Powell v State of Qld
[2001] QSC 8
•31 January 2001
SUPREME COURT OF QUEENSLAND
CITATION: Powell v State of Qld [2001] QSC 008 PARTIES: DENNIS GRAHAM POWELL
(plaintiff)
v
STATE OF QUEENSLAND
(defendant)FILE NO: SC No 21 of 1999 Maryborough DIVISION: Trial Division PROCEEDING: Civil Trial DELIVERED ON: 31 January 2001 DELIVERED AT: Brisbane HEARING DATE: 15, 16, 17 August and 4 October 2000 JUDGES: Atkinson J ORDER: The defendant pay the plaintiff damages in the sum of $323,577.28 CATCHWORDS: EMPLOYMENT LAW – INJURY OF EMPLOYEE – SAFE SYSTEM OF WORK – NEGLIGENCE – PERSONAL INJURIES – DAMAGES – trial seeking damages for personal injuries where plaintiff/orderly severely injured back when emptying bag of linen into dumpster – whether degenerative disc disease actual cause of damage – damages assessed.
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657, considered Jackson v Bagwell [1992] 2 Qd R 390, followed
Camm v Salter [1992] 2 Qd R 342, followed
Cullen v Trappell (1980) 146 CLR 1, followed
Fox v Wood (1981) 148 CLR 438, followed
Knight v Breakwater Island Resort Pty Ltd (SC No 25 of 1991, 24 April 1995), followed
Dametto v Wishart (SC No 112 of 1994, 1 April 1996), followedGriffiths v Kerkemeyer (1977) 139 CLR 161, followed
Kars v Kars (1996) 187 CLR 354, followed
Brown v Hale [1996] 1 Qd R 234, followed
Grincelis v House (1998) 156 ALR 443, followedCOUNSEL: JR Webb for the plaintiff
MT O’Sullivan for the defendant
SOLICITORS: Suthers Lawyers for the plaintiff
Hunt & Hunt for the defendant
ATKINSON J: This is an action by Dennis Graham Powell claiming damages for personal injuries he suffered during his employment at the Maryborough Base Hospital on or about 1 January 1997. The plaintiff claims that the personal injuries he suffered were caused by the negligence and/or breach of duty and/or breach of statutory duty and/or breach of contract of the Wide Bay Regional Health Authority.
Mr Powell was born on 27 August 1957. He left school in 1974 after completing grade 10. He then obtained employment at Walkers Limited in Maryborough where he worked for three years as a trades assistant. For about a year after that he worked for L&D Builders as a labourer. Mr Powell then moved to Rockhampton where, for approximately 12 years, he worked firstly as a builder’s labourer and then as a sub-contract carpenter. In 1995, Mr Powell left Rockhampton and returned to Maryborough to work at the Morex Meatworks for about one year. He left that employment following the shutdown of the meatworks and started working at the Maryborough Base Hospital.
Mr Powell commenced working at the Maryborough Base Hospital as an orderly on or about 11 November 1996. He participated in orientation until 13 November 1996 and commenced formal ward duties on or about 18 November 1996.
The incident which is the subject of the proceeding occurred on 1 January 1997. Mr Powell was 39 years old at this time. On that day, Mr Powell completed an accident incident report for the Wide Bay Regional Health Authority claiming he had sprained his back from lifting a full linen bag into a blue tall boy. He reported that this incident occurred at 11:07am at the nursing home attached to the Maryborough Base Hospital.
In the Employer’s Report to the Workers’ Compensation Board, which he signed on 3 January 1997, Mr Powell related the same information as to the time and place of the injury. He stated that he immediately reported the incident to Colleen Taylor who was the clinical nurse on duty at that time and continued working after this incident until 2 o’clock that afternoon.
Mr Powell sustained the injury to his back whilst he was in the process of swinging and lifting a bag of wet linen from a small trolley onto a blue tall boy. In oral evidence the plaintiff gave details of what was involved in the collection of soiled laundry as part of his duties. The process involved wheeling a trolley to each ward and depositing linen into the linen bag. This trolley was approximately 600mm round and 900mm high. It had a flat base and castors on the bottom and hooks on the top for the linen bag. Mr Powell explained that once the linen bag was full, he would wheel the trolley outside onto a landing where the blue tall boys were situated.
