Hovelroud v Harridan Pty Ltd
[1996] QSC 50
•29 March 1996
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No. 32 of 1995
Before the Hon. Justice Williams
[Hovelroud v Harridan Pty Ltd]
BETWEEN:
SCOTT LAURENCE HOVELROUD
Plaintiff
AND:
HARRIDAN PTY. LTD
DefendantJUDGMENT - GN WILLIAMS J
Judgment delivered 29/03/1996
CATCHWORDS DAMAGES - knee injury - ruptured ligaments - 35% permanent partial disability - boilermaker - age 32 at trial - total assessment $388,630.53.
Counsel:FG Forde for plaintiff
Hoare for defendant
Solicitors:JB Stevenson & Co for plaintiff
Thynne & Macartney for defendant
Hearing Dates: 25 and 26 March 1996
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No. 32 of 1995
Before the Hon. Justice Williams
[Hovelroud v Harridan Pty Ltd]
BETWEEN:
SCOTT LAURENCE HOVELROUD
Plaintiff
AND:
HARRIDAN PTY. LTD
DefendantJUDGMENT - GN WILLIAMS J
Judgment delivered 29/03/1996
The plaintiff, an employee of the defendant, received personal injuries when two cranes collided at his place of employment on 10 December 1990. The defendant admitted liability for the incident, and the only issue for my determination was quantum.
As a consequence of the defendant's negligence the plaintiff sustained a major ligamentous injury to his right knee; there was a rupture of the anterior cruciate ligament and also of the medial collateral ligament. On 17 December 1990 his knee was surgically repaired; a mid-third patellar tendon graft was taken and that was used to replace the ruptured anterior cruciate ligament. It was also noted that the plaintiff had sustained a compression fracture of the lateral femoral condyle. There was also a tear in the lateral meniscus and the unstable part was removed.
There was a great deal of pain and discomfort associated with the operation. That is well documented in the medical reports and in the plaintiff's oral evidence. It was in no way challenged, and it is not necessary to set out detailed particulars thereof in these reasons. The plaintiff was discharged from hospital on 21 December 1990 and shortly thereafter commenced a lengthy rehabilitation program. In June-July 1991 he underwent a work assessment program and shortly thereafter began work with the defendant. He was engaged in light duties and was given freedom to work at his own pace; he was able to have a break when he needed to. It appears that the plaintiff was coping satisfactorily with work and at that stage he clearly demonstrated a significant earning capacity.
Unfortunately in December 1991 he twisted his knee whilst getting out of a motor vehicle. He immediately felt pain and shortly thereafter noticed swelling in his knee. From time to time thereafter the plaintiff experienced symptoms of instability, and it was then diagnosed that the anterior cruciate ligament graft had ruptured. It was decided to carry out a further surgical procedure in the form of repeat grafting for his anterior cruciate ligament. That was carried out on 6 May 1992 when a patellar tendon graft was taken from the left knee.
The post-operative pain and discomfort was similar to that experienced after the first operation. It was again necessary for the plaintiff to go through a rehabilitation process.
Whether as a result of the collapse of a walking frame whilst he was in hospital or because of stress placed on the knee by activity the graft became attenuated causing the knee to again become unstable. A third surgical reconstruction of the right knee was performed on 25 August 1993. To quote from a medical report:-"The previous incisions were utilised, the hamstring tendons were harvested, semi-tendonosis and gracilis were utilised, drill holes were made in the tibia and the femur at the isometric points and the graft was threaded through from the tibia through the knee and through the lateral femoral condyle. It was then brought down under the posterior intra-muscular septum and down the lateral side of the joint line in the same direction and the Ellison graft and sutured to the upper tibia. The previous Ellison procedure was revised and retensioned and placed onto the postero lateral intra-muscular septum as well."
After that operation the plaintiff was in a patellar cast for a period of 10 days and he was then placed in a hinged knee brace with a minimal range of flection. After about four weeks the locks on the brace were released and he was allowed free flection. A rehabilitation program was then commenced. Again the plaintiff had to face up to a six months rehabilitation period.
Dr. McMeniman, an orthopaedic surgeon, concluded in Exhibit 27 that "whilst he (the plaintiff) does have some clinical sign of increased laxity, his overall condition is that his knee is clinically stable. His present symptoms appear to relate more to pain rather than to instability." He went on to express the opinion that the plaintiff was "unlikely to ever return to his previous occupation as a boilermaker or to any other similar occupation which involves a large amount of physical exertion and stress". He was also of the view that "it is highly likely that he (the plaintiff) will develop post-traumatic degenerative arthritis at some time in the not too distant future". In all of those circumstances the doctor assessed permanent partial disability as being in the order of a loss of 35-40% of the normal function of the right lower limb.
Another orthopaedic surgeon, Dr. Nutting, came to a similar conclusion (Exhibit 15). He was of the opinion that the plaintiff would not be able to return to heavy boilermaking. In his view the plaintiff had a permanent disability of the order of 35% of the function of the right lower limb. He considered that it was likely that in the next 10-20 years the plaintiff would require a total joint arthroplasty. He provided costings for that procedure in a further report (Exhibit 16).
