Halcro v McMurtrie
[2000] QSC 90
•27 April 2000
SUPREME COURT OF QUEENSLAND
[STEPHEN ANTHONY HALCRO AND ORS V MCMURTRIE & ORS]
File No 2258 of 1995
BETWEEN:
STEPHEN ANTHONY HALCRO AND ORS
First Plaintiff
AND:
S A & S M R HALCRO a firm
Second Plaintiff
AND:
BRUCE RICHARD McMURTRIE
First Defendant
AND:
MAINFLAG PTY LTD
Second Defendant
AND:
FARLEY EXCAVATOR HIRE PTY LTD
Third Defendant
AND:
PURNIM PTY LTD
Fourth Defendant
MOYNIHAN J – REASONS FOR JUDGMENT
DELIVERED ON: | 27 April 2000 |
HEARING DATES: | 24-25 February 2000 |
ORDER: | Judgment for the plaintiff against the defendants for $423, 260. |
CATCHWORDS: | TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – whether plaintiff was contributory negligent – whether failure to take reasonable care – whether the plaintiff’s conduct involved a foreseeable risk of injury. |
COUNSEL: | J A Griffin QC with S J Given for the plaintiff. |
SOLICITORS: | Primrose Couper Cronin Rudkin for the plaintiffs. |
The first plaintiff (I will call him ‘the plaintiff’) conducted business as a horticulturalist in partnership with his wife. He was injured on 23 June 1994, when an excavator, operated by the first defendant, ran over his leg. Liability is not in issue but there is an issue as to contributory negligence on the part of the plaintiff. The claim by the second plaintiff was not pursued.
At the relevant time the plaintiff was engaged by the fourth defendant to construct a boulder wall on a terrace at a development known as “Koala Town” assisted by an excavator hired from the third defendant and operated by the first defendant. The plaintiff had no occasion to think the first defendant was other than a competent operator. The excavator was a tracked vehicle with a cabin, capable of rotating through 360 degrees, with a lifting arm to which was attached a bucket. The excavator was used to pick up boulders, transport and position them in the wall.
The first defendant was at the plaintiff’s direction. It was necessary for the plaintiff to position himself so that the driver could see and hear him above the noise of the machine. Work had been progressing for some time when the plaintiff instructed the first defendant to pick up a specific boulder, transport it to the wall and position it there. To do this it was necessary for the first defendant to reverse the excavator.
The plaintiff, having given instructions to the driver from a higher level of the site, waited until the lifting arm of the excavator was parallel to the wall before clambering down to the level on which the excavator was positioned. He walked towards the machine on the left-hand side of the first defendant’s position where he could be seen and heard with a view to giving further instruction designating the boulder, its retrieval and positioning in the wall. The first defendant, probably confused by his rotation of the cabin as to whether he was facing the front or rear of the machine, drove it forward rather than reversing it. The plaintiff’s right toes were trapped by a track of the machine. The plaintiff called out to the first defendant that the machine was on his toe. The first defendant acknowledged this, but instead of backing off, drove the machine forward again. It went over the plaintiff’s foot and up his right leg pinning it under the track.
There is no occasion to doubt that as a general proposition the plaintiff was aware of the desirability of staying clear of operating machinery. In the present case his position was dictated by the need to effectively communicate with the first defendant who, at all material times, knew where he was and could see him. I should mention that the positions available to the plaintiff were also constrained by the dimensions of the terrace, the nature of the terrain and the need to keep clear of the lifting arm when the cabin was rotated. The first defendant appreciated, or ought to have appreciated, the various constraints. He could see the plaintiff and did not express any concern about his position. It is by no means clear that another position was available which satisfied all the constraints identified. The plaintiff’s injuries were caused because the first defendant drove the machine a second time in the opposite direction to that which he intended and which the plaintiff had every reason to believe it would take.
In the circumstances I am not persuaded that the plaintiff’s conduct constituted such a failure to exercise reasonable care for his own safety as to constitute contributory negligence.
After the incident the plaintiff was attended to at the scene and then taken to the Gold Coast Hospital. He had an open fracture of the right tibia and fibula. The wound was debrided and an external fixator applied, later a skin graft was applied to the wound. The plaintiff developed peroneal nerve palsy and a thermo plastic foot drop splint was fitted to deal with it. After some months this condition was rectified. He was discharged from hospital on 8th July 1994.
