Quick v Dodd; Sheppard's Diesel Service Pty Ltd v Barber
[2009] NSWDC 323
•9 December 2009
CITATION: Quick v Dodd & Anor; Sheppard’s Diesel Service Pty Ltd v Barber & Ors [2009] NSWDC 323 HEARING DATE(S): 7 December 2009
JUDGMENT DATE:
9 December 2009JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: In proceedings numbered 2331 of 2009
1. Verdict and judgment for the plaintiff in the sum of $242,989.60;
2. The defendants are to pay the plaintiff’s costs.
In proceedings numbered 5146 of 2008
3. The proceedings are discontinued against the first defendant;
4. Verdict and judgment for the plaintiff in the sum of $47,024.18;
5. The second and third defendants are to pay the plaintiff’s costs.CATCHWORDS: TORTS – dog bite injury – plaintiff attacked by a Rottweiler dog – damages assessed under Civil Liability Act 2002 - WORKERS’ COMPENSATION – employer’s subrogated claim under s 151Z(1)(d) of Workers’ Compensation Act 1987 for recovery of payments of workers’ compensation paid to victim of dog attack LEGISLATION CITED: Civil Liability Act 2002
Companion Animals Act 1998
Workers Compensation 1987 s 151Z(1)(d)CASES CITED: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389
Penrith City Council v Parks [2004] NSWCA 201PARTIES: In proceedings numbered 2331 of 2009
In proceedings numbered 5146 of 2008
Neil Quick (Plaintiff)
James Dodd (First defendant)
ADCO Group Pty Ltd t/as Stealth Security NSW (Second defendant)
Sheppard’s Diesel Service Pty Ltd (Plaintiff)
Michael Barber (First defendant)
ADCO Group Pty Ltd t/as Stealth Security NSW (Second defendant)
James Dodd (Third defendant)FILE NUMBER(S): 2331 of 2009; 5146 of 2008 COUNSEL: Mr G Beauchamp (Plaintiff – Mr Quick))
Mr P Rickard (Plaintiff – Sheppard’s Diesel Service Pty Ltd)
Mr Barber – in person
Mr Dodd – no appearance
ADCO Group Pty Ltd – no appearanceSOLICITORS: Firths (Plaintiff – Mr Quick)
Goldbergs (Plaintiff – Sheppard’s Diesel Service Pty Ltd)
(No appearances for the other parties)
JUDGMENT
Nature of the cases
1. In proceedings numbered 2331 of 2009 between Neil Quick and ADCO Group Pty Ltd trading as Stealth Security NSW as first defendant and James Dodd as second defendant, the plaintiff brings a claim for damages under the Companion Animals Act 1998 in respect of bog bite injuries he received from a Rottweiler guard dog on 25 July 2007. The dog in question was owned by the defendants. The damages are to be assessed according to the provisions of the Civil Liability Act 2002.
2. In proceedings numbered 5146 of 2008 the plaintiff, Sheppard’s Diesel Services Pty Ltd, employed Mr Quick although Mr Quick in effect owned the business which concerned the maintenance and repair of diesel engine components. Due to injuries suffered by Mr Quick in the dog attack he received payments of workers’ compensation payments. By way of subrogated right the workers’ compensation insurer, which made those payments, brings a claim pursuant to s 151Z(1)(d) of the Worker’s Compensation Act 1987 for the recovery of payments the insurer has made to Mr Quick consequent upon his injuries. Those proceedings were brought against the first defendant Mr Michael Barber who handled the dog, ADCO Group Pty Ltd trading as Stealth Security NSW and the third defendant James Dodd as owners of the dog that attacked Mr Quick.
Liability and procedural issues
3. In each case the plaintiff has obtained default judgment against the defendants and the proceedings now require an assessment of damages in each case. In the s 151Z(1)(d) recovery proceedings numbered 5146 of 2008, the proceedings have been discontinued against the first defendant Mr Barber. Both cases were heard together and the evidence in one case was taken as being tendered in the other.
