Saliba v Silvester Brothers (Amhuck) Limited
[1997] QSC 107
•6 June 1997
IN THE SUPREME COURT
OF QUEENSLAND
No 73 of 1995
Mackay District Registry
Before the Hon. Justice Williams
[Saliba v. Silvester Brothers (Amhuck) Limited & Anor]
BETWEEN:
GREGORY JAQUES SALIBA
(Plaintiff)
AND:
SILVESTER BROTHERS (AMHUCK) LIMITED
(First Defendant)
AND:
THOMAS BORTHWICK & SONS (AUSTRALIA) PTY LTD
(Second Defendant)
REASONS FOR JUDGMENT - WILLIAMS J
Judgment delivered 06/06/1997
CATCHWORDS: PERSONAL INJURY - master and servant - plaintiff injured lifting tripes and twisting to hang on hook and also when slipped lifting tripes - liability admitted - right-sided disc protrusion at L5/S1 causing some thecal sac indentation - psychological pain disorder - judgment for plaintiff for $235,993.49.
Counsel:D McMeekin for plaintiff
A Mellick for first and second defendants
Solicitors:Macrossan & Amiet for plaintiff
Wallace & Wallace for first and second defendants
Hearing Date: 16 and 19 May 1997
IN THE SUPREME COURT
OF QUEENSLAND
No 73 of 1995
Mackay District Registry
[Saliba v. Silvester Brothers (Amhuck) Limited & Anor]
BETWEEN:
GREGORY JAQUES SALIBA
(Plaintiff)
AND:
SILVESTER BROTHERS (AMHUCK) LIMITED
(First Defendant)
AND:
THOMAS BORTHWICK & SONS (AUSTRALIA) PTY LTD
(Second Defendant)
REASONS FOR JUDGMENT - WILLIAMS J
Judgment delivered 06/06/1997
At all material times the plaintiff was employed at the meatworks operated by the defendants. In the course of that employment the plaintiff sustained two relevant injuries to his back. The first was on 15 December 1993 when he was lifting tripes and twisting to hang them on a hook. The second was on 13 October 1994 when he slipped and fell whilst lifting a tripe from a tub and turning to hang it on a hook. The defendants have admitted liability for each of those incidents.
The plaintiff was born on 14 November 1957 making him aged about 36 when each incident occurred and now 39. He resides in a defacto relationship and has children aged 11 and 10 to support.
He came to the Mackay district in 1974 and obtained employment at the meatworks for three years. Then he worked as a gardener/maintenance man and night cleaner for in excess of three years. He returned to work as a slaughterman in 1984 and worked as such until forced to stop work after the injury on 13 October 1994.
During that ten year period the plaintiff suffered a number of soft tissue injuries and/or ligament strains to his back, but he had no significant time off work in consequence of any. Around Mackay Show time, approximately June, the bullocks are heavier than normal and frequently at that time of year the plaintiff experienced pain in his lower back. He would get the nurse at work to rub it for him and he would return to work. He never had time off because of such episodes.
After the fall on 13 October he had pain in his lower back and was advised to get medical attention. He had fallen heavily on his right hip on that occasion. After medical examination and treatment he attempted to return to work on 17 October but ceased work because of the pain. After a period on physiotherapy he again returned to work on 25 October but found he could not lift as he had previously. The next day he had more physiotherapy and was off work again until 3 November. Once more he was only able to work for the one day.
Doctors suggested a gym program and the plaintiff attended every second day for a month. Some of the exercises appear to have increased the pain. In December he commenced a further rehabilitation program.
The plaintiff was unable to resume work and he received periodical workers' compensation payments until 1 August 1995. Thereafter he was granted sickness benefits until April 1996 when he was granted a disability pension. He is still receiving that pension.
The plaintiff currently complains of pain with any activity. Sitting for a length of time increases the pain. He experiences numbness in each foot and has difficulty sleeping at night. Previously he was a keen gardener but cannot do that now. Pastimes such as fishing and crabbing are no longer open to him. Also, he can no longer work with horses.
His defacto works and the plaintiff does most of the housework and tends to the children's needs. The mowing and any heavy lifting are done by his defacto. That relationship is now virtually at an end. The parties live under the one roof for the sake of the children but there is no physical or emotional side to the relationship. Both blame the back injury for that. In the past she massaged his back when he had extreme pain.
A C.T. scan on 30 January 1995 demonstrated a right-sided disc protrusion at L5-S1 causing some thecal sac indentation. The weight of medical opinion supports the conclusion that the disc protrusion was caused by the fall on 13 October.
There is also no doubt that the disc lesion was superimposed on a degree of pre-existing degenerative change at other levels. However I accept the evidence of Dr White that it is significant that the x-rays show no sign of pre-existing degeneration at L5-S1.
Much time was taken during the trial in exploring the possible connection between pain occasioned when the plaintiff was playing cricket and his present condition. I prefer the view of Dr White and Dr Shaw on that issue, particularly as the other complaint of pain was at a higher level of the spine.
Drs White and Shaw, both orthopaedic surgeons, assessed the plaintiff's permanent disability as 20% of the whole body with two-thirds of that attributable to the fall on 13 October. I accept that assessment and Dr White's reasons stated in exhibit 7 for rejecting the assessment made by Dr Boys.
I also accept Dr White's evidence that with his pre-existing degenerative condition the plaintiff's working life as a meatworker was until age 50-55. Certainly it was longer than the five years from October 1994 assessed by Dr Boys. In all the circumstances I will assess future economic loss on the basis that the plaintiff, but for the accident on 13 October 1994, would have had a ten year working life as a meatworker from now.
The plaintiff led evidence from L.K. Salzman, a clinical neuropsychologist, and the defence called Dr Alroe, a psychiatrist. There was much common ground between them. Salzman concluded the plaintiff was suffering from a somatoform pain disorder largely resulting form the plaintiff's pre-accident personality. Overall he considered there were good prospects a pain management course would produce a significant reduction in the level and frequency of pain. Such a course would cost of the order of $6,000. Dr Alroe was of the view that given his prior personality the plaintiff had understandably developed a pain disorder. In his view whilst the pain disorder would resolve somewhat with the resolution of the litigation and the completion of the pain management course, symptoms would return and the plaintiff was essentially in a state of chronic semi-invalidism. Notwithstanding the plaintiff's organic injury Dr Alroe considered the plaintiff's failure to return to work more a response to his personality than the actual injury to the back.
The significant injury was that of 13 October 1994. The incident of 15 December 1993 was only to soft tissue and would not result in a major award though some specific items of damage are referable to it. In the circumstances I will assess a global figure for pain and suffering and loss of amenities, but include items referable to the earlier injury where appropriate.
The quantum of special damages was not directly challenged and the following are allowed:
Work Cover expenses first incident $61.58
Work Cover expenses second incident $2,755.77
Commonwealth Rehabilitation Service $272.00
Doctors' expenses $240.85
Pharmaceutical expenses $250.00
TOTAL:$3,580.20
Interest should be allowed on $490.85 of that amount at 6% for 2.58 years; I allow $76. Under the Fox v. Wood factor the plaintiff should be allowed $2,727.25; being $107.60 with respect to the first incident and $2,619.65 with respect to the second.
Past economic loss with respect to the first incident is allowed in the sum of $546. The parties are agreed that past economic loss from 13 October 1994 to 23 May 1997 calculated in accordance with exhibit 12 comes to $65,323. However the defendants contend that after 31 December 1995 those notional earnings should be reduced by 30% because of the pre-existing condition and the likelihood that in any event the plaintiff would have lost time from work. I am not satisfied that on the evidence such a significant discounting is warranted. Given the plaintiff's work history only a small reduction is called for. I allow $61,000 for past economic loss covering both incidents.
When calculating interest on past economic loss allowance must be made for workers' compensation and social security payments received. I allow interest on $36,500 at 6% for 2.58 years, namely $5,650.
The plaintiff will incur expenses over the next ten years in alleviating his condition. There will be approximately six visits a year to his general practitioner, the cost of purchasing painkillers, the cost of massage liniment, and the cost of physiotherapy. The evidence indicates that such expenses will be of the order of $12 per week over that ten year period. That would entitle the plaintiff to $4,955. In addition the plaintiff claims $6,000 being the approximate cost of attending the pain management course recommended by Salzman. As previously indicated that is likely to bring about an improvement in his overall condition. In his quantum statement the plaintiff said he would attend such a course if he could afford it. However there is no certainty he will do so, and if he does it may be some time into the future. The appropriate course is to discount for those considerations. I allow $4,000 towards the cost of attending that course. The total cost of future treatment and recurring expenses is therefore $8,955.
I now turn to the allowance to be made for past and future care according to the Griffiths v. Kerkemeyer principle. His wife spent some time in the past massaging his back, but the evidence does not show this is continuing or allege it will continue in the future. She does drive him on occasions. The main claim is for work in the yard and garden, plus doing other unspecified heavy lifting. Doing the best I can on the evidence I assess this claim at two hours per week for the twelve month period after 13 October 1994 and at one hour per week for the remaining 1.58 years to trial. That will continue at one hour per week for the future. Given the evidence as to the deteriorating relationship I will allow the claim for the next five years. The parties were in agreement that the appropriate rate was $9.50 per hour for the past, and $10 per hour for the future. I allow $1,767 for the past and $2,315 for the future. Interest should be allowed in the sum of $91.
As already noted I am satisfied that the plaintiff, but for the incident of 13 October 1994, had a working life with the defendants for up to ten years from now. It was agreed his current average net weekly wage if he had continued in employment with the defendants would be $514. In calculating future economic loss there should be a discounting for the normal vicissitudes of life, and also for the fact that over that ten year period he would probably have had an increase in number of short periods off work as his condition deteriorated. He may also earn some income during that period, particularly if the pain management course is successful. In the circumstances it is appropriate to calculate future economic loss on the basis of $300 net per week over the ten years, which gives $123,870.
The parties agreed that I should allow lost past and future superannuation benefits at 6% of the total award for past and future economic loss. As a result I allow $11,092 under that head.
My award can therefore be summarised as follows:-(i)Pain and suffering and loss of amenities $40,000.00
(ii) Interest thereon $1,200.00
(iii)Special damages $3,580.20
(iv)Interest thereon $76.00
(v)Fox v. Wood $2,727.25
(vi)Past economic loss $61,000.00
(vii)Interest thereon $5,650.00
(viii)Cost of future treatment $8,955.00
(ix)Past Griffiths v. Kerkemeyer $1,767.00
(x)Interest thereon $91.00
(xi)Future Griffiths v. Kerkemeyer $2,315.00
(xii)Future economic loss $123,870.00
(xiii)Lost superannuation benefits $11,092.
TOTAL:$262,323.45
From that has to be deducted the amount of $26,329.96 repayable to Work Care covering both the incidents referred to. There will therefore be judgment for the plaintiff for $235,993.49.
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