Paul, Charles Lloyd v Burns Engineering Pty Ltd
[1999] TASSC 122
•11 November 1999
[1999] TASSC 122
CITATION: Paul v Burns Engineering Pty Ltd [1999] TASSC 122
PARTIES: PAUL, Charles Lloyd
v
BURNS ENGINEERING PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 230/1991
DELIVERED ON: 11 November 1999
DELIVERED AT: Hobart
HEARING DATE/S: 27, 28 April and 3, 4 May 1999
JUDGMENT OF: Crawford J
CATCHWORDS:
Damages - Particular awards of general damages - Tasmania - Trauma to spine and shoulder suffered by 49 year old boilermaker/welder - Pre-existing degenerative condition - Lost earning capacity - Discount for contingency of other medical complaints inhibiting earning capacity - Award including $40,000 for general damages and $280,000 for lost earning capacity.
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Plaintiff: C N Dockray
Defendant: T J Williams
Solicitors:
Plaintiff: C N Dockray
Defendant: Gunson Pickard & Hann
Judgment ID Number: [1999] TASSC 122
Number of paragraphs: 49
Serial No 122/1999
File No 230/1991
CHARLES LLOYD PAUL v BURNS ENGINEERING PTY LTD
REASONS FOR JUDGMENT CRAWFORD J
11 November 1999
The only oral evidence concerning the issue of liability came from the plaintiff and, not surprisingly, it was in his favour. The defendant called no evidence on the issue and its counsel advanced no submissions why there should not be judgment for the plaintiff against the defendant.
The defendant maintained a factory at Bell Bay, where its principal activity was the operation of an engineering foundry. The plaintiff's occupation was that of a boilermaker/welder and he was employed by the defendant in a capacity which was largely supervisory, although he also performed manual work. The defendant had a contract with Comalco to fabricate certain metal work and install it at Comalco's premises, which were near the defendant's premises. Involved was a pipe which had a mass of about 140 kilograms. The plaintiff's evidence was that it was about 12 metres long, but constructed with about five angles, so that its length from end to end was about 10 metres. In an answer to an interrogatory, the defendant said it was approximately six metres long. The actual length does not matter. Its diameter was approximately 90 millimetres. It was to form part of a compressed air main feed line. Prior to the day of the accident, which was on 15 May 1991, the work the plaintiff had done with regard to the pipe was to measure the materials up for it and help another boilermaker, Brent Frain, to lay it out on a floor and then hold it while Mr Frain welded it up.
Mr Tony Burns, gave instructions for the installation of the pipe at Comalco's premises. The defendant's employees who initially went to Comalco for that purpose were Mr Frain, a rigger, Tony Johnson, and a crane driver, Tom Sitkei. The pipe was carried by a crane to Comalco for installation high in a building, in an area referred to by the plaintiff as the hot metal passage. He played no part in getting the pipe on site. An existing pipe had to be cut and a section replaced with the new pipe, the ends of the pipes being welded together.
Mr Tony Burns asked the plaintiff to take a welding machine to the site and give Mr Frain a hand, to help make sure the job was done within a limited time. The plaintiff drove a utility to the site, towing a portable welder. When he arrived, the new pipe was suspended about five to six metres above the floor of Comalco's building. Also present were Mr Frain, Mr Johnson and Mr Sitkei. At the western end the pipe was probably supported by a sling made of wire rope. There was a bucket or box slung from a crane and Mr Frain intended, while standing in it, to weld the western end of the new pipe to the end of a section of old pipe. The eastern end of the new pipe was suspended by a length of rope. From the pipe the rope went up, over a roof rafter and down towards the floor where it was tied off, at about hip-height, to a column supporting the rafter. The rope belonged to the defendant and was taken to Comalco by the other employees of the defendant. The plaintiff did not closely inspect it prior to the accident. At the request of one of the other employees, he climbed a portable ladder until he reached the eastern end of the pipe near where it was hanging from the rope. His task, which he carried out with his left hand and arm, was to take hold of the pipe from underneath, and lift and pull it slightly towards him so that its end was close to the position it would be in later when it was welded to the end of the original pipe. While he held the pipe in position, Mr Frain was to use the welder to join the other end of it to the existing pipe.