The linen bag would then be unhooked from the trolley, tied off at the top by pulling a drawstring while resting it on the base of the trolley, and lifted out of the trolley and up into the blue tall boy. The tall boy was approximately 1.7m high by 1.067m wide and 0.73m deep. Wide Bay Linen collected the blue tall boys from the landing. The orderly then would replace the linen bag and continue the process until all of the linen from the ward was collected. This occurred approximately three times a day.
Mr Powell explained that whilst performing this normal duty he injured his back on 1 January 1997. Mr Powell recalls bending down to lift out the linen bag from the trolley and put it into the blue tall boy. He described being at a 45 degree angle to the trolley which was to his left. The blue tall boy was at right angles to the trolley and Mr Powell was standing along the hypotenuse. He bent his knees to pick up the linen bag with his two hands from the trolley, then swung up and round to the right and then lifted it up to shoulder height into the blue tall boy on his right. It was during this swinging movement that Mr Powell “[h]alf collapsed on the ground”. Mr Powell did not realise the bag was as heavy as it was at any time before he started the lifting and twisting movement.
At no time was Mr Powell given any instruction about how to lift bags of linen or what weights of bags should or should not be lifted. He explained that the three day training course at the commencement of his employment as an orderly only covered legal duties to patients, bio-hazards, chemical safety issues and patient lifting. He was provided with pamphlets on lifting of patients and instructed on how to transfer patients using hoists, slip sheets and team lifts. Mr Powell conceded in cross-examination that the general focus of the orientation was the need to exercise general back care and he watched a “buddy”, an experienced orderly, working, among other things, with the laundry trolleys, but the buddy gave no instruction about weights of bags which should or should not be lifted.
Mr Powell gave evidence that no warning was given as to the weight of the bag of linen. It varied depending on whether any of the linen was wet. With the bag supported by the base of the trolley until lifting commenced, the first time an orderly would know the weight of the bag was when he or she was lifting it up through the top of the trolley. As Mr Powell explained, “by the time it gets to your mind that it’s heavy, you’ve just about completed your lift”.
The defence contended that there was a system in place to determine the weight of the bag before lifting. Bags were colour-coded: red for soiled items, blue for patients’ clothing which may be wet and white for general items such as pillowcases and towels. Mr Powell was lifting a white bag when his back injury occurred. He said, however, that very often towels were wet from being used in showers for wheelchair bound patients to stand on in the shower. Mr Van Wamelen, an orderly at the hospital, told the court that the heaviest bag would probably be about 30 kilograms, and that in his experience the heaviest type of bag was usually the white ones because sheets and mattress protectors were often saturated with urine.
Mr Powell believed that the maximum weight of a bag would be at least 30 kilograms. This evidence was supported by another hospital orderly, Malcolm Jepson, who was called by the defence. Mr Jepson, under cross-examination, said they would get up to 40 kilograms “easy”. Mr Powell gave evidence that he performed an experiment by half-filling one of the plastic bags that line red bags with damp towels and it weighed 20 kilograms. He claimed that the bag he lifted when he hurt his back was fuller than that.
Roger Kahler, a director of Intersafe and a safety and ergonomic engineer, prepared a report on behalf of the plaintiff. He referred in his report to the Code of Practice – Manual Handling which gives a guideline for the acceptable weights for lifting in general. Section 4.23 relevantly provides:
“2. Some evidence shows that the risk of back injury increases significantly with objects above the range of 16-20kg, therefore, from the standing position, it is advisable to keep the load below or within this range;
3. as weight increases from 16kg up to 55kg, the percentage of healthy adults who can safely lift, lower or carry the weight decreases. Therefore, more care is required for weights above 16kg and up to 55kg in the assessment process. Mechanical assistance and/or team lifting arrangements should be provided to reduce the risk of injury associated with these heavier weights. . . . . . ”
Mr Kahler applied the 1991 NIOSH Lifting Equation to the task performed by Dennis Powell in transferring a linen bag to a tall boy. This formula takes into account, amongst other variables, the vertical distance (the height the load is lifted through) and the asymmetrical angle (the extent the body twists relative to the worker’s mid-sagittal plane). As a result of the lifting and twisting required in the task in question, Mr Kahler considered the recommended weight limit to be approximately 12kg.
