Smith v Woolley
[1990] TASSC 158
•24 December 1990
Serial No B81/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Smith v Woolley [1990] TASSC 158; B81/1990
PARTIES: SMITH
v
WOOLLEY
HER MAJESTY'S ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA
FILE NO/S: 1832/1978
2509/1980
2455/1981
DELIVERED ON: 24 December 1990
JUDGMENT OF: Underwood J
Judgment Number: B81/1990
Number of paragraphs: 67
Serial No B81/1990
List "B"
File Nos 1832/19782509/1980
2455/1981
SMITH v WOOLLEY and HER MAJESTY'S ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA
REASONS FOR JUDGMENT UNDERWOOD J
24 December 1990
About 8.am on 16 September 1977, there was a collision between a Ford sedan owned and driven by Russell John Smith (Smith) and a Commer truck owned and driven by Valance Henry Woolley (Woolley). It occurred at the junction of Derwent Park Road, Goodwood and a temporary side track constructed by the then Department of Public Works (PWD) not far from an entrance to the Electrolytic Zinc Company of Australasia's premises (the Zinc Works). At the time, a section of Derwent Park Road was closed to enable the PWD to reconstruct a bridge over the railway line. The side track was opened, initially to enable traffic proceeding to and from the abattoirs, and later to enable traffic proceeding to and from the Zinc Works, to bypass the closed section of road. It was in the order of 100 metres long and formed the shape of a "U" attached to Derwent Park Road. At the time of the accident, Smith was proceeding from his place of employment to his home and consequently was paid compensation pursuant to the provisions of the Workers' Compensation Act 1927.
The Proceedings
Three separate proceedings were instituted.
1By action No 1832/1978 Woolley (who was uninjured) sued Smith for the cost of repairs to his truck. Smith joined issue with the allegations of negligence and pleaded contributory negligence. In the same proceedings Smith counterclaimed against Woolley for damages for personal injury and the cost of repairs to his motor vehicle. By third party proceedings Smith sought indemnity or contribution from the Attorney–General with respect to any damages Woolley might recover against him. The allegation against the Attorney–General was, in substance, that the PWD had been negligent in failing to erect adequate or sufficient signs to properly regulate the flow of traffic at the south–western junction of the side track and Derwent Park Road. The Attorney–General joined issue with these allegations.
2By action No 2509/1980 Smith sued the Attorney–General to recover the same damages he was seeking by way of counterclaim against Woolley in the earlier action. The alleged negligence pleaded was the same as that pleaded in the third proceedings in the earlier action. The Attorney–General joined issue with the allegations of negligence and took third party proceedings against Woolley claiming entitlement to indemnity or contribution by reason of Woolley's negligent driving.
3By action No 2455/1981 the EZ Company sued both the Attorney–General and Woolley alleging that both were negligent, in substance, on the same basis as alleged in the earlier actions and claimed recovery of the compensation it had paid to Smith. Notices of contribution were exchanged between defendants.
All actions were tried at the same time.
Liability
The only eye witnesses to the accident were Smith and Woolley. Smith said that he had no memory of events, apart from a recollection of seeing a blur of a truck an instant before impact, from shortly before he reached the junction until later that day when he was in hospital. Woolley claimed to have memory of the relevant events but, as they occurred 13 years before he gave evidence, I find that I am unable to place much reliance on his account with respect to detailed matters of speeds, distances, visibility and the like. It was clear from the answers he gave that much of his evidence concerning detail was based on reconstruction or was a justification for the events that occurred. However, some written memoranda from the files of the PWD and a plan drawn in March 1977 by an officer of that Department were tendered in evidence. I find that that plan, not to scale, describes the material parts of Derwent Park Road, the side track and the approximate position and nature of the signs erected by the PWD and in position at the time of the accident. For convenience, that plan is reproduced in these reasons.
From the PWD letters and notes and the answers to interrogatories furnished by the Acting Secretary of the Department of Main Roads for the State of Tasmania, I make the following findings of fact.
