McCoombes v Evans

[1996] QSC 74

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane
  No. 2316 of 1995
[McCoombes v. Evans & Ors]

BETWEEN:

BARRY CHARLES McCOOMBES
  Plaintiff

AND:
  PHILLIP EVANS
  First Defendant
AND:
  NEIL SMITH
  Second Defendant
AND:
  OAKEY CREEK COAL PTY LTD
  Third Defendant
AND:
  SUNCORP INSURANCE AND FINANCE
  Defendant by Election

JUDGMENT  -  DERRINGTON J.

Delivered:9 May 1996

CATCHWORDS:             Damages - Quantum - Coal mine plant operator - 39 years of age - Injury to intervertebral disc at C5/C6 vertebrae - Minor pre-existing degeneration of disc - Thirty to fifty percent chance similar symptoms without accident - Second accident advanced herniation of disc - Award $403,843.92 - Pain and suffering $35,000.

Counsel:Mr J.A. Griffin QC and Mr M. Grant-Taylor for the Plaintiff

Mr I.R. Molloy for the Defendant

Solicitors:Anne Murray & Co for the Plaintiff

Rees R and Sydney Jones for the Defendant

Hearing date :  2 May 1996

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane
  No. 2316 of 1995
[McCoombes v. Evans & Ors]

BETWEEN:

BARRY CHARLES McCOOMBES
  Plaintiff

AND:

PHILLIP EVANS
  First Defendant
AND:
  NEIL SMITH
  Second Defendant
AND:
  OAKEY CREEK COAL PTY LTD
  Third Defendant
AND:
  SUNCORP INSURANCE AND FINANCE
  Defendant by Election

