Ivan Krstin v Steven Krstin T/As CID Electrical Services & Welana Pty Limited;; Ivan Krstin v CID Electrical Services Pty Ltd & Edge Healthclub Weston Pty Limited
[2012] ACTSC 145
•10 September 2012
IVAN KRSTIN v STEVEN KRSTIN T/AS CID ELECTRICAL SERVICES & WELANA PTY LIMITED;
IVAN KRSTIN v CID ELECTRICAL SERVICES PTY LTD & EDGE HEALTHCLUB WESTON PTY LIMITED
[2012] ACTSC 145 (10 September 2012)
PERSONAL INJURY – workplace injury – injury to pelvis and sacro-iliac joint – liability admitted
PERSONAL INJURY – workplace injury – injury to right foot and ankle – whether first and second defendants were liable – both defendants liable – whether there was contributory negligence by plaintiff – contributory negligence found
DAMAGES – assessment of compensation – apportionment between separate accidents – apportionment dependent on liability of each defendant
Felk Industries Pty Ltd v Mallet [2005] NSWCA 111
A V Jennings Ltd v Thomas [2004] NSWCA 309
Thompson v Woolworths (Q’land) Pty Ltd [2005] HCA 19
Fox v Wood (1981) 35 ALR 607
No. SC 460 of 2006
No. SC 634 of 2009
Judge: Sidis AJ
Supreme Court of the ACT
Date: 10 September 2012
IN THE SUPREME COURT OF THE )
)
AUSTRALIAN CAPITAL TERRITORY )
No. SC 460 of 2006:
BETWEEN:IVAN KRSTIN
Plaintiff
AND:STEVEN KRSTIN T/as CID ELECTRICAL SERVICES
First Defendant
AND:WELANA PTY LIMITED
ACN 002 683 892
Second Defendant
No. SC 634 of 2009:
BETWEEN:IVAN KRSTIN
Plaintiff
AND:CID ELECTRICAL SERVICES PTY LTD
First Defendant
AND:EDGE HEALTHCLUB WESTON PTY LIMITED ACN 128 068 833
Second Defendant
ORDER
Judge: Sidis AJ
Date: 10 September 2012
Place: Canberra
THE COURT ORDERS THAT:
SC 460 of 2006:
Verdict and judgment for the plaintiff against the defendants in proceedings SC 460 of 2006 in the sum of $535,094.20.
The defendants are to pay the plaintiff’s costs of those proceedings.
Any application for a special costs order should be made before Master Harper within seven days.
The exhibits will be retained for 28 days.
SC 634 of 2009:
Verdict and judgment for the plaintiff against the first defendant in proceedings SC 634 of 2009 in the sum of $202,800.29.
Verdict and judgment for the plaintiff against the second defendant in proceedings SC 634 of 2009 in the sum of $135,200.19.
The defendants are to pay the plaintiff’s costs of those proceedings.
Any application for a special costs order should be made before Master Harper within seven days.
The exhibits will be retained for 28 days.
Ivan Krstin suffered injuries in two accidents that occurred in the course of his employment as an apprentice electrician. The court ordered that his claims for compensation arising out of these accidents be heard together so that evidence taken in one claim was also received as evidence in the other.
The first accident occurred on 16 December 2002 and the claim was brought in proceedings SC 460 of 2006 against the plaintiff’s employers, a partnership between Steven Krstin, trading as CID Electrical Services, and Welana Pty Limited. Mr Steven Krstin was the plaintiff’s father. The building site where the accident occurred was at Garran in the ACT. In this accident the plaintiff suffered pelvic fractures when a meter board fell on him. The defendants admitted liability in respect of this accident and the hearing proceeded to an assessment of the plaintiff’s damages.
The second accident occurred on 8 February 2008 at the premises of the Edge Healthclub Weston Pty Limited. The claim was brought in proceedings SC 634 of 2009 against CID Electrical Services Pty Ltd, a company incorporated to take over the business previously operated by the plaintiff’s father, and the Edge Healthclub Weston Pty Limited. On that occasion the plaintiff injured his right foot and ankle when he fell while walking over conduit that had been left outside the rear entry to the health club as he left the worksite at 2.00 am.