[Double Click to see Plan]
Approximately 250 metres south of an entrance to the Zinc Works, Derwent Park Road crossed over a cutting through which a railway track was laid. Close to this point, on the Zinc Works side of the railway track, there was an entrance to the abattoirs. In October 1976 the PWD notified the EZ Company that it intended to "renew" the overpass and that the work was scheduled to start about December 1976 or January 1977. The EZ Company was notified that:
"It is hoped to close the road for the period of construction; expected to be about five months, and not have to incur the expense of a bypass road. As there is alternative access available, [viz, to the Zinc Works] it is not thought that there should be any reasonable objections to this course of action. Your comments on this proposal is [sic] invited."
There is no evidence of the EZ Company's response to this proposal. In November 1976 the PWD again wrote to the EZ Company advising it of some details of the proposed works and that "it will be necessary to completely remove the existing bridge prior to constructing the new, so Derwent Park Road would be closed at that point as from approximately January 24th 1977." The letter also advised "access to your superphosphate loading plant from Derwent Park Road would not be affected." This is a reference to the road shown on the plan and marked "RD TO SUPERPHOSPHATE PLANT".
Pursuant to the proposal, on 7 February 1977 a section of Derwent Park Road where it passed over the railway track was closed to traffic. This section is shown on the plan and marked "E NEW ROAD & BR E". I find that after 7 February 1977 access to and from the abattoirs was along a temporary road constructed by the PWD for this purpose and marked "SIDE TRACK" on the plan. I infer that at this time the side track terminated at the entrance to the abattoirs. Access to the Zinc Works from Derwent Park Road was barred.
It appears from later correspondence that this latter action incurred the displeasure of the proprietor of the Russell Hotel due to "the loss of beer trade because the EZ workers are now cut off from direct access to the Russell Roundabout." Apparently, the proprietor's displeasure was conveyed to the Minister who requested the PWD to review the system of traffic control to enable the EZ workers to have direct access to the Russell Roundabout. In a memorandum dated 16 March 1967 from the Division Engineer (Bridges) to the Division Engineer (Planning and Design) the following request was made:
"Would you please have the crossing accessed as soon as possible to see whether appropriate signing road modification would enable the temporary crossing to be used by volumes of through traffic. No Bailey bridging is available for a crossing."
I find that pursuant to that request the plan which forms part of these reasons for judgment was drawn up and sent by the Division Engineer (Planning and Design) to the Division Engineer (Bridges) with the following note:
"This is to confirm that upon provision of signs indicated on the attached plan 3758–1P2 the temporary crossing can be used by through traffic in lieu of the temporary signed route now in use."
I also find that, by 22 April 1977 all of the signs shown on the plan were placed in the approximate positions indicated on the plan, the side track connected to Derwent Park Road at both ends and that thereafter, Derwent Park Road and the side track were used by employees and others to gain access to and from the Zinc Works and in particular, to the car park marked on the plan.
At the time of the accident Smith had been employed at the Zinc Works for approximately 2 or 3 years. He was a shift worker employed initially in the Roasting Division and subsequently in the Acid Plant. Every work day (except between 7 February and on or about 27 April 1977) he travelled along Derwent Park Road and parked his car in the car park shown on the plan. He returned home at the end of his shift by the same route.
Smith said that the side track was constructed partly of bitumen and partly of gravel and that its surface gradually broke up over the period of time it was in use. He said that he considered the side track to be a temporary continuation of Derwent Park Road and he thought that the whole of that road between the two points of intersection with the side track was closed to enable the bridge works to be carried out. An examination of the plan shows that this assumption was wrong for Derwent Park Road remained open between its south west junction with the track and a point just past the road marked "RD TO SUPERPHOSPHATE PLANT". Smith said that a mound of gravel, inferentially thrown up by traffic entering and leaving the side track at its south west junction with Derwent Park Road, formed a curve across Derwent Park Road marking a continuation of the southern edge of the side track leading on to that road. I find, from the existence of this curve of gravel, that the majority of the traffic left Derwent Park Road and followed the side track and comparatively few vehicles continued along the road past the south west junction with the track towards the bridge and "RD TO SUPERPHOSPHATE PLANT".
