Kelly v CSR Limited
[1996] QSC 138
•16 August 1996
IN THE SUPREME COURT
OF QUEENSLAND
No 29 of 1994
Brisbane
Before the Hon. Justice White
[Kelly v. CSR Limited]
BETWEEN:
PETER KELLY
Plaintiff
AND:
CSR LIMITED
(ACN NO 000 001 276)
DefendantREASONS FOR JUDGMENT - WHITE J
Judgment delivered 16/08/1996
CATCHWORDS: EMPLOYER'S LIABILITY - quantum - 15% loss of shoulder/arm use - credit of plaintiff - whether would utilise trade qualifications.
Counsel:Mr RSMG King for the plaintiff
Mr RN Alldridge for the defendant
Solicitors:Chris Pike & Associates for the plaintiff
Corrs Chambers Westgarth for the defendant
Hearing Dates: 19, 20 March 1996
IN THE SUPREME COURT
OF QUEENSLAND
No 29 of 1994
[Kelly v. CSR Limited]
BETWEEN:
PETER KELLY
Plaintiff
AND:
CSR LIMITED
(ACN NO 000 001 276)
DefendantREASONS FOR JUDGMENT - WHITE J
Judgment delivered 16/08/1996
The plaintiff was injured on 11 June 1991 in the course of his employment with the defendant. Liability, including contributory negligence, and quantum are in issue. The defendant made little attempt to contest liability and counsel conceded that the plaintiff was being put to proof. Quantum was contested on the basis that the plaintiff was limited in his choice of work post-injury because of pre-injury physical deficits that he had from earlier non-compensible injuries, that he had exaggerated his symptoms and could do more strenuous work and engage in more vigorous recreation than he had admitted, and that he would not have returned to better remunerated work as a printer in any event.
The Injury
The plaintiff was born on 5 May 1961. He is a married man with one son aged about 13 years. He was 30 years of age when he sustained the injuries the subject of this action. He had commenced work as a general labourer with the defendant at its Windsor premises on about 17 April 1991. He commenced work in the patch and repair section where damaged concrete building panels were repaired. This was done by filling any holes with aggregate and smoothing and polishing them so that they looked new. The grinding work to smooth and polish the panels was carried out in a number of places in the factory but the one in which the plaintiff worked was in a pit housed in a shed. It was in this pit that the plaintiff was working when he was injured. Two men worked back to back in the pit about four to six feet apart. The pit had a raised lip from the floor about eight inches high. The repaired concrete panels were delivered to the pit by forklift for smoothing. Each weighed approximately 300 kilograms and was laid on a spring table at an angle of about 45°. The plaintiff worked on the panels with a honing machine which was about 15 inches long and weighed approximately 7 kilograms. The plaintiff said that the value of these machines was constantly emphasised to the workers and they were told to be careful to look after them. The machine was driven by air pressure and water which was brought to this particular pit by means of long hoses which came across the floor from the air/water outlet. The hoses of both men working in the pit came from the same outlet. Each man was operating with 30 to 40 feet of hose coiled up in the pit. In other parts of the plant where this sort of work was carried out the leads and hoses came from the roof on a sliding rail and the problem of tangling hoses did not arise. Water flowed through the honing machine throughout the grinding of the panel. The water mixed with the cement dust from the panels and formed a thick slurry. Some water sprayed out in a wide radius but most flowed into the pit. According to the plaintiff the only drain in the pit was inadequate to get rid of the slurry. The lie of the floor was not complementary to the drain and the slurry flowed to the centre of the pit. The slurry had to be removed by shovelling it out of the pit. The pit quickly filled with slurry with two men working and it was not possible to see where the hoses were as they lay in the bottom of the pit. As the men walked around the pit working on a panel the hoses were constantly changing position. The plaintiff wore steel-capped boots as required and described the cement floor in the pit covered with slurry as very slippery. He said that he worked under time pressure because the panels were designated for a particular job already under way. He said that he had complained to his supervisor about the problems of the slipperiness in the pit, the slurry, the hoses and the speed of the work but was told to put up with it.
