Pittaway v Precision Maintenance Services No. DCCIV-99-982
[2000] SADC 77
•13 July 2000
PITTAWAY v PRECISION MAINTENANCE SERVICES
[2000] SADC 77
Judge Lowrie
Civil
The plaintiff, now aged 34, alleged in his statement of claim that in December 1996 he had been employed by the company, Greens Property Services Pty Ltd (hereinafter referred to as “the employer”), as a cleaner of industrial premises and on 30 December 1996 he received an electric shock from a steam cleaning machine (hereinafter referred to as “the machine”), the property of his employer. He alleged the machine, prior to 30 December 1996 had been placed in the hands of the defendant for such a fault to be rectified, and, the defendant had carried out such rectification and/or maintenance work and returned the same to the employer. The plaintiff alleged that on 6 January 1997, whilst using the machine in the course of his employment, he received a further very severe electric shock from the machine, and, thereafter was hospitalised and has suffered serious injuries.
The summons named “Precision Maintenance Services” at 95 Fullarton Road, Kent Town as the defendant. On 7 September 1999 three affidavits of service were filed confirming that on either 22 or 23 August 1999 summonses had been served on Peter Van Der Weegan, John Robert Van Der Weegan and Suzanna Van Der Weegan. John, Peter and Suzanna Van Der Weegan are all partners in the defendant business.
On 5 October 1999, the defendant having failed to file an appearance, the Court ordered that the plaintiff recover from the defendant damages to be assessed and the costs of his action to be taxed. The Court, in time, directed a memorandum to Precision Maintenance Services concerning a caseflow management conference to its address at 95 Fullarton Road, Kent Town. Such notice was returned unclaimed to the Court.
The matter came on for hearing before me to assess damages to be assessed. At that time, the plaintiff gave evidence and I received various medical reports into evidence.
EVIDENCE
The plaintiff confirmed he was 34 and was born and raised in Broken Hill. He left school at 14 and began working on station properties in and around Broken Hill. He also worked for a mining company and this work involved him in using earthmoving equipment. His work included working with large equipment making dams, no doubt, on remote properties. The plaintiff outlined the manner in which he met his wife. Since the age of 14 the plaintiff has been continuously employed in a variety of occupations.
The plaintiff was clearly an active competent able worker in the various fields of employment that he pursued over the years.
The plaintiff said in or about 1994 there was a downturn in work in Broken Hill and consequently travelled to Kadina as he was of the opinion there was work available in that area particularly as an operator of large machinery. In about 1996, he obtained work through a labour hire firm, Manpower. It was through the labour hire firm that he obtained employment with the employer.
The plaintiff outlined that his employer was involved in stripping and sealing large floors and, for this purpose, he was obliged to use an electrical scrubber which was a very heavy industrial type piece of equipment. The operation of this equipment was very labour intensive and demanding. He also used a large steam cleaner for cleaning vast areas of carpet in industrial premises. Again, this machine was a very heavy piece of equipment to manoeuvre and control. The machine, he said, was like an electric polisher, but it contained water and was consequently heavy and difficult to manipulate.
The plaintiff said he well remembered an occasion in December 1996 when he was using this machine at the premises of Arnott’s Biscuits. He said he had cleaned about three carpets in three rooms and during this time the machine was, in fact, “tripping” the electrical meter. An electrician attended and fixed the fuses. He believed the building did not have what he regarded as a modern switchboard with “trip switches”. That type of switch automatically turned off the current in the event of some malfunction, albeit minor. He said at this stage he received a “little shock” from the machine and telephoned his employer requesting that the machine be fixed.
He said the machine was then picked up from the premises and maintenance and repair of the machine was apparently carried out by the defendant to rectify the fault.
