Hellmuth v HD (Q) P/L

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No. 1390 of 1994
Before Mr Justice Ambrose
[Hellmuth v. H.D. (Q) P/L]
BETWEEN

JURGEN OTTO HELLMUTH
Plaintiff

AND:

H.D. (QLD) PTY. LTD. (ACN 009669592)
Defendant

CATCHWORDS: CIVIL LAW - personal injuries - negligence - whether a pallet left in a safety zone rendered the place of work unsafe - damage to be assessed in accordance with Malec v. J.C. Hutton Pty Ltd.

Workcover Queensland Act 1996
Malec v. J.C. Hutton Pty Ltd (1990) 169 C.L.R. 638

Counsel: Mr J. Lee for the plaintiff
Mr T. Matthews for the defendant

Solicitors:Goodfellow & Scott for the plaintiff
Quinlan Miller & Treston for the defendant

Hearing date : 23-24 November 1998

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Delivered the 2nd day of December 1998

The plaintiff sues the defendant as his former employer for damages for an injury he suffered as a result of a breach of a duty of care it owed to him by virtue of that relationship.
At the time of his injury on 20 July 1991 the plaintiff was about 43 years of age. He had been employed for some years as a trades assistant at the defendant’s premises where heavy earthmoving equipment was maintained, serviced and repaired.
The defendant’s business was carried on in two very large buildings that had been constructed for use as aircraft hangers. Each building contained an area in excess of that of several football fields.
The building in which the plaintiff was employed had yellow lines on the floor marking out areas that were to be kept free for vehicular movement within the building and free to provide access to and between equipment used regularly to maintain and service various parts of heavy equipment. The floor area was thus marked off into sections and different sections of the building were devoted to the performance of different maintenance and repair functions. The plaintiff was injured in one of those sections marked off which contained equipment used for the purpose of dismantling parts of heavy earthmoving equipment so that it might be stripped down to basic components, degreased, sandblasted and re-assembled for re-use.
Because many of the items of equipment that had to be dismantled and serviced in the defendant’s premises were very heavy, there were overhead cranes of various sorts and some forklifts available for the use of workmen handling such items.
The plaintiff completed work about 1 p.m. on Friday, 19 July 1991 in the area where he suffered injury on 20 July 1991. Apparently after he completed work about eight pallets containing heavy items of equipment were unloaded on to the floor in the area in which he was required to work next day.
Before he finished work on 19 July 1991 the plaintiff and another man named Brendan Mulgrew were requested to work overtime on Saturday, 20 July 1991 to disassemble rollers so that they might be properly cleaned and then re-assembled. They were familiar with performance of this sort of work which they had been doing for years.
The components to be cleaned and maintained were disassembled by the plaintiff at a hydraulic press. It was the plaintiff’s job to then carry some of those parts to a tank containing a mixture of diesel and kerosene where they were “de-greased” and any foreign matter removed. The plaintiff then carried each of those degreased parts to another table a short distance from and behind the degreasing tank where he further cleaned it by using an airblower and a sandblasting compartment. When it had been properly cleaned it was then left on a nearby table in a clean condition for his workmate Mr Mulgrew to take and apply seals etc. and then to re-assemble for reinstallation in the heavy equipment from which it had been taken.
The plaintiff and Mr Mulgrew had commenced work at about 5 a.m. on the Saturday morning. From that time until the plaintiff was injured they had disassembled and cleaned and reassembled perhaps 15 of the rollers.
The degreasing tank was about a metre long and perhaps half a metre wide and perhaps half a metre in depth; its precise dimensions are not relevant. The top of the open tank was of rectangular shape which was maintained by a round steel bar welded presumably to the top of each of the sides of the tank. From photographs it seems that the round bar was cut at a 45 degree angle and joined by welding at each corner with the result that each of those corners near which workmen would stand or pass when using the tank had a sharp point of a 90 degree angle of round bar protruding some little distance out from the flat sides of the tank.
There was no suggestion that the plaintiff had ever had any trouble or had ever hurt himself working around and in the vicinity of this particular tank over the years that he had been working for the defendant.
It was only the plaintiff who was obliged to disassemble the equipment parts and degrease them in the tank and having completed that, carry them to the area used for air and sandblasting. The other man, Mr Mulgrew did not have to assist in performing this part of the servicing operation.