The principal issues arising out of this claim were:
·The extent of the negligence, if any, of the first and second defendants;
·The extent of any contributory negligence on the part of the plaintiff;
·The assessment of any compensation to which the plaintiff was entitled and its apportionment to the separate accidents and, in the case of the 2009 proceedings, between the defendants.
Background
The plaintiff was born on 29 March 1980 in Canberra. He finished high school in 1998 and the following year he commenced an electrical engineering diploma at the Canberra Institute of Technology (CIT). He was 32 years old at the time of the hearing.
The plaintiff subsequently commenced work for his father’s business, CID Electrical Services (‘CID’). He initially worked as a labourer. He commenced an apprenticeship with CID in 2002.
Prior to the accident in 2002 the plaintiff was an active skier, soccer player and trail bike rider.
There was no evidence that at the time of the first accident the plaintiff suffered from any significant health issues.
The First Accident
On 16 December 2002, the plaintiff was working at a large development in Garran in the Australian Capital Territory.
The plaintiff, with about seven other persons, carried a switchboard from a truck to a point where it was leaned against a brick wall underneath a balustrade. The plaintiff was directed by Mr Krstin senior, to prepare the mounting bracket to enable the switchboard to be attached to the wall.
The switchboard was placed on an angle to allow the plaintiff to stand behind it to attach the bracket. He estimated that he drilled holes in the switchboard for between 30 and 40 minutes.
The plaintiff recalled that it was a windy day and, while he was drilling into the switchboard, it lifted and fell towards him. He attempted to prevent it from falling on top of him but he could not hold it. He had no time to jump out of the way of the falling switchboard and, after taking evasive action in an attempt to minimise injury, he fell with the switchboard landing on him, covering him from head to toe. As a consequence he was caught in a position where he was half twisted under the board in a trench. He called for help.
A carpenter working nearby heard his cry and came to assist. The carpenter lifted the switchboard to allow the plaintiff to move out from beneath it.
When he tried to sit up he felt immediate pain from his waist. An ambulance was called and the plaintiff was taken to hospital.
The plaintiff’s injuries were recorded to be multiple fractures of his pelvis, a subluxed left sacro-iliac joint, bladder contusion, internal bleeding and cuts to his face, nose, lips and head.
As already noted, the defendants in these proceedings admitted breach of the duty of care and did not press the allegations of contributory negligence.
The Second Accident
On 8 February 2008, the plaintiff was still employed by CID (by then a company) as an apprentice electrician. CID was under contract to perform electrical work for a renovation at the health club. Other contractors were responsible for demolition and renovation work on the health club’s premises.
The plaintiff worked at the site for about four days prior to the accident with his father and two other CID employees. They worked on switches, power points and fuse boxes. Their work included laying conduit for the purposes of the electrical services.
In order to allow the tradespersons to complete their work, equipment used in the health club was moved to a service area at the rear of the health club’s premises. The movement of the equipment was not a function undertaken by CID employees.
CID was directed by the health club to start work at 8.30 pm. This allowed for power to be turned off after the conclusion of the health club’s business hours so that the electrical work could be undertaken. CID’s work was undertaken with light from torches and a spotlight for which power was provided from nearby premises. No other contractor worked on the site during these hours.
The plaintiff and Mr Krstin senior, were instructed by the manager of the health club staff to turn off the health club lights and lock the front door from the inside of the premises when their work for the night was completed. After locking the front door they were directed to exit the premises through the rear door and the service area. The plaintiff did not remember the name of the person providing these instructions.
At 2.00 am on 8 February 2008, the other CID employees left the health club through the front door. The plaintiff locked the front door, turned off the lights and walked from the front door to the rear exit, finding his way with the assistance of the light provided by the green exit signs. He closed and locked the rear door.
The plaintiff said that at that point it was very dark in the service area. A fluorescent light above the rear door was not working or was not turned on. A security light in the rear corner of the service area did not operate. The plaintiff said he was able to see the gym equipment that was stored in the area with the benefit of street lighting. He was also able to see that there was a passageway through the gym equipment from the rear door of the health club to the gate and onto the street. He was not able to see that building materials and rubble had been placed on the surface of the passageway.
