Hastie v the Commissioner for Fire Service
[1996] QSC 49
•29 March 1996
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane
No. 1889 of 1992
Before the Hon Justice White
[Hastie v. The Commissioner for Fire Service & Ors]
BETWEEN:
GEOFFREY DAVID HASTIE
Plaintiff
AND:
THE COMMISSIONER FOR FIRE SERVICE formerly
the METROPOLITAN FIRE BRIGADE BOARD)
First Defendant
AND:
THE COMMISSIONER FOR FIRE SERVICE (formerly
the REDCLIFFE FIRE BRIGADE BOARD)
Second Defendant
AND:
JOHN JAMES NAPRASNIK
Third DefendantREASONS FOR JUDGMENT - WHITE J
Judgment delivered 29/03/1996
CATCHWORDS: PERSONAL INJURY - liability - fireman injured by flying glass - qu. hose on jet mode - quantum - future in the Fire Service.
Counsel:Mr R Trotter for the plaintiff
Mr R Stenson for the defendants
Solicitors:Watts & Company for the plaintiff
Dillons for the defendants
Hearing dates: 14, 15 March 1996
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane
No. 1889 of 1992
[Hastie v. The Commissioner for Fire Service & Ors]
BETWEEN:
GEOFFREY DAVID HASTIE
Plaintiff
AND:
THE COMMISSIONER FOR FIRE SERVICE formerly
the METROPOLITAN FIRE BRIGADE BOARD)
First Defendant
AND:
THE COMMISSIONER FOR FIRE SERVICE (formerly
the REDCLIFFE FIRE BRIGADE BOARD)
Second Defendant
AND:
JOHN JAMES NAPRASNIK
Third DefendantREASONS FOR JUDGMENT - WHITE J
Judgment delivered 29/03/1996
The plaintiff is a 54 year old married man who sustained personal injury on 13 June 1990. He was and is employed as a fire officer by the first defendant. In the course of his employment whilst attending a house fire at Redcliffe he was struck on the neck by flying glass from the window of the house and sustained serious injury. Both liability and quantum are in issue.
Liability
The Redcliffe Fire Brigade responded to a call at 3.45am to attend a fire in a boarding house situated on Marine Parade, Redcliffe. The third defendant, a fireman in the service of the Redcliffe Fire Brigade Board, the second defendant, and Acting Substation Officer Idle arrived at the scene and noted that the high-set timber house was well alight. The third defendant connected a hose to the water supply, put on breathing apparatus and proceeded with his hose upstairs. The blaze had commenced on the ground floor level of the dwelling and this was attended to by Officer Idle. The third defendant checked that no occupants remained in the house, opened windows and dealt with the fire. Photographs (exhibit 9) taken by the Police Service in the daylight following the fire show the upstairs part of the house to have sustained little overt fire damage. The damage seems to be confined to sooty discolouration of walls particularly around the front facing windows. Downstairs appears to have sustained severe damage from the fire. The third defendant said that there was smoke billowing within the house when he arrived. It seems that he fairly quickly had his part of the fire under control and then started to damp down "hot spots". Damping down is a term used within the Fire Service which occurs once the initial fire is extinguished and there are certain hot spots within the structure itself which must be damped down to prevent an outbreak of the fire. The third defendant said that two other firemen came upstairs behind him (although only one other is accounted for in the report about the plaintiff's injury prepared by Chief Officer Kurth) and continued with the damping down process. He recalls hearing the sound of breaking glass whilst he was upstairs. He said that he did not deliberately direct a jet of water towards the window but does not deny that that may have occurred.
Water was delivered through a 38mm hose line fitted with a brass nozzle known in the Fire Service as a branch. The branch used then resembled a garden hose nozzle and could be turned manually from jet to spray by the operator. It was suggested that in order to obtain a spray effect the nozzle would first deliver through the jet stream. Mr Smolakovs, an engineer, concluded that the pressure behind a jet of water emanating from such a Fire Service hose and nozzle would be sufficient to break the glass in a window and to cause the fragments of glass to travel six metres through the air. This was the professional opinion of a number of Fire Service witnesses including the plaintiff and I shall return to that matter.
When Chief Officer Kurth of the Redcliffe Fire Brigade arrived at the scene he noted that the fire had been virtually extinguished although it was still smoking and steaming. He made an inspection upstairs and down and was about to leave when the plaintiff arrived.
