Tregea v Mandine Nominees Pty Ltd
[1999] VSC 482
•30 November 1999
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION
Not Restricted
No. 1370 of 1996
ROSS KINGSLEY TREGEA Plaintiff v MANDINE NOMINEES PTY LTD Defendant
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JUDGE: Ashley J WHERE HELD: Warrnambool DATE OF HEARING: 25-28 October 1999 DATE OF JUDGMENT: 30 November 1999 CASE MAY BE CITED AS: Tregea v Mandine Nominees Pty Ltd MEDIA NEUTRAL CITATION: [1999] VSC 482
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TORTS – industrial accident – breach of duty – no contributory negligence – quantum of damages
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APPEARANCES: Counsel Solicitors For the Plaintiff Mr. R.J.K. Meldrum QC with Maddens Lawyers, Mr T.P. Tobin Warrnambool For the Defendant Mr C. Thomson Middletons Moore & Bevins,
Solicitors
Melbourne
TABLE OF CONTENTS
THE CLAIM...............................................................................................................................................................1
THE INCIDENT.........................................................................................................................................................1
BREACH OF DUTY/CONTRIBUTORY NEGLIGENCE ....................................................................................3
THE INJURIES ..........................................................................................................................................................7
PAIN AND SUFFERING DAMAGES ...................................................................................................................12
PECUNIARY LOSS DAMAGES............................................................................................................................12
CONCLUSIONS:......................................................................................................................................................19
HIS HONOUR:
The claim
Ross Tregea, the plaintiff, claims damages from a past employer arising out of injury which he says that he sustained in June 1993 when lifting a treated pine post from a steel framed pallet with a customer.
The incident
The defendant did not deny, as the trial progressed, that an incident broadly as the plaintiff described had occurred; or that the plaintiff had thereby suffered injury.
Evidence of the incident was given by the plaintiff and the customer, Mr Robert Harrison. The latter's recollection of the event was sketchy. Where his account and that of the plaintiff diverged, I generally prefer the evidence of the plaintiff.
The evidence satisfies me of the following matters:
On the day in question the plaintiff was asked by the son of the effective proprietor of the business to assist a client who wanted some fence posts. He, the plaintiff, walked to an open area at the rear of the defendant's main shed in which it conducted a farm supplies and timber business. In the open area were a number of steel framed pallets on which rested posts of various sizes. The posts were contained on the pallets by steel uprights of about a metre in length which were welded to the four corners of the pallets.
The pallet from which posts were needed on this occasion was positioned on a gravel surface adjacent to a paved driveway leading from the shed.
The long side of the pallet was parallel to the driveway. The posts, which were so-called 6 to 8 inch strainer posts, 8 feet in length, and recently treated, lay on the pallet parallel with its long side – and thus parallel to the driveway.
The customer had parked his vehicle and a trailer on which the posts were to be placed in the vicinity of the pallet, and on the paved driveway.
The customer wanted the heaviest and straightest posts on the pallet. Posts on the pallet were shifted about in order to locate posts suitable to the client's needs. The plaintiff and the customer took part in the necessary work.
A number of unwanted posts built up on the side of the pallet closest to the driveway, and thus closest to the customer's vehicle and trailer.
Then it came time to remove the first selected post from the pallet. The plaintiff intended to do the job by each of he and the customer grasping the post at its ends, and then, keeping it parallel with the long side of the pallet, lifting it over the other logs and the corner uprights on the driveway side, before loading it onto the customer's trailer.
The plaintiff and the customer in fact grasped the opposite ends of the post, and lifted it. But then the customer pulled the post away from the plaintiff, as if to remove it from the pallet at the end at which he, the customer, was standing. The plaintiff, meanwhile, had started to move to his left in order to do the job as he supposed it was to be done. The upshot was that, instead of the end of the post which the plaintiff was grasping being held close by his body, his arms began to be drawn away from his body. That imposed much more strain upon him. It can be expected that there was a very significant increase in his intra abdominal pressure. He had the onset of discomfort in his right groin. He had developed an inguinal hernia.