When the plaintiff and Mr Mulgrew arrived to start work at 5 o’clock on the Saturday morning they discovered that somebody had unloaded eight pallets of parts that had to be serviced - although they were not the parts to be serviced by either the plaintiff or Mr Mulgrew that morning. One pallet had been placed so that its edge rested against one end of the degreasing tank. This was the end from which disassembled parts were placed in the tank. This particular pallet had very heavy machinery parts stacked on it in a pyramid shape. The pallet was so located that for the plaintiff to take the disassembled parts from the hydraulic press to the degreasing tank and then from that tank to the air and sandblasting table behind it, it was necessary for him to walk upon/across the sides and corner of that pallet between its outer edge and the equipment stacked upon it for maintenance work.
When the plaintiff and Mr Mulgrew arrived for work they realised that it would be at least inconvenient for the plaintiff to carry machinery parts from the hydraulic press to the degreasing tank and thence to sandblasting by walking on or over the corner/edge of the pallet. Normally, there were forklifts available to move pallets if necessary. The pallet containing the machinery parts of course was exceptionally heavy and both Mr Mulgrew and the plaintiff walked around the area looking for a forklift fitted out in a way that would allow them to shift that pallet perhaps only a couple of feet so that the plaintiff might conveniently walk from the hydraulic press to the degreasing tank and from there to the sandblasting equipment. The plaintiff said that in spite of the efforts each made to find a forklift suitable to shift the pallet a short distance they were unable to find one. The plaintiff says that they searched diligently for some time, not merely within the very large shed in which he and Mr Mulgrew were working but also in another shed of similar size, where other people were performing other work assembling heavy equipment, with a view to obtaining a forklift. He said that they were quite unable to locate one. The plaintiff’s evidence on this issue was not contradicted and I see no reason why I should not accept it. The plaintiff conceded I think that if he and Mr Mulgrew had persevered in searching through the two vast sheds or hangers, they may eventually have been able to locate a forklift somewhere. Obviously somebody had appropriated “their” forklift which they were apparently accustomed to use and they were quite unable to find that or a similar one. I infer they were anxious to start to perform the overtime work they were required to complete that day.
The plaintiff and Mr Mulgrew had been required to work overtime to get that particular job completed that day. It seems that they were the only two men in the whole vast complex contained in that shed in which they normally worked. Other men were apparently working assembling some machinery in the second shed. It was a vast complex as I have indicated; each shed was the size of several football fields and presumably some distance apart. No evidence was led by the defence to contradict the plaintiff’s evidence or to suggest in any way that he and Mr Mulgrew did not make all reasonable efforts to obtain a forklift to enable the very heavy pallet or pallets to be shifted a few feet to facilitate the easy passage of the plaintiff from the hydraulic press to the degreasing tank and from it to the sandblasting facility.
It is clear in my view that the pallets that were deposited in the area impeding the plaintiff’s access to and from the degreasing tank should not have been so deposited. It must have been known to the defendant that the plaintiff and Mr Mulgrew would have to work on the Saturday morning in the area where the pallets were deposited. If the pallets had to be deposited somewhere in that general area for work to be performed on the equipment parts on them the following week, proper supervision required that they be located in that area in such a way as not to impede the plaintiff’s safe access between the servicing equipment he was required to use. Having regard to the way that the pallet was deposited at the end of the degreasing tank and to the way machinery parts were loaded on it, it must have been obvious to anybody appraising the situation that if the pallet could not be shifted the plaintiff would have to walk across the edge and corner of the pallet to carry machinery parts to and from the degreasing tank.
It was not suggested to the plaintiff in cross-examination that he could reasonably have followed some other path to get the parts he had disassembled to and from the degreasing tank.
Somebody exercising proper supervision in my view ought to have been aware that the plaintiff and Mr Mulgrew would be working in the area in which the pallets were deposited on the Friday afternoon. Anybody looking at the way and the location in which they were deposited must have been aware of the unnecessary risk that would be posed to a person walking to and from the degreasing tank while carrying heavy equipment components.