The plaintiff was the officer in charge of the Sandgate Fire Brigade. Since the fire was not in his area, protocol required that he report to the senior local officer at the fire to ascertain what assistance his unit could render. The plaintiff moved into a position in front of the house where he spoke with Chief Officer Kurth and Deputy Chief Officer Clarke. In the photograph (exhibit 1) the house is seen to be a high-set timber residence on stumps which had been enclosed downstairs. The facade of the house facing onto the road is in the nature of an enclosed verandah although interior photographs tend to suggest it was one large sitting room with extensive glazing across the front. However described, a number of large glassed windows enclosed the front upstairs part of the building where the fire was concentrated. The house had a lawn at the front running to the footpath and no fence. The witnesses estimated that they were standing about six metres from the front of the house, the plaintiff thought approximately where the three men are standing in the photograph (exhibit 1). They were about a metre apart and Mr Clarke's back was toward the house. All men were wearing their regulation issue firefighting uniform of helmet, turnout coat, over trousers and firefighting boots. The plaintiff estimated that he had been speaking to Mr Kurth for about two or three minutes. As he looked at the house he could see a fireman using a fire hose carrying out damping down operations. He then heard the sound of breaking glass and at approximately the same time was hit by a stream of water which, he said, was consistent with a branch being used in a jet pattern. Almost instantaneously the plaintiff was struck on the side of the neck and he immediately lost all use in his left arm. He was conscious of a large quantity of blood pouring inside his coat, trousers and into his boots. Mr Kurth noticed the gushing blood and a cut of about 100mm in length on the left side of the plaintiff's throat.
Mr "Paddy" Brennan who attended the fire with the Sandgate unit was looking at the window at the front of the house at the time that the plaintiff was injured. He saw "water and glass coming through the air and it wasn't just little pieces but large slabs of glass coming through the air at great speed" t/s 48. Mr Kurth felt a light spray of water while Mr Clarke, who had his back to the house, felt nothing although he was struck on the right leg by the piece of glass which had cut the plaintiff. It then fell onto Mr Clarke's left boot piercing it and cutting his toe. The following day Mr Clarke recovered pieces of glass from the spot where the men had been standing and pieced them together to form a square of approximately 400mm.
The plaintiff does not suggest that the third defendant deliberately directed his hose towards the window but alleges that due to his carelessness in controlling his hose which, more probably than not, was in jet position the plaintiff sustained his foreseeable injuries. Mr Stenson conceded that if the window was shattered not due to the third defendant's actions but to one or other of the firemen whom the third defendant said had followed him into the upstairs part of the house to damp down, the first and second defendants or, more accurately, The Commissioner of Fire Service would, nonetheless, be liable.
Since the events in 1990 the Fire Service in Queensland has been reorganised. As appears from the Fire Service Act 1990, the Fire Brigades Act 1964 and the Rural Fires Act 1946 were repealed. Prior thereto there were a number of Boards covering particular areas and firemen were officers of the public service employed pursuant to those Acts. Following the commencement of the 1990 Act a fireman became an officer of the Queensland Fire Service, employed by The Commissioner of Fire Service, a corporation sole capable of being sued. Nothing arises from this as all functions of the previous Boards have been inherited by The Commissioner of Fire Services.
The plaintiff had been in the Fire Service for 21 years prior to 1990. Since returning to work at the beginning of 1991 he has been, of necessity, non-operational and involved in recruit training. He is well regarded in the Service by his superiors. He was not contradicted on his evidence as to what occurred at the scene of the accident nor as to his opinion evidence. Indeed, Mr Stenson on behalf of the defendants was at pains to portray the plaintiff in a favourable light.
It was not disputed by the defendants that in his training a fireman is taught not to direct high pressure water towards a glassed window, particularly when inside a building, because of the likelihood that the glass will shatter and create a hazard for those outside. The plaintiff, Mr Kurth and Mr Smolakovs were of the opinion that water under pressure in a hose being used in firefighting, the nozzle of which was set in jet position would break a sheet of glass and could propel it six metres. The plaintiff in his many years of firefighting had never known a hose on spray position to break a sheet of glass and remove it from the frame. Mr Kurth thought that the glass would be less likely to break if in spray position but that would depend on the thickness of the glass. Mr Smolakovs considered that a heated pane of glass when simply sprayed with water could break and, because of internal stresses, could be dispersed. He thought that because a quantity of glass fragments were found at the spot where the men were standing and because the plaintiff felt a jet of water the situation was more consistent with the glass being hit with a blast of water than a spray.
Mr Kurth prepared a report dated 21 June 1996 for the Fire Service Board concerning the circumstances in which the plaintiff sustained his injuries. He directed Mr Clarke to post a brigade order "to eliminate that type of incident happening again". The order was as follows:"(a)In the interest of health and safety of all Fire Service Personnel attending incidents that require the use of 64mm or 38mm hose lines for damping down purposes, it is strongly recommended that this operation be carried out at reduced pressure, and with the use of only spray branches.