Mr Colin McQuaid was formerly employed as a labourer with the defendant at the same time as the plaintiff. He was on the safety committee at the defendant's works and an aspect of that position was to report to management on things considered unsafe at the plant. Mr McQuaid reported to the site manager in writing that the patch repair pit in which the plaintiff worked was unsafe because the floor of the pit filled with water and slush from the panels, was very slippery and the hoses wound around the feet of the operators in the pit. He recommended that the pit have a steel mesh floor to lift the workers out of the slurry. This report was made about 4-6 weeks before the plaintiff was injured and no action had been taken on it when Mr McQuaid left about a month after the plaintiff was injured.
On 11 June 1991 the plaintiff was working on the side of a panel. It was on a 45° angle and he was grinding from the left-hand side down towards the other side of the panel. As the plaintiff got to the last two feet of the panel he started walking to the edge of the panel which required only a couple of steps. In doing so his right foot tripped over the hoses that were under him, his boot slipped on top of the hoses and he lost his balance. He was anxious not to drop the machine and fell towards his right. His right shoulder hit a container of tools which was between 8 inches and a foot away from the pit wall and he heard a loud crack in his shoulder. The plaintiff was assisted to the office and taken to the Royal Brisbane Hospital by ambulance.
The place of work of the plaintiff was unsafe. It was reasonably foreseeable that the very accident which occurred to the plaintiff might occur were precautions not taken to remove the risk and it was unreasonable not to take those precautions. Complaints had been made by the plaintiff to his immediate supervisor and, significantly, by the safety officer in writing to the site manager. There were two ways of eliminating the risk: one was by the provision of a mesh floor in the pit which would raise the operator above the slurry on the floor of the pit and the other was by the provision of overhead hoses on a sliding rail as was the case in other parts of the plant. There was no evidence to suggest that this was an expensive or difficult installation. It appears that it was a mobile device which could be moved around the sheds. Even were a mesh floor installed there was, no doubt, a continuing risk that operators would trip on the hoses curling around their feet in the pit although the hazard of slipping would have been significantly reduced. There was no suggestion that a better drain could have been installed in the pit. It was submitted by counsel for the defendant that the plaintiff ought to have been more careful since he was conscious of the risk involved in working in the pit. I do not find that there was any want of care for his own safety on the part of the plaintiff.
The plaintiff has discharged the onus of proof and the defendant is liable for the injury sustained by the plaintiff when he fell and damaged his shoulder in the pit and its consequents. There is no finding of contributory negligence.
Quantum
The plaintiff was taken to the Royal Brisbane Hospital and was told that his shoulder was dislocated. It was reduced and he was sent home in a splint sling later that afternoon. The shoulder was extremely painful. He was told by the hospital that he would have to remain in the splint sling for six weeks. He did not return to CSR and about ten days later was informed that he had been dismissed. In fact the premises closed down about a month after the plaintiff was injured when the defendant was taken over by another company.
The plaintiff remained immobilised for approximately seven weeks and then underwent a course of physiotherapy treatment. He was referred by the Workers' Compensation Board to Dr G Farmer, orthopaedic surgeon. The plaintiff said that as soon as the sling and binder were removed from his shoulder it re-dislocated. Dr Farmer repaired the plaintiff's shoulder surgically in October 1991 which was followed by a further period of immobilisation in a sling for about eight weeks and then physiotherapy. The plaintiff continued to experience shoulder instability symptoms despite attending at the South Brisbane rehabilitation centre of the Workers' Compensation Board. In October 1992 a second surgical procedure was performed by Dr D Gilpin, orthopaedic surgeon. The plaintiff was again immobilised for approximately eight weeks and then had physiotherapy. Throughout this period the plaintiff experienced a great deal of pain in his shoulder. He does not regard the second shoulder operation as successful although he says it has improved his shoulder in as much as it does not dislocate readily if he holds his limb into his body and the wasting of his upper limb's muscle has been arrested.