According to the plaintiff after between 10 and 15 machinery parts had been serviced that morning by using the degreasing tank he was proceeding again to carry a part from the hydraulic press to the degreasing tank when he either “tripped or slipped” as he was negotiating the corner or edge of the pallet. The pallet was constructed of wood and was perhaps six inches or so thick - it constituted a little wooden platform, the top of which was roughly six inches above the concrete floor upon which it rested. He said that as he lost his footing he bumped into the sharp corner of the degreasing tank with very significant force and dropped the item of machinery that he had in hands, into the degreasing tank. He was carrying the outer cap of a D9 roller in both hands; that cap weighed about 10 kilograms. The plaintiff at that time was a very heavy man. He is still of significant weight.
The plaintiff suffered significant pain and had to sit and rest for a time before he was able to re-commence work; he was able to complete his overtime work apparently and then went home. Unfortunately the plaintiff had previously suffered significant injury near the area of his body which came into contact with the tank - his scrotum - in 1978. I will deal with that history in more detail when considering the question of quantum.
However, on Monday morning, 22 July 1991 he reported his injury to the First Aid officer and to the person in charge. He wrote that he “bumped into bin”. The First Aid officer wrote that he had injured his right side in the vicinity of his testicle. Mr Osborne his supervisor discussed with him the accident and noted -
“Jurgen was walking towards the wash tank when the corner of the tank contacted his groin area.”
The plaintiff signed that accident report.
The supervisor was called to give evidence as to whether the plaintiff had said anything to him about the involvement of a pallet in his injury. He said that he had no recollection that the plaintiff had said anything about a pallet being involved. He said that had the plaintiff said that, he would have noted it in the accident report the object of which was to try to ensure that dangerous situations leading to injury of workmen were avoided in the future. The supervisor made a note in his report of 26 July 1991 -
“The tank is very visible and all are aware of its presence. Jurgen is aware that he must look where he is going in future.”
That the plaintiff omitted to refer to the fact that he was stepping across a pallet when he “bumped into” the sharp corner of the degreasing tank is explicable by the fact that he was more concerned with the nature of his injury and its immediate cause than with the reason why he “bumped into” the corner which was the direct or immediate cause of that injury.
There seems to be no issue between the plaintiff and the defendant that indeed there were at least two pallets located between or near the degreasing tank and the hydraulic press used by the plaintiff at the relevant time in the performance of his work. Photographs taken of the scene and said to represent approximately the location of the degreasing tank and the hydraulic press and the other equipment which the plaintiff was required to use are said to reflect the position of that equipment at the time of the plaintiff’s injury. There is no evidence as to precisely when the photographs were taken but in any event the evidence discloses that the relevant pieces of equipment were in or about the position demonstrated in the photographs at the time of the accident. In some of the photographs there is a pallet shown on the concrete floor in such a location as to permit somebody to approach with care the corner of the tank at the end nearest to the hydraulic press without stepping upon or perhaps even over that pallet. I refer to Ex. 9 (N).
Exhibit 9(O) shows the tank upon which the plaintiff injured himself in front of a table upon which the degreased machine parts were placed so that they might be sandblasted by equipment behind the degreasing tank.
Accepting that the photographs do demonstrate the location of the equipment with which the plaintiff had to work at the time of his injury, it is clear in my view that the pallet left on the floor on the afternoon or evening of 19 July 1991 could have been so located as not to pose the danger to the plaintiff which in my view it undoubtedly did, on 20 July 1991, had any consideration been given to that matter.
The defendant’s Health Officer on 22 July 1991 arranged for the plaintiff to attend Park Ridge Surgery for examination. When examined on that occasion he had “gross bruising to his scrotum and he was very tender.”