(b)All Fire Service Personnel not engaged in firefighting operations, and the General Public, are advised to keep well clear of the Fireground, or other hazadous type incident.
(c)All Personnel shall wear all supplied Protective Turnout Clothing to all incidents."
It appears that the Fire Service manual is currently being redrawn and will include a longer section to similar effect.
Relying on some comments of Mr Smolakovs, Mr Stenson has submitted that the glass could have been broken and the pieces projected up to six metres if the hose was on spray setting, a setting not alleged to be negligent. Mr Smolakovs did not favour this inference from the known facts. In any event, on matters concerning the behaviour of domestic glass in a fire when subject to water under pressure I preferred the opinion of the plaintiff, Mr Kurth and Mr Clarke - men who had had many years of practical experience in this field. It was not their experience that such glass would break and project any significant distance when subjected to water under pressure from a hose the nozzle of which was set in spray mode.
It must be recognised that firefighters inside a darkened house with smoke and steam further limiting their vision are in a difficult situation and ought not be unduly hampered in carrying out the task in hand. Nonetheless, prior to the window breaking the fire was under control, the officer in charge had checked the interior and no further assistance was required. There was a certain amount of external light from the tenders, police cars, probably from adjacent houses (see photographs in exhibit 9) and street lights which more likely than not would have illuminated the window area sufficiently for anyone inside to see where the windows were. The smoke had cleared so that the plaintiff was able to see a fireman moving around inside the house damping down. All the available evidence points to a hose on jet mode being inadvertently directed at the window. The risk associated with that had been clearly stressed in training. I would infer that it was regularly reinforced in a fireman's operational career since the three firemen standing at the front of the house perceived no danger because they could not envisage a hose on jet mode being directed at the window. It was reasonably foreseeable that people would be standing outside - other firefighters, police and bystanders, for example. The third defendant had been in the service only about two years at the time that the plaintiff was injured. In evidence he said that he was then aware of the risk of directing a jet of water at a window. Nonetheless the evidence clearly suggests that either he or one of the other firemen whom he said were in the upstairs part of the house must have done so. Mr Idle the other fireman who was identified as being in the house did not give evidence. The situation then prevailing did not excuse a departure from the standards laid down by the Service itself and care ought to have been taken to ensure that it did not.
There has been no allegation of contributory negligence. None of the plaintiff, Mr Kurth or Mr Clarke considered that they were at any risk in standing where they did because of their confidence that a jet of water would not be directed from inside the house towards the window.
I conclude on that basis that the first and second defendants have been negligent. In view of the evidence of the third defendant that he could not recall directing water on jet mode towards the windows, that there was at least one other fireman who could have been in the room at the relevant time and the acceptance by the first and second defendants that The Commissioner for Fire Service would be vicariously liable if negligence were found against any fireman in the house it is not appropriate to make an express finding of liability against the third defendant.
The plaintiff also alleges that he was not provided with adequate protective clothing. Since his accident a new fire helmet has been issued to firefighters. It now has a perspex visor which can be lowered to shield most of the face and a neck cloth has been incorporated into the back of the helmet which hangs down below the neck at the back and protects it partially on the side. The old helmet had no visor and no neck cloth. The old turnout coat had a one inch standup collar while the new has a high fold-over collar which covers the ears. The plaintiff said that he thought the visor would have deflected the glass Initially he agreed that he would have been unlikely to have the visor down when talking to the two officers outside the house and not about to engage in firefighting. Although he changed his answer I think the initial response more likely. As for the collar, the plaintiff indicated the line of his cut at the base of his neck on the left side and this suggests that the glass may have dropped below the collar line of the old design jacket. There must have been a gap between the collar and the plaintiff's neck for this to have occurred. It is a possibility that had the turnout coat been fitted with the higher roll collar the glass may not have cut him. The new design coat was not demonstrated so that it was not clear if a gap would still remain between the higher collar and the wearer's neck but the plaintiff's description of the new coat was not contradicted. I think it reasonable to infer that the new coat would have eliminated some of the risk of injury of the kind sustained by the plaintiff. There is no reason why the safer coat (and indeed helmet) could not have been available to members of the Service in 1990. There was some evidence that it took some time before a new turnout coat became available which was satisfactory but nothing to suggest that there was any relevant impediment to its introduction prior to June 1990.
Firefighters are at serious risk in the very nature of their employment and are entitled to have appropriate protective clothing which is reasonably within the means, both as to design and cost, of the Fire Service (or its predecessors).
