Mahoney v Confab Bell Bay Pty Ltd
[1992] TASSC 112
•13 August 1992
Serial No B35/1992
List “B”
CITATION: Mahoney v Confab Bell Bay Pty Ltd [1992] TASSC 112; B35/1992
PARTIES: MAHONEY, Geoffrey Graeme
v
CONFAB BELL BAY PTY LTD
and KARAS HOLDINGS PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO.: 1082/1988
DELIVERED: 13 August 1992
HEARING DATES: 5, 6 & 7 August 1992
JUDGMENT OF: Zeeman J
CATCHWORDS:
Damages – Particular awards of general damages – Tasmania – Fractures of leg and wrist
REPRESENTATION:
Counsel:
Plaintiff: J F Bourke and D J Porter
Defendant (1): G L Jones
Defendant (2): K A M Pitt QC
Solicitors:
Plaintiff: Jennings Elliott
Defendant (1): Douglas & Collins
Defendant (2): Shields Heritage
Judgment ID Number: B35/1 992
Number of paragraphs: 24
Serial No B35/1992
List "B"
File No 10821988
GEOFFREY GRAEME MAHONEY
v
CONFAB BELL BAY PTY LTD and KARAS HOLDINGS PTY LTD
REASONS FOR JUDGMENT ZEEMAN J
13 August 1992
The plaintiff's claim is for damages for personal injuries suffered by him on 8 April 1987 by reason of the negligence of the defendants. After the trial had commenced each of the defendants admitted that it had been negligent so the matter proceeded as an assessment of damages only.
I heard evidence from the plaintiff, his wife and an orthopaedic surgeon, Mr McIntyre. In addition, hospital records were tendered. There was little in dispute on the evidence. In substance I accept the evidence which I have heard. In particular, I consider that I can fully rely on the plaintiff's evidence. I formed the view that the plaintiff was an honest witness who, if anything, tended to understate the effect of his injuries upon him. I note that Mr McIntyre later expressed the same view.
The plaintiff is a young married man who was born on 20 August 1966. He is a qualified boilermaker/welder but is not presently engaged in that occupation. He lives with his wife at Wynyard and is there employed by Australia Post as a mailman. At the time he suffered his injuries, the plaintiff was employed by the first defendant but engaged in operations being carried out by the second defendant. The first defendant had some form of arrangement with the second defendant whereby the first defendant hired plant and labour to the second defendant. The services of the plaintiff were being provided pursuant to that arrangement at the relevant time.
On 8 April 1987 the plaintiff was engaged in the task of removing roof cladding from a building at the premises of Comalco Aluminium (Bell Bay) Limited at Bell Bay. In particular, he was engaged in arranging for the removal of a number of sheets of roofing iron from the roof by crane. In circumstances which are no longer relevant, that portion of the roof upon which the plaintiff was standing gave way as a result of which the plaintiff fell some forty feet to the ground.
As a consequence of that fall the plaintiff was injured. In particular, the plaintiff suffered fractures of both wrists, a fractured right femur (the reference in Dr McIntyre's first report to the left femur is an obvious error) and a fractured pelvis. The plaintiff was immediately conscious of very severe pain in the right leg and of some pain in the left wrist. A doctor was called and attended at the scene. He administered a pain killing injection and then straightened the plaintiff's right leg and fixed a splint. Despite the injection, the procedures were painful. The plaintiff was taken to the Launceston General Hospital by ambulance. At the hospital the plaintiff was taken to theatre where an open reduction and internal fixation of the right femur was performed using a plate and screw. At the same time his left wrist was manipulated under general anaesthetic and plastered and a plaster back slab was applied to the right wrist.
The plaintiff's leg remained in traction for several weeks, during which time he was in considerable pain. Once the plaintiff ceased to be in traction he remained in bed for about a week although he performed exercises to bend the leg. When the plaintiff was first allowed out of bed he was provided with the use of a wheel–chair and crutches. Gradually, be became more mobile with the use of crutches. Although the level of pain in the leg had reduced, it remained severe. The left wrist remained in plaster for more than five months. The plaster extended from the hand to just below the shoulder and kept the plaintiff's arm in position across the front of his chest.
The plaintiff was discharged from the Launceston General Hospital on 7 May 1987 but continued to attend the fracture clinic at the hospital as an outpatient. When he was discharged from hospital the plaintiff was on crutches and he continued to use those for about five months. On 20 May 1987 it was observed that the comminuted fracture of the right femur was still well held by the plate and screw. On 1 July 1987 it was observed that the plaintiff was doing very well clinically and that he could gradually increase partial weight bearing on his right leg. The orthopaedic surgeon who then reviewed him, Mr Morgan, expressed the view that the left wrist was functioning surprisingly well. On 26 August 1987 Mr Morgan expressed the view that the plaintiff had done excellently, that he could discard his crutches and that he ought to be able to handle light duties at work. On 23 September 1987 Mr Morgan observed that the plaintiff had good function in his leg, walked without a limp and had slight restriction only in the wrist. He considered that the plaintiff would be fit to return to work as a welder the following week.