The plaintiff was born on 25 October 1963, making him 27 at the date of the accident and now aged 32. He was educated to Grade 10, left school at aged 15, and thereafter completed a boilermaking apprenticeship. He worked as a boilermaker regularly between acquiring his trade qualifications and the date of the accident. Prior to the accident his hobbies included squash, ten pin bowling, and fishing either in the surf or from a boat. He also had developed an extensive hobby in breeding and selling exotic fish. He made the fish tanks and stands himself and had at one stage some 90 tanks of fish at his home.
The main thrust of submissions on behalf of the plaintiff was that he had not worked since December 1991 and was commercially unemployable. On the whole of the evidence I hold that the plaintiff has not discharged the onus of proving that he is commercially unemployable. He walked around the Court room without any noticeable limp, and his generally appearance is that of a strong, fit young man. The defence tendered a video which showed the plaintiff over a period of time doing work without any obvious discomfort. He was able to bend, lift reasonably heavy objects, and negotiate apparently uneven ground without any obvious discomfort. True it is that he could not undertake on a regular basis the heavy boilermaking work which constituted his pre-accident employment. But that is far from saying that his earning capacity has been destroyed.
The plaintiff has been, in my view, less than frank with the Court in relation to the issue of economic loss. His original statement of loss and damage did not disclose that he had been carrying on any income producing activity since the end of 1991. Shortly before trial he became aware of the fact that the defendant had been making investigations into his business activities and in consequence a supplementary statement of loss and damage was delivered. But cross-examination revealed that even that was very deficient.
I found the plaintiff's evidence as to his dealings with his aquarium fish and the fish tanks and stands very unsatisfactory. He seems to have sold a lot of both aquarium fish and fish tanks and stands. Yet he still has, it would appear, an ample supply of breeding stock, and he has been recently video-taped spray painting quite a large stand for fish tanks. In my view he was unable to give satisfactory explanation for significant deposits into his Metway Bank account, and it was only as a result of cross-examination that it came to light that he had at least one other bank account.
In addition he has outlaid something in excess of $50,000.00 on acquiring ostriches for breeding purposes. He clearly has been carrying on a business in that regard. Yet none of that was initially disclosed. Whether the business be operating at a profit or loss is beside the point; he has still been conducting a business which he ought to have disclosed at an earlier point of time.
The plaintiff is clearly able to carry out many tasks usually classed as part of a boilermakers trade. He is able to weld provided the work does not involve heavy lifting. He has continued to claim depreciation on his welding equipment and I have no doubt that he would be able to put it to income earning use if in fact he has not been so using it in the past.
The plaintiff sought to prove his inability to obtain work by tendering a list of companies and people he has approached for work (Exhibit 9). His evidence in relation to that was very scanty and the document itself does not carry the matter very far. Clearly he has a capacity to work in, if not run, an aquarium pet shop type business. He also has all the knowledge and skills required to obtain work in a hardware store. I do not accept that he has genuinely sought employment with all of the places mentioned in Exhibit 9. He frankly conceded that he made known his physical disability and indicated that that was the reason why many of the prospective employers, particularly in the boilermaking trade, turned him down. That may well, at least in part, be due to the fact that he overplayed his disability.
I have no doubt that the plaintiff has a very significant residual earning capacity and will, given proper motivation, use that capacity to earn significant income during the rest of his working life. But nevertheless he must be allowed something because he can no longer work in his chosen trade where there was a real possibility of earning overtime.
In assessing damages for pain and suffering and loss of amenities I have taken into account the three major operations which the plaintiff underwent, the periods of pain and suffering and rehabilitation thereafter, and the possibility of his undergoing further surgery in the future involving a replacement of the knee joint. I also bear in mind that he has a reasonable range of movement in his leg at the present time and that the joint itself is fairly stable. His main disability is pain, and that may well increase with future degeneration. In all of the circumstances I assess damages for pain and suffering and loss of amenities in the sum of $55,000.00.
Because of the pain and suffering associated with the three operations I am of the view that $30,000.00 thereof should be apportioned to past pain and suffering. The plaintiff has received a permanent partial disability pay out from the Workers' Compensation Board in the sum of $21,804.00 and that must be brought into account before assessing interest on past pain and suffering. I allow interest in the sum of $860.00.
The evidence indicates that the plaintiff's income fluctuated during the 12 months prior to the injury, and a finding of his net weekly loss must be made bearing such factors in mind. Having regard to all of the evidence it is reasonable to adopt $500.00 net per week as his average earnings as at the date of the accident.
The plaintiff was on periodic Workers' Compensation from December 1990 until 15 December 1994, a period of 194 weeks. On the evidence he was effectively unemployable during that period except for 6 months in 1991. During that period he would have earned $97,000.00 net. In fact he received $15,102.00 whilst working for the defendant in 1991; that must be deducted, leaving a figure of $81,898.00.
