Mann v Rider
[2000] QSC 369
•20th October 2000
SUPREME COURT OF QUEENSLAND
CITATION: Mann v Rider & Anor [2000] QSC 369 PARTIES: PETER JAMES MANN
(plaintiff)
v
MICHAEL DAVID RIDER
(first defendant)
FAI GENERAL INSURANCE COMPANY LIMITED
ACN 000 327 855
(second defendant)FILE NO: S3642 of 2000 DIVISION: Trial Division DELIVERED ON: 20th October 2000 DELIVERED AT: Brisbane HEARING DATE: 11th, 12th, 13th, 15th September JUDGE: Holmes J ORDER: Judgment for the Plaintiff against the Defendants in the amount of $317, 768.10
CATCHWORDS: DAMAGES – Personal Injuries - Breach of Duty of Care – Loss of Earnings – Future Economic Loss - Pain and Suffering
COUNSEL: P. J. Favell for the Plaintiff
R. M. Treston for the DefendantsSOLICITORS: Daniel Smith Lawyers for the Plaintiff
Gadens Lawyers for the Defendent
HOLMES J: The plaintiff in this action, Mr Mann, was born on 10 June 1952, making him now 48 years of age, and lives with his wife and children in Maryborough. He seeks damages for injuries sustained in a motor vehicle accident on 11 January 1995. Liability is not in issue.
The plaintiff’s injuries
The plaintiff was taken immediately post‑accident to the Nambour General Hospital. A letter from the medical superintendent indicates that on arrival he had a Glasgow Coma Score of 15/15. He had sustained a comminuted fracture of the right iliac wing extending into the right sacro-iliac joint, a fracture of the right superior pubic ramus, a laceration to the right knee extending down to the patella, a fracture of the right orbital margin, and a full thickness laceration of the face extending to the lower lip. Associated with the pelvic fractures was a haematoma of such proportions as to require a blood transfusion. He spent some nine days in intensive care. On 24 January Mr Mann was transferred to the Maryborough Base Hospital, where he remained until 6 February. He was discharged on crutches and was reviewed at outpatient clinics. On 11 July 1995, he was noted, according to a report from the Senior Medical Officer, Orthopaedics at Maryborough Base Hospital, to be able to walk without aids
The plaintiff’s work history
The plaintiff left school after completing grade 10. He had worked as a stockhand and ringer on cattle properties, as a meatworker, and as a farmhand on cane farms until 1980, when he found employment in the timber industry. In 1985, he commenced work as a chainsaw operator for Woodnall Pty Ltd, a company which was contracted to harvest timber for Hyne & Sons. After a couple of years he progressed to the position of plant operator. The machine operated by Mr Mann was used to fell and bunch trees. He was paid on a piecework basis, that is, by cubic metre volume of timber. Piecework rates were paid at award rates plus 25 per cent, but workers’ entitlements were limited to long service leave and statutory holidays; there was no sick leave or holiday pay.
That was the employment in which the plaintiff was engaged as at the time of the accident and to which he returned post-accident, initially part-time from 26 April 1995, and full-time from 19 June. He gave evidence that on his return to work he found that the machine he operated jarred him and caused him constant pain. He dealt with that by using Panamax until his doctor recommended reducing his intake, about 18 months before he ceased work in April 1999. As well as analgesics, he would walk around during work breaks in an attempt to relieve his pain. Towards the end of his work with Woodnalls, Mr Mann said, he was finding it more difficult to meet the production quotas. In April 1999 Woodnalls lost its timber harvesting contract and significantly reduced its workforce. The plaintiff was not retained.
Mr Brian Pearce, a principal of Woodnall Pty Ltd, who was to all intents and purposes the plaintiff’s employer, described him as a reliable, loyal and conscientious employee. After the accident he observed that the plaintiff was slower in his work, and had difficulty getting in and out of machines and moving around the forest. Before the question of the loss of contract had arisen, he had discussed the plaintiff’s long term prospects with him because it was obvious, he said, that the plaintiff was struggling; he was unable to keep up with his quotas and was having to put in extra time to produce the volume required. In addition to his difficulties with his work, there was a safety issue, in that the plaintiff was no longer sufficiently agile to move quickly in the event of a fire or a falling tree.
After the company lost its contract with Hyne & Sons, the workforce was reduced to five employees. There was only one feller‑buncher position left, and the employee kept on in that capacity had an ability to work on other machinery which gave him an advantage. Nevertheless, Mr Pearce’s evidence was that, had the plaintiff not exhibited the physical difficulties resulting from his accident, he would have been one of those kept on. Mr Pearce said that he would consider re‑employing the plaintiff, but had reservations about the effects of his injuries. If he were to be asked for a reference, he would feel compelled to advise any prospective employer of the plaintiff’s injury, for safety reasons.
The plaintiff has not worked since 30 April 1999, the date on which his employment ceased. He holds licences to drive a truck or semi‑trailer and a 19 tonne excavator. With assistance from CRS Australia, he had prepared a resume, and had applied for a number of positions. He applied to Video Ezy for a job as a console operator, to a sawmill for a job as a forklift driver, and to an earthmoving company, and had sought work with a timber hauler for whom he had previously worked. In addition he had put his name down with three hire companies for ferry driving. Meanwhile, he remains involved, as he has over the last decade, in voluntary work as co-ordinator of the Maryborough Legacy market. That entails his organising stalls and cleaning up after the market twice a month.
Mr Mann said that he had been looking at the possibility of purchasing a franchise for a courier business. He hoped that an award of damages would assist him to “buy” a job in the form of the purchase of such a franchise. He had made some specific enquiries in relation to one courier service, which was for sale for $10,000.00, involving a three day a week round from Rainbow Beach to Hervey Bay. He did not know what income that courier run was producing. There was another franchise service of which he was aware, running between Maryborough and Hervey Bay, which was for sale at $30,000.00. However, it did not appear to be returning any profit.
The medical evidence
A number of medical reports was tendered in relation to the various aspects of the injuries sustained by the plaintiff. Dr Robert Edwards, a thoracic physician, examined him in September 1996. He noted that there was evidence that the plaintiff had a contused lung, which had caused him some chest pain after leaving hospital. However, as at the date of examination the plaintiff was asymptomatic, and Dr Edwards did not consider that there were any long term implications for his respiratory functions. In 1999, Mr Mann was seen by Dr Robert O’Shea, a cardiologist, who concluded after examining him and the available hospital records, that he had sustained some seatbelt damage to his heart in the accident, causing minimal damage.
There were some differences in the evidence as to the extent and nature of the plaintiff’s orthopaedic and head injuries. The plaintiff had described continuing pain and discomfort across the top of the hips. He said that his knee was “not as good as it used to be”. Standing for long periods caused pain and he had a walking stick for occasions such as funerals. Sitting, however, was not a problem. He also said that he experienced some short-term memory loss and irritability.
Dr Pentis, an orthopaedic specialist, had seen the plaintiff in 1996 and again in 1999. He considered that the plaintiff’s pelvic fractures had settled, but that there was a likelihood of arthritis developing in the hip joint. It was possible that a total hip joint replacement would be required, but the effect of the plaintiff’s injury would be no more than to precipitate that event by two to three years. Any hip replacement was not likely to happen in any event for 15 or 20 years. He estimated a 7.5 to 10 % loss of total function of the plaintiff’s body arising from his rib fractures and soft tissue injuries to the spinal musculature. Dr Pentis assessed the plaintiff’s knee incapacity as a 7.5 % loss of the leg, taking into account both his hip problems and the aggravation of degenerative change in the knee. Under cross‑examination, he accepted, however, that any arthritis in the knee was likely to be consistent with heavy work over many years rather than a specific trauma. There was some slight possibility that the plaintiff would require an arthroscopy in the knee, but that would not be indicated in the absence of significant problems.
Dr Coroneos, a neurosurgeon, had also seen the plaintiff in 1996 and 1999, and had seen him again in February 2000. His findings differed from those of Dr Dickinson, an orthopaedic surgeon, who saw the plaintiff at the defendants’ request. Dr Coroneos had assessed a permanent impairment of the pelvic, hip and lumbo-sacral region of 12.5 % whereas Dr Dickinson who saw the plaintiff in 1998, had assessed the whole body impairment at 2.5%. The difference arose from the fact that Dr Coroneos proceeded on the basis that the fracture of the sacro‑iliac joint been associated with diastasis, or separation, of the bone, whereas Dr Dickinson assumed that there had been a relatively straightforward iliac future. Dr Dickinson accepted, however, that if there were disruption to the sacro‑iliac joint, a finding of a greater than 10 % impairment would be appropriate. Neither specialist considered that there was any prospect of the plaintiff requiring a hip replacement. Dr Coroneos did not comment on the plaintiff’s knee injury, but Dr Dickinson considered that the plaintiff had been left with a minor degree of instability, amounting in his view to a 2.5% leg impairment, which would not justify the performance of an arthroscopy.
A report was tendered from Dr JD Toakley, a neurosurgeon, who is now deceased. Dr Toakley had seen the plaintiff in 1998. He described him as having suffered “a fracture of the pelvis involving the sacro‑iliac joint”. His conclusion was that the plaintiff had orthopaedic injuries amounting to 10 to 15 per cent loss of function. (Those findings would appear to be more consistent with Dr Coroneos’ view than that of Dr Dickinson.) Dr Toakley considered that the plaintiff had suffered a serious head and brain injury but recommended current psycho‑metric testing to see whether the plaintiff’s brain function had returned to normal.
Dr Coroneos accepted that the plaintiff had sustained a mild to moderate head injury with persisting effects for the first six to nine months after the injury, but concluded that there was, as at October 1996, no evidence of any persisting effects of the head injury. That contrasted with the findings of a psychologist, Mr Peter Stoker, who diagnosed the plaintiff in June 1999 as suffering from dementia due to a closed head injury. In his view, where the plaintiff had previously functioned in the bright to superior range of intelligence he was now functioning in the normal range.
However, in October 1999 the plaintiff underwent neurological assessment by Ms Anderson, a neuropsychologist, whom I found an impressive witness. She did not find any significant deficits of memory, intellect or language. The plaintiff experienced variable results in some tasks requiring concentration, which she considered more likely to relate to pain than traumatic brain injury. In her evidence, however, she referred to a discharge summary from the Nambour General Hospital which in turn alluded to a CT scan suggesting frontal lobe atrophy. If that information were correct, it might provide an alternative explanation for some of the results, particularly those concerned with abstract problem solving. However, the CT scan in question was not before the court, and the evidence in relation to it was second‑hand. I do not consider therefore that I can safely act on the basis that there was some evidence of pre‑existing frontal lobe atrophy.
Dr Peter Mulholland, a psychiatrist, also gave evidence. He had examined the plaintiff in October 1999. At that time he thought that the plaintiff’s presentation was consistent with some traumatic brain injury, in particular the plaintiff’s signs of short-term memory impairment and word-finding difficulties. In cross‑examination, he accepted that those features might be the result of various difficulties in the plaintiff’s life - his daughter’s condition of cerebral palsy, his unemployment, litigation and the imminent birth of a second child - but he maintained the view that they were also consistent with mild organic brain damage.
Because I accept the plaintiff as an entirely credible witness, I accept also his account of his symptomatology. That disposes me towards accepting Dr Coroneos’ opinion as correctly based on the disruption to the sacro‑iliac joint described by him, rather than Dr Dickinson’s premise that there was merely a fracture of the iliac wing without disruption of the sacro‑iliac joint. It follows that I accept that there is a significant impairment in respect of the plaintiff’s pelvic injury.
I accept, however, Dr Dickinson’s view that the plaintiff suffers from a minor instability of the knee most unlikely to require any arthroscopy. In respect of the plaintiff’s head injury, I accept the opinions of Dr Coroneos and Ms Anderson that he does not presently suffer deficits related to traumatic brain injury, although I also accept Ms Anderson’s opinion that the plaintiff’s poor performance on tasks requiring concentration and problem solving is likely to be related to the pain he experiences.
Pain, suffering and loss of amenities
The impression I formed of the plaintiff at trial was that he was a straightforward gentleman with a strong work ethic, given to understating his difficulties. Having regard to the serious injuries he sustained in the accident, and their permanent residual effects in the form of pelvic, hip and lumbo‑sacral symptoms, I consider that an award for pain, suffering and loss of amenities of $40,000.00 is warranted. Interest will be allowed on half that amount at 2 % for the 5.76 years since the accident, giving a further $2,304.00.
Past economic loss
The defendants accepted that the plaintiff’s loss for the period immediately after the accident amounted to $14,539.22. In dispute, however, were the figure which should be adopted as representing the plaintiff’s nett weekly income and the discounting, if any, which should apply in respect of the plaintiff’s loss of his employment with Woodnalls. The plaintiff’s counsel contended for a nett income figure of $797.33 per week with no discounting, that figure being based on the plaintiff’s earnings in the financial year up to 30 April 1999. Counsel for the defendants, on the other hand, argued for an average of the plaintiff’s earnings in the three years pre‑accident and the three years prior to his redundancy in April 1999, amounting to $560.00 nett per week, with a discounting by 50 %.
Given the plaintiff’s concession that his earnings in the period immediately prior to his redundancy were abnormally high, I think some averaging is appropriate. Averaging over the 147 weeks prior to his redundancy (ie from 1 July 1996) his average nett income was $593.59. That is the figure which I propose to adopt for the period to 30 June 2000. Thereafter a new tax rate applied, so that what had been on average a gross income of $826.35 per week (nett of work-related expenses but before deduction of income tax) would now translate into a nett income of about $648.00 per week. Adopting those figures to date gives a total loss for the period since the redundancy of $46,576.99. Given Mr Pearce’s assertion that he would have retained the plaintiff had it not been for his physical difficulties, I do not see any basis for discounting that amount. That brings the total of past economic loss to $61,116.21.
Because the periods of past economic loss are separated by a long period of employment, I consider it appropriate to undertake two separate calculations of interest. The plaintiff’s 1995 loss of income in an amount of $14,539.22 should have deducted from it nett weekly benefits of $7,918.61 before interest is calculated at 5 % for 5.76 years, giving an amount of $1,907.00. The plaintiff’s post‑April 1999 loss of $46,576.99 requires adjustment by $11,935.00 (representing 38.5 fortnights of unemployment benefit at $310.00 per fortnight). Interest at 5 % for 77 weeks on the nett amount gives $2,564.83. Combining the two interest figures, one arrives at a total of $4,471.83.
Counsel for the plaintiff had argued for lost superannuation at 7% of past economic loss, rather than, as has often been the practice, at 6%. However, assessment of loss of superannuation can never be a scientific process. One is considering the loss of a benefit which would not, in the ordinary course of events, have been realised before retirement. Moreover the relevant rate has changed over time; when Mr Mann first suffered economic loss arising from his injuries it was 4%. Given those factors, I propose to adhere to the 6% figure, giving an amount of $3,666.97. There is also to be taken into account a Fox v Wood component of $1,796.35.
Future economic loss
Reports were tendered from an occupational therapist, a rehabilitation consultant and a psychologist employed by CRS Australia, where the plaintiff had undergone a work capacity assessment, and from Ms Lesley Stephenson, also an occupational therapist. There was some difference as between the occupational therapists, Ms Stephenson and Ms Tan, in that Ms Stephenson considered the plaintiff only capable of undertaking light work (capable of handling 9 kilograms occasionally over a third of the work day and 4.5 kilograms frequently over a similar proportion) while Ms Tan thought he was suited to medium work (ie handling up to 23 kilograms occasionally or 11 kilograms frequently). Evidence was given as to the plaintiff’s prospective earnings in various alternative occupations, such as courier driver, console operator, parking attendant or vending machine agent. The gross weekly award rates for those occupations varied between $413.90 and $459.40 per week.
Ms Stephenson pointed out that console operator jobs were often obtained in the first instance by people who were prepared to work on their own at weekends or at night, and who were able to defend themselves in the event of a hold-up. There would be some question about the plaintiff’s physical capacity to do that. He was capable of light courier driving doing limited hours, or, if the business were his own, pacing himself. He could work as a vending machine agent, assuming the duties of that position involved coin removal and machine maintenance.
Strong emphasis was placed by counsel for the defendants on the prospect of Mr Mann’s purchasing a courier business, and indeed the plaintiff himself was hopeful on that score. Ms Anderson, however, had reservations about his capacity to cope with self‑employment of that kind, given his difficulties with concentration and problem solving. There was also the practical problem of the plaintiff’s complete inexperience in business management. He had, in re‑examination, cheerfully proposed that his wife would be able to assist him with bookkeeping because she had done a course in the past. Given that she is the mother of, and carer for, a wheelchair‑bound five year old with cerebral palsy, a three year old and, at the time of trial, was about to give birth again, I consider that a most unrealistic proposition.
Nothing in the plaintiff’s past experience or level of educational achievement gave any reason to suppose that he would be able to run his own business. In addition, the evidence of Mr Moscat, called by the plaintiff’s counsel to give evidence as to what was involved in running a courier business, cast doubt on the prospect of the plaintiff’s being physically capable of working as a courier. Mr Moscat’s courier business in Bundaberg as agent for Wards Mayne Nickless was extremely busy, and, on his account, physically exhausting. He described getting in and out of his van between 150 to 200 times per day. It is, of course, conceivable that the plaintiff might be able to acquire a much smaller concern; but there is no evidence that there is available to him a business within his physical capacities which would at the same time yield a reasonable profit, notwithstanding his hopes. In short, I consider the plaintiff’s prospects of working for himself in a courier business dim indeed.
Given the limitations on Mr Mann’s working capacity posed by his injuries, his limited employment background and his lack of qualifications, I would consider his best prospect to be employment in a driving job for limited hours with an employer who valued his qualities of loyalty and reliability. I was satisfied from his evidence that he himself would make every attempt to find employment. On the whole, however, I do not consider his prospects of finding employment in any of the proposed lines of employment to be strong.
There is also to be factored into the equation the fact that, although Mr Pearce would have retained him in the employ of Woodnall Pty Ltd but for his injuries, that employment was not necessarily secure to retirement age. Mr Pearce acknowledged the possibility of losing his existing contracts, which would lead to the retrenchment of his entire workforce. The industry had, he said, become increasingly competitive. Meanwhile, his workers had suffered some reduction in rates for piecework. On the other hand, it seems probable that, had Mr Mann lost his job as an able-bodied worker with a glowing reference from his employer, he would have had good prospects of obtaining work with one of Mr Pearce’s competitors.
I consider that an award in respect of this head of damages can only be made on a global basis. If one assumes the plaintiff’s ability to remain in the timber industry, whether with Mr Pearce’s company or elsewhere, at an average income of $648 for the 17 years to retirement at age 65, his future economic loss, discounting at 5 %, would be $390,744.00. Allowing for the fact that his income if he finds a job is likely to be diminished, and that I do not consider his chances of finding employment to be much better than even, I consider a global award of $200,000.00, incorporating any superannuation loss, is appropriate.
Griffith and Kerkemeyer damages
It was clear from the evidence of the plaintiff and his wife, both of whom were frank on the subject, that, partly by reason of the birth of their first child on 27 February 1995, Mr Mann was forced to resume most of his self‑care activities relatively quickly. However, I do not consider the fact that he managed these activities on his own during the three days his wife was in hospital with the baby indicates that in reality his need for assistance had vanished entirely. It was my impression that the plaintiff understated the extent of his needs in cross‑examination. I proceed on the basis of Mrs Mann’s evidence, and the evidence that the plaintiff was not discharged from outpatient attendances until July 1995, to conclude that she was still required to give him some assistance with movements for at least six months after the accident.
I propose to allow the times claimed on the tendered schedule as spent assisting the plaintiff (other than meal preparation and housework, which Mrs Mann readily conceded that she would ordinarily have done) for a period of two weeks post‑accident; that is 155 minutes daily (rounded down to 2½ hours) for 14 days at the agreed rate of $11 per hour. Thereafter, I think it is reasonable to allow 2½ hours per week (slightly more than 20 minutes per day) for a six month period, giving a total of $1,100.00 for past Griffith and Kerkemeyer damages. Interest at 5 % on that amount, for 5.76 years, adds another $316.80. I do not consider there is any real prospect of the plaintiff requiring further surgery. There is, therefore, no basis for supposing that further assistance will be required by the plaintiff.
Special damages
There was agreement as to past special damages consisting of an amount of $2,024.98 in out‑of‑pocket expenses, together with medical expenses met by WorkCover in an amount of $113.47. Interest on special damages amounted to $607.49. There was a claim for future special damages amounting to $596.00, but the evidence fell short of supporting it. I think it is appropriate, as counsel for the defendants submits, to award a nominal amount of $250.00 in this regard.
The following is a summary of my assessment of the components of the award of damages:
Pain, suffering and loss of amenities
$40,000.00 Interest on $20,000 for 5.76 years at 2 % 2,304.00 Past economic loss 61,116.21 Interest at 5 % 4,471.83 Past loss of superannuation at 6% 3,666.97 Future economic loss 200,000.00 Past Griffith v Kerkemeyer damages 1,100.00 Interest for 5.76 years at 5 % 316.80 Special damages 2,138.45 Interest on special damages 607.49 Future special damages 250.00 Fox v Wood component 1,796.35 TOTAL: $317,768.10
I give judgment for the plaintiff against the defendants in the amount of $317,768.10.
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