Gordon v McKenzie
[2000] QSC 459
•7 December 2000
SUPREME COURT OF QUEENSLAND
CITATION: Gordon v McKenzie & Anor [2000] QSC 459 PARTIES: KEITH GORDON
(plaintiff)
v
LUKE McKENZIE
(first defendant)
TRANSPORT ACCIDENT COMMISSION
(second defendant)FILE NO/: 8278 of 2000 DIVISION: Trial Division DELIVERED ON: 7 December 2000 DELIVERED AT: Brisbane HEARING DATE: 1 December 2000 JUDGE: White J ORDER: Judgment for the plaintiff against the defendants in the sum of $301,091.00. CATCHWORDS: DAMAGES - FUTURE ECONOMIC LOSS - plaintiff/pressure welder injured while riding motorcycle when hit by first defendant’s motor vehicle crushing his left foot - plaintiff returned to work but at trial had ceased employment because of the pain in his foot - assessment of future employment prospects - assessment of potential to continue in employment engaged in immediately prior to accident.
McGrath v NRMA Insurance Ltd (1996) 24 MVR 428, mentioned
COUNSEL: M Grant‑Taylor SC for the plaintiff
P Corkery for the defendantsSOLICITORS: Boyce Garrick for the plaintiff
Dunhill Madden Butler for the defendants
WHITE J: The plaintiff sustained personal injury on 27 March 1999 when a motor vehicle pulled out from a parked position without warning and struck the plaintiff as he was riding past on his motorcycle. The car collided with his left side crushing his left foot. He was wearing a helmet and full protective clothing. His wife was a pillion passenger and she also sustained injury.
Liability is not in issue and the parties have reached agreement on all heads of damage save for the extent of the impairment of the plaintiff’s future earning capacity.
The plaintiff was born on 26 September 1950 and is now aged 50. He did his apprenticeship as a boilermaker in Newcastle, New South Wales and over the years has developed expertise as a pressure welder. He worked for about five years for wages after completing his training but thereafter has subcontracted his services via his own company travelling throughout Australia. Initially his wife and family lived in Newcastle and subsequently Caloundra became his home base. It is not contested that the plaintiff was highly regarded in his trade.
The plaintiff worked at boiler‑making and welding consistently for 19 years. He gave up that work for a healthier lifestyle away from the fumes and the noise which has caused him to become hard of hearing. He then worked on trawlers for a few years before doing roofing and guttering work for about nine years. He returned to welding briefly in the 1995/96 tax year but then returned to trawler work operating out of Innisfail in North Queensland.
The plaintiff worked as a labourer for his son, a builder, in Caloundra in the period July 1996 to June 1998. He and his wife were having difficulty financially on his reduced wages and he resumed contract welding again.
At the time of the accident the plaintiff had been working on a number of subcontracts with a company, RYS Pty Ltd (“RYS”) which carried out contract maintenance work for the Electricity Commission of South Australia on its power stations. That work had commenced in 1998. The practice was for the plaintiff to enter into a subcontract with RYS to carry out a particular job which might last for up to 12 weeks. The work was hard - 7 day weeks and 12 hour days. When that job was completed the plaintiff would be flown home to Caloundra. When a new job was to start he would be engaged on a fresh subcontract and flown down to that job. The subcontract price had built into it a component for board and lodging and arranged and paid for the plaintiff’s air travel.
The plaintiff was between subcontracts with RYS when he was injured. He had been due to start at Port Augusta on 6 April 1999. That subcontract would have ceased on 5 June 1999. The plaintiff commenced a new subcontract with RYS on 14 September 1999 but found the pain in his foot too great and ceased that work on 7 October.
The plaintiff then undertook some general welding work locally for a few weeks before he commenced work with Stelform Engineering (“Stelform”) in Newcastle on 13 December 1999. This was work which was physically less demanding than the RYS contracts. The plaintiff could work at a bench in a factory and sit and move around as he needed. He had worked with the owner of the business, as I understood the plaintiff’s evidence, during his apprenticeship. He explained his need for lighter duties because of the consequence of the accident and Stelform was prepared to take him on on that basis. He expected to be able to remain at that kind of work for the foreseeable future. However, after a particularly heavy period he found the pain in his foot too much and ceased work and returned to Caloundra on 21 November 2000. He is now uncertain about his employment future.
