Tapp v Devlaun Pty Ltd
[1990] TASSC 126
•24 August 1990
Serial No B49/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Tapp v Devlaun Pty Ltd [1990] TASSC 126; B49/1990
PARTIES: TAPP
v
DEVLAUN PTY LTD
FILE NO/S: 3397/1984
DELIVERED ON: 24 August 1990
JUDGMENT OF: Neasey J
Judgment Number: B49/1990
Number of paragraphs: 28
Serial No B49/1990
List "B"
File No 3397/1984
TAPP v DEVLAUN PTY LTD
REASONS FOR JUDGMENT NEASEY J
24 August 1990
The plaintiff sues the defendant company for damages for personal injury suffered by him when working as the defendant's employee on 27 July 1984. The plaintiff was at that time employed by the defendant as a storeman–driver in its business of transporting goods and fruit from a warehouse or depot at Moonah to various retail outlets around Hobart and suburbs. These goods were carried in bins, most of which were owned by the defendant, and were of a standard type of construction. A minority of the bins carried, however, mostly in cases where fruit was being transported, belonged to the growers who had sold the fruit to the defendant for delivery and sale on to retailers, or on whose behalf the defendant was acting for such delivery. The particular contractual arrangements between defendant and grower are not clear from the evidence, but that is not material. The evidence showed that the defendant's bins and those of the fruit producers differed in certain details of construction, which in the circumstances of this case are material.
All of the bins were approximately 117 millimetres in length and breadth and 750 millimetres in height. They were all constructed of pine and had a bottom but no top. The two significant differences in construction were that the "Devlaun bins" had angular metal reinforcements at the corners, and also had two–way openings under the bottom of the bin, into which the tines of a fork–lift or similar machine could be inserted so as to raise and transport the bin; whereas the "grower bins", or at least the particular grower bin involved in this accident, had no metal corner reinforcements, and also had one–way openings under the bottom, so that the tines of a fork–lift could only be inserted from two opposite sides instead of all four. By metal corner reinforcements, I mean that the corners of the bin where the sides met were so reinforced from top to bottom.
On the day in question, the plaintiff's job was to drive the defendant's truck from the depot at Derwent Park to a Coles supermarket at Rosny, with a load of at least two partly loaded bins, or perhaps more. The evidence does not make clear exactly how many bins were carried on that journey, though there may have been more than two, and up to six, which is the maximum for the floor area of the tray of the truck. The plaintiff drove the truck alone. His job at the point of delivery was to assist a person or persons there to unload the bins. At this particular delivery point at the Coles supermarket, there was an unloading bay, in which a metal platform had been installed which could be raised and lowered hydraulically to assist unloading. The unloading method was that the truck would be backed up to or placed alongside the platform, so that when the latter was raised to the same level as the tray of the truck, a hydraulically operated pallet lifter which had been taken up with the platform could be used to take the pallet on to the platform and thus down to ground level. The hydraulic platform and the pallet lifter are shown in photographs tendered in evidence. The pallet lifter has tines like a fork lift truck, and its lifting mechanism is worked by the single operator who uses it to unload the pallets. The method is for the operator to come up on the platform with the pallet lifter, wheel the lifter on to the tray of the truck, adjust the tines under the bottom of the pallet through the openings provided there, wheel the lifter and pallet back on to the platform and descend to ground.
