O'Byrne v Donovan

[1997] QSC 113

IN THE SUPREME COURT  

OF QUEENSLAND

No. 2131 of 1995

Brisbane

Before  Mr Justice Ambrose

[O'Byrne  v  Donovan]

BETWEEN:

GARY GEORGE O'BYRNE

Plaintiff

AND:

DAVID GORDON DONOVAN

Defendant

Judgment delivered 24 June 1997

CATCHWORDS:     PERSONAL INJURIES - Quantum - motor cycle injury - injury to right elbow, various parts of right leg, pelvis and spine - past and future earning capacity.

Counsel:Mr M. Cooke QC with him Mr E. Howard for the plaintiff

Mr R. Lynch for the defendant

Solicitors:Trilby Misso & Co for the plaintiff

McInnes Wilson & Jenson for the defendant

Hearing Date:   5 June 1997

REASONS FOR JUDGMENT - B W AMBROSE J

Judgment delivered 24 June 1997

The plaintiff in this case was severely injured in a motor vehicle collision on 30 October 1991.
           The defendant admits liability and the action has been contested only on the issue on quantum.  Some aspects of the plaintiff's quantum claim have been admitted.  The significant matter in issue is the earning capacity of the plaintiff at the time of his injury.  The earning capacity of the plaintiff upon the evidence in my view has been substantially destroyed as a result of the injuries he sustained and it is critical therefore in determining both past and future economic loss to look his earning capacity at the time of its destruction.
           Other matters contested are the appropriate award of damages for pain, suffering and loss of amenities and also under Griffith v Kerkemeyer.
           At the time of trial the plaintiff was aged 44 years.  At the time of injury in October 1991 he was nearly 39 years of age.
           At the time of injury the plaintiff was riding a motor bike.  As a result of the collision he lost consciousness for a couple of days.
           He suffered injury to the right elbow, various parts of his right leg and his pelvis.  He suffered a compound fracture of the right femur, a compound fracture of right tibia and fibula, a cruciate ligament injury to the right knee and a compound fracture of the right olecranon and epicondyle.  He suffered many injuries over the rest of his body and as well to his face. 
           He was in hospital for a couple of months before he was released.  Subsequently he entered hospital for further operative treatment.  He has developed problems in his spine as a result of his injury.
           His fractured right elbow has healed with some deformity leaving loss of strength, wasting and ulnar nerve irritation.  Operative treatment for the nerve condition would cost $2,500.  Arthrodesis of the elbow would cost $3,500 and entail a recovery period of six months.  He currently has a loss of function of the right arm of between 20 percent and 25 percent.
           He has had three bone grafting operations on his right leg over the years subsequent to his initial hospital treatment lasting for three months and involving a lengthy period in traction.  While in hospital receiving treatment, he suffered a golden staph infection; this took some time to control.  He experienced difficulty in having his fractured bones knit and towards the end of 1995 had an operation where part of the femur was excised and a new bone graft effected so that the bone could knit solidly.  The result of this operation is that he has greater stability although a shortened leg which places significant strain on his spinal processes.  The leg shortening exercise was regarded as successful treatment for an otherwise intractable leg condition and the plaintiff seems now to be better off than he was before he had it.  He wears a built up shoe on his right foot to lessen strain upon his spinal processes resulting from the shortened leg.  He will probably develop arthritis in the hip and knee as a consequence of his injuries which will increase his present incapacity of 40 percent loss of function of the right leg to some degree.  His present loss of function in the spine of 5 percent may increase to 10 percent.
           For the purpose of bone grafting operations, grafts were taken from various aspects of his thighs.  These operations have left him badly scarred.  He is embarrassed at their sight ‑ particularly in the presence of children who ask him about them.
           His ability to walk has now been significantly compromised.  His knee tends to give way on him.  It swells.  He gets a sore knee after walking for about 100 metres.  He cannot walk more than 300 or 400 metres.  He is unable to squat or kneel and has difficulty in using stairs without a hand rail.
           Apart from his injuries the plaintiff has no current health problems.
           In 1993 he was diagnosed to have cancer.  He obtained treatment by chemotherapy which was successful.  He has now overcome that medical condition and on the whole of the evidence there is no reason to believe that his longevity is any less now than it would have been had it not been for the development of that condition.
           Prior to the injury in issue the plaintiff had suffered other injuries.  When he was about 21 years of age he had another accident while riding a motor cycle.  A consequence of this accident was that he suffered an injury to his right elbow - the same one injured in the accident in 1991.  Upon the whole of the material I am satisfied that the plaintiff after his last operative treatment for it recovered from that injury to such an extent that it had no debilitating effect on his capacity to work as a carpenter or to engage in physically demanding activity at the time of his injury.
           On the other hand the plaintiff had worked placing and tying heavy steel re‑enforcing in residential unit construction for some years.  This placed significant strain on his spinal processes and in 1988 he was advised by doctors to stop work until symptoms from his spine disappeared.  He did so and after they disappeared he ceased to do the sort of work that had produced his back problems.
           The physical and emotional traumas suffered by the plaintiff from 1984/5 until the time of the break up of his marriage in 1986, and the lengthy painful treatment he received for his injuries suffered in October 1991 and the drug therapy given to him in respect of his psychiatric/psychological reaction to these burdens have greatly reduced his capacity to remember in detail matters relevant to his earning capacity at time of his injury.  I accept him as a witness with a defective memory who did his best to give truthful evidence.