There are two issues for decision. The first concerns the period over which the plaintiff would have continued to work on the subcontracts of the kind which he performed for RYS and the second concerns an assessment of his future employment prospects. The plaintiff submits that he would have continued doing pressure welding subcontract work to “normal retirement”, that is, 65. He is now quite uncertain about his future employment having no computer/clerical skills. He has not sought work locally since returning home to Caloundra from Newcastle.
The defence contends that it is unlikely that the plaintiff would have continued working at subcontract welding work to 65 for two reasons - his pattern of employment in recent years and his capacity to continue doing such heavy work.
Mr Corkery for the defendants submitted that the plaintiff’s decision to cease work was more likely to have been dictated by a personal preference to be at home in Caloundra rather than to continue working away in Newcastle. There is nothing to support this submission in the evidence apart from a general expectation that most people would prefer to live at home rather than boarding 1,000 kilometres away. The pattern of the plaintiff’s employment had taken him away from home over many years, including when he worked on the trawlers. The plaintiff seemed a truthful man and all the medical reports reflect his anxiety to return to work. I accept that it was the constant pain which the plaintiff could no longer tolerate which caused him to cease work in Newcastle. That he did not seek medical assistance at the time does not indicate a lack of genuineness. The reports from the physiotherapist and the chiropractor show the limits of what could be done for him medically.
The difficulty is to identify what work the plaintiff can do now for it is not the plaintiff’s case that he will never work again.
In order to resolve these issues it is necessary to look at the nature of the plaintiff’s injuries and their consequences as well as the nature of the work which he carried out as a pressure welder with RYS and with Stelform although the defence does not suggest that he can or ought return to the kind of work that he did for RYS.
The plaintiff was taken by ambulance to the Caloundra Hospital after the accident. He had sustained severe soft tissue injury to his left foot which was swollen and his ankle was tender. He was treated with pain‑relieving tablets and his foot was bandaged. He was discharged immobilised on crutches. The x‑rays taken that day showed a longitudinal fracture of the base of the fourth metatarsal and a fracture of the lateral aspect of the cuboid (both foot bones).
A subsequent x‑ray taken on 28 April 1999 showed the possibility of a third fracture in his foot. He was referred by his general practitioner, Dr Mark Singleton, to Dr Peter Winstanley, an orthopaedic surgeon, largely because little progress was being made either clinically or as shown on x‑ray.
Dr Winstanley examined the plaintiff on 5 May 1999 and noted swelling and tenderness mid‑foot. In addition to the fractures noted on the initial x‑ray he concluded that the plaintiff had two further fractures to the base of his second and third metatarsals. Union of the bones had not occurred. Dr Winstanley described the injury as “significant” (exhibit 5) and expected the plaintiff would not be mobile for a further three months and would not be able to manage most activities for six months. He expected the plaintiff to be able to perform work and recreational activity in the long term.
The plaintiff consulted with Dr Ray Henderson, an experienced chiropractor, on 7 April 1999. He was then suffering severe left ankle, hip, and low back pain. In the course of his treatment Dr Henderson noted a constant limp due to the plaintiff’s foot injury which in turn aggravated his spinal problems. The plaintiff’s ankle swelled in boots and his leg had atrophied from lack of movement.
The plaintiff commenced physiotherapy 4½ weeks after the accident with Ms Vicki Alford. She reported (exhibit 7) that the plaintiff woke three to four times nightly with sharp pain in his foot. The plaintiff attended 33 physiotherapy treatments over 18½ weeks. Ms Alford described him as being “a motivated and keen participant in his own rehabilitation” who had “undergone considerable discomfort during the course of his recovery”. The treatment which the plaintiff received included soft tissue therapy, connective tissue massage, acupuncture, ultrasound, heat, stretching and exercise therapy, joint mobilisation, proprioceptive retraining and gait re‑education. The plaintiff also attended hydrotherapy. Ms Alford noted that although the plaintiff had made good progress he had been hindered by the slow union of his fractures.
