Lawson v Lawson
[2000] QSC 134
•10/05/2000
IN THE SUPREME COURT
OF QUEENSLAND
CAIRNS No. 48 of 1992
Before the Hon. Justice Jones
[Lawson -v- Lawson & Ors] [2000] QSC 134
Plaintiff: DANA JAN LESTER LAWSON
First Defendant: CHRISTINE MARIE LAWSON, DANA JAN LESTER
LAWSON and LEANNE CARYLL LAWSON carrying
On business as LAWSON TRANSPORT SERVICE
Second Defendant: LEON LAWSON
Third Defendant: ROY BIRD MACHINERY SALES PTY LTD
Fourth Defendant: ROY FRANCIS BIRD
Fifth Defendant: ROBERT GAVIN AGNEW
JONES J
Judgment delivered 10th day of May, 2000
Judgment for the plaintiff against the first and second defendants in the sum of $708,528.60 with costs to be assessed.
Catchwords: DAMAGES - QUANTUM - Personal injury - Right lower leg amputation - Prostheses - Past economic loss - Griffiths v Kerkemeyer - Future economic loss - Past care - Future care - Past expenses - Future expenses
Counsel:Mr M. Burnett for the Plaintiff
No appearance for the Defendants
Solicitors:Quinn and Scattini for the Plaintiff
No appearance for the Defendants
Hearing date: 11 February 2000
IN THE SUPREME COURT OF QUEENSLAND
Registry: Cairns
Number:S58 of 1992
Plaintiff: DANA JAN LESTER LAWSON
First Defendant: CHRISTINE MARIE LAWSON, DANA JAN LESTER
LAWSON and LEANNE CARYLL LAWSON carrying
On business as LAWSON TRANSPORT SERVICE
Second Defendant: LEON LAWSON
Third Defendant: ROY BIRD MACHINERY SALES PTY LTD
Fourth Defendant: ROY FRANCIS BIRD
Fifth Defendant: ROBERT GAVIN AGNEW
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE JONES
DELIVERED THE 10th DAY OF MAY, 2000
On 3 July, 1989 the plaintiff was a member of the firm Lawson’s Transport Service which carried on the business of general carriers. On that day he was injured when part of an insecure load fell from a truck which he was operating causing a traumatic amputation of his right lower leg as well as a closed fracture of his left femur. He has sued in respect of this incident and on 23 August, 1999 obtained a judgment against the first and second defendants for damages to be assessed.
The task presently before me is to assess those damages for personal injury.
The plaintiff was born on 7 January, 1962 and is therefore presently 38 years of age. At the time of the incident, 10.75 years ago, he was 27 years old. He worked in the business as a truck driver. He was in good health and he frequently engaged in active pursuits such as rugby league and Australian Rules football, boxing, roller hockey and speed skating. He also engaged in swimming, dancing and scuba diving on a regular basis. His prospects of continuing in the family business and doing so with success can be measured by the determination which has characterised his return to work notwithstanding his significant disability.
The plaintiff was treated initially at the Cairns Base Hospital where the amputation below the right knee was completed. Some three days later he returned to the operating theatre to have more of his right leg amputated, this time above the right knee. On 9 July, 1989 his left leg was treated by an open reduction and the insertion of a plate. Throughout this time he was treated mainly in the intensive care ward returning to the general orthopaedic ward on 14 July, 1989. He was discharged from hospital on 11 August, 1989, some 38 days after the incident.
On discharge from hospital he was mobilised in a wheelchair and on crutches. He underwent intensive physiotherapy and was subsequently fitted with a prosthetic limb on the right side. For approximately one year after the accident he had to bandage the stump three or four times a day to ensure that it retained an acceptable shape.
In addition, the plaintiff suffered phantom pains occurring about six times a month which centred on his absent right calf area. He also had some difficulties with pain and burning sensation in his stump.
Over time the plaintiff has suffered with back pains because of the strain imposed on this area by his walking style, he suffers also with headaches and with some psychological problems which Mr. Salzmann has diagnosed as a mild post traumatic stress disorder. He experiences some loss of confidence, feels self conscious about physical problems and this has impacted on his interpersonal relationships.
The disability associated with the damage to his lower limbs has been assessed at 90% of loss of use of the right lower limb, 5% total body impairment because of the back sequelae, 5% loss of use of the left lower limb, 5% total impairment due to phantom pain.
The plaintiff is significantly disadvantaged by this level of disability. He is unable to engage in the physical recreational activities which he previously enjoyed. He, of course, finds working and maintaining employment a much more onerous task than previously and as I have mentioned he has difficulty with interpersonal relationships.
