Small v FAI Insurance Co Ltd

[1995] QSC 121

IN THE SUPREME COURT

OF QUEENSLAND

No. 78 of 1992
Townsville

Before:  Mr Justice Ambrose

[Small v. FAI Insurance Co Ltd]

BETWEEN:

ANDREW WALLACE SMALL
  Plaintiff
AND:

FAI GENERAL INSURANCE COMPANY LIMITED
  Defendant

REASONS FOR JUDGMENT - B W AMBROSE J.

Judgment delivered 22/06/1995

CATCHWORDS:                 CIVIL - personal injury - contributory negligence - alleged failure to wear seat belt on basis that the plaintiff was badly injured whereas the driver was unhurt - plaintiff suffers from post-traumatic retrograde amnesia.

Counsel:Mr R. D. Pack  for the plaintiff

Mr R. A. I. Myers for the defendant

Solicitors:Arthur Browne and Associates for the plaintiff

Connolly Suthers for the defendant  

Hearing Date:              5 March 1995       

IN THE SUPREME COURT

OF QUEENSLAND

No. 78 of 1992
Townsville

Before:  Mr Justice Ambrose

[Small v. FAI Insurance Co Ltd]

BETWEEN:

ANDREW WALLACE SMALL
  Plaintiff
AND:

FAI GENERAL INSURANCE COMPANY LIMITED
  Defendant

REASONS FOR JUDGMENT - B W AMBROSE J.