On 30 August 1999 Ms Alford noted the plaintiff’s complaints of moderate aching and some swelling in his foot at the end of a day’s activity. Although he was then fully weight‑bearing without crutches his gait was described as “somewhat deformed” and he was unable to weight‑bear fully over the toes. He still had a limited range of movement and was unable to squat fully on the left leg. Weight‑bearing through the ball of the foot was limited by pain. He told Ms Alford that he was aiming to return to work on 14 September.
He did so but, as has been mentioned, the pain proved too great. It might be noted that this was some months before Dr Winstanley thought that he would be ready for work.
The plaintiff continued to attend a chiropractor from time to time for manipulation of his neck and back.
The plaintiff had been working at Stelform for four months when he saw Dr James Curtis, an orthopaedic surgeon, on 18 April 2000. He told Dr Curtis that he experienced intermittent episodes of pain and clicking in his neck and a sense of tightness in his back with an occasional restriction of full movement with intermittent episodes of low back pain radiating to the back of both hips. This was precipitated by prolonged bending or stooping or sitting for an hour or more. He described pain in the dorsal aspect of his left mid‑foot radiating to the inner aspect of the ankle and to the dorsum of the toes and metatarsal heads. That pain was present constantly to a greater or lesser extent and was aggravated by prolonged standing or with sitting with his leg immobilised for long periods such as travelling or walking over rough, uneven ground. The pain prevented him from standing comfortably on the rung of a ladder or performing off‑ground tasks. He had difficulty squatting and kneeling on his left leg.
The plaintiff also experienced cramping pains and weakness in the left foot and swelling with prolonged immobilisation or when standing and working on concrete. He told Dr Curtis that he was coping better with workshop duties but had to take care with his footing, stepping over obstacles on the ground and experienced difficulty lifting and carrying heavy objects. He had particular difficulty doing on‑site work in confined spaces, off‑ground and lifting and carrying. His symptoms were worse when barefooted.
Doctor Curtis noted that the plaintiff walked with a pronounced left leg limp, was unable to stand and hop on his left leg alone and could not fully squat or kneel, and noted a boney thickening of the mid‑foot and prominence on the dorsal aspect of the foot. There was some limitation in ankle movement and a 2.5 centimetre wasting of the left calf and thigh.
Doctor Curtis concluded that the symptoms in the plaintiff’s spine were “really of nuisance value alone and represent no actual impairment” (exhibit 4) but were likely to persist indefinitely. Although the fractures in the foot were united the damage to the mid‑tarsal joint was producing post‑traumatic arthritis which could be expected to deteriorate gradually. Dr Curtis assessed the plaintiff’s disability as a 25 per cent loss of the use of his left lower limb as a whole which could be expected to increase by a further 5 to 10 per cent over the next five years. He would need the use of an arch support for his foot.
Doctor Curtis thought that consideration might need to be given to the plaintiff undergoing a fusion of the mid‑tarsal joint because of arthritic change. He would then be temporarily totally incapacitated for 2 to 3 months post‑operatively with an impairment similar to the present.
The plaintiff told Dr Curtis that he had great difficulty coping with the full duties required of him as a boilermaker/welder. Dr Curtis concluded that he would need to seek alternate lighter duties within the next five years which might include work as a supervisor or with benchwork or teaching duties. Dr Curtis observed, as the plaintiff said in evidence, there has and will be a considerable curtailment of his recreational, domestic and sporting activities.
Doctor Bruce McPhee examined the plaintiff on 25 May 2000. He, too, noted that there was no functional impairment or associated neurological deficit in the plaintiff’s cervical or lumbar spines and concluded that the pain was the result of either a musculo ligamentous injury or the aggravation of a pre‑existing spondylosis. No x‑rays had been taken of the plaintiff’s spine. He assessed the disability in the spine as less than 5 per cent of the whole person. Although there was some difference of opinion with that of Dr Curtis about the future surgery it is of no significance to the matter which I must resolve. Dr McPhee assessed the plaintiff’s permanent partial disability relating to his left foot at 18 per cent of the left lower limb being the equivalent of 50 per cent of a forefoot amputation.