The plaintiff describes his shoulder as dislocating if he carries out certain manoeuvres such as reaching forward and lifting a light weight. Dr Boys, orthopaedic surgeon, doubted that the shoulder would actually dislocate but thought it may sublux, that is, move in and out of the socket more than it should. The plaintiff describes himself as always being conscious of the shoulder joint and its instability and describes himself as being in constant pain in the middle of the shoulder joint all day. As he described his pain to Dr Dickinson, orthopaedic surgeon, and Dr Boys they considered it to be a description of discomfort rather than outright severe pain. Initially the plaintiff had a course of strong analgesics to deal with the pain but prefers to dispense with them as he had been told that he had a high tolerance to drugs. Somewhat surprisingly, the plaintiff described himself as having on a scale of 1 to 10 steady pain registering "an 8". Dr Boys thought this a most unsatisfactory and meaningless scale and I am inclined to agree with him, but nonetheless, it is a very high figure to choose for someone who functions as well as the plaintiff.
In October 1994 Dr Boys estimated the plaintiff as having a 25% loss of function of his right upper limb. Dr Dickinson reassessed the plaintiff in January 1996 and thought that the range of movement in the shoulder had improved although noted some crepitus, limitation on range of movement and likelihood of osteoarthritis in the shoulder joint. X-rays of the right shoulder showed minor osteoarthritic changes and the surgical clips which were used in the various operative procedures. Dr Dickinson revised his earlier opinion which had coincided with that of Dr Boys and has concluded that the impairment is now 15%. Dr Boys explained the way in which such percentage tables were utilised by orthopaedic specialists and although there is scope for disagreement it appears to be only within the range of a few percentage points. In view of Dr Dickinson's more recent examination of the plaintiff it seems appropriate that the percentage disability of 15% should be accepted.
The plaintiff received Workers' Compensation from the day of his accident until 23 June 1993. He obtained casual employment with Sharp Security Pty Ltd as a security officer from 17 July 1993 and became employed full time with that employer on 28 January 1994. His employment was terminated on 23 May 1994. I shall need to say something more about that employment.
The plaintiff undertook a console operator's course of about six weeks' duration through the CES in November 1995 and remained in receipt of unemployment benefits while he did so. He commenced employment as a service station console operator in late January 1995. He found difficulty in doing general duties associated with the job such as climbing a ladder and washing a roof and made mistakes with the till. His services were terminated. On 19 March 1995 the plaintiff was employed as a security officer with Smiths Chips at Tingalpa and was so employed at trial. For some periods he had been able to earn a lot of overtime because other employees were away, but otherwise the availability of overtime has fluctuated and he has expressed some uncertainty concerning his capacity to take up all available overtime because of his shoulder deficits.
The plaintiff was educated to half way through the equivalent of Queensland's grade eleven in New South Wales. His mother assisted him to get a job at John Sands in lithographic printing. The plaintiff's parents were separated and his mother worked there under her maiden name of Kelly. The plaintiff's name was Mann but because of confusion in the workplace he changed his indentures to take on his mother's surname. That accounts for the plaintiff's two names which he still uses. He said that it was convenient for him to retain the name Kelly in work situations. He completed his apprenticeship and became a qualified platemaker and lithographic printer and stayed with John Sands for about six years until about 1982 or 1983 when he said that there was a minor recession and the company went out of business. The plaintiff worked at various jobs mainly in the printing industry until he moved to Brisbane in 1989 and was employed with a number of printers until he was engaged by John Sands Pty Ltd in Brisbane on 1 October 1990 where he remained for about three months. He then worked for another printer for about a month before moving to CSR. The work of a printer can be exceptionally heavy and requires plates to be moved. It was generally accepted that the plaintiff's disability would prevent him from carrying out such heavy lifting work with his right arm.