In the course of making his way through the passageway the plaintiff fell so that his feet went forward from underneath him. He landed on his backside and his feet impacted forcefully with the ground. His right foot impacted with greater force than the left.
The plaintiff said that before his fall he became aware that he was walking over debris, some of which was gyprock. After his fall, he noted that there was conduit lying in the passageway amongst other discarded items.
The plaintiff felt pain in his right ankle and initially thought that he had sprained it. Mr Krstin senior, concerned at the plaintiff’s delay in completing the lock up procedure at the rear of the premises, came to meet him. The plaintiff told his father that he thought he could drive home. On his way home, the plaintiff’s pain increased. He was living with his sister at the time. He telephoned her and asked her to be ready to take him to the hospital when he arrived home.
The plaintiff’s sister took him to the hospital where he was x-rayed and a minimally displaced fracture of the right calcaneum was diagnosed.
LIABILITY – SECOND ACCIDENT
The plaintiff claimed against the first defendant as his employer and against the second defendant as occupier of the premises on which his accident occurred. Neither defendant disputed the circumstances in which the plaintiff suffered his injury.
The first defendant did not resist the claim of primary liability. It alleged contributory negligence on the part of the plaintiff.
The second defendant argued against any finding of liability on its part on a number of grounds. It also alleged contributory negligence on the part of the plaintiff.
The second defendant claimed that it was not liable for the negligence of the first defendant, its contractor. There was no doubt that this was sound in principle and that, to the extent of the first defendant’s negligence, it could not be held liable. This principle did not, however, relieve the second defendant of liability for its own separate acts of negligence.
The second defendant argued that the onus was on the plaintiff or the first defendant to establish that the first defendant was not responsible for placing the materials that caused the plaintiff to fall in the rear service area. It was pointed out that the first defendant had control of the site for six hours prior to the plaintiff’s accident. It was suggested that an adverse inference could be drawn from the evidence of Mr Piel, a director of the second defendant, of his conversation with Mr Krstin senior, the day after the plaintiff’s accident in the course of which Mr Krstin senior, made no complaint about the presence of the materials in the service area.
The second defendant argued that in such circumstances it was a matter for the first defendant to call evidence that rebutted any inference that it was responsible for placing the waste materials in the service area.
In my view the rebuttal of any such inference was achieved through the evidence of the plaintiff.
The plaintiff said that the works at the health club involved demolition and removal of old gyprock walls to which electrical conduit was attached. The first defendant’s employees removed and replaced conduit in the course of their work. The plaintiff said that old conduit that the first defendant’s employees removed was placed in an internal room where other waste materials were stockpiled. All surplus new materials belonging to the first defendant were taken through the front door to vehicles that were parked at the front of the premises.
The plaintiff consistently denied that the materials he fell on were placed in the service area by any of the first defendant’s employees. He conceded only that it was possible that one of them did so without his knowledge.
Further, the debris in the passageway described by the plaintiff contained materials that were not part of the first defendant’s work. The plaintiff prepared a diagram (exhibit C) on which he depicted the area in which he fell. He described on that diagram debris that included lengths of 20 mm conduit, skirting and beading materials and square ducting.
The second defendant argued that the plaintiff’s reference to the presence of gyprock on the passageway was a matter of recent invention by the plaintiff designed to suggest that the debris came from the internal room in which he placed waste materials. I considered that there was little purpose for the plaintiff to invent this evidence. Even if I disregarded the reference to gyprock, I considered it unlikely that any of the first defendant’s employees removed waste materials such as beading, skirting and ducting, for which, in the absence of evidence to the contrary, it could be inferred that the first defendant was not responsible.
The second defendant did not provide a copy of its contract with the first defendant to support any claim that the first defendant was responsible for the removal of waste or demolition materials generated by its work or by the work of any other contractors.
Mr Piel said that only he dealt with tradesmen and contractors on the second defendant’s behalf. He was therefore the obvious person to state what arrangements were made with them for the removal of waste and demolition materials and which of them were responsible for this task. Mr Piel said nothing of these arrangements.
I was satisfied by the plaintiff’s evidence that the system of dealing with waste materials generated by the first defendant’s work involved placing those materials in a room within the health club premises and not in the service area.