The splint was removed some three months later and the plaintiff commenced physiotherapy. The union and alignment of the fracture however proved unsatisfactory and the plaintiff developed progressive and increasing pain and stiffness of the right foot restricting his tolerance for standing and walking. His lower leg and foot swell, although this has abated. The pronated position of the foot distorts the plaintiff’s gait putting undue strain on his ankle and pedal joints. The plaintiff has disfiguring scarring and more importantly I accept he is troubled by the appearance of a noticeable depression in his right leg.
Whether the plaintiff has degenerative changes particularly in his talonavicular and associated metatarsal and interphalangal joints and, if he does, whether that is a consequence of the accident is controversial. In my view the probability is that he does and that it is a consequence of the accident which, will be recalled, involved a track of the machine first trapping his toes and then running over his foot and up his leg applying considerable force given the weight of the machine, the hardness of the surface and the operation of the tracks. The weight bearing conformation of the foot and the plaintiff’s gait has been distorted as a consequence of the injury. I find the evidence of Dr de Jager persuasive on these aspects.
The evidence of Mr Eadie, a podiatrist, which I found helpful is that the continual forward displacement of the talus causes a more pronated foot position contributing to degenerative changes to the subtalon and talonadicular joints
The defendants put in evidence a report from Dr Nutting, an orthopaedic specialist who had been asked to comment on the differences between the reports of Dr Turner, an orthopaedic surgeon and Dr de Jager, a rheumatologist. Evidence of this kind is of little or no assistance; as Dr Nutting observed “meaningful comment” could only come from the doctors whose reports he had been asked to compare. Evidence was led from Dr Vecchio, a rheumatologist. Dr Vecchio had not seen the plaintiff but was, in effect, accepting or commenting on the reports of others. Dr de Jager has examined the plaintiff twice.
The defendants relied on a video of the plaintiff which was said to show him walking without any abnormality of gait. The video, as such videos often are, is of limited value because of the need of the camera operator to be concealed and remain undetected. I am not persuaded that the plaintiff’s gait, depicted on the video, is normal. In any event, his gait while walking on a footpath while he is not engaging in any other physical activity and is fresh and unfatigued is one thing. His gait, while at work performing physical labour on broken ground for a prolonged period, is another. The video shows the former situation. Given the nature of the plaintiff’s injury and its bio-mechanical consequences, as described for example by Mr Eadie, it is hardly surprising that he has a distorted gait.
The defendants called a neighbour of the plaintiff’s parents who gave evidence of observing him on occasions carrying out gardening activity and perhaps laying a concrete path. The observations were casual, intermittent and limited. In the context of the medical and other evidence, which I have accepted, the evidence, is of little assistance.
There is considerable variation in the medical evidence as to the plaintiff’s percentage of permanent/partial disability of the right leg. At one end Dr White, an orthopaedic specialist, attributes a total permanent/partial disability of twenty five per cent as a consequence of the accident. Dr Curtis, an orthopaedic specialist, in report admitted under s 92 of the Evidence Act 1977 attributes a twenty per cent permanent partial disability. Dr de Jager, a rheumatologist, attributes five per cent due to muscular atrophy and a further ten per cent from degenerative change. Dr Turner, another orthopaedic specialist, attributes a two per cent loss of function. In my view these differences are irreconcilable. They are not explicable simply in terms of different views about degenerative changes and their consequences. As I have said, I am inclined towards Dr de Jager’s view about the existence and role of degenerative changes for reasons already mentioned but the matter cannot be disposed simply by accepting his percentage. In any event the important consideration is the effect the plaintiff’s injury and consequent disability has on him and his ability to function.
Essentially, I accept the plaintiff’s evidence as to the effect of his injury which falls for consideration in the context of the view I have expressed about the medical and other evidence. The plaintiff was born on 2 September 1962 and left school in Year 10. He obtained an apprenticeship as a gardener with the Randwick Municipal Council and completed a course leading to a certificate in horticulture. He worked for various employers until he was able to start in business on his own account in late 1988 or early 1989 on a small property at North Tumbulgum in northern New South Wales. His wife was a partner in the business essentially for tax minimisation reasons. Her active engagement in the conduct of the business was minimal. The plaintiff had married in 1984 and there are three children of the marriage, who at the time of the trial were aged 10, 14 and 16 years. The family moved into a house that they had built on the North Tumbulgum property in early 1989.
While he was building up his business in the early 1990’s the plaintiff was employed as a full-time nurseryman at the Benowa College of TAFE. He was responsible for the College’s plant nursery and taught a gardening course and a landscaping course. In late 1992 the plaintiff gave up his TAFE employment to concentrate on the development of the partnership business.