For traffic leaving the Zinc Works' car park, the side track dipped down to the railway line and then rose steeply to the junction with Derwent Park Road. The visibility for such traffic as it approached that junction was virtually nil until a driver reached the mouth of the junction.
Smith said that after finishing work at about 7.45am on the day of the accident, he drove from the car park along Derwent Park Road and down the side track in the direction of the Russell Roundabout. Although he had virtually no memory of the events shortly after crossing the railway line, he said that it was his habit to drive along the side track at about 20 miles per hour and, on the assumption that Derwent Park Road was closed at its south west junction with the track, he regularly drove without pause, out of the junction and followed the curve marked by the thrown up gravel back on to Derwent Park Road.
On 16 September 1977 his vehicle came into collision with Woolley's truck as he was following round that curve. Woolley was travelling in the opposite direction, going past the entrance to the side track and intending to go up the "RD TO SUPERPHOSPHATE PLANT". The right front corner of the truck came into collision with the driver's door of the Falcon. I infer that after the initial impact, the Falcon continued on for a short distance as the damage to the car continued down the right hand side.
At this stage it is necessary to make some findings with respect to the sales of fertilizer from the Zinc Works. In this respect I accept the evidence of Mr Hanley who was in charge of sales of superphosphate until 1974 and thereafter, was the Workers' Compensation Officer at the Zinc Works until his retirement in 1985. There were several points of access to the Zinc Works for trucks collecting superphosphate and other fertilizers. The main access point was located near the car park. It is not marked on the plan. During most of the year, the "RD TO SUPERPHOSPHATE PLANT" was closed. However, during periods of heavy demand, principally between about September and December each year, access was also gained along that road. To avoid queues, persons wishing to collect fertilizer were required to telephone the EZ Company and make an appointment for a time to collect fertilizer. Sometimes, when an appointment was given, a direction was also given which access point had to be used.
Woolley was an orchardist and grazier. He had been purchasing superphosphate and fertilizer from the EZ Company for many years prior to the accident. For approximately six years before the accident he had collected his own fertilizer. He said that about ten times in the spring or autumn of each of the few years before the accident he had driven his truck to the Zinc Works to collect fertilizer.
In 1977 he placed an order for fertilizer from the EZ Company and, shortly before the accident, telephoned for an appointment to collect it. Woolley said that he was given an appointment for the morning of 16 September 1977 and told to use the "superphosphate entrance". Over the years he had used all the various access points for the collection of fertilizers and, as a result of his prior experience, understood the reference to "superphosphate entrance" to be a reference to the entrance marked on the plan "RD TO SUPERPHOSPHATE PLANT".
On the morning of the accident Woolley drove his 8 ton Commer truck from the Russell Roundabout along Derwent Park Road towards the Zinc Works. He was unaware of the existence of any bridge works until he saw a sign to that effect. Not surprisingly after this lapse of time, he was unable to recall exactly what signs he had seen or what each sign said but, I find that he saw or ought to have seen all of the signs marked on the plan to the south west of the junction of the road and side track.
Woolley said that he drove past the signs at a maximum speed of 40 kilometres per hour. I have little confidence in the accuracy of his memory and consequently am unable to make any specific finding with respect to his speed as he approached the south west junction of Derwent Park Road and the side track.
By reason of his familiarity with Derwent Park Road, I find that Woolley knew where the road passed over the railway track and that he would reach the entrance he intended to use before he reached the overpass. I also find that he knew or ought to have known from the signs that he passed or was approaching that work was being carried out on the overpass and that there was a side track in the near vicinity of that overpass and the entrance he was intending to use. The existence of the curve of gravel leading across Derwent Park Road to the side track would have alerted a prudent driver to the probability that a considerable volume of traffic was using the side track. Woolley failed to notice this curve of gravel. However, I accept his evidence that he assumed, as was the fact, that there was no work being done by the PWD which would impede his use of the "RD TO SUPERPHOSPHATE PLANT".