I found that the materials on which the plaintiff fell were not placed in the service area by any person for whom the first defendant was responsible. It followed that these materials were in the service area at the time the first defendant was instructed to exit the premises through that area.
Mr Piel said that the health club manager was responsible for informing the first defendant of the procedure for locking up the premises when its night’s work was completed. The plaintiff’s evidence that the manager said nothing of the presence of waste materials in the passageway of the service area was not challenged.
The second defendant appeared to accept that the presence of these materials created a foreseeable risk. It argued that this risk was patent, not latent, because it would have been readily visible to the plaintiff had he turned on the external light that was positioned over the rear exit or had he taken a torch to light his path.
The proposition was that the accident was the result of error on the part of the plaintiff in turning off the external light, walking into an area in which he could not see where he was placing his feet and failing to go back through the health club to get a torch.
I considered that this conduct on the part of the plaintiff might be regarded as contributing to the damage he suffered but that it did not relieve the second defendant of responsibility.
The second defendant claimed that the plaintiff ought to have expected that there would be waste materials on the site and that the avoidance of those materials was something that he should have guarded against. This suggestion contrasted with the second defendant’s cross-examination of the plaintiff concerning the principles of good site management and the need to ensure that a building site was kept clear of waste materials.
I did not accept that a reasonable person in the second defendant’s position, acting reasonably, would do nothing to guard against the risk presented by the waste materials on the passageway on the basis that it could rely on tradespersons to anticipate the presence of such a risk. This applied when the risk was present during daylight hours and particularly after dark.
The second defendant referred to a number of authorities which, in my view, did not assist it to avoid liability.
The decision in Felk Industries Pty Ltd v Mallet [2005] NSWCA 111 confirmed that an occupier is not responsible for injury to an expert contractor suffered because of the contractor’s negligence in the performance of work within the area of his expertise. Hunt AJA said at [18]:
Where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind. The authorities for that proposition are collected in Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 30 (see also 38).
The decision also confirmed that there must be some condition arising within the occupier’s premises that would be regarded as presenting an unusual or unexpected danger to the contractor. Hunt AJA referred to two authorities in which occupiers were held responsible for injuries arising out of conditions of this nature.
He referred to A V Jennings Ltd v Thomas [2004] NSWCA 309 and said at [21]:
The injury in that case arose in an entirely different context to that which obtains in the present case. The independent contractor in that case was on his way to the place where he was to carry out his specialised work. He was not involved in that specialised work at the time he was attempting to gain access to the premises in accordance with the instructions the occupier had given him.
Hunt J also referred to the High Court’s decision in Thompson v Woolworths (Q’land) Pty Ltd [2005] HCA 19 which he noted was a case where the plaintiff was required to conform to systems and procedures established by the occupier, who maintained overall control of the premises on which the plaintiff was injured.
In the case before me, the means of locking and exiting the health club premises was that directed by the second defendant. This was not something over which the plaintiff or the first defendant had control. I did not accept that an electrical contractor might expect as a matter of course to encounter debris in the path he was directed to take by the occupier.
I concluded that there was negligence on the part of the second defendant that, regardless of any separate acts of neglect on the part of the plaintiff or the first defendant, contributed to what the second defendant’s counsel described as “an accident waiting to happen”.
I therefore determined liability as follows.
First Defendant
The first defendant was clearly responsible as the plaintiff’s employer for failing to check the condition of the service area and its lighting conditions before directing the plaintiff to complete the lockup procedure prescribed by the second defendant’s manager. The first defendant also failed to ensure that, having directed him to turn off the lights, the plaintiff was provided with a torch, a measure that might well have avoided the injury suffered by the plaintiff.
The onus on employers to safeguard their employees from injury at work is heavy. In despatching the plaintiff into darkness without taking appropriate precautions, I assessed the first defendant’s contribution to his injury at 60%.
Second Defendant
I determined that the second defendant was negligent in permitting waste materials to be placed in the service area; directing the plaintiff to exit through that area when the access path was obstructed by waste materials; storing gym equipment in the area so that it obstructed the illumination provided by street lighting; and failing to ensure that the security light operated on detection of movement by the plaintiff.