The plaintiff was therefore standing on a ladder, high above the floor, taking the weight of one end of a 140 kilogram length of pipe, holding it in his left hand slightly above his left shoulder. While he was doing that Tom Nixon, one of Comalco's supervisors, was on the floor below pulling down on the rope thereby taking some of the weight of the pipe and helping the plaintiff to hold it in position. In other words, they were both taking some of the weight at the eastern end of the pipe. Without warning the rope snapped and the pipe dropped. According to the plaintiff's evidence, at that time he was holding the pipe with his hand underneath it and slightly above and in front of his left shoulder. The pipe landed on his shoulder. He still had hold of the ladder with his right hand and was lucky not to fall from it. Presumably the mass of the pipe at that end was about 70 kilograms, a considerable weight to be borne by a person when standing on the rung of a ladder. With what must have been a considerable effort, he managed to lift the pipe up and rest it on top of a rafter.
When the plaintiff descended the ladder, he looked at the part of the rope which had fallen to the floor. The section of it where it had snapped was in a frayed condition. Mr Nixon made mention of it being a scungy bit of rope. It was made of nylon, consisting of a great number of small strands twisted into three larger strands which in turn were wound around each other to form the rope. A lot of the small strands were broken and sticking out when the plaintiff inspected it. His evidence was that it was dark in the building and it was not easy to discern the condition of the rope. He described its condition as "poor". The pipe was already suspended from it when he arrived at the premises and he had nothing to do with the selection of the rope for the job.
At the defendant's workshop there were two cranes which could have been used for the job, and the firm had on prior occasions hired a scissor-lift and scaffolding. It was the plaintiff's experience that while employed by the defendant, the company used cranes, scissor-lifts, scaffolds and slings for overhead jobs involving the installation of pipes. He had no experience of slinging and setting up jobs requiring installations at height and he had received no instructions from the defendant, or anyone else, as to the method to be used when lifting pipes and positioning them.
In answers to interrogatories the defendant acknowledged that a rope should not be used to suspend pipes or airlines and that it should only be used as a means to assist in the erection stages, such as by guiding pipes into position while they are suspended by mobile cranes or lifting equipment, for example chain-blocks and chain-pullers. Further answers made it clear that the defendant relied on its employees, who were experienced and licensed in their trades, not to use ropes that were in a damaged or frayed state or not in a good and proper serviceable order. The answers established that there was no system of checks or precautions being otherwise taken to ensure that ropes were not in a damaged or frayed state of repair and that they were in a good and proper serviceable order. The plaintiff was not warned of any problem with the rope in question The defendant admitted that at the time of the accident, he was not doing anything he had been instructed not to do and was not omitting to do anything he had been instructed to do.
On the basis of the evidence, I find that the cause of the accident was that one end of the 140 kilogram pipe had been suspended by a piece of rope which was damaged and inadequate for that use. I find that the defendant, its servants or agents, failed to take reasonable precautions for the safety of the plaintiff by using the rope for that purpose and by failing to withdraw it from service. The defendant's employees ought to have realised that the plaintiff, and other persons, were faced with a substantial risk of injury if the rope was used in the way it was. I therefore find for the plaintiff against the defendant in negligence and contract. So far as the latter is concerned I find that the defendant breached an implied term of the contract of employment that it would take reasonable precautions for the safety of the plaintiff.
Contributory negligence was pleaded by the defendant but once again, its counsel made no submissions in support of it. In my opinion, the plaintiff cannot be blamed for the accident in any way. He played no part in the choice of the rope or in the decision to use it to suspend the pipe. He could not have seen that it was in an unsafe condition until after he had ascended the ladder, and I am not persuaded that he was at fault for not inspecting and condemning it at that point of time. There will therefore be no apportionment for contributory negligence. In any event, insofar as the plaintiff's claim has succeeded in contract, contributory negligence is not a defence. Astley v Austrust Ltd (1999) 73 ALJR 403.