I find, in accordance with Woolley's evidence, that he failed to see either the junction or the curve of gravel sweeping across the road in front of him and leading into the side track. I also find that as Woolley negotiated the gradual bend in Derwent Park Road just before and across its junction with the side track, he was looking ahead at the "Road Closed" barrier and the flashing lights just past the "RD TO SUPERPHOSPHATE PLANT". At that stage, in his peripheral vision, he saw Smith's car as it came out of the junction and across his path along Derwent Park Road. Woolley did not see Smith's car until it was too late to avoid a collision. As soon as he saw it he slammed on the brakes and pulled the steering wheel to the right but it was then too late to avoid the collision. I find that Woolley was negligent in that he failed to keep a proper lookout in all the circumstances. He ought to have been keeping a lookout for the junction because the signs alerted, or should have alerted him to its existence and location. He ought to have seen and noted the significance of the curve of gravel across the road in front of him. Although visibility into the side track was extremely limited, a prudent driver in Woolley's circumstances would have seen the side track and, because of the traffic signs and the curve of gravel, looked down it conscious of a substantial risk that traffic may proceed out of the junction without stopping. Had Woolley done this and adjusted his speed to avoid that risk, the probabilities are that he would have seen Smith earlier than he did and in his direct vision, factors which together, would have enabled him to avoid the accident.
I also find that Smith was negligent. I find from his evidence concerning his habitual course of driving and Woolley's eye witness account, that Smith proceeded straight out of the junction without slowing or taking any other step to avoid either, traffic proceeding as Woolley intended to proceed, or traffic proceeding in the opposite direction from the "RD TO SUPERPHOSPHATE PLANT". Smith was not entitled to make the assumption he did that no traffic would go along Derwent Park Road in either direction past the junction. Further, in the absence of any sign assigning priority to either the side track or Derwent Park Road, Smith was under a general duty of care to give way to Woolley who was on his right as he entered Derwent Park Road. However, in the circumstances of the road works, and traffic predominantly using the side track, the breach of the obligation to give way to traffic on the right assumes less significance than would have been the case if it had occurred at an ordinary road junction unassociated with any construction works.
The PWD owed a duty of care to both Smith and Woolley. In Buckle v Bayswater Road Board (1936) 57 CLR 259 Dixon J (as he then was) said at p283:
"But while a road authority owes to the members of the public using a highway no duty to undertake active measures whether of maintenance, repair, construction or lighting in order to safeguard them from its condition, on the other hand it possesses no immunity from liability for civil wrong. ... But a road authority in doing them [authorised interferences] must take due care for the safety of those using the highway and is not protected if it creates dangers which reasonable care and skill could avoid. Because the road is under its control, it necessarily has an opportunity denied to others for causing obstructions and dangers in highways. But when it does so, the road authority is liable, not, I think, under any special measure of duty which belongs to it, but upon ordinary principles. These principles include the rule that to render the highway unsafe is to permit a nuisance, and that to execute unauthorised works without due care and skill for the safety of others leaves an action to anyone who suffers a consequential injury."
The above principle was approved in Webb v State of South Australia (1982) 43 ALR 465. In their joint judgment Mason, Brennan and Deane JJ, at p466 applied the principle expressed in Wyong Shire Council v Shirt (1980) 29 ALR 217 and said at p467:
"The respondent created the danger by its artificial construction in the highway. In this situation the application of a reasonable standard of care calls for the elimination of risk of injury to users of the highway presented by that artificial construction, the more so where elimination of the risk can be achieved without undue difficulty and expense."
From the correspondence referred to earlier I find that in about April 1977 the original decision to close Derwent Park Road to traffic except that going to and from the abattoirs, was revoked. In the knowledge that the road was to be used by "volumes of through traffic" the PWD constructed the side track to bypass the section closed for bridge work and erected the signs as shown on the plan. It knew or ought to have known that this traffic would include not only the employees but also heavy vehicles calling in to collect fertilizers. Having decided to leave open access to the "RD TO SUPERPHOSPHATE PLANT", the PWD knew that not all traffic would use the side track and that some of it would proceed past the junction as Woolley intended to do and return. The PWD knew or ought to have known that by reason of those matters and the use of the area by "volumes of traffic" there was a foreseeable risk of injury, neither fanciful nor far–fetched, of a collision between vehicles at the junction. Visibility into and from the side track was extremely limited. The risk could have been eliminated or substantially reduced by the erection of one or two extra signs which either assigned priority of use between the side track and Derwent Park Road or alerted users of the side track to the risk, not readily apparent, that traffic might proceed across the junction towards the bridge works.
