Theo Galjaardt v The Trade Centre for Furniture and Rentals Pty Ltd ACN 066 120 241
[2002] ACTSC 69
Theo Galjaardt v The Trade Centre for Furniture & Rentals Pty Ltd ACN 066 120 241 [2002] ACTSC 69 (26 July 2002)
CATCHWORDS
PERSONAL INJURIES – Liability – employment accident – heavy lifting – failure to warn of need for heavy lift
CONTRIBUTORY NEGLIGENCE – Employee decides to undertake lift
DAMAGES – Assessment – no issue of principle
Bankstown Foundry Pty Ltd v Braitstina (1985) 160 CLR 301
Jones v Dunkel (1959) 101 CLR 298
Nichol v All Yacht Spars Pty Ltd (1987) 163 CLR 611
Nominal Defendant v Gardikiotis (1996) 186 CLR 49
No. SC 573 of 2000
Coram: Master T. Connolly
Supreme Court of the ACT
Date: 26 July 2002
IN THE SUPREME COURT OF THE )
) No. SC 573 of 2000
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:THEO GALJAARDT
Plaintiff
AND:THE TRADE CENTRE FOR FURNITURE & RENTALS PTY LTD ACN 066 120 241
Defendant
ORDER
Coram: Master T. Connolly
Date: 26 July 2002
Place: Canberra
THE COURT ORDERS THAT:
Judgment for the plaintiff in the sum of $122,626.00
I will hear the parties as to costs
This is a claim for damages for personal injuries arising from a work related accident which occurred on 29 October 1999 when the plaintiff sustained injury to his back while lifting a heavy bench at Barton in the Australian Capital Territory. Both liability and quantum of damages were in issue in the hearing.
The plaintiff was born in 1970 and left school just before he completed year 12 to undertake landscape gardening work in the Canberra district. He also did some retail work as a trainee manager in a discount department store. He sustained some significant head and neck injuries in a motor vehicle accident in 1988. In 1993 he moved to Tasmania and commenced work as a tree feller, but he sustained a serious injury in an accident involving a chain saw in 1994, which involved a series of operations to his arm in 1994 and 1997. He was off work for a considerable period on workers compensation as a consequence of this injury. He returned to Canberra in May 1998 and commenced work on a casual basis for the defendant. He then found work as a tree pruner with the ACT authorities for a period, but found this work difficult as a result of his earlier injuries. In about January 1999 he commenced full time work with the defendant.
The defendant is engaged in the business of renting furniture, typically to commercial users. The plaintiff says that the business is run by a friend of his, and this is how he came to find out about the position. This was his first employment since the chain saw accident in 1994. After his first employment with them, which the plaintiff says was on limited hours and involving light duties, he moved to the gardening job. He says that he was confident that, apart from problems with his wrist in using a chain saw, he was fit for full time work, and he was engaged full time by the defendant in what he says was a supervisory role, in the nature of a foreman. His formal title was Operations Manager.
His duties involved preparing orders and installing the furniture, and also taking out furniture when a contract was at an end. He says that where furniture was to be removed at the end of a rental period he would be given a list by the office, and from that list he would organise what was needed to physically move the furniture from the premises at which it was situated to the defendant’s store rooms. He would inspect the job to determine how many men would be needed to undertake the move, and he had the authority to engage and supervise casual employees as necessary to undertake a job.
He said in evidence-in-chief that he had not been instructed in how to lift heavy objects. In cross-examination, however, he agreed that he was aware of the need to lift properly, and part of his job was to instruct casual employees on the appropriate methods of safe lifting.
The day before the accident he was issued with a job to remove furniture from premises in Barton . He attended those premises on Thursday 28 October 1999 to remove lighter items of furniture such as chairs, and to inspect what was involved in moving the larger items of furniture. He determined that this job could be safely done with one assistant, and on the afternoon of Friday 29 October he and an assistant attended the premises, and moved the rented items out of the premises. This involved taking them down a lift and then leaving them outside where they would be collected by a truck also engaged by the defendant.