When the plaintiff first was discharged from hospital he returned to his parents' home at Kelso. From time to time his parents took him to Sisters Creek so that he might visit his girlfriend (now his wife). Generally the plaintiff did not venture outdoors during this period. Prior to his accident the plaintiff had led an active social and sporting life. He was precluded from engaging in such activities during his convalescence. He continued to suffer pain in the right leg and took Panadeine Forte. On one occasion he required a small amount of physiotherapy when one of the muscles in his right leg collapsed. He found that he had difficulty in sleeping, suffering from a certain amount of discomfort and pain and finding it difficult to get comfortable. The fractures of the pelvis and right wrist appear to have united uneventfully with a minimum of discomfort.
At the time that the plaintiff suffered his injuries he was an apprentice boilermakerwelder. He had been due to complete his apprenticeship some six months after his accident. It appears that he returned to work in late September 1987 and resumed his apprenticeship. The date of completion of the apprenticeship was extended by the period of time that the plaintiff had been unable to work. The plaintiff duly completed his apprenticeship and subsequently held a variety of positions as a tradesman boilermaker/welder. Particularly during the early period after his return to work, the plaintiff found that he suffered significant pain in the right leg and he took Panadol to ease that pain once or twice a day.
On 21 February 1988 the plaintiff was admitted to St Luke's Hospital in Launceston for the removal of the screw and plate from his leg. He remained in hospital until discharged on 24 February 1988. He then had a period of convalescence of about one month during which time he was absent from work. He then resumed his work with some difficulty. After some little time he began to cope. Since then there has been little change in the effect upon the plaintiff of his injuries.
On 29 July 1989 the plaintiff married. Not long thereafter he resigned the position he then held as a boilermaker/welder to take up employment with Australia Post as a mailman. He made the decision to do this after weighing up what he considered to be relevant factors. He considered that features of his employment as a boilermaker/welder, such as heavy lifting, pushing and the like made it appropriate for him to cease to be engaged in such work although it has not been suggested that he is not capable of performing such work.
In general terms the plaintiff has made a remarkably good recovery from his injuries. The present position with his injuries and disabilities may be summarised as follows:
(a) Right leg:
The fracture has united in almost perfect position. The plaintiff is left with a significant scar some 12" long and ¼" wide which is not grossly disfiguring but which the plaintiff finds embarrassing to the extent that he tends not to wear shorts in public. The leg tends to ache when the plaintiff runs, jumps or stands for any length of time. He takes medication to ease that pain.
(b) Right wrist:
The fracture united without difficulty and the plaintiff has no complaints.
(c) Left wrist:
It must be observed that the plaintiff is left handed. There is a very considerable distortion of the radio–carpal joint. The wrist is radially deviated about 25 degrees and the head of the ulna is very prominent. There is some weakness in sustaining a hand grip. The plaintiff suffers some pain in the wrist. Such pain is relieved by medication and by massage administered by his wife. There is a possibility that the plaintiff will develop a significant degree of osteoarthritis in the left wrist in which event an arthrodesis would be advised. This would entail bone being taken from the pelvis. It would result in stiffness in the wrist but would not affect rotation of the forearm. The purpose of the procedure is to relieve pain.
(d) Pelvis:
The fracture united in almost perfect position and the plaintiff has had no problems.
(e) Fear of heights:
Since the accident the plaintiff has had a fear of heights.
Consideration is to be given to the various ingredients of the plaintiff's claim for general damages. Various agreed figures put before me result in the plaintiff's past loss of earning capacity being quantified in the sum of $7940.36. By reason of those same agreed figures, the plaintiff's damages for the tax disadvantage suffered by him as a result of his past loss of earning capacity being quantified by reference to net earnings, whereas he is required to allow for the gross payments of weekly workers compensation made to him, is $1660.63.
In quantifying the plaintiff's general damages for non–economic loss, I particularly take into account the frightening and painful circumstances attending his accident, the pain which he suffered whilst undergoing treatment in hospital and whilst convalescing, the ongoing pain which the plaintiff suffers and will continue to suffer as a result of his injuries, the possibility that he will suffer pain and discomfort and a stiffening of the wrist as a result of an arthrodesis being performed, the somewhat disfiguring scar to the leg and the embarrassment which it causes, the disfigurement of his wrist and the moderate curtailment of his sporting and social activities. Tentatively, I attribute the sum of $20,000 to this item.