To that must be added a figure for his economic loss from December 1994 to date of trial, a period of 82 weeks. By 1995 the plaintiff's condition had substantially stabilised to that which now prevails. By then he had a residual earning capacity which he utilised in carrying out many activities such as breeding fish, breeding ostriches, and fabricating fish tanks and stands. But he was not capable of earning in his pre-accident position because of the heavy work it entailed. From January 1995 to date of trial I assess his loss of earning capacity to be of the order of $200 net per week. That gives a figure of $16,400.00.
I therefore allow a total of $98,298.00 for economic loss to date of trial.
When calculating interest on past economic loss Workers' Compensation payments totalling $41,498.00 and Department of Social Security payments totalling $14,774.00 must be brought into account. That means that $56,272.00 should be deducted from the figure for past economic loss before calculating interest.
Interest is allowed on $42,026.00 at 6% per annum over a period of 5.25 years, making a total of $13,238.00.
The Workers' Compensation Board paid special damages totalling $18,121.92, and in addition the plaintiff paid a further $1,184.00 (Exhibit 13). I therefore allow special damages in the total sum of $19,305.92.
Interest should be allowed on the special damages paid for by the plaintiff at the rate of 6% per annum for 5.25 years. I allow $375.00.
The Fox v Wood factor was admitted in the sum of $8,053.61.
During the trial damages under the Griffiths v Kerkemeyer principle, including interest, were agreed in the sum of $4,500.00.
I turn now to future economic loss. The plaintiff's present situation is likely to continue for some time; during that period it would be appropriate to measure his economic loss as being of the order of $200 per week. Once he establishes himself in a business, or finds gainful employment utilising his knowledge and skills, he is likely to earn closer to the $500 per week he was earning prior to the accident. But even in those circumstances there would be some continuing economic loss. His future earning capacity could be adversely affected by the onset of symptoms as his knee degenerates to the stage where joint replacement is required. Depending on his employment at that time the loss could become even greater than $200 net per week. There would then be significant economic loss for a period associated with the knee replacement surgery. The position following joint replacement surgery is uncertain. Even if successful the consequences could be quite severe so far as his ability to earn income in certain fields. The plaintiff has a working life of 25 years (after discounting) and it may well be that towards the end of that period his earning capacity will be grossly affected. Much will depend upon the nature of the work he was then doing. For example, if he was running a pet shop and aquarium business the knee surgery and its consequences may have little financial impact; but if the employment put his legs under pressure the consequences may well be greater. I can only adopt a figure which will average out over the whole of period. Bearing in mind that there will be a significant period after knee replacement surgery when he would be totally unemployable I have concluded that I should calculate future economic loss on the basis of an average loss of $250 per week over 25 years. I allow $186,000 for future economic loss.
I have allowed in the figures for pain and suffering and future economic loss a component for loss under those heads with respect to the probable future knee surgery. But I have not included anything for the actual costs of the procedure. Dr Nutting indicated that the present cost would be in the broad range of $12,000 to $14,000. As expenditure under that head will be deferred for probably at least 10 years, the present cost must be significantly discounted. In addition the plaintiff gave some vague, general evidence to the effect that he would continue to need painkillers at least for the foreseeable future. The evidence indicates that the use of non-prescription painkillers is intermittent, but it certainly would involve the plaintiff in some expense.
Given all that has been said in relation to the operation and the need for painkillers in the future I can do no more than make a reasonable estimation of the loss the plaintiff will incur in consequence. I allow $3,000 under this head.
In his final address counsel for the plaintiff also claimed approximately $40,000 as future economic loss because the plaintiff was not able to carry on his additional home-based business of Hovelroud Securities. That was the name given to the home-operated business wherein the plaintiff, in addition to his regular employment, made and sold security screens and the like. During his evidence the plaintiff stated that one of the main reasons why that business had not been carried on was that the availability of a stronger, but lighter, metal product for security screens meant that there was a much lower demand for the heavier type screens which he fabricated. He did indicate that he would be much slower in carrying out the fabricating of such screens, but he did not go so far as to say that he could not do the work. In the circumstances the evidence indicates that the real reason for the failure to earn income from such a business has been the change in the type of metal used rather than a loss derived from the plaintiff's injuries. In the circumstances I am not satisfied that such a loss has been proved by the evidence. In so far as there is a demand for fittings of the type previously fabricated by the plaintiff I am satisfied that he is presently capable of doing the work required. He has not therefore suffered any loss in this regard.
My assessment of damages can therefore be summarised as follows:-
Pain and suffering and loss of amenities $ 55,000.00
Interest thereon $ 860.00
Past economic loss $ 98,298.00
Interest thereon $ 13,238.00
Special damages $ 19,305.92
Interest thereon $ 375.00
Fox v. Wood factor $ 8,053.61
Griffiths v. Kerkemeyer damages $ 4,500.00
Future economic loss $186,000.00
Cost of future medical treatment andpharmaceuticals $ 3,000.00
TOTAL:$388,630.53
From that has to be deducted the total of $89,477.70 repayable to the Workers' Compensation Board.
The plaintiff is therefore entitled to judgment for $299,152.83.
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