Poulton v Mayfairs Wholesale Pty Ltd

[2002] QDC 16

DISTRICT COURT OF QUEENSLAND

CITATION:

Poulton v. Mayfairs Wholesale Pty Ltd [2002] QDC 016

PARTIES:

ROBERT WILLIAM POULTON
    Plaintiff

And

MAYFAIRS WHOLESALE PTY LTD
(ACN 009 693 592)  Defendant

FILE NO/S:

1740 of 2000

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

20 February 2002

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2002

JUDGE:

Judge Boulton

ORDER:

I give judgment for the plaintiff against the defendant in the sum of $28,560.55.  I order that the defendant pay the plaintiff’s costs of and incidental to the action to be assessed

CATCHWORDS:

Negligence – Design of mountings in fishing vessel – s.75A9(d) Trade Practices Act (Cth)1974 – elderly plaintiff with severe emphysema

COUNSEL:

Mr Newton for the plaintiff
Mr Atkinson for the defendant

SOLICITORS:

Carter Capner for the plaintiff
Michael Stewart for the defendant

REASONS FOR JUDGMENT

1. This is an action for personal injury arising out of a boating incident on the Southport Broadwater.  The defendant was the manufacturer and supplier of a “Sea Hunter” fishing vessel which had been purchased by the plaintiff’s  adult son in or about October 1997.

1. The plaintiff’s action is in negligence alleging negligent design in the method of securing a seat to the floor of the vessel.  The action is also based on a breach of the Trade Practices Act in that the defendant was a corporation engaged in trade or commerce and supplied the abovementioned vessel which suffered from a defect in that the seat was inadequately affixed to the floor of the vessel.

The Accident

1. On 12 June 1998 the plaintiff, who was a retired pensioner, date of birth 23.3.32, was a passenger on his son’s fishing boat.  He was seated on a centre console seat when the vessel was struck by the wash of a large passing vessel.  The associated movement thrust him violently towards the rear of the vessel.  The seat came away from its mountings and he landed on his back on the transom, striking the middle portion of his thoracic spine.

1. He went home, but later that evening was admitted to the Gold Coast Hospital.  X-rays were taken which showed no acute fractures and no vertebral fractures. At a later point in time some x-rays taken on 12 July 2001 were thought to indicate an end plate compression fracture at T7, which could have been the result of previous trauma.  I note that Dr Greg Gillett, a specialist orthopaedic surgeon, whose reports are exhibits 15 and 16, is dubious about there being a connection between the fracture to T7 and the boating incident.  In any event, Dr Gillett describes the on-going symptoms being experienced by the plaintiff as related to the soft-tissue sequelae of the accident.

Liability

1. Liability was in issue in the proceedings, but it would be fair to say that there was little or no contest from the defendant.  The plaintiff produced an expert engineer, Arthur William Chaseling.  A copy of Mr Chaseling’s curriculum vitae is exhibit 34.  His report is exhibit 25.

1. Mr Chaseling did not inspect the boat until September 2000, but even after that lapse of time was able to identify the method by which the seat had been mounted prior to the incident.  The row of holes through which the screws had passed were still visible at the time of the inspection.

1. Actually the mountings were even worse in fact than those set out in Mr Chaseling’s report.  Mr Chaseling had proceeded on the basis that one of the four screws on either side which passed through the marine-ply floor of the boat had actually entered an aluminium cross-member below the floor panel.  Mr Poulton Jnr., who repaired the seat following the accident, had discovered that the screws which were in line with the aluminium cross-member had actually been shortened with the result that they penetrated only the marine-ply, which was 10m in thickness.  All of the 8 screws supporting the seat therefore were restricted to penetrating 10mm of marine-ply.

1. Mr Chaseling mentioned at para.3.4 of his report:-

“A small thickness of a strong material such as aluminium can resist pull-out better than a larger thickness of plywood.  While the exact properties of the plywood and the aluminium and the plywood in the boat are not known at this stage, the ratio of shear strength between aluminium and plywood is of the order of 100.  Thus, 2mm of aluminium is about 20 times stronger than 10mm of plywood against screw pull-out”.

1. A further problem of the plywood is its flexibility.  In response to a question from myself Mr Chaseling replied:-

“Well, the major problem is that the plywood is very flexible compared to the aluminium.  So it’s not necessary for the screws to all pull out at one.  If he seat rolls backwards it puts very high loads on the front screw in the plywood and it will pop out, and then that transfers the load to the next screw and it will pop out and so on down the line, like a zipper.”

