Roberts v AJC Metal Products Pty Ltd

[1995] QSC 123

IN THE SUPREME COURT
OF QUEENSLAND

Writ No.  1893 of 1991

Brisbane

[Roberts v AJC. Metal Products Pty Ltd]

BETWEEN:

WAYNE JOHN ROBERTS

Plaintiff

AND:

A.J.C. METAL PRODUCTS PTY LTD

Defendant

JUDGMENT - MACKENZIE J.

Judgment delivered  23 June 1995

CATCHWORDS:           NEGLIGENCE - Personal Injuries - Work-related incident - Allowance for voluntary care - furture economic loss - whether unrelated incident contributed to plaintiff's condition - possibility of surgicial intervention producing alleviation of condition - whether entitled to amount for loss of superannuation.

Counsel:P. Favell for plaintiff

P. Hack for defendant

Solicitors:Baker Johnson for plaintiff

McCrea Jones for defendant

Hearing date:          13-14 June 1995

IN THE SUPREME COURT
OF QUEENSLAND

Writ No.  1893 of 1991

Brisbane

[ W. J. Roberts v. A.J.C. Metal Products Pty Ltd]

BETWEEN:

WAYNE JOHN ROBERTS

Plaintiff

AND:

A.J.C. METAL PRODUCTS PTY LTD

Defendant

JUDGMENT - MACKENZIE J.

