Thomas v. NCP Plumbing Contractors Pty Ltd & Anor
[2007] QSC 15
•7 February 2007
SUPREME COURT OF QUEENSLAND
CITATION:
Thomas v NCP Plumbing Contractors Pty Ltd & Anor [2007] QSC 015
PARTIES:
BRYAN WYNDHAM PRICE THOMAS
(applicant)
v
NCP PLUMBING CONTRACTORS PTY LTD
(ABN 59 091 238 489)
(first defendant)
ALLIANZ AUSTRALIA INSURANCE LIMITED
(ABN 15 000 122 850)
(second defendant)FILE NO/S:
BS 1088 of 2006
DIVISION:
Trial Division
PROCEEDING:
Trial
ORIGINATING COURT: Supreme Court DELIVERED ON:
7 February 2007
DELIVERED AT:
Brisbane
HEARING DATE:
12,13 September 2006
JUDGE:
Philippides J
ORDER:
Judgment for the plaintiff against the first defendant in the sum of $158,374.21
CATCHWORDS:
NEGLIGENCE – PERSONAL INJURIES – where plaintiff sustained injuries as a result of falling from the tray of a utility – whether employer negligent – whether contributory negligence – assessment of damages
COUNSEL:
M Grant-Taylor for the plaintiff
A Mellick for the defendantsSOLICITORS:
Schultz Toomey O’Brien for the plaintiff
Dibbs Abbott Stillman for the defendants
PHILIPPIDES J:
Background
This is a personal injuries action brought by the plaintiff, Bryan Thomas, against the defendants in respect of injuries sustained on 11 November 2002.
As at that date the plaintiff was employed by the first defendant as a plumber and was working on the finishing stages of an extension to TAFE premises at Mountain Creek, which included the construction of classrooms, training kitchens and a cafeteria.
The plaintiff claims that he sustained the injuries at about 1.30 pm on the day in question when he went to retrieve a box of items from the tray of a Mitsubishi utility, which was parked rear end first at a loading bay in front of the premises the subject of the further works. The second defendant is the insurer of the vehicle. The injuries suffered by the plaintiff were a fracture of the left radial head (elbow), a fractured nose, a corked left thigh and multiple abrasions, bruising and contusions.
The plaintiff’s case is that as he was stepping from the rear of the tray back on to the loading bay, the utility began to move away from the loading bay causing him to miss his step and fall to the ground. The plaintiff alleges that the utility, which was a manual, had been reversed up to the loading dock without being secured from untoward movement by either being placed in gear or applying the handbrake.
The evidence was that the vehicle had been driven to the site early on the morning of 11 November 2002 by the first defendant’s foreman, Paul Jones. It was common ground that the utility was generally left parked, with the keys left in the vehicle, so that it could readily be used if it was required by other workers on the site or needed to be moved to facilitate access to the loading dock area. There were steps located to the side of the loading bay. The only employees of the first defendant that were present on the day were the plaintiff and Mr Jones. There were a number of other tradesmen present at the site however.
The plaintiff’s evidence
On the day in question, the plaintiff saw the utility at the site container and then parked in front of the loading bay at about 6.30 am. He did not see anyone use the vehicle after that time. After having lunch at the site huts, the plaintiff and Mr Jones walked back (some 400 metres) to the kitchen area of the extension works where they had been working.
The plaintiff’s evidence was that he had finished fitting waists to basins in the servery and he enquired of Mr Jones where he would find the taps that he needed to fit. He was told they were on the utility along with some fittings and pipes. He walked to the loading bay to retrieve these items so that he could install them. The plaintiff saw the box with the items in the centre of the tray of the utility. The tray of the utility was configured with a ladder rack and it is undisputed that the distance between the top of the tail board and the ladder rack was about 65 cm.