Facts
4. At about 5.45pm on Monday 25 July 2005 Mr Quick was standing outside his business premises at 21 Kirrawee Road, Gosford. At the same time, Mr Michael Barber was in the course of his employment with ADCO Security Pty Ltd and was attempting to load a Rottweiler dog into a vehicle owned by that company. Suddenly, and without warning the dog escaped and subsequently bit and clawed Mr Quick. Mr James Dodd was the registered owner of that dog. Mr Barber succeeded in releasing the plaintiff from the grip of the jaws of the dog.
Injuries
5. Mr Quick had been repeatedly bitten on the right elbow, the left forearm, he was clawed on the left side of the chest, he sustained a serious dislocation of his left thumb at the metacarpophalangeal joint and he injured his left great toe.
Treatment
6. Mr Quick attended Gosford District Hospital where his lacerations were cleaned and dressed. He was found to have had a dislocated left thumb with a “gamekeeper’s type” of injury. An x-ray revealed this to be significant and unsuccessful attempts were made to reduce the thumb dislocation and a severe dislocation was identified. The following day he was operated upon by Dr Stuart Gray who explored the wounds and sutured them. Dr Gray also operated to stabilise the thumb dislocation by open surgery to suture the torn structures to the bone in the thumb. A plaster slab was applied and arrangements were made for follow-up by Dr Gray.
7. Mr Quick remained under the periodic review and care of Dr Gray until 18 February 2008. He also received concentrated physiotherapy to his left thumb. He wore a left hand thumb splint for many months.
Review of medical evidence
8. Dr Gray prepared a summary of the treatment he had provided and he also provided a detailed report in answer to questions posed to him by Mr Quick’s solicitor. A medico-legal report was also obtained from Dr WDG Patrick, a consultant surgeon.
9. The effect of these reports is that whilst Mr Quick’s wounds have healed satisfactorily albeit with some residual scarring, as is shown in the photographs comprising Exhibit “A”, he has been left with a considerable disability of the left thumb which affects the use of his left dominant hand.
10. He faces the prospect of developing post-traumatic arthritis in the left thumb following its dislocation. He also faces the prospect of revisionary surgery with collateral ligament stabilisation or even fusion of the joints of the thumb joint if the symptoms warrant this. The symptoms may take years to develop. In the meantime he suffers from reduced and weakened grip with altered fine motor skills in his dominant left hand and this affects his work.
11. The prognosis is for continuing residual symptoms with a permanent partial incapacity for work that involves dexterity with his left dominant hand.
Credibility of testimony
12. I found the plaintiff to be a credible witness. He clearly displayed a stoic disposition and in my view significantly understated the significance to him of the ongoing effect of his disabilities. Whilst he made little moment of the cosmetic defects from scarring to his right forearm and left elbow and sought to downplay the seriousness of the effect of his thumb disability, I consider that his thumb symptoms represent a significant impediment to his continued work efficiency.
Disabilities that remain
13. Having formed the view that Mr Quick has understated the effect of his disabilities upon him and having assessed him to be a credible witness, I feel I can confidently look to the less formal but more detailed summaries provided by the medical assessors concerning the ongoing disabilities : Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389.
14. Mr Quick has a significant impairment in the manual dexterity of his dominant left hand. His ability to sustain fine motor movements such as those required to be undertaken for extended periods in the course of his work as a diesel fuel injection repairer is significantly impaired. He has a significant diminution of pinch grip strength between his left thumb and the other digits of his left hand. There is some reduction in the span and grip of his left hand. He has discomfort in the metacarpophalangeal joint of his left thumb and some altered sensation over a portion of his left thumb. There is some residual stiffness in the left thumb as a result of the remedial surgery.
15. He also has altered sensation in patches over his right forearm in the region of the scarring and the scarring is irritated by touch or pressure. He finds it difficult to write with his left hand and is learning to use his right hand for more activities. He occasionally takes analgesic medications to dull the pain he experiences with his left elbow injury.
16. He has residual scarring from the dog bite lacerations but he shrugged these off as not being particularly bothersome to him insofar as the appearance of these scars is concerned.
Assessment of damages in proceedings brought by Mr Quick
17. Mr Quick claims damages for non-economic loss, past loss of earnings, additional business expenses, future loss of earning capacity, future treatment expenses and past out-of-pocket expenses.