I turn to the question of damages. The plaintiff's history leading to the date of the accident, was essentially unchallenged. He was born in New South Wales. His date of birth was not established by the evidence, but I find that he is 57 years of age. He married in 1961 and has two adult sons. After his education at a high school and technical college, he became a boilermaker/welder in 1963, after serving an apprenticeship. After working in New South Wales, he moved to Tasmania's Tamar Valley in 1965 and worked as a boilermaker for three companies for about three years in all. In 1968, with two partners, he established a business called Confab. His partners were essentially financial, he having the general management of the business on the practical side. It was a general engineering business, which performed metal construction and fabrication work for industry. Although essentially the manager of the business, he also performed "hands on" work. In about 1978, the business was sold and he retired from boilermaking/welding as his main occupation. At that time, his wife was and still is, employed as a school bursar at George Town.
In about 1974, he and his wife purchased a 40 acre property at Hillwood and commenced to live there in about 1976. They gradually developed the property into a horse stud and training operation, and following the sale of Confab in about 1978, he devoted himself fully to it. Over a period of time, considerable improvements were made to the property. Much of the work was done by the plaintiff, although he was assisted by others. The improvements included the construction and erection of fences suitable for a horse operation, twelve stables, a large out box, a medical room and stallion box, two crushes, a twin box, a main structure suitable for conversion into an engineering workshop and, at its side, a lean-to which was used as a feed room. Around the outer perimeter of the main building, he built nine stables and a tack room. It is not clear to me whether those stables were in addition to the ones mentioned earlier. There were nine paddocks and a 600 metre wood fibre track. At the height of the business, in about the early 1980s, he owned about 30 horses and in a season there might be a dozen visiting mares, so that there could have been a maximum of about 40 horses on site at one time. A stallion, The Flagon, stood for about ten years from about 1978, followed by Prairie Wind, which was leased. About a dozen foals were bred on average each season.
The plaintiff had an A grade trainer's licence for some years, until about 1987 or 1988. At any one time, he trained a maximum of 12 or 13 race horses. The riding was done by his son and some employees. His evidence was that he had six or eight winners each year, and that he had as much success as anyone.
There was little evidence concerning the financial success of the stud and training operations and I suspect that they were not very profitable, because in about 1986 or 1987, he substantially gave them up and returned to his previous occupation as a boilermaker/welder. In cross-examination he said that if he had enough money, he would have retired from work (as a boilermaker/welder) and trained horses, but he had to remain at work to earn money.
Over the years, the plaintiff constructed five or six horse floats, a truck tray, two box trailers and a horse float on the back of a truck. Generally speaking, he built them, used them and sold them. Of the five or six horse floats, some were double and some were single. He sold the doubles for between $4,000 and $6,000, of which about half was profit.
As already stated, in about 1986 or 1987, he returned to work as a boilermaker/welder. In 1987, he commenced employment with the defendant, initially as a casual and then permanently from 1988. He was a leading hand. A boilermaker/welder's work is heavy. Weights of up to one tonne had to be handled, although the heavier weights involved two men using tools. He would often lift weights equivalent to a bag of cement, that is about 55 kilograms. He was a relatively strong and solid man who weighed about 90 to 95 kilograms at that time.
In or about May 1990, he suffered an injury in his right shoulder when working for the defendant. According to his evidence, he was tightening a vice between his finger and thumb when he badly strained a tendon. He was treated by a general medical practitioner, Dr Neville, who injected cortisone. He said that "it was very painful for a fair while" and after a time it snapped. He also underwent physiotherapy. He said that after the tendon snapped, his arm started to get better. Dr Neville's evidence explained that the injury suffered by the plaintiff was a subacromial impingement and in the course of the recovery process, the plaintiff fortuitously suffered a rupture of his biceps tendon, which made more room for other structures. For a period of time, he was prevented from using his right arm and shoulder. He was off work until about 22 June 1990 and then returned to his job with the defendant until the accident, the subject matter of this action, on 15 May 1991. However, he has never fully recovered from the right shoulder injury. When he returned to work after it, he undertook light duties because of it. He agreed that on 15 May 1991, he was still having trouble with it, but he maintained that he was back working "on the tools" by that date. However, Dr Neville's evidence was that at the time the plaintiff was still on "relatively restricted" duties and he was still being reviewed by that doctor for the injuries. He had seen an orthopaedic surgeon, Mr Batten, concerning the injury on 12 October 1990 and 22 January 1991.