The allowance for pain, suffering and loss of amenities I assess at $110,000.00 of which $50,000.00 is attributable to the past period. This sum will attract a further allowance for interest at 2% for a period of 10 years which calculates to $10,000.00.
The plaintiff will have to undergo continuing treatment associated with the care of his stump and the replacement of prostheses. He will incur continuing expenses associated with the change of prostheses and the provision of some socks and other consumables.
Past economic loss
The plaintiff first returned to work after his injury in March 1990. Between then and 5 July, 1991 he worked for the family as a truck driver. To enable him to do this the truck had to be modified by being fitted with hand controls. On 5 July, 1991 he crashed the vehicle and it was written off. It became necessary then to wind up the partnership.
Between July, 1991 and September, 1998 the plaintiff had a series of temporary employments. He worked for short periods as an agricultural worker, picking fruit and avocados. He attended a government funded course in agricultural studies for approximately 6 months and later, for 9 months, worked as a taxi driver.
Since September, 1998 the plaintiff has worked as a casual driver for Northern Safecorp Consultants driving trucks interstate. Whilst this is a physically demanding job the plaintiff appears to be able to manage it, which is a tribute to his determination and tenacity in overcoming the effects of his disability. The economic loss associated with his disability has been commented upon in reports prepared by Vincents, Chartered Accountants. For the time from the injury to the date of trial there are two periods where income was lost.
The first was between 4 July, 1989 and 31 March, 1990 when the injuries prevented the plaintiff from working at all. Had he been able to, he would have worked in the family business in respect of which his contribution to profit was valued at approximately 90%. The partnership, in fact, offered no identifiable loss because the plaintiff’s father undertook the plaintiff’s duties and so essentially the measure of the partnership loss is the cost of replacement labour provided by the father.
The method adopted by Vincents to calculate this cost was by reference to the actual earnings of the plaintiff for a period of 10 months prior to commencement of the partnership. This revealed a notional net weekly value of the services of Mr. Leon Lawson of $477.60 per week which for the period of the disability calculates to a total value of $14,901.00. This sum should be reduced to take account of contingencies and the fact that this was, to an extent, a partnership loss some part of which was borne by the other members of the partnership.
There is no evidence as to the profit sharing arrangements in the partnership so the matter can be looked at only on a very broad basis. Given the unequal contributions to the partnership work and the fact that it is a partnership between brother and sisters, not husband and wife, I am not prepared to infer that the loss is to be borne equally. Whether the replacement of the plaintiff’s labour is to be characterised as Griffiths v Kerkemeyer type service or as financial loss, for this period, I would assess its value at $10,000.00.
For the second period from 6 July, 1991 to 18 October, 1998 the partnership had been dissolved and the plaintiff found himself competing on the open labour market. Schedule A to the Vincents’ report details the plaintiff’s actual income compared with what he might have earned had he been capable of doing the full range of work as a truck driver based on ABS income figures for persons engaged in that calling. I accept that the calculation of loss of income for this period is properly based and the amount reached as reasonable. Given that the plaintiff has continued to work as a truck driver after this specific period there is no basis for any significant reduction in the amount calculated for contingencies. I would therefore allow $159,000.00 as the appropriate loss of income for this period.
The total allowance for loss of income prior to trial then is $169,000.00. The plaintiff has not received any Workers’ compensation payments, nor it seems any payments from the Department of Social Securities. As a consequence interest will be allowed on the total of the past economic loss at 5% per annum yielding a further allowance of $84,500.00.
Future economic loss
The plaintiff is presently working as a casual truck driver earning on average $290.00 per week against an industry average of $550.00, a differential of $260.00 per week.
Obviously the plaintiff is restricted in the range of tasks he can perform, particularly with regard to loading, unloading and securing the loads. Presently and in the future he will be restricted to driving heavy vehicles which do not have such additional physical demands. There is a very significant prospect that if for any reason the plaintiff loses his present employment with the family-connected business, he will have difficulty finding a position with the equivalent flexibility. There is also the question of whether the plaintiff’s disability will result in a shortened working life. There is no specific professional opinion on this point but it stands to reason that there is a significant chance of such an outcome. Long-haul truck driving has its own physical demands which the plaintiff at present is prepared to meet. This may not be so easy to achieve with advancing years. The plaintiff however has gained business experience and in the future may well take on a more managerial role. He appears to have the capacity to do this.
Taking all these matters into account as well as giving consideration to the usual contingencies I propose to make the allowance for loss of earning capacity by broadly having regard to a reduced capacity of $250.00 per week which should be extended over a 20 year period. The allowance that I make in the end result is the sum of $175,000.00.