The question whether the post was a 6 to 8 inch strainer or an 8 to 10 inch strainer was debated. The plaintiff maintained that it was the latter. Mr Harrison's recollection, prompted by seeing an invoice which was no longer extant at trial, was that the post was a 6 to 8 inch strainer. I think it is likely that the strainer was the biggest and heaviest post (or amongst the biggest and heaviest posts) that could be found on the pallet, that pallet containing 6 to 8 inch strainers. That accords with the evidence of Mr Robert Errey, son of the effective proprietor, who commented upon a photograph of a pallet of posts similar to that which the plaintiff said he had lifted. Mr Errey's evidence was, by common consent of counsel, intendedly honest, and reliable.
The weight of the post was debated. The plaintiff estimated the weight of the posts on the pallet at 80 to 90 kilograms each. Mr Hanson estimated the weight of the particular post at 50 to 60 kilograms.
Mr Purdey, a consulting engineer, attended the defendant's premises in September 1997. The plaintiff had picked out a post which he said was representative of the size of post which he had lifted on the critical occasion. Its diameter was measured at 200 millimetres (that is, a little less than 8 inches). Its weight was 45 kilograms overall. But, depending upon the density of the critical post (no doubt including the effect of recent green treating), its weight could have been in excess of 80 kilograms.
All in all, it seems to me probable that the post had a diameter approaching 8 inches; and that its weight was, if not 80 kilograms, then close thereto. That is compatible with the customer finding the biggest and straightest post; and with the post having been, as the plaintiff said, recently green-treated.
Breach of duty/contributory negligence
The job was a relatively simple one. But the weight of the post was such that, particularly if the lift was performed by a man whose arms were well away from his body, then the lift far exceeded maximum recommended values, and carried with it a readily foreseeable risk of injury associated with significant increase in intra abdominal pressure.
In the present case I am satisfied that the way in which the job unfolded meant that the plaintiff was lifting with his arms well away from his body, and that this led to his sustaining injury in the readily foreseeable way to which I referred a moment ago.
The job came to be performed in that way, I am satisfied, because the plaintiff and the customer had no common plan of attack. The plaintiff intended to do the job in a way in which he had often done it in the past – both with other customers and when working with Mr Robert Errey. That was the way in which Mr Errey considered the job should be done, if it was to be done manually. Clearly, it was not the way that the particular customer, Mr Harrison, thought the job should be done. But the plaintiff did not know that.
It is clear on the evidence that it was an accepted means of doing the job that it be done manually. There was a forklift on site. But the evidence shows clearly that there was no directed or enforced system of using the forklift to remove individual strainer posts from pallets – though on a few occasions the plaintiff had so used it. Use of the forklift would, indeed, have been difficult at times; and would have given rise to its own dangers. As the posts were arranged on the particular occasion, I add, its use would not have been practical.
It is further clear on the evidence that it was an accepted means of doing the job that it be done manually by a worker and a customer. At times the plaintiff and Robert Errey lifted posts together. But that reflected accident, not system.
Adoption of a system of manual handling of strainer posts by a worker and a customer foreseeably created, in my opinion, foreseeable risk of injury in consequence of uncoordinated action. It might fairly be said that the system invited the very sort of problem that occurred.
In my opinion there was an evident failure by the defendant, in the circumstances described, to prescribe, implement and enforce a safe system of work. A safe system of work required, sensibly, either use of two employees working to an agreed plan – so long as the strainer post was not too heavy; or if two employees were not available, or the post was too heavy, then the use of the forklift after the post which was to be lifted had been manoeuvred into a position accessible to the tines of the forklift; or otherwise the use of the forklift in conjunction with a pallet system that allowed ready access to posts. I consider that it would not have been sufficient to prescribe use of the forklift in the event that a particular customer declined to assist, or was assessed as having insufficient strength to assist the employee. That was the way Robert Errey seems to have approached the task. But he did not suggest that the plaintiff had been given any pertinent instruction. Had there been such instruction, it would have placed the plaintiff at the mercy of manual handling of posts with customers, subject only to refusal by a particular customer to assist; or upon an assessment of the customer's strength based on no necessarily reliable criteria.
It might be argued that the manual handling system was acceptably free of risk if the employee and customer engaged in coordinated action. That was not necessarily so. It is likely that some strainer posts were too heavy for manual lifting even by two men keeping their arms close to their bodies. But assuming that a particular post was not intrinsically too heavy, the difficulty of achieving co-ordinated action lay in the natural diffidence of an employee to give instructions to a customer; and in the real risk that the plaintiff would suppose, from past experience of lifting posts with Robert Errey and other customers, that the particular customer would carry out the lift in a similar fashion to those other lifts.