It was suggested on behalf of the defence that it was possible that the plaintiff did not really injury himself on the bin at all but simply made this story up because the previous injury he had suffered in 1978 was deteriorating. The Plaint when issued on 19 November 1992 made no reference to the part allegedly played by the pallet in the plaintiff’s injury. For that matter it made no reference to what he was doing when he suffered injury. These particulars were not provided until the plaint was amended in June 1994. It is clear from the report of Dr Winkle of 19 November 1992 that the plaintiff informed him in October-November 1992 that he sustained his injury when “he slipped on a pallette that was on the ground”. I infer therefore that the plaint was issued on behalf of the plaintiff either without the benefit of full instructions as to the circumstances of his injury or those circumstances by oversight were not pleaded.
I am persuaded that the plaintiff did seriously injure himself on 20 July 1991 when his right scrotum came into contact with the sharp corner of the degreasing tank. The medical evidence establishes that he had a significant injury on 22 July 1991. No effort was made to call his workmate who was present at the time the plaintiff said he injured himself to cast any doubt on the plaintiff’s version of events. I am satisfied on the balance of probabilities that at about 12 noon on 20 July 1991 the plaintiff did suffer injury in the way he described and it was that injury which was observed by doctors within a couple of days and in respect of which he was given a certificate for sick leave for a couple of days as a consequence of its effect on his ability to work.
I am satisfied on the balance of probabilities that the cause of his scrotum coming into contact with the sharp corner of the degreasing tank was his slipping or tripping or stumbling or in some fashion losing balance as he walked over or upon and across the edge and the corner of the pallet which had been placed in such a position as to deprive him of proper access to the degreasing tank from the hydraulic press from which he was obliged to carry the machinery parts when disassembled over to that tank. Stumbling into the sharp corner of the tank while elevated by the height of the pallet above the floor level put the plaintiff at risk of an impact with part of his body which would not have been at risk if he had been walking on the floor when he “bumped into” that corner. In my view it was quite unnecessary for the pallet to have been located where it was located and indeed having regard to the arrangements that had been made to have the plaintiff work in the vicinity of that tank the following day, to put the pallet in that location subjected the plaintiff to quite unnecessary and easily avoidable danger.
The defendant has not raised contributory negligence. Although some surprise was expressed at evidence of the plaintiff that he and his workmate had spent significant time trying to locate a forklift to move the offending pallet, no evidence was called to contradict the plaintiff’s evidence that in fact they had unsuccessfully attempted to do so.
In my view the injury suffered by the plaintiff on 20 July 1991 resulted from the negligence of the servants/agents of the defendant responsible for unnecessarily obstructing the path of any person who had to do the work the plaintiff was required to do with Mr Mulgrew. The breach constituted a failure to provide a safe place where the plaintiff was required to work; indeed on one view it involved making a safe place unsafe.
It is unnecessary for me to consider whether having placed the pallet of equipment parts in a position which unreasonably obstructed access between where the plaintiff picked up equipment components and the degreasing tank in which he had to place them, the defendant was also or alternatively in breach of duty in not ensuring that there was a forklift available to the plaintiff and to his workmate to enable them to shift that obstruction when they started work. That was not a particular of negligence pleaded. It is unnecessary to do more than observe that the absence of a forklift simply took it out of the power of the plaintiff and his workmate to relocate the pallet to make safe the workplace rendered unsafe by depositing it in such a position as to create a danger to people doing the work required of the plaintiff.
I find that the injury sustained by the plaintiff on 22 July 1991 was caused by the negligence of the defendant.
I will turn now to the difficult task of assessing the damage suffered by the plaintiff as the result of that negligence.
In September 1978 the plaintiff suffered very severe injury at Dampier in Western Australia while he was working as a heavy equipment tyre fitter. On 3 September 1978 he was admitted to Royal Perth Hospital where he received treatment for a severe comminuted pelvic fracture, a ruptured bladder and a ruptured urethra. Thereafter he received treatment at both Royal Perth Hospital and St Ann’s Hospital in Western Australia. Excerpts from medical records from both hospitals were tendered in Ex. 29. It would be unhelpful I think for me to analyze that material in detail. If suffices to say that over a period of several years the plaintiff received extensive and ongoing medical treatment which required regular attendance at hospital for a series of operations. Towards the end of the two year period subsequent to the accident he was requiring periodic attendance for dilation of a constricture of his urethra.