I assessed the second defendant’s contribution to the plaintiff’s injury at 40%.
The Plaintiff
The second defendant argued that the plaintiff was negligent in proceeding along the access path when he was unable to see the surface of the ground on which he walked. The plaintiff’s response was that, when last in the service area two days before his accident, it was clear of gym equipment and waste materials.
I considered that there was no negligence on his part in proceeding when he was able to see that there was an access path through the gym equipment that he expected to be free of debris.
I accepted that, having started to walk across the waste materials, the plaintiff had no choice but to continue on this path.
I agreed that, had he been carrying a torch, the accident might have been avoided or his injury rendered less severe. The plaintiff, at the time of his accident, had virtually completed his training and I considered that, although still an apprentice, he was sufficiently experienced to appreciate the need to provide some means of illumination of the service area. I found the plaintiff negligent in this respect.
I assessed the plaintiff’s contributory negligence at 10%.
DAMAGES
The 2002 Accident
The plaintiff was hospitalised in Canberra Hospital after the 2002 accident for four weeks. For three weeks he was immobilised with a leather harness placed around his pelvis. He required assistance with all movement and total personal care. He spent a further week, with the assistance of a physiotherapist, regaining some mobility.
He was discharged in a wheelchair and moved about using crutches for about four weeks before graduating to a walking stick. He was unable to walk without assistance until June 2003. He received ongoing physiotherapy.
The plaintiff returned to driving after two and a half months. He said he continued to suffer from discomfort when driving long distances. He stopped after two hours to take breaks to relieve this discomfort. He returned to skiing with some discomfort. He said that he was more cautious and he did not attempt the advanced level ski runs.
The plaintiff initially stated that he had not returned to trail bike riding. He subsequently agreed that he rode his trail bike in a limited fashion after the first accident and that he still owned it. He returned to playing soccer on a social level. He agreed that he returned to running after the first accident and that, at the suggestion of his specialist, he undertook upper body exercises at a gym. He also swam. He said that prior to the second accident he was able to walk for almost the whole of a day provided no uneven ground was involved.
The plaintiff said he had not been pain-free since this accident. His pain was increased by activity, twisting movements and bending. He complained of pain in his left hip joint and, more recently, pain in the left side of his groin, for which he proposed to consult his treating surgeon. He suffered cramping that disturbed his sleep.
The plaintiff said he continued to take Panadeine Forte occasionally to deal with the pain generated by the 2002 accident.
The 2008 Accident
The plaintiff was discharged from the Canberra Hospital with his right foot encased in plaster. He remained in the cast for 14 to 15 weeks and in constant pain. When the cast was removed he suffered pain when walking and needed to rely on medication.
He consulted Dr Miniter who undertook three surgical procedures, the last in February 2010. The plaintiff said this improved his pain but it continued and, again, he had not been pain-free in his right foot since the injury.
The plaintiff has not returned to skiing. He said he planned to do so, in a more cautious manner. He was unable to ride his trail bike because he could not kick-start it. He had not returned to soccer because he could not run on his right ankle.
The plaintiff said his pain was worse in cold weather and with increased activity. The pain was worse at night. He took Panadeine Forte and, occasionally, Endone for pain relief.
Medical Evidence
The medical evidence entirely supported the plaintiff’s claims of injury and ongoing pain and disability.
Dr Miniter described the damage to the plaintiff’s right ankle as a major injury. His records confirmed that surgical procedures were undertaken on the plaintiff’s right ankle in February 2009, October 2009 and February 2010 with gradual improvement but not complete resolution of the plaintiff’s symptoms.
Of the medical experts, only Dr Smith questioned the mechanism of injury to the plaintiff’s right foot. However, Dr Smith’s concerns were not pressed by the defendants and I have therefore disregarded them.
The principal dispute between the medical experts was the extent to which the plaintiff’s injuries continued to disable him and the extent to which his condition was likely to deteriorate in the future. This issue had particular relevance to the plaintiff’s income earning capacity.