The defendant amended its particulars of contributory negligence on the first day of the trial to allege the following –
A. Failing to use the forklift available for the task.
B. Failing to seek additional assistance.
C. If the plaintiff did attempt to lift the post over the uprights, failing to use alternative means such as removing it sideways.
In his final submissions counsel for the defendant contended that contributory negligence was of the order of 15%.
In my opinion the defendant plainly did not discharge the onus of proof of contributory negligence. Assuming that the forklift was available, the defendant's case asked me to conclude that the plaintiff was guilty of contributory negligence by doing the job in accordance with an accepted system of work and not making use of a system that was not in use. Contributory negligence is not available in that circumstance. Moreover, the disposition of the job that day suggests that it would not have been practical to use the forklift. To do so would not have obviated lifting and would have caused its own dangers.
Then, as to particular B, again the plaintiff was doing the job according to an accepted system. Indeed, the plaintiff was cross-examined to show that the system that he sought to employ was the system in use; and that it was safe. The defendant seeks a conclusion that the plaintiff was guilty of contributory negligence by not making use of a system that was not in use. Further, assuming for the moment that the post was not too heavy for manual handling, the plaintiff did not require additional assistance. Rather, he required that the available assistance was given in an appropriate manner.
Particular C could not be made out in light of the evidence of Robert Errey and Mr Purdey. Counsel for the defendant conceded that Mr Errey's evidence condemned the allegation to failure. Mr Errey was clear that lifting the post as the plaintiff sought to do was the right way to do the job manually. Removing the post as the customer sought to do, as Mr Purdey's report shows, was apt to cause an increase in intra abdominal pressure which carried with it real risk of injury. Yet that is the way in which particular C proposes that the job should have been done.
I should finally note, in connection with the plea of contributory negligence, that during the trial I left it open to counsel for the defendant, Mr Thomson, to apply to amend the particulars to allege something along the lines that the plaintiff should have, but did not, ensured that the lift was carried out in coordinated fashion. No application to amend was pursued. I do not say that it would have raised a matter of substance. I simply note what occurred.
In the event, the plaintiff has made out breach of duty of his employer; and the defendant has not made out its plea of contributory negligence.
The injuries
A large number of medical and allied reports were tendered in evidence – reports from treating doctors and reports from doctors who have examined the plaintiff for medico legal purposes, reports from surgeons, psychiatrists, general practitioners; and as well reports from the Commonwealth Rehabilitation Service.
In my opinion the reports disclose the nature of the plaintiff's compensable injuries very clearly. I have reached these conclusions:
First, in the incident described the plaintiff suffered a recurrent right inguinal hernia.
Second, surgery to repair the hernia on 18 June 1993 resulted in entrapment of a nerve which supplies sensation to the right groin. There is likely to have been entrapment of another nerve which supplies sensation to part of the right thigh.
Third, surgery performed on 18 June 1993 resulted in atrophy of the plaintiff's right testis – probably by compromising blood supply to the testis.
Fourth, the plaintiff suffered pain in the groin and right testis following surgery to repair the hernia; and he developed sensory disturbance affecting the groin and parts of his right thigh.
Fifth, the atrophied testis was surgically removed in May 1994; and at the same time entrapped nerve tissue was identified and resected. The latter procedure meant that there would be an area of permanent sensory impairment.
Sixth, accepting that the plaintiff was left with a degree of sensory disturbance affecting his right groin, and probably part of his right thigh, it is clear that soon after surgery in 1994 he developed a wide range of symptoms and disabilities which – at least as to the vast majority – were not organically determined. It is unnecessary to set out that wide range of symptoms and disabilities. By not doing so it should not be thought that I have minimised them when considering the quantum of damages.
Seventh, the plaintiff's presentation since soon after surgery in May 1994 has been dominated by the non-organic component of his illness. I am satisfied that it has not involved any conscious elaboration by the plaintiff.
Eighth, the non-organic component of the plaintiff's illness should be characterised as a depressive disorder, with features of anxiety. It is likely that the depressive condition has distorted the plaintiff's perception of the modest organic symptoms which have been present since 1994 and which continue to be present.