The plaintiff outlined that he returned to the premises on 6 January 1997 with the same machine after it had been repaired by the defendant. He said he had completed about six rooms. His evidence was:
“I got on to about the third room again - I’d done about six rooms altogether for that place - on the third room and I went to move the machine out the door by the handle and by the nozzle of the machine, and I got a shock that actually grabbed hold of my hands and held me there for two, three seconds, and then it threw me back a good six feet up against a wall. Then I sorted of fell to the ground and I did yell out a swear word or two which no-one heard. Then I had this very - pain, sort of, in my chest. My heart was irregular and it actually took me a little while to get up. Then I got up and I rung my boss, which he then said that - I rung him and told him that I would not work on the machine, to get it fixed properly and he told me to go and see a doctor.”
The plaintiff outlined that he attended his doctor and was then admitted to the Lyell McEwin Hospital where he underwent an electrocardiograph and was advised that he had an irregular heart beat. He was subsequently discharged from hospital. He said that after this shock he had a copper taste in his mouth and felt very shaky. About three days later he said his eyes started to “fade”, like he was having a dream. In March 1997, he was referred to a psychiatrist. He said he explained his problems to the psychiatrist and his general practitioner referred him to a neurologist, Dr Norton, and subsequently an eye surgeon, Dr Economos. However, despite his ongoing pain complaints he outlined that neither the neurologist nor the eye surgeon could find anything physically wrong with his health. Despite this finding, he still has difficulties with his sight.
The plaintiff said a major problem with his health since the accident has been with a psoriasis condition. The plaintiff outlined that before the accident he had a small area of such skin disease on his leg of about an inch in diameter and a small area on his head. He said he has suffered from this skin problem since about the age of 21, but it had caused him no difficulty. However, since the accident this condition has gradually become a major problem and out of control. Consequently, he was referred to a Dr Tyson in April 1998. He said the psoriasis had developed within approximately three months of having received the electric shock. The plaintiff outlined the difficulty that he has with this skin disease, the ongoing pain and treatment, particularly on his penis which has, and does, cause extreme pain.
The plaintiff outlined that his health condition caused him to become depressed and he would take out his frustrations on his wife and children. The plaintiff was eventually prescribed the drug, Zoloft, by his general practitioner which he was still having prescribed for him.
The plaintiff outlined that he had received WorkCover benefits and was eventually directed to return to work in about July 1997, but felt he could not do cleaning work because he viewed their system, in the absence of “trip switches”, as unsafe. In his words he said he was “just petrified of getting another electric shock”.
Eventually his weekly payments ceased.
He said he was offered work in early 1998 in a garden situation by his landlord, but felt unable to use the equipment involved in this work. The plaintiff said that he felt his whole health situation was improving and hoped that within 12 months to 2 years he would be able to resume any type of work and use all the employment skills that are within his range of experience.
MEDICAL EVIDENCE
The medical evidence can be summarised as follows.
The plaintiff was referred to a neurologist, Dr Graham Norton, who was aware of his admission to the Lyell McEwin Hospital and his irregular heartbeat. He advised that subsequently the same settled during the early period of his treatment and has remained regular since. He confirmed that the plaintiff has had difficulties with his eyes, but felt he had sufficiently recovered by May 1997 from these injuries. Dr Norton had referred him to an ophthalmologist, Dr Economos.
The ophthalmologist confirmed that he had examined the plaintiff in May 1997 and although he had examined the visual acuity he felt there was nothing unusual in the results of his examination, although he did comment that occasionally with severe electric shocks a patient can develop cataract changes. However, there was no evidence of cataract changes apparent in the plaintiff.
Dr Blakemore, psychiatrist, provided reports of 21 March 1997 and 5 August 1998. In his first report he believed the plaintiff was suffering from “a dissociative reaction, part of a post-traumatic stress disorder” as a result of his injuries. He felt certainly at that time he was not well enough to return to his pre-injury employment.
In the further report of August 1998, Dr Blakemore confirmed that he still felt the plaintiff was suffering from an “emotional reaction to the electric shock of January 1997 with the major symptoms, depression and a dissociative reaction”. He also confirmed that the plaintiff for some 18 months had been taking the anti-depressant drug, Zoloft, and should remain on this drug for “some little time, perhaps a few years more”. He also thought the plaintiff would, within a reasonable time, be able to return to some work, which would be of emotional assistance to him. Dr Blakemore was of the view that the plaintiff would gradually recover, as he is now doing, and there would not be any permanent emotional residual disability.