The way in which this accident happened was as follows. The plaintiff, who rightly understood his job included assisting in the unloading operation at the delivery point, saw that a grower bin which was partly loaded with about 160 kilograms of apples was placed askew on the tray of the truck, so that the pallet lifter would not be able to be easily and conveniently fitted under the bottom of the bin unless the bin was manoeuvred into a more favourable position, or unless the pallet lifter itself was manoeuvred into position on the truck tray. The plaintiff therefore, standing on the ground, began to push the grower bin into a more favourable position, so that the pallet lifter could be wheeled off the platform and have its tines placed under the bin with the least difficulty and most convenience. The only evidence which described in detail how the accident happened was that of the plaintiff himself. He stated, and I accept, that his memory is, generally speaking, poor, and he was somewhat vague and uncertain as to how, precisely, he was pushing and adjusting the bin, and how the accident happened. However, I regarded him as a witness of truth, doing his best to recall and describe what had occurred. What I am able to find as probable fact, from his description, is as follows. Whilst pushing the bin into a better position, part of it caught against the slightly raised outer edge of the tray of the truck. Thereupon he found it necessary to climb on to the tray and pull the bin into the position he wanted. He took hold of the top rail of one side of the bin and pulled on it, exerting considerable force. This pine rail or plank almost immediately gave way, and with the force he was exerting, he fell backwards off the tray of the truck, which was about four feet above the ground, and struck his head on the ground. In this fall, the plaintiff received what his counsel described in lay terms as a broken neck. The nature of the injury and disabilities he incurred will be described in more detail later.
In his statement of claim, the plaintiff alleged failure on the part of the defendant to provide a proper and safe system of work, proper tools and equipment and the like, failure to instruct properly as to the work to be done, and many other specific alleged breaches of the contract of employment and examples of negligent conduct on the part of the defendant, as well as breaches of statutory duty. However, I need not go into the full details of these, because in substance I find that the case depends upon whether the defendant was negligent in failing to provide a reasonably safe and secure bin as part of the equipment provided, and which was in turn part of the system of work the plaintiff was obliged to do. The plaintiff did not establish negligence in any other respect. The plaintiff alleges a failure to give proper instructions as to the work, but I am satisfied, first, that little in the way of instruction was needed as to the plaintiff's duties at the point of delivery because of the simple nature of the job; and second, that if the plaintiff had been given definite instructions as to what he was to do in order to assist unloading at the delivery point, he might well have been told to do what he was doing when the accident happened. That was, what he reasonably could to assist the unloading process, including, if necessary, manoeuvring the bins into position to allow quicker and easier engagement of the lifting pallet with the bin.
All I am able to find as to what the plaintiff was instructed by his immediate boss, the foreman, in this respect, is that he was told in general terms that the job was to be carried out without any undue loss of time, and that he was to give general assistance in unloading. It was the foreman, incidentally, who had loaded or seen to the loading of the pallets on to the truck tray on the occasion in question. No one else gave him any instructions. I find further that in doing what he did to try to manoeuvre the bin into position, the plaintiff was complying with his general work instructions, and, moreover, was giving the only kind of practical assistance he could have given in the circumstances.
I am satisfied that the defendant was negligent in failing to provide reasonably safe and secure equipment for the carrying out of the plaintiff's work, and that such negligent failure was the cause of the accident. It was the sort of accident which could easily have been foreseen by the defendant if it had given proper thought to the provision of secure equipment. The contrast between the structural strength of the defendant's own bins and the grower bins points up the failure. It is easy to infer that the metal reinforcement at the corners of the Devlaun bins is placed there in order to provide structural strength to the bin, such as to preserve the contents and prevent damage to the bin. Whether the design also has in mind the safety of the worker in the sort of context in which this accident happened would be a matter of speculation, but the effect of the reinforcement certainly is to provide such safety. It is a reasonable inference that had the grower bin involved in the accident been reinforced in that way, an accident of this kind would have been most unlikely. The defendant's specific failure in the provision of a safe system of work including the use of safe and secure equipment, was in allowing the grower bins to be used at all, or if they were to be used, in failing to provide for some system of inspection or the like which would have ensured that the grower bins were safe to use.
Furthermore, I find that what the plaintiff did in pulling on the top of the bin in order to manoeuvre it into position was the sort of action which could easily have been anticipated, as could the result which followed, when the top rail of the particular bin gave way, obviously through weakness of nailing or the like, and the plaintiff tumbled backwards off the tray of the truck. There was no evidence of any system of inspection, though there was some evidence that the growers were expected to keep their own bins under observation, and not to provide bins that were unsafe or damaged. The latter, however, can make no difference to the defendant's liability. In result, I have no doubt that the defendant was relevantly negligent, and is liable.
The defendant alleged that if it was negligent, which it denied, the plaintiff contributed to the accident by his own negligence. It was claimed that the plaintiff was negligent in that he attempted to move the pallet box or bin by hand rather than making use of the available pallet jack, and that he failed to wait for a Coles employee to move the pallet box or bin with a pallet jack. That which I have found already negatives these propositions. That is to say, the plaintiff was acting in the ordinary course of his employment in adjusting the position of the bin so that the pallet jack or lifter could be more conveniently operated by the Coles employee. The plaintiff was in no way negligent in doing what he did, or in the way he did it.
The plaintiff was in hospital one week. It is not clear whether he lost consciousness when the accident happened. He does not think he did. A medical report by orthopaedic surgeon, Mr Bye, dated 14 August 1985, says that on admission he complained of neck, left shoulder and hand pain. X–rays showed a fracture of neural arch C2–3 with some minor subluxation, and an x–ray of his skull showed a minor fracture of the right occipito – parietal region. He was initially managed, said Mr Bye, with bilateral sand bags and when his pain allowed, was fitted with a somi neck brace. Later x–rays showed the subluxation to be reduced and final x–rays showed the fractures to involve the spinous process and laminae of C2. He was discharged from hospital on 3 August, wearing a neck brace, which he was required to continue for five weeks. Mr Bye's report of 14 August 1985 says that the plaintiff continued to complain of discomfort in the neck until early 1985. On examination on 9 August 1985, the plaintiff presented to Mr Bye as a fit male, but was apprehensive with neck movements, which seemed "more voluntary rather than related to neck pathology". He had full flexion and about one–third normal extension, and a half range of lateral flexion and rotation (of the neck). X–rays on that date showed normal mobility, and full extension and full flexion. Absence of significant abnormality around the posterior elements of C2 indicated that the fractures had united. Summarising his examination and consideration of the plaintiff's case, Mr Bye stated that he had suffered a significant injury of his cervical spine, namely of the posterior neural arch of C2. He had been left with little mal–alignment and good fracture healing, though still complained of aches and pains in cervical spine and head following his injury. Mr Bye thought at that time that the plaintiff might well be able to return to his job as a fork–lift truck driver.
Mr Bye examined the plaintiff again on 22 July 1988. The plaintiff was still complaining of neck troubles and headaches, and was taking six to eight Panadol per day. In short, the plaintiff's complaints to Mr Bye at that time were consistent with his evidence. After dealing with details, Mr Bye stated the opinion that from a structural point of view, the plaintiff had settled very well following a potentially disastrous injury. He did not appear to have any significant residua from a hard structural point of view, but was still troubled by neck and headaches and pain, "which quite reasonably are attributed to or arising from his cervical spine". Mr Bye thought that the plaintiff was unlikely to deteriorate further structurally (the plaintiff was, as Mr Bye noted, satisfactorily employed at the time, but since then, he has had to give up employment). Mr Bye thought it would be sensible for the plaintiff not to be further involved with work necessitating constant driving. Continuation of his then type of employment, which was with Bestobel, would be appropriate for him. Then later, on 9 January 1990, Mr Bye saw the plaintiff again. His complaints of neck pain and cervical discomfort were continuing. He had had to give up indoor cricket and was unable to jog, and was suffering from frequent generalised headaches and had difficulty sleeping. He also complained of pins and needles in the right forearm and to some extent in the left hand. He also complained of knee troubles, which he told Mr Bye he thought might be due to having had rheumatic fever as a child. Overall, Mr Bye thought the plaintiff was doing poorly from a symptomatic point of view, and was probably unlikely to return to normal employment. He was unable to find any serious structural problem, but thought the plaintiff was likely to be genuine in his complaints, though undoubtedly there was a psychological component. In cross–examination, Mr Bye said that he was unable to explain the pins and needles as being probably connected with the accident, and he thought the knee pains were not connected. Mr Bye agreed that when he saw the plaintiff at his last examination early in 1990, the plaintiff's perceived symptomology was worse than it had been at earlier examinations.