Mr Kahler identified the inability to judge the weight of the linen bag before the lift commenced as the significant problem with the task in question. He recommended the use of a bin tipping device, such as used with wheelie bins, as an effective risk management control. Alternatively, Mr Kahler suggested the modification of a tension spring weight-sensing device which provides the person loading the linen bag with reliable information as to the weight of the bag. The proposal that an orderly might repack a linen bag to reduce the weight was rejected by Mr Kahler on the grounds of hygiene.
The risks identified by Mr Kahler in lifting the linen bags in that way were not identified by the hospital until after the incident of 1 January 1997. There was no system in place for effectively assessing and limiting the weight of the bags. In his accident incident report, Mr Powell suggested putting the blue tall boys on the lower level of the landing as a prevention. On 14 January 1997 a notice was put up for orderly staff by the Nurse Manager. It noted a couple of incidents where orderlies had been hurt lifting linen into the blue bins and that leaving the tall boys on the ground level had caused delays for the drivers who collected the bins. The notice set out the following guidelines:
“A. If bin half full – get another – do not lift too high and hurt yourself. [Added in handwriting was: ‘or lift with another staff member.’]
B. Try to remove linen age [sic] before they are too full – no doubt easier said than done!
C. If you put the bins on ground level so you do not have to lift bags into them. . . .put the blue trolleys up on the loading ramp for collection”.
Mr Powell had never been given any instructions or seen any such notice until after he returned from his three weeks absence after the incident.
After the incident, Mr Powell felt a sharp pain across the base of his back and down his buttocks. He said the pain caused him to drop to his knees and that he stayed in that position for a while. Mr Powell reported that he had been hurt to Sister Taylor who was the Nurse in Charge at that time and was nearby when the incident occurred. After taking a couple of pain tablets from her, Mr Powell continued to work until he had finished his shift and then returned home. It was not until the next day, on 2 January 1997, that he saw a doctor at the hospital, who gave him analgesic tablets and anti-inflammatory drugs. It appears that a plain x-ray was taken at this time. Dr Watson, in his report of 10 April 2000, noted from this plain x-ray the absence of any demonstrable degenerative change. After seeing a doctor, Mr Powell took a period of three weeks off work covered by workers’ compensation. He then returned to work on the same basis that he had been employed prior to 1 January 1997, working the same number of hours, on the same casual basis and doing the same duties. Mr Powell was therefore still required to lift and transfer patients and do laundry duties such as removing soiled linen.
Dr Watson reported that after a three week rest, Mr Powell became “effectively asymptomatic”. Mr Powell clarified this in evidence by saying that he had “very little pain, not worth mentioning.” He was not completely pain free. His back had been injured in the incident but it did not prevent him from working at that stage. It was not until six months later that Mr Powell experienced a spontaneous recurrence of pain of a similar intensity. It was alleged by the defendant that this occurred whilst he was undertaking a security course in June of 1997. The course involved a number of physical activities but Mr Powell asserts, and I accept, that he was allowed to sit them out.
From this time on, the pain Mr Powell experienced would vary in severity. Mr Powell conceded that from June 1997 to June 1998 he did not seek any treatment for his back. Mr Powell was not symptom free for this period but he said that the pain was mostly negligible. The pain would go and come back for no particular reason, requiring pain relief tablets on bad days. The defence made much of Mr Powell’s statement to a doctor he saw at the hospital in December 1998 that he had been symptom free from January 1997 to November 1998. I accept Mr Powell’s explanation that he did not want the hospital to know he was going to a chiropractor and had injured his back because he was hoping to get a permanent job there. It was also clear from the manner in which he gave his evidence that he was relatively inarticulate and somewhat of a stoic who was reluctant to fully describe his pain.
These episodes of pain continued up until December of 1998 when Mr Powell finally stopped work. On 30 November 1998 Mr Powell experienced a sudden increase in pain as he was transferring patients. On the next day, he attended out-patients at the Maryborough Base Hospital during his shift. He saw the resident doctor on duty at the time and received some pain killers and sought physiotherapy relief. Mr Powell continued working until 4 December 1998 when the pain grew so severe that he cut his shift short and went home. He returned to work the following day but only worked a few hours as he found it to be impossible because of the pain he experienced.