The plaintiff said he stepped on to the utility from the loading bay, bending down to avoid the ladder rack. He picked up the box and crouching, stepped over the tail gate with his left leg, using his other leg to push off the tray. The plaintiff’s evidence as to what happened next was:
“As I stepped from the back of the ute tray lip there towards the loading bay, the ute rolled away and my foot did not reach the loading dock ... so I fell sort of half on to it and half off. My thigh hit the sharp edge of the loading dock, which gave the injury to my thigh ... the peak of my hard hat broke off when that hit the deck and broke my nose and I presume I put my arm out to slow my fall which broke my elbow”.
The plaintiff’s evidence is therefore that he fell from the tray to the ground below the loading dock. Although the plaintiff is a tall man (six foot three inches) he was able to crouch down and move through the gap without supporting himself. He picked up two items, a small box containing the taps and a small roll of copper tube. The plaintiff said that the gap between the edge of the loading bay and the rear of the utility was about 45 cm when he stepped on to the utility. The distance that the vehicle moved according to the plaintiff was over a metre.
After the fall, he was dazed and called out to Mr Jones who did not respond. After a few minutes he recovered and made his way up the nearby steps beside the loading bay to find Mr Jones. He told Mr Jones what had happened. Mr Jones suggested he go to the site office and sit down there. The plaintiff asked Mr Jones whether he would drive him there as he felt unable to walk that distance. Mr Jones drove him in the utility to the site office where he received first aid attention. Mr Jones then left as he needed to return to work. The plaintiff rested for a while and then decided he ought to get some treatment elsewhere, leaving in his own car. He phoned Mr Jones to tell him he had left the site. Later that evening Mr Jones rang to see how the plaintiff was and he was in contact with him a couple of times in the following week.
The plaintiff denied that Mr Jones had told him to drive the vehicle to the site office to retrieve any items prior to his injury and denied having used the vehicle at any stage on the day in question.
The plaintiff’s evidence differed from that stated on the notices given to WorkCover and the second defendant as to how the accident had occurred, which indicated that the plaintiff had “stepped from the loading bay unloaded some items and then stepped back”.
Evidence of Mr Jones
Mr Jones’ evidence was that his usual practice was to pick up the utility from the company workshop and drive it to the TAFE site where he would take it to the site container so that the items that were required for the day could be loaded onto it. He said that:
“Usually from there it gets taken to the loading dock, because that was the main port of call for all the cars in that area. It usually gets backed up to the loading dock. We unload the goods, then the car gets moved and parked on the side so other trades, as a courtesy thing, it was a general rule of thumb, so to speak, that happened during the course of the project because there was so many trades.”
When asked whether on the day in question he had driven the vehicle from the site container to the loading bay, he answered that he had no recollection of taking it to the loading dock but that he “may have”. He said it could only have been the plaintiff or him who had done so. His evidence was that his practice, when he parked the vehicle, was:
“Upon turning it off, unload the vehicle, if there were any goods to be unloaded, and then move the vehicle … Always left it in gear and the handbrake on. It's standard - it's a standard driving practice. I always practiced it.”
He said that the ground in the loading bay was poured level and there is no evidence to the contrary. His evidence was that the usual method for unloading items from the utility was to do so at ground level and then use the stairs to access the loading dock or the building. According to Mr Jones, that was a lot easier than the alternative used by the plaintiff which he considered risky and dangerous.
Mr Jones said that on the day in question, he was working inside the extension building about 10 metres away from the loading bay. He and the plaintiff were “fitting off” fixtures. The plaintiff approached Mr Jones, having finished a task and asked what he should do next. Mr Jones told him to “keep fitting off the sink waists”, as Mr Jones was also doing. Mr Jones’ evidence was that he then also told the plaintiff to go to the site container to get “the goods”, meaning chrome-plated traps, which were needed to be fitted under the sinks. When asked whether there were any of the items at the extension site, Mr Jones stated:
“I'd virtually finished off everything that I'd had but for him to continue working next to me, we needed more of them and … they were already at the site container”.
Mr Jones’ evidence was that the items which he had asked the plaintiff to retrieve were not in the utility but in the site container. Mr Jones did not hear the plaintiff driving off in the utility. The only basis for his concluding that the plaintiff had done so was that the site container was some distance away.