The loss of superannuation, past and future, has been the subject of calculation by Vincents. This calculation suggests an allowance which should be rounded off to $20,000.00.
Past care
The plaintiff, upon discharge from hospital, resided with his mother who provided a variety of services. These included in the earlier stages of recuperation, driving him to and from appointments with doctors and physiotherapists and helping him with such everyday tasks as bathing, toileting, dressing and carrying. These services were continued at a steadily reducing level until January, 1990 when the plaintiff was basically able to manage on his own, although he still required services from time to time. For the first 3 months of this period a total contribution by his mother of 280 hours was identified and for the ensuing months thereafter a further 85 hours. [1] At a later time the plaintiff was fitted with a lower limb prosthesis. Whilst he has managed his prosthesis well he has from time to time suffered abscesses on his stump and he requires assistance to dress his wound. Taking into account all of these matters an allowance of $7,500.00 seems appropriate for this range of care.
[1] The affidavit of Dana Lawson para. 50
Future care
For the future the anticipated care will mainly be in respect of the management of his stump which seems to be subject to more than usual stress as is illustrated by the number of prostheses the plaintiff has worn out. The plaintiff is in a stable relationship with a Miss O’Donnell and they plan to marry in the near future. The level of continuing care is not spelt out with particularity but one anticipates, in addition to the need for dressing wounds to his stump, he will require assistance in carrying out many tasks associated with daily living and home maintenance. I would anticipate that an allowance for approximately 1 ½ hours per week is not unreasonable. This sum taken over the likely period of an active life – say 20 years – results in a calculation of an allowance of $10,000.00
Past expenses
The plaintiff has incurred expenses associated with his treatment, with travel and with clothing expenses. These items are detailed in various schedules annexed to the plaintiff’s affidavit. The medical expenses total $24,972.60, which sum has to be refunded to the providers of the various treatments.
The travel expenses, pharmaceutical expenses and clothing expenses are also detailed in the schedules. With the exception of clothing expenses these appear to be genuine out-of-pocket expenses in respect of which the plaintiff is entitled to a claim of interest which I assess at 5% per annum for a period of 10 years. The clothing claim as detailed in ex. “DJLL 4” appears to me to be excessive. I do not accept that the rate of wearing out of the various items is as alleged, either for the pre-injury or post-injury experiences. In the absence of any competing evidence of argument on the point, I am left to determine what is a reasonable allowance having regard to the item costs which are provided. My assessment is that an allowance of $2,500 per annum is adequate for this claim for past and future.
A total allowance for past expenses and the interest applicable is as follows:-
Past medical expenses $24,972.60
Pharmaceutical expenses $ 3,230.00
Interest thereon $ 1,615.00
Past clothing expenses $25,000.00
Interest thereon $12,500.00
Past travel expenses $ 3,474.00
Interest thereon $ 1,737.00
Total $72,528.60
Future expenses
The plaintiff has identified continuing medical expenses which includes the refurbishment and replacement of prosthetic devices and associated medications. The present cost of provision of the artificial limb, repairs, maintenance and associated supplies is approximately $4,660.00. [2] Expenses of this level will be incurred every 3 to 4 years resulting in a cost of approximately $20.00 per week.
[2] Queensland Amputee Limb Service letter 14 August 1998
Other medications have been detailed at $323.00 per annum, or $6.00 per week.
The plaintiff is presently 38 years of age and has a life expectancy of 39 years. In assessing the allowance for these future expenses I would allow the sum of $25.00 per week which should be projected over a period of 35 years (875) resulting in an allowance of $21,875.00 which should be rounded off to $20,000.00. I would make no allowance at all for future counselling expenses, given the plaintiff’s good recovery from his injuries and the time which has elapsed since. I cannot see that counselling services would be of any benefit to the plaintiff at this time.
Thus for future clothing expenses, I would allow at $2,500.00 per annum over a 35 year period. The allowance therefore for this item I should round off to $40,000.00.
The total allowance therefore for future expenses will be $60,000.00.
In summary then the compilation of the plaintiff’s damages will be based on the following allowances:-
Pain suffering & loss of amenities $110,000.00
Past Economic Loss $169,000.00
Interest thereon $ 84,500.00
Future Economic Loss $175,000.00
Loss Superannuation, past and future $ 20,000.00
Past Care $ 7,500.00
Future Care $ 10,000.00
Past Expenses $ 72,528.60
Future Expenses $ 60,000.00
TOTAL $708,528.60
I therefore assess the plaintiff’s damages at $708,528.60.
OrdersThere will be judgment for the plaintiff against the first and second defendants in the sum of $708,528.60 with costs to be assessed.
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