           Prior to the accident he was still able to handle and place re‑enforcing in the ground for domestic constructions.  That re‑enforcing material was quite light and would only take an hour or so to put in place for the construction of the dwelling house which might all told take a couple of months to complete.  He did this sort of work and was not in any way constrained by any problem he had with his back at that time.
           In about 1986 the plaintiff's marriage failed; it seems on the evidence that a significant cause of the failure was his inability to earn sufficient money to keep the family in a way in which his wife thought it ought be supported.  At the time the plaintiff and his then wife had four children.  The break up of the marriage had a serious effect on the plaintiff.  He became very depressed and commenced to consume alcohol to excess.  While still working he commenced to obtain treatment for depression etc.  He commenced to overcome this problem towards the end of the 1980s and then obtained employment from time to time essentially as a builder's labourer with a Mr Challener who conducted contract building operations in the Redcliffe area.
           Mr Challener was called to give evidence on behalf of the plaintiff.  He said that the plaintiff was a very reliable hard working and altogether desirable builder's labourer.  He said in fact that he preferred to employ him rather than tradesmen because he was prepared to do what he was asked without demurring and was able to do work of a standard that was thoroughly acceptable to Mr Challener.
           It is unclear on the evidence over what periods of time Mr Challener actually employed the plaintiff or just how much he paid the plaintiff in those periods.  Unfortunately he was given insufficient notice to have recourse to contemporaneous records that might have assisted his recollection.  Nevertheless I accept his evidence that he regarded the plaintiff as a desirable employee who could demand the current award wage paid to a tradesman carpenter ‑ even though he was not a carpenter.  Indeed Mr Challener took the view that he was altogether a better employee than some carpenters he had employed.
           I am satisfied that from time to time the plaintiff obtained weekend cash in the hand work where he might earn $80 per day.
           A difficulty in assessing the plaintiff's earning capacity at the time of his injury arises from the fact that for about six months prior to that time he had not been working as a carpenter or indeed in the building industry at all upon the evidence.  I accept that about six months before his injury one of his sons developed adolescent problems and after discussion with his divorced wife it was agreed that the plaintiff should take that son out of the Redcliffe area to see if he could "straighten him out".  The plaintiff's continued employment at the time was in any event uncertain; his then employer Mr Challener, gave evidence of a downturn in that part of the building industry in which the plaintiff worked and a change he then contemplated in the priorities of his various building operations.  It is clear however that Mr Challener regarded the plaintiff highly and would have assisted him to obtain other work within his capacity in the area.  Indeed Mr Challener said that had the plaintiff wished to stay on he would have found work for him in part of his building operations.  However for family reasons the plaintiff ceased work and took his errant son to Yamba in New South Wales.  They stayed there for a couple of months, the plaintiff receiving a "supporting parent's" pension; but the experiment did not work out successfully because the child in question missed contact with his siblings and mother and the plaintiff decided to return back to the Redcliffe area.  He did this and had been endeavouring to find a residence suitable for him and his son and also employment for a month or so when involved in the accident. 
           Looking at the whole of the medical evidence which I do not propose to traverse in detail, it is clear in my view that the plaintiff's earning capacity was destroyed by the injuries he suffered in the motor vehicle collision. 
           Not merely was the plaintiff physically incapacitated to such an extent as to be unable to earn any income in the fields in which he was experienced but he was also psychologically damaged, and psychiatric and psychological evidence demonstrates that for practical purposes it would be impossible for the plaintiff having regard to his age and background to be trained successfully to compete on the labour market for jobs requiring non‑labouring skills.
           That is not to say that the plaintiff will never be able to occupy his time pottering about in a work shop and perhaps making odds and ends of furniture, toys etc.  Indeed he used to do that prior to his injury.  Undoubtedly if he has the money necessary to do so he could set himself up in a little work shop and I feel that he would probably be inspired to produce items of furniture, toys, etc, for his own satisfaction which he would have little difficulty in selling.  I am quite unpersuaded however that this occupation would do more than provide him with an interest to relieve the boredom and frustration of being unable to engage in the sorts of physical activity he was used to prior to his injury.  If he were able to produce enough saleable goods to merely cover the cost of producing them, I think he would be fortunate.  For all practical purposes I am satisfied that the plaintiff's earning capacity in the building industry and any that he may have had in wood working generally has been destroyed.  There is some suggestion in some of the medical reports that he might be able to get a job of an unskilled kind in which he could sit down and stand up as he wished and which he could perform with the significant disability that he has with his right arm and right leg.  While there may be such hypothetical positions available I am unpersuaded on the evidence that there is any real likelihood of the plaintiff obtaining one.