Income was generated by the sale of plants grown on the North Tumbulgum property and work the plaintiff did for developers in landscaping, planting and other work associated with their developments, particularly on the Gold Coast. This work often involved the supply of plants grown at the North Tumbulgum property. The plaintiff was engaged in such a project when he suffered the injury giving rise to this action. The work involved was often heavy, repetitive and required bending, lifting and moving about on broken ground.
As a consequence of his injuries the plaintiff is permanently disabled from carrying out heavy or repetitive physical labour but is able to work in light or sedentary occupations. He is restricted in his capabilities to drive particularly for a sustained period. He is restricted in his enjoyment of recreational activities, of family activities and activities around the property.
The extent to which he can work as a horticulturist is gravely, if not completely, restricted by his disability. A major difficulty about his resuming the conduct of his own business is that for it to return to the pre-accident level of operation or be viable as a sole source of income the plaintiff would need to employ assistance. The probability is, however, that the business would not generate sufficient funds for that to be a realistic consideration. The restrictions on his physical capabilities make the plaintiff unattractive as an employee in the field of horticulture or for that matter on the general labour market.
As was mentioned earlier the plaintiff did some teaching while employed at the Benowa College of TAFE as a gardener. In order to obtain a TAFE teaching position he would, however, need to acquire teaching qualifications. It is by no means improbable that he may chose to follow this course but it would at best be some years before he obtained the qualification and employment.
The probability is that the plaintiff would have continued as a self-employed horticulturist for the whole of his working life had he not been disabled by the events of 24 June 1994. I accept that when he was injured the plaintiff was building the business up and that the income may have improved but the probability is that he would never have done more than earn a moderate income from his chosen occupation.
It is impossible to calculate the plaintiff’s future economic loss with any degree of precision. The plaintiff has put into evidence a series of calculations by an accountant which provide a useful starting point for arriving at a figure. These proceed on the basis of three sets of assumptions. First, operation of the nursery business until retirement at 60 or 65 years on the assumption that the business would derive gross sales in line with those for the year ended 30 June 1994, increased by CPI movements. Secondly, an assumption involving an increase of 10 per cent to the year ended 30 June. Thirdly, a calculation on a rate equivalent to the relevant Award. The calculations based on these approaches are set out below:-
30 June 1994
+ CPI30 June 1994 + 10% Nurseryman’s Award Past economic loss
Future economic loss
Retirement at age 60 years
Retirement at age 65 years$80,980
$196,763
$218,066$117,688
$332,470
$368,471$103,669
$256,475
$284,242
I have approached damages for future economic loss on the basis the plaintiff would do better than the Award but not necessarily consistently as well as plus ten percent. Income earned since the accident has to be taken into account. Business risk from competitive economic circumstances, the ordinary vicissitudes of life and the plaintiff’s residual earning capacity, have to be brought into account. Given the state of the evidence giving effect to these considerations is essentially a matter of judgment rather than calculation. I have allowed a 30 percent discount for these factors.
As a consequence of his disabilities the plaintiff required, and to some extent still requires, assistance essentially provided by his wife, to do things which he was previously able to do unaided. Exhibit 8 is a schedule of what is claimed. There is merit in the submission that the claim is overstated but the extent is not susceptible of precise calculation. I have, however, reflected that in the award under this heading, conventionally referred to as the Griffiths v Kirkemeyer heading.
Allowance must be made for some future expenses. The plaintiff has expressed an intention to have plastic surgery to rectify a noticeable depression in his leg which I accept worries him to some degree. Some allowance should however be made for this but the cost should be discounted somewhat to allow for the fact that the plaintiff may, in the event, chose not to have it.
There should also be an allowance for the future costs of podiatric care. The plaintiff is assisted by the fitting in his shoe of an orthotic device designed to maintain his foot in a functional posture and he requires strong and stable footwear and he will need to visit his podiatrist from time to time. There is evidence from an occupational therapist recommending various aids. I am not persuaded all are justified but have made some allowance.
I turn to the assessment of the plaintiff’s damages under the conventional heading in light of those conclusions.
1. (a) Pain, suffering and loss of amenities $40,000.00
(b) Interest on pre-trial apportionment ($20,000 at 2%) 2,000.00
2. Special damages as agreed 11,610.00
(I have made no allowance for interest since by and large
the plaintiff did not pay them.)
3. Future Expenditure - discounted
Plastic Surgery 2,500.00Podiatric 2,250.00
Aids 200.00
4. Griffiths v. Kirkemeyer
(a) Past 15,000.00
(b) Interest 1,700.00
(c) Future 20,000.00
5. Economic Loss
(a) Past 100,000.00
(b) Interest 28,000.00
(c) Future 200,000.00
TOTAL $423,260.00
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