It would have been simple and inexpensive to erect such signs and, had this been done I am satisfied that Smith would not have proceeded on the assumption that no traffic would go across the mouth of the junction and/or Woolley would have been alert to the risk of vehicles emerging from the junction, and across his path.
Damages
Agreement was reached with respect to the quantum of all claims except Smith's claims for damages for:
(a) pain, suffering and loss of amenities of life;
(b) diminution of earning capacity from the date of judgment;
(c) future medical expenses.
Smith was born on 22 November 1949. He was almost 28 at the time of the accident and is now 41 years of age. His formal education ended at grade 9 and thereafter, Smith has always been employed in work involving manual labour. He has by experience acquired the skills of a motor mechanic sufficient to enable him to recondition an engine, gear box, transmission and differential. The plaintiff is married and presently living with his wife and four of his six children at Mt Isa, Queensland. From his work history, demeanour and evidence the plaintiff impressed me as being a conscientious, hardworking man determined to overcome his disabilities.
In the accident he sustained serious injuries. They were a fractured pelvis, ruptured urethra, contused lung, lacerations and a severe impact injury to the right knee. He was an in patient at the Royal Hobart Hospital from 16 September 1977 to 30 September 1977. During this time he suffered considerable pain. The lacerations, fractured pelvis and contused lung healed without incident. In December 1977 a urethral stricture occurred and he underwent an extremely painful procedure to rectify this problem. Ever since, Smith has suffered from the inconvenience of delay and some loss of control in passing urine. I find this condition to be permanent.
In the long term, the most serious of his injuries turned out to be the impact injury to his right knee. It has left him with a permanent disability which I find, on the balance of probabilities, will worsen with the passage of time. Because of pain and restriction of movement in the right knee, Smith was re–admitted to the Royal Hobart Hospital on 14 December 1977 and underwent a right medial meniscectomy. The pain and restriction remained, so on 16 February 1978 he was admitted to Calvary Hospital where the right lateral meniscus was removed. Although this resulted in some improvement to the right knee, pain and restriction of movement persisted and Smith was admitted to hospital again. A lateral quadriceps release procedure was carried out following an arthroscopy on 13 June 1978. All the operations to the knee were designed to reduce the pain and increase movement. Smith gained considerable benefit from these procedures and associated intensive physiotherapy but pain and limited movement remained. Smith was obliged to take analgesics for the relief of this pain.
In February 1979 Smith returned to work. During much of the time before his return to work Smith's pain and disability made him short tempered. He felt "useless" and was dependent on his wife to drive him to consultations with doctors and physiotherapists. His irritability and disablement had an adverse effect on the relationship with his wife and children. Smith ascribed a later separation from his wife to this state of affairs but I am not satisfied that it caused the separation although, no doubt, it was a contributing factor.
Although Smith returned to the Acid Plant at the Zinc Works in February 1979, his duties were of a light nature, checking temperatures, water levels and the like. Notwithstanding the light nature of this work, his return to work exacerbated the symptoms of pain in the right knee to such an extent that in December 1979 he had to re–enter hospital. The patella was removed. Notwithstanding this procedure and subsequent physiotherapy, the EZ Company considered that Smith was unfit to return to work and in May 1980 his employment at the Zinc Works was terminated.
