Phair v Lechner and Suncorp Metway Insurance Limited
[2000] QDC 415
•24 May 2000
DISTRICT COURT OF QUEENSLAND
CITATION: Phair v Lechner & Suncorp Metway Insurance Limited [2000] QDC 415 PARTIES: ROBERT PATRICK PHAIR Plaintiff
And
LYNELLE JOY LECHNER First Defendant
And
SUNCORP METWAY INSURANCE LIMITED
(ACN 075 695 966) Second DefendantFILE NO/S: D4275 of 1999 DIVISION: PROCEEDING: ORIGINATING COURT: Brisbane DELIVERED ON: 24 May 2000 DELIVERED AT: Brisbane HEARING DATE: 15 May 2000 JUDGE: McLauchlan Q.C. ORDER: CATCHWORDS: COUNSEL: R Lynch – Plaintiff; P Feely – Defendant SOLICITORS: McInnes Wilson – Plaintiff; Tutt & Quinlan – Defendant
This is an action for damages for personal injuries in which liability is admitted. The plaintiff was born on 20 May 1957 and was involved in a motor vehicle accident on 29 March 1999. He was thus almost 42 years old at the date of the accident, and at the date of trial (15 May 2000) he was almost 43 years old. The first defendant’s vehicle collided with the plaintiff’s vehicle as a result of which he sustained some bruising to the right side of his head and chest and some soft tissue injury to his cervical spine and right shoulder. He apparently also suffered a chipped tooth. He was examined on the same day at the Redlands Hospital but not admitted. He thereafter spent a week in bed suffering some pain in his right shoulder and headaches. He got up in the second week and on the following week he returned to work. He said that during the 2 week period he was at home his wife carried out various domestic duties which he was accustomed to do.
The plaintiff was a self-employed plasterer in partnership with his de-facto wife under the name “Rob’s Plastering Service”. He in fact did all the actual plastering work and his wife attended to some office duties. The partnership income was split equally between them. The plaintiff returned to work to carry out a job which had already been arranged, with some assistance. The evidence is somewhat vague as to precisely what work he did thereafter up to the date of trial. The statement of loss and damage which has become an Exhibit states that on 13 April 1999 the plaintiff returned to work in a reduced capacity and worked in a reduced capacity until 31 March 2000. In approximately March 2000 he commenced employment with “P & P Morrison Plastering” of Capalaba, as an employed plasterer earning approximately $1,000 gross per week. The evidence also indicates that in November 1999 he was working on a job site at the Old Treasury Hotel on a development known as “Irish Murphy’s” earning $1,300 gross per week. The plaintiff was still working for “P & P Morrison Plastering” as at the date of trial.
The plaintiff saw Dr Richard Buzacott on 1 April 1999 where he complained of a sore neck a painful right shoulder and a chipped tooth. He was noted to be tender over the cervical spine and had limited range of movement especially lateral movements. He was also suffering pain in the anterior chest wall. The doctor expected a full recovery.
On 4 August 1999 he consulted Dr Johnn Olsen, a consultant physician in Brisbane. The doctor opined that the plaintiff had suffered injury to the cervical spine, most likely facet joint strain at the C6/7 and C7/T1 levels, and that he also had clinical signs consistent with a sprain injury at the right pectoral region, He thought, when he prepared his report that the pectoral sprain should settle with some gentle stretching and also by on-going normal work. Dr Olsen thought that the prognosis was reasonably good although on the balance of probabilities the plaintiff would suffer some persisting or on-going neck pain. This would not be such as to prevent him from working but would be an on-going inconvenience and annoyance. He thought that the plaintiff had sustained a permanent impairment of 5% of the whole person on the basis of his cervical spine injury but that the strain at the pectoral region would eventually recover. There was some loss of movement in the plaintiff’s spine and very minor loss of movement in the right shoulder. On 17 January 2000 the plaintiff saw Miles Browning a Physiotherapist who assessed classic whiplash symptoms on the left side of the lower cervical and upper thoracic spine and noted that the plaintiff also had pain in the anterior aspect of the right shoulder which was consistent with seat belt injury.
The plaintiff next saw Dr Bruce Martin an orthopaedic surgeon in Brisbane on 29 February 2000. Dr Martin, in his report records that the plaintiff had told him that prior to the accident he had experienced some muscle pain in his neck and in his left shoulder from holding the “hawk” which I understand to be an object which holds the plaster before it is applied. Dr Martin thought that the plaintiff was not in pain and he had a full range of movement in each shoulder with no pain being experienced on movement of the right upper limb at the shoulder. There was a slight diminution of movement in the neck. Dr Martin concluded that the plaintiff appeared to have sustained minor musculo-ligamentous injury to his neck, his right shoulder and his anterior chest wall but that he had made a complete recovery from his injuries and that there would be no permanent effects by way of disability or accelerated de-generative change in the right shoulder, or in the cervical spine. He did not think that the plaintiff was disadvantaged within his present work, or on the open labour market.