Mr Galjaart says that they had removed all of the items on the list of rented furniture. He says that the person co coordinating the move for the company that had rented the furniture told him that there was another item that had to go, but was not on the list. This was a large counter or bench which had been used for photocopying. A photograph of the counter was tendered as Exhibit A. The plaintiff says that he said that it was not on the list, but “he was definite about it having come from the office furniture”.
He says that they were under pressure because new furniture was being moved in from a different company, and it was late of a Friday afternoon. He says that he and his colleague Mr Lloyd were able to manoeuvre the item around corners, and place a small trolley under it to move it out of the office. He estimated the weight at 150 to 200 kilograms.
Mr Galjaart says that although they were able to move the counter out of the office on the trolley, they were not able to fit it in the lift to get it to ground level where the other furniture was awaiting the arrival of the truck. The premises were situated above ground level, and a photo was tendered as Exhibit B showing the stairs leading from the premises to the footpath.
He says he looked for a ramp but could not see one. He tried to contact the truck driver, who said that he was running late. Mr Galjaart says that he felt that he should not wait for the truck driver to arrive because “I felt somewhat under pressure because I had another job to attend to being that it was late on a Friday afternoon.” He said that “Shane and I-my offsider- had- we thought we could have a go at lifting it and so we went ahead and lifted it.”
He says that he and Mr Lloyd manoeuvred the counter to the top of the stairs on the trolley, and then they proposed lifting it with one man on each end going down the stairs. He says that he instructed his offsider to lift on the count of three, but he lifted a little earlier. He says that in the course of that initial lift he felt a sharp pain in the middle of his back. He managed to straighten up, and they continued with the lift, and were able to move the counter to the bottom of the stairs. He says that towards the end of the lift he experienced a lower back pain as he was struggling to balance the counter.
The truck driver and his assistant arrived, and the plaintiff assisted them to load the items, including the counter, into the truck. He says that he was unable to assist in unloading the items, and he went home and rested over the weekend. On Monday he still had back pain, and attended a local chiropractor who provided massages. He attempted to return to work on the Tuesday, but only lasted some three or four hours. He has not worked since. He was on workers compensation payments until 5 February 2001.
Liability
The plaintiff’s case is that the defendant is liable because it was negligent in failing to provide the plaintiff with a safe system of work, failing to take adequate precautions to ensure the plaintiff’s safety, failing to provide the plaintiff with adequate equipment to perform his tasks, failing to properly train the plaintiff, and failing to provide adequate supervision. The defendant pleaded contributory negligence by saying that the plaintiff failed to take precautions for the plaintiff’s own safety, and acted contrary to procedures that the plaintiff knew or out to have known in relation to the safe lifting of furniture.
The plaintiff tendered a report from Dr Olsen, a consultant physician in occupational medicine. Dr Olsen expressed the view that
“the transportation of a counter such as that described with a weight of 173 kg or possibly more is in my opinion patently unsafe. It is in fact so far from being safe that I find it very surprising that any company would expect two workers to carry an object of the dimensions observed on the two photographs with a weight of 173kg”
I am satisfied that the doctor is here referring to the photograph of the counter that was Exhibit A in these proceedings. Dr Olson was of the view that to attempt to manually lift such an object down the stairs would expose both workers to high risks of injury to the lumbosacral spine. I accept this evidence.
The defendant’s primary submission is that the plaintiff has not established on the balance of probabilities negligence on the part of the defendant company. While the plaintiff gave evidence that he had not been instructed in lifting technique, he agreed in cross-examination that he knew how to lift, knew the importance of bending his legs and keeping his back straight, and agreed that it was his responsibility to instruct casual employees in these techniques. He said in cross-examination
“If I saw one of the casual employees doing what I would consider a wrong lift I would correct him. I would show him how to do it because I place a lot of importance in the way that people lift and if it was my responsibility to ensure that lifts were being performed properly then I would outline it to them if I saw something wrong.”
It was also his evidence that, as operations manager, it was his responsibility to allocate men to a job.