Judgment Delivered  23 June 1995

The plaintiff claims in respect of two incidents which occurred in the course of his employment as a sheet metal worker with the defendant.  The first occurred on 29 June 1989 when the plaintiff hurt his back while lifting metal beams on to trestles.  He spent about three weeks away from work as a result.  The second incident occurred on 17 August 1990.  The plaintiff had been sent to a bakery to perform work which involved the use of gases of various kinds in cylinders.  While unloading one of the cylinders from a utility truck he felt severe pain emanating from his back.  Liability is admitted with an apportionment of 95% liability to the defendant and 5% contributory negligence to the plaintiff.
          The plaintiff was born on 1 March 1968.  He had a good record of continuous employment since leaving school.  He had been employed by the defendant for several years prior to the incidents.  Certain  elements of damages were agreed upon.  Pain, suffering and loss of amenities, past and future were agreed at $65,000.  Interest on past pain, suffering and loss of amenities based on $20,000 for five years at 2% was agreed at $2,000.  The Fox v. Wood component based on a payment by the Workers' Compensation Board of $72,491 was agreed at $4,258.  
          Special damages were agreed at $15,646.  Past economic loss (excluding the superannuation component) was agreed at $86,364.  It will be necessary to say more about the superannuation component later.  Interest on $28,244 of this amounts to $8,473.  It is also agreed that if it is accepted that the plaintiff will need to undergo an operation in the future the sum of $4,450 should be allowed.  The evidence establishes that there are surgical procedures available which may relieve some of the plaintiff's pain.  However, the outcome of such an operation is by no means guaranteed and it is not unreasonable for a plaintiff to make a decision that while the pain is bearable he will not undergo the surgery.
          The plaintiff takes the view that he would prefer to put up with the pain for as long as he can but is resigned to that fact that the pain seems to be progressing to a point where he will in all probability feel that he should have the operation in the not too distant future.  I therefore find that it is established that on the balance of probabilities he will undergo an operation in the relatively short term and I allow the sum of $4,450 for that purpose.
          The major unresolved issues are the proper allowance for voluntary care, the amount to be awarded for future economic loss and the treatment of the claim for loss of superannuation.  With respect to the Griffith v. Kerkemeyer component the perceptions of the plaintiff and his wife as to the amount of time spent in caring for him differed substantially.  I am satisfied that the plaintiff has underestimated the time spent and that his wife has significantly overestimated it.  Making a reasonable estimate of the times involved I allow $19,250 for past Griffith v. Kerkemeyer damages with interest at $1,850 making a total of $21,110 for past Griffith v. Kerkemeyer damages. 
          So far as future services are concerned I allow $20,000 According to the evidence the massaging of the plaintiff's back performs a beneficial function in respect of his condition and certain tasks which would ordinarily have been done by the plaintiff are not done by him and do not fall within the ordinary course of domestic arrangements.  In reducing the sums from those submitted by Mr Favell I have had regard to the rearrangement of roles that has occurred in consequence of the accidents and that some of the matters claimed as Griffith v. Kerkemeyer damages represent no more than ordinary incidents of domestic life.
          There is also a claim for future pharmaceutical and like products.  The evidence of the plaintiff and of his wife did not fully coincide as to frequency of purchases.  However, I am satisfied that a sum should be allowed for this category.  Making a reasonable estimate of the sums involved with regard to the variation in the evidence and for discounting I allow $7,000.
          So far as future economic loss is concerned, the plaintiff has very limited prospects of working to any substantial degree in the future.  He is certainly precluded from working at his trade even allowing for the fact that future surgery may alleviate his condition to some extent.  The range of work available to him will be relatively limited.  Dr Curtis gave evidence that the plaintiff, with a spine that was probably already beginning to degenerate and an occupation which involved heavy lifting, would have probably reached the point where he could no longer work in 25 years or upwards.  On the evidence the net award wage of the plaintiff was $348 per week.  It was accepted that prima facie the plaintiff had an entitlement to be paid the amount that would yield him that sum over the course of his working life.
          There was one further complicating feature in this regard.  There was evidence from two women who worked in the office of the defendant to the effect that the plaintiff, after his operation in 1991, came into the office and said something which implied that he had hurt his back lifting a fish-tank which he had purchased some years before from one of the women.  The plaintiff in his evidence said that there was never an occasion on which lifted the fish-tank filled with water and said that he did not remember talking to the two women on any occasion about lifting the fish-tank.  In cross examination of the second of the witnesses, who gave evidence at the commencement of the second day of the hearing, it was put to her that what he had said was "I won't be lifting any more fish-tanks will I?".  The witness was quite definite that that was not the tenor of the conversation and that the conversation had related to him lifting the fish-tank with at least some of the water and gravel in it.  I accept the evidence of the two women as to the conversation.
          Mr Hack expressly did not submit that I should find that that incident was the sole cause of the plaintiff's condition but submitted that there should be some discount because the evidence suggested that part of his present condition was attributable to an event unconnected with his employment. 
          The position taken that a work-related incident was at least part of the cause of the plaintiff's condition together with the lack of any evidence as to what actually happened in relation to the fish-tank makes it extremely difficult to determine to what extent any incident of that nature contributed to the current loss of earning capacity.  All the medical investigations have proceeded on the assumption that there was a work-related incident concerning a gas-cylinder and the medical evidence is all to the effect that he has a serious back condition.  On the assumption upon which the case was conducted, the contribution of any incident with the fish-tank is very speculative. 
          Mr Hack submitted that the best that the plaintiff could expect would have been of the order of 28 years of working life having regard to the evidence of Dr Curtis.  That yielded a figure of approximately $275,000 on the 5% tables.  He submitted that the ordinary discount for contingencies had to be made from this sum including a component for the possibility of the plaintiff obtaining some work.  He also submitted that there should be a further discount of the same order to reflect the possibility that part of the plaintiff's present condition was attributable to the incident with the fish-tank.  Having regard to the usual contingencies, the difficulty of specifically assigning a component of the disability to any other incident than the work-related incident, and the possibility that surgical intervention may produce some alleviation, enabling the plaintiff to take some form of employment, I propose to award $200,000 for future loss of earning capacity. 
          I am also satisfied that the plaintiff is entitled to recover sums representing past and future loss of entitlement to superannuation.  If he had continued in the workforce the current statutory regime would require contributions to be paid in respect of him.  Mr Hack's bare submission that there should not be an award for this component seems contrary to principle.  Having regard to the figures provided to me and making allowances for contingencies I award $3000 for past loss and $20,000 for future loss.  Interest on the past loss is allowed at $900.
          The total amount of damages assessed is $457,291.  Applying the agreed apportionment, the amount becomes $434,326.45.  Subtracting the Workers' Compensation payments of $72,491.01, the judgment sum is $361,935.44.  I give judgment for the plaintiff in the sum of $361,935.44 with costs including reserved costs if any to be taxed.