Neurosurgeon, Mr Liddell, saw the plaintiff, at the request of plaintiff's solicitors, in August 1988. He thought then that the plaintiff did not appear capable of returning to work as a truck driver, and that he was continuing to experience significant disability as a result of the injuries sustained in the accident. Mr Liddell also thought, according to his written report, that the plaintiff's injuries had stabilised, that he had an apparent depressive reaction which it was reasonable to attribute to the accident, and that some further neurological investigations would probably be justified. He saw the plaintiff again in January 1990. The plaintiff's complaints were of on–going symptoms, much the same as at the earlier examination, except that he thought his neck pain was worse. Mr Liddell adhered to his previously expressed opinions.
Two psychiatrists also gave evidence. Dr Burges–Watson, after a long written report, described the plaintiff, in a manner which the evidence as a whole appeared to confirm strongly, as "a generally vulnerable personality with life–long problems with his confidence, associated particularly with his deafness. He could, in these circumstances, be expected to cope less well with a chronic disability than a more robust character". However, having only seen the plaintiff for the first time in May 1990, Dr Burges–Watson at the time of trial found himself unable to express concluded views about the plaintiff's condition without further investigation. Dr Ian Sale, psychiatrist, saw the plaintiff in May 1990, and supplied a comprehensive written report as to his assessment. He then stated the opinion that the plaintiff showed many features suggesting a depressive disorder, but thought the duration of the depressive state difficult to estimate. He thought the presence of a depressive disorder would aggravate the plaintiff's perception of pain and disability, and work against his chances of rehabilitation. The doctor stated, "in his current state – depressed, separated, problems with alcohol, chronic pain – he would constitute a significant risk of suicide if he remains untreated." He thought the most significant cause of the depressive disorder appeared to be the accident in question and the pain and disability which ensued. He thought the plaintiff should have treatment consisting of counselling and anti–depressant medications, which should go some way to ameliorate his problems.
The plaintiff said that after his accident, he had continuous headaches. He was fitted with a neck brace, which he said he wore for twelve months. However, the medical reports by both Mr Bye and Mr Liddell say that he wore the brace for three months. I regard the latter as more reliable, and accept three months as the period. However, I do not treat the plaintiff's inaccuracy as anything more than that. With his admitted poor memory, and a general air of vagueness and uncertainty about his evidence, I treat little of what he said as to remembered detail as accurate. However, I repeat, I did not regard him as untruthful. He said that while wearing the brace he could not bath himself or attend to other details of personal hygiene. His wife helped him in these respects. He was taking many tablets for headaches and suffering with a certain amount of dizziness and lack of confidence.
The plaintiff gave evidence that he has had nagging neck pain ever since the accident, and in recent times it seems to have been getting worse. This neck pain interferes with everyday activities like gardening or lawn mowing, and prevents him from playing sport or jogging. He used to jog to keep fit, and also played indoor cricket, both since the accident, but he had to give those activities up because of the neck difficulty. His neck gives him pain just about all the time. It is a nagging pain, and if he moves his head quickly, he seems to get dizzy. The pain is persistent, it wakes him up during the night, and makes it difficult for him to sleep. He keeps waking up through the night with a headache. He will take a couple of tablets, and eventually get back to sleep, but only for short periods and then has to sleep through the day. He gets moody, short tempered, and depressed. He also gets pins and needles in his hands, and aches in his knee joints. He was 37 years old at the time of the accident, and is 42 years now. He has a child of 2½ years, but has recently separated from his wife. She left him because he assaulted her.