Mr Jones stated that the plaintiff left and was gone for a while, when he heard the plaintiff calling out. He ran out of the building to the loading bay area. He saw the utility backed up at the loading bay and the plaintiff lying on top of the loading bay. A box of chrome-plated traps was lying upright on the loading bay and the plaintiff’s helmet was near the doors. Mr Jones asked what had happened. According to Mr Jones, the plaintiff indicated that he “was trying to get up on the ute to then get on to the loading dock and he slipped and fell” and said that “the car had moved”. When asked to recall the words used by the plaintiff, Mr Jones stated that the plaintiff said: “I fell off the car trying to get up on after loading the goods on to the dock and the car had moved and I slipped”. Mr Jones noticed that the utility was backed up to the loading dock and that the rear of the utility was some 30 cm from the loading bay.
Mr Jones walked the plaintiff down the steps to the side of the loading dock and drove him in the utility to the first aid room opposite the site container. There two health and safety officers attended to the plaintiff. Mr Jones told the plaintiff that he would collect his gear from where they had been working so that he could drive the plaintiff home. Mr Jones’ evidence was that the plaintiff later rang him and told him that he was in his car going home. He contacted the plaintiff the day after and saw him again when the plaintiff visited the site to see Mr Jones and some of the other workers. Mr Jones said that the plaintiff had been a good worker with whom he got on well.
Mr Jones’ evidence was that there were up to 12 other tradesmen present on the day in respect of other subcontracted work. He said that any one of them could have used the vehicle prior to the accident and no permission was required to do so.
Mr Jones informed his employer of the accident and an Incident Record Report was completed and dated 12 November 2002. It was signed by an employee of the first defendant (ex 8). On that document is a heading “Details of how incident occurred” with the statement “stepping off back of ute on to loading bay, vehicle rolled, missed loading bay and fell”.
Liability
It is not a part of the plaintiff’s case that the utility was defective in any respect. The plaintiff’s case is simply that he fell when getting off the back of the utility as a result of the vehicle moving because it was not in gear and the handbrake was not on.
Essentially, the submission for the defendants is that the plaintiff’s case puts forward an impossible or absurd account, which depends on a series of unlikely events, which ought not to be accepted on the state of the evidence and that the plaintiff has failed to prove his case. The basis of that submission is that it is improbable that a man of the plaintiff’s height could step through the gap between the top of the tail board and the rack (of about 65 cm) as he described without supporting himself and whilst holding items. The defendant also submitted that on the plaintiff's case, the vehicle was apparently not in gear and/or the handbrake was not on, yet when the plaintiff stepped on to the vehicle and presumably applied force moving away from the dock, there was no forward movement of it. On behalf of the defendant it was contended that if the vehicle moved as claimed by the plaintiff, it must have been the plaintiff who failed to secure it, because he was the last to use it when he drove the vehicle to the site container to fetch items in accordance with the evidence given by Mr Jones.
It was also submitted that there was no evidence that the course that the plaintiff says he adopted in removing items from the utility was one that was adopted or was part of any system of work that was used by the first defendant and that Mr Jones’ evidence was to the contrary. The defendants submitted that the plaintiff should fail on causation because as a matter of commonsense the cause of his injuries was the failure to use the stairs and that the defendant was entitled to assume that the plaintiff would use them; he ought to have unloaded the items from ground level and then used the stairs beside the loading bay to access the building. At the least, it was argued, a finding of contributory negligence ought to be made against the plaintiff, because of the method he used to unload the items from the vehicle.
In relation to the plaintiff's credit and reliability, the defendant pointed out that, notwithstanding the plaintiff’s evidence that he was transferring the items from the tray of the utility to the dock and stepping through the gap between the tray and the ladder rack when he fell, the plaintiff accepted that he had in the two pre-litigation notices of claim given a version of having actually unloaded the items being retrieved before the plaintiff fell. In considering his credit, the defendant contended that it was also relevant to take into account what was referred to as the plaintiff’s tendency to exaggerate in relation to quantum issues. A further issue, going to reliability was said to be that the plaintiff had sustained an injury to the head which may have affected his recollection.