Ninth, the psychiatric disorder developed as a reaction particularly to the damage to the plaintiff's genital organs. Loss of the testis represented to the plaintiff "significant damage not only physically but also to his body image and sense of masculinity" (Report of Dr L. Walton, psychiatrist, dated 6 February 1996; see also the report of Mr W. Radley, psychologist, dated 29 March 1999 at p.4). The loss of the testis was, I consider, important in the case of a man who had fathered children and undergone a vasectomy when quite young; and thereafter, before the accident, had been twice left by his wife (in each instance, it appears, she became pregnant and underwent a termination – see Mr Radley's report dated 29 March 1999 at p.4). The loss of the testis, keenly felt by the plaintiff (he said in evidence: "as it went on, I was missing it") seems likely to be the explanation for the insertion of a prosthesis earlier this year.
Tenth, the sensory disturbance which affects the plaintiff's right groin and probably part of his right thigh is permanent. But viewed alone it should not prevent the plaintiff carrying on employment across a broad spectrum. In the past the plaintiff performed a variety of work. Whilst some of it involved heavy manual labour, other of it involved only modest levels of physical activity, admixed with administrative work.
I do not doubt that, from a physical standpoint, the plaintiff should be able to engage in most of the work in which he engaged prior to his injury in June 1993. It is to be noted that when physical symptoms were likely at their worst – that is, between June 1993 and May 1994 - the plaintiff carried out (albeit with the use of painkillers) a fair proportion of his pre-injury duties with the defendant; and that he resumed duties again after surgery in May 1994 – probably working seven hours per day immediately before his retrenchment in August that year.
Eleventh, I do not accept the submission of Mr Meldrum for the plaintiff that his client has been and will permanently remain afflicted by psychiatric disability, it being productive of substantial and distressing symptoms. I accept that the wide range of symptoms and disabilities from which the plaintiff has subjectively suffered since soon after surgery in May 1994 have made the plaintiff's life a very miserable one in the intervening years. But I do not accept that the plaintiff will always be saddled with symptoms and disabilities of such magnitude.
In connection with the last of those conclusions I should refer to the opinions of the relevant specialists.
In April 1999 Dr Ivers, the psychiatrist, considered that the plaintiff's depression had significantly improved in the preceding several years. He did not regard the plaintiff's then symptomatology as serious. On the other hand, he considered it unlikely that the plaintiff would have any sustained period free of depressive symptoms in his life. He was not of opinion that the plaintiff required treatment by a psychiatrist. He did not address the issue of work capacity from the standpoint of a psychiatric injury.
Mr Radley, the psychologist whom the plaintiff has consulted on 55 occasions since mid 1994, reported in late March 1999. He accepted (which I do not) that the plaintiff continued to experience quite significant pain and physical disability. Recent testing was said to reveal an "overall very high level of psychological and emotional distress", with particular concern on the plaintiff's part about the state of his physical functioning. Focussing on the plaintiff's want of education, and his past employment in "semi-skilled occupations of a predominantly manual practical character", Mr Radley concluded that "if it were not for his apparently quite substantial physical injury and impairment Mr Tregea's employment prospects would generally be quite good". But because of that injury and impairment the plaintiff was "now not able to use nearly all of his transferable work skills". Complicating the plaintiff's employment prospects were some of his psychiatric symptoms – poor concentration, impairment in short term memory, social anxiety and thought confusion, and episodes of poorly controlled anger. Nonetheless, Mr Radley said that "when (the plaintiff's) compensation matter is settled I will be strongly encouraging him to consider some form of occupational retraining". He considered that it was likely to take up to five to six years for the plaintiff to achieve "some sort of qualification in preparation for a more sedentary occupation"; and even then "employment prospects will be very limited".
Dr Kornan has examined the plaintiff on a number of occasions on the defendant's behalf. As at 1998 he considered that the problem (assuming the plaintiff to be genuine – which I do) was a conversion hysteria (brooding and introspection) and very mild anxiety and depression. He considered that the plaintiff was "fully fit for any work (he was) motivated to do". The plaintiff lacked motivation. He had become a "house husband" and was receiving compensation whilst his wife worked. Dr Kornan said "the correct medical treatment for him is a conclusion of all litigation".