Smith then made extensive, but unsuccessful, efforts to obtain other employment both in Tasmania and in other States. By this time, although not pain free, Smith's right knee had improved to the degree that he felt he could return to work. Because Smith felt unable to face the rest of his life on "the dole or a pension" he returned to Tasmania and made a personal approach to the general manager of the Zinc Works for re–employment. Before the accident Smith had shown considerable courage following an accident at work by remaining in a position of personal danger long enough to shut down various valves and taps to reduce the risk of injury and damage. As a result of this conduct the general manager intervened on Smith's behalf and in result he was re–engaged by the EZ Company. Smith was assigned to work in the Cell Room and, although slow, managed his duties. However, Smith found that his right knee was weak and occasionally "locked up". Carrying loads and climbing ladders was difficult. With the resumption of work came an came an[i] increase in pain and, in the end, Smith was discharged from the Zinc Works on 12 July 1982. It was shortly after this that he and his wife separated.
Smith's father worked at Port Huon as a waterside worker and as a result of his intervention Smith also obtained employment there for a short period of time. He was able to do this work albeit with pain in the right knee. At the end of the job at Port Huon Smith was unemployed. Again he went to other States to try and find work. Eventually, through the good offices of a friend and by remaining silent about his disability, Smith was able to get work in the mine at Mt Isa. He started there on 14 January 1983 and has remained there ever since.
Prior to the accident Smith had worked as a miner at Rosebery and had some experience in the mining industry. For the first three months at Mt Isa he was "nippering". This involved driving a vehicle underground delivering materials for use by the miners to various locations throughout the mine. In order to earn more money, at the end of three months Smith started work as an underground miner.
At Mt Isa, the mining work is done on a contract basis. Each year, an agreement is struck for a rate to be paid for ore mined. This agreement is made between the management and a team of six miners. The team work in pairs, one pair on each shift. The work is arduous and each member of the pair is dependent on his mate. Smith said that he was able to do this work but it exacerbated the pain in his knee and necessitated him taking considerable quantities of analgesics. I am in no doubt that the amount of money a contract miner is able to earn at Mt Isa and Smith's determination were major factors in his ability to persist with this work.
After 4½ years mining, Smith became, and has since remained, a cable bolter. Like the miners, cable bolters work on contract in teams of six, two on each shift. Basically, a cable bolter is required to thread high tensile steel wire into holes drilled in the rock surface. Concrete is then pumped in to fix the cable in the hole. Steel plates are fixed to the protruding end of the cable and jacked up hard against the rock face. The object of the exercise is to strengthen the roof and walls of the tunnel to prevent collapse. It is hard work. Smith said, and I accept, that he depends to a considerable degree on his mate doing the heaviest part of the work. His mate is 22 years old and they were described by Smith as "being like brothers". However, as payment is made according to the amount of work done by the whole team, a member who is not able to contribute his fair share of the work is often expelled from the team by the other members.
I accept Smith's evidence that he is unable to squat or kneel. Pressure on the right knee joint, such as is required to push cables into the holes in the rock face or lift heavy weights, causes pain. Walking on uneven or sloping ground causes pain. Smith experiences difficulty in climbing ladders. Occasionally, Smith's right knee will "lock" in one position and remain in that position for half a minute or so. The right knee joint lacks stability. In recent times, Smith has minimised his use of analgesics and instead, had regular injections from a local medical practitioner to obtain partial relief from pain.
On occasions, Smith has been compelled to take time off work because of persisting pain in the right knee.
By October 1988 the condition of the joint had deteriorated to such a stage that Smith was admitted to the Mt Isa Base Hospital for an arthroscopy. Whilst there, a cartilage flap was removed. Smith was off work for 12 or 14 weeks. The procedure and subsequent physiotherapy improved the knee but pain and disability still remained.
I accept the medical evidence that in the accident, Smith's right knee suffered extensive damage. There is now something in the order of a 30% loss of function of the joint. Post traumatic osteo–arthritic changes are present and the articular surface damaged. Lack of lubrication of the joint with synovial fluid is the result of the removal of the menisci, and loss of stability due to the lateral quadriceps release and the patellectomy.
Mr Turner, orthopaedic surgeon, thought it unusual, having regard to the condition of the knee, that Smith was able to do the work he did.
I find that the degeneration of Smith's right knee will progress to the stage when it will be necessary for him to undergo major surgery. When this will occur is difficult to say but there is a substantial risk that it will be before he is 50. The need for surgery will depend upon his own assessment of the level of pain.