On 7 December 1998, Mr Powell consulted Dr Lip at the hospital who referred him to Dr Padayachey. On 14 December 1998 Mr Powell was admitted into the Maryborough Base Hospital, where he underwent in-patient treatment which included traction. On 16 December 1998, while Mr Powell was still in in-patient care, a CT Scan was taken. Dr Chong reported a left postero-lateral disc herniation to the L4-5 with evidence of compromise to the left L5 nerve root and a postero-central disc herniation to L5-S1 with no significant spinal stenosis.
Mr Powell was discharged from the hospital on 18 December 1998 and was examined by Dr Khursandi, an orthopaedic surgeon, on behalf of WorkCover on 22 December 1998.
Dr Khursandi reported that Dennis Powell “complained of constant backache, with radiation of pain to the left buttock, thigh and leg associated with paraesthesia of the left foot. Prolonged sitting and walking, aggravate his pain.” Upon examination, Dr Khursandi noted diminished lumbar lordosis with extensions, lateral flexion and rotations of the lumbosacral segment being limited to 50% of the expected normal range. He also noted tenderness in the soft tissues at the lumbosacral junction and over the left sciatic nerve in the buttock. In Dr Khursandi’s opinion the symptoms suffered by Mr Powell since 1 January 1997 were due to that injury and herniation of the L4-5 disc. Under cross-examination he denied that the condition and pain caused by the 1997 injury had resolved “because once the damage is done to the disc, you have a quiet period for a while,. . . and then have recurrence spontaneously.”
Mr Powell saw Dr Downes, an orthopaedic consultant, on 27 January 1999. Dr Downes noted at the outset of his report that Mr Powell appeared to be in marked pain. “Mr Powell insists that since seeing Dr Khursandi in December, he has steadily improved, yet I note that two and a half weeks ago he was readmitted to hospital for daily physiotherapy and his demeanour at present is that of a man in a lot of pain.” This is consistent with the rather stoical attitude which I observed of Mr Powell. At the time of the consultation, Dr Downes assessed Mr Powell as having a 20% impairment of the body as a whole. Dr Downes concluded that Mr Powell’s situation was not the result of any work injury but the result of a recurrent disc problem due to degeneration. He did not believe the incapacity was related to the original injury of 1 January 1997. This is a matter of opinion but after considering all the medical evidence, I prefer the opinions of Dr Khursandi and Dr Watson, who showed more familiarity with the plaintiff and his condition, and Dr Winstanley, who seemed less inclined to act as an advocate for a particular point of view than did Dr Downes.
On 29 October 1999, Mr Powell had another CT Scan. Dr Taylor found that there had been little change since the scan of 16 December 1998.
Dr Watson, a consultant in rehabilitation medicine, saw Mr Powell on 24 March 2000 and provided a report to the plaintiff’s solicitors on 10 April 2000. He reported that in addition to low back pain, Mr Powell told of a constant central low back numbness. Dr Watson did not believe that degenerative change alone was the cause of his ongoing and progressive pain problem in light of the lack of specific degenerative change shown on earlier radiological investigation and his previous lack of any lower back pain. He had no reasonable doubt that the work incident was the precipitating factor in his ongoing, initially recurring and later constant, identical low lumbosciatic pain syndrome. Dr Watson expressed the view that Mr Powell had no more degenerative change than an average person for his age in the community.
Mr Powell saw Dr Winstanley, an orthopaedic surgeon, on 28 March 2000. His report of the following day detailed the history of Mr Powell’s symptoms. Significantly, it was Dr Winstanley’s view that Mr Powell’s history was consistent with having degenerative disc disease within his lumbar spine which was aggravated and made symptomatic by the incident of 1 January 1997. Dr Winstanley’s opinion was that the aggravation caused by the work-related incident in January 1997 caused Mr Powell to have a permanent partial disability of 5% loss of function. In a supplementary report dated 10 May 2000, Dr Winstanley stated that the permanent partial disability associated with his lumbar spine was 10%, but the remaining 5% was due to his underlying degenerative change. Without the work injury, the symptoms would have occurred anyway within a period of five to seven years.