Judgment delivered 22/06/1995
           The plaintiff suffered injury in a motor vehicle collision which occurred on 31 May 1989. 
           The defendant admits liability for negligence and asserts against the plaintiff contributory negligence and this is one of the issues upon trial.  The other issue is the quantum of the plaintiff's damages.
           The issue on liability is somewhat complicated because the plaintiff, as the result of head injury sustained in the collision, suffers from post traumatic retrograde amnesia.  The last event that he recalls before regaining consciousness in hospital is becoming a passenger in a motor vehicle then under the control of his girlfriend on Magnetic Island.  He has no recollection of events leading to his injury.  No evidence on the issue of liability was called on behalf of the defendant, which was the insurer of the motor vehicle involved with the plaintiff's injury.
           The plaintiff's only recollection was that the motor vehicle he entered as passenger had no doors.  It is elsewhere described in the evidence as a "mini moke".  He said that his invariable habit was to fasten a seat belt when he sat in a motor vehicle.  He said that he could not remember putting a seat belt on when he entered the motor vehicle driven by his girlfriend prior to his regaining consciousness in hospital, but believes that he would have.
           There is absolutely no evidence admissible on the issue of contributory negligence apart from assertions made by the plaintiff in his statement of claim, which no doubt can be used against him - even though they are specifically not admitted in the defence. 
           The plaintiff asserts in para. 2 of the statement of claim that he was a passenger in the motor vehicle, of which the defendant was insurer, when in the process of negotiating a right hand curve it left the roadway and collided with a power pole, resulting in his injury.
           In para. 7 of the statement of claim it is asserted that at the material time the plaintiff was wearing a seat belt.  This assertion is specifically denied in para. 2 of the defence.  In para. 6 of the defence it is asserted that the plaintiff was not wearing an available seat belt.
           There is nothing in the pleadings to assist in determining whether the plaintiff was or was not wearing an available seat belt or whether if he was not wearing a seat belt that fact was in any way responsible for his physical injury.
           It is contended for the defence that there is no evidence that the driver of the motor vehicle was injured and that it may be inferred from this that the defendant must not have been wearing a seat belt because, had he been wearing one, he would not have been injured either.  I am unpersuaded by this argument.  Firstly, there is no evidence that the driver of the motor vehicle was not in fact injured.  Secondly, there is no evidence as to whether or not the plaintiff suffered his injuries while wearing a seat belt.  Thirdly, there is no evidence to suggest that if he was not restrained by a seat belt at the time of his injuries or some of them that absence of restraint was not due to a failure of the seat belt or its attachment to the vehicle.
           The onus is on the defendant to prove the issue of contributory negligence raised upon the pleadings and in my view it has failed to discharge that onus.  On the pleadings and upon the evidence before me I find that contributory negligence has not been established against the plaintiff.
           Turning now to the issue of quantum.  The plaintiff was injured on 31 May 1989.  He was then 24 years of age.  He is now 30 years of age.
           He completed his schooling in Wagga Wagga at age 18.  He became an apprentice printer for about 11 months when he developed problems with his hands as the result of using chemicals and left that calling.  He then worked at various unskilled occupations until he was aged a little over 21 years.  He then obtained a position as a trainee assistant manager for six months.  He then worked as barman and bar supervisor from March 1987 until the end of June 1988.   He obtained employment in these areas at the Barrier Reef and in Western Australia.  He spent three months in the army and then obtained a discharge.  He spent a couple of months in unskilled labouring work until he obtained a position as bar manager with the Criterion Tavern on 26 March 1989.  He had occupied that position for about two months at the time of his injury.
           He said that his brother had elected to pursue a career as bar manager, hotel supervisor etc.  He said that he had also decided to do this.  Indeed, in 1986-1987 he had undergone a 10 week hospitality training course at Wagga Wagga, New South Wales, and had also attended a three week course in professional bar and restaurant procedures at a school in Brisbane.
           I am satisfied that the plaintiff, at the time of his injury, had decided to follow a career involving bar service, bar management, hotel management etc.  I am satisfied that had it not been for his injury he would have continued to gain experience in the hospitality industry, particularly in connection with bar and restaurant serving and management.  I am satisfied that the probability is that over a period of from perhaps 5 to 10 years he would have obtained sufficient experience and developed sufficient skills to obtain employment in a managerial capacity in the hospitality industry - related to bars, restaurants etc.
           In the collision the plaintiff suffered severe injuries.  He dislocated his left hip and fractured his pelvis.  He had internal fixation of the pelvic fracture and the insertion of a plate in his tibia.  Operative treatment caused him significant pain and  there was delay in closure of the operation wounds.
           Upon his discharge from hospital at Townsville, the plaintiff returned to his family home at Wagga Wagga in New South Wales where members of his family were able to give him the assistance that he needed.  He was only mobile with the aid of crutches and was unable to cook for himself, to dress or shower himself, or generally to look after himself.  He needed such assistance for about five months.  The assistance needed was for about two hours per day and all told the Griffiths v. Kerkemeyer aspect of his claim relates to 308 hours.
           The plaintiff was on Social Security benefits for about 12 months until June 1990.  He then obtained employment as a janitor and was required to clean and tidy up premises.  In the course of doing this work he slipped on a wet floor and significantly aggravated his injured hip.  He was unable to work for some time after this injury and lost his job.  In fact, he remained on support of various sorts until December 1992, when he obtained a job with a fruit market.  This job required that he lift heavy bags of fruit and vegetables.  The work load was too great for his injuries and he ceased this work after about a month.  He remained on Social Security benefits until about October 1993, when he obtained work as a kitchen hand.  Before obtaining this position he had worked casually delivering pamphlets at the rate of $35 per week between March and October 1993.  He worked also for a couple of months doing casual lawn mowing work and also assisting in a nursery.  He was paid only for hours actually worked.
           He was unable to continue to work as a kitchen hand because he was required to work in a freezer for 1½ hours a day and he found that this caused him extreme disabling pain in his left hip.  He worked for a couple of months before he was forced to leave this position.  He then obtained work as a casual gardener for a couple of months. 
           From February 1994 until date of trial he relied almost entirely on the receipt of unemployment benefit.
           I am satisfied on the evidence, particularly that of Mr Braby and exs. 2 and 3, that the plaintiff would have earned an average not less than $375 per week net from date of accident to 31 March 1995 had it not been for the injuries he suffered.  This sum would have amounted to $113,685.  In coming to this conclusion, I have compared what the current award earnings are and how they compare with the net wages actually received by bar managers.
           On the evidence he has in fact earned $10,268.50.  His pre-trial economic loss therefore I assess at $103,416.50.
           Since the date of accident the plaintiff has received by way of sickness benefit and job search allowance from the Department of Social Security the sum of $28,315.60.  He has received by way of workers' compensation from the Workers' Compensation Board of Queensland the sum of $12,452.  All told therefore he has received by way of statutory based assistance the sum of $40,767.60.
           For the purpose of calculating interest on his pre-trial income loss therefore, I adopt the sum of $62,650.  I award interest on this sum at the rate of 6% for 6 years, which amounts to $22,554.
           Having regard to the medical evidence and to the evidence of the plaintiff, I am satisfied that he will be unable to obtain employment as a bar manager or supervisor, having regard to the permanent residual disability which his injury has left.  I am persuaded that he will be unable sufficiently to stand, walk or lift or do the sorts of things that are required of a person employed in the occupation which the plaintiff had elected to follow and which he would have followed had it not been for his injury.