On the civil standard I am not persuaded that had the plaintiff been provided with the new helmet he would have worn it in a way which would have been likely to exclude the possibility of injury. Had the plaintiff been provided with a turnout coat with a high collar it seems more likely than not that he would not have been cut as he was. It was reasonably foreseeable that a fireman at the scene of a fire was at risk of injury to any exposed part of his body. The evidence does not support a conclusion that any other cut would have had significantly less serious consequences for the plaintiff. The plaintiff has not established liability against The Commissioner for Fire Service on this ground.
Quantum
General Damages
The plaintiff was taken to the Redcliffe Hospital by police car and can recall drifting in and out of consciousness as he was admitted to surgery. Some repair was done of his severed internal jugular vein before he was transferred to the Royal Brisbane Hospital for further management. The plaintiff was there noted to have damage or severance to his internal jugular vein, his accessory nerve, his posterior auricular nerve and the middle and upper trunks of his brachial plexus. The plaintiff had also sustained some damage to his laryngeal nerves such that his voice was altered. The damaged vessels and nerves were repaired surgically.
The plaintiff experienced intense pain whilst in hospital emanating from the neck region, the left shoulder, down his arm and to the tips of his fingers. The damage to his voice meant that he could speak only in a whisper and his audience needed to be 3-4 inches away from his mouth. He was placed in a plaster body cast after microsurgery with his arm elevated to shoulder height, bent and kept rigid in plaster. He was discharged home into the care of his wife after ten days in hospital. The plaintiff remained in the cast for eight weeks. He found it very uncomfortable particularly the itchiness and the scratching.
The Royal Brisbane Hospital report notes that the plaintiff attended outpatients on a regular basis for physiotherapy and noted that six months after injury his voice had improved remarkably. The plaintiff said that his voice has not in fact returned to its pre-accident condition but I noted that it projected quite satisfactorily in the courtroom. The plaintiff continues to experience pain constantly in his left shoulder, arm, forearm and fingers. He is not attracted to pain relieving drugs and takes such relief about once per month. He frequently does not sleep well due to shoulder position problems. He has limitation of movement in his left arm and shoulder being unable to raise it unassisted above his waist because of the damage to the brachial plexus which, according to Dr Atkinson is unlikely to improve further. Both Dr L Atkinson, neurosurgeon and Mrs H Coles, occupational therapist, have noted muscle wasting in the left biceps muscles and the left deltoid muscle. The plaintiff has associated weakness in the muscles of the left hand and some wasting of those muscles. Dr Atkinson has assessed the plaintiff as having a 30% loss of function of the whole person as a consequence of these injuries and that assessment is accepted by the defence. I might add that that seems rather high. I did not take it up with counsel at the trial, but the transcript makes it quite clear that "by consent" the estimate is "30 per cent of the whole person."
The plaintiff in evidence did not tend to describe his disability in any great detail. The reports of Dr Atkinson and Mrs Coles (which were tendered by consent) include more extensive descriptions of the physical deficits which the plaintiff experiences. I note the observations of the Court of Appeal in the recent decision of Chandler v. Bailey unreported decision of 15 March 1996 (App No 215/1994) at p. 11 that in some instances it may be right to treat statements made by the plaintiff to an expert as supporting a damages claim, although not confirmed by anything the plaintiff said in evidence but that would ordinarily be so where the defendant has expressly or implicitly assented to that course, waiving confirmation of what was said to the expert. I do not think that the situation here is comparable. The plaintiff has broadly described his disabilities. Dr Atkinson and Mrs Coles tested the plaintiff's physical capacities. He has been left with a cosmetic disfigurement due to the wasting of the left shoulder girdle and left arm as well as an unsightly scar around his neck. He suffers some embarrassment as a consequence. Mrs Coles has noted that his weakened left arm has caused him to adopt an asymmetrical method of lifting which could cause lower back damage if he had to perform significant repetitive or heavy lifting. In his consultations with Dr Atkinson and Mrs Coles he demonstrated a degree of frustration at his own limitations but they thought he showed a positive attitude in attempting to adapt to those limitations. At home he experiences difficulty in engaging in numbers of domestic tasks which previously he could do. He is unable to do jobs such as lawn mowing, gardening or cleaning out gutters which previously he did. He now retains paid outside help. He is unable to cut up those of his meals which require such a technique and receives assistance from his wife. He is unable to peg out the clothes on the line and it seems that he assisted in that way prior to sustaining his injuries. He has difficulty in completing his dressing particularly putting on a shirt, a jumper, a jacket and doing up his tie.
Before he was injured the plaintiff was actively involved in cycling, competing competitively in numerous Queensland and Australian long distance championships. He trained regularly each day. He is unable to continue in this sport being restricted in his neck movement and in the strength of his left arm. He used to play golf on a regular weekly basis with the Fire Service Golf Club and although he has tried he has been unable to swing. He has given it up in frustration. He formerly engaged in recreational fishing but again he has had to give up that pastime since he cannot handle a fishing rod with one hand. The plaintiff enjoyed the social activities associated with those sports.