Mr Powell said he had not suffered from any back pain prior to the incident on 1 January 1997. This was consistent with the medical evidence. At trial, the defendant did not lead any evidence in this regard. However, after the trial concluded the defendant successfully applied to have the trial re-opened on the basis of new evidence.
Geoff Baumgart, an orderly employed at Maryborough Base Hospital since 1991, deposed by affidavit to a conversation between Mr Powell and himself “before the linen bag incident”. He recalled that one morning he and Mr Powell were working together at the Base and were paged to go to the Education Centre to assist Mr Powell’s mother, Mrs Shirley Powell, who was a Nurse Educator, by carrying a resuscitation doll from the Centre to her car so she could take it to Harvey Bay for training. The doll was roughly life sized and weighed approximately 15 to 20 kilograms. Mr Baumgart recollected Mrs Powell saying to her son “Now don’t you lift it because you’ve got a sore back”. As they were returning to the hospital, Mr Baumgart alleged that Mr Powell attributed his back pain to a serious fight he had been in.
In an affidavit sworn five days later, Mr Baumgart clarified that when he said “before the linen bag incident” he was referring to before Mr Powell left work finally in December 1998 and not before January 1997. This was in response to affidavits by both Mr Powell and Mrs Powell in which they deposed, inter alia, that it was not possible, by reference to staff time sheets and diaries, for that incident to have occurred before 1 January 1997.
Mr Powell admitted to two fights of any consequence during his lifetime. One occurred 25 years ago when his jaw was broken when a bouncer punched him. The other happened nine years ago in Rockhampton when he was punched in the eye and throat whilst lying on his bed. Mr Powell said his back was not hurt in either of those fights. He denied the allegation made by Mr Baumgart. Neither of those fights caused any ongoing back injury.
When the trial was re-opened Malcolm Jepson, an orderly at Maryborough Base Hospital who started at the same time as Mr Powell, gave evidence of an occasion when he and Mr Powell were outside having a smoke and Mr Powell stretched and winced. Mr Jepson asked what was wrong and Mr Powell said he had a crook back. Mr Jepson questioned him whether he had done it at work and Mr Powell replied: “No, I hurt it in a blue ages ago”. Mr Jepson said he understood this to mean a fight. He could not accurately remember when this conversation occurred. It was nowhere near the time they started together but he did not think it would have been longer than a year after they had started. It was put to Mr Jepson under cross-examination that Mr Powell said “This comes on out of the blue”. Mr Jepson denied that that was the substance of the conversation. The conversation happened a long time ago and was of no consequence to Mr Jepson. I cannot accept that his imperfect recall of a fleeting conversation is sufficient to suggest that there was some other cause of Mr Powell’s injury that the twisting lift of the heavy linen bag on 1 January 1997 acting on a spine with some pre-existing degeneration.
Mr Baumgart’s oral evidence was even less credible. He could not explain the source of the dates sworn in his affidavit. He was not even sure if the conversation to which he deposed had occurred before or after he had taken 12 months leave in 1997 to April 1998 because he had suffered from ciguatera poisoning which he agreed affected his memory. He conceded that he had relied on other people’s documents to determine dates. He said he had not known that Mr Powell worked for as long as he did after the accident with the linen bag. He thought Mr Powell had said he got the injury before he began working at the hospital, but he could not swear to it. Mr Baumgart conceded in cross-examination that he did not freely give this information. He was specifically asked by Greg Hammond if Mr Powell had ever told him that he had hurt his back in a fight. This occurred after Janice Sauer, a nurse practising co-ordinator, asked Mr Baumgart something on a social occasion, to which he replied “Oh yeah, I knew that” being reference to the fact that he knew Mr Powell had hurt his back before he came to work at the hospital.
Mr Powell denied that the event Mr Baumgart described ever happened. Mr Baumgart’s confused evidence is in my view a result of gossip, admitted confusion from his ciguatera poisoning, added to the ill feeling he felt to Mr Powell because of hostility between Mr Powell and Mr Baumgart’s partner. The “fresh” evidence led after trial did nothing to change the assessment of Mr Powell’s injury by any of the medical experts who were called. The only medical witness who was recalled was Dr Downes who was of the view that the two fights described by Mr Powell were not relevant to his back injury. I do not accept that his back was injured in any fight.
In summary, Mr Powell injured his back on 1 January 1997 when he engaged in a simultaneous lifting and twisting movement. He had pre-existing spinal degeneration made symptomatic by this incident. The injury was solely attributable to the defendant’s failure to implement a safe system of work.
Damages
Mr Powell continued his treatment seeing a physiotherapist at the hospital, a chiropractor and Gina Hart, a naturopath, who performed acupuncture and heat suction on his back. Although the treatments were painful, he felt he was in a better position after such treatments. Mr Powell has also purchased a TENS machine which gives him some relief. It will need to be replaced after about five years, with the leads being replaced regularly. Mr Powell also purchased a back brace which he has worn regularly. He has used and continues to use Panadeine for pain relief. The total amount of special damages for medical expenses is $43.81; for pharmaceutical expenses, $325.11; for travelling expenses, $260.00; for chiropractic expenses, $280.00; for equipment expenses, $194.00; and for other expenses covered by WorkCover, $1,038.66. The total of special damages is therefore $2,141.58. Interest should be assessed at $218.38. The cost of future pharmaceuticals claimed is $1,112.01 and of TENS machine maintenance and replacement, $3,004.26 giving a total of $4,116.27.
Mr Powell suffered depression and frustration in the early days after his incapacitation. His depression and humiliation was obvious in court when he explained that he had lost ten kilograms because his pain had been so bad that he had had to eat off the floor on his hands and knees as he could not sit at the table to eat. He told Dr Watson in April 2000 that he was now mentally coping although he was still frustrated by his inability to resume a normal quality of life. Mr Powell is still able to fish as a recreation after he modified his dingy with a ply bottom to allow him to lie down after 45 minutes of sitting when pain increased. He also has been able to sand the bottom of the boat if he can lie underneath it. Mr Powell is still able to exercise by walking his small dog, purchased after the accident, about one kilometre a day. He said he carries on even if the pain gets worse. Mr Powell is unable to pursue his former hobby of making coffee tables from tree trunks. He mostly gave the tables away, but had sold a few to friends. He is also prevented from catching crabs as he cannot drag the pots in. In respect of pain, suffering and loss of amenities, I would assess his loss at $55,000. Interest should be assessed at 4% per annum on the amount of pre-trial pain and suffering which I assess at 70% of the award. This should be reduced by one half because the detriment was suffered progressively over the period.[1] The amount of interest is $3,080.00.
[1]MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; Jackson v Bagwell [1992] 2 Qd R 390; Camm v Salter [1992] 2 Qd R 342 at 345.
Mr Powell has unsuccessfully applied for numerous jobs as a service station operator, bus driver, cabinet maker, dump operator, tele-marketer, house maintenance person, pamphlet distributor and cinema attendant. As Dr Winstanley noted, he would have difficulties doing any job which required lifting, carrying, bending or staying in the same position. There is no doubt that Mr Powell is unemployable on the open market. His degree of pain standing or sitting for any length of time, his limited education and his employment history in exclusively heavy physical jobs mean that it is very unlikely that Mr Powell will be able to find employment in the future. This view is supported by Dr Watson, in his report of 28 June 2000, and by Dr Winstanley.
Dr Khursandi recommended surgical decompression through laminectomy and discectomy to relieve the pain radiating down his left leg and to some extent in the back. Mr Powell informed WorkCover of this but they refused to fund the operation. Dr Watson recorded that Mr Powell wanted to avoid surgery as he had seen too many patients who had poor results from such surgery while he was an orderly. In evidence, Mr Powell considered the operation as a last resort but would consider it if it allowed him to get back to full-time work. Dr Watson said that he agreed that surgery is absolutely the last resort and that he actively discouraged people from undertaking unnecessary surgery until it was inevitable. Dr Watson stated that he would certainly discourage Mr Powell because the chance of surgery rendering him sufficiently asymptomatic to return to any of his previous work roles, or roles he is intellectually capable of undertaking, is virtually negligible. No allowance should be made for the cost of such an operation.
Mr Powell had been working as a casual orderly on call. It is agreed that past economic loss should be assessed at $300.00 per week between 1 January 1997 to 21 January 1997 and at least for most of 1999.
Mr Van Wamelen gave evidence that appointments to permanent positions are governed by seniority. Casuals who have worked for the hospital for the longest period are considered first. It is therefore likely that Mr Powell would have been employed permanently by the end of 1999. Past economic loss should be allowed for one year until the end of 1999 at $300.00 a week and one year and eight weeks at $500.00 a week until the present time, giving $45,600.00.[2] This amount should be discounted by 20% for contingencies, including the possibility of not being employed permanently and the possibility of receiving fewer hours per week as a casual. The past economic loss is therefore $36,480.00.
[2]These represent the net rather than the gross anticipated earnings: Cullen v Trappell (1980) 146 CLR 1.
It was agreed that he was paid $7,378.18[3] ($1,363.25 was paid in tax) net by WorkCover in lieu of lost wages and $5,392.97 which he received in welfare payments. He is entitled to 5% interest on his actual economic loss which is his expected net wage less what he received from WorkCover and by way of social security benefits for the 2.08 years that Mr Powell has not worked. Interest is calculated at $2,465.72. Past superannuation loss should be assessed at 7% on $36,480.00 over 2.08 years giving $5,311.49. Interest should be assessed at 6% reduced by half because of the progressive nature of the loss[4] giving an amount of $331.44.
[3]See Fox v Wood (1981) 148 CLR 438.
[4]Knight v Breakwater Island Resort Pty Ltd (SC No 25 of 1991, 24 April 1995); Dametto v Wishart (SC No 112 of 1994, 1 April 1996).
As far as future economic loss is concerned, I accept the evidence of Dr Winstanley that Mr Powell’s naturally occurring degenerative change would have prevented him from working as an orderly in five or seven years in any event. I am prepared to assess Mr Powell’s loss of $500.00 per week over a period of seven years because his stoical attitude is likely to have kept him going for longer than a person more likely to give in to pain. On the 5% discount tables, that gives a multiplier figure of 309 and a total figure of $154,500. Superannuation should be allowed at 8% on this figure giving an amount of $12,360.00.
Mr Powell’s partner, Ms Rossow, works approximately 20 hours per week so he attempts to do as much around the house as his pain allows but is unable to perform activities around the yard. He used to do all of the cooking and mowing but is now unable to do so because of his back injury. Ms Rossow presently does the mowing and cooking. Mr Powell claims the sum of $30.00 per month for past lawn mowing undertaken by Ms Rossow. This totals $780.00 until 1 February 2001. He also claims $66.00 per month for gardening, or $1,716.00 until 1 February 2001. The total amount claimed for Ms Rossow’s cooking is $11,169.58. I award $13,665.58 for past Griffith v Kerkemeyer[5] damages. He is entitled to interest at 2% as this is a component of general damages.[6] Two percent interest on this figure is $568.49. Mr Powell claims the rate of one hour per day at $16.14 per hour, or $112.98 per week, on the 5% discount tables for future cooking. For a period of seven years, this amounts to $34,910.82. At a cost of $22.15 per week, future gardening and lawn mowing totals $6,844.35. I award $41,755.17 for future Griffith v Kerkemeyer damages.
[5](1977) 139 CLR 161; Kars v Kars (1996) 187 CLR 354
[6]Brown v Hale [1996] 1 Qd R 234 at 236; Grincelis v House (1998) 156 ALR 443 at 462-463, 465.
The plaintiff is awarded the following amount of damages:
Pain, suffering and loss of amenities $55,000.00
Interest on pain, suffering and loss of amenities 3,080.00
Past economic loss 36,480.00
Interest on past economic loss 2,465.72
Past superannuation loss 5,311.49
Interest on past superannuation loss 331.44
Fox v Wood damages1,363.25
Future economic loss 154,500.00
Future superannuation loss 12,360.00
Special damages 2,141.58
Interest on special damages 218.38
Future pharmaceuticals and equipment 4,116.27
Past Griffith v Kerkemeyer damages 13,665.58
Interest 568.49
Future Griffith v Kerkemeyer damages 41,755.17
Subtotal 333,357.37
Less Refund to WorkCover 9,780.09
Judgment amount $323,577.28
Mr Powell will be awarded damages in the sum of $323,577.28. I shall hear argument as to costs.
4
0