Prior to sustaining his injury the plaintiff had for a period played professional rugby league football in Sydney and was particularly interested in maintaining his level of physical fitness with weights. At the time of his accident he was coaching his son's cricket team. His son was then around eight years of age and engaged in primary school Saturday morning competition. The plaintiff had played rugby, basketball and social golf about once a week or once a fortnight in Brisbane. Since the accident he says he has been very limited in the sporting activities in which he can engage. He can swim, but not freestyle. He can fish with considerable difficulty and cannot swing a golf club. His greatest frustration is not being able to play football with his son or to teach him by demonstration, but he still seems to be able to coach an adult team. The plaintiff said that had he not been injured he would have expected to seek work in the printing trade again.
Credit of the Plaintiff
The defence sought in a number of ways to suggest that the plaintiff's evidence should be subject to close scrutiny because he was a person who was unlikely to be careful with the truth. The aspects of the plaintiff's evidence which were challenged were his assertion that he intended to return to the printing trade and the bigger wages that that occupation paid and his claim that his level of pain was high and his amenities of life thereby much reduced.
As I have mentioned, the plaintiff's evidence that on a scale of 1 to 10, with 10 being the most severe pain imaginable, his steady pain he assessed at a level of 8 seems quite extraordinary. He had never represented to any of the doctors or to the occupational therapist that he had that level of pain and in his statement of loss and damage (exhibit 1) his level of pain is described as "intermittent". He may have misunderstood the concept because his evidence in the witness box otherwise did not suggest that he was in constant very severe pain. There was no suggestion that the plaintiff had ever exaggerated the level of his symptoms when consulting with the medical specialists and apart from that figure of "8" he did not appear to me to do so when giving his evidence. Indeed he presented with an open and stoical manner. I do not take any particular account of this answer as an indication that he would not tell the truth.
Mr Alldridge for the defence submitted that because the plaintiff assessed the level of his likely income as a security officer at $350 to $400 per week when his full pay details for the 1995/96 financial year to March 1996 showed an average weekly earning of $417 net indicated he was seeking to deceive the court. The pay records (exhibit 12) show that the plaintiff worked irregular hours with varying amounts of time and a half and double time. For some fortnightly pay periods he earned less than $350 and for some considerably in excess of $400. I draw no adverse conclusions about the plaintiff's credit from that evidence.
The defence called Robert Gurdler, formerly a social acquaintance of the plaintiff, who said that he had seen the plaintiff as a coach play touch football during 1994 with a Redlands adult football team. He said that he saw the plaintiff actually coaching the team two nights a week for a number of weeks. He conceded that the plaintiff may have been a little less active on the field than others but was still quite active. There was animosity between the plaintiff and Mr Gurdler over a number of issues including money said to be owing by Mr Gurdler to the plaintiff, work and social matters. Mr Gurdler's evidence did not come up to counsel's opening on the question of weights seen at the plaintiff's house. The plaintiff had given evidence of his football coaching but denied vigorous involvement. There was some evidence that he sought time off work because of football related injuries. I have concluded that Mr Gurdler overstated the plaintiff's physical involvement in the game but that the plaintiff understated it. It seems likely that he was prepared to put up with increased pain in his shoulder because of his enjoyment of the game which is not so surprising in light of his past history of football playing.
The defence points to a minor stealing conviction and a drug possession conviction as evidence of a willingness to be dishonest in the first case and to break the law in the second. I think such revelations have not much impact on my assessment of the plaintiff, however they are factors to be taken into account.
The plaintiff denied that he did any heavy work particularly with his right arm whilst he worked for Sharp Security at the Sunnybank Shopping Plaza and specifically denied pushing a car or carrying staging boxes. Andrew Bennett, the operations manager at the shopping centre, recalled on one occasion that the plaintiff assisted him to push a parked car which had rolled forward towards the road some three or four metres back into the carpark. Mr Bennett was not able to recall how the plaintiff applied his body force to the manoeuvre. He also recalled an occasion when the plaintiff assisted him to move stage blocks weighing about 100 kilograms (the transcript reads 1,600 kilograms and my note "between 80 and 100 kilograms", 1600 is clearly incorrect) lifted from about shin height a few feet sideways onto a trolley. A second block was then lifted on top. Mr Bennett used a handle groove in the box and his knee to lift the box high enough to sit it on the first box. I accept Mr Bennett's evidence. These were isolated incidents. The car moving could understandably be completely forgotten by the plaintiff when giving his evidence. I have concluded that the plaintiff must have been prepared to play down his involvement in moving the boxes for it seems unlikely that he could completely forget when challenged in cross-examination that those activities had occurred.
