Haden v Smith's Snackfood Company Ltd
[2013] QMC 1
•11 February 2013
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Haden v Smith’s Snackfood Company Ltd [2013] QMC 1
PARTIES:
NICOLE LEANNE HADEN
(plaintiff)
v
SMITH’S SNACKFOOD COMPANY LIMITED
(ACN 057 976 940)(defendant)
FILE NO/S:
M1624/12
DIVISION:
Magistrates Court
PROCEEDING:
Claim
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
11 February 2013
DELIVERED AT:
Brisbane
HEARING DATE:
24 January 2013
MAGISTRATE:
Shearer SG
ORDER:
Judgment that the defendant pay the plaintiff $61,601.06.
CATCHWORDS:
WORKERS COMPENSATION - CLAIM - PERSONAL INJURY – quantum only – hand injury – tendon damage – future economic loss
COUNSEL:
R Lynch for the plaintiff
W Campbell for the defendant
SOLICITORS:
Sciacca’s Lawyers for the plaintiff
Bruce Thomas Lawyers for the defendant
Introduction
The plaintiff was injured at work on 7 November 2010 when a packing machine jammed and, whilst attempting to cut away the obstruction, she cut her left thumb to an extent that it was required to be surgically repaired. The surgery necessitated an overnight stay in hospital, followed by a week off work.
Upon her return to work the plaintiff was initially given light duties whilst her hand was encased in a cast. Her treating general practitioner Dr Goh cleared the plaintiff for a return to normal duties in January 2011, however the defendant company kept the plaintiff on restricted duties for another 4 to 6 weeks after that clearance was given. During that period of light and restricted duties the plaintiff was unable to perform overtime, which had previously been a regular source of additional income for her.
Liability has been admitted. Aside from a small disagreement between the parties as to the appropriate injury scale value to be applied with respect to general damages, special damages have been agreed, as has the Fox v Wood component of any award. I am required to assess the appropriate injury scale value for the award of general damages (and its consequent quantum); and to assess damages for past and future economic loss.
The Plaintiff’s background
The plaintiff was born on 12 July 1973. She is presently 39 years of age.
She is and was at the time of the incident employed by Smiths Snackfoods.
The plaintiff left school at year 10 and did not complete any further education or training.
After leaving school the plaintiff was employed by Franklins supermarkets until 1993, ultimately as a front-end controller. She commenced employment with Smiths Snackfoods in 1994, and worked there until 1999. From about 2000 until early 2008 the plaintiff was employed by retail clothing firm Rockmans. She returned to employment with Smiths Snackfoods in March 2008, initially working weekend shifts, and in March 2009 moving to a weekday position. During her employment with Smiths Snackfoods, the availability of overtime work has been constant and staff volunteer for overtime shifts.
In July 2008 the plaintiff was involved in a motor vehicle accident, in which she sustained a chronic soft tissue musculo-ligamentous injury to her cervical spine. A claim for damages for personal injury was made in relation to that injury. The action was, apparently, settled before the commencement of litigation with a payment made by an insurer to the plaintiff.
Medical Evidence
Medical reports were tendered from the following doctors:
1. Dr Scott Campbell (neurosurgeon) dated 16 July 2009;
2. Dr Denis Nave (orthopaedic surgeon) dated 28 August 2009;
3. Dr Ian Hadwen (specialty unknown) dated 4 July 2011; and
4. Dr Mark Robinson (hand and upper limb surgeon) dated 4 October 2011.
The first two of those reports, which were tendered by the defendant, were not relevant to the injury the subject of this hearing. They each related to the injuries sustained by the plaintiff in her motor vehicle accident of July 2008. In her evidence, the plaintiff said, and I accept, that apart from some discomfort when she turns her neck in traffic, her injury from the motor vehicle accident no longer impinges upon her ability to perform her work at Smiths Snackfoods.
It is clear that the consequence of the incident the subject of this trial was that the plaintiff required surgical repair of her left thumb. During that surgery the wound was explored and an extensor tendon repair performed.