JUDGMENT  -  DERRINGTON J

Judgment delivered 9 May 1996

The plaintiff was injured in a motor accident when a vehicle in which he was a passenger collided with another and bounced off it causing him to have what might be described as a whip-lash injury.  All of the defendants admit liability.
       The accident occurred on 5 September 1991 so that the plaintiff, who was born on 13 July 1952 was then thirty-nine years of age and is now forty-three.  He was a plant operator employed on the Oakey Creek Coal Mine surface workings.
       As the result of the trauma, he suffered serious pain at the time and received conservative medical treatment including a neck-brace and physiotherapy.  An X-ray revealed minor pre-existing degeneration of the intervertebral disc between the fifth and sixth cervical vertebrae in the form of osteophytic formation.
       At first he needed help in rising from his bed, bathing and dressing, but his symptoms improved and after four weeks he returned to work, at first on light duties and then on his normal heavier work.  He was able to cope with this despite some continuing pain, but in January 1992 he had another accident which exacerbated his condition.  A bulldozer he was driving lurched about one metre into a hole he had not seen and the jolt caused further injury to his neck.  This was an event that was reasonably common in his work but it had never before caused him any symptoms. 
       Again he was forced to cease work and obtain medical assistance with physiotherapy and prescribed medicine and he was off work for six months.  It would seem that the original pain was more severe than he had experienced in the first accident and there was an onset of further symptoms two months later.  These consisted of pain localised to the lateral aspect of the right upper limb, the radial aspect of the forearm and down into the thumb and index finger of the right hand.  He returned to work on light duties, but suffered two more minor traumas that exacerbated his continuing pain.
       Because of his disability caused by the continuing pain and its exacerbation with any heavy activity, the work that was available and within his capacity dried up so that he left the employment towards the end of 1994.  He returned to Ipswich, his home town, where his and his wife's parents lived.  Since that time he has received a disabled pension and has not sought employment, though he is capable of light work providing that he can move around.  Unfortunately he has had little clerical education or training.
       He appears to be a decent and honest workman and, despite the influence of his disablement pension, he wants to resume such earning activity as is open to him.  He contemplates using his damages to set up a business that he and his wife could operate together, such as pie-vending.  His wife is a competent lady who has had some experience in retail business.  The likelihood is that, properly advised, they will be able to find some suitable small business in which he can reclaim some of his remaining earning capacity.
       He has probably been discouraged from seeking employment by the serious impediment on his capacity to justify employment with an employer and the general difficulty in the present economic climate of finding suitable light work, for his position in the competitive open labour market is seriously disadvantaged, despite his patent qualities.
       On the medical evidence, it is strongly probable that the relevant accident damaged his intervertebral disc without a complete rupture but rendered it vulnerable to further harm from trauma which would not otherwise have produced such harm.  However, the second accident itself was fairly traumatic and probably advanced the herniation of the disc to the extent that with further minor stress it extruded to put pressure on surrounding nerves, causing pain in the cervical region and the symptoms described in his right arm and shoulder.  Even without the original accident, it would probably have caused some damage to the disc, and the moderately frequent trauma to which he was subjected of which it was an example, had a thirty to fifty percent chance of causing similar symptoms over a period of time.  Had they appeared their onset may have been sudden, but it is likely that it would have been gradual and they would have taken about fifteen years to reach their present intensity.
       Subject to this danger, he probably would have remained in that employment until he was approaching fifty-five, for he had been there with his family for several years and seemed to enjoy the lifestyle from the substantial income that he could earn there.  However, as his children grew up and left the area, he and his wife would probably have felt a strong attraction to return to Ipswich and the close company of their families.  As he grew older and as his children became financially independent the heavy nature of his work may also have made it attractive to him to accept one of the redundancies that his employer made from time to time.
       Of the positive contingencies, his prospects of advancing to more highly-paid work were substantial.  Subject to some discounting for the risk that it might not have been achieved in the ordinary course of events, the second scenario presented by the witness, Mr Thompson, in his exercise should be adopted as the basis for the assessment of the component of loss of earning capacity.  However it must be further discounted substantially for other adverse contingencies, as learned counsel for the plaintiff expressly conceded.
       After taking into account the likelihood that as a matter of choice he would not have continued with his former employment beyond the age of fifty-five, and perhaps not even till then, and allowing further for the contingencies in both directions, the value of his loss of future earning capacity with that employer should be assessed at $350,000, and his superannuation loss should be assessed at $25,000.  The former sum should then be reduced to $300,000 to allow for his residual earning capacity.  His past loss in this respect should be assessed at $85,000 after suitable adjustments to the figure arrived at by Mr Thompson in Schedule B, Scenario 2.  Interest on that should be allowed at $3,700, being adjusted to meet the circumstance that most of it was suffered in more recent years because he retired only at the end of 1994, he received workers' compensation weekly payments during his absences prior to that time, and he received a lump-sum payment of $4,360 in December 1994.
       His injuries were not as traumatic at the time as in many cases that come before this court, and he has had no surgery;  but he has been left with moderate chronic pain which can be relieved by analgesics.  He will be obliged to suffer this pain for the rest of his life, which will probably cover many years.  Although his condition could possibly benefit from spinal surgery, in view of the severity of the harm from some of the dangers (though they are small), compared with the advantages to be gained from possible, though not assured, benefits, and having regard to the plaintiff's great fear of serious adversity, in all it is not unreasonable for him to refuse it.
       He has some difficulty sitting or standing for lengthy periods at a time and is unable to undertake any heavy activity.  However he can still undertake light gardening and, with a little difficulty, drive his car.  He is disabled from much of the sporting and recreational activity that he enjoyed prior to this accident, but he seems to enjoy growing orchids, working in his garden and visiting relatives and friends.  He is a cheerful man and probably sensibly adjusts well to his losses, but would regret them. 
       Some allowance must be made for the possibility that, because of his spinal degeneration and the stress of his activity at work, his condition may only have been accelerated.  Conversely, he should be allowed compensation for his pain and suffering resulting from the traumas he suffered subsequent to the original accident where, but for the vulnerability produced by that accident, he would not have suffered any such pain from those causes.
       The damages for this component should be assessed at $35,000 of which $15,000 should be attributed to the past, attracting interest of $1400.
       There are some minor items which have been either the subject of agreement or have been justified by evidence.  For voluntary domestic assistance he should receive $1000 with interest of $150.  Past pharmaceutical expenses were $1400 on which interest of $400 should be allowed and a suitable amount to provide for future pharmaceuticals is $3885.  His costs of chiropractic treatment, including travelling accommodation and meals should be allowed at $9665 together with interest of $1300.  Medical and miscellaneous payments by the Workers' Compensation Board amount to $4467.69.  The amount that should be included under the Fox v. Wood principle is $9237. 
       Because the liability of one of the defendants involves the Workers' Compensation Board, it is agreed by the parties that the sum of $48,293.08 be deducted from the judgment on account of workers' compensation fund payments.

Summary

Past economic loss	$  85,000.00
Interest thereon	3,700.00
Future economic loss	300,000.00
Pain, suffering and loss of amenities of life	35,000.00
Interest thereon	1,400.00
Voluntary domestic assistance	1,000.00
Interest thereon	150.00
Past pharmaceuticals	1,400.00
Interest thereon	400.00
Future pharmaceuticals	3,885.00
Cost of chiropractic treatment	9,665.00
Interest thereon	1,300.00
Fox v. Wood principle	9,237.00
Subtotal:	452,137.00
Less Workers' Compensation payments	48,293.08
Total:	$403,843.92

There is judgment for the plaintiff against the defendants for the sum of Four Hundred and Three Thousand Eight Hundred and Forty-Three Dollars and Ninety-Two Cents ($403,843.92) and costs including reserve costs if any to be taxed.