Non-economic loss
18. Mr Quick is entitled to an award of damages for non-economic loss pursuant to s 16 of the Civil Liability Act 2002. On his behalf it was submitted that despite the stoicism which was apparent, the residual disabilities outlined above will continue to have an effect on him for the remainder of his life span. It was noted that according to the life tables this could be upwards of a further 25 to 30 years, his present age being 54 years.
19. Not only has the injury impaired Mr Quick’s work performance, for which I will make a separate assessment for that head of damage, but also his enjoyment of his previous work efficiency has been affected and he is no longer as able to enjoy golf. His pastime of motorcycle riding is less open to him now because of his reduced manual dexterity, the left-hand being needed to operate the controls. He is also less able to ride his motorcycle for long distances, including 900km rides he had formerly undertaken.
20. Not to be overlooked is the fact that he had what must have been a frightening injury when he was attacked by the dog. He underwent a considerable period of absence from work, he had to undergo persistent physiotherapy treatment, he is no longer able to predominantly use this left dominant hand as a matter of course, and as a consequence he has had to make many adjustments to his day-to-day living and lifestyle.
21. In my view these matters call for a significant award for non-economic loss. On behalf of Mr Quick it was submitted that the assessment should be of the order of 30 per cent of a most extreme case according to the considerations of s 16 of the Act. I accept that submission. Accordingly I assess the entitlement to damages of non-economic loss at 30 per cent of a most extreme case in the amount of $109,000.
Past loss of earnings
22. The claim for past loss of earnings has two components. First, in the period 25 July 2007 until Mr Quick’s return to work on light duties on 28 October 2007, the claim is for $685.74 per week net over 13.57 weeks, namely $9305.49. Secondly, between 29 October 2005 and 21 July 2008 whilst on restricted duties, during which time he employed an apprentice to carry out the additional workload that he was unable to fulfil, the claim is for a loss of $255.74 per week over 38 weeks, this being the difference between the amount that would have been earned, namely $685.74 per week net and the amount of $430 per week net that he received. This component of the claim amounts to $9718.12. The total of these two amounts is $19,023.61. There is no claim for tax paid on workers’ compensation benefits received. I accept the submission that the foregoing amount is a reasonable assessment in the circumstances. I therefore assess damages for past loss of earnings in the sum of $19,023.61.
Additional business expenses
23. During the period when Mr Quick was on light duties his business had to employ additional bookkeeping services from his wife. She was paid an average of $200 per week net over a period of one year for these services which involved paying her an amount totalling $5200. I accept that this expenditure was reasonable and I therefore assess damages for additional business expenses in the sum of $5200.
Future loss of earning capacity
24. Mr Quick makes a claim for a buffer for future impairment in his earning capacity. I consider that in this case such a claim is reasonably made. The evidence discloses, and I accept, that Mr Quick experiences a slowing down in the rate of performance of set tasks in his work. For example larger truck diesel servicing and repair tasks which normally take him one half days now take him two days to fulfil. Similarly, with regard to smaller jobs he finds a similar percentage of time extension for such jobs especially because he is troubled by thumb discomfort and aching which renders his work less efficient. At present he absorbs the burden of this inefficiency and does not pass on the cost to his customers for the actual time spent on such jobs.
25. I accept that these problems affect Mr Quick in two significant ways. First, to the extent that he is carrying out his work with a degree of inefficiency that approximates one third of his earnings, this factor alone justifies the award of an economic buffer. Secondly, although the business is continuing to be viable, even in the current hard economic times, the possibility always remains that businesses such as this may cease to trade for a multitude of reasons, in which case Mr Quick would be forced to compete on the open labour market to sell his labour where his competitors would be able bodied without restrictions on their manual dexterity. I consider that such a factor also justifies the award of an economic buffer.
26. Before assessing that buffer I am required by s 13 of the Civil Liability Act 2002 to consider the likely circumstances that would have applied to Mr Quick were it not for the advent of his injury.