Dr Talbot and Dr Couch took into account the plaintiff’s complaints of constant pain. In his report of 25 June 2012, Dr Couch reported the plaintiff’s complaint of continued constant left sacro-iliac joint pain and ankle pain, increasing during the day with a new symptom of pain in the right groin. He noted that the plaintiff told him that he was working 40 to 50 hours a week. Sometimes he went home early, most often because of ankle pain. Dr Couch said the plaintiff should not work for more than 40 hours a week. He agreed with Dr Stubbs that the main area of uncertainty concerning the plaintiff’s future earning capacity related to his right foot and ankle. He maintained, however, that the plaintiff would also suffer increased symptoms from his pelvic fractures.
Dr Kelman and Dr Burke addressed the pelvic injuries. Both noted the plaintiff’s symptoms in the sacro-iliac joint. Dr Burke agreed that these symptoms were likely to increase with degenerative change. He said this was unlikely to result in the development of pronounced disability. Both reported that the plaintiff’s working capacity was affected by restrictions on bending and lifting. Dr Burke added that the plaintiff’s symptoms would be increased by prolonged standing. They did not accept that these restrictions would affect his earning capacity.
Dr Stubbs in October 2010 reported that the plaintiff suffered minimal ongoing consequences as a result of his injuries and that he would suffer minimal long term consequences.
In June 2012 Dr Stubbs accepted that the plaintiff’s complaints were reasonable and typical of the injuries and their subsequent treatment. He suggested that the plaintiff’s ongoing sacro-iliac joint pain was the consequence of taking a bone graft from the hip for the purposes of his ankle fusion. He said the plaintiff was fit for work although he would have a lifetime problem with uneven surfaces. He would also have problems bushwalking, walking on uneven ground, working in roof spaces and running.
It was clear that Dr Stubbs’ diagnosis concerning the source of the sacro-iliac pain was incorrect. The records showed that the plaintiff complained of pain in this area consistently from the time of the 2002 accident and well before the procedure requiring the bone graft was performed.
ASSESSMENT
General Damages
The 2002 Accident
None of the medical experts suggested that the plaintiff was not genuine in his complaints. Nor was this suggested to the plaintiff in cross-examination. I proceeded therefore to assess his claims on the basis that the plaintiff endured a lengthy period of treatment and rehabilitation after the 2002 accident and that between 2002 and 2008 he suffered from constant pain at a moderate level as a result of the injuries to his pelvis and left sacro-iliac joint.
I accepted that the pain in the sacro-iliac joint continued to the date of the hearing and that the plaintiff faced the real prospect of ongoing degeneration in the joint with a moderate prospect that corrective surgery will be required. The plaintiff was still a young man who was facing a significant period of his life with pain and discomfort in his left hip.
There was no medical evidence that dealt with the recent development of groin pain and I have therefore not taken this complaint into account.
I assessed the plaintiff’s general damages in respect of the injury suffered on 16 December 2002 at $100,000.00. I allocated one half of this sum to past pain and suffering and allowed interest in the sum of $9,500.00.
The 2008 Accident
From February 2008 the plaintiff suffered, in addition, the pain and discomfort of the major injury to his right foot and ankle. His discomfort was decreased as a result of the three surgical procedures that were necessary to repair the damage caused by the accident.
The medical experts accepted that this condition will not improve although it was unlikely to deteriorate. This further injury deprived the plaintiff of activities that he resumed after recovering from his pelvic injuries. He no longer rode his trail bike or played soccer. He cannot run or go bushwalking. His return to skiing will be limited.
Again, the plaintiff faced a lifetime of pain in his right ankle and foot.
I assessed his damages as a result of this injury at $100,000.00, allocating 60% to past pain and suffering. I allowed $4,200.00 for interest.
Loss of Income-Earning Capacity
Assessment of the plaintiff’s income loss presented some difficulties. The issues related to the extent to which the plaintiff’s delay in completing his apprenticeship could be attributed to one or both of the accidents.
The plaintiff commenced his electrical apprenticeship in 2002. He said he planned to complete it in 2005. His apprenticeship had not been completed by the time of the hearing. The plaintiff said he suffered a period of depression in 2004 from which he recovered. This illness coupled with the occurrence of the two accidents had caused him to lose motivation.
