Kemp v CBT Refrigerated Transport Pty Ltd
[2002] VSC 540
•4 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MILDURA
COMMON LAW DIVISION
No. 978 of 2000
| ANDREW KENNETH KEMP | Plaintiff |
| v | |
| CBT REFRIGERATED TRANSPORT PTY LTD | Defendant |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 2-3 December 2002 | |
DATE OF JUDGMENT: | 4 December 2002 | |
CASE MAY BE CITED AS: | Kemp v CBT Refrigerated Transport | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 540 | |
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Tort – Negligence - Damages – Loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jens | Hillard Byrne Higham |
| For the Defendant | Mr A W Adams QC with Mr A Moulds | Herbert Geer & Rundle Melbourne |
HIS HONOUR:
By a writ filed 26 October 2000 Andrew Kenneth Kemp claims damages against CBT Refrigerated Transport Pty Ltd for injuries he alleges he received on 31 January 1999 when he fell from the back of a truck which he was in the process of loading with fruit at the defendant's premises at Robinvale. The plaintiff says the accident occurred when a forklift driver, who was also engaged in loading the truck, caused the forklift or its load to move in such a way that the cartons of grapes on the pallet which it was lifting struck him causing him to fall from the back of the truck on to the concrete floor. As a result of the fall the plaintiff says he suffered a severe head injury as well as a fracture of a cervical vertebra, which injuries have left him with continuing disability which is likely to be permanent.
The plaintiff's claim is put in negligence, alleging that the forklift driver was in breach of the duty of care which he owed to the plaintiff at common law, or by virtue of s.14B(3) of the Wrongs Act 1958. The latter claim, which is probably misconceived, was not in the event pressed by the plaintiff. The defendant's liability is alleged to be vicarious. No claim was made in respect of any breach by the defendant or by the forklift driver of any statutory or regulatory duty.
The defendant, by its Defence, made no admission, apart from the fact that it was incorporated. It did not even admit that it was vicariously liable for the acts of the forklift driver, a situation that remained until an appropriate admission was made by Mr Adams in the course of the trial. In the circumstances of this case, the failure of the defendant to make such an admission and indeed, other appropriate admissions is regrettable. It rendered the pleading process useless and impeded the proper definition of the issues for trial. Depending upon other considerations it may have cost consequences for the defendant, but any decision in this regard must await the argument which may follow delivery of this judgment.
The Law
There was no dispute between the parties in respect of any legal principle which may be applicable to the resolution of this case. Indeed, the law on the question of liability was not mentioned by counsel for either party. It is sufficient then to note that the forklift driver clearly owed to the plaintiff a duty of reasonable care in the factual circumstances of this case which I will now describe. I have already noted that the defendant concedes that it is vicariously liable for the acts of the forklift driver.
The Facts
This case turned upon a relatively narrow issue of disputed fact. The plaintiff and his business partner Graham Edward Golding were, on 31 January 1999, the operators of a trucking business which used a Volvo Globetrotter truck which had the capacity to take perishable loads cooled by a refrigeration unit mounted on the front of its rear section. The truck, which has a flat tray surface, is loaded from each side, with palletised, shrink wrapped, cartons of fruit and then closed by means of sliding tarpaulin curtains which insulate the load, and allow the refrigeration unit at the front to keep the load at an appropriate temperature. In this particular truck the cooling unit protruded into the useable area of the truck from the back wall by a short distance at a height such that a full pallet of cartons would not fit underneath it. This meant that the first two pallets loaded needed their top row of cartons adjusted so that one carton was removed from each to enable it to fit flush against the back wall of the truck under the refrigeration unit.
The loading of the plaintiff's truck was effected by a forklift driven by one Smith, an employee of the defendant. Loading commenced by Smith placing the first pallet on the truck from the driver's side with the plaintiff adjusting the top row whilst Smith paused in the loading operation. The adjustment required the plaintiff to remove one carton from the left front of the pallet, so that Smith could ensure that the pallet fitted under the refrigeration unit, and touched the front wall of the truck.