The plaintiff then saw Dr Pentis, another orthopaedic surgeon in Brisbane on 9 May 2000. Dr Pentis provided a medical report on the same day. Dr Pentis found some tenderness in the neck and some weakness in the right shoulder but a full range of movement. He opined that the plaintiff had sustained soft tissue musculo-ligamentous injuries to the cervical region of his spine and also soft tissue injuries to the shoulder joint musculature on the right side which had left him with residual problems which would give him difficulties in his work as a plasterer. He considered the plaintiff was left with a weakness approximating a 5% - 7.5% loss of the efficient function of his spine as a whole, and a 7.5% - 10% loss of the efficient function of the right upper limb in relation to the shoulder joint injury. Since the plaintiff’s alleged injuries are soft tissue injuries, it is generally right to say that the medical diagnoses of his condition depend substantially upon his own account of his symptoms. There are no clinical findings in this case which can establish, in an objective way, the injuries of which the plaintiff complains.
Mr Peter Morrison, of “P & P Morrison Plastering” gave evidence that he employed the plaintiff about 6 weeks before the trial and that he remained in his employ at the date of trial. He earns $200 per day, and produces a good standard of work, but he is assisted by 2 apprentices instead of the usual 1, and his work is relatively slow. Mr Morrison knew the plaintiff some 10 years ago and had worked with him a few years prior to the accident when his ability to work speedily and for long hours was, in his opinion, much greater than it is now. Mr Morrison could not of course say whether the difference he observed was attributable to the plaintiff’s accident or to another cause such as increasing age. He could only say that the plaintiff’s observed work performance was reduced. Mr. Morrison also said that he took the plaintiff on at a very busy time, because he needed him, but in the event (expected) of a slackening in demand for plastering work, he would have to let him go. Apart from the plaintiff’s evidence it is only Mr Morrison’s evidence to which reference can be made concerning any problems that the plaintiff is encountering at work following his accident. Mr Morrison seemed to me to be a candid and open witness and on balance I think it is a reasonable inference that the plaintiff’s ability as a plasterer has suffered some reduction, at least some of which should be regarded as attributable to his accident.
At the same time I was not greatly impressed by the plaintiff as a witness. For example, he denied stating to Dr Martin that he had had previous trouble with his neck and left shoulder, although the terms in which that is recorded by Dr Martin suggest that the statement was made, and there was no reason to suppose Dr Martin made an inaccurate note of what was said. He also, as it seemed to me, engaged in some evasiveness and obfuscation when in cross-examination it was put to him that there was a difference between what he said in court as to the amount of gratuitous care provided by his de-facto wife, and what was stated on the same subject in his statement of loss and damage. Further, he produced income tax returns for the year 1996,1997, 1998 and 1999, which showed relatively small earnings from the partnership, and it was suggested that the profit had been divided equally between him and his de-facto wife. He indicated that the earnings were low during these years because he had to take some 4 to 7 months off work each year to look after his son who had a bowel disease, his de-facto wife being unable to do this because she had a job at Ingham Chickens. A report is in evidence from Vincents Chartered Accountants in which they say they have attributed the whole of the partnership income to the plaintiff, in the years 1996 and 1997, but the figures for these years remain at the relatively low amount of approximately $15,000. The partnership returns themselves were not presented in evidence but the accountants’ report made it clear that in assessing the plaintiff’s pre-accident earnings they have included therein the whole of the profit generated by the partnership in the years ended 30 June 1996 and 1997. And they say that they have not taken into account the 1998 year in estimating the plaintiff’s pre-accident earnings because it was in that year that the plaintiff’s son developed his problem which led to the plaintiff taking time off work. The plaintiff, on the other hand, says that these problems arose in 1996. I think it is unlikely that the accountants made a mistake about this because it was critical to their assessment of the plaintiff’s average pre-accident earnings. The accountant who prepared the report was not called, and the defence did not required him for cross-examination. The accountants also state that they had been advised by the plaintiff that he had been unable to work and would continue to be unable to work for approximately 2 months per year during the years ended 30 June 1999 to 30 June 2001, due to his son’s illness. Accordingly, for those years in their calculations they have reduced his earnings by one-sixth to account for his absence from work “for reasons other than the accident.” In evidence, on the other hand, the plaintiff said that following an operation, although his son had to pursue a particular diet, there was now no need for anyone to stay at home to assist him.
It is also noteworthy that if it was the intention to show that the plaintiff’s partnership earnings would have been greater had it not been for his son’s illness, one would have expected to see income tax returns for a period prior to 1996 which, on that theory, should have shown significantly larger amounts. Such income tax returns were not however produced.