Dr Kornan's opinion correlates, I consider, with the opinion expressed in a Commonwealth Rehabilitation Service report dated 16 April 1997, viz, that although the evidence appeared to show that from a purely physical viewpoint the plaintiff could return to his previous employment, that was then impossible because of
• the plaintiff's perception of his capacity; • ongoing medico-legal issues; • the plaintiff's decision to be the home carer; • the plaintiff's chronic pain behaviour.
I have considered the various opinions to which I have been referring in the context of the evidence generally. Having done so:
I do not accept that the plaintiff is as physically disabled as Mr Radley
assumes. That conclusion impacts significantly upon Mr Radley's assessment
of the plaintiff's situation in the future.
•
I do accept that the plaintiff has become a house husband; and that this has affected his motivation to work. When I asked him whether, he being a house husband, paid work was now off his agenda, there was a very substantial pause before he replied in the negative. I do not think that by his answer he attempted to deliberately deceive me. But his pause reflected, I consider, his partial but imperfect understanding of the ambiguity of his position.
•
• I consider that within the plaintiff's psychiatric presentation is a
substantial element of anger – particularly, anger that the hernia surgery did not cure him, but rather made him worse; anger also that this employer dismissed him in 1994 – though I am satisfied that this would have occurred whether or not the plaintiff had suffered injury. I consider it likely that the more the plaintiff is forced to concentrate upon the circumstances of the injury, the surgery and its aftermath, the more his anger and thus his overall psychiatric disability is likely to persist. In that context, completion of this proceeding (which was originally brought both against the employer and the doctor who operated in June 1993) is likely to be therapeutic.
I recognise the fact that the plaintiff had had psychiatric symptoms which have now persisted for over five years, albeit with some degree of resolution. It is possible to conclude, and I do, that final resolution of litigation is likely to lead to amelioration of the plaintiff's psychiatric condition; and yet to conclude, as I do, that amelioration is unlikely to occur immediately.
•
In the event, it seems probable to me that the plaintiff will have a progressive and substantial improvement in his psychiatric condition over a period of several years after completion of litigation; and that he will then be left with some low level symptoms of depression correlating with what he will then understand to be a relatively low level of permanent physical discomfort. That residual depression is likely to be a permanent feature of the plaintiff's life.
Pain and suffering damages
Mr Thomson submitted than an appropriate range was perhaps $80-100,000. Mr Meldrum submitted that if, which was likely, the plaintiff did not make significant improvement, the appropriate figure would be in the order of $200,000; and that in the improbable event that the plaintiff did significantly improve, then $150,000.
Considering as I do that the plaintiff is likely to make significant improvement over the next several years, the plaintiff should be compensated for what has been for him a very miserable last six years. He should be compensated on the footing that there will be a period of progressive adjustment, and that he will then be left with some permanent discomfort in his groin and right thigh, and as well a low level of depressive symptoms. The plaintiff should be compensated on the basis that employment was not only a source of income to him, but a source of some enjoyment; enjoyment which is likely to be denied to him for several years yet, but not permanently. He should be compensated on the basis that his farming interests, which he enjoyed, have been much curtailed in recent years; but that they should not be treated as being permanently denied him. He must be compensated also for the interference there has been to his enjoying the simple pleasures of life which he described in his evidence; but not on the basis that those pleasures will be permanently denied him. And he must be compensated also for the loss of his testis. In all the circumstances, I consider that an appropriate award of pain and suffering damages is $120,000.
Pecuniary loss damages
The parties agreed upon a loss between August 1994 and the present time of $116,000. That assumed regular employment in a job in which the plaintiff earned a salary similar to that which he earned with the defendant. It included also a Fox v Wood component. It did not include any allowance for net profit from the plaintiff's pastoral activities.
In my opinion the plaintiff should be regarded as having been wholly incapacitated for employment between August 1994 and the present. I have reached that conclusion notwithstanding that I am satisfied that the plaintiff was not retrenched in August 1994 because of his injury; and notwithstanding that the plaintiff thereafter came to see himself as a house husband, this affecting his motivation to work. From very soon after August 1994 the plaintiff was at a very low ebb psychiatrically. His psychiatric condition was compensable. The plaintiff's perception of himself as a house husband was intimately related with his psychiatric disability.
