Taylor v Park

[2001] QSC 265

SUPREME COURT OF QUEENSLAND

CITATION:

Taylor v Park & Anor [2001] QSC 265

PARTIES:

MICHAEL JAMES TAYLOR
(plaintiff)
v
BRETT DAVID PARK
(first defendant)
SUNCORP METWAY INSURANCE LIMITED
(ACN 075 695 966)
(second defendant)

FILE NO:

S6588 of 2000

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 July 2001

DELIVERED AT:

Brisbane

HEARING DATE:

4 July 2001

JUDGE:

Muir J

ORDER:

Judgment for the plaintiff in the sum of $240,511.94      together with costs  including reserved costs to be assessed on the standard basis

CATCHWORDS:

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where plaintiff form setter suffered musculoskeletal spinal injury – time plaintiff likely to continue in current industry – whether overtime pay in current job can be taken into account – whether plaintiff likely to take up more highly paid employment

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – NON-PECUNIARY DAMAGE – PAIN AND SUFFERING – where plaintiff’s drive to keep himself gainfully employed will increase his level of pain

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – OTHER PECUNIARY DAMAGE – quantum for gratuitous care

Batiste v State of Queensland, [2000] QSC 315, s6547 of 1999, 14 September 2000, cited
Malec v J C Hutton Pty Ltd (1990)169 CLR 638, referred to
Sullivan v Gordon (1999) 47 NSWLR 319, referred to
Villasevil v Pickering [2001] WASCA 143, referred to

COUNSEL:

S C Williams QC and A G Munt for the plaintiff
P A Hastie for the respondent

SOLICITORS:

McInnes Wilson for the plaintiff
Walsh Halligan Douglas for the defendant

The plaintiff’s background and work history

1. The plaintiff was injured on 19 August 1999 in a motor vehicle accident. Liability, originally denied, was admitted by the defendants prior to the commencement of the trial leaving for determination only the quantum of the plaintiff’s damages.

1. The plaintiff was born on 21 January 1962. He left school after completing grade 10 and thereafter was engaged in various types of manual labour including tree lopping, brickies’ labourer and factory worker.

1. He was then employed by an auction house doing odd jobs and general maintenance work for about three years in the late 1980s and early 1990s. Since about January 1997, he has worked for two companies in the construction industry. Until about August 2000, he was employed by the first of those companies as a form setter. After a two week gap in employment he commenced work with his current employer, John Holland Constructions, with whom he has been employed as a form setter ever since.

1. The plaintiff’s work as a form setter involves the following duties –

(a)        Constructing formwork into which concrete is poured for commercial applications. This necessitates considerable heavy lifting including the single handed lifting of steel slims weighing up to 90kgs, steel props weighing up to 60kgs and sheets of ply weighing up to 35kgs on a regular daily basis.

(b)        Cutting, shaping, assembling or nailing using both hand and power tools.

(c)        Levelling surfaces prior to pouring of concrete.

(d)        Guiding shutes bearing concrete from cement trucks during the pouring process.

(e)        Shovelling, smoothing and finishing freshly poured concrete.

(f)        Erecting scaffolding, shoring and braces.

(g)        Grinding concrete surfaces with abrasive tools or machines.

(h)        Dismantling forms and removing projections from concrete. This work necessitates the lifting of heavy objects, often at heights and in confined areas.

The medical evidence

1. In a report of 17 November 2000, Dr Morgan, orthopaedic surgeon, expressed the following opinions concerning the plaintiff’s injuries –

(a)        that the plaintiff’s has probably sustained some form of vertical compression injury to his cervical spine resulting, inter alia, in dual level disc space narrowing;

(b)        that the plaintiff had sustained a fracture of the left clavicle which has now healed;

(c)        that the plaintiff had sustained an injury to the left shoulder joint resulting in rotator cuff tendonitis syndrome with some secondary impingement.

1. Dr Morgan concluded that the plaintiff had lost the last 10% of both left lateral flexion and right lateral rotation of his spine and that he had also lost the last 5% of flexion, abduction and rotation of his left shoulder joint. He quantified the cervical spine injury as a 10% loss of bodily function and the left shoulder injury as a 5% loss of normal upper limb function.