It was the plaintiff's evidence that at the time of the accident on 15 May 1991, the stud business was still being operated, Prairie Wind being the stallion. He no longer held an A class trainer's licence, which had entitled him to train horses for other owners, and was restricted by a B class licence to training his own horses. He had one horse in training, but only in the sense that he "played" with it and not in a "normal working sense". That evidence may have been contradicted by him later when he said that his race horse, Fleece the Lot, was trained by Larry Dalco until January 1992. He imagined that the horses took up about 20 hours of his time each week. He said that on a normal working day he would get up early, perhaps at about 5am, go for a walk, have a look around (the horses) to make sure all was well, have breakfast and go to work. Sometimes he fed the horses in the morning. When he got home at the end of the day, he would "do some work". He thought that at that time there were about 8 to 12 horses on the property, being the race horse he was "playing" with, the stallion, brood mares and yearlings. His wife and son helped with the work on the property. He planned to continue running the stud on a part time basis. However, as I have already indicated, there was no evidence that it was a profitable operation. His income tax return for the year to 30 June 1991 merely included, in addition to his earnings from the defendant, a non-primary production income of $14 from a partnership with his wife. The following year, the amount was $21. I add that Mrs Paul's evidence about their financial relationship with regard to the property, only confused me, but it did not suggest there was a significant profit to be made out of their Hillwood property.
The evidence established that until the accident on 15 May 1991, but subject to the effects of his right shoulder injury which he suffered in about May 1990, the plaintiff was a physically strong and hardworking person who rarely had a day off work because of illness or injury.
I deal next with the effects of the injury suffered by the plaintiff on 15 May 1991. He compared the incident to being hit with a hammer, numb to start with and then sore down his back, from shoulder to tail. He also described it as "like a shooting force down me back". He continued at work for about two hours until knock off time and went home. Thereafter, the condition "progressively got worse … I was pained and I was sore down the back". He reported the injury to his employer and completed a workers compensation claim form on the day following the accident. On the day after that, he attended the company's doctor, Dr Neville, who thereafter treated him, both for the injury and as his general practitioner. Mrs Paul gave evidence that for a short period following the accident, she sometimes helped the plaintiff dress and she periodically still does so.
Mrs Paul also gave evidence that the plaintiff had a lot of bruising down the middle of his back and over to his hip, concentrated in the lower half of his back. On the other hand, Dr Neville referred to the bruising being to the left shoulder and arm. He said that on 17 May 1991, there was marked spasm of the muscles of the lower back, most notably on the left side. The plaintiff's main complaint was of pain in his left shoulder and his neck and particularly in the lower back. The pain limited the medical examination. The plaintiff was again seen by Dr Neville on 3 and 15 June 1991. On the latter occasion, the doctor felt that the left knee jerk reflex was diminished compared to the right and he began to suspect that the plaintiff had suffered a ruptured intervertebral disc associated with the injury. The plaintiff's evidence was that he underwent physiotherapy for a few weeks, but he said that it did not help and it was stopped. He maintained that for the pain he was suffering, he was taking Panadeine Forte and Panamax, the former working better than the latter. However, there was evidence suggesting that he was not dependent on pain killing tablets to a great extent. That evidence consisted of agreed facts that the only pharmaceutical accounts rendered by the defendant to its workers compensation insurer between May 1991 and September 1992 in respect of the accident, were for 20 Panadeine Forte capsules on 15 April 1992, 50 such capsules on 18 November 1992 [sic] and 50 Robaxin tablets on 9 April 1992. Robaxin is an analgesic anti-inflammatory medication. He was referred by Dr Neville to the orthopaedic surgeon, Mr Batten, for advice concerning his condition, on 23 July 1991.
He lost no time from work because of the injury, until late in 1992. However, he was incapacitated to the extent that he did not return to his pre-injury duties or to working "on the tools". Asked what duties he did perform, he said he held tapes for others when measuring, helped with drawings, drew shop sketches, costed jobs, quoted, invoiced and negotiated work. He was able to vary his posture and, on occasions, he would go to his car and lie down. He stopped doing almost all physical work on his property at Hillwood. His evidence was that since shortly after the accident, his back has hurt like a dull toothache and if it is twisted or jolted, it really throbs. The pain was for ever there and still is, he said. Since an initial settling down of his condition, there has been no change.