The plaintiff has several chronic problems which are not connected with his accident. He has had a severe hearing disability since he was about 2 years old, probably due to rheumatic fever. He wears two hearing aids. This disability has made it very difficult for him to work in any job which requires communication ability and skills. He believes he has about a 64% loss of hearing in one ear and about 32% in the other. This disability caused him to learn to lip read from about 1986. This was after he had consulted the Commonwealth Department of Community Services and Health, which is concerned with occupational rehabilitation amongst other things. They also advised him about obtaining hearing aids for his deafness. He has a shy and introverted personality, and is a very unconfident person generally. His 64% and 32% hearing defect is without hearing aids, so his effective deafness with them is substantially less than that; but there is no specific evidence of how much hearing aids improve that problem. He has also had tinnitus in his ears since about 1987, and he puts this down to the accident. It is very annoying and depressing. I accept that disability as having been caused by the accident.
Cross–examined about his post–accident disabilities, the plaintiff said that his neck and shoulder hurts and he gets dizzy when he turns his head, and this, incidentally, makes it difficult or impossible for him to reverse a motor vehicle while turning his head. He was rather surprised when the doctor told him he could return to work, because he didn't think he was fit to do so.
The plaintiff has had an alcohol problem for most of his adult life. In recent times he has taken a voluntary course at John Edis Hospital for treatment for excessive consumption of alcohol. He has lost his driver's licence on two occasions for that reason. This problem has been present since he was about 16 years old. He has suffered memory blackouts and other adverse effects from this cause. He hopes that his alcohol problem is "cured now". He also has a urination problem which causes him difficulty and embarrassment. He has had a minor operation done to improve this problem. However, it is not suggested that this was in any way due to the accident. His knee aches and pains began to come on in about 1988. He suffers from an aching back also, but he has had this from well before the accident. He did not think that back aches had ever caused him to stay away from work before the accident.
The plaintiff played indoor cricket for about twelve months since the accident, but he had to give it up in about April 1988, after it became somewhat too strenuous for him, particularly after his team was put up a grade and the physical pressure on him increased. "It was getting more hectic and I couldn't handle it". Jogging, which he used to do, now causes too much discomfort in the movement up and down. He can mow lawns and do other jobs about the house, although sometimes they cause him neck pain. For example, he has trouble starting the lawn mower for that reason. He could not paint a ceiling, for example, because it would strain his neck too much looking up. Driving a truck also would give him trouble because of the up and down movement.
The plaintiff's job history before and after the accident is, in summary, as follows. He left school at 16, when he was in third year high school, at grade 9. His deafness was a problem at school, and he found it difficult to concentrate on the lessons. There was no evidence suggesting that the plaintiff is illiterate, but I infer that his educational standard is barely average. On leaving school, he obtained a job after a couple of months at a place called Heritage Wholesale, and then he left to become a storeman at F R Bye Pty Ltd, where he worked for about eight years, with some gaps when he left there and then returned. He left F R Bye Pty Ltd after he refused to do a particular job because of union demarcation, and was sacked. Usually he worked as a storeman, and had very little unemployment between leaving school and the date of the accident. He thinks about two months was the longest period when he was unemployed, but as was characteristic of most of his evidence, he was not sure. The evidence about his pre–accident employment was rather vague. As I said earlier, I found it difficult to place much reliance on the plaintiff's evidence whenever he was trying to remember the past. When he said he had a poor memory, it was no exaggeration. I think it is probable his alcohol problem has something to do with that, but again there was little definite evidence. The job with F R Bye Pty Ltd was his last one before he commenced with the defendant, which was almost exactly a month before the accident. He had been out of work for two months or so before starting with the defendant. He was a casual employee with Devlaun, though how casual, the evidence does not show. He seems to have worked there for most of the month. The plaintiff said that he always understood he had a permanent job with the defendant, but he agreed it could be that they only called on him when he was needed. In about November "I believe", he was told by his doctor that he could return to work. He went back to working at the defendant's at once, and was given truck driving work, but found himself getting dizzy and experiencing neck pains. On his first day, he lost a load which rolled off his truck. At the end of his first day, he was told that no more work was available for him. Despite repeated calls to the defendant's head office at Devonport, he said, he was not told officially whether or not he was sacked, and was given no satisfaction one way or the other. That delayed his seeking other work. Between the date of the accident and November, he was paid workers' compensation by the defendant. He said that after a week or so, he applied for and obtained unemployment benefits, and then in the following February, he obtained a job with Saveway Stores.