1. In further reports Dr Morgan gave opinions that -

(a)        the additional stresses and strains applied to the plaintiff’s cervical spine as a result of the heavy work engaged in by him as a form setter may have aggravated his condition;

(b)        continuation with the type of work presently performed by him exposes him to the risk of further deterioration of his cervical spine condition;

(c)        it is possible that the plaintiff would be able to continue with work of the nature of that presently performed by him for a further decade. After that time “he would be better served by a redeployment to more sedentary work practices”;

(d)        had the accident not occurred, it is possible that the plaintiff may have continued indefinitely in his former employment without cervical spinal symptomatology of any significance.

1. In his oral evidence, Dr Morgan said that it was difficult to predict how long the plaintiff was likely to be able to continue working as a form setter and that is why he selected a half way point between the present and a normal retirement age of around 60. He confirmed that, whilst there were no contraindications against the plaintiff’s continuing to work as a form setter, that work may aggravate his cervical spine condition, and that his existing condition reduced his efficiency in the work place. He also affirmed his opinion that if he continued in his present occupation his condition would “accelerate at a greater rate than it might otherwise have done”. He also concluded that it was “unlikely” that the plaintiff would be able to continue to cope until age 55 or 60. That opinion, to a substantial degree, was based on his assessment of the pain which the plaintiff was likely to suffer.  He concluded that, in the end result, the point at which the plaintiff ceased heavy manual labouring work was dependent on the plaintiff’s own assessment of whether he felt able to put up with the pain and discomfort occasioned by such work.

1. The plaintiff’s evidence was that had the accident not occurred, he would have attempted to continue in his present occupation until the normal retirement age of 65 unless that age was lowered, in which event he would retire at the earlier age.

1. Before the accident, his hobbies were fishing, playing pool and trail bike riding. He has had to give up trail bike riding because the jarring he experienced caused him pain.

1. I gained the impression that the plaintiff’s injuries have not interfered to a great extent with his enjoyment of fishing and that he has lost interest in pool for reasons which may be associated to some extent with his physical discomfort.

1. The plaintiff, who I accept has not over-stated his symptoms, explained that his work as a form setter exacerbated his pain and that the exacerbation could be quite severe and prolonged if he experienced severe jarring. He said that the pain varies depending on the work on which he is engaged. Asked to explain his pain in terms of levels of one to 10, he said that on a good day the pain level would be about four, jarring would increase it to nine and after a day of work the level would be to the order of five to six. Because of the pain, he tries to avoid particularly heavy lifting and, where possible, seeks assistance from work mates. It is not always possible though for him to avoid heavy lifting and the resulting straining and jarring. As a result of his pain, he often has a headache at the end of a working day which adversely affects his moods and can make it difficult for him to sleep. He takes no regular or prescribed medication for the pain and treats it “with the odd Aspro or Panadol”.

1. His belief is that he will probably only be able to keep up his present work for “a few years” before the pain drives him to seek less strenuous employment such as that of nurseryman or maintenance man. He has discussed the former occupation with a friend in the industry and is confident that it would be much more suited to his physical condition than this present occupation.

The respective approaches of the parties to the assessment of future economic loss

1. The essential differences between Mr Williams QC who, with Mr Munt, appeared for the plaintiff and Mr Hastie who appeared for the defendant, concerned the length of time for which the plaintiff was likely to continue working as a form setter and whether the plaintiff was likely to be remunerated at a lower rate in any changed occupation.

1. Mr Williams argued that future economic loss should be assessed on the basis that the plaintiff will continue as a form setter for three more years and then be forced, as a result of his pain, to take employment as a nurseryman or in some other such largely outdoor occupation at a lower rate of pay. On that basis he submits that the plaintiff’s future economic loss is $277,039. That sum was calculated by determining the total net earnings of the plaintiff until retirement at age 65 on the basis of his average net earnings of $710 per week for the period from 6 October 2000 to 15 June 2001 and by deducting from it the net earnings of a nurseryman for the same period. The current nurseryman’s award is $436.50 net per week. The figure arrived at by the subtraction was then converted to a present day value to produce the sum of $277,039.