It was not suggested that the plaintiff could continue doing the kind of work that he carried out for RYS in the power station. That involved climbing scaffolding or ladders and working in confined spaces, needing to squat and move around awkwardly. The work with Stelform was in a workshop in a controlled environment. He worked on a flat concrete floor and was able to keep his work area clean of leads or dangers that he might step on and thereby risk more injury. However the plaintiff found that being on his feet for eight hours a day on the concrete he was always in pain. He needed to put his feet up as soon as he got home but even then would lose sleep at night because of the pain. He said he had tried to “stick it out” because he and his wife had mortgages but in the end the pain was too much for him. The plaintiff acknowledged the assistance of Stelform and liked working with his supervisor. He doubted that he would have got a start with another employer on that basis. This was confirmed by the evidence of Mr Calligaris, the general manager of a company engaged in construction engineering called by the defence. He said that he would find it difficult to employ a pressure welder or a boilermaker who could not tolerate a 40 hour week on his feet on a concrete floor.
The plaintiff said that when working at Stelform he had pain all the time just being on his feet on the hard ground because not only was there no give in the ground, there was none in his heavy workboots and by the end of the day the pain was “starting to creep up” his leg. Clearly the opportunity to rest, get up and walk around was insufficient respite. After a heavy week at work the limp caused his hip to “go out” which then brought about pain in his lower back. By the end of the week he was in constant pain all day and he would be woken at night with sharp pain. This evidence, far from suggesting that the plaintiff ceased work on what might be described as a whim, is consistent with his complaints to Dr Curtis over six months earlier. The result was predicted by Dr Curtis.
Exhibit 13 is a schedule of the hours worked and the rates paid to the plaintiff at Stelform. This showed that he worked from a minimum of 32 hours a week to a maximum of 52 hours which occurred a week or two before he ceased work. Mr Corkery submitted that this showed that the plaintiff was not sincere when he said that he stopped work because of the pain. The connection is not immediately apparent. I accept the plaintiff when he said that it was his inability to persevere with the daily pain, the level of which was beyond his toleration, which caused him to give up work.
The plaintiff’s work history shows that he is a person accustomed to working hard and he has a financial incentive to keep on working. There would appear to be some local work available in as much as he did some welding work locally in the past. The likelihood is that the plaintiff will take lighter welding jobs from time to time when financial pressures dictate that he needs to.
The pattern of the plaintiff’s future earnings had he not been injured would have likely involved pressure welding most of the time but from time to time he may have been concerned about his health in the way in which he was in the past and may have taken some other less well‑remunerated work as a break. I was not persuaded that the plaintiff could not generally continue at his work as a pressure welder with some breaks until the age of 60. He was highly regarded and still carrying out extremely hard physical work at the age of almost 50. Perhaps he would have moved into some supervisory position but his employment pattern had been as an independent subcontractor working essentially on his own. As a supervisor he would still have been doing the work.
A further factor to incorporate into the plaintiff’s loss is the amount for travel and accommodation which was provided by RYS under his subcontract but which he had to provide himself when working in Newcastle. This involved four round trips Caloundra‑Newcastle‑Caloundra at 2,000 kilometres per round trip at 50 cents per kilometre. The plaintiff also paid accommodation and board to his niece in Newcastle. The approach to his past loss of earnings (which are agreed) was to take the plaintiff’s actual earnings for the 1998/1999 year (exhibit 12) and add the value of the subcontract with RYS between 6 April and 5 June 1999. That loss amounts to $16,709.85.
The loss for 1999‑2000 is based on the plaintiff’s projected earnings from 1998‑1999 of $52,112.50. Those were compared with his actual earnings of $55,868 from which were deducted his travelling and accommodation expenses of $6,700 which after tax gave an income of $35,424 being a loss of $16,688.40.
The loss from 1 July to 13 November which was the cut‑off for the agreed past loss of earnings was based on the notional earnings projected from 1999‑2000 of $55,333.50. The actual earnings were $55,868. There were eight round trips between Caloundra and Newcastle and together with accommodation and board that amounted to $13,000. After tax that loss was $8,087.50. The total past loss which has been agreed between the parties to 13 November 2000 is $41,500. Interest on that past loss has been agreed at $3,395.