His evidence was of continuing to work for the defendant on light duties for about 1½ years after the May 1991 accident. He then underwent an operation to repair a small hernia which had developed upon lifting some years before and which gave him some trouble. When he returned to work for the defendant, he was "told they wanted me on the tools again", which meant the heavy work of boilermaking/welding. At the same time, he was told to "take it easy". He maintained that his back condition had not improved, but he was prepared to give the work a go. Dr Neville's evidence was that the plaintiff consulted him prior to going back on the tools again and he certified that the plaintiff was fit to return to normal duties. The plaintiff had presented to a doctor in April 1992 with a flare up in his back condition and had seen Dr Neville again in June, but apparently not thereafter until late in 1992, and Dr Neville thought that there was not a major problem and that it was appropriate to clear the plaintiff for normal work.
However, the return to such work was unsuccessful. The plaintiff's evidence was that for a couple of days he marked out a steel plate, which was on trestles, using a scriber, centre punch and hammer, tapping lightly, and he was also cutting little gussets with some form of flame cutting machine. He was feeling quite good. A fellow worker was making a large metal hopper or bin and wanted to turn it over. It was lifted onto its edge by use of a crane and the plaintiff then pushed it beyond its point of balance. After that, he went home. Next morning, he could not get out of bed because he was in agony. He said that the pain in his back was like an aching tooth. "It stirred up me back something shocking. Yeah, and then it settled again." He has not worked since. His uncontested evidence was that the defendant did not want him back at work unless he was fully recovered.
When that incident occurred was not clearly identified by the plaintiff, probably because of the long passage of time since. However, in a report dated 5 February 1993, Dr Neville said it occurred on 17 November 1992. He reported that the plaintiff experienced a considerable increase in the lumbago and sciatica he had previously reported and that it was an aggravation of the injury suffered on 15 May 1991.
The plaintiff's evidence was that there has been no significant change in his back pain over the last five or six years. Most of the time, on a scale of 1 - 10, the level of the pain is 3. If he bends or twists in some way as to cause pain, the level shoots up to about 6 or 7. That usually happens unexpectedly.
He described horses as his love, but he was forced to give up the stud and sold the horses in 1993. He said the final straw was an incident when he and Ron Williams were endeavouring to have a stallion serve a mare. He was holding the stallion when it reared and kicked at the mare, just missing Mr Williams. The plaintiff had to let the stallion go because there was too much pain in his back. "I couldn't hold the horse, my back nearly killed me. I had to let him go and I've never let a horse go in my life." There are no longer horses on the property. Mrs Paul runs a cattle stud.
When describing his disability as a result of his back condition, the plaintiff gave the following evidence. He can pick something up off the ground if he keeps his back straight and bends at the knees. He cannot "stand for any real length of time … I would be moving within the half an hour". Sitting for a quarter of an hour produces pain in his back. If he drives to Hobart, he usually needs to get out and walk once or twice. Travelling on rough roads jars his back. When going up stairs and steep inclines, he can suffer numbness in his legs and they can "go rubbery and collapse". Going up or down stairs, particularly down, is difficult because sometimes it jars. He can walk however. Up until five or six months before the trial, he was walking 10 - 12 kilometres each day, but then reduced the distance to five kilometres each day (because of discomfort in his left knee and feet). He believes walking is therapeutic, "when I warm up, yes, I feel better". Rotating his hips aggravates his back condition. He gave an example of sharpening knives on an oil stone for a couple of hours and the next day he could not move. Coughing and sneezing can sometimes hurt his back. He can no longer do the work involved in running a horse stud or training a horse. Sexual activity causes pain in his back, his description of this being "shocking".
As a result, he is relatively inactive compared to before the accident. He still rises at about day break and goes for a long walk. He feeds and waters chickens and checks things on the property. He reads the newspaper from cover to cover. He goes to Launceston and does a bit of shopping. He occasionally goes to the races. He spends much of his time at the nearby Hillwood Football Club where, according to Mrs Paul, he is a member of the committee. He does voluntary work behind the bar at the club, particularly on training nights and after games. Prior to the accident, he had a fairly heavy alcohol intake, usually half a dozen six ounce beers at a club after work and more when he got home. His evidence was that he has increased his intake since then. He accepted that he can do some limited chores on the Hillwood property. In answers to interrogatories he said that he ran beef cattle, although in cross-examination he said that he meant his wife did. It was their evidence that she owned the cattle. In the answers he also said that he drove a tractor from time to time doing a little harrowing and he fed out a little hay in the winter and attended to minor jobs.