He knew two of the "bosses" at Saveway, and he applied for the job when it was advertised, obtained it, and was given light duties there. It was a grocery wholesale facility. He was working as a pallet jack operator, moving bins of groceries about. He worked there from about March 1985 until Christmas 1986, and was able to carry out that work fairly well. He had a licence to drive their small automatic electric fork truck, but not the big one. The only trouble he had was looking up when he had to lift bins on to the top ramp, because it hurt his neck. He would not drive a fork truck for eight hours a day, because it would give him too much neck pain. He was taking Panadol all the time. It appears from the evidence that he might have stayed at Saveway indefinitely if his employment had not terminated because of their financial difficulties and liquidation. After leaving them, he was on unemployment benefits from Christmas 1985 to March or April 1986. At Saveway, as a storeman, he was earning $20.00 less than he had been paid by the defendant. That was a nett weekly loss of wages. On being retrenched, he was paid four weeks in lieu of wages.
In 1986, the plaintiff made contact with the Commonwealth Rehabilitation Service, and they helped him considerably with his deafness problem. They also helped him to obtain a position with Bestobel Engineering in May 1987 or thereabouts. When he first went to Bestobel, he obtained the job through the Service, and was doing light duties and paid by the "Department of Rehabilitation"; but after a period, a person who was doing an office job there retired and the plaintiff was given the job, and went on to the employer's normal pay–roll. He stayed with Bestobel from about May 1987 to about September 1988, and only left there because they had begun a new superannuation scheme, and he was not able to pass the medical examination required, and for that reason his employment was terminated by the company. When he first went there, he was doing light store duties, including assisting the other storeman, but on occasion he would do semi–office work by way of signing invoices for stock delivered in and the like. After about two months, when the other man retired, he was given his job in the store control section, which was a clerical position.
The defendant called a Mr Kingston, operations supervisor for BEP Engineering Products, which is the Bestobel company under a new name. He said that the plaintiff had performed well in the first phase of his employment with Bestobel and was then given the clerical–type job in the EDP department. This involved costing of invoices from the three Tasmanian branches by taking the cost off a computer monitor and placing it on the invoice. He also wrote out documentation for stock transfers and did other general clerical work. Those duties were performed satisfactorily, but the plaintiff did have trouble with his hearing in relation to telephone communication. The plaintiff worked with the company for 12 to 16 months, but lost his job when Bestobel was taken over by another company and it was made compulsory for all employees to join a superannuation scheme, and the plaintiff was unable to pass the medical examination. The plaintiff confirmed, in his evidence, that he had a good deal of difficulty with telephones, in that the incoming sound caused problems with his hearing aids, and he had trouble communicating. Mr Kingston could not recall having been aware, during the plaintiff's employment, that he had a neck problem.
Some time in 1988, the plaintiff also obtained employment driving a bread van for three days, but he found the driving and reversing hurt his neck, and also putting his head inside the van to get the bread out had a similar effect, and this tended to confirm his belief that he was no longer able to be employed driving a truck. After that, the plaintiff gave up actively looking for a job, believing that no suitable employment would be available for him, and he applied for an invalid pension. That application was made in the first part of 1989, and in April of that year, he was granted that pension.