The second pallet was then lifted towards its position from the other side of the truck. In the course of doing so Smith stopped the operation to permit the plaintiff to remove a carton from the front right hand side of that pallet. When Smith stopped, the angle the pallet made with the truck when he stopped, and how much of the pallet was on the truck when he stopped were all matters of dispute in this case. Smith said that the load was either perpendicular, or almost perpendicular to the truck, and that about half of the pallet was on the truck. Golding and, to the extent that he could give cogent evidence, the plaintiff, had the pallet at a lesser angle to the truck and probably somewhat further onto the tray. Whatever the situation, the plaintiff then removed a carton from the front right hand corner of the pallet, and placed it on top of the top row of cartons in a position such that it would not foul the refrigeration unit when the pallet was placed in position under the unit, and against the back wall. Immediately upon his completing this task or, perhaps as he was completing it, the plaintiff fell from the truck to the concrete floor of the loading area, contacting the concrete with his head and left side.
The issue of whether the negligence of Smith can be blamed for the plaintiff's injuries can only be determined by determining the cause of the plaintiff's fall.
In his evidence the plaintiff's partner Golding, who took no part in the loading operation, said that at the time of the accident he was leaning against the tray of the truck on the driver's side watching the operation. The tray was about chest high. He said that the plaintiff removed a carton from the front of the pallet as I have described, and put it on the top the load. Before he had finished putting the carton into its new position on the top row of cartons towards the other or left side, the forklift moved, striking the plaintiff with its load and causing him to fall over the side of the truck. The plaintiff had been right behind the pallet when it moved such that the load struck the left side of his body. Golding demonstrated this action vividly, although he obviously had some difficulty describing it in words. He said that when he was struck the plaintiff's hands were still on or towards the top of the load, where he had just placed the removed carton, and that that carton must have been secure in its new position on top of the load as it did not fall to the ground with the plaintiff.
10. The gist of Golding's evidence was that the movement of the forklift was the cause of the plaintiff's fall.
11. Smith, who was the only other eyewitness, steadfastly denied that the forklift moved at any relevant time. His version has the plaintiff falling from a position to the rear of the pallet over the side of the truck. He offers no cogent reason for this fall except, inferentially, the inappropriate footwear he says the plaintiff was wearing.
12. The plaintiff described the immediate pre-accident situation in much the same way as Golding. In particular he put the pallet as being on an angle to the truck and his own position as being behind the pallet. He had just put the box into its position on top of the load when his memory of the event ceases until some hours later in the Mildura Hospital.
13. Were the evidence to remain in that state I would have regarded it as more probable than not that Golding's version of events was closer to what actually occurred than the version given by Smith. I regarded Golding as a much more cogent witness. However, there are a number of other matters which emerged from the evidence which enabled me to be confident that this finding of fact is correct.
14. Firstly, the probabilities themselves favour the plaintiff's version. Although Mr Adams placed much emphasis on the fact that there was no reason for Smith to move the forklift when Golding says he did, particularly, perhaps, if it was in the position Smith said it was in immediately before the accident; there was certainly no reason for the plaintiff to have got himself sufficiently close to the edge of the truck so that he would overbalance, unaided by any outside force.
15. Secondly, Smith described the plaintiff's footwear as being thongs, and criticised him for wearing such inappropriate footwear in an industrial setting, especially when he was involved in the operation being undertaken. In fact, as the unchallenged evidence of Golding (later admitted by Mr Adams to be correct) made clear the plaintiff was in fact wearing Blundstone boots at the time of the accident. It is not necessary to attribute deliberate lying to Mr Smith in respect of this error in his evidence, as Mr Jens, counsel for the plaintiff, would have me do. It is enough to say that it severely undermines his credibility generally, particularly in the circumstances where the allegation that the plaintiff was wearing thongs is not a neutral mis-observation. It tends to shift the blame for the accident to the plaintiff.
16. Having reached the conclusion which I have, I do not need to ponder further the significance (if any) of the fact that Smith was apparently sent away from the accident scene by the defendant to perform another job away from the site almost immediately after it occurred; that the accident was never reported to the appropriate authorities by the defendant, and that a report entitled “Incident Report” compiled by the defendant containing an account of the accident which sought to exonerate it, was ultimately conceded by it, through its counsel, to be entirely fictitious. Nor do I need to consider the evidence of the defendant's manager Cordoma, unimpressive as it was, on any issue which might have affected the defendant.
17. I am satisfied that Smith moved the forklift or its load at a time when the plaintiff had just placed the removed carton on the top of the remaining load; that it struck him in the side and either pushed him over the side of the truck or caused him to lose his balance and fall over the side of the truck. In either case the cause of the plaintiff's fall, and hence his injuries was the negligence of the forklift driver Smith. In moving the forklift and/or its load such that the load struck the plaintiff, as I have found it did, he failed to exercise that level of care which a reasonable forklift driver would have exercised in the circumstances. The plaintiff is thus entitled to a verdict.