The plaintiff's marriage has substantially broken down. Although they still associate with each other to some extent, and presently live under the same roof, they have essentially lived separately and apart for some years, at least since 1994 and possibly earlier than that. However, the break-down of the marriage was not claimed by the plaintiff to have been caused by the accident and there is no need to deal further with the subject.
I substantially accept the plaintiff's evidence about his suffering from his back condition since May 1991. His evidence, and that of his wife, was criticised by the defendant's counsel, particularly for being vague and uncertain, but I consider that such aspects of their evidence largely arose because most of it related to events which occurred between six and nine years ago. The plaintiff's evidence that his back pain has basically remained the same since May 1991 (with aggravations occurring from time to time upon some activities) was also attacked upon the basis that it was not consistent with the history he related to medical practitioners. However, a consideration of the evidence does not bear that out. It was also argued by the defendant's counsel that the plaintiff's evidence that he was training a race horse, Fleece the Lot, from about four or five months prior to the aggravation of his injury in late 1992 (on 17 November 1992 according to Dr Neville) at least until the end of January 1993, was inconsistent with him suffering from his back condition. I do not accept that argument. The plaintiff's evidence of what he did while training the horse was of limited activity by a man who was trying to continue with what he described as a love in his life, while suffering from a physical handicap. I have no hesitation in accepting his evidence of the aggravation of his back condition following activity at work in about late 1992, which happened during a time when he was training the horse. The evidence of the plaintiff, and of Mrs Paul, satisfied me that following the end of January 1993 he gave up training it and allowed a friend, John Richardson, to take the horse over. Obviously the reason he did so was because he could not cope with training the horse himself. Mr Richardson was unsuccessful with Fleece the Lot and it was returned to the plaintiff, following which it was disposed of in a dispersal sale conducted later in 1993. The plain reason for the dispersal sale was that the plaintiff was no longer able to handle horses. His evidence of the "last straw" with horses, when he was trying to hold a stallion in the course of the service of a mare, was consistent with him trying to continue his activities with horses, but failing because of his back condition.
A significant issue at the trial was whether the plaintiff's continuing back complaints were caused by the accident on 15 May 1991 or whether they merely arose from a pre-existing degenerative condition in his spine. The evidence called by the plaintiff from medical practitioners Neville, Maclaine-Cross and Hocking, supported his case that the accident was the cause. The defendant's medical witness, Dr Buzzard, supported the defendant's case that most of the complaints arose from the degenerative condition and not from the accident. The defendant's counsel also sought to rely on the medical report of Mr Batten which was admitted into evidence by consent, without the doctor being called to give oral evidence because of his unavailability. However, I found little support for the defendant in Mr Batten's report. It was written on 15 December 1992 following his most recent examination of the plaintiff on 27 November 1992. It did not purport to deal with the plaintiff's condition thereafter. Whether in fact the aggravation of the plaintiff's back condition, which Dr Neville said occurred on 17 November 1992, had in fact taken place by the time Mr Batten saw the plaintiff on 27 November 1992 is open to question, for Mr Batten made no mention of it and in fact reported that the back problem had not resulted in the plaintiff losing any time off work, which has been shown not to be the case once the aggravation had occurred. Further, Mr Batten did not have the benefits of the results of an MRI performed on 14 January 1993.