The defendant says that, as the operations manager the plaintiff was confronted on the Friday afternoon with an unexpected situation. The normal procedures had been followed in relation to this job in that the plaintiff had attended the premises on the day before with the list of rented items, and had made an assessment of what the job would require. He made the assessment, which seems on the evidence to be correct, that he could move the items on the list with one assistant. Indeed this is what occurred. The person in charge of the premises then said that there was an item that was not on the list that had to be moved. The defendant says that in that situation the plaintiff as operations manager had to make the decision, and the decision that he made, to attempt to lift what he knew to be a heavy and awkward object, was simply the wrong decision. The plaintiff agreed in cross-examination that, as the operations manager on the spot he had to make the decision as to how to handle the situation, and he said that he felt competent to make that decision.
The evidence is that the truck driver and an assistant were due to attend the premises to load the furniture and take it to the store. The plaintiff and his assistant had been moving the furniture from the premises and leaving it at street level awaiting the truck. The defendant says that it would have been more prudent to wait until the truck driver and his assistant arrived, so that there would have been four men for this job. He said in his evidence-in-chief that he was able to contact the truck driver on his mobile phone. The truck driver said that he was running late but was coming over to this job. He was asked by his counsel whether he was able to wait until the truck driver got there, and he said that he felt under pressure because he had another job to attend to that afternoon. He said “being that I was in a supervisory role I was to go over and make sure that that job was to be finished.”
He agreed that by the time he and his assistant had manoeuvred the counter on to the trolley and to the top of the stairs he knew how heavy and how awkward it was. He agreed that at that point he had the option of waiting for the truck driver, but said that he felt there was urgency to get to the next job. He said that he did not ring the office because he did not think there was anyone there who could assist with the lift. He agreed that his boss had a mobile number which he knew. He said it was possible that he could have rung him, but he did not recall. In any event, he agreed that he was the person who had to make the decision whether to proceed or not.
When he was pressed in cross-examination as to why he did not wait until the truck driver and his assistant arrived he said
“Well, I didn’t think that it was necessarily safe for four people to be manoeuvring a counter that size down the stairs. I thought to myself that that’s probably more of a danger and also with the truck driver and his off-sider it was a vast range in height and size and I thought that- being that Shane and I were of comparative size and weight it would have been better balanced.”
He agreed that he was fully aware of the need to match workers to workers in terms of height when making difficult lifts, and he also said (transcript p42) that “we had, as I said, lifted items of furniture that were comparative to that item.” The cross-examination on this point concluded:
You made the decision to undertake that lift with Mr Lloyd didn’t you?—Yes
Yes. And in those circumstances, sir, any problems or injury that you suffered are surely down to your own decisions?---Could you repeat that last bit, sorry, I was…
Yes. In circumstances where you were the man on the spot, you were in charge of the operation and you elected to proceed with the two man lift, you are responsible for any injury that you suffered?---Yes, I’d exhausted any other options at that time.
When you say that you had exhausted any other option, you had not tried any other option. You’d made a decision to go ahead with the lift and implement it, that’s correct isn’t it? –Yes.”
Mr Stretton for the defendant said that I should be guided by the remarks of the High Court in Nichol v All Yacht Spars Pty Ltd (1987) 163 CLR 611. That case involved a director of the defendant company who was also an employee of the company who was injured when he fell off a ladder when seeking to remove a banner from a flagpole with another director. The evidence was that the system of work was devised by both the plaintiff and the fellow director, so the court dealt with the matter as an issue of contributory negligence, but at 618 in the joint judgment of Mason CJ, Toohey, and Gaudron JJ it is stated that
“If the appellant’s injury were caused solely by his own fault he cannot succeed. However, if they were caused partly by his own fault and partly by the fault of other employees the appellant’s claim is not defeated but is subject to apportionment.”
Brennan J said words to the same effect at 620 as follows:
“There have been cases in which an injured employee has failed to recover for breach of employer statutory duty where the employee was himself responsible for performing the duty. These are cases where the employee was solely responsible for the failure to perform the duty, and was therefore the sole author of his own wrong.”