The defendant’s approach to the assessment of future economic loss

1. Mr Hastie challenges this approach, submitting that on the basis of Dr Morgan’s evidence it should be accepted that the likelihood is that the plaintiff will remain in his present occupation for about 10 years. After that time, it is submitted, there is no good reason to expect that the plaintiff will earn at a lower rate in any new employment such as nurseryman, maintenance man, car park attendant or safety officer than he would have earned as a form setter. It is pointed out that the current award for form setters is $500 per week as compared with the nurseryman’s award of $436.50, a nursery hand’s of $409.60 and a landscape gardener’s assistant of $409.60. Mr Hastie draws attention to the possibility that the plaintiff may have been out of work for appreciable periods in the future and to the possibility that he may have been obliged to seek alternative employment as a result of economic downturns affecting the building industry. He pointed to the strenuous work involved in form setting and to the possibility that, even without the plaintiff’s injuries, that work may have led to some physical disability in the future which may have caused the plaintiff to seek alternative employment. Furthermore, it is said that the nature of the work is such that there is a tendency for persons to leave the industry as their age increases. In this regard, he relied on the evidence of Mr Taylor, an occupational therapist who gave evidence on behalf of the plaintiff. Mr Taylor produced some statistics which, according to Mr Taylor, showed that those persons who retired from work in the Australian construction industry in 1997 fitted the following pattern –

   “Retiring Australians (Construction Industry) – 1997

   Age of Retirement               Number of Males                Expressed as %

   Less than 45 years                 9300   7.5%

   45 - 49 years   9500   7.7%
         50 - 54 years  17 000  13.7%
        55 - 59 years                   25 200  20.3%
        60 - 64 years                   38 100  30.8%
         65 – 69 years                   22 200  18.0%
       70 years and over               2500   2.0%”

The principles to be relied on

1. The task required to be undertaken by the Court in circumstances such as those under consideration was discussed in the joint judgment of Deane and McHugh JJ in Malec v J C Hutton Pty Ltd[1] where their Honours said –

“But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle (1970) AC 166, at p 174; Davies v. Taylor (1974) AC 207, at pp 212, 219; McIntosh v. Williams (1979) 2 NSWLR 543, at pp 550-551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.”

[1](1990) 169 CLR 638 at 643.

Determination of future economic loss        

1. I accept that the plaintiff has stoic qualities and that he is possessed of considerable determination. Despite that, the probabilities, in my view, are that, with the effluxion of time, he will decide that the general enjoyment he derives from his work and the extra remuneration it provides, are outweighed by the exacerbation of his pain and the side effects of that pain. Plainly, it is impossible to predict when that point will come with any degree of certainty. I have referred to Dr Morgan’s assessment given at a time when the plaintiff was putting the best face on things, and which was made without the benefit of the detailed evidence given on trial of the side effects of the plaintiff’s pain or of the disadvantages suffered by the plaintiff in the course of, and as a result of, his everyday work. It seems to me that the accumulation of the pain, its emotional effect on the plaintiff and his inability, although not great, to fully discharge his duties as a form setter without assistance will come together rather in advance of 10 years to cause him to seek another occupation.  In my view, that is most likely to happen in about five years from now.

1. The plaintiff has always been successful in obtaining employment and I see no reason why that state of affairs should not continue. The evidence suggests that he is a determined, competent and resourceful person. It is another thing though to accept the defendants’ submission that the plaintiff may well be able to undertake trade and other courses, and through higher qualifications, acquire the potential to work in more highly remunerated occupations. Mr Fraser’s experience is that a person who has ceased his schooling at an early age and then has worked in manual employment for many years, would tend to experience difficulty in successfully pursuing further studies. That opinion, I rather think, accords with common sense. He also pointed to the current trend for persons in the construction and other industries to select supervisors, safety officers and the like from the ranks of the better educated and qualified employees. There is also, in Mr Taylor’s opinion, a propensity on the part of employers to prefer younger persons for those sorts of under management roles over the older and, in particular, older persons with “a musculoskeletal injury”.

1. Accordingly, I discount the possibility that the plaintiff will be able to take up more highly paid employment, either in the construction industry or elsewhere.

1. The wage differential on which Mr Williams relied to arrive at his figure for future economic loss is dependent, to a degree, on the continued availability of overtime for form setters. There is evidence to support the conclusion that overtime is generally available to form setters, although, as one might expect, the extent to which it is available is dependent on the health of the industry and the contracts on which the relevant employer is engaged from time to time. There is no evidence as to the likelihood of overtime being available in other occupations which might be open to the plaintiff. Commonsense would suggest that overtime may be available at times in occupations such as nurseryman, but it is impossible, in the absence of appropriate evidence, to make any worthwhile predictions about the extent to which the availability of overtime has the potential to affect the general level of remuneration.