It was established by the evidence that immediately prior to the accident in May 1991 the plaintiff had a minimal degenerative disease in the low lumbar area. Until then it had caused him no problems of consequence. He was asked whether he had any back problems before May 1991 and he said never, except for a light strain here or there. He said it was common to also get strains in legs and arms. Having regard to the heavy nature of his work, in his occupation and at home, I find that he had not suffered significant symptoms from the degenerative disease prior to May 1991. Dr Buzzard thought that the occasional strains to which the plaintiff admitted may have been "symptomatology of osteo-arthritic degeneration". That must be regarded as speculative. What was established, on the basis of probability, was that immediately prior to the May 1991 accident the plaintiff was suffering no symptoms of an injury, disease or disorder in his low lumbar spine but immediately following that accident, and ever since, he has suffered in that area of his body. I prefer the views of medical practitioners Neville, Maclaine-Cross and Hocking, to those of Dr Buzzard, that a substantial cause of his spinal suffering to this day has been the May 1991 accident. The pre‑existing degenerative disease may also have played a part as a cause, but only because the accident occurred. Dr Buzzard was of the opinion that the aggravation in late 1992 was a further aggravation of the pre-existing degenerative disease and constituted a separate and different injury from that suffered in May 1991. However, Dr Buzzard was of the opinion that at the time of the aggravation in late 1992, the plaintiff had probably recovered totally from the May 1991 injury, whereas the contrary was established to my satisfaction by the evidence of the plaintiff and his treating medical practitioner, Dr Neville. I find that the May 1991 accident was the cause of the plaintiff's pain, suffering and disability arising from his lower back.
The plaintiff's left shoulder was also injured in the accident, but he gave little evidence of continuing complaints arising from that injury. At one point in his evidence he said that since the accident his back has remained the same but "me shoulder's got worse". He did not amplify the respects in which that had occurred. At another point in his evidence he mentioned that his shoulder, which I took to be a reference to the left shoulder, gave him "curry" and at times he had trouble sleeping on it. I find that he continues to suffer some pain and discomfort in the left shoulder, as a result of the May 1991 accident, but his suffering is only at a low level.
Loss of earning capacity
I find therefore that the May 1991 accident was the cause of the plaintiff's loss of employment at about the end of 1992. He gave evidence that it was his intention to continue working as an employee until the age of 65 years, but if there was no work available he would have started his own engineering business and might have continued beyond that age. He was aged about 50 years when he stopped work at the end of 1992. He accepted that as he got older he would probably have done lighter work than earlier in his life. He said he probably would have gone into a workshop and done welding and benchwork, the smaller and lighter jobs rather than the heavy ones. That is what normally happens in the industry as workers approach retirement. He said that alternatively he could have worked from home doing repair work, manufacturing items such as horse floats, trailers and truck-trays and other odd work on contract. The particulars of his claim for loss of earning capacity were for lost earnings as a leading hand boilermaker until aged 60 and in a lighter or more sedentary position from age 60 to 65.
I find that given his back problems he is unlikely to be able to earn income again. Counsel for the defendant pointed to the admitted fact that he has made no formal application for employment since 1992, but I am extremely doubtful that any such application would have been successful given the plaintiff's age and the history of his injuries. I accept the plaintiff's evidence that from time to time he has made enquiries about work of people he knows in the industry, but nothing has resulted.
In the year to June 1991 his income from his employment by the defendant, after deducting expenses such as travelling, meals, protective clothing and union fees, amounted to about $35,000 gross or about $25,700 net after tax and Medicare levy. In the year to 30 June 1992 the amount was about $39,200 gross or $28,360 net. Evidence was given by Kevin Hodgetts, a 45-year-old boilermaker/welder who lives near the plaintiff, that in the financial year to June 1998 his income, after such items was about $45,400 gross (about $32,600 net). At the trial it was agreed that the current rate for a qualified tradesman under the Metal Engineering and Associated Industries Award 1998 was $520.40 per week gross and $449.70 net, which equates to $27,060 per year gross and $23,384 net.
The plaintiff claimed a loss of no less than $40,000 gross per annum to age 60 and then no less than $27,060 gross per annum to age 65. However, there was evidence which makes it doubtful that he would have been able to fully sustain earnings of that nature notwithstanding the effects of the accident. I refer in particular to the following.
1He had a pre-existing degenerative disease in his spine. It may well have become symptomatic, with or without another trauma. Heavy physical tasks would have made that more likely.
2He suffers from the effects of the injury to his right shoulder in about May 1990. It caused him to keep to restricted or light duties for some time. A year later he was still under medical review. Concerning the time of the trial, his evidence was that when grabbing or twisting with his right arm in an elevated position he can suffer "spasms in that arm". He said that "I'm all right until it locks up and then pains, I've got to stop doing what I'm doing".