Both Dr Hadwen and Dr Robinson assessed the plaintiff’s thumb injury as having the effect upon her of a 1% whole person impairment. Dr Hadwen, however, did not make a further assessment for the scarring resulting from the surgery; Dr Robinson did, and allowed a further 1% whole person impairment for scarring. It was conceded by the defendant that the additional allowance for scarring was appropriate. Accordingly, I am satisfied that a whole person impairment of 2% is appropriate.
Agreed damages
The parties were agreed on the following items of damage:
Special damages $7,981.83
Fox v Wood $407.00
Damages to be assessed
I am required to assess the following heads of damages:
§ General damages
§ Past economic loss, including interest and superannuation
§ Future economic loss, including superannuation
General Damages
The parties are agreed that the level of whole person impairment suffered by the plaintiff is 2%, and that the plaintiff’s injury falls within Item 118 of Schedule 9 of the Workers’ Compensation and Rehabilitation Regulation 2003 (moderate hand injury).
Item 118 prescribes a range of injury scale values (“ISV”) from 6 to 15, with corresponding general damages from $7,310 to $21,200. Having regard to the medical evidence, as well as the evidence of the plaintiff, the defendant submits that an ISV of 6 is appropriate; the plaintiff submits that an ISV of 10 is appropriate.
Item 118 provides a number of examples of injuries falling within that category, one of which is described as “moderately serious tendon damage”. In this case, the plaintiff suffered tendon damage that was serious enough to require surgical repair, and which, on her own evidence and that of Dr Robinson (who assessed the plaintiff according to the AMA 5 guidelines, whilst Dr Hadwen assessed her according to AMA 4), has left her with a restricted range of motion and reduced grip strength between her left thumb and forefinger. On that basis I accept the plaintiff’s submission that an ISV of 10 is appropriate. Consequently, applying the provisions of Schedule 12 of the Workers’ Compensation and Rehabilitation Regulation 2003, an award of $12,950 flows for general damages.
Past economic loss
The plaintiff’s claim for past economic loss is confined to her lost opportunity to perform overtime hours during the agreed period from November 2010 to February 2011 when she was confined to light and restricted duties, and consequently unable to perform overtime. Exhibit 4 in the trial contains a summary of the overtime hours the plaintiff has worked between November 2009 and December 2012. I am asked to assess an average number of overtime hours the plaintiff would have been likely to have worked in the period from November 2010 to February 2011. Both parties agree that an award for past economic loss ought to be made on that basis; the disagreement between the parties is as to the proper method of arriving at the average number of overtime hours the plaintiff is likely to have worked. The plaintiff submits, in summary, that an assessment based upon the yearly average of overtime hours worked is the correct method; the defendant submits that an average based upon the number of hours worked in the corresponding months of other years is the appropriate method. It is clear from exhibit 4 that there is a significant variation in the number of overtime hours worked across the calendar year, and that (apart from the most recent period), in the year before and the year after the incident the amount of overtime worked in the November to February period was substantially less than at other times of the year. I accept the defendant’s submission in this regard. In my view, having regard to the number of overtime hours worked in the corresponding months of the year preceding and the year following the incident, the plaintiff is likely to have worked a similar number of overtime hours in the November 2010 to February 2011 period as in those other years, had she not been injured. I therefore accept the defendant’s calculations, particularised orally in its counsel’s submissions, that an award of $5,343.15 for past economic loss is appropriate, with interest on that sum of $103.20, and an award for past superannuation loss on that sum (at 9%) of $480.88.
Future economic loss
The main area of contention between the parties is that of future economic loss. The plaintiff submits that, as a result of her injury and the lasting effect of it, she would be disadvantaged in the open labour market should she be required to seek alternative employment in the future; the defendant submits that the plaintiff has suffered no impairment sufficient to compromise her future employability, and hence no award for future loss is appropriate.
