Koolman v Runlaw Pty Ltd & Colson
[1999] QDC 210
•20 July 1999
IN THE DISTRICT COURT
HELD AT MOUNT ISA
QUEENSLAND
[Koolman v. Runlaw Pty Ltd & Colson]
Plaint No 34 of 1995
BETWEEN
WAYNE ROSS KOOLMAN
Plaintiff
AND
RUNLAW PTY LTD
First Defendant
AND
MARK COLSON
Second Defendant
JUDGMENT - McGILL D.C.J.
Judgment Delivered:
Catchwords: DAMAGES - personal injury - failure to mitigate - cannot arise prior to wrong
DAMAGES - personal injury - leg - 5% - possibility of deterioration
Wylie v. ANI Corporation Ltd (Plaint 2999/95, McGill DCJ, 9.4.99) - followed
Richardson v. Schultz (1980) 25 SASR 1 - followed
Counsel for the Plaintiff: R.J. Lynch (led on 20 July 1999 by R.J. Douglas SC)
Counsel for the Defendant: R.J. Whiteford
Solicitors for the Plaintiff: V.R. Moffatt & Associates
Solicitors for the Defendant: L.A. Evans & Co
Hearing Dates: 6, 7 May; 20 July 1999.
IN THE DISTRICT COURT
HELD AT MOUNT ISA
QUEENSLAND
Plaint No 34 of 1995
BETWEEN
WAYNE ROSS KOOLMAN
Plaintiff
AND
RUNLAW PTY LTD
First Defendant
AND
MARK COLSON
Second Defendant
JUDGMENT - McGILL D.C.J.
Delivered the day of 1999
By this action the plaintiff claims damages for injuries which he suffered in the course of his employment on 28 May 1992 when a plank and ladder combination collapsed under him. There was originally uncertainty as to whether the first or second defendant was the employer, but at the trial it was admitted that the plaintiff was at all relevant times employed by the first defendant: p.2.
Contributory Negligence: Astley
In relation to liability, the matter is somewhat complicated by the circumstance that by a letter dated 15 July 1998, the solicitors for the defendants admitted “primary negligence” but kept on foot an allegation of contributory negligence. By the time the matter came on for trial, the High Court had delivered its decision in Astley v. Austrust Ltd (1999) 73 ALJR 403. There was no formal admission that the admitted negligence of the defendant was a breach of an implied term in the contract by which the plaintiff was employed, but at the first day of the trial counsel for the defendant indicated that he would not be arguing against a conclusion of breach of contract: p.2. For reasons which I expressed in Wylie v. ANI Corporation Ltd (Plaint 2999/96, judgment delivered 9.4.99), in my opinion, if there was negligence there was also a breach of contract on the part of the employer so that the first defendant is liable to the plaintiff for damages for breach of contract, and it follows from the decision in Astley that damages are therefore not to be reduced, notwithstanding any contributory negligence on the part of the plaintiff.
On 30 April 1999, the defendants filed an amended Entry of Appearance and Defence and Counterclaim which alleged that it was an implied term of the plaintiff’s contract of employment that he would carry out his duties with reasonable care, skill and diligence, including the exercise of reasonable care for his own safety, that the plaintiff was in breach of that implied term, and that the plaintiff was not entitled to recover damages to the extent that they were caused by a breach of that implied term or were too remote from any breach of contract by the defendants, or that the defendants were entitled to set off against the amount of the plaintiff’s claim the amount of the defendants’ liability to the plaintiff, or such portion as had been caused by the plaintiff’s breach of contract, on the basis that this represented the loss suffered by the defendants as a result of the plaintiff’s breach of that implied term. At the trial the plaintiff sought to set aside the filing of this amended document, particularly on the ground that it sought to add a counterclaim which was statute barred: p.5. That issue was not, at that stage, finally resolved. At the end of the trial, I reserved the question of whether I would admit under s.92 of the Evidence Act a statement by a fellow employee of the plaintiff and the hearing was adjourned to a date to be fixed.
It resumed on 20 July 1999, at which time I heard further argument about the substance of these matters. Subsequently, on 23 July 1999, I delivered judgment in the matter of Jones v. Persal & Co (Maryborough Plaint 136/97, McGill DCJ, 23.7.99). For reasons that I there expressed, I concluded that it was not an implied term of the contract of employment that an employee would take reasonable care to avoid injuring himself, so that there is no such implied term of the plaintiff’s contract of employment as is alleged in para. 4A(a) of the amended Entry of Appearance and Defence and Counterclaim in the present matter. I also held that if there was such a term, the plaintiff’s breach of it had not caused the loss constituted by the defendant’s liability of the plaintiff in the action, and applying that to this case the defendant does not make out para. 4D(b) of the counterclaim. I further held, for reasons I there expressed, that it was not open as a matter of law to apportion damages on the basis sought in para. 4D(b)(ii) of the counterclaim in the present case. That conclusion was reached with the benefit of the argument in the present case, and taking it into account, and I reach the same conclusion in this case for those reasons which I need not repeat at length.
In relation to the question of causation, I would add a reference to the comment by Dixon CJ in Watts v. Rake (1960) 108 CLR 158 at 160, in relation to an argument that part of an injured plaintiff’s present condition was traceable to causes other than the accident:
“If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause.”
This, in my opinion, is plainly inconsistent with the proposition that there can be apportionment on the basis of causation, although I acknowledge that the comment was made in the context of an action in tort rather than an action for damages for breach of contract.
It follows that the counterclaim fails anyway. In those circumstances it is not necessary for me to decide whether the claim is statute barred, or whether it could be added by way of amendment notwithstanding that it was statute barred, pursuant to rules in force at the time when the amended pleading was filed, or whether it can now be added by amendment pursuant to the provisions of the Uniform Civil Procedure Rules.
It is also alleged in para. 4A of the amended defence that the plaintiff’s personal injury was not caused by any breach of contract by the defendants, or was too remote. Insofar as the plaintiff suffered loss or damage as a result of the injury which he suffered because of the first defendant’s negligence, that loss and damage was caused by the breach of contract which that negligence constituted, in the same way as the loss and damage was caused by the negligence for the purposes of an action in tort. It was, I think, plainly not too remote from any breach of contract; it is precisely the sort of loss and damage which is to be expected from a breach of the implied term of that employer will take reasonable care to minimise the risk of injury to the employee.
Failure to Mitigate
In para. 4B of the amended Entry of Appearance and Defence, the defendants allege a failure to mitigate on the part of the plaintiff , but relying on the same matters as are alleged earlier in the pleading to constitute contributory negligence. There is commonly said to be a duty on a plaintiff to mitigate damages, and a successful plea of mitigation is sometimes described as a breach of such duty, but I think it may be misleading to speak in these terms. The mitigation principle is really independent of considerations of duty, causation or remoteness; the basis for it is rather that it is inappropriate for a person who could, by reasonable effort, have avoided a loss to ask another to pay for it: Cheshire & Fifoot “Law of Contract” (7th Aust. ed., 1997) p.799. It applies to damages for breach of contract: British Westinghouse Electric and Manufacturing Co Ltd v. Underground Electric Railways Co of London Ltd [1912] AC 673. Since the test of failure to mitigate is whether the plaintiff has behaved reasonably (Fazlic v. Milingimbi Community Inc (1982) 56 ALJR 211 at 214), in practice there will be a failure to mitigate when a court is satisfied that the plaintiff has behaved unreasonably and that that unreasonable behaviour has resulted in damages which are larger than they would have been if the plaintiff had behaved reasonably. This is a situation where, as a matter of policy, the law will not require a wrongdoer to pay damages to the extent that they are greater than they had to be because of the plaintiff’s unreasonable behaviour. The defendant should not be liable for the consequences of the plaintiff’s unreasonable behaviour.