18. The defendant in argument all but abandoned its defence of contributory negligence. Mr Adams submitted that, even if the load had struck the plaintiff, he ought to have been able to keep his footing. I reject that submission. The defendant has failed to establish contributory negligence by the plaintiff. The plaintiff's damages will be unreduced.
Quantum.
19. The plaintiff is a 45 year old unmarried man who, although he attained Year 12 of secondary school has worked in essentially manual occupations of a rural nature for most of his life. He was the youngest of five children of a South Australian parliamentarian who died at about the time the plaintiff left school.
20. In about 1983 the plaintiff formed a partnership with Graham Edward Golding in a trucking business. The business eventually built up to running several trucks, although, at the time of this accident, that business had been sold, and the partners were back to running one truck together, that from which the plaintiff fell. They live together in a house on a property in the South Australian Riverland where they also grew fruit.
21. The accident within which the plaintiff was involved occurred on a Sunday. He was taken initially to Robinvale Hospital, but it appears was quickly transferred to Mildura where he remained for five days. He was diagnosed with two main injuries, a head injury involving contusion of the left frontal lobe, and a fracture of the sphenoid sinus, and a neck injury involving a fracture of a transverse process of the seventh cervical vertebra. On admission to hospital he was found to have hypertension which required treatment. There was no evidence to suggest that this was in any way related to the injuries which he received. It was diagnosed by one of his doctors as “essential” hypertension, that is to say, of no obvious aetiology. He gave no evidence of any ongoing treatment for his injuries, other than in the initial stages.
22. The plaintiff's head injury has left him with a number of significant sequelae. He is anosmic; that is to say he has lost his sense of smell and, with it, his sense of taste although he describes that as being altered rather then lost, so that some previously pleasant taste sensations have become distasteful or unpleasant.
23. The plaintiff has neurological deficits measurable by testing. The speed at which he can process information has being significantly reduced as has his ability to learn, and execute complex tasks. Neurologists, neuropsychologists and neurosurgeons who have examined the plaintiff consider he has mild residual brain damage, although overall he has made a good recovery from a significant assault upon his physical integrity. A psychiatrist (Dr Cole) and a neuropsychologist (Ms Frei) each consider that he is affected as far as earning capacity is concerned; the former being of the view that this was a result of his physical injuries rather then of any psychological or psychiatric injury which he may have suffered.
24. The plaintiff has suffered a change in his personality. He is now more bad tempered, and although never a particularly social person, has become less so than formerly.
25. The plaintiff's anosmia has occupational implications which both he and Golding described in their evidence. His inability to smell volatile fuel, burning, the odour of ripening fruit and agricultural chemicals all have obvious occupational consequences.
26. The plaintiff is now unable to drive a truck without a jockey, and difficulties with concentration and memory further impede his income earning capacity, as well as the ordinary activities of his everyday life.
27. A report (with complex charts) of a dental surgeon, Dr J Schocroft tendered by the plaintiff asserted that the plaintiff suffered extensive dental disease said to be “consistent” with stress caused by his accident. Accounts for treatment performed amounting to $1,140 and an estimate of future dental expenses of some $16,600 were also attached to Dr Schocroft's report.
28. No mention of dental disease or disability was made by the plaintiff in his evidence and his counsel made no submission on the issue. The defendant took no objection to the tender of Dr Schocroft's report despite there being no claim for dental disease in the statement of claim, thus making the evidence irrelevant. In any event, the dentist's opinion would not support a finding that any dental disease suffered by the plaintiff was a result of this accident and thus compensible. No allowance will be made for it in his damages.
29. The above extremely brief summary is drawn from an analysis of a number of medical reports, all of which were tendered by consent and without any doctors being required for cross-examination. There is thus no need to further comment on the extensive medical evidence presented in this case other than to wonder why the essentially uncontroversial nature of the plaintiff's case was not realised by the parties much earlier than it was. The plaintiff could have been spared the ordeal (and someone else the expense) of a large number of largely unnecessary examinations yielding results which were unlikely to be controversial.
30. The plaintiff's case on quantifiable loss was not finally put before the Court until the trial was well under way, although his counsel had already tendered complex actuarial calculations on economic loss, and an accountancy analysis obtained by the defendant of the plaintiff's past earnings, and his future loss attributable to his injuries. When finally filed it was a simple document; its simplicity disguising the difficulties which the Court would face in reaching conclusions on the issues raised having regard to the evidence which had been called.