After extensive and protracted medical treatment during which time he received workers’ compensation the plaintiff returned to employment where, for some time on the material, he apparently did the same sort of work as that in which he had been involved when he was injured. Eventually upon receipt of medical certificates etc. he was employed in a slightly different capacity.
It is clear from the medical reports and contemporaneous records that the plaintiff was severely affected emotionally and psychologically and the injuries that he sustained had a quite severe effect on his matrimonial relationship.
However the plaintiff and his wife both strove to make the best of the plaintiff’s disability. The plaintiff continued to work and his wife managed to put up with his reaction to his very serious injury which affected his urinary continence and his ability to engage in satisfactory and painless sexual intercourse with her.
I am satisfied on the material that both the plaintiff and his wife extended themselves to the limit of their perseverance and endurance in coping with the disability that the plaintiff’s 1978 accident inflicted upon him.
The plaintiff’s wife gave evidence and I was unsurprised to observe that her recollection of the problems of domestic life with the plaintiff between the time of his injury in Western Australia in 1978 and the time of his second injury with the defendant in July 1991 and then the subsequent problems with his disability over the last seven years or so as the result of the second injury was so painful and upsetting that she was unable to focus her attention on the details of those domestic problems. I accept the evidence of the plaintiff that the problems were so bad they had a destabilizing effect on family life generally and have led at least to the partial alienation of the affections of his two children. I accept the evidence of the plaintiff as to the debilitating effects that both the 1978 injury and the 1991 injury have had upon him and my observation of the effect upon his wife of attempting to go into detail on these matters is in itself sufficient original evidence to support the evidence of the plaintiff.
The problem is that the plaintiff has been seriously affected psychologically I should think by both accidents. It is my view however based essentially upon the report of Dr Chalk a psychiatrist that by far the more significant and devastating psychological/psychiatric injury was caused to the plaintiff by the 1991 injury. This injury caused the plaintiff to become suicidal and has required a good deal of counselling and drug therapy. I am persuaded on the whole of the evidence that the plaintiff is now moderately well controlled with drugs.
The plaintiff with his wife left Western Australia and came to Queensland in 1988. When he arrived he obtained work as a trades assistant with the defendant. He worked as an employee of the defendant from 1988 until his injury on 20 July 1991. After this injury he received medical treatment from time to time until eventually his condition deteriorated to the extent that he required so much leave from work for medical attention and treatment that he was dismissed by the defendant. Thereafter he received a lump sum disability payout from the Workers’ Compensation Board.
After his arrival in Queensland the plaintiff attended Princess Alexandra Hospital on a number of occasions for what might be described as “maintenance treatment” for his urological problems. This involved treatment of fistulas and dilations of urethral constrictions. Without going into the details it suffices to say I think that this treatment was required regularly. He required leave of absence fairly regularly from the defendant which was perfectly willing to give him this benefit. I assume that he was a hardworking and competent employee whose ability generally led the defendant to overlook or at least put up with the inconvenience that might flow from periodic absences from employment. While attending at Princess Alexandra Hospital for maintenance treatment prior to July 1991 he was treated by a urologist, Dr Winkle.
Subsequent to his injury however he was referred to another urologist, Dr Heathcote who then performed a number of operations upon him to expel urine by catheter because a deterioration of his natural physical capacity prevented him from passing urine in any other way. Understandably, he persevered with efforts to avoid wearing urine bags and so on attached to a supra scrotal catheter for as long as possible. However, eventually he was compelled to adopt this method of expelling urine.
Although it was the plaintiff who called Dr Winkle and the defendant which called Dr Heathcote as I understood their evidence essentially there is little inconsistency between their views.
Stated shortly it was the view of Dr Heathcote who in fact is the urologist who operated upon and treated the plaintiff for problems that he had subsequent to his 1991 injury that the plaintiff had demonstrated a quite remarkable perseverance with the disability inflicted on him by his 1978 injury in continuing to work as he was working albeit with time off periodically to get medical assistance up until the time of his injury in 1991.
Both Dr Heathcote and Dr Winkle took the view that it was impossible to say really just how long the plaintiff may have been able to continue working and living the way he was living prior to his injury in 1991 had it not been for that injury.
Dr Winkle said it was not possible to say how long he may have lasted. Quite apart from the injury in 1991 his condition may have deteriorated to the condition reached subsequent to the 1991 injury at any unpredictable time. Essentially Dr Heathcote took the same view except that he applied this rider. It was his view that quite apart from the injury in 1991 the plaintiff’s medical condition would probably have deteriorated to an extent which would require him to give the medical treatment he has given to the plaintiff within a period of six to twelve months of the 1991 injury. However, Dr Heathcote also expressed the same view as Dr Winkle that it was really impossible to say just how long the plaintiff may have lasted without the operative treatment and without becoming unemployable as he did substantially become within a year or so of the 1991 injury had it not been for that injury.
In his report of 7 January 1992 Dr Heathcote observed -
“My opinion is that Mr Hellmuth had a pre-existing significant urethral abnormality from the trauma suffered in 1979 however there is no doubt that the injury he received on 20 July while at work could certainly have caused the complications as outlined now”.
He added -