In summary, the plaintiff has escaped from a potentially life–threatening accident with injuries which although serious, have healed very well, and left him with little in the way of observable structural defects. However, he has been left with persistent chronic nagging neck pain and headaches which afflict him for the greater part of his conscious time, and cause him to sleep poorly. I am not able to find that his "pins and needles", back and knee pains are on the balance of probability attributable to the accident, but the chronic neck and shoulder pains and headaches and tinnitus are so attributable. He also has a depressive disorder which is a result of his "myriad of symptoms", to use Mr Bye's expression, but the largest contributing cause is the effect of the accident. I cannot find, however, that the accident was a precipitating cause of his depression, nor that he would not have been suffering from depressive symptoms had there been no accident. The troubles and separation from his wife, combined with his alcohol, urinary and deafness problems, combined with his lack of confidence may well have produced such symptoms. However, it is reasonable to infer that the chronic pain resulting from his accident contributed substantially to the troubles with his wife. Thus the accident is a substantial factor in his depressed condition.
I find that the plaintiff has lost his ability to work as a commercial vehicle driver, and that this loss represents, say, 90% loss of his income–earning capacity, given his other disabilities and his originally poor aggregation of income–earning skills. It is true that he worked satisfactorily at Bestobel for 12 – 16 months, save for difficulties with telephone communication, and that had not the superannuation difficulty caused his discharge, might have continued to work there for a long time. However, he only obtained that position in the first place through the active assistance of the Commonwealth Rehabilitation Service, who paid his wages for the first period of his employment. I regard his obtaining of that position as a rather fortunate exception to what would have been likely to be a very poor employment outlook at the time he obtained that job. I also have in mind that his employment with the defendant company was as a casual storeman and driver, and that in that particular job his employment may have been a good deal less than full time. One aspect of this is that the court is not assessing his future economic loss in relation to that particular job, but the destruction of such income–earning capacity as he had at the time of the accident. Jobs of the kind he was then doing would have constituted, in my view, close to his last line of available employment opportunity. Miss Twell, a rehabilitation counsellor employed by the Department of Community Services and Health, gave evidence that fit persons with hearing disabilities are relatively easy to find employment for, because jobs in which communication is not a major issue, such as "a whole range of manual activities, factory work, gardening, trades' assistant, trades, and anything of that nature" can be suitable for them. However, when manual activities of that kind become unavailable because of some additional disability supervening, then the employment situation becomes very difficult. The injuries and sequelae arising out of this accident have had the result, I accept, that manual activities of that kind are now in substance and practical effect closed for the plaintiff. That is the general basis of my assessment of the plaintiff's loss of income–earning capacity arising out of the accident as of the order of 90% for the future. He is entitled to receive damages based upon that assessment, subject to future contingencies of life to which he would have been subject had there been no accident.
In relation to such contingencies of life, the plaintiff's situation in my view is that his range of employment skills was substantially limited in the first place, and he has now lost the bulk of what remained to him by reason of this accident. However, had there been no accident he would have been subject to a substantially greater chance of having his income–earning capacity destroyed or badly affected by a range of adverse possibilities considerably greater than that applying to the average fit person. Therefore, whereas with an average person, 15% – 20% diminution by reason of contingencies of life may have been reasonable, in the plaintiff's case I think the figure should be put at 35%. I therefore assess the plaintiff's damages as follows:
Pain, suffering and loss of
amenities of life $15,000.00
Pharmaceutical expenses 1,248.00
Cost of recliner chair 199.00
Cost of jacket to fit over
surgical brace 25.00
Economic loss prior to trial 35,712.32
Future Economic Loss
Net weekly loss at $286.70 per
week for 23 years, using 3%
discount tables $286.70 X 808 = $231,653.60
Less 10% thereof 23,165.36
$208,488.24
Less 35% 72,970.88 135,517.36
$187,701.68
Workers' Compensation and Motor Accident Board payments will have to be taken into account in this calculation. I shall leave it to the plaintiff to move for judgment, on the assumption that the amount to be deducted can be agreed.
0
0
0