Dr Tyson, the dermatologist, confirmed in May 1998, in his report, that since the accident he accepted the plaintiff’s psoriasis condition had considerably worsened and was difficult to control particularly in the penile area. He felt that in light of the plaintiff’s background stress may play a role in the aggravation of psoriasis. He felt that gradually and with treatment the condition would eventually resolve.
CREDIT
The plaintiff was an impressive witness. Prior to the accident, he had a rather exceptional work history, and, clearly, is an intelligent man who is able to adapt to many areas of employment by utilising the various skills obtained in a wide range of labouring duties since his early teens.
I accept, without reservation, the injuries he has suffered as a result of receiving the severe electric shock. Unfortunately, apart from the serious onset of psoriasis, which I find was due to the accident, the plaintiff has suffered a major psychiatric condition which has been ongoing. However, I would expect this to completely resolve within several years.
DAMAGES
Non-economic Loss
From the above summary it appears that the plaintiff received a very severe electric shock sufficient to completely disable him and resulted in his admission to hospital for treatment. I accept that the emotional stresses in his life since his discharge from hospital have been severe enough to totally disable him from his employment. The stresses have been considerable and reflected in his matrimonial situation. The plaintiff has, as required, received neurological, optical, dermatological and psychiatric assistance in this time. No doubt the medication that he has received, particularly the anti-depressant drug, Zoloft, has helped, and it is anticipated that psychiatrically his condition will, in time, resolve.
However, the psoriasis has been a very painful complaint particularly in the penile area with the unfortunate consequence of, no doubt, affecting his day to day relationship with his wife and contributing to his depression.
In all the circumstances, I propose to award the sum of $28,000.
Past Economic Loss
The plaintiff has not worked since the date of the accident. Copies of the plaintiff’s tax returns since the year ending 30 June 1991 were tendered. A schedule of his earnings is the exhibit, P7. It would appear that the average net wage for the 27 weeks prior to the accident was the sum of $254 per week. From January 1997 to the present time is 3 years and 4 months. I would assess the total loss of net income in that period at $43,000.
I do not consider that one could argue that the plaintiff was totally disabled in this period as particularly in the last 12 months he did have a work capacity. Whilst this must be considered in light of his ongoing depressive condition, some deduction should be made.
However, in all the circumstances I propose to award the sum of $35,000 for past economic loss.
I note that the plaintiff has received $6,934 for past income maintenance in this period.
Future Economic Loss
Accepting the plaintiff’s evidence as I do, it would seem that he feels that he would not be able to resume his pre-accident work capacity for a 12 month to 2 year period.
In all the circumstances I propose to award the sum of $15,000 for future economic loss.
Past Medical Expenses
The letter from MMI Workers Compensation (SA) Limited of 6 May 1999 confirmed that the plaintiff had received income maintenance of $6,934 as well as a sum of $3,398 for medical expenses. This amount has to be refunded.
The plaintiff has paid his own medical and like expenses since this date to the present time which I assess at $500.
Future Medical Expenses
His expenses were paid until July 1997 and since that time the plaintiff has paid his own medical and pharmacy expenses. He outlined that he has seen in this time his own general practitioner at least once a month. I would assess these expenses at $1,000.
He has had to pay for the prescription treatment of the drug, Zoloft, and that is about $25 per month for three years, thus a figure of $900.
He is also obliged to apply creams in the treatment of his psoriasis which cost about $25 per month and hair conditioner costing at least $20 a month.
I would allow the sum of $1,600.
Interest
The plaintiff is entitled to interest on the amount of past non-economic loss. I fix a sum of $1,200.
For interest on his past economic loss I allow the sum of $2,500.
The position is as follows:
Non-economic loss 28,000 Economic loss Past 35,000 Future 15,000 Income maintenance 6,934 Past medical expenses 3,898 Future medical expenses 3,500 Interest Non-economic loss 1,200 Past economic loss
2,500
TOTAL
$96,032
Therefore, I enter judgment for the plaintiff in the sum of $96,032.
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