The plaintiff is, for want of a better description, an unskilled worker. She left school at grade 10 and possesses no tertiary or other qualifications. Her current employment consists of a position in which she works manually. Previous employment has included work in the retail sector. I am satisfied that her future employability is more than likely limited to occupations in which she will be required to perform largely manual tasks.
As a result of her injury the plaintiff has a diminished range of motion in her left thumb, and reduced grip strength between her left thumb and forefinger. She experiences difficulty lifting heavy bags of flavours and in manipulating “formers” (items used on the production line that I understand to be used in the filling of bags of chips), and must ask for assistance from other staff members to do so. She says that previously she was able to lift these items without assistance.
It was submitted by the defendant that the plaintiff’s alleged failure to disclose her previous motor vehicle claim against Suncorp to her solicitors and on her notice of claim form (despite the disclosure on that form of the claim against Workcover in respect of the same accident) was a matter I should take into account as negatively affecting my assessment of the plaintiff’s credibility and reliability. In my view, those are matters that are likely to loom larger in importance or significance to lawyers than to an unqualified claimant who is, generally speaking, reliant upon and responsive to the enquiries of her legal representatives when making a claim such as that made in respect of her motor vehicle accident. I do not believe that they affect the plaintiff’s credibility generally, as I found her to be an honest and reliable witness and I accept her evidence.
Section 306J of the Workers’ Compensation and Rehabilitation Act 2003 (which is in identical terms to section 55 of the Civil Liability Act 2003) provides that:
306J When earnings can not be precisely calculated
1)This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
2)The court may only award damages if it is satisfied that the worker has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
3)If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.
4)The limitation mentioned in section 306I(2) applies to an award of damages under this section.
I am satisfied that the plaintiff will suffer future loss of earnings as a result of her injuries and that it is appropriate to make a global assessment to take into account her disadvantage in the future on the open labour market, having regard to the fact that she will likely be confined to occupations requiring manual labour of one sort or another.
I am required by section 306J(3) to state the assumptions upon which the award is based and the methodology used to arrive at it. In arriving at the award, having regard to the evidence, I have made the following assumptions:
§ The plaintiff is presently 39 years old and has a further 28 years of working life until presumed retirement at 67;
§ She has suffered an injury that has impacted upon her ability to use her left hand to the same degree as before the accident;
§ She works, and is likely to work, in occupations involving manual labour and, consequently, involving the use of her left hand;
§ Her ability to lift heavy objects has been compromised by her injury;
§ Her employer, although sympathetic to the plaintiff and holding her in high regard as a worker, is undergoing a process of automation of its factory and her employment by them until retirement age cannot, obviously, be guaranteed;
§ Should the plaintiff be required by changed circumstances to seek alternative employment, she is likely, as a result of her injury, to be disadvantaged in comparison to other persons without a comparable injury in obtaining such alternative employment;
§ As the plaintiff suffers ongoing difficulty with her left thumb at present, it is likely that that difficulty will persist, if not increase, as the plaintiff ages.
Future economic loss is impossible to calculate precisely given the assumptions inherent in any forecast as to future events. However, I accept that the plaintiff’s current employment is unlikely to persist for the remaining 28 years of her working life, and that she will, at some point, be exposed to the open labour market. I consider that it is appropriate, in those circumstances, to make an allowance of $1,500 per year to take account of that likelihood; and that it is appropriate to discount that sum by 25% to allow for contingencies.
In the circumstances I would allow $31,500 for future economic loss. I would allow a further sum of $2,835 for future loss of superannuation.
Summary
General damages $12,950.00
Special damages $7,981.83
Past economic loss $5,343.15
Interest on past loss $103.20
Past loss of superannuation $480.88
Future economic loss $31,500.00
Future loss of superannuation $2,835.00
Fox v Wood 407.00
Total $61,601.06
There will be judgment that the defendant pay the plaintiff $61,601.06.
I will hear submissions in relation to costs.
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