“...there is no doubt that the aggravation caused on 20 July has stirred up this man’s pre-existing problem. It is purely speculation of course as to whether the injury of the 20th July caused the current situation all by itself or only aggravated a pre-existing problem. The answer is somewhere in between.”
In a report of 24 July 1992 Dr Heathcote remarked that “the long term outcome” for the plaintiff remained “indeterminate”.
In his report to the Workers’ Compensation Board dated 19 May 1994 - nearly three years after the plaintiff’s 1991 injury - Dr Heathcote referred to that injury being caused by a “glancing blow”. He was not asked about this description when he gave evidence. I must say it seems not to accord with the description of the impact given by the plaintiff in evidence. However that may be, he continued -
“The glancing blow may have aggravated or precipitated the presentation of the fistula but it is my belief that the fistula would not have been caused by this injury in 1991 and is due to the initial injury in 1979.”
On 7 April 1998 Dr Heathcote advised that had the 1991 accident not occurred the plaintiff would “almost certainly” have had “urinary health problems in the normal course”.
Looking at the medical evidence generally therefore it is my view that the plaintiff was seriously disabled at the time of the 1991 injury. Had it not been for that injury, he may have deteriorated to the condition to which he did deteriorate after the 1991 injury at some unpredicatable time in the future. He may have lasted for years without such a deterioration. Doctor Heathcote is of the opinion that he would probably have reached that condition within six to twelve months of the 1991 injury in any event.
The opinion of Dr Heathcote is obviously based upon the fact that he actually treated the plaintiff for his condition subsequent to his 1991 injury and had the opportunity to make a careful examination of the physical characteristics of that injury and the 1978 injury and upon the fact that he has had regard to the history of the 1978 injury and operative treatment for it in Western Australia; his opinion therefore demands very careful consideration. Nevertheless balanced against that expert medical opinion is the fact that the plaintiff indeed had persevered and endured his physical disabilities from 1980 to 1991 during which time he had reared a family and maintained employment. Prior to his injury in July 1991 at the defendant’s premises while undoubtedly he required regular treatment and attention to maintain his capacity nevertheless there is little to suggest from contemporaneous records that any sudden deterioration was imminent.
This seems to me to be a case which requires application of the principle referred to in Malec v. J.C. Hutton Pty Ltd (1990) 169 C.L.R. 638 and in particular at p. 645 of the majority judgment where it is observed:
“Those damages must be reduced however to take account of the chance that factors unconnected with the defendant’s negligence might have brought about the onset of a similar ---- condition.”
The assessment of damages in a case of the present kind is a difficult task to be performed on the basis not merely of expert medical opinion but also upon an evaluation of the personality, motivation and perseverence of the plaintiff and upon an analysis of the way in which he had coped with a very debilitating condition over a period in excess of ten years. I keep in mind the observation of Dr Heathcote confirming the determination and motivation of the plaintiff to overcome the terrible injury inflicted upon him in Dampier in 1978.
Keeping in mind the constraints upon assessment of damages in a case of this sort defined in Malec v. J.C. Hutton (supra) I propose to adopt a more optimistic appraisal of the prospects of the plaintiff in 1991 continuing to live the way he had for the previous ten years than does Dr Heathcote on the basis of his examination of his physical disabilities in the course of his treatment for them. In doing so I give weight to the way in which the plaintiff coped with undoubtedly seriously disabling and embarrassing physical disabilities for ten years. I take into account the motivation which led him to continue to attempt to work with the defendant for a couple of years after his 1991 injury/disability until he was eventually dismissed because of his inability to attend work with sufficient regularity and predictability.
There is no doubt in my view upon the material that the plaintiff’s condition deteriorated significantly after the injury he suffered in July 1991. I give weight to his evidence and that of his wife as to the effects of his pre-1991 accident and post 1991 accident disability upon the amenity of their lifestyle making of course some allowance for a natural and understandable tendency to attribute all the increased loss of amenity to that 1991 injury. While I accept that it may have deteriorated, perhaps to the same extent quite apart from that injury, I am unpersuaded upon the whole of the evidence that it is likely that that would have happened within six to twelve months of July 1991 in any event. He was still employed and earning an income similar to that earned in the 1990/91 tax year in the 1991/92 tax year.
At the time of the 1991 injury the plaintiff was aged 43 years.
Had he worked until say aged 65 he would have retained an earning capacity for another 22 years.
I give weight to the evidence of Dr Heathcote but keeping in mind the opinion of Dr Winkle and in effect the concession by Dr Heathcote that Dr Winkle’s approach is correct and taking into account my assessment of the plaintiff in the context of his employment history since he recovered from his Western Australian injury in about 1980 I propose to assess the plaintiff’s damages on the basis that he would in any event and quite apart from his injury in July 1991 have reached his present condition in about July 1998. That is I will proceed on the basis that quite apart from his accident he would probably have been able to continue to work with the defendant the way he had been doing between 1988 and 1991 for about another seven years. Towards the end of that period however, he would have had more and more time off work until eventually seven years after his injury in July 1991 he would have been unemployable by reason of the significant disability inflicted upon him in the industrial accident in which he was involved at Dampier in Western Australia in September 1978.
In adopting this approach it is clear that it would be inappropriate to simplistically assess lost earning capacity over that period - July 1991 to July 1998 - on the basis that he would during that period have obtained a regular and consistent weekly income. Over the last say two years or so his weekly income would have reduced because perhaps of more frequent sick leave required to “maintain” his physical working capacity.