The indicated surgery is either an arthrodesis or an arthroplasty. The former procedure involves fusion of the knee joint a few degrees off full extension. The latter is the replacement of the damaged joint with a prosthesis. The advantage of the former procedure is that it will result in a pain free, stable knee. The disadvantages include an immovable joint and shortening of the leg. The advantage of the arthroplasty is that it will provide Smith with a knee capable of almost full movement and, if the procedure is totally successful, free of pain. The disadvantages are that the prosthesis will not be as strong as either a normal or an arthrodesed joint and there is a risk that it will have to be replaced during Smith's lifetime.
Following either procedure Smith would be ill–advised to engage in the sort of strenuous labour he is presently engaged in. Mr Turner said:
"Both operations have their advantages I suppose, depending on how you look at it. An arthrodesis provides a stiff knee of course, but it's painless and of course it's stable which means that it's strong. It will withstand a certain amount of knocking around, but of course, it makes it difficult to do such things as climb a ladder or drive machinery or sit in a confined space or whatever, if you've got a stiff knee. A knee replacement on the other hand maintains mobility; hopefully, also relieves pain but of course, it's not as strong as an arthrodesis because you are dealing with a man made prosthesis which is only as strong as its component parts and basically, I don't think that people should undertake manual labour if they've undergone a total knee arthroplasty or any sort of total joint arthroplasty for the reason that ... simply because the risks of damage to the prosthesis are significant and it's not always an easy operation to revise if something falls to bits."
From the foregoing, it would appear that there is a substantial risk that Smith will be unable to earn income as a miner or cable bolter until he reaches the age of 65. Whilst that is no doubt correct, Smith's evidence established that, even if the accident had not intervened he would not have worked as a miner or cable bolter until 65. Smith said that the oldest miner he knew is 53 and that the average age of his team is 35. When the majority in a team decide that one of their number is no longer making a fair contribution to the work of the team, he is taken off mining or cable bolting as the case may be. There is employment available at the mine for such persons timbering, at a bench or in the crib room. To date, Smith has twice been warned by the other members of his team that he has to do better.
With respect to diminution of earning capacity, Smith's claim falls to be assessed:
1On the basis that, between now and the age that he would have stopped work as a miner or cable bolter had the knee injury not been sustained, there is a substantial risk that he will be unable to derive income as a miner or cable bolter by reason of the tortiously caused injury. I assess that period to be in the order of 8 or 9 years.
2On the basis that, by reason of his existing disabilities, their likely exacerbation and the probability of arthrodesis or arthroplasty sometime in the future, a range of opportunities to utilise his capacity to earn income from manual labour will be closed to Smith.
However, it is clear that Smith has and will continue to have an ability to derive income from his residual earning capacity. Smith's will to work will find him employment whether or not he undergoes either of the surgical procedures I have referred to. However, I do not overlook the fact that unskilled middle aged men with a physical disability are an "odd" lot on the labour market and Smith faces the prospect of periods of unemployment. Hospitalisation and a subsequent period of recovery associated with the arthrodesis or arthroplasty procedure will deprive Smith from earning income for a period in the order of five months.
Assessment of damages under this head requires an exercise of judgment, not mathematical calculation.
There was no precise evidence of Smith's present income but, from a group certificate tendered in evidence, I find that for the financial year ending 30 June 1990 Smith earned an average net weekly income of $762.00. There was no evidence of the wages of men working at Mt Isa timbering, at a bench or in the crib room, but I infer from Smith's evidence that it is considerably less than the amount he is presently earning.
Taking all these matters into account, a deduction in the order of 15% for contingencies and a discount for early payment, I assess Smith's damages for future diminution of earning capacity at $150,000.00.
The unchallenged evidence was that the present cost of either an arthrodesis or an arthroplasty is in the vicinity of $8,000.00 to $10,000.00. In addition, an allowance must be made for the future cost of analgesics and/or pain killing injections, at least until the surgical procedures are undertaken. This sum must be discounted for early payment. For future medical expenses I assess Smith's damages at $11,000.00.