1. Having regard to the above considerations, the approach I have taken is to base the plaintiff’s future economic loss on the difference between the income he would be likely to have earned as a form setter in the period between a date about five years from now and age 65 on the one hand and as a nurseryman on the other. In order to allow for matters such as loss of work through downturns in the building industry, the possibility that the plaintiff, even if uninjured, may have found work as a form setter unnecessarily burdensome in his later working life, the possibility that a non- compensable physical injury or deterioration may have brought about a change of employment, and the possibility of overtime in alternative employment, I consider it appropriate to discount the amount calculated by 10%. In arriving at this figure, I have not overlooked the possibility that the plaintiff may have become a leading hand or foreman.

1. In Sullivan v Gordon[2] Beazley JA, with whose reasons Powell and Stein JA agreed, referring to authority, said that it was “accepted that the ‘usual deduction’ for contingencies (in New South Wales) is 15 per cent”, subject to adjustment to take into account the plaintiff’s particular circumstances.

   [2](1999) 47 NSWLR 319.

1. It would appear that the practice in Western Australia is different. In Villasevil v Pickering,[3] Anderson J, with whose reasons the other members of the Court agreed, observed that “The discount for ordinary contingencies is rarely more than 15 per cent and usually between five and 10 per cent”. Later, having arrived at a prospective figure for future economic loss his Honour observed –

“The question is whether this should be scaled down for adverse contingencies. In truth, there is nothing at all scientific in the determination of the appellant’s lost earning capacity in this case. To scale it down on account of the risk that through misfortune the appellant might not earn at what is, in any event, a very uncertain rate seems a little unreal. Nevertheless, it is part of the conventional method of ‘calculating’ the loss of earning capacity to make a downward adjustment of the lump sum for contingencies.”

[3][2001] WASCA 143.

1. In this State 15% is sometimes regarded as “conventional”[4] but I doubt that it can be said that there is any “usual deduction” on account of contingencies as in New South Wales.

   [4]Batiste v State of Queensland, [2000] QSC, s6547 of 1999, 14 September 2000.

1. The plaintiff’s loss of earning capacity is calculated as follows:

Expected Earnings as Form Setter  

Current weekly earnings  710.00
Total expected future earnings (710 x 52 x 21)  775,320.00

Expected Earnings as Nurseryman  
Award rate for nurseryman  436.50
Total expected future earnings (436.50 x 52 x 21)  476,658.00

Gross Expected Loss  298,662.00

Less: Discount (10% x 298,662)   29,866.20

Net Expected Loss  268,795.80

Present Value Of Expected Loss At 5% Interest

(268,795.80 / 1092 x 686)  168,858.90

Gratuitous care

1. There was a minor dispute concerning the quantum of the claim for gratuitous care. I accept the defendant’s submissions that the claim is overstated in some respects. In particular, I conclude that the sustainable claim for provision of driving services should be four hours rather than seven, shopping three rather then 3.5, hanging out washing one rather than two. The total hours per week allowed are thus 12 being 16.15 less 4.5, rounded up.

Pain, suffering and loss amenities

1. The remaining item in dispute was the sum allowable for pain, suffering and loss of amenities. Mr Williams submitted that the appropriate figure was $45,000. Mr Hastie submitted that the appropriate award was $30,000. I was provided with a number of comparable decisions which counsel submitted supported their respective contentions. As is normally the case, the decisions are capable of providing only a general guide to the appropriate level of quantum. To my mind a significant feature of this case is not only the existence of constant and lifelong pain, but the probability that because the plaintiff is a determined, well motivated individual, his drive to keep himself gainfully employed and his family properly provided for will result in increases in his level of pain and the continued manifestation of its unpleasant by-products such as irritability and headaches.

1. Accordingly, damages will be awarded as follows –

Pain and suffering and loss of amenities  $40,000.00

Interest (on $20,000 for 1.94 at 2%)  $776.00  

Past Economic Loss (agreed)  $9,199.00

Superannuation (at 7%) (agreed)  $640.00

Interest (on $2,530) at 5% for 1.94 years (agreed)  $240.35

Loss of earning capacity  $168,858.90

Superannuation (at 9%) (the rate is agreed)  15,197.30

Special damages (agreed)  $4,069.77

Interest (on $1,086.40 – as yet the total out of pocket expenses on

which the plaintiff is entitled to receive interest) (agreed)  $199.00

Past Gratuitous Assistance ($12 per week for 1.94 years)  $1,210.56

Interest (at 5% for 2 years)   $121.06­­

Total   $240,511.94

1. There will be judgment for the plaintiff in the sum of $240,511.94 together with costs  including reserved costs to be assessed on the standard basis.