 524 of 1998, McGill DCJ, 10/07/1998); Crosson v McIlveen trading as M & I Roofing (Repairs) (No 70 of 1997, McGill DCJ, 23/11/1998).
The plaintiff’s employment by QAL terminated on 3 October 2001 when the plaintiff accepted a redundancy package of which $16,331 was neither salary nor statutory entitlements.
The plaintiff says he was denied shift work because of the injury. This is supported by the then union representative, Mr Myers who gave evidence that he approached both the plaintiff’s supervisor, Mr Duff and the superintendent, Mr Farrah who told him that the plaintiff’s not being allocated to shift work was because of the injury.
Mr Duff denied that he said this to Mr Myers or that it was true. Mr Duff’s evidence was that following a restructuring a limited number of workers were returned to shift work. These workers were selected by him on the basis of merit. He said that the plaintiff was not a particularly good worker. He was shy of the heavier work and his attendance record was poor. He also said the plaintiff’s prospects of advancement were poor. In his experience Mr Duff said only 2 other workers had failed to progress from AP1 to AP2 within 2 years. They stayed permanently at AP1. Promotion was performance based. At the time of his accident the plaintiff had been at QAL for more than 2 years and remained at AP1.
The other relevant evidence related to pay scales. QAL pays workers relative to a mid point. When a worker first starts he is paid 82% of the mid point. After a probationary period of three months that is increased to 88%. Thereafter the pay rate is a percentage between 88% and 104% based on regular merit reviews. The records of QAL show that the plaintiff attained 88% on 18 November 1997. On 1 April 1998 his rate increased to 90% where it remained until 1 April 1998 when it increased to 93% where it remained until after the accident. After the accident it was reduced to 92.7% but I do not consider anything can be made of that. Mr Duff said that the average worker is on a percentage between 96% and 98%.
Mr Farrah was not available to give evidence. He was on a yachting holiday somewhere in the Pacific Ocean.
I accept Mr Duff’s evidence. Whatever was said to Mr Myers, I accept that the true position was that even without the injury Mr Duff would not have selected the plaintiff for shift work and his promotional prospects were poor.
Mr Thompson of Vincents, accountants, gave evidence. He said that even without the main shift allowance there were other shift allowances which could have applied to the plaintiff. No one took this up in evidence and there is no basis on which I could assess whether and if so what other allowance might have been available. Since the only difference between the parties was in relation to the shift allowance the parties are effectively in agreement that after deducting the redundancy payment past economic loss comes to $11,900. Interest is not payable because this amount was covered by WorkCover.
For the future I proceed on the basis that the plaintiff is precluded from heavy work. On the basis of the findings I have already made the plaintiffs gross weekly salary at QAL as at April 2001 was $687.92. This reflects 92.7% of the mid point salary. For the purpose of calculating loss of earning capacity I propose to adopt the average scale of 97% of the mid point as a base. 97% of the mid point equates to $722 gross per week[2]. This is $563 net per week.
[2] 97% of $38,690 divided by 52 taken from the certified agreement in Appendix 4 to the Vincents report exhibit 2
The plaintiff is a young man. Ms Norris’ report[3] suggests he is capable of turning himself to a variety of alternative forms of employment to heavy manual labour. I generally accept Mr Hoey’s evidence that at present he lacks the necessary skills for more than a basic selling, clerical or other unskilled position. Nonetheless, even now he retains a significant earning capacity. If he retrained he could, in my opinion eventually exceed the type of salary open to him at QAL. The clerk’s award equates to $417.50 net per week.[4] The Queensland Retail Industry Interim Award for sales assistants equates to $392.73 per week.[5]
[3] exhibit 11
[4] Vincents report p10
[5] Mr Hoey’s report included in exhibit 1 at p10.
I accept that the plaintiff may take some time to find a job. The estimate of 6 months given by Mr Thompson does not seem to me to be unrealistic having regard to the problems identified by Mr Hoey. The loss for that 6 months is therefor $563 per week and totals $14,638. The difference between the QAL notional weekly amount and the average of the two award amounts to which I have referred is $158 net per week. Because I do not consider the plaintiff is precluded from advancing his position either by retraining or experience but recognising that that will take time and taking into account that the medical evidence is divided on whether the plaintiff’s condition is permanent I propose to allow that loss for 10 years. This amounts to $64,780. The total for loss of earning capacity is thus $79,418.
Past superannuation is assessed at $952. I accept that Mr Crow for the defendant has correctly calculated this sum in accordance with the evidence.
For the future I do not consider it proper to assume that the plaintiff must always have stayed with QAL. He may well have recognised early that his future lay elsewhere. In my view to allow for normal job movement the plaintiff should be awarded future loss of superannuation at the usual notional rate of 9% and not the reduced rate calculated by Vincents although it must be noted that the reduced rate was on the basis of the shift allowances on which industry superannuation was not paid and thus is not appropriate to the calculations in view of the findings I have made. Loss of future superannuation is calculated at $7147.62.
The plaintiff claims for past and future care. Rates are agreed at $11 per hour for the past and $12 per hour for the future. For the past I accept that for some period, particularly while his arm was in a cast the plaintiff was in need of assistance with personal and domestic matters. Taking a broad brush approach I allow 1 hour per day for the past for 2 years. This amounts to $8,030. Rounding up with interest I allow $8500. For the future the evidence is much less convincing. The plaintiff’s claim of 1 hour per day was prefaced on an inability to mow, whipper snip, shop and tend children. In fact the plaintiff does do these things. While it may be more difficult, this is not a basis for compensation under this head. While pain attacks may incapacitate the plaintiff for short periods most things can simply be delayed. While little attack was made on this claim in cross-examination this was in my view because of the paucity of evidence. While Mrs Gehrke was asked whether in fact she did things for her husband it was not established that this was for any necessary reason rather than simply because she chose to do them. Driving to Brisbane was referred to but no attempt was made to establish whether this was a frequent or infrequent event. In fact no evidence was led that Mr Gehrke had driven without stopping even before the accident. Doing the best I can on the evidence I allow a global sum for the future on the assumption that some things may need to be done for the plaintiff occasionally in the amount of $4,000.
Travel expenses were agreed at $194.00. Special damages paid by WorkCover were agreed at $8944.31. The cost of past pharmaceutical’s was claimed at $500. I allow that sum. The Fox v Wood component was $5,056.95 which I also allow. Interest on special damages is allowed at $69.52
Future pain killers and anti inflammatory drugs were claimed at $3,800. I accept the plaintiff’s evidence in relation to this and allow that sum.
Overall damages are as follows:
Pain& Suffering: $30,000.00
Interest: 606.20
Past Economic Loss: 11,900.00
Past superannuation: 952.00
Future economic loss: 79,418.00
Future superannuation: 7,147.62
Past care: 8,500.00
Future Care: 4,000.00
Special damages: 9,463.31
Interest: 69.52
Future pharmaceutical: 3,800.00
Fox v Wood: 5,056.95
TOTAL $160,913.60
I give judgement for the plaintiff against the second defendant in the sum of $160,913.60.
0
0
0