Mr Crowe for the plaintiff made the submission that the mere fact that the plaintiff had the title of operations manager does not alter the nature of the employment relationship nor relieve the employer of the ordinary common law duty of care. The evidence is that the plaintiff’s duties were 90-95% manual work. He had supervisory responsibility for casual employees, but he was in reality more of a foreman or leading hand. There is evidence of his wages, and he was certainly not enjoying executive type remuneration. Mr Crowe cautioned, properly it seems to me, that an employer cannot evade their primary responsibility for workplace safety by granting impressive titles and apparent discretion to relatively junior employees.
After the passage cited above from Nicol v All Yacht Spars Pty Ltd Brennan J continued:
“But if the employer has failed in some respect to do everything which the employer could reasonably be expected to do to prevent the breach which caused a plaintiff’s injury, the employer does not escape liability.”(at 620)
The proposition that because an employee has a discretion as to how to undertake a task any injury that they suffer as a result of the exercise of that discretion is their own responsibility is the proposition rejected by the High Court in Bankstown Foundry Pty Ltd v Braitstina (1985) 160 CLR 301. That case, it seems to me, continues to represent the common law obligation of an employer which is, as restated in the joint judgment of Mason, Wilson and Dawson JJ
“that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury”.
There is, it seems to me, evidence here of an unsafe system of work, in that the plaintiff was assigned a task on the basis of the list of items, and he acted appropriately in inspecting the site and making an appropriate decision in relation to the assistance he would require to safely move those items. I am satisfied that the defendant was negligent in not properly recording the presence of the counter, and that as a consequence of this negligence the employee was placed by the inaccurate list in the position that he had to deal with an unexpected heavy awkward object. It was, it seems to me, reasonably foreseeable that an employee in these circumstances would attempt to do what the plaintiff did, which is to conclude the task. It seems to me that to say that an employer can avoid liability because an employee tries to get on with the job when confronted with a foreseeable risk as a consequence of the employers negligence would be to significantly err.
I am satisfied that the employer was in breach of its duty of care in failing to have a safe system of work by not properly telling the plaintiff what items of furniture he would have to move. It was foreseeable in these circumstances that he would have inadequate machinery or manpower at the site to move a much heavier and more awkward object. It was also foreseeable that he would make an attempt, unwise as it turns out, to get on with the job in order to be able to get on to the next task. I am satisfied that liability is made out.
In relation to the claim of contributory negligence, I am satisfied that this is made out on the basis of the plaintiff’s acknowledgement in cross examination that he elected to attempt to move what he knew to be a heavy object with only one assistant, and he chose neither to wait for the truck driver and his assistant to arrive, or to call his boss. It seems to me, however, that this should sound in only a minor reduction, and I would attribute his responsibility in the order of a 10% reduction. This was the same reduction affirmed by the High Court in Bankstown Foundry Pty Ltd v Braistina, and I would also observe that the Court there said that the level of contributory negligence would have been greater if it had been shown that the plaintiff had deliberately breached safety instructions. This was pleaded against the plaintiff in para 6 (b) of the defence where it is said that he acted contrary to procedures that he knew or ought to have known in relation to safe lifting, but no evidence was brought to support this proposition.
Damages
The principle to be applied in determining compensation in personal injuries cases have been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 186 CLR 49 where His Honour said (at 54):
“When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant’s negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, ‘in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation’.”
The plaintiff noted his pain on the date of the accident, 29 October 1999. He thought it would resolve with rest and chiropractic treatment, but it did not.
He attended his general practitioner on 12 November 1999. In his report of 29 February 2000 Dr Gibson says that
“on examination he had a mild scoliosis of his lumbar spine possibly due to muscle spasm. He had good range of movement in the back with some pain on extension and left lateral flexion. Neurological tests such as the slump test, sciatic stretch and reflexes were normal.”