1. Such stresses in the mountings of a boat seat are to be expected.  At para 3.1 of his report Mr Chaseling observed:-

“It is therefore incumbent on the designer of such a boat to ensure that major items such as the seat are securely attached to the main structure in a way which is resistant to longitudinal and transverse forces, as well as to the normal vertical forces due to the weight of seat occupants.  Thus, an event of the type described by Mr Poulton, in which he was thrown against the seat, must be regarded as one which the boat must be expected to survive without structural damage.”

1. The cost of installing an additional aluminium cross-member into which the mountings could have been screwed was relatively trivial. 

1. Despite the fact that the defendant, as the manufacturer and supplier of such vessels, would have had access to expert knowledge and opinion, there was no expert evidence called on behalf of the defence.  Mr Chaseling’s  evidence was not challenged.

1. Mr Atkinson, who appeared for the defendant, referred me to s.75AC of the Trade Practices Act, submitting that goods have a defect if their safety is not such as persons generally are entitled to expect.  He went on to pose the question about whether or not the goods have fallen below the standard that people might reasonably expect and referred to the provision:-

“An inference that goods have a defect is not to be made only because the standard was not the safest possible standard having regard to the latest state of scientific or technical knowledge when they were supplied by the manufacturer.”

1. I agree with Mr Newton, who appeared for the plaintiff that this is one of the more straightforward instances of negligent design and installation which also falls plainly within the provisions of the Trade Practices Act.  On the question of liability I have no hesitation in finding for the plaintiff.

­Quantum

1. The question of damages is greatly complicated by the parlous medical condition of the plaintiff, particularly over the last 10 or 11 years.

1. A report of Dr David Lindsay dated 2 August 1991, exhibit 3, reveals that as at 1 August 1991 the plaintiff had been suffering for some 2 years with a flu-like illness.  He had noted increasing shortness of breath on exertion for 3 to 4 years, and in recent months had difficulty coping with his heavy work.  At this stage he had been a heavy smoker for 40 years or more.  Dr Lindsay noted considerable airflow limitation with a significant acute response to bronchodilator confirming that at least some of the airflow limitation was asthmatic.  He thought that the plaintiff had chronic airflow limitation of considerable severity, largely due to chronic bronchitis and emphysema and with an asthmatic component.  This diagnosis was confirmed by lung-function tests conducted at Pindarra Hospital on 5 August 1991.  The plaintff was placed on an invalid pension.

1. In March 1993 he suffered a right spontaneous pneumothorax.  A right inter-costal catheter was inserted which re-inflated the right lung.  However, the condition recurred after about a month and he was admitted to the Gold Coast Hospital for pleurodesis.  He developed liver complications following surgery which took a number of weeks to settle.

1. On 1 February 1987 he was referred to Dr  Iain Feather, a consultant physician in respiratory medicine.  Dr Feather’s report is exhibit 14.  Dr Feather observed that his predominant problem was emphysema.  He referred him for further lung-function tests and some basic blood tests.

1. For reasons which are not apparent on a reading of Dr Feather’s report, the plaintiff was offended at Dr Feather’s attitude.  He thought that Dr Feather had simply given up on him and would do nothing to help him.  He set out to prove Dr Feather wrong.  He began exercising by riding a bicycle, commencing with short distances.  Over a period of 18 months he built up to the point where he could ride from Southport to Burleigh Heads and back albeit with some rest stops along the way.  The exercise would seem to have had a beneficial effect upon his cardio-vascular fitness.  His emphysema and chronic airways disease continued nonetheless and from time to time he would develop colds and lung infections.

1. He had been a tradesman during his working life and was able prior to the accident to do small repair jobs around the home.  He made small items of furniture for the home and decorative items, some of which are depicted in photographs which are exhibit 28.  He and his wife would seem to have enjoyed a mutually supportive relationship.  He would accompany her shopping and would help occasionally in cooking and in doing such things as vacuuming.  She on the other hand would assist in the garden with such things as pruning then shrubbery.  He would do the mowing.

1. His evidence is that all of these pursuits came to an abrupt end with his injury in June 1998.  He now lives an almost exclusively sedentary lifestyle.  He walks the dog and is capable of walking some kilometres on the beach, but has had to give up virtually everything else.  His back pain causes him difficulty in deep breathing, which in turn affects his ability to clear his lungs.  I was favourably impressed with the plaintiff, his wife and his son in giving evidence.  His wife was particularly impressive, being very sensible and down-to-earth and very devoted to her husband.  However, there was an understandable tendency on the part of the plaintiff to look back upon the period pre-accident through rose tinted-glasses.  In fact, the plaintiff was a very sick man for many years prior to this accident with irreversible lung disease and was always vulnerable to health complications.