The plaintiff has been redeployed into recruit and officer training in the Queensland Fire Service at no loss of income but is frustrated and disappointed at being unable to maintain his position as an operational officer. Although there was an attempt to reassure him in the course of the defence case that, as far as could be seen, his job was secure within the Service, the plaintiff does have concerns for his employment future. He is anxious that in an essentially operational service he may not have a place. The limitation of movement in his left shoulder and arm has made practical demonstrations in his training classes very difficult. If he needs to carry equipment particularly when lecturing to allied services he needs and has someone to assist him.
Although the plaintiff is clearly a man of fortitude and resolute character his frustrations, occasional depression and regret at the loss of job satisfaction and many activities which were pleasurable to him must be fully compensated.
The plaintiff's four children are in their 20's, only one remaining at home now although all were at home at the time of his accident. He has grandchildren and he experiences difficulty in picking them up.
After the plaintiff left school he completed an apprenticeship as a signwriter and painter and remained in that work for some twelve years before joining the Queensland Fire Service following a short period with the Postmaster-General. He has painted his own home inside and out in the past but because of his left limb deficits can no longer do so. He has recently had the outside of the house painted which cost him approximately $3,000 to $4,000. Of that he estimated that the cost of materials was in the vicinity of $1,000. The house needs to be painted inside which will cost approximately the same amount. The plaintiff has not put forward this claim as a separate head of loss but seeks to have it included in his general damages. No evidence was given as to how often his home requires painting but at the least it can be inferred once in ten years. Had he not been injured, taking into account his fitness, he may have been able to paint the house on two further occasions. On the other hand he may move or may have moved into a residence that did not require so much painting by the time he retired.
It would be reasonable to allow $4,000 as the cost of labour to paint the house inside and out. The plaintiff is relieved of the burden of carrying out that task and that must be taken into account together with the usual vicissitudes of life. It may have become unnecessary in the future to paint a house. A suitable starting place would be to allow $4,000 for the work done and about to be done and using the 5% tables defer the other payments for 10 and 20 years respectively. That figure should then be discounted appropriately. I will allow the sum of $6,750 for past and future painting work.
The plaintiff now requires the services of outside paid help to mow the lawn, look after the garden and trim the trees. He pays approximately $20 per fortnight for the lawn work and $100 twice a year to have the trees trimmed. Again no precise figures have been advanced on behalf of the plaintiff but based on the plaintiff's evidence that is approximately $14 per week. There is no reason to suppose that the plaintiff would not have been able to do these tasks when in his 70's and I will allow 21 years using the 5% tables which should be discounted. I will include an amount of $11,000 for future gardening needs. There was no evidence as to when the plaintiff started using outside help but at the time of his accident he had four children living at home and they may well have shared such tasks in the ordinary arrangements that exist in families. I propose to add a further $720 being for one year to account for the past.
Mr Stenson on behalf of the defence has proposed that the appropriate figure for general damages is in the vicinity of $40,000 whilst Mr Trotter for the plaintiff has submitted $60,000. Mr Trotter may well have included a sum to represent the cost of employing a painter and for the lawn mowing and gardening. Bearing in mind the wide range of the plaintiff's pre-injury recreational activities, the loss of his job satisfaction, his cosmetic deficits and the constancy of his pain an appropriate figure is $45,000. That will attract interest at 2% per annum from June 1990 being 5.75 years and should be allowed on $25,000 to represent pre-trial suffering. That amounts to $2,875. An amount of $18, 470 is allowed for past and future painting and gardening needs including interest.
Past and Future Griffiths v. Kerkemeyer Claim
The plaintiff has been challenged with respect to the amount of care which was allegedly provided to him by his wife Mrs Lynette Hastie. The plaintiff was transported home from hospital by ambulance. He was unable to sit in a car because of his body cast. His left arm was plastered in the horizontal position held up with a bar. He was completely unable to look after himself and it seems plain that had there been no one at home to look after him it is unlikely that he would have been able to leave institutional care. He was in plaster for a total of eight weeks and, according to Mrs Hastie, he needed 24 hour care. That is contested by the defence on the ground that Mrs Hastie slept part of each 24 hours when she was looking after her husband and was able to do other tasks unrelated to the plaintiff's needs during the day. That, in my view, is not to the point. The plaintiff had a need to have someone available 24 hours a day during this period. A claim is made for 24 hour care for approximately six weeks. Had commercial carers been provided then it would have been necessary to have several people rostered on shifts to look after him. The commercial rates are agreed to by the defence. In the schedule handed up by the plaintiff in the descriptive part a period of approximately six weeks is claimed for this care and in the calculations eight weeks. The plaintiff's evidence was that he was in plaster for a total of eight weeks, one and a half weeks of which was spent in hospital. The figure then is 6½ weeks at $81 per day amounting to $3,685.50.