It is also a little curious that the only evidence called by the plaintiff to assess his claim for future economic loss is evidence given by a man with whom he began employment only 6 weeks prior to the trial. Further, in relation to the plaintiff’s claim in respect of gratuitous assistance his wife was not called to give evidence, although obviously she would be in a position to confirm or deny what the plaintiff said on that subject.
All these matters cause me to have some concerns with respect to the plaintiff’s credit.
I think it likely that the plaintiff did suffer soft tissue injuries to his neck and right shoulder as a consequence of the accident. The problematical area is the extent to which these difficulties have persisted, if at all. Considering such evidence as is before me, along with the doubts I have expressed concerning the plaintiff’s candour, I conclude that the plaintiff does suffer some on-going problems but that he exaggerates them. I think the proper inference is that he has a minor problem with his neck which causes him some difficulties at work, but no difficulties with domestic duties, and that he has virtually no problems with his right shoulder except that it may become a little painful as a result of extended use during his work as a plasterer. I do not think in the circumstances that his problems are such that they will worsen. I accept that the plaintiff had pain and discomfort for a period of approximately 2 weeks following the accident but consider that he now has only a very minor disability as a continuing effect of that accident. He is a man 43 years of age with about 17 years of work life ahead of him, and the nature of his work is such that his problems although minor are likely to cause some discomfort and inconvenience. I consider that an appropriate award for pain suffering and loss of amenities is a sum of $15,000. I allow interest at 2% per annum on one half of that amount for a period of 14 months, amounting to $174.00.
Special damages are agreed in the sum of $498.70 and I allow interest on $448.70 at 5% per annum for 14 months, amounting to $25.00. Past economic loss is agreed at $1,000 and I allow interest calculated at 10% per annum amounting to a further $116.00.
It is agreed that the rate for the purpose of assessing Griffiths v Kerkemeyer damages is $10.00 per hour. I accept the plaintiff’s evidence that he required such assistance for 2 hours per day for the 2 weeks when he was not at work. I do not accept his evidence as to domestic assistance required thereafter. Consequently the award under this head will be $280.00. I allow interest at 2% on that amount for a period of 14 months, amounting to $6.50.
With respect to future economic loss I consider that the plaintiff has suffered no more than a 10% loss of earning capacity attributable to the effects of the accident. Ignoring adjustments on the part of the accountants with respect to the plaintiff’s son’s illness, they come to the view that his income from the end of this financial year based on previous partnership earnings is in the area of $265.00 per week after tax. His income on an alternative scenario which is based on the current award rate of pay for a casual plasterer working on average 40 hours per week for 48 weeks per year, is about $495.00 after tax per week. I must say I think it most unlikely that the plaintiff would be able to maintain earnings at the latter rate when his earnings through the partnership, but representing the whole net income of the partnership, are so much lower. It is also admittedly the fact that earnings in the plastering industry are very variable depending upon whether the industry is busy or slack at any particular time. I think the most realistic estimate of the plaintiff’s earning capacity, leaving aside the effects of the accident, is a sum of approximately $300.00 per week after tax. Suffering a 10% loss of earning capacity as I have found, this represents a loss of $30.00 per week for a period of 17 years when he will have attained the age of 60 which is a reasonable retirement age in the plaintiff’s industry, and is the age at which he stated it had been his intention to retire. This produces a present value of $18,090.00 calculated on the 5% tables. A calculation of this kind is necessarily an inexact method of estimating the financial detriment to be suffered by a plaintiff by reason of a loss of earning capacity: Husher v Husher [1999] 197 C.L.R. 138,149. The plaintiff’s future earnings may fall above or below the figure I have employed of $300 per week after tax, as an average throughout the period in question, for a variety of reasons. The plaintiff appears to be a fit healthy man, and apart from the disputed consequences of the accident there is no suggestion to the contrary. I see no reason in the circumstances to apply a discount to the figure of $18,090.00, and I award that amount for future economic loss. For future medication I allow the sum of $1,000.00. For loss of superannuation benefits I would allow 6% of the amounts awarded in respect of past and future economic loss, amounting to $1,145.40.
Damages are thus awarded in the sum of $37,335.70 calculated as follows:-
Pain, suffering and loss of amenities 15,000.00
Interest 174.00
Special damages 498.70
Interest 25.00
Past economic loss 1,000.00Interest 116.00
Griffiths v Kerkemeyer 280.00
Interest 6.50
Future economic loss 18,090.00
Future medical expenses 1,000.00
Loss of superannuation benefits 1,145.50
TOTAL $37,335.70
There will be judgment for the plaintiff in that amount.
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