The plaintiff was a man who left school when he was 16 and thereafter engaged in quite a large number of employments until the age of 33 when he was injured in the defendant's employment. Three times he suffered what seem to have been quite significant injuries. From these he recovered and got back to work. His motivation to work, I am satisfied, was good. There were, however, gaps between his employments – of up to three to four months. He had been only a few months employed by the defendant when he suffered injury. He would have been retrenched when he was – that is, in August 1994 – regardless whether he had suffered injury.
The past agreed loss needs to be discounted to reflect the fact that the plaintiff would have lost his job with the defendant in any event, and to reflect the plaintiff's past work pattern – one which, despite the plaintiff's keenness, was not unbroken. I consider that the discount should be the equivalent of about four months' work in the approximate five years since August 1994.
The plaintiff's claim for pecuniary loss damages should also be discounted, as counsel agreed, to reflect receipt by the plaintiff of some $4,6000 in a claim which he made against his employer for wrongful dismissal. It is a moot point, and it was not argued, whether the discount should be allowed against past loss of earnings or against loss of earning capacity. Nothing was said to turn on that question. I will discount the sum against the agreed figure for earnings loss to date.
I should also discount the agreed sum by a little to reflect the other contingencies of life. It is the fact, as I have pointed out, that the plaintiff had during his working life experienced a number of incapacitating injuries. Such incidents could always occur in the course of manual work, as well as in life generally.
Overall, putting the question of possible profits from pastoral activities to one side, I assess past loss of earnings at $100,000.
I turn to the plaintiff's claim for loss of earning capacity. Again, for present purposes, I exclude the plaintiff's claim based upon his asserted inability to generate on-farm profits.
The parties agreed that if the plaintiff was now employed by the defendant he would be earning $475 gross, $380 nett; and that in July 2000 the taxed off figure will become $392. The parties also agreed that the plaintiff would be receiving the value of an employer's superannuation contribution of $33.25 per week. Obviously, the receipt of the benefit of such a contribution would in ordinary circumstances be long delayed.
Mr Meldrum submitted that the plaintiff has now been five years out of work and is nearly 39. He lives in a country environment where work is scarce and where the reputation of a man as a worker may easily be scarred. His situation has remained, psychiatrically, in statu quo over quite a long time. He has not managed to adjust to his injury and its effects as he did in the case of earlier injuries. The probability is that he will remain in statu quo. But if he does not, rehabilitation will not be rapid, and the plaintiff will in any event face the stigmata of a prolonged period of injury – related incapacity when seeking employment. And he will then be of an age, in any event, where obtaining employment is more difficult for an unskilled or semi-skilled man. The plaintiff is a man fitted for manual work. His administrative and clerical skills are limited. Mr Meldrum submitted that I should take as a starting point the proposition that the plaintiff is permanently incapacitated for all work for which he is skilled; and discount it for the chance that the plaintiff will become fit for and obtain some work. He contended that the discount, taking into account all necessary considerations, should be not more than 15% - which would in truth be a larger discount, he argued, because it would put no value on the vegetables which they plaintiff grew for his family's consumption in the past. Taking projected farm income into account, he submitted, applying the agreed multipliers to ages 60 and 65, that the appropriate range of figures for loss of earning capacity was $350- 400,000.
Mr Thomson submitted that the burden of the psychiatric evidence was that the plaintiff is adjusting to his situation. In the not too distant future he will overcome or minimise his reaction to the point where he will regain his skills and confidence to work. There may be a requirement for a graduated return. But the plaintiff has had a pretty wide range of work experience on which to call. He should be able to return to the type of work he performed when employed by the defendant. Mr Thomson drew attention to the fact that, at one point in his evidence, the plaintiff himself had conceded that he had not been totally incapacitated since August 1994. He submitted that I should not find that there is a significant continuing loss of earning capacity, although a period of a year could perhaps be allowed to permit some retraining, for a settling down period. Beyond that, a modest allowance might be made for an ongoing impairment – perhaps $50-100 per week; or a lump sum might be assessed on a broad brush approach in order to account for any such impairment. Mr Thomson submitted that discounts should reflect the essentially labouring nature of the plaintiff's past work; and the risk of other injury.
In my opinion the approach contended for by Mr Thomson should generally be accepted. In that connection my conclusion that the plaintiff's psychiatric condition is likely to improve very substantively in the next two years, and that at the end of that period he will be left with a degree of groin and thigh discomfort and low level symptoms of depression, is of importance.
I am prepