Kotlowski v Grace Hurst & Suncorp Metway Insurance
[2004] QDC 311
•9 June 2004
DISTRICT COURT OF QUEENSLAND
CITATION: Kotlowski v Grace Hurst & Suncorp Metway Insurance [2004] QDC 311 PARTIES: DESMOND DAVIS KOTLOWSKI
(Plaintiff)-v-
GRACE HURST
(1st Defendant)and
SUNCORP METWAY INSURANCE LTD
(2nd Defendant)FILE NO/S: D.15/03 DIVISION: PROCEEDING: Application for Personal Injuries ORIGINATING COURT: District Court of Bowen DELIVERED ON: 9 June 2004 DELIVERED AT: Townsville HEARING DATE: 23 May 2004 JUDGE: PACK D.C.J. ORDER: I give judgment for the plaintiff in the sum of $103,430.00
I order that the defendants pay the plaintiff’s costs of and incidental to the action to be agreed or assessed with liberty to apply.
CATCHWORDS: GENERAL DAMAGES, PAIN AND SUFFERING, SPECIAL DAMAGES, PAST ECONOMIC LOSS, FUTURE LOSS, FUTURE MEDICATION AND MEDICAL ATTENTION, COSTS.
REASONS FOR JUDGMENT
PACK DCJ delivered the ninth day of June 2004
In this matter liability is not in issue.
The plaintiff was born on 4th July 1973.
He was injured in a motor vehicle accident on 23rd May 2001.
The plaintiff was born in New Zealand. He was in foster care from the age of six months and first met his mother when he was 10 years of age at his father’s funeral. He had never met his father.
The plaintiff had some difficulty with education. His adopted parents separated and he was then cared for by his adopted mother and her new partner. He did not complete the equivalent of a grade 11 education in Queensland and finished school when he was 17 years of age.
Upon leaving school he had very poor reading and writing skills. He had considerable difficulty at school and was often in “special classes”. His employment history includes that he undertook a course related to the apple and pear industry. The course was to assist him in obtaining employment and he did obtain some employment fruit picking. He picked apples and pumpkins and had seasonal fruit picking work for a couple of years. He also undertook a farm training course and obtained employment as a farmhand which he kept for about eight months.
Just before he turned 19 years of age he commenced working for a Mr Stirling at a chicken farm. That farm produced eggs and raised chickens for consumption. His role was to feed chickens and clean the cages, also being involved in collecting and packing eggs. He also sorted, caught and transported live chickens to an abattoir and later to collecting frozen chickens and packing them into freezers. After approximately two years he was placed in the position of foreman but he still carried out work on the farm which he enjoyed.
His ability to read and write was improved significantly as a result of coaching and encouragement from the Stirling family. He still has difficulties in this regard but is much better than when he left school and can generally understand things which are written if time is allowed. For example, he said in evidence he took well over a day to read and understand the content of the quantum statement which was tendered as an exhibit. The plaintiff has effectively been adopted by the Stirling family who migrated to Australia and in recent years he has been acting as a carer for both Mr and Mrs Stirling whose state of health is such that care is required. The farm in New Zealand was sold in 1995. It seems that they continued on in the poultry industry for some time after that. The plaintiff then entered into a business with Mr Stirling who was the director with the plaintiff being the managing director. That business had to do with the manufacture of animal repellents, the business closing at the end of 1989. At that stage there had been an attempt to run the business in Australia and the plaintiff and the Stirlings were living in Proserpine. There was then an attempt to gain an income by selling household products. Again, that business was not successful.
At the beginning of 2001, the plaintiff started working in Airlie Beach in a laundry.
The employment apparently involved no fixed wage but was an opportunity to earn income doing laundry work for people who came in to the coin laundry and to earn income by using the coin laundry for contract work that the plaintiff might have obtained such as from hotels. He did obtains some contracts but no money was made for a couple of months and it seems that the best result in net terms was about $50 per week.
The plaintiff undertook a course to advance his mechanical knowledge in 2001. he says that at this time he hoped he might be able to enter a trade as a mechanic. He like mechanical things and the results that he obtained were good enough, although he course was not directed to the trade, to encourage a Mr Darren Davis who operates a mechanical workshop at Airlie Beach, to give evidence to the effect that he would have been prepared on those results to offer the plaintiff a job as a trades assistant when a position became available and perhaps later, offer him an apprenticeship.
There was evidence from a Ms Ju’lee Pollard who apparently conducts the Airlie Beach Coin Laundry. She got to know the plaintiff as a result of his laundry work and found him to be a happy, efficient, hard worker. She said she knew from her clients dealings with him he was popular. She says that she was, at the time of the accident, considering offering him a position to work for her for wages because there would have been a position, at least to earn a limited fixed wage, carrying out duties which would have included the repair of driers and washing machines which according to the witness, would present no particular difficulty in terms of complexity.
Having seen and heard the plaintiff and also taking into account the impression he created on Miss Pollard, I think the plaintiff presented as someone who was not likely to have been able to cope with a course of study leading him to become a qualified mechanic although I do not dount he would have attempted to do so if the opportunity arose.
The plaintiff impressed as a person who, if shown what to do, possibly with some patience, would be a person who would accept direction and would work hard. I thought he was obviously honest and I do not find it surprising that Miss Pollard’s customers liked dealing with him nor that she would offer him a position.
The economic loss aspects of the matter are complicated. The plaintiff is now a full time carer. He received a pension as a carer in December of 2000 and by May of 2001 he was receiving a supplementary income because he was by then the carer to both Mr and Mrs Stirling. There is a significant chance it seems that he may well end up caring for their son who has some intellectual impairment. He does not do so at present because the maximum number of persons that can be cared for is two. I think he is accepted as a member of the family and I think that the plaintiff has a loyalty to the Stirling family.
I think the plaintiff would have been looking for some alternative employment, at least employment which would have gained him an increase in income at or about the time of the accident. Miss Pollard also said she had noted that the plaintiff was studying mechanics. She thought that mechanical skills might be of assistance in her business. That also encouraged her plan to offer the plaintiff employment at about the time of the accident.
The plaintiff had no history of spinal pain antecedent to the accident.
He suffered cervical pain for a period of a couple of months.
He had had a right knee injury when playing football at about the age of 13 but says, and I accept, that he had no trouble from that prior to the accident. There was no obvious swelling or bruising at the time of the accident but investigations reveal that there are early degenerative changes in the knee joint which is otherwise normal. It does not seem that any ongoing problems that he has in the right knee can now be ascribed to the motor vehicle accident.
With regard to the spine, the plaintiff now has as a significant problem being pain in the lumbo-sacral region.
So far as his lower spine is concerned, investigations indicated that small Schmorl’s nodes were detected at T12 at the top of L4, at the L4/5 level and L5S1. There was some bulging of the L4/5 disc. Dr Cook, orthopaedic surgeon, concluded that the lower back pain was related to a soft tissue injury and aggravation of pre-existing Scheuermann’s disease.
The plaintiff has always been a large man and his weight escalated to over 150 kilograms following the accident. He was not exercising but he has reduced that weight considerably but has a long way to go before getting to the weight Dr Cook thinks would potentially reduce his symptomology. His weight gain was accident related
He had physiotherapy for a period and has been consulting a dietician for some time to address his weight problems. I think it unrealistic to expect the plaintiff will ever reduce his weight to a stage that there will ever be any significant reduction in his current symptomology.
The plaintiff has been taking anti-inflammatory pain killing medication since the accident.
The plaintiff endeavoured to continue on with his laundry work about six weeks after the accident. It was during this period that Miss Pollard noted that he was having difficulty lifting and carrying out his work and he has relatively recently returned to it in a limited way.
I think the plaintiff’s first priority is likely to have been to his duty as carer. It seems to me unlikely that he ever would have been attracted to working more than about 20 hours a week as a maximum and whilst such a time frame would have suited Ms Pollard, it seems unlikely that he ever would have sought any full time employment after the accident. Hypothetically he might not have done so at any time though this is a possibility in the much longer term. Mr Stirling is 72 years of age. He has full intellectual capacity. He has undergone open heart surgery and the condition he suffers requires assistance with any of the household chores such as mowing and any lifting. Mrs Stirling suffers from dementia and this has been progressing for more than 10 years and the Stirling’s soon who was brain damaged at birth has a mental age of about 13 years. The plaintiff did cleaning and vacuuming and work of that kind before his accident. Mr Stirling also suffers from diabetes. He also suffered a spinal injury in a work related accident some 25 years ago.
To the extent that there was a variation in the medical evidence from Dr Nutting and Dr Cook I prefer the evidence of Dr Cook.
Dr Cook indicated in his reports in evidence that the plaintiff was vulnerable to significant back related problems as the result of his pre-existing condition. In that event the plaintiffs capacity to work may have been adversely affected possibly between seven and twelve years into the future.
I assess general damages in the sum of $30,000. I allow interest on past pain and suffering at $900 being interest of $15,000 for two years.
So far as the special damages are concerned, the only controversial aspects relate to the medical charges and medication which might relate to the knee condition. I propose to allow special damages in the sum of $3,500. I allow interest on $2,000 for three years in the sum of $180. In terms of past economic loss, there are separate periods to consider because the plaintiff returned to work in July 2003 and earned a limited amount approaching $50 a week since. I conclude that it is probable the plaintiff would have accepted an offer which would gain him greater remuneration from Miss Pollard. The work required demands fluctuated according to the level of the presence of tourists in the Whitsunday area and it is not possible to come up with any precise figure after balancing all the contingencies.
I propose to allow $15,000 for past economic loss and $1200 for loss of superannuation entitlements.
I allow $1,000 interest on past loss of income. I allow $35,000 for future loss of income and $3,150 loss of superannuation entitlements.
There is a paucity of material in relation to the Griffiths v Kerkemeyer claim. It lacks particularity.
I am satisfied there are some things that the plaintiff cannot now do that he was able to do previously.
Each member of the household has incapacity and now that the plaintiff is injured they do the best they can to help one another. I allow $1,000 including interest for past care. For future care I allow $5,000.
The claim for future medication and medical attention needs to be discounted further for the years claimed and level of expenditure for the reasons touched upon in relation to the past claim. I allow $7,500 of that claim.
The total of those amounts is $103,430.00 I give judgment for the plaintiff in the sum of $103,430.00.
I order that the defendants pay the plaintiff’s costs of and incidental to the action to be agreed or assessed with liberty to apply.
0
0
0