Medical and like expenses
31. Under this heading the plaintiff claimed a total of $2,711.70, including $1,652.95 for medication to 9 November 2001. Why the claim ran only to that date is not explained, nor was there any evidence as to what the medication was for. If it is related to ongoing hypertensive therapy it would be difficult to find any justification for it in the evidence, as the plaintiff's hypertension is said to have been “essential”. There is no evidence it was caused by the accident.
32. In any event, Mr Adams conceded the amount claimed, although I took that concession as not extending to the ongoing claim which was made. Thus there will be an allowance of $2,711.70 under this heading.
Economic loss.
33. It is in this area that the most difficulty with this claim lies.
34. In putting argument on behalf of the plaintiff Mr Jens specifically abandoned reliance on the actuarial evidence to which I have referred, preferring instead to adopt the reasoning and conclusions in the report of Munday Wilkinson Pty Ltd, accountants, commissioned by the defendant and presumably served by it in accordance with Order 44 of the Supreme Court Rules as evidence of an expert nature upon which it relied.
35. Munday Wilkinson Pty Ltd reviewed the actuarial evidence originally relied upon by the plaintiff, rejected its conclusions, and assessed the plaintiff's earning capacity at a maximum of $20,000 per annum gross, which is said by Mr Jens to equate to about $332 net per week. As, says Mr Jens, the accountant's report estimates the plaintiff's actual earnings at about $4,500 per annum or $90 net per week, his quantifiable loss has been about $240 per week since the accident. Up to 2 December 2002 this is said to amount to $47,760. Applying the appropriate and uncontested multiplier to the same weekly loss, the plaintiff's undiscounted future loss amounts to $180,000.
36. Mr Moulds, who argued the defendant's case on this aspect, contested the accountant's estimate of the plaintiff's earning capacity at $20,000 gross per annum. He said that an analysis of the plaintiff's tax returns and those of the partnership, which are summarised to the year ending 30 June 2000 in the accountant's report, do not justify such an assessment and that in fact the plaintiff never earned that amount or anything like it in the period before the accident. He conceded the plaintiff has suffered a loss of earning capacity, but says that it should be quantified by reference to a figure averaged between about $130 and about $175 per week. Arithmetically that average is $152.50.
37. There is much in what Mr Moulds says. The plaintiff's past earnings, at least as far as they were disclosed in his tax returns, were not as high as Munday Wilkinson estimated his earning capacity to be. Mr Jens put no argument based upon any admission or concession inherent in the initial reliance upon Munday Wilkinson by the defendant, and I make no determination as to whether an expert's report voluntarily proffered in the circumstances in which this one was, could constitute an admission upon which factual determinations could be made.
38. In the circumstances I am not prepared to find that the plaintiff's lost earning capacity should be quantified at more than the amount conceded by Mr Moulds. That is to say about $152 per week.
39. Applying this figure to the past, a gross undiscounted sum of about $30,000 is arrived at. I allow $28,000.
40. As far as the future is concerned, assessed by reference to a retirement age of 65, which I accept is appropriate, the agreed multiplier is $750 per $1 per week using a discount rate of 3%. On those figures, a gross figure of $114,000 for the future is arrived at. With appropriate discounts for vicissitudes etc. this translates to an amount of about $100,000. I award that amount.
General damages
41. As I have noted, the plaintiff has suffered a significant permanent injury which will affect him for the rest of his life. Mr Moulds submitted a range for general damages of between $75,000 and $100,000. Mr Jens submitted that an award of $100,000 would not be inappropriate. I accept Mr Jens' submission. The plaintiff will be awarded $100,000 under this heading.
Conclusion
42. The total of the amounts awarded comes to $230,711.70. In the circumstances I consider that fair and reasonable compensation to be awarded to the plaintiff by way of damages for the injuries suffered by him as a result of the tortious conduct of the defendant is $231,000. There will be judgment for the plaintiff in the sum of $231,000. I will hear counsel on the question of interest and costs
[Agreement was reached on interest at $7,500.]
43. There will be judgment for the plaintiff in the sum of $238,500, being $231,000 damages and $7,500 interest pursuant to the Supreme Court Act 1986. It is further ordered that the defendant pay the plaintiff's costs to be taxed.
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