The pattern of loss for the past, Mr Grant‑Taylor submits, ought to be projected forward into the future. The calculations which he had prepared prior to the plaintiff ceasing employment altogether was to base his rate of loss at $350 per week, a reflection of his past loss, discounted at 5 per cent annum over 15 years which gave a figure of $194,250. This he discounted by 15 per cent for contingencies which was rounded off at $165,000. He now submits, in view of the changed circumstances that the appropriate figure is $200,000 to take into account that the plaintiff has been unable to continue at his work although he will find whatever work he is able to do.
Mr Corkery submitted that notwithstanding the evidence of Mr Calligaris, the plaintiff still had a significant residual capacity for work as a welder or as a draftsman. There was no evidence as to what skills were required to be a draftsman although Mr Calligaris made passing reference to “certificates”. He seemed somewhat mystified at the suggestion that the plaintiff could do this kind of work. There was no suggestion that the plaintiff had whatever skills were required for this work or could acquire them and he was asked no questions about his capacities in that field. Mr Corkery also submitted that it was unrealistic to suppose that the plaintiff could have maintained the level of work as a pressure welder which he engaged in prior to the accident until the age of 65. Further he submitted that it was artificial to take only the last two years of his employment as an indicator of what the plaintiff might have done over the next 10 to 15 years had he not been injured. He submitted that the plaintiff would experience a loss of approximately $17,000 for the next five years on, as I understand it, the basis that the plaintiff could continue to work as he did at Stelform, and then retrain in some easier job. He submitted a global sum in the range of $75,000 to $95,000 to represent the balance of the plaintiff’s loss of future earning capacity.
Although I accept the plaintiff’s evidence that his intention before he was injured was to work until 65 as a pressure welder, looking at his past concerns for his health and the extremely physically demanding nature of the work, he would probably have tapered off this level of work by 55. However, I accept that the plaintiff would have achieved more work in this field in that time than was reflected in the past employment pattern. He said that as it became known that he was back working as a pressure welder doing shutdowns more work was being offered to him. He would then have turned to lighter work, perhaps of the kind he performed for Stelform. He may well have obtained that work locally obviating the need to travel. He would have continued to work until 65, McGrath v NRMA Insurance Ltd (1996) 24 MVR 428.
The calculations in exhibit 12 indicate a notional income of about $72,000 net per annum at the date of trial. This would have been likely to rise to $80,000 to take account of increased work. For the calculation I will presume an income of $77,000 over the next five years. That gives an approximate weekly loss of $1,480. Using the 5 per cent tables gives a figure of $342,620 which, discounted by 15 per cent for contingencies is $291,227.
The lighter work, again using the figures from exhibit 12, would bring in an annual income of approximately $55,500. The receipt of that income would be deferred for five years and take the plaintiff to retirement at 65. That figure is $345,175 which should be reduced by 15 per cent for contingencies. That gives an amount of $293,399. The total loss is $584,626. That is the amount which the plaintiff might have earned had he not been injured and he had arranged his employment as I have indicated. It is not the plaintiff’s case that he will remain unemployed. His skills and drive suggest that he will be employed for one‑half to two‑thirds of the period to retirement. Mr Grant‑Taylor seeks $200,000 as recompense for his loss of future earning capacity. That is a reasonable figure which I will allow.
The agreed damages and the compensation for impaired loss of earning capacity in the future are as follows:
Head of Claim
Amount Pain, suffering, loss of amenities and scarring 40,000.00 Interest 410.00 Past economic loss 41,500.00 Interest 3,395.00 Impairment of future earning capacity 200,000.00 Past care 5,000.00 Interest 640.00 Future care 5,000.00 Future surgery - fusion of mid tarsal joint 3,000.00 Physiotherapy expenses not met by TAC 240.00 Chiropractic expenses 1,146.00 Pharmaceutical expenses 100.00 Purchase walking stick 25.00 Travelling expenses 475.00 Interest on special damages 160.00 TOTAL: $301,091.00
There will be judgment for the plaintiff against the defendants in the sum of $301,091.00.
I will hear submissions as to costs.
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