After the plaintiff was taken out of plaster he was very weak and was unable to do much for himself and gradually became stronger. Mrs Hastie has assessed that she devoted approximately four hours per day to her husband's welfare for the six months following the removal of plaster. She estimated that her husband reached his present position about twelve months after sustaining his accident, that is, in about June 1991, and assessed that care which he needed at about a half an hour per day. The plaintiff returned to work in January 1991 and it is unlikely that Mrs Hastie, up until that moment, needed to devote four hours per day to his care. However I have no doubt that initially when he came out of plaster his proper care, when calculated sensibly, would have entailed at least that much time. When he was taken out of the plaster he was very weak and was unable to wash, dry or dress himself. He needed to be transported to physiotherapy and to doctors' appointments. I accept that an average amount of time devoted to the plaintiff in the three months following his removal from the plaster body cast would have been in the vicinity of four hours per day. This takes into account that in the first few weeks he probably required a great deal more by way of assistance and care. The report from the Royal Brisbane Hospital dated 2 January 1991 showed that at that time he was visiting outpatients and attending physiotherapy on a regular basis. His shoulder and arm activity were still very limited. I would allow four hours per day for three months following the removal of the plaster. At $9 per hour that amounts to $3,024.
For the balance of the period before return to work, about seven weeks, two hours per day would adequately reflect the amount of care that the plaintiff required. At $9 per hour that amounts to $882. Since the plaintiff returned to work in January 1991 Mrs Hastie estimates that she spends approximately thirty minutes a day devoted to his care for needs generated by his injury. The two main areas of assistance provided by her relate to assisting her husband to dry himself after the shower and assisting him in dressing, particularly pulling his arm into shirts and jackets or pulling jumpers over his head. Whilst Mr Stenson attempted to break this down into seconds that does not seem to be a practical way to approach it although it did draw attention to the difficulty in quantifying such things. No doubt Mrs Hastie attends upon her husband when he finishes his shower and waits with him until he has finished dressing which may very well be in the vicinity of ten or fifteen minutes. The other area where he needs particular assistance is with respect to cutting up his meat. However he is unable to iron a shirt satisfactorily, do the gardening or hang out washing (something which he did previously). In Van Gervan v. Fenton (1992) 175 CLR 327 the majority of the Court (Mason CJ, Toohey and McHugh JJ) held at p. 333 that the true basis of a Griffiths v. Kerkemeyer claim is the need of the plaintiff for those services provided for him or her and the plaintiff does not have to show that the need is or may be productive of financial loss. The market cost of such services is usually the reasonable and objective value of those services. There really is no market value for services consisting only of back-drying and meat-cutting. If the plaintiff lived alone he would, no doubt, adapt his post-shower towelling technique awkward as it may be, take considerably longer to get dressed and eat his steak in a less than civilised fashion. Where a plaintiff has these kinds of minimal needs the better course would be to add to a plaintiff's damages for loss of the amenities of life. Professor Lunz's comment at p. 217 of the 3rd edition of Assessment of Damages: "Certain domestic tasks may be so trivial that no one would think of engaging outside help to perform them," is opposite, but his rationale which appears to be based on Gibbs J's view in Griffiths v. Kerkemeyer at p. 165 that to be compensable the need created must be productive of financial loss was specifically disapproved in Van Gervan supra. Nonetheless, as Professor Lunz mentions, there is an overriding principle of reasonableness and it would not, in my view, be reasonable to engage help to perform many of the small tasks which I have mentioned. However there are general gardening tasks in this case which the plaintiff can no longer perform (separate from the mowing and tree trimming) and were he to be deprived of his wife's services he would need and ought to be compensated on the basis that he would obtain commercial assistance to iron his shirts (particularly bearing in mind that he attends his work in uniform) once per week and to do extra gardening. Two hours per week would be a suitable allowance for those needs. The defence approached this case on the basis that the plaintiff was entitled to something into the future under this head but focused on trivial matters.
The plaintiff's past and future needs were submitted to be at 3½ hours per week based on half an hour per day for 21 years. The defence assessed those needs at 5 minutes per day for 20 years. From the time the plaintiff returned to work to date is 5 years and 2 months. Damages for that period at 2 hours per week are allowed at $9.50 per hour making $5,105 approximately. Taking into account what I have said above, the appropriate allowance for the future should be for two hours per week at $10 per hour for 21 years using the 5% tables. That amounts to $13,712.