A consequence of this approach of course is that the plaintiff’s losses attributable to his 1991 accident cease in July 1998. I proceed on the basis that as at that date all physical disability and all losses resulting from it are attributable only to the injury he sustained at Dampier in 1978 and are not related to the injury he suffered in July 1991. It is unnecessary therefore to consider any future losses.
In assessing the plaintiff’s pre-trial loss of income resulting from his injury in July 1991 I propose to assume that for the first five years of the seven year period I have selected the plaintiff would have earned a net tax paid income being the average of that which he earned in the years ended 30 June 1990 and 30 June 1991 during which of course he both earned overtime payments and took leave for the “maintenance treatment” his urological condition required -
30 June 1990 - $21,937.09
30 June 1991 - $23,175.06
The average yearly tax paid income over this two year period is therefore $22,556.07.
I assume his after tax income therefore for five years after 20 July 1991 would be - $22,556.07 x 5 = $112,780.35
For the last two years of this seven year period I will assume that his condition would have deteriorated so that he would have earned income at only half that rate until his health made him totally unemployable. For those two years therefore I assess damages in the sum of $22,556.07.
The total income that he would have earned therefore in that seven year period had it not been for the 1991 accident would have been $112,780.35 plus $22,556.70 which equals $135,337.05. From that sum I deduct income he actually earned from the defendant for the tax years ended 30 June 1992 and 30 June 1993.
I have some difficulty in determining from the content of the taxation material supplied which is Ex. 16 precisely what was the net taxable income which the plaintiff received from the defendant in the year ended 30 June 1992.
Doing the best I can from the only documents available I assume that the gross wage paid to the plaintiff by the defendant in that tax year was $24,850 from which was deducted tax in the sum of $5,414.87 leaving a net income received in the sum of $19,435.13.
As well as that it appears that he recovered from the Workers’ Compensation Board a total of $2,870 from which was deducted for tax the sum of $485.95. The net workers’ compensation received therefore was $2,384.05.
With respect to the year ended 30 June 1993 the plaintiff’s tax returns record that he received an income from the defendant in the sum of $2,246 from which the sum of $1,016.02 tax was deducted leaving a net income received of $1,229.98.
In that same year he received income from workers’ compensation in the sum of $18,009 from which income tax was deducted in the sum of $2,966.75 leaving a net sum of $15,042.25.
For the year ended 30 June 1994 the plaintiff received no income from the defendant. His sole source of income was from the Workers’ Compensation Board which paid him $16,985 the sum of $2,646,80 having been deducted for tax.
I have some difficulty reconciling the “taxation schedule” prepared apparently from information contained in the tax records comprising Ex. 16 with the information appearing in that document. At least that is the position with respect to the net income from employment received by the plaintiff where in the tax forms the income he obtained from the defendant is simply added to the income he obtained from the Workers’ Compensation Board and apparently Group Certificates (not included in the documentation) simply differentiated between those two sources of income.
Doing the best I can then on the material which was really not explained by the plaintiff or by anybody else I proceed on the basis that subsequent to his injury on 20 July 1991 the plaintiff was paid by the defendant in the two succeeding tax years the net sum of $20,665.11.
I deduct this sum therefore from the sum which I have assessed as being the likely income he would have received for seven years subsequent to his 1991 injury had he not suffered it. This leaves a total of $114,671.94 which I assess to be the loss of income suffered by the plaintiff to 20 July 1998 as the result of injuries he received on 20 July 1991.
I turn now to calculate the interest payable on that sum.
I rely upon the payment details of claim from Workcover Queensland which is Ex. 13. That demonstrates that between 22 July 1991 and 6 February 1995 a gross weekly benefit was paid to the plaintiff in the sum of $48,796.50. From this sum however was deducted income tax in the sum of $7,846.65. The plaintiff therefore recovered a net “in-hand” payment of weekly workers’ compensation benefits in the sum of $40,949.85.
This sum must therefore be deducted from the total sum assessed for loss of income in the sum of $114,671.94; this amounts to $73,722.09.
I assess interest at 5% per annum on the sum of $73,722 for a period of 7.3 years. I therefore assess interest payable on income lost to date of trial (which is four months longer than the period of seven years which is the basis of the assessment) as follows -
$73,722 x 5 x 7.3 years = $26,908.53
1 100
With respect to pain, suffering and loss of amenities of life, I have already expressed the view that the plaintiff was very seriously injured in 1978. However he and his wife had struggled to accommodate that injury with all its attendant physical and emotional stresses and it seems had achieved a surprisingly good result. However the consequences to the plaintiff of the injury he received on 20 July 1991 seem to have been disastrous both physically and mentally. I have already referred to the various problems faced and fortunately from the psychiatric/psychological material, it appears that if not overcome, then at least they were brought under control. I assess general damages for pain, suffering and loss of amenities in the sum of $40,000.
Of that sum I apportion $20,000 to pre-trial damage.
I assess interest on that sum of $20,000 at 2% per annum for 7.3 years which amounts to $2,920.
With respect to the Griffith v. Kerkemeyer claim I limit my assessment to services provided between 20 July 1991 and 20 July 1998. I accept the calculations contained in Ex. 30. The rates and times were really not challenged to any extent by the defendant. The plaintiff obviously needed and received a great deal of care and attention from his wife as his urological condition deteriorated subsequent to his injury in July 1991.