The manager of Sharp Security, Brett Major, a former police constable, gave evidence that while the plaintiff was employed by that company the plaintiff had told him that he was a major Sydney underworld figure. Mr Major said that the plaintiff told him that he was concussed playing football at a time which would have been after his accident and proposed changing to coaching. Mr Major said that he saw the plaintiff on three occasions moving traffic signs associated with the shopping centre work. He terminated the plaintiff's employment with Sharp Security on the grounds of the plaintiff's incompetence and described their relationship thereafter as strained. Mr Bennett said that he was very disappointed when the plaintiff left as he thought him very good at his work and his organisation was most satisfied with the performance by the plaintiff of his duties as a security officer at the shopping centre. There was some dispute between Mr Major and the plaintiff over remuneration. I did not find Mr Major a credible witness although I accept that he observed the plaintiff moving some traffic signs. However I am not inclined to rely on his evidence to discredit the plaintiff on other matters. His version of a conversation held outside the court about telling the truth with another witness, Mr Peter Bezet, I do not accept.
The plaintiff said in respect of his employment with John Sands from 1 October 1990 to 11 January 1991 that he was made redundant when 170 employees were laid off. Mr Stewart Nightingale was a printer with John Sands while the plaintiff was there. He could not recall any large numbers of employees being retrenched and indeed said that the total establishment was between 50 and 100 employees. He could not recall the circumstances of the plaintiff leaving John Sands. I accept Mr Nightingale's evidence that there was no large scale retrenchment of people from John Sands when the plaintiff left. It is such different evidence from that of the plaintiff that it is difficult to know what to make of the plaintiff's account. The purpose to be served by such a story is quite puzzling. I found the plaintiff a likeable person with an open manner and there seemed little point, in terms of the litigation, to his exaggerations on the one hand and reticence on the other. He has engaged in virtually full time work after he was rehabilitated after his second operation. It makes little sense to argue that he could actually have been working at a more labour intensive and higher paying job. I largely accept the plaintiff's evidence without disregarding the fact that details of his evidence were in conflict with that of a number of witnesses whose evidence I did accept. Except where I have specifically mentioned it, ultimately I do not think that those differences have had much effect on the outcome of the trial.
Pain and Suffering and Loss of the Amenities of Life Past and Future
The plaintiff now has a 15% loss of function of his right upper limb. He has experienced a good deal of pain particularly during the first two years when he had two surgical procedures performed. He had previously enjoyed a vigorous recreational life including playing sport at a high level of achievement. His shoulder weakness keeps him from participating in a satisfactory way in the sports that he had previously enjoyed. He is now unable to share his footballing skills to the extent that he would wish with his son. He has experienced strain in his marriage due to irritability on his part and financial problems because of his lack of work. He will experience continuing discomfort for the rest of his life with an increased risk of painful arthritic changes.
Mr King submitted that $30,000 was an appropriate figure to represent this loss whilst Mr Alldridge submitted that "something less than $30,000" was appropriate. Taking into account the age of the plaintiff when he was injured, the two surgical procedures, his physical lifestyle both recreational and at work I award him $28,000 for pain and suffering and loss of the amenities of life for the past and the future. $18,000 of the damages under this head ought to be attributed to the past. The plaintiff received a disability settlement from the Workers' Compensation Board of $14,262.50 and that should be taken into account in assessing interest, Haines v. Bendall (1991) 172 CLR 60. Thus $3,737.50 will attract interest at 2% per annum for 5 1/5 years amounting to $388.70.