           I am satisfied that if the plaintiff were able to follow his chosen employment as a bar manager or supervisor he would be now receiving a net income benefit of at least $400 per week.  The plaintiff is presently aged 30 years and in my view it is likely that he would have earned that sum at least until he had reached the age of 65 years.  Using the 5% tables the present value of the loss of $400 per week for 35 years is $344,800.  I reduce that sum by 15% for contingencies to produce a figure of $293,080.
           I am satisfied that the plaintiff does have some earning capacity.  It will be difficult for him to obtain regular employment due to his lack of skills to perform tasks within his physical capacity.  It is quite unlikely on the evidence as to his background and work experience that he will be readily employable in any sort of clerical or office work.
           On the evidence it is difficult to determine what the plaintiff's future earning capacity will be.  Long periods of unemployment have occurred prior to trial.  Unfortunately he has not been given assistance and counselling with a view to retraining him.  An application he made for formal rehabilitation courses was refused by the appropriate Government Department.  A vocational assessment made by or through C.E.S. stated that he "could be suited for work as a solicitor, park ranger, politician or real estate agent". The basis of this assessment has not emerged and the plaintiff has not embarked upon any specified course for which "he could be suited".  Helen Coles, an occupational therapist whose report was tendered by consent (ex.12), not surprisingly did not suggest that he might find employment with the assistance of this "assessment".  I form the impression from the plaintiff's work history and from the evidence he gave in court that it is likely that he will obtain some training to enable him to obtain a regular income even if only of a casual kind.  In fact on some occasions over the years since his injury he has been able to earn a gross income at the rate of $300 to $350 per week.  However, he has not had the capacity to maintain this employment for significant periods of time because of his disability.  Doing the best I can, I find that he will have a future earning capacity of $150 per week, although I think it will be for a shorter period of time than he would otherwise have been able to work.  It must be kept in mind that he will have to have a hip replacement operation within 20 years and he should have an arthroscopy on his left knee also.  Perhaps he may need more than one hip operation.   I adopt a period of 25 years for this calculation, which produces the figure of $111,600.  That figure must also be reduced for contingencies. I reduce it also by 15%.  So reduced, that amounts to $94,860.
           Using these figures I assess the plaintiff's future loss of earning capacity in the sum of $198,220.
           It was contended that in addition to the loss of wages, the plaintiff has also suffered the loss of his statutory entitlement to superannuation contributions from any employer that might have employed during that period of 35 years.  In this respect an accountant's calculation of loss of future benefit was submitted which is ex. 17.  This calculation showed a figure of $33,200.18 calculated on the basis that the plaintiff's present gross salary was $500 per week ($26,000 per annum).  Calculations were then made having regard to the gradually increasing superannuation guarantee charge upon gross salary which employers are, and will be, obliged to pay in to a superannuation fund for the benefit of employees under current legislation.  From the year 2002 onwards the current legislation requires a payment of 9% of gross salary.  The calculation takes into account estimated net earnings from the fund in which the employer contribution is invested and also makes allowance for tax taken, at least from the income from the invested fund, if not also from the amount first paid in by the employer.  No expert evidence was led concerning the likely long term effect (if any) on the net benefit from employment of the implementation of the compulsory superannuation scheme.  For the reasons I gave in Meyer v. Beck (unreported judgment in Townsville Action No. 101 of 1994, delivered on 8 June 1995) I take the view that it is not permissible to include as a component for future loss, income that may have been earned if the plaintiff had received and wisely invested moneys which he will no longer be able to earn because of his disability.  I therefore do not accept the basis of the calculation.  But in any event, for the reasons which I gave I am unpersuaded that it is appropriate when arriving at future economic loss for a period of 35 years to assume that the plaintiff's real loss expressed in terms of present value will in effect be significantly greater by reason of the loss of entitlement from the compulsory superannuation scheme which has come into effect relatively recently.  I am unpersuaded that merely because of the introduction of the compulsory superannuation legislation, an employee's earning capacity or entitlement will be significantly increased beyond what it may be calculated to be on the net wage he might have been expected to receive, having regard to his earning capacity without the statutory entitlement - at least at this early stage of the compulsory saving scheme's operation.  For the reasons I gave in Meyer v. Beck I prefer to take account of the loss of such benefits when selecting the appropriate allowance for contingencies.  In selecting 15% I take into account any possible disadvantage (as well as advantage) that will accrue to the plaintiff by virtue of the loss of employer contributions to a superannuation fund for his benefit.  It is on the cards that the level of net benefit from employment will remain the same.  I take into account also of course the possibility that the plaintiff may have received advantages other than salary advantage in certain employment that would have been available to him - such as the use of motor vehicles, the provision of board, accommodation and other fringe benefits, etc.
           I refer to the sporting activities to which the plaintiff alludes in paras. 17 and 18 of his quantum statement.  He was able to engage in very active sports prior to his injury including A Grade Australian Rules football, tennis, snow skiing and surfing.  He still is able to play golf, although he says that he is unable to play as well as he used be able to.  He says that he is unable to play more than 9 holes of golf now without experiencing very severe pain.
           The plaintiff has suffered extreme anxiety when travelling in motor vehicles. He is still most anxious when he is being driven as a passenger by a female driver.  His anxiety attacks however are not as severe now as they used to be.  He suffers from throbbing headaches and low back pain.  He finds that if he sits in one position for very long - for example when travelling in a motor vehicle, bus or train on a long journey he gets back pain.  Similarly when sitting watching television he gets pain.  He experiences bad pain in his left hip which starts in the knee and extends to the left hip.  When walking he often experiences a "grinding" or "crunching" sensation in his left hip.  Cold weather and rainy weather causes an increase in pain.
           The plaintiff will eventually have to have a total hip replacement operation.  This will cost $12,000 and he will lose income for about 2 months i.e. about $1,200.  He will be required to have this operation in between 15 and 20 years.  The present value of $13,200 in 17 years is $5,760.
           He has been left with prominent scarring to his left forehead. However the scar which most concerns him is on his left knee.  It is only a "paper thin" scar tissue and breaks open easily if he bumps or scratches it.  This scar tissue takes a very long time to heal and the plaintiff contemplates having a further skin graft to rectify this problem.
           He suffers from constant pain in his left leg and knee which is aggravated by weight bearing and by cold weather.  His knee gives away without warning from time to time.
           The plaintiff has suffered a personality change.  He was previously of cheerful disposition.  Now he becomes very irritable and abusive and sometimes depressed by his physical incapacities.  He is forced to use a walking stick for his comfort.  He is unhappy about this having regard to his age.  He tries not to take it to job interviews as he feels that it will adversely effect his chances of employment.  He says that while he dislikes using a walking stick, he finds his condition is deteriorating so that he is becoming more dependent on its use.  He feels that it helps him to keep his balance.
           I accept the evidence of Mrs Drew that the plaintiff needs comprehensive psychotherapeutic treatment for a period of between 4 and 6 months.  I assess future costs of this treatment at $3,000.
           The plaintiff's injuries have diminished his capacity to engage to sexual intercourse.  He is still able to engage in sexual activity, although with limitations.
           The plaintiff presently uses medication for control of pain.  He spends about $8 a week on medication and I find that he will probably spend this for the rest of his life.  Using the 5% tables I find the present value of the loss of $8 a week for 40 years is about $7,200.