He prescribed anti-inflammatories, and on 30 November as the pain continued ordered x rays, which showed , on Dr Gibson’s opinion, “an old fracture of L1 and a congenital spina bifida at S1”. Dr Gibson said
“His symptoms are consistent with the history of a lifting accident at work on 28 October. The exact injury is not yet elucidated”.
He felt that the plaintiff was not fit for work in the furniture industry, but was reasonably fit to return to work in a sedentary or administrative position at that time.
He was referred to Dr Newcombe, a Canberra orthopaedic surgeon, in May 2000. Dr Newcombe is identified in the originating application one of the plaintiff’s health professionals, along with Dr Ashman, a Canberra neurologist. No report was tendered by the plaintiff from either of these doctors, and I can draw from this the appropriate inference that the reports would not have assisted the plaintiff’s case. (Jones v Dunkel (1959) 101 CLR 298).
The plaintiff continues to complain of generalised back pain. Extensive investigations, including MRI and CT scans have not revealed a clear cause for these complaints. Mr Galjaart moved to Brisbane to be with his family in July 2000, and he has been receiving treatment from Dr Geffen, a rehabilitation physician, who in his report, undated but served in July 2001, diagnoses chronic back pain as a consequence of the lifting accident.
He has been examined for medico-legal purposes by Dr Schneider, a Brisbane consultant occupational physician. He has provided two reports, of 22 January 2001 and 17 June 2002. In his earlier report he concluded that the plaintiff
“probably sustained a musculoligamentous strain to the lumbosacral spine as a result of the incident at work.”
He expressed the view that the possibility of a compression fracture of the vertebra at L1 cannot be excluded, and said that a report from the treating orthopaedic surgeon, Dr Ashman, may assist in this. No report was tendered from Dr Ashman. Dr Schneider said that this report was written without the benefit of access to scans, and in an appendix he said that the December 1999 x-ray of the lumbosacral spine
“would support my opinion that the fracture of L1 reported by the examinee relates to either an old injury (no history of previous significant back injury was obtained) , or more likely a developmental/congenital abnormality….It appears unlikely that this finding can be attributed to the accident in October 1999.”
He has been examined by Drs Downes, Blue and Parker, all orthopaedic surgeons, for the defendant. Dr Parker’s report was tendered in the plaintiff’s case. Dr Parker said noted the x-ray showing an old fracture at L1 and the MRI showing some dehydration between T12 and L1. He said
“I cannot exclude that the crush fracture of L1 and degenerative disc between L1 and T12 are old injuries. The history of the way he was lifting the counter would have aggravated this condition with back pain.”
He said the back condition would amount to 5% permanent incapacity of his spine.
Dr Downes said that he could not find anything wrong with the plaintiff. He considered that L1 was quite normal, but even if there was a minor crush fracture it does not follow that it happened in the accident He took a history that
“the doctor told him that the x rays showed that he had a stress fracture within his spine at the L1 level”.
Dr Downes said that, if this was so, he would not have had chiropractic treatment immediately after the accident. The treating general practitioner at the time, Dr Gibson, refers to an old injury.
Dr Blue said that he was unable to provide a diagnosis as to the cause of his back pain, but said that there was no ongoing disability arising from any back condition.
The medical evidence taken as a whole satisfies me that the plaintiff has sustained soft tissue injuries only as a consequence of this accident. Although there is the hint in Dr Parker's report of a crush fracture at L1 this is not supported by any other doctor, including the contemporaneous treating general practitioner. Dr Schneider expressed the possibility of the L1 being related, but said his treating orthopaedic surgeon, Dr Ashman, could clarify this. No report was served from Dr Ashman. Dr Schneider later resiled from this view, and was satisfied that the L1 was an old condition not related to this incident.
Dr Schneider noted a discrepancy in the plaintiff’s leg length, and said that
“It is also likely that Mr Galjaart has some accelerated degenerative changes in the spinal facet joints, resulting from his leg length discrepancy and scoliosis. This is probably a longstanding condition, which has been asymptomatic due to the activity and fitness level required in his employment. The loss of mobility and avoidance of physical activity occurring as a result of pain associated with this injury may well have resulted in thoracic and lumbar facet joint dysfunction, with hypo mobility, inflammation and secondary muscle spasm, adding to the pain associated with a musculoligamentous injury. This facet joint dysfunction is probably secondary to accelerated wear and tear due to his leg length discrepancy.”