Loss of Past Earnings and Loss of Future Earning Capacity
It is convenient to consider both past and future damages under this head together since the same issues arise. It is the plaintiff's case that in due course he would have returned to the printing trade. The defence points to a number of factors said to compel the conclusion that the plaintiff would not have taken that employment option had he not been injured. The plaintiff admitted that in 1988 he sustained a work related injury to his spine when pulling a pallet of paper from a machine. He recalled it as relating to his neck but it seems that its origin was lower in the spine before settling in the neck. The plaintiff received chiropractic treatment and was off work for some months. He then, it seems, came to Brisbane and worked with a printer for a month in July 1989. He subsequently worked for five different printers in Brisbane from August 1989 to April 1991 when he commenced as a labourer with CSR. The defence submits that this suggests that the plaintiff was having physical difficulties in coping with his work as a printer and kept moving on. The plaintiff said that he was chasing better remuneration and that there was not much printing work available at the time. He said that his earlier injury has had no lasting consequences. The defence submission that the plaintiff's 1988 injury would prevent him from working in the printing trade certainly does not sit easily with the plaintiff choosing the heavy labouring work at CSR which has been described above. There is no evidence, in my view, to conclude that because of physical deficits the plaintiff would have been unlikely to continue working as a lithographic printer if that work was available.
The defence further points to the plaintiff's response to Ms Vicki Pickering, a counsellor with the Workers' Compensation Board, in July 1991. She interviewed the plaintiff to ascertain what direction rehabilitation might take for him. It was only six weeks after sustaining his injury and the plaintiff's shoulder was still restrained in a sling. Ms Pickering noted (she had no independent recollection of the plaintiff when giving her evidence) that the plaintiff did not wish to return to the printing trade "as opportunities are limited and chemical exposure was getting excessive". The plaintiff denies expressing himself in such a way as would have led Ms Pickering to record that observation, or if he did, he said it was likely to have occurred after surgery when it had become apparent that he had permanent physical deficits. He accepted that he may well have made an adverse comment about the chemicals. I accept that Ms Pickering reasonably accurately wrote down what she was told by the plaintiff some six weeks after sustaining his injury. The plaintiff may well have explored other employment options, but as Mr King pointed out, in the 18 months prior to sustaining his injuries of the seven jobs held by him, six were in the printing trade and prior to that he had been employed for six years as a printer in New South Wales. It was, after all, his trade qualification and attracted much higher remuneration than labouring work. The limitation on the plaintiff engaging printing work was more than likely its availability. Small printing jobs which did not involve heavy machinery were not investigated by the plaintiff after his injury as the pay was no better than the security work which he could obtain.
As I have mentioned Stewart Nightingale worked as a lithographic printer with the plaintiff at John Sands in Brisbane. At the time of giving his evidence he worked in a similar position on similar machines with a large printing company. He considered that the plaintiff, as he knew him at John Sands, could carry out that work. Mr Nightingale's hourly rate was just over $25 per hour. His income tax assessment notices for 1994 and 1995 revealed a gross income of just over $48,000 and a net figure of approximately $35,000 giving an approximate net weekly wage of $675. The plaintiff's approximate average net weekly earnings with the defendant were $406.25.
If he was physically capable of doing so and the work was available it is most unlikely that the plaintiff would have abandoned his access to the higher money as a lithographic printer. I accept the plaintiff's contention that although he changed jobs often he always had one to go to when he left and had not been in receipt of unemployment benefits before he was injured. Since the defendant ceased the business that the plaintiff was engaged in shortly after he was injured the plaintiff would have had to look for other work. I conclude that predominantly that work would have been as a printer if it were available, but following his recent pre-injury work patterns he would have changed jobs from time to time, taking labouring type work remunerated at a lesser wage from time to time up until trial and into the future when he was unable to get printing work or wanted a break from it.
The defendant approached the plaintiff's economic loss on the basis that he would not reasonably have been able to work due to his injury until he started with Sharp Security on 17 July 1993 and calculated his loss by reference to what he would have earned as a labourer ($406.25 per week) to June 1995 when he was established at Smiths Crisps as a security officer. Mr Alldridge submitted that the amount calculated for those years ought to be discounted for possible periods of unemployment. It should be mentioned that the statement of loss and damage was far from accurate and suggested that the plaintiff had had some periods of unemployment pre-injury. The plaintiff's oral evidence did not support this and no records of unemployment benefits being paid were revealed for those periods although the plaintiff's receipt of those benefits was closely scrutinised by the defence. Mr Alldridge submitted that after 1995 when the plaintiff was established in his present employment his injury has not been productive of loss since he now earns as much as he would as a labourer and has the capacity to do so into the future.
Mr King approached the question of loss of earnings and earning capacity somewhat differently. He submitted that up until the end of December 1991, that is about six months after the accident, had he not been injured it is more likely than not that the plaintiff would have been remunerated at the same rate that he was earning with the defendant, namely $406.25 per week whatever work he found. From 1 January 1992 until 19 March 1995, when he entered the workforce full time in a permanent position, he submitted that the plaintiff would have re-entered the printing trade perhaps at less than his rate of $587 net per week at John Sands although it may have been higher bearing in mind the evidence of Mr Nightingale. He submitted for that period an average figure of $550 could be selected. For the period from 19 March 1995 until trial Mr King submitted that the plaintiff's loss was in the vicinity of $133 per week, that is, his net average rate of $417 taken from the nominated net wage of $550 as a printer.
For the future Mr King submitted that although the plaintiff now earns an average $417 net per week, because of his physical deficits which may put at risk that employment and the restricted availability of overtime, he may earn a reduced figure of $350 per week net. Mr King proposed a number of bases for calculating the future - the first was on a basis of possible net earnings of $587 (as he was getting at John Sands in 1991) and actual earnings of $350 resulting in a loss of $237 net per week. The second basis allowed $417 net per week against $587 and would reflect a loss of $170 per week. The third basis takes up Mr Nightingale's evidence of earnings of $658 (Mr King's figure) net per week. Against actual earnings of $417 per week this would lead to a loss of $241 per week. If the plaintiff's weekly wage reduces to $350 using Mr Nightingale's weekly earnings his loss would be $308 per week.
It seems to me more likely than not that the plaintiff would have attempted to return to the printing trade when his past employment pattern is considered and when that work was not available he would have obtained less well paid work of a labouring kind. The plaintiff mentioned to Ms Pickering that there was some talk of going into a business venture with other family members but I discount that. There is nothing in his past to suggest that he would work for other than wages and in his oral evidence he gave no hint that any such plans if they did exist when he spoke to Ms Pickering were in any way concrete. There was nothing in his past to suggest that anything other than a very minor discount should be made for unemployment. A minor discount should be made for other vicissitudes of life. The plaintiff gave evidence of his above award rates of pay at the various printeries at which he worked in Brisbane. They were in the vicinity of the rate at John Sands.
I accept Mr King's submission that up until about the end of December 1991 the plaintiff would have been likely to remain working at labouring jobs. He may have got small printing jobs as well. Thereafter till the date of judgment I am of the view that more likely than not the plaintiff would have obtained his employment about two-thirds in the printing trade and about one-third in the labouring field. The plaintiff was earning net $587 per week from John Sands in Brisbane in January 1991. Mr Nightingale was netting in the vicinity of $650 per week in 1994 and 1995. There was nothing put to him in cross-examination which suggested that the plaintiff, had he been employed as a lithographic printer would not have attracted the same remuneration as Mr Nightingale. Mr Alldridge submitted that there was no evidence as to the continued availability of work for printers, but I think Mr Nightingale's evidence does so sufficiently.
From 11 June 1991 to 31 December 1991 is 29 weeks. Applying the labourer's rate of $406.25, the loss amounts to $11,781.25. From 1 January 1992 until 19 March 1995 when the plaintiff started permanent full time employment is a period of 166 weeks two-thirds of that time would have been in the printing trade at which I would allow at $580 per week and one-third in the labouring field at $406.25 per week. That approach gives a net average weekly earning of $522.09 which amounts to $86,666.94. During this period he earned money from a variety of casual jobs and that sum must be deducted. There is no precise figure available and no agreement. Mr King submits about $13,500 and Mr Alldridge about $17,000. Accordingly I will deduct $15,000 which gives a figure of $71,666.94.
From the 20 March 1995 it would be fair to increase the net average weekly amount which the plaintiff might have earned as a lithographic printer taking into account the much higher earnings of Mr Nightingale which the plaintiff could also have achieved. Taking into account that Mr Nightingale appears to stay in his jobs a much longer period of time than the plaintiff did whilst in Brisbane I propose to use the figure of $600 net per week from 20 March 1995 to date of judgment. There was no other figure in evidence for a labourer than the $406.25 from CSR. It might be supposed that it had increased from 1991 but there was no evidence to suggest that was so. Accordingly I shall remain with that figure. On the same basis as previously, that is, on the supposition that the plaintiff would have been employed in the printing trade for two-thirds of the time and labouring for one-third gives a net weekly wage of $535.42. During this period he earned on average weekly wage of $417 which gives a net weekly loss of $118.42. The period is approximately 73 weeks to judgment which gives an amount of $8,644.66. The total amounts to $92,092.85. Little should be taken from that amount for the usual pre-trial vicissitudes because discounting has already occurred in respect of the plaintiff's possible earnings as a printer. I would allow the sum of $90,000.
The plaintiff received $37,074.42 weekly wage benefits from the Workers' Compensation Board (exhibit 2) and $12,214.46 from the Department of Social Security (exhibit 18) which amounts to $49,288.88. For the purposes of calculating interest on past loss of earnings, as Mr King has agreed, that amount should be deducted from the amount of damages. Interest is awarded on $40,711.12 at 5% per annum for 5 1/5 years. That amounts to $10,584.89 which I allow.
For the future I will proceed on the basis as I have that the plaintiff may have achieved closer to Mr Nightingale's figures and would use $640 as a starting point and the $406.25 as a labourer. This results in a potential earning capacity of $562.09. On present figures he has an actual earning capacity of $417 which gives a net weekly loss of earning capacity of $145.09 using the 5% tables for 25 years gives a figure of $109,348.52. I do not think a large discount is called for for the adverse contingencies since the basic figure of $562.09 already takes into account that the plaintiff may not earn the high printing wages which Mr Nightingale does and takes into account that the plaintiff would be earning low labourer's wages which have not been adjusted from the 1991 wage rates for a third of the time into the future. Further I have calculated his full time working life to age 60 and not to age 65. In those circumstances it is inappropriate to reduce the figure by more than a nominal amount and I will award $105,000 for loss of future earning capacity.
Special Damages
The only special damages claimed on behalf of the plaintiff are those which have been paid out for him by the Workers' Compensation Board. They amount to $7,953.23 and include hospital, medical and rehabilitation expenses and are allowed.
An amount of $5,875.60 was deducted for tax, the Fox v. Wood component, and it is allowed.
Summary of DamagesPain and suffering and loss of the
amenities of life past and future $ 28,000.00
Interest on $3,737.50 at 2% per annum
for 5 1/5 years $ 388.70
Loss of earnings to date of judgment $ 90,000.00
Interest thereon $ 10,584.89
Loss of future earning capacity $105,000.00
Special damages $ 7,953.23
Fox v. Wood component $ 5,875.60
TOTAL:$247,802.42
From that amount must be deducted the amount of $59,290.50 which are the total amounts of payments made to or on behalf of the plaintiff by the Workers' Compensation Board which gives an amount of $188,511.92 which should be rounded up.
There will be judgment for the plaintiff against the defendant in the sum of $188,512.
Unless there are submissions to the contrary the defendant must pay the plaintiff's costs of and incidental to the action to be taxed including reserved costs.
0