There was clearly a conflict in the evidence of Mr Thomas and Mr Jones, including as to the plaintiff being instructed to retrieve the items from the site container and as to what those items were, where the plaintiff had retrieved the items from, whether Mr Jones came to the plaintiff's assistance upon hearing the plaintiff calling out, whether the plaintiff fell onto the ground below the loading dock or onto the loading dock itself, the position of various items after the fall and the distance of the vehicle from the dock after the accident.
The defendants contended that Mr Jones’ evidence should be preferred over that of the plaintiff; he had no interest in the outcome of this matter and he gave a reliable account.
If the plaintiff was the last to use the vehicle, then his claim must fail, as the negligence in failing to properly secure it was his own. It is not disputed that, if Mr Jones was the person who failed to secure the vehicle from movement and that failure was negligent and causative of the plaintiff’s injuries, the first defendant alone would be liable. A further scenario was also raised in submissions; that some other unknown person was responsible for leaving the vehicle unsecured in the manner alleged by the plaintiff (in neutral and with the handbrake off).
The plaintiff first saw the vehicle at the site container when he arrived early that morning. The plaintiff maintains he did not drive the utility at all on the day in question and alleges that Mr Jones drove it to the loading bay at about 6.30 am. Mr Jones accepted that he may have driven the utility from the site container to the loading bay early in the morning and that there was no one other than the plaintiff who could have.
The plaintiff’s account of how he removed items from the utility required an awkward manoeuvre and one which assumed the vehicle was secured from movement, an assumption which he was entitled to make. The cause of the plaintiff’s injuries on his account is that the vehicle moved causing him to lose his footing and fall. The plaintiff has been consistent in his account that the accident was caused when the vehicle moved. That is what is recorded in the Incident Report dated 12 November 2002 and it is what the plaintiff told Mr Jones immediately after the accident as Mr Jones conceded. I note that Mr Jones gave no evidence to contradict the plaintiff in this respect; he gave no evidence as to whether the vehicle was in gear or whether the handbrake was on when he got into the utility to take the plaintiff to be treated at the site office.
The plaintiff has maintained a position as to what occurred as reflected by what he told Mr Jones and what was recorded in the Incident Report and incidental discrepancies in the reports to WorkCover and the second defendant do not cause me to disbelieve the plaintiff’s account. There is also a discrepancy between the plaintiff’s account and Mr Jones’ account as to where the plaintiff landed when he fell. However, on the whole of the evidence, I consider that it is more probable that the plaintiff’s injuries, which were significant, were sustained when he missed his footing because the vehicle moved and he fell to the ground below the loading dock. The surface of the loading dock is 93.5 cm from the ground and given that the floor of the tray of the utility is some 74.5 cm from the ground, Mr Jones’ version would entail the plaintiff falling upwards.
It is also not likely that, if the plaintiff had retrieved items from the site container using the utility that he would have placed them in a position in the centre of the tray making them difficult both to load and to retrieve. It also is improbable that having alighted from the vehicle he would have retrieved the items by then accessing the tray from the loading dock. This to my mind supports the plaintiff’s account that he did not fetch the items required from the site container, but rather from the tray of the utility which had been parked at the loading bay. It was not Mr Jones’ evidence that he saw the plaintiff use the utility to fetch the items required, rather that was his assumption.
I am satisfied on the balance of probabilities that it was Mr Jones who drove the utility from the site container after it was loaded with the items needed that day and that he parked it at the loading dock. I accept the plaintiff’s evidence that he did not use the vehicle that day. I am also satisfied on the balance of probabilities that the last person to drive the utility was Mr Jones. That an unknown person, perhaps another tradesman, was the last to use the vehicle and responsible for leaving it unsecured, is simply conjecture. It is not a conclusion I am prepared to make on the state of the evidence. Neither the plaintiff nor Mr Jones saw nor heard the vehicle being used by another person and both were working close to the parking bay area. The plaintiff stated that in the months he had been at the site he had never seen the vehicle used and returned to the loading bay as opposed to the parking bay. It is unlikely that another person would have moved the vehicle from the dock, effected deliveries and then put it back in front of the loading bay (where it would potentially be an obstruction) instead of placing it in the parking bay.