27. His work history demonstrates a very impressive work record. After serving his apprenticeship as a fitter and turner he worked in that trade for some time before commencing work with Sheppard’s Diesel Service Pty Ltd. He then remained with that company as an employee for 24 years. He then purchased the company and became its owner 7 years ago. In the light of this background of continuous skilled employment I consider that but for his injury, Mr Quick would have had an unrestricted ability to continue with his work in the diesel repair and servicing industry and in addition would have had an unrestricted capacity to compete for similar employment, including employment as a fitter and turner, on the open labour market. In contrast, his present position is far less advantageous than what might otherwise have been even though he is fortunate to be the owner of the company which presently employs him. I also have to allow for the possibility that he may not always have the benefit of such sheltered employment.
28. The fact that he is in continued employment and appears to be earning the current market rate for such employment does not mean that he should not be awarded an economic buffer. This is so particularly since his present work is being performed at a significant level of inefficiency, a description which I accept.
29. In these circumstances I consider that an appropriate buffer would be an amount of $100,000 : Penrith City Council v Parks [2004] NSWCA 201. In testing the reasonableness of this buffer, I note that it is the equivalent of a loss of $225 per week net over a remaining working life of 11 years to age 65. That comparison confirms my view as to the reasonableness of the amount that I have assessed as a buffer. In my view this buffer does not require any discounted adjustment in view of the solidity of Mr Quick’s employment history. Accordingly, I assess damages by way of a buffer in respect of the plaintiff’s future loss of earning capacity in sum of $100,000.
Future treatment
30. The claim is made for a buffer to cushion Mr Quick against the prospect of future surgical treatment even though the prospect of that treatment is uncertain and if it was needed, it would be postponed for some considerable period of time. Notwithstanding these factors, having regard to the opinion of Dr Patrick, I am satisfied that a buffer of this kind should be awarded even though it is difficult to discern the amount that this may involve. I assess an appropriate buffer to allow for the prospect of future surgical treatment in the discounted sum of $3000.
Past out-of-pocket expenses
31. The out-of-pocket expenses have been identified in the amount of $6765.99. accordingly I assess the claim for out-of-pocket expenses in the amount of $6765.99.
Summary of damages assessment awarded to Mr Quick
32. My assessment of the plaintiff’s damages is summarised as follows:
(a) Non-economic loss (b) Additional business expenses (c) Past loss of earning capacity (d) Future loss of earning capacity (e) Future treatment (f) Past out-of-pocket expenses Total
Assessment of damages in proceedings brought by Sheppard’s Diesel Service Pty Ltd
33. Consistent with my findings in the claim brought by Mr Quick, it follows that the plaintiff company which employed him is entitled to recover its losses for payments of treatment expenses and weekly compensation together with interest on those sums.
34. Weekly payments were made to Mr Quick in the sum of $22,511.99. Medical, hospital and allied expenses were paid on his behalf in the sum of $6765.99. In addition he was paid a lump sum for his impairment in the amount of $11,004.20. these amounts total $40,282.18. Interest to date on these amounts is $6742. The total of these payments and interest amounts to $47,024.18. I therefore assess damages in favour of Sheppard’s Diesel Service Pty Ltd pursuant to section 151Z(1)(d) of the Workers’ Compensation Act 1987 in the amount of $47,024.18.
Disposition
35. In proceedings numbered 2331 of 2009 the plaintiff Neil Quick is entitled to a verdict and judgment in the sum of $242,989.60. In proceedings numbered 5416 of 2008 the plaintiff Shepherd’s Diesel Service Pty Ltd is entitled to a verdict and judgement in the sum of $47,024.18. Each plaintiff is entitled to an order for costs.
Orders
36. In proceedings numbered 2331 of 2009 I make the following orders:
(a) Verdict and judgment for the plaintiff in the sum of $242,989.60;
(b) The defendants are to pay the plaintiff’s costs;
(d) I grant liberty to apply on 7 days notice if further orders are required.(c) The exhibits are to remain with the court file;
37. In proceedings numbered 5416 of 2008 I make the following orders:
(a) The proceedings be discontinued against the first defendant Mr Barber without orders as to costs;
(b) Verdict and judgment for the plaintiff in the sum of $47,024.18;
(c) The second and third defendants are to pay the plaintiff’s costs;
(e) I grant liberty to apply on 7 days notice if further orders are required.(d) The exhibits are to remain with the court file;
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