The plaintiff said following this delay he would have completed his apprenticeship within six months of the 2008 accident. He subsequently completed the theory component of the apprenticeship and at the time of the hearing all that remained was that he complete a six-week course of study followed by a two-day examination. He intended to do this in October 2012 with prospects that he would then become a qualified electrician.
The plaintiff was paid $25.00 to $30.00 per hour as a final year apprentice. When he qualifies, his hourly rate will increase to $45.00. Overtime was paid at one and a half times that rate. He said he proposed to continue to work as an electrician in a semi-supervisory role, avoiding work in confined spaces and heavy lifting. He agreed that the first defendant was mostly engaged in commercial work but said this did not necessarily result in less work in confined spaces.
I determined that it was appropriate to allow the plaintiff a period of four years delay in completing his apprenticeship as a result of his injuries, attributing two years to each accident.
Aside for the setback in completing his apprenticeship, the plaintiff ultimately returned to full-time standard hours after both accidents. At the time of the 2008 accident he was still not taking up the opportunity to undertake all of the overtime that was available to him. He was, however, progressing to the point of minimal restrictions on his working capacity.
Dr Kelman, Dr Burke and Dr Stubbs all referred to restrictions affecting the plaintiff’s capacity to work as an electrician but, nevertheless, they said his income-earning capacity was not affected. None of these doctors referred to the plaintiff’s capacity to undertake overtime that, as noted by Dr Couch, might be expected to be of substantial financial benefit to a tradesman of the plaintiff’s age.
A further complication arose from the plaintiff’s position as a director and shareholder of the first defendant and his expressed intention to take over the operation of the company. The defendants argued that this placed the plaintiff in a position where in future he would be sheltered from the vagaries of the open market.
The plaintiff said he shared the work of management, administration and supervision with Mr Krstin senior. They were the only current employees of the first defendant. Other electricians were engaged as contractors or casual staff as work demanded.
I considered that there was some limited logic in this argument, although the foreshadowed reduction in the plaintiff’s capacity to work on the tools was, in my opinion, likely to reduce the profitability of the first defendant and ultimately the financial returns to the plaintiff.
In assessing the plaintiff’s past income loss as a result of the first accident, I noted that the plaintiff returned to work on reduced hours in August 2003, approximately eight months after the accident. He initially performed mainly clerical work before returning to his pre-injury work in October 2003. He started with four to five hours per day and gradually increased his hours. He said he had not returned to full hours by the time of the second accident, performing small amounts of overtime only when work pressures made it necessary.
He was, however, working as an electrician and able to work in confined spaces.
The result of these deliberations was that in respect of past income losses arising from the 2002 accident I allowed:
·The plaintiff’s full loss from 16 December 2002 to 30 August 2003 in the sum of $17,000.00.
·A buffer to take account of reduced income for a period of two years occasioned by the delay in completing his apprenticeship and the loss of overtime payments in the sum of $110,000.00, inclusive of interest.
·Superannuation in the sum of $11,430.00.
The plaintiff returned to work within three to four weeks of the second accident. He performed mostly office work. He was able to increase his working hours after the second surgical procedure and after the third he returned to full hours. He said he performed overtime when it was necessary although it aggravated his condition and at times his pain was such that he was required to leave work early.
He said the aggravation of his condition occurred more in winter than in summer and that it sometimes affected his pelvis and at other times his ankle.
The plaintiff said that at the time of the hearing he was working 38 hours per week. He said overtime was always available but he tried to avoid it. He was still performing general electrical work. He was not able to work in confined spaces or undertake heavy lifting. He could not use ladders or lift heavy cabling.
In respect of past income losses arising from the 2008 accident I allowed:
·A buffer to take account of reduced income for a period of two years occasioned by the delay in completing his apprenticeship and the loss of overtime payments in the sum of $110,000.00, inclusive of interest.
·Superannuation in the sum of $11,430.00.
For the future the plaintiff claimed a buffer of $200.00 per week to the age of 45 years on the basis of lost overtime in the sum of $130,000.00 and a buffer of $500 per week from the age of 45 to 65 in the sum of $335,000.00 to compensate for his decreasing capacity.
The evidence established that the anticipated decrease in the plaintiff’s income was mostly attributable to the degenerative processes affecting the left sacro-iliac joint.
I considered that the claim overstated the plaintiff’s prospective income loss. I considered $300,000.00, inclusive of superannuation, to be an adequate buffer, allocating 30% of the loss to the plaintiff’s ankle injury and the balance to the pelvic and left hip injury.
The Fox v Wood (1981) 35 ALR 607 component in respect of the ankle injury was allowed in the sum of $8,867.00.
Domestic Care
I accepted that the plaintiff required a considerable degree of assistance for a period of several months following the 2002 accident, immediately after the 2008 accident and after the surgical procedures that followed that accident.
The plaintiff claimed $10,000.00 in respect of each accident. Again I considered this claim to be overstated. Allowing a period of six months in respect of each accident at the rate of eight hours per week, I assessed each claim at $5,200.00.
The plaintiff accepted that he required no assistance with domestic work. He said he had difficulty mowing his lawn because of hip and low back pain. I added to this modest requirement the prospect that the plaintiff’s needs would increase as the degenerative condition of his sacro-iliac joint progressed and allowed the sum of $25,000.00 for the future, all attributable to the 2002 accident.
Out of pocket expenses
Past out of pocket expenses incurred in the treatment of the 2002 injury were agreed in the sum of $31,964.20.
Past out of pocket expenses incurred in the treatment of the 2008 injury were agreed in the sum of $45,859.09.
In the absence of evidence to support it, I rejected the claim for future treatment of the plaintiff’s foot and ankle.
I was satisfied that there were prospects that the plaintiff will need treatment in the future to deal with his sacro-iliac symptoms and the moderate prospect that surgery will be necessary. I considered the sum of $15,000.00 to be appropriate for this purpose.
The plaintiff’s claim in proceedings SC 460 of 2006 is assessed as follows:
General damages $100,000.00
Interest $9,500.00
Past income loss $127,000.00
Superannuation $11,430.00
Future income loss $210,000.00
Past domestic care $5,200.00
Future domestic care $25,000.00
Past out of pocket expenses $31,964.20
Future out of pocket expenses $15,000.00
$535,094.20
The plaintiff’s claim in proceedings SC 634 of 2009 is assessed as follows:
General damages $100,000.00
Interest $4,200.00
Past income loss $110,000.00
Superannuation $11,430.00
Future income loss $90,000.00
Fox v Wood $8,867.00
Past domestic care $5,200.00
Past out of pocket expenses $45,859.09
$375,556.09
Reduced by 10% $37,555.61$338,000.48
ORDERS
SC 460 of 2006:
Verdict and judgment for the plaintiff against the defendants in proceedings SC 460 of 2006 in the sum of $535,094.20.
The defendants are to pay the plaintiff’s costs of those proceedings.
Any application for a special costs order should be made before Master Harper within seven days.
The exhibits will be retained for 28 days.
SC 634 of 2009:
Verdict and judgment for the plaintiff against the first defendant in proceedings SC 634 of 2009 in the sum of $202,800.29.
Verdict and judgment for the plaintiff against the second defendant in proceedings SC 634 of 2009 in the sum of $135,200.19.
The defendants are to pay the plaintiff’s costs of those proceedings.
Any application for a special costs order should be made before Master Harper within seven days.
The exhibits will be retained for 28 days.
My reasons are published.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.
Associate:
Date: 10 September 2012
Counsel for the Plaintiff: Mr D P Shillington
Solicitor for the Plaintiff: Baker Deane and Nutt
Counsel for the 1st & 2nd Defendants (SC 460/2006): Mr A R Muller
Solicitor for the 1st & 2nd Defendants (SC 460/2006): Moray & Agnew
Counsel for the 1st Defendant (SC 634/2009): Mr A R Muller
Counsel for the 2nd Defendant (SC 634/2009): Mr J Sleight
Solicitor for the 1st Defendant (SC 634/2009): Moray & Agnew
Solicitor for the 2nd Defendant (SC 634/2009): Hunt & Hunt Lawyers by their
Canberra agents, Goodman Law
Date of hearing: 25, 26, 27 July 2012
Date of judgment: 10 September 2012
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