           The plaintiff says that a walking stick lasts for about 2 years.  The present cost is $40.  Using the 5% discount tables the present value of the cost of walking sticks in the future is about $330.
           I assess damages under the Griffiths v. Kerkemeyer head at $10 per hour for 308 hours in the sum of $3,080.
           With respect to pain, suffering and loss of amenities of life, I assess general damages in the sum of $70,000.  Of this sum I apportion $30,000 pre-trial. I assess interest on $30,000 for 6 years at 2% which amounts to $3,600.
           I assess the plaintiff's special damages in the sum agreed at $11,500.  On $2,000 of that sum I assess interest at 6% per annum for 6 years which amount to $720.

In summary I assess damages as follows:

General damages  $70,000

Interest on $30,000 for 6 years at 2%  $3,600.00

Loss of income to trial  $103,416.50

Interest on $62,650 thereof for 6 years at 6%  $22,554.00

Griffiths v. Kerkemeyer  $3,080.00

Future loss of earning capacity  $198,220.00

Future operative treatment  $5,760.00

Future psychological counselling  $3,000.00

Future medication  $7,200.00

Future cost of walking sticks  $330.00

Special damages  $11,500.00

Interest on $2,000 thereof for 6 years at 6%  $720.00
  ________

Total  $429,380.50
  ________

I give judgment for the plaintiff in the sum of $429,380.50.  In the absence of an application made to argue the question of costs, I order that the defendant pay to the plaintiff his costs of and incidental to the action (including reserved costs if any) to be taxed.