McNab v the Council of the City of Maryborough

[1997] QSC 237

IN THE SUPREME COURT

OF QUEENSLAND

No. 22 of 1997

Brisbane

[McNab v The Council of the City of Maryborough]

BETWEEN:
  BRIAN IVAN McNAB
  Plaintiff

AND:

THE COUNCIL OF THE CITY OF MARYBOROUGH

Defendant

CATCHWORDS:     Damages - Quantum - Ganger - 39 years of age - Fall at work - Back injury - Pre-existing advanced degeneration of spinal column, spondylolisthesis of L5 on S1, fusion of L4-5 disc - approximately 10 years to advance to present condition without accident - Award $234,650.08.

Counsel:Mr S C Williams QC with him Mr J S Given for the plaintiff.

Mr M Amarena for the defendant.

Solicitors:Morton and Morton Solicitors for the plaintiff.

Carswell and Company Solicitors for the defendant.

Hearing Dates:         16 to 17 December 1997.

JUDGMENT  -  DERRINGTON J

Judgment delivered 18 December 1997

Liability in this matter is admitted. 

The Plaintiff was born on 29 May 1951.  At the time of the accident on 13 June 1996 he was 39 years of age and is now 40 years.  He was employed as a ganger by the Defendant on a wage of $403.00 per week nett and was entitled to superannuation.  He is a married man with 2 young children.

He fell a distance of a little over 2½ metres and landed astride a pole after striking some scaffolding during his descent.  His immediate symptoms were consistent with bruising and abrasions, and he was able to work on lighter duties for a few days, but he suffered from increasing stiffness and eventually was obliged to take some time off.  He returned to work on 1 July 1996 but after a few hours work the stress of his heavy work and the lifting of some poles amounted to a further insult to his spine which caused the onset of severe pain to his back and legs, forcing him to cease work again.  Since then, apart from attempts to resume lighter duties by way of rehabilitation, he has been unable to work.  He suffers from constant ache in his back and legs developing into severe pain from any heavy or prolonged activity.

He is unable to sit or stand in one position for long periods, and with the development of pain from activity he is obliged to lie down to obtain relief.  On some days, his pain is so bad that he is unable to work satisfactorily in light duties.  However, if he were self employed in a supervisory or managerial situation, he could probably cope, and to that extent his earning capacity is not entirely lost, particularly as he intends to use his damages as capital by way of an investment in flats which he can manage.

The assessment of damages is complicated because he already had advanced degeneration of his spinal column which was exacerbated by a congenital condition producing spondylolisthesis of L5 on S1, with a fusion of the L4-5 disc.  In 1977, he also had an accident involving a spinal fracture.  Despite this, he was symptom-free until his accident but his advancing age and the effect of his heavy work would very probably have naturally led to the production of symptoms, advancing in the course of time to their present stage.  Allowing for the chances in both directions, if he had not been injured in this accident he would have been obliged to abandon his usual heavy work and seek a light supervisory job after 5 years.  There would have been progressive development of the symptoms during that period.  After 10 years with further progression he would have been in his present condition.  These are the mean figures after allowing for the possibility on the one hand that the acceleration might not have occurred so fast and, on the other, that it would have been faster having regard to his condition and the nature of the work.  They are imprecise and some small expansion should be allowed in the plaintiff’s favour.

On this issue, the evidence of Professor McPhee was the most persuasive and objective, and that of Doctor Pentis, who was called for the Plaintiff, does not differ seriously from it.  Evidence conflicting with this should be rejected.

A number of components of the award are not seriously in issue between Counsel, which is not surprising, and it is necessary only to discuss and resolve the following matters.

GENERAL DAMAGES

The Plaintiff’s pain and suffering is constant and serious, though due to a probable psychological overlay and his natural inclination towards the accumulation of wealth it might be observed that no feature is left unstated or understated.  There is plainly substantial interference with his enjoyment of life, including his playing with his children and the satisfaction of enhancing and maintaining his home which was built by him on acreage and of which he is justifiably proud.  He seems also to feel frustrated at being deprived of the opportunity of enlarging his wealth, although his applications for better positions had proved unsuccessful and his entrepreneurial tendency led him into bankruptcy on one occasion.

In assessing the figure for these matters, it must be understood that all that is involved is an acceleration of his condition and that if he had not been injured in this accident he would have had the gradual development of these matters during that period of acceleration.  In other words, his present state should not be compared with a totally pain free state for the ten years involved but rather with a state of developing pain and disability; and it is only the difference for which he should be compensated.

After some minor allowances in his favour for possible positive contingencies, he should have a figure of $55,000.00 for this component.  Interest should be allowed on $10,000.00 of that for 1.5 years at 2%, making a total of $300.00.

Future Payment for Services by Others

He has difficulty maintaining his house and large allotment, but he wisely intends to sell this and to purchase a home on a smaller and more manageable one.  It is possible that should he invest in flats he may choose to live in one after amalgamating the proceeds of the sale with his damages for the investment.  The loss of amenity that this would entail has already been provided for in his general damages.  For the future cost of engaging services until the house is sold, a global figure of $4,000.00 should be adopted.  After that, there should be an allowance of 4 hours per week at an agreed rate of $10.00 per hour for this item for the next 9 years, which makes some small allowance in his favour for  contingencies.  There is a further allowance in his favour in that his natural developing incapacity if he had not had the accident is overlooked.  For this component a suitable figure is $15,000.00.

Future Economic Loss

This entails loss of wages and superannuation benefits, and it may conveniently be divided into two parts.  The first looks at a figure of 4 years during which but for the accident he would have been able to keep his job.  This produces a sub-total of $81,128.00.

The second part relates to the period when he would have been obliged to give up his job and to seek lighter supervisory work.  There is some chance that he would have found this with his former employer, but this must be discounted for two principal contingencies, the first being that he may not have been able to find suitable employment and the second being the likelihood that the wage attached to such work would be less.  There is an added minor contingency that he may also have lost work because of his incapacity from time to time.  If allowance is made for these matters and the extent of his residual capacity, a suitable average figure for his lost wages and superannuation benefits is $350.00 per week.  On that figure for that period the loss is $63,700.00.

The total of these is $144,828.00.  After allowance for the general contingencies of life, a figure of $130,000.00 should be adopted.

Summary  $

General damages  55,000.00

Interest thereon  300.00

Past economic loss  32,932.00

Interest thereon  888.00

Past gratuitous care (including interest)  5,000.00

Future expenses  19,000.00

Future economic loss  130,000.00

Special damages  1,967.66

Interest thereon  17.00

Fox v.  Wood principle       2,217.80

$247,322.46

Less WorkCover refund      12,672.38

$234,650.08

JUDGMENT for the Plaintiff against the Defendant in the sum of $234,650.08.

In accordance with recent legislation, there is no order as to costs.