While there were some discrepancies in the plaintiff’s account and that reported in the pre-litigation notices, and a tendency to exaggeration in respect of the issue of gratuitous care, that does not cause me to discount his evidence concerning the manner in which the accident occurred and his denial of having driven the utility before the accident. I do have serious reservations concerning Mr Jones’ evidence. He reluctantly accepted that he may have driven the vehicle from the site container. Some 19 months had passed before he was required to record the circumstances of the accident. His evidence as to whether he had put the vehicle into gear with the handbrake on had he driven the vehicle to the loading bay was based on a reconstruction as to his usual practice rather than any clear recollection of what he did on that particular day. Nor do I consider that it is entirely correct to say that Mr Jones lacks an interest in the case, since part of the plaintiff’s case levelled allegations of negligence against him.
I make the following findings on the balance of probabilities:
It was the first defendant’s employee, Mr Jones, who was responsible for driving and parking the utility in the loading bay prior to the accident, and who was the last person to drive the vehicle prior to the plaintiff’s accident.
The plaintiff fell from the tray of the vehicle to the ground below the loading dock.
His fall was immediately preceded by movement of the utility, which resulted from a failure to place the vehicle in gear or have the hand brake on.
The failure to so secure the vehicle constituted a failure to take reasonable care and was causative of the accident.
Quantum
Medical Evidence
Dr Coleman, an orthopaedic surgeon operated on the plaintiff’s elbow on 21 January 2004 and provided a number of reports. In his report dated 3 June 2004, Dr Coleman assessed the plaintiff’s permanent impairment as a 5% loss of function of his left arm. Dr Day examined the plaintiff on 23 February 2005 and also provided a report dated 25 February 2005. Dr Day assessed the plaintiff as having a 3% impairment of the upper limb as a result of loss of range of movement, although his assessment was higher if loss of strength was considered. He opined that there was a current impairment of 13% upper limb impairment, comprising 10% loss of strength plus 3% fixed flexion deformity, equating to an 8% whole person impairment.
Both doctors agreed that the plaintiff was unlikely to be able to return to work as a plumber because of pain in his elbow. Dr Coleman indicated that the operation he had performed would not alleviate that pain. His evidence was that operating plumbing tools such as a jack hammer or a kanga hammer could cause pain in the plaintiff’s elbow. Moving to lighter work was appropriate and there was no impediment to the plaintiff pursuing work as a plumbing inspector. Dr Day agreed that as a consequence of that pain, the plaintiff was unable to work as a plumber or lift any weights, although activities of daily living were reasonably well managed.
Dr Coleman noted that when seen by him in June 2004 the plaintiff was not using analgesics and the range of motion in the plaintiff’s elbow had materially increased. Dr Coleman also stated in his report that if the plaintiff continued in his current employment involving lighter work, he did not expect the plaintiff to need further surgery. Subsequently on 5 September 2006, Dr Coleman assessed the percentage likelihood of the plaintiff needing further surgery at 25% and placed a time frame of 5 to 15 years for that surgery. If surgery was necessary, Dr Coleman estimated the approximate cost of surgery, hospitalisation, including a prosthetic part if necessary to be between $5,000 and $10,000. In his subsequent advice Dr Coleman also noted that vibration from the use of a lawn mower might make the plaintiff’s arm sore.
In his report Dr Day stated that, if the plaintiff’s left elbow pain continued, he may need further surgery, namely a radial head excision and insertion of a prosthesis with a grommet and considered the plaintiff currently to be a candidate for such surgery, although he accepted that his symptoms may improve a little over time. He estimated the cost as between $8,000 and $10,000. He considered that if the plaintiff were to undergo such surgery he would be left with 10% upper limb impairment, which equates to 6% whole person impairment.