The amount allowed for past care is $12,697. Interest is allowed at 2% per annum which is $1,397. Future care is allowed at $13,712.
Past Loss of Wages
For the period that he was away from his work the plaintiff received weekly payments from the Workers' Compensation Board. There was no loss of income associated with that period. When the plaintiff sustained his injuries he had the rank of substation officer. He is presently acting station officer. Although the evidence was not quite clear it would appear that he is being paid as a station officer first class rather than as he thinks, second class, but there seems to be little involved financially. Mr Stenson has submitted that the plaintiff's injuries have not been productive of lost income. The plaintiff said that he had thought of trying for promotion to station officer. This he said was because the actual structure of the Fire Service had changed over the past six years and it was time to start thinking about a higher rank. He also thought that the higher rank would allow him to go into other areas in the Fire Service such as fire prevention and safety. He considers that he would not be eligible for those positions whilst only a substation officer. The plaintiff presently earns about $605 net per week. The next increment is approximately $20 or so net per week, about $1,000 per annum. In order to move to a higher rank the plaintiff would have to pass examinations both in theory and in practice. Mr Stenson points to the fact that the plaintiff was content to stay in the position of substation officer for some eleven years prior to his accident. Mr Kerry Tupper, an acting District Commander with the Fire Service said that in his experience an officer who makes no move for promotion in over ten years was not likely to make a further move and he knew of very few cases in the Fire Service. There were some further difficulties in the way of the plaintiff's promotion in terms of the theory examinations. Although he had obtained his trade qualifications as a signwriter and painter he had not received a secondary education and told Mrs Coles that he had some difficulty with his academic work. He had apparently had some difficulty in passing his theory examinations for promotion to substation officer. He certainly did not regard himself as having any clerical skills. Nonetheless the loss of the chance to seek promotion successfully should be quantified in some way. Although the plaintiff was and is a well-regarded and valued member of the Fire Service taking those matters which I have mentioned into account I think the chance that he would have sought and obtained promotion had he not been injured is no greater than 25%. An amount of $1,550 is awarded for past loss of the chance for promotion including interest.
Loss of Future Earning Capacity
The retiring age for fire officers is 65 years and the plaintiff indicated that his plans had been to remain in the Service until retiring age. I would award the plaintiff an amount of $3,500 to represent his loss of the chance to apply successfully to station officer for promotion from the date of judgment until the date of his retirement based on the same percentage as the pre-trial assessment. The plaintiff now considers that the area of safety is a matter of some importance within the Fire Service and would wish to leave training and move into safety. The senior officers who were called on behalf of the defendant could see no reason why he should not move into that area even with his physical limitations. As I understand the evidence he will have to study and pass relevant examinations.
The major area of dispute between the parties in this case has been what the plaintiff's employment future will be. The plaintiff gave evidence that he was concerned that the Fire Service would not employ non-operational officers in the long term. His understanding was that there were non-operational jobs but they were retained for people who had an injury from which they were expected fully to recover so that they could return to operations. In that circumstance the plaintiff was of the view that he may be thrown onto the open employment market and with his physical disabilities and lack of formal or indeed informal office work capacities he would be unable to obtain commercial employment.
It is accepted that he would be unable to obtain employment in his other area of expertise, namely that of a signwriter and painter, although he has done some minor certificate writing work for the Commissioner of Fire Services. The plaintiff is right hand dominant and that kind of work would not be beyond him.
Mrs Coles carried out extensive occupational tests with the plaintiff in July 1994 and again in February 1996. She concluded that were his services to be terminated with the Fire Service he could expect to experience some disadvantage in job selection when competing against able-bodied and equally qualified or experienced job applicants for work to which he could otherwise be reasonably suited by training and/or experience. It was Dr L Atkinson's opinion that he was capable of some form of employment.
Mr A Bartlett is an Assistant Commissioner of the Fire Service responsible for the greater Brisbane region particularly human resources. He makes recommendations to the Commissioner concerning the employment of officers. He could see no reason at the present time why he would recommend that the plaintiff's employment be terminated, on the basis that the plaintiff was non- operational. There was no Fire Service policy that non-operational officers otherwise able to be employed would not be retained. He could see no reason why the plaintiff could not move into the area of fire safety from training. He conceded that the plaintiff was amongst the oldest training officers in the region but again could think of no reason why that would disqualify him from continuing as a training officer.