           The plaintiff required 12 months chemotherapy treatment for his cancer condition.  It is conceded on his behalf that in respect of this period no assessment for loss of past earnings should be made.  I have some reservation about this concession having regard to the fact that on some of the medical evidence it is suggested that perhaps he would have been able to work in a builder's labourer's position for perhaps one week out of four during the course of his treatment.  On the other hand, of course one might expect it would be difficult for the plaintiff to obtain employment as a builder's labourer on this sort of arrangement.  It may be that from time to time, if he were lucky, he could get a day or two's work which he was physically capable of doing in one week in four.  But looking at the picture broadly it seems to me that for the purposes of assessing damages I ought proceed on the basis that the plaintiff cannot show that with respect to that period of 12 months his loss of earning capacity as a result of injuries he sustained in his accident resulted in any financial loss to him. 
           With respect to pain, suffering and loss of amenities of life, the plaintiff at age 40 suddenly has been transformed into a person unable really to engage in much physical activity or to enjoy the sorts of things that he was able to enjoy previously.  He is on constant pain killing drugs and treatment for depression which upon the evidence, if not wholly caused by the injury, was certainly stimulated and exacerbated by it.  The injury has resulted in a change of personality of the sort described in the psychiatric and psychological reports.
           Looking at the picture broadly in my view the injuries suffered by the plaintiff warrant a significant award of general damages for pain, suffering and loss of amenities of life.  I assess this head of damages in the sum of $80,000.  I assess interest on $30,000 of that sum for a period of 5.7 years at the rate of 2 percent per annum which is $3,420.
           With respect to the plaintiff's past economic loss, family and other problems he had had with his back for a few years before his injury make it difficult in my view to have regard to his pre‑accident income as a guide to what his post‑accident income would have been.  He had problems from his spine resulting from his former occupation which had led to him being unemployed for some time.  I accept his evidence that his abstinence from steel fixing involving heavy reinforcing bars on medical advice over six months or so in 1988 led to the disappearance of the symptoms for which medical advice had been sought.  He had family problems which had motivated him to give up work six months or so before October 1991 to give attention to one of his children.
           I propose to approach the matter on the basis that the plaintiff would have had an earning capacity when employed to be measured on the award rate for carpenters.  At the relevant time that was about $13,860 per annum.  At the date of trial it was about $19,460.  I have regard to the report of the chartered accountants which is ex.19 and proceed on the basis that the calculations in it are correct.  The net loss of income to date of judgment would be about $114,000 on the basis that he was continuously employed during the period under review and earning the award rate for a carpenter.  I am persuaded that on the probabilities he could have earned an award rate for a carpenter during this period when employment was available.  Having regard to the problems he had with his health, family difficulties he was involved in attempting to solve with his errant son and the vagaries of the building industry which would probably not have kept him fully employed during this period, I propose simply to discount that total by one‑third.  That approach leads to assessment of past loss in the sum of $76,000.
           I assess his past loss of income to date of trial in the sum of $76,000.
           He says that since the accident he has received by way of sickness benefit about $175.00 per week.  During the relevant period this amounts to $50,925.
           I assess interest therefore at 5 percent per annum on the sum of $25,075 for a period of 5.3 years which amounts to $6,644.87.
           With respect to future economic loss the current award rate of pay for a carpenter is $399.00 per week (net).  The present value of the loss of that sum for 24 years using the 5 percent tables is $290,871.  the present value of that sum for 19 years is $255,360. The average of those sums is $273,115.  I discount that sum by one‑third to take into account the vicissitudes of life and the likelihood that the plaintiff would not be continuously employed having regard to the nature of the industry in which he was working.  So discounted I assess his loss of future earning capacity in the sum of $182,077.
           Past Griffith v Kerkemeyer damages (including interest) are agreed in the sum of $35,000.
           Future medical expenses are agreed in the sum of $10,000.
           Special damages are agreed in the sum of $35,000.
           One matter in issue is future Griffith v Kerkemeyer damages. 
           In my view the plaintiff is badly incapacitated both in his leg and in his arm.  Although he agreed that he might be able to support himself in his own house without the assistance of other people, it seems to me that there would be many things apart from those which he specified that he could not do.  He would have difficulty in doing work in his yard to keep it clean and tidy which he could probably overcome only by the purchase and maintenance of expensive mechanised labour saving equipment.  He would have difficulty in hanging out washing.  Indeed some of these things might be done more economically by hiring somebody to do them than by spending the monies required to purchase run and maintain equipment of a kind which would permit the plaintiff to perform these services for himself.  He would have difficulty in safely doing his shopping - he has fallen several times when attempting to do shopping in the supermarket using a grocery trolley. 
           Taking all these things into account in my view it would be proper to assess future Griffith v Kerkemeyer damages based upon needing assistance 2 hours per week at $10 per hour for 25 years.  I assess this head of damages using the 3 percent tables in the sum of $18,340 (vide Gaudrey v Pacific Coal (unreported decision of Helman J, 9 December 1995 at p.18 ‑ apparently not contested on appeal to the Court of Appeal constituted by 
Macrossan CJ, Pincus JA and Lee J, unreported decision delivered 20 December 1996)).
           I give judgment therefore for the plaintiff in the sum of $446,481.87.
           I will hear submissions on the question of costs.