As I have said there is a possibility that the plaintiff may undergo an arthrodesis of the left wrist. As to that I heard evidence from Mr McIntyre. I accept that evidence. His evidence was to the effect that if the plaintiff underwent this surgery, he would need to spend 710 days in hospital, have his wrist in plaster for some 12 weeks and be unable to work for a total (including the period of hospitalisation) of some 3 – 5 months. At current rates, the cost of this procedure (including the fees of the surgeon, anaesthetist and hospital) would range from $3,800 to $5,200, depending upon the length of stay in hospital. In addition the plaintiff would not be able to earn income for some 3–5 months. Upon the basis of the plaintiff's current net salary (which is agreed) this would result in a further loss in the range of about $5,000 – $8,500.
Mr McIntyre expressed the view that there was a one in three or one in four chance that the plaintiff would require an arthrodesis in 20 – 25 years' time. It was submitted to me for the defendants that whatever amount I considered reasonable to allow against the contingency that the plaintiff might require an arthrodesis to the wrist ought to be calculated on the basis of present costs and by reference to the plaintiff's present salary discounted at 7 per cent so as to obtain the present value of that amount paid in 20 – 25 years' time. Whilst I expressed some doubt about that proposition, on reflection I consider that it is correct as even though one is not concerned with a recurring loss, this item still falls within the provisions of the Common Law (Miscellaneous Actions) Act 1986, s4. Upon that basis and taking into account the degree of likelihood of the expenditure being incurred I tentatively attribute $750 to this item.
Counsel for the plaintiff made certain submissions as to the expenditure likely to be incurred by the plaintiff in the future for pharmaceuticals. In the result, his submissions were that the present value of the sums required to provide the required medication were as to Panadol $2,600 and as to Feldene $1,900(as to the former it being acknowledged that the plaintiff's wife used some of the medication). Counsel for the defendants agreed with those submissions. I tentatively attribute $4,000 under this head bearing in mind that the continued use of Feldene may not be necessary if an arthrodesis is performed.
The final aspect of general damages which falls for consideration is the plaintiff's loss of future earning capacity. The evidence does not suggest that, apart from losses directly arising out of the plaintiff's periods of hospitalisation and convalescence and the resultant extension of his period of apprenticeship, he has suffered any loss of income to date. Despite current economic circumstances he has generally remained in employment. When he has lost a particular position as a result of lack of work on the part of his then employer, he has managed to find other employment. It is not suggested that the course of the plaintiff's employment would have been any different had he not been injured, save and except that the probability is that he would have remained working as a boilermaker/welder rather than taking up employment with Australia Post. However, it is not suggested that the earnings derived by the plaintiff from his employment with Australia Post are any less than what they would have been had he remained working as a boilermaker/welder. To some extent, he may well be better off as the plaintiff's employment history as a tradesman boilermaker/welder suggests that positions have been of uncertain duration whereas the plaintiff's present employment apparently is of a permanent nature.
Other than a possible future period of being unable to work as the result of undergoing further surgery (with which I have dealt separately), there is no particular indication that the plaintiff will suffer loss by reason of the injury having diminished his earning capacity. Counsel for the plaintiff pointed to the fact that the after tax award wage payable to a boilermaker/welder presently is some $15 more than the after tax award wage payable to the plaintiff in his present employment. Nevertheless, it appears that the plaintiff works paid overtime on a permanent basis whereas there is no suggestion that he would have received overtime payments had he remained working as a boilermaker/welder.
In those circumstances it does not follow that the plaintiff is not entitled to be compensated at all for any loss of future earning capacity. The following are relevant factors pointing to an entitlement to some compensation by way of damages:
(a)the plaintiff is somewhat restricted in what he is able to do in that he now has a fear of heights and has difficulty in standing for long periods of time;
(b)in the result, in the event that his present employment was no longer available to him the plaintiff's ability to take up other employment would be restricted to a small degree;
(c)for the same reasons, the plaintiff's ability to exercise his right to move to other employment has been restricted to the same extent.
Whilst an allowance should be made for a loss of future earning capacity it ought to be very modest. I tentatively attribute the sum of $5000 to this head.
In summary, I have indicated that it is appropriate to attribute the following amounts to various ingredients of general damages:
Loss of past earning capacity $7,940.36
Tax disadvantage $1,660.63
Future medical and hospital treatment and
resultant loss of earning capacity $750.00
Future pharmaceutical expenses $4,000.00
Loss of future earning capacity $5,000.00
Non–economic losses $20,000.00
$39,350.99
Rounding off the total of the figures which I have tentatively attributed to ingredients of the plaintiff's claim for general damages, l assess the plaintiff's general damages at $40,000. The plaintiff's special damages are agreed at $11,975. It is agreed that the plaintiff has been paid various sums pursuant to the provisions of the Workers Compensation Act 1927 in the total amount of $28,101.10. Accordingly, the plaintiff is entitled to the following:
General Damages $40,000.00
Special Damages $11,975.00
$51,975.00
Less amounts paid under the Workers
Compensation Act 1927 $28,101.10
$23,873.90
There will be judgment for the plaintiff in the sum of $23,873.90
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