In addition, Smith is entitled to recover damages for pain and loss of the amenities of life both past and future. Since the accident, he has undergone continual, and at times, extreme pain and disability. This will not only continue but worsen until the arthrodesis or arthroplasty. There is a risk, although not high, that if arthroplasty is the chosen procedure the result may not be an entirely pain free joint. Smith's disablement has affected the relationship with his wife and children although the evidence is that he is now reunited with his wife. The pain has had, and will continue to have until surgical intervention, a debilitating effect on his general enjoyment of life. Bearing in mind the insult to his bodily integrity but taking care not to overlap the various heads of damages, I assess Smith's general damages in the sum of $20,000.00. Smith's right knee bears the scars of the various operative procedures. He claimed that they were unsightly and occasionally embarrassed him but although I have taken these scars into account I did not see them as any serious cosmetic disability.
In summary then, I find Smith's damages to be as follows:
Future diminution of earning $150,000.00
capacity
Past diminution of earning $ 48,684.39
capacity (agreed)
Past hospital and medical $ 5,547.00
expenses (agreed)
Past travelling expenses (agreed) $ 3,758.00
Future medical expenses $ 11,000.00
General damages $ 20,000.00
Repairs to motor vehicle $ 700.00
Total $239,689.39
Rounded off to $239,700.00
Woolley's claim for the cost of repairs to his truck was agreed at $568.00.
It was agreed that the amount of compensation paid by the EZ Company to Smith was $36,331.00.
Apportionment
The Tortfeasors and Contributory Negligence Act 1954, s4(1) provides that:
"4 – (1) Where a person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of that damage is not defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage;"
Primarily, liability for this accident must lie with the Attorney–General, for the PWD formed the dangerous junction as part of the bridge works and created a clearly foreseeable risk of injury which could have been avoided at minimum cost and trouble. If the PWD had properly regulated the junction neither Smith nor Woolley would have been put in the dangerous situation each found themselves in and which, by reason of a failure to keep a proper lookout on the part of both, caused the accident.
Having regard to the extent of Smith's responsibility for the injuries and damages suffered it is just and equitable that the sum assessed be reduced by 25% or $59,925.00 to $179,775.00. In accordance with the Workers' Compensation Act, 1927, s8G(1) that sum must be reduced by the compensation received by Smith and agreed at $36,331.00 to $143,444.00.
In accordance with the provisions of the Workers' Compensation Act, s8H(3) the EZ Company's claim must be reduced in like proportion as Smith's claim, namely 25% or $9,083.00. In result, the EZ Company is entitled to recover $27,248.00.
Applying the provisions of the Tortfeasors and Contributory Negligence Act, s4(1) Woolley's damages should be reduced by 20% or $113.00 to $455.00.
Woolley's claim for the cost of repairs to his truck, allowed at $455.00 was made against Smith only. Woolley is entitled to judgment against Smith for that sum. In the same proceedings Smith claimed indemnity or contribution from the Attorney–General. Consistent with the apportionment I have made pursuant to the Tortfeasors and Contributory Negligence Act, s4(1), I find, pursuant to s3(2) that it is just and equitable that Smith recover contribution to an extent of 75% of the sum of $455.00 from the Attorney–General or $337.50.
The claim of the EZ Company, allowed at $27,248.00, was made against Woolley and the Attorney–General. The EZ Company is entitled to judgment against both defendants for that sum. On the proceedings for contribution between defendants I apportion contribution 80% against the Attorney–General and 20% against Woolley.
Smith's claim was made by way of counterclaim against Woolley in one action and against the Attorney–General by way of statement of claim in a separate action. Smith is entitled to judgment against both defendants in the sum of $143,444.00. It appears that in the action brought against him, the Attorney–General sought contribution against Woolley by way of third party proceedings but, in the counterclaim against him, Woolley has claimed no contribution from the Attorney–General.
In the circumstances it is appropriate to postpone the entry of final judgment until after counsel have studied these reasons and been given an opportunity to be heard with respect to the judgments and orders that should be made.
Sic.
Press ESC to exit Popup
0
1
0