There was also a report from Dr Rowe, a psychiatrist. He concluded that the plaintiff was suffering from an adjustment disorder of a depressed type. He noted however that as well as his back pain and disability, which he said would be a matter for orthopaedic advice, the plaintiff
“is also concerned and worried about the outcome of the legal matters about an accident that occurred in 1994. At that time, he suffered significant damage to the lower part of his left forearm as a result of a chainsaw accident at his previous place of work.”
Dr Rowe said that most of his psychological state was due to the 1999 accident, but
“I also feel that he has some unfinished business as regards the injury to his hand in 1994”.
He said that the prognosis was ultimately good, but that he will still be somewhat anxious and despondent until the legal matters have been settled.
On all of the evidence I am satisfied that this accident has caused a degree of soft tissue injury to the plaintiff’s back which has remained symptomatic. I accept there has been a degree of adjustment disorder flowing from this, but I note that Dr Rowe says this is also related to the more substantial chain saw injury in 1994.
Despite the medicine showing nothing but soft tissue injury, the plaintiff has presented as being in a highly disabled state. He told Dr Downes that
“the best he can do through the day is rest up, getting out of bed for toilet and to prepare some basic meals”.
This state of chronic disability is quite incompatible with the nature of the injury sustained on the basis of all of the medical reports. Some video material was shown to the plaintiff. It is not particularly dramatic, in that it does not show him engaging in strenuous activities, but it does show him moving with no apparent difficulty in a shopping centre, and squatting with no obvious disability. I am satisfied that there has been a degree of exaggeration in the extent of the disabilities flowing from the soft tissue injuries sustained in the accident. I note that in the most recent plaintiff’s medical report, from Dr Schneider of 17 June 2002, the doctor says that
“his continued symptoms and incapacity to work are mainly related to psychosocial factors, including his adjustment disorder, depression, physical deconditioning and ongoing litigation.”
In relation to general damages, I award the plaintiff the sum of $40,000, with $35,000 attributable to past loss, generating interest of $1,922 for a total award of $41,922
Past out of pocket medical expenses were agreed in the sum of $4261 paid by the workers compensation insurer, and $268 in travel expenses. The plaintiff has made a claim for future expenses on the basis of the need, referred to in Dr Rowe’s report, for some psychological treatment for the adjustment disorder, and for a physical reconditioning programme as recommended by Dr Schneider. It seems to me that these are compatible with the nature of his disabilities as I have found them to be, and that, while my award for general damages has been based on his condition resolving in the short to medium term, these treatments are appropriate to aid that process. The plaintiff made a claim for the sum of $5000 for the future, and this seems appropriate.
The economic loss claim is particularised as an ongoing claim in the sum of $505 a week, being his net wages at the time of the accident. I am not satisfied that this is made out, as the medical evidence does not, it seems to me, establish an ongoing total loss of earning capacity.
The first medical report from his general practitioner in February 2000 states that he is unfit for work in the furniture company, but says “he is reasonably fit to return to work in a sedentary or administrative position.” Dr Schneider in January 2001 said that he was permanently unfit for work requiring heavy lifting and that it would be unwise for him to return to his former employment as a furniture removalist, but that following suitable rehabilitation he should be fit to return to full time employment performing light to moderate semi sedentary work, avoiding heavy manual handling activities. Dr Rowe said that the question of whether he was fit for work was a matter for orthopaedic opinion, and I take it from this that he does not see the psychological condition as preventing him from work. Dr Geffen has said that he is unfit for work in a heavy manual labour position, but said in his report of June 2002 that
“I am still of the opinion that Theo needs to find gainful employment in a relatively sedate occupation.”
Thus on the plaintiff’s medicine alone, there is no doctor that says he cannot work, and indeed Dr Geffen seems to be urging him to find employment. The plaintiff’s evidence is that he has not looked for work at all since the accident. He has a work history that involved retail sales work as a trainee manager, but he has not pursued this. He acknowledged in cross-examination that he had been having discussions before the accident about a sales position in a company controlled by a family member, but has made no effort to look into this since the accident.
The defendant tendered a report of a vocational counsellor dated September 2000. This indicates that the plaintiff has rejected a range of potential avenues for employment, and has asserted that he sees his future as the owner manager of a business involving hydroponic farming, on a block of land in excess of 90 acres. The report indicates that the plaintiff expects the insurer to provide the capital to start this business.
The plaintiff did give some evidence that he was using marijuana in order to deal with pain. He was taken to the medical records of his former Canberra general practitioner which recorded a consultation before the accident which referred to quite heavy cannabis use. He said this was in error, but that he could have been using daily for some time. To the extent that use of cannabis has had any impact on his employability, it seems to me that it predates the accident, and I do not regard this as a factor attributable to this accident.
I am satisfied on all of the evidence that, while the soft tissue injury to the plaintiff’s back has rendered him unsuitable to heavy labouring work, he has been since the accident, and remains, capable of a wide range of employment, but that he has made absolutely no effort to utilise this economic capacity. The expectation that he would be funded to set up a farming venture on over 90 acres is quite unrealistic. He agreed that he had supervisory experience in retail, and in my view provided quite unsatisfactory responses to questions in this area. There were references in the medical reports and the vocational assessment to him turning up late to appointments, and this together with Dr Schneider’s reference to deconditioning and apathy seems to indicate an attitude that is quite incompatible with working, but which is hardly on the evidence attributable to the actions of the defendant.
An injured person is to be properly compensated for their accident related loss of economic capacity, but they are expected to utilise what capacity they have. I am not satisfied that the plaintiff’s claim for past economic loss, which amounts to some $69,185, is made out. I accept that he has been precluded from the heavy furniture moving work, but I find on the evidence of his own doctors that he has at all time had a capacity for lighter work, and indeed he agreed that he had been having discussions about a sales position in Sydney before the accident, and it was not his intention to remain in furniture removals. I award the sum of $45,000 for past economic loss as a buffer amount. No interest is awarded as part of this buffer as he has been in receipt of workers compensation entitlements.
There is a Fox v Wood component in the sum of $4,800 that should be awarded.
The future economic loss claim was pressed at the hearing as a claim for an ongoing reduction of economic capacity in the order of $200 per week to normal retirement age less the normal vicissitudes, for an award of $190,000. Again I am not satisfied that this is compatible with even the plaintiff’s medical reports, noting that the defendant’s medicine says that there is nothing precluding him from working. It seems to me that this is a case where the medicine justifies only a modest buffer in respect of a resolving soft tissue injury and associated adjustment disorder. The plaintiff does have other ongoing disabilities flowing from his chain saw accident. The effect of this accident is, on my findings, resolving and will resolve fully. I accept there will be some continuing impact on heavy labour for some years, and taking all of the circumstances into account, I award the sum of $35,000 as a buffer for future economic loss. This can be seen to represent about 18 months at his particularised ongoing wage loss.
A Griffiths v Kerkemeyer claim was particularised but was not pursued at the hearing, and was not compatible with medical reports in the plaintiff’s case which state that he is independent with respect to activities of daily living.
This amounts to a total award of $136,251 which I consider to be appropriate in all of the circumstances of the case. As I have found contributory negligence in the order of 10% it is necessary to reduce this to $122,626 which I award. I will hear the parties as to costs.
I certify that the preceding fifty three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly
Associate:
Date: 26 July 2002
Counsel for the Plaintiff: Mr R Crowe
Solicitor for the Plaintiff: pappas, j - attorney
Counsel for the Defendant: Mr G Stretton
Solicitor for the Defendant: Mallesons Stephen Jaques
Date of hearing: 19 & 20 June 2002
Date of judgment: 26 July 2002
0
5
0