1. I have the benefit of an extremely thorough report of Dr Michael J. Thompson, dated 2 December 2000, which is exhibit 19.  Dr Thompson commented on the plaintiff’s deterioration in pulmonary function since 1997:-

“I would regard Mr Poulton’s prognosis to be extremely poor based upon his current airway function, with a FEV of 0.6 litres, with the mortality rate at twelve months would be estimated at 30%.”

1. Dr Thompson’s opinion as to the part played in this deterioration by the 1998 accident is as follows:-

“In conclusion, Mr Poulton is severely disabled by severe chronic airflow limitation associated with advanced emphysema and intrinsic airway narrowing.  His incapacity is further exacerbated by ongoing chest wall pains, which had persisted since the stated injury on 12/06/1998.  This has led to a material additional decline in function over and above that which might be expected from his decline in ventilatory function alone, by virtue of his more restricted life style and an inability to exercise, as well as perhaps diminished ability to adequately clear secretions during an infective exacerbation, leading to prolongation of these exacerbations, and a further decline in ventilatory function.  His prognosis is primarily determined by the severity of his lung function abnormality, rather than his chest wall injury.”

1. Dr Thompson gave evidence at the trial by telephone link.  He adverted to some further tests which were done by a Dr Edwards in November 2001 which indicated a significant improvement:-

“We are not dealing with a day-to-day variation.  We are dealing with a 12 months variation there.  It is possible, as I say, if his clinical course was more settled during 2001 with less respiratory infection and maintained treatment of his airways disease that it’s possible that there may have been some improvement in his ventilatory function during that period.”

1. It would seem that the plaintiff’s ability to walk distances has also improved considerably since he saw Dr Thompson.  He can now walk some kilometres, whereas at the time of seeing Dr Thompson, he was limited to about 50 metres.  Walking is also beneficial to his cardio-vascular fitness.

1. The Plaintiff has had to give up bike riding.  The twisting of his spine causes pain.  He no longer does his woodwork.  He can no longer help his wife around the house or in the yard.  He can drive the car and does do locally especially when marked parking bays are available.  He is not able to handle reverse parking into kerbside locations.

1. His accident has produced a relatively small level of disability.  It has had a dis-proportionately large effect on his lifestyle because it is superimposed upon his severe lung condition.  The comment from Dr Thompson would suggest that his longevity prospects are poor.  Dr Thompson seemed to agree with the proposition that an annual loss of 100ml of lung capacity is fairly typical in such cases, although Dr Thompson also noted a period of actual improvement following his examination in 2000.

1. I assess his damages for pain and suffering and loss of amenities in the sum of $15,000 half of which I attribute to the period pre-trial.  Interest on that amount at 2% for 3.5 years produces a further $525.  There is no claim for loss of income.

1. The plaintiff put into evidence three schedules which are exhibits 29, 30 and 31 relating to special damages, past gratuitous assistance and future expenses in the form of physiotherapy, medication and future domestic assistance and home and community care.

1. As to the items of exhibit 29, I allow item 1, the refund to the Health Insurance Commission in the sum of $1,545.55.  I allow $350 under items 2 and 3 and $450 under items 4 and 5.  It is not appropriate to relate all of these expenses to his accident.  Regard must be had to his deteriorating condition from his lung disease.  The amount of special damages is $2,345.55  Interest on $800 at 5% for 3.5 years produces a further $140.

1. Turning to exhibit 30, I allow 2 hours per week at $10 per hour since the accident.  It is clear from the evidence of Mrs Poulton that prior to the accident she was the homemaker though the plaintiff assisted with vacuuming, occasional cooking and with some garden duties.  Some of the latter have since been performed through home and community care.  I allow $4,000 under this head inclusive of interest.

1. The situation concerning driving is not altogether clear as it is the plaintiff’s evidence that he is able to drive his car.  He can park in parking areas, but has difficulty in backing his car into street parking places.  I allow $350 by way of gratuitous assistance in driving the plaintiff to and from medical appointments.  That figure is also inclusive of interest.  The total is $4,350.

1. Turning to exhibit 31, I allow the $200 for physiotherapy under item (a).  I allow future domestic assistance in the sum of $5,000.  Without putting too fine a point on it, the 13 year life expectancy referred to in exhibit 31 does not sit with the opinion of Dr Thompson to which I have referred above.  I allow $500 for future medication and $500 for future assistance for home and community care.  The total is $6,200.

1. The total is $28,560.55.

1. I give judgment for the plaintiff against the defendant in the sum of $28,560.55.  I order that the defendant pay the plaintiff’s costs of and incidental to the action to be assessed.