The matter is complicated to some extent I think because on the assumptions I have made already, during the years ended 20 July 1997 and 20 July 1998 the plaintiff would in any event have probably needed some assistance and services from time to time from his wife as the result of the injuries he sustained in 1978.
There was a claim for $120,000 for services provided at various times and over various periods since July 1991.
I will proceed on the basis that the claims made are reasonable for the care and attention and services needed by and given to the plaintiff by his wife. The problem I have is in concluding that she would not have given some of those services for the 1978 injury within the first couple of years after July 1991 even had he not then been injured. The medical evidence and the hospital records indicate that he did receive a good deal of hospital treatment and had a good deal of sick leave prior to his 1991 accident. Doing as best I can I will simply discount the sum of $120,000 claimed by one third.
I assess the Griffith v. Kerkemeyer component therefore of the plaintiff’s damages up to 20 July 1998 in the sum of $80,000.
I assess interest on this sum at the rate of 2% per annum for 7.3 years in the sum of $11,680.
Under the heading “special damages” I make the following assessments -
Medicare Refund  $2,700.00
Hospital Expenses  $7,255.00
Medical Expenses  $10,631.56
Other Expenses  $2,333.52
Rehabilitation Expenses  $1,224.66
Fox v. Wood component (Vide Ex. 13)  $7,846.65
The total of “special damages” so assessed therefore amounts to $31,991.39. .
In conclusion then I assess damages as follows -
Pain Suffering and Loss of Amenities  $40,000.00
Interest on $20,000 of that sum  $2,920.00
Loss of Income to 20 July 1998  $114,671.94
Interest on $73,722 of that sum  $26,908.53
Pre trial Griffith v. Kerkemeyer  $80,000.00
Interest thereon  $11,680.00
Special Damages (as defined)  $31,991.39
TOTAL  $308,171.86
Pursuant to s. 276(1) of Workcover Queensland Act 1996 and having regard to Ex. 13, I find that the total amount paid by Workcover by way of compensation for the plaintiff’s injury suffered on 20 July 1991 was $94,124.74.
94 I give judgment for the plaintiff therefore for the sum of $214,044.12

[1998] QSC 267

2 December 1998