This analysis looks to the situation that has arisen after there has been a wrong, and looks to how the plaintiff reacts to the consequences of that wrongdoing. In my opinion, this is a separate matter from the different considerations which contribute to the original event which constitutes the wrong. The matter is complicated by the fact that there may be a short time or a long time between the negligent conduct (and breach of contract) by the defendant and the suffering of damage by the plaintiff, and this will influence the capacity of the plaintiff to respond, either reasonably or unreasonably, to the wrongful conduct. Whether or not there must be actual damage suffered before it becomes relevant to consider whether the plaintiff has been reasonable in his response to the wrongful situation created by the defendant, there must be at least some opportunity for the plaintiff to respond reasonably.
In the present case, what is alleged is that the plaintiff was failing to mitigate because he failed to take care for his own safety and failed to comply with the instructions and advice given to him by the second defendant prior to the accident. But at that stage there was no identifiable wrong on the part of the defendants to which the plaintiff could reasonably respond. I do not see how a plaintiff can be regarded as unreasonable in failing to respond to the particular way to the defendant’s wrong at a time when there was no reason for him to be aware that there had been a wrong done to him.
In the context of this case where the plaintiff suffered injury in a fall, it seems to me that before the plaintiff fell there was no basis upon which he ought reasonably to have been taking action to mitigate the consequences of the defendants’ wrong which caused him to fall. I respectfully agree with the analysis and conclusions of Williams J in Richardson v. Schultz (1980) 25 SASR 1 at 20. Here it was not reasonable for him to have identified, and guarded against, potential damage from the way the work was organised. Accordingly, he cannot be guilty of failure to mitigate in respect of conduct which is alleged to have occurred prior to the time when he fell. In view of this, in my opinion, the allegation of failure to mitigate cannot succeed.
It follows, in my opinion, that the various matters raised in the amended defence all fail and the plaintiff is entitled to recover damages in respect of his injuries undiminished by contributory negligence, or something analogous thereto. It is therefore unnecessary to decide whether those amendments should be set aside. In case I am wrong about this, however, I will consider the facts and say whether I would have made a finding of contributory negligence against the plaintiff.
Facts
At the time of the accident the plaintiff was employed as an apprentice painter working with the second defendant and another tradesman: p.28. At the time of the accident they were painting a low set fibro house with gables at each end: p.29. It had been painted inside and the outside was being prepared for painting. At one end of the property where there was a gable there was also an air conditioning unit with a duct leading up towards the peak of the gable, as shown in the photographs, Exhibit 12. According to the plaintiff, a plank was set up with one end resting on the air conditioning unit and the other on a step ladder, and another ladder ran from the top of the plank up to the ducting, to enable the higher part of the gable to be reached: Exhibit 11. The plaintiff said that this was set up first on the right side of the air conditioning unit by the second defendant, but that after he left the job the plaintiff had moved the ladders and the plank around and set them up in a similar way on the other side: p.30, 31, 41. This was done in order to enable the plaintiff to keep working. The plaintiff then went up the ladders and did some work near the top of the gable, but when he was coming down, the end of the plank slipped off the air conditioning unit so that he fell about 5 or 6 feet to the ground: p.32.
The plaintiff acknowledged under cross-examination that the aluminium plank provided a slippery surface and that setting it up in this way was obviously dangerous, but he said that he did not think about that at the time: p.43. He assumed from the fact that he had seen his employer work in this way that it was all right to do so.
The Second Defendant, Mr. Colson, said that he set things up that morning. He put a five foot ladder against the air conditioning duct and then ran a plank from that ladder on to the four foot ladder: p.60. He climbed up and there was a part which he could not reach so he used another four foot ladder, stood it on the plank, and reached up as far as he could to see what he would need by way of a longer ladder: p.60. He said to the plaintiff to do what he could from the plank and then he would do the rest when he got back with a longer ladder: p.60. The way he set up the ladders and the plank is shown in Exhibit 14, which is not very different from Exhibit 11, drawn by the plaintiff, except that Mr. Colson has the plank resting on another ladder at the air conditioner end, rather than on the edge of the air conditioner itself. He said that it would have damaged the air conditioner to have the plank on top of it: p.61. After he had used the third ladder to measure the height required, it was taken down and put up against the fence: p.63. When he returned, after the accident had happened, the ladders and planks had been taken down from the left side of the air conditioner and moved around to the other side, but he only saw it on this other side after it had collapsed: p.63. The ladder that had been against the fence was with the other ladders and the plank, lying on the floor: p.63. Mr. Colson said he had three ladders with him that morning (p.59) whereas the plaintiff said that there were only two ladders: p.42. The version given by Mr. Colson is slightly different from what was put in cross-examination at p.42. There it was put that Mr. Colson had tried to work on the third ladder but had come down and said to the plaintiff that it was too dangerous to work that way and not to do it. This was denied by the plaintiff.
I also had a statement made by Mr. Shewan, the tradesman painter who was working for the first defendant at the premises at the time of the accident: Exhibit 16. This I ruled admissible under S. 92 of the Evidence Act 1977, notwithstanding the failure to call Mr. Shewan, since I considered that the affidavit of Mr. Evans Exhibit 15 satisfied the requirement of subsection (2)(c), that Mr. Shewan cannot with reasonable diligence be found. Although it is true that more could have been done, I consider that what was done was reasonable, in view of the nature of the action, the amount involved, and the possibility that Mr. Shewan was being deliberately uncooperative. The fact that he was not available for cross-examination can be taken into account when assessing the weight to be given to the statement. According to this statement, Mr. Shewan had been painting at the same end of the house as the plaintiff, and he had painted most of the section to the left of the air conditioner. He continued to work on one ladder while the plaintiff took the plank and other ladder to the other side of the air conditioner; he told the plaintiff to move the ladder and plank while he finished off with one ladder. Next he heard a crash from the other side of the air conditioner and the plaintiff was on the ground with his leg broken. Mr. Shewan did say that before the plank was moved to the other side of the air conditioner it was placed on two ladders, which is consistent with the evidence of Mr. Colson.
I think there is some difficulty in reconciling the evidence of Mr. Colson and Mr. Shewan. According to Mr. Colson, there was part of the end wall and eaves on the left hand side of the air conditioner which he could not reach because it was out of reach from someone standing on the plank, and he apparently did not attempt to work from the ladder on top of the plank. Yet according to Mr. Shewan, most of the painting on the left side of the air conditioner had been completed and he was just finishing a couple of pieces that had been missed when the accident happened to the plaintiff on the other side of the air conditioner. If Mr. Colson did not prepare the area near the peak of the gable, it is not clear how on Mr. Shewan’s version that was done. I think it is unlikely that the painting would have been finished on the left side of the air conditioner if there was an area at the top which had not been prepared yet. Assuming that Mr. Shewan could paint the higher parts that were out of reach from the plank using extensions to the handle of his roller (p.62) that still would not explain how the higher parts came to be prepared. It is of course possible that Mr. Shewan just painted over something that had not been prepared, but that would, I think, be unlikely.
It seems to be common ground that the accident did happen on the right side of the air conditioner, after the plaintiff had set up a ladder and plank combination on that side. There is also the consideration that according to Mr. Shewan’s evidence, he was standing on a ladder at the time when the accident happened to the plaintiff, but according to Mr. Colson after the accident the three ladders were together in the area where the plaintiff fell. It is not quite clear from the plaintiff’s evidence whether he or Mr. Colson used the higher ladder to do the highest part of the gable, but in re-examination at p.57 the plaintiff said that he climbed the higher ladder after he had set the system up on the other side of the air conditioner because he had seen Mr. Colson do so earlier. That suggests that Mr. Colson did this preparation on the left side of the air conditioner, and indeed that would be consistent with what was put to the plaintiff in cross-examination at p.42.
It appears from the plaintiff’s evidence that the accident happened because the end of the plank slipped off the air conditioning unit: p.32. The transcript of this point suggests that the plaintiff had slipped first, but that is not recorded in my notes, and I think at this point the transcript was not quite accurate. The plaintiff may have started to say “I slipped” but then corrected himself to say the plank slipped. In these circumstances it may not have mattered very much whether the plank was resting on the edge of the air conditioner, or resting on a rung of a ladder leaning up against the ducting, above the edge of the air conditioner as Mr. Colson would have it, because either way the plank was not set up so that it was securely supported at that end.
There was some difficulty with Mr. Colson’s version, as illustrated in his diagram, Exhibit 14. According to his evidence, the longest ladder he had was a five foot ladder: p.59. He said that the five foot ladder was resting on the ground and leaning on the air conditioning ducting as shown in Exhibit 14. It is apparent from photograph B which is part of Exhibit 12, that the air conditioning ducting is set in a little from the edge of the air conditioner, so a ladder leaning beside the air conditioner and resting against the ducting would have to be a good deal higher than the main body of the air conditioning unit. But it is also apparent from the photographs that the air conditioning unit would be about four feet tall, and it is difficult to see how a five foot ladder would have been long enough to rest up against the ducting. In Exhibit 14, the ladder resting against the ducting is much higher than the air conditioning unit, and indeed much higher than the four foot ladder at the other end of the plank, although I acknowledge that the diagram is obviously not to scale. It also seems strange that an experienced painter would have to get up on a plank and then use another ladder in effect as a measuring device to see how long a ladder he needed for the job, or indeed that he would not have been able to work out what equipment he needed when they had been at the house earlier painting the interior. On the whole, I think it more plausible that the plank and ladder configuration was set up in a manner described by the plaintiff. I think it plausible that the plaintiff would simply reconstruct on the other side of the air conditioning unit a mirror image of what had been set up by Mr. Colson, and I think on the balance of probabilities that that is what occurred.
There was really no argument that this was unsafe, and liability in negligence was conceded: p.2. I think that it was also a breach of the term implied in the contract of employment for the plaintiff to be allowed or required to work in this fashion. That, however, does not resolve the question of whether there was contributory negligence.
The plaintiff conceded that it was obviously dangerous to climb the higher ladder in these circumstances, even to him as a 15 year old: p.43. But he climbed the ladder in order to do his work (p.56), and assumed that it was appropriate to do so because he had previously seen Mr. Colson climb it on the other side of the air conditioner: p.57. Mr. Colson’s evidence about instructions he gave when he left the site varied somewhat (p.60), as indeed I would expect after this length of time, and varied from the version put in cross-examination, and I am not satisfied that he gave any clear instruction to the plaintiff not to climb on the other ladder, or indeed onto the plank. It does seem clear, however, that the plaintiff was expected to continue working in Mr. Colson’s absence, and do what he could do, and in these circumstances the plaintiff could reasonably have concluded that he was expected as part of his job to climb this higher ladder in order to reach the highest part of the gable, as he had seen Mr. Colson climb it when it was on the other side of the air conditioning unit. It is not contributory negligence if an employee, particularly a young and inexperienced employee, does something which is obviously dangerous if he does it because he believes that he is required to do it as part of his job: Commissioner for Railways v Halley (1978) 28 ALR 409 at 413 per Stephen J, 415 per Jacobs J. I think that that applies in the present case, and it follows that the plaintiff was not guilty of contributory negligence.
Quantum
The plaintiff was born on 25 June 1976 (p.27) and was 15, almost 16 at the date of the accident, 28 May 1992: p.28. After Mr. Shewan found him on the ground he called an ambulance (Exhibit 16) and the plaintiff was taken to the Mt. Isa Base Hospital where he was found to have a fracture of the tibia and fibula of the right leg near the ankle: Exhibit 1. The fracture was three to four inches above the ankle: p.10. There was a manipulation under anesthetic that day after which the leg was placed in a plaster. There was further manipulation in order to adjust the angle, done without an anesthetic the next day: p.33. The plaintiff was discharged home on 2 June. The plaintiff did not recall much between the time when he was on the ground after the accident with pain in his ankle and when he woke up the next morning in hospital (p.32) but he suffered a lot of pain in hospital and he was still in pain at the time when he was discharged. For two weeks he stayed mostly in bed, later mobilising on crutches. He improved slowly, returning to work in October 1992: p.33. He later obtained other employment and he was able to finish his apprenticeship in April 1996: p.34.
At the present time the leg does not cause any great difficulties in his employment: p.35. He said it gets a little bit sore sometimes if he has been on it for too long, particularly walking, but this does not cause him any difficulty doing his job except sometimes with squatting: p.36. I must say that my impression overall from his evidence is that there is very little trouble from the leg at the present time.
The plaintiff was seen for the purposes of a report by Dr. Langley, an orthopaedic surgeon, on 7 March 1996: Exhibit 2. On examination there was a slight shortening of the right leg, and no indication of muscle wasting, although Dr. Langley thought there was a slight limp. Dr. Langley thought that there was a slight angulation backwards when the bone was set which could interfere with the muscle operation during squatting, and pain in the knee joint. He assessed permanent disability of the right leg of 25%. Dr. Langley had x-rays taken which confirmed the angulation (Exhibit 3) and thought that degenerative change in the leg from the injury was unlikely: Exhibit 4. He saw the plaintiff again on 30 April 1999 for the purpose of a further report (Exhibit 5); at which time he thought there was slight wasting in the quadriceps and calf muscles of the right leg. Dr. Langley confirmed his assessment of disability, and thought that the leg symptoms may shorten his working life by approximately 5 years, and would interfere with his ability to do heavy, physical work.
The plaintiff saw Dr. Martin, an orthopaedic surgeon, on 17 November 1997 for the purpose of a report: Exhibit 9. Apparently the plaintiff did not complain to Dr. Martin of any symptoms or difficulties associated with the injury to the leg. On examination, Dr. Martin found no limp, and no wasting, although there was a shortening of one centimetre. Dr. Martin said that because the angulation was in the plane of the ankle joint it would not interfere with the function of the ankle joint, and that there was no more than minimal disability associated with shortening and deformity, possibly 3%. It is apparent that the plaintiff was rather less forthcoming about any symptoms with Dr. Martin than he was with Dr. Langley or in his evidence in court, although he was not very forthcoming in court.
The effect of the angulation is that the bones at the fracture site are tilted 20º to the rear (p.25), but this does not affect the range of movement in the ankle joint which can accommodate it by adopting a slightly different position: p.18. Dr. Langley’s figure was based on tables in the guides for impairment used by the American Medical Association: Exhibit 5. He explained how this was applied (p.8) and it is apparent that this does not differentiate between angulation which does and angulation which does not impact on the function of the ankle: p.25. Certainly for the present purposes there are little in the way of practical adverse consequences of this injury to the plaintiff. The real question is whether there is a prospect of things getting worse in the future. On any view of the matter there seems to be no substantial risk of deterioration in the near future, or even the medium future, but the plaintiff is still quite young and it is difficult to know whether there may be some deterioration at some stage in his life, particularly deterioration which will impact on his ability to work normally as a painter.
On the whole, I think that there is some force in Dr. Langley’s proposition that if a person is having some problems with squatting, there is a risk of the condition becoming more serious in the distant future, and some allowance must be made for this, even if the probability of anything significant happening seems at the moment to be less than 50%: p.14. I think that the difference between the doctors is largely that Dr. Langley is making some allowance for the possibility that things may get worse in the future, whereas Dr. Martin is not, because he regards that as unlikely. I think the correct approach in these circumstances, in view of Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638, is to make some allowance, based on the possibility that the plaintiff may develop problems in the more distant future, which may impact on his working life in time, but there probably will not be significant problems, at least during his working life as a result of this injury.
On this basis, I think that the figure of 25% disability as a result of this injury is not a realistic measure of the practical consequences of the injury to the plaintiff. It would have been quite painful at the time but once the initial injury settled, there has been little in the way of continuing symptoms, and that is probably what will remain for the rest of the plaintiff’s life. Some allowance must be made, however, for the possibility of things getting worse in the more distant future. On the whole I think that the figure of Dr. Martin is more realistic, although his may be a little low since he was not told the full story about the symptoms, and I find that the disability is 5% of the leg. In all the circumstances I assess damages for pain and suffering and loss of amenities in the sum of $12,000 of which I apportion $5,000 to the past. That will carry interest at 2% for 7.2 years.
With regard to economic loss, it was conceded that the loss during the period immediately after the accident was $2,878.80: p.4. The plaintiff returned to work with the defendant in October 1992, and although he subsequently changed employers (Exhibit 6) it does not appear that he lost any more time off work as a result of this accident: p.44. Nevertheless, he was delayed in the completion of his apprenticeship by a little over three months in 1996: p.34. He obtained employment with Deraview Pty Ltd from March 1995 until November 1997 (Exhibit 10), and counsel for the defendant therefore submitted that the practical effect of the late completion of the apprenticeship could be determined by comparing the plaintiff’s actual level of remuneration from this employer in the periods prior to and after the completion of the apprenticeship. He worked out an average net weekly income over a period of 26 weeks before and after the relevant date, and I think that this methodology is appropriate, although there were some errors in his schedule which did not quite correspond with Exhibit 10. These errors affect the body of the schedule rather than the final outcome, which has been corrected without adjusting all of the intermediate figures. On my calculations the final figure of $1,348 correctly reflects the difference between the averages in the periods 26 weeks before and after the relevant date in Exhibit 10. I accept this figure and it follows that the total past economic loss is $4,227. Interest should be allowed on $1,348 at 8% for 3.5 years.
With regard to future economic loss, if the plaintiff will lose five years at the end of his working life, that would produce a current loss on the basis of the appropriate discounting of just under $26,000. Counsel also submitted that the plaintiff would be at risk in the labour market for some period prior to this, and some allowance should be made for that as well. All of that would be appropriate if it were certain that the plaintiff would suffer such a loss, but in my opinion the effect of the evidence is that the plaintiff may or may not suffer a loss of this nature, or indeed possibly even more loss, but the more likely outcome is that the plaintiff will suffer little or no loss of income in the future as a result of this injury. In those circumstances I think the appropriate course is to allow a global figure of $10,000.
Damages for gratuitous care were agreed at $2,000; interest should also be allowed at 4% per annum for 7 years. Special damages were agreed at $2,962 (p.5) plus the Fox v. Wood component of $299: Exhibit 8. Apart from the items in Exhibit 8, special damages amount to $905 which should carry interest at 8% per annum for 7 years.
Summary
1:Pain and suffering and loss of amenities $12,000
2:Interest on $5,000 at 2% for 7.2 years $720
3:Past economic loss $4,227
4:Interest on $1,348 at 8% for 3.5 years $377
5:Future economic loss $10,000
6:Gratuitous care $2,000
7:Interest at 4% for 7 years $560
8:Special damages $3,261
9:Interest on $905 at 8% for 7 years $407
Sub-Total $33,652
LESS Workers’ Compensation refund $5,235
TOTAL: $28,417
There will therefore be judgment that the first defendant pay the plaintiff $28,417, which includes $2,164 for interest. I will publish these reasons and hear submissions in relations to costs, but unless some other order is appropriate, there will be an order that the first defendant pay the plaintiff’s costs of the proceeding to be assessed. The further hearing on 20 July 1999 was devoted to argument about contributory negligence and consequential matters, and I think the first defendant should pay the plaintiff’s costs of that day in any event.
Counsel for the Plaintiff: R.J. Lynch (led on 20 July 1999 by R.J. Douglas SC)
Counsel for the Defendant: R.J. Whiteford
Solicitors for the Plaintiff: V.R. Moffatt & Associates
Solicitors for the Defendant: L.A. Evans & Co
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