General damages
The plaintiff suffered significant injuries as described above, which resolved quickly except for the fracture of the elbow. I assess general damages at $35,000, including interest on past damages.
Special damages
The plaintiff has incurred pharmaceutical expenses and paid for elasticised elbow supports and chiropractic treatment. Further, the plaintiff has incurred travelling expenses of driving to visit doctors in Brisbane. The plaintiff’s claim for special damages is set out in exhibit 4 as being:
(a) WorkCover expenses $14,855.10
(b) HIC 1,123.75
(c) Pharmaceutical expenses, elbow supports and
travelling expenses 902.00
(e) Chiropractic treatment expenses 1,313.23
(f) Fox v Wood component 6,548.00
$24,742.08
The defendants admit theses items, save for the chiropractic treatment expenses, which it is accepted have been paid, but which the defendants argue were not reasonably incurred. I am satisfied that the plaintiff should be compensated for those expenses. WorkCover initially agreed to such expenses, though ceased to do so after a time and the plaintiff’s uncontested evidence was that he continued with the chiropractic treatment because it assisted in alleviating his symptoms.
The plaintiff’s claim of $24,742.08. Interest on $2,215.23 (items (c) and (e)) from 11 November 2002 to date (ie for 4.25 years) yields $472, rounded up.
Damages for future/recurring expenses
The only expense in this category is the possibility referred to by Drs Coleman and Day of future surgery. The estimated cost ranges between $5,000 and $10,000. I accept Dr Coleman’s evidence as to the degree of likelihood of the surgery as being a 25% chance. The defendant’s approach of allowing an average of the estimates of cost, namely $7,500 is a reasonable one. Allowing for a 25% chance of the surgery results in $1,875, which deferred for 7 years yields $1,398.75. I round the claim off to $1,400.
Past and future care and assistance
Since the accident, the plaintiff has received personal and domestic assistance from his wife and mother-in-law. The provisions of s 315 of the WorkCover Queensland Act 1996, which have been repealed, apply to the claim against the first defendant for gratuitous care and accordingly no claim is made for gratuitous care against the first defendant.
The plaintiff lives on a one and three-quarters acre block at Tanawha. It requires mowing which the plaintiff engaged someone to do as he has been unable to do it himself. Past mowing expenses are calculated for by the first defendant in the sum of $5,850 on the basis of allowing 5 hours per week at $18.00 per hour for 65 weeks. This compares with $5,200 claimed for by the plaintiff. I allow the claim of $5,200 made by the plaintiff. Interest is allowed at 5% thereon from 11 November 2002 (ie for 4.25 years) yielding $1105, rounded up.
As regards future mowing, I am not satisfied on the evidence that this cannot reasonably be undertaken by the plaintiff. Dr Coleman’s evidence was only that using a ride-on mower “might” cause soreness. I allow $5,000 for the cost of a ride-on mower. I note that the plaintiff has no difficulty in driving in general, including long distances.
Economic loss
The plaintiff was off work for about 12 months, eventually returning to light duties, which he was unable to continue because of the pain he experienced in his elbow. After ceasing work with the first defendant, a placement was found for the plaintiff at the Maroochy Shire Council in the plumbing inspector’s department as part of the plaintiff’s rehabilitation. In May 2004 the plaintiff obtained employment at Gympie as a plumbing inspector with the Cooloola Shire Council where he continues to be employed. The plaintiff applied for a position as a plumbing inspector with the Caloundra City Council reaching the interview stage. A position also became available at the Maroochy Shire Council, but the plaintiff did not apply as he wished to complete a Business Management Diploma, which he had commenced with the assistance of the Cooloola Shire Council.