3He suffers from gout. It is largely controlled but he may have an occasional flare-up.
4He suffers from osteoarthritis in both knees, which is suggestive of a general underlying osteoarthropathy. He twisted a knee some years ago. In 1994 he underwent an operation on his left knee apparently, according to Dr Neville's evidence, to remove a cartilage in order to try and minimise pain and damage. About six months before the trial he reduced his daily walking distance from 10 to 12 kilometres to about five kilometres because of discomfort in his knee and feet.
5His hypertension is a relatively serious medical complaint. Medication and lifestyle changes reduced his blood pressure from a very high level, but at the time of the trial it required further reduction in the interests of his health.
6His alcohol intake has tended to be excessive for many years and he is in a high risk category so far as obesity is concerned. Inactivity brought about by the effects of the accident no doubt contributes to his obesity. His alcohol consumption may well have caused his liver to be damaged and enlarged, to some extent at least.
7He is a bit chesty and wheezy now and again. That may be associated with smoking earlier in his life.
A relatively substantial reduction in his claim for lost earning capacity should be made, having regard to the factors I have just mentioned. It is likely that they, possibly one in conjunction with another or others, would have inhibited his capacity to earn at the level claimed by him. A broad-brush approach can only be applied by me. A precise mathematical approach is clearly inappropriate.
For lost earning capacity since about the end of 1992 and extending into the future I would award about $280,000.
Fox v Wood component
From the damages will be deducted $78,022 workers compensation paid to the plaintiff with respect to lost earning capacity. Of that $10,068.45 was paid in income tax and in accordance with the principle of Fox v Wood, that sum will be added to his damages.
Superannuation
The plaintiff claimed for the loss of entitlements to superannuation. I understand that figures prepared by accountants were agreed between the parties as a proper basis for calculation. The figures show a loss of $28,359 based on a gross loss of income at the rate of $40,000 per annum from the accident until January 2007. It was agreed that if I award for lost earning capacity a figure equivalent to one calculated on less income then I should proportionally reduce the superannuation loss. On that basis I will award $22,000 for this item.
Past medical and travelling expenses
The plaintiff claimed $28 per visit for monthly attendances on his general medical practitioner since November 1993. $28 is the agreed cost for each attendance. He has not claimed for the period before November 1993 because the cost was met by the defendant under workers compensation legislation. No documentary evidence to verify the claim was produced. I will accept Dr Neville's evidence that he has been seeing the plaintiff eight to 12 times a year on average and will allow for 10 attendances a year. For the period since November 1993 therefore I will allow for about 60 attendances at $28, a total of about $1,680. Involved for each attendance was travel of 40 kilometres at an agreed cost of 35 cents per kilometre, for which in total there will be allowed about $840 to November 1999.
For medication to date the plaintiff claimed $68 per month from November 1993. Once again, no documentation was produced to verify the claim but Dr Neville's evidence supported it and there was agreement as to the individual cost of the various items of medication, namely Panadeine Forte, Naprosyn, Tagamet, Panamax and Metamucil. Accordingly I will allow $68 per month for about 72 months, that is about $4,900.
Rounding off, under this heading will be allowed a total of $7,400.
Future medical and travelling expenses
For future attendances on his doctor I will allow as claimed for about six attendances each year at $36 agreed cost per visit over the period of his life expectancy of 21 years. To the cost of each attendance will be added $14 for travelling expenses. Therefore $3,400 will be allowed. For future pharmaceutical expenses I will allow $9,200 as claimed, rounding off.
In total under this heading $12,600 will be awarded.
General damages
For pain, suffering and loss of amenities of life I assess $40,000.
Conclusion
There will be judgment for the plaintiff against the defendant for $294,046.45 made up as follows:
Loss of earning capacity $280,000.00 Fox v Wood component $ 10,068.45 Superannuation $ 22,000.00 Past medical and travelling expenses $ 7,400.00 Future medical and travelling expenses $ 12,600.00 General damages $ 40,000.00 Total $372,068.45 Less workers compensation paid $ 78,022.00 Judgment sum $294,046.45
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