Mr Tupper, until just before trial an acting Assistant Commissioner in the Fire Service, has seen the plaintiff conduct training sessions. He has known the plaintiff for almost the whole of his Service career. He had strong words of commendation for the plaintiff's work and could see no barriers to him moving into the area of fire safety but in order to do so he would have to pass courses and become competent in fire safety. As far as he could predict, the Fire Service's five year plan for strategic and operational matters would suggest that the plaintiff would be able to continue in the Service for that period. He emphasised that there was more significance than in the past given to training of staff and that the plaintiff would be a valuable contributor.
Mr A Mask, a station officer first class acting in higher duties at the time when he gave evidence aged 38 years, has worked with the plaintiff in his role as an instructor and spoke highly of him. He himself has decided that training was an important development for the future and has obtained tertiary qualifications in that field. His evidence also shows that there are now officers with far higher qualifications than the plaintiff in the theory of training. The witnesses however pointed to the plaintiff's long period of practical experience which he brings to training.
The evidence supports the defence contention that the plaintiff is a valuable and esteemed member of the Fire Service and that he is non-operational is not currently regarded as a disqualifying factor for his continued employment. Nonetheless it must be recognised that systems change and that he does have certain physical deficits in what is principally an operational service. It is clear that were he to be put upon the competitive commercial labour market he would experience difficulty in obtaining similarly remunerated work. His only other skill is in the area of painting and signwriting for which he is no longer physically fitted. Despite Mr Stenson's submissions to the contrary, the plaintiff does not seem to be qualified for administrative/clerical work. No particular occupation was proposed as suitable for him should he need to look for work. However his sense of duty and hard work and his positive capacities for adapting to his present situation as best he can would suggest that he would be more likely than not to obtain some form of employment.
Mr Trotter has proposed that the plaintiff's future loss should be on the basis of $600 per week (his present net wage) for 6 years delayed by 5 years, that assumes that there is no likelihood that he will lose his employment with the Fire Service within the next 5 years. Mr Stenson has urged that a global figure be awarded to reflect the uncertain nature of the plaintiff's losses. Mr Trotter's approach gives an amount of $126,342 using the 5% tables to which he adds an amount of $8,826 for loss of promotion. Mr Stenson did not make any submissions as to quantum in this regard.
It may well be that the plaintiff is compelled to remain in the Queensland Fire Service continuing in the job of training new recruits, a position which after repetition over many years would become quite irksome, particularly in view of the plaintiff's preference for operational work rather than making a deliberate career choice as did Mr Mask. This however has been reflected in the plaintiff's general damages.
The plaintiff indicated that it had been his plan prior to injury that he would engage in some signwriting work after retirement which was presently paid at about $20 per hour. He had last engaged in that sort of work commercially about ten years ago. That work will no longer be open to him. I accept that it likely that on retirement eleven years from the present, the plaintiff otherwise being a fit and energetic man, would have taken up a remunerative occupation on a part-time basis for which he was qualified.
This is a difficult matter to assess. The risk that the plaintiff will lose his employment within the next five years is not great, perhaps no more than a 15% chance. After that period it is possible that new, more stringent qualifications for training officers would be implemented. The plaintiff's age (nearly 60 years) then and lack of academic qualifications may be a real impediment to him remaining in the Service. Doing the best I can, the risk may be as high as 50%. If there is no place for the plaintiff in the Fire Service after five years, bearing in mind his age and disabilities, a comparably remunerated job would be most unlikely but I am persuaded that he would obtain some work. The amount then which I propose to award the plaintiff for the risk of the loss of his present employment because of his disabilities and his difficulties in finding alternative and as well remunerated employment in the workforce together with the loss of post-retirement employment discounted in the usual way is $55,000.
Special Damages
These are agreed to be as per the Workers' Compensation Board letter in the sum of $1,315.18 and $121 paid by the plaintiff.
Summary of Damages
| • Pain and suffering and loss of the amenities of life past and future • Interest on $25,000 at 2% per annum for 5.75 years. • Past and future house painting and gardening needs including interest on past loss. • Past loss of wages • Payments made by WCB • Loss of chance of promotion • Loss of future earning capacity • Generally • Loss of chance of promotion • Griffiths v. Kerkemeyer needs • past • interest on past • future • Special damages • WCB • plaintiff • Fox v. Wood | $ 45,000.00 $ 2,875.00 $ 18,470.00 $ 13,891.44 $ 55,000.00 $ 12,697.00 $ 1,315.18 $ 5,507.50 |
TOTAL: Less Refund to WCB: | $175,036.12 $ 20,714.12 |
TOTAL: | $154,322.00 |
There will be judgment for the plaintiff against The Commissioner for Fire Service in the sum of $154,322. I give liberty to apply with respect to the arithmetical calculations made in these reasons. I will hear submissions as to costs.
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