The plaintiff makes a claim for past economic loss (leaving aside travelling expenses which are dealt with separately) in the amount of $31,237 as calculated in the submissions on behalf of the plaintiff. That claim is calculated on the basis that when the plaintiff commenced working for the first defendant in April 2002, his gross average weekly wage was $687.74. This equates to an annual gross income of $35,859 for the financial year 2002 to 2003. However, had the plaintiff remained with the first defendant, his employment terms would have altered in early 2005, when as with other employees, he would have been employed at an hourly rate of $28 for a 40 hour week, with no entitlement to annual leave, sick leave or any allowances. That amounts to $1,120 gross per week and a gross annual income of $53,760 (on the basis of working 48 weeks in the year). I accept that that represents an appropriate basis for relevant calculations (that is assuming a period of 4 weeks of leave only). The plaintiff’s gross earnings when he began with the Council were $42,352. By August 2005 after reclassification he received $47,844 gross income. His income for the year 2006 was $52,276. I consider the plaintiff’s calculations are appropriate to compensate the plaintiff for past economic loss and I allow $31,237 for that claim.
In addition to the claim of $31,237, the plaintiff is entitled to interest at 5% per annum on $2,653.04 (after allowing for the plaintiff’s interim receipt of nett period workers’ compensation of $28,583.96) from 11 November 2002 (ie for 4.25 years). This yields $565, rounded up.
The plaintiff is also entitled to compensation for past loss of employers’ contribution to superannuation. It is accepted that the appropriate tariff for the calculation is 9% on $31,237, resulting in an award under this head of $2,811. Interest on that amount at 5% over 4.25 years is $599, rounded up.
As to future economic loss, the plaintiff contended for a global assessment of $60,000 in respect of future impairment and the disadvantage he would face on the open market. The figure of $60,000 would allow the plaintiff some 18 months of prejudice or disadvantage on the open labour market. However, the first defendant’s counsel submitted that a modest sum was adequate as a buffer against any period he might in the future find himself unemployed and that a figure of $40,000 was sufficient. In this regard, counsel observed that the plaintiff has demonstrated that he is able to manage the transition to sedentary work well. He has undertaken further studies and during his rehabilitation process undertook CAD drawing. The plaintiff has had the benefit of some further training and has demonstrated that there are a range of skills within his capacity. He has undertaken studies with a view to enhancing his prospects of maintaining employment. It is likely that he would pursue ongoing employment with a council in the sort of position that he presently holds. In those circumstances, I am satisfied that a global award of $40,000 is adequate to compensate for future economic loss.
The plaintiff is entitled to an award for loss of employers’ contributions to superannuation in respect of the $40,000 global assessment calculated at 9%. That yields $3,600.
Travelling expenses
The plaintiff incurred expenses in travelling to his new place of work. There is agreement as to the quantum of these expenses. The defendant has agreed to the figure of $32,103 for past travelling expenses and $19,706 for future expenses (based on an allowance for a further 18 months during which the plaintiff will remain working with the Council, but after which the plaintiff may reasonably be expected to find employment more locally). It is agreed that interest at 5% on past travelling expenses is to run from 5 May 2004, the date of the plaintiff’s employment with the Cooloola Shire Council (ie for 2.75 years). This yields $4,414.
Conclusion
The plaintiff is awarded damages in the amount of $158,374.21:
(a) general damages, including interest $35,000.00
(b) special damages $24,742.08
(c) interest on $2,215.23 $472.00
(d) future/recurring expenses $1,400.00
(e) past care - mowing $5,200.00
(f) interest thereon $1105.00
(g) future care –mowing $5,000.00
(h) past economic loss $31,237.00
(i) interest on past economic loss $565.00
(j) loss of past superannuation contributions $2,811.00
(k) Interest thereon $599.00
(l) future economic loss $40,000.00
(m) loss of future superannuation contributions $3,600.00
(n) past travel expenses $32,103.00
(o) interest thereon $4,414.00
(p) future travelling expenses $19,706.00
$207,954.08.
Less WorkCover charge $49,579.87
Total damages $158,374.21
Accordingly, I award the plaintiff damages against the first defendant in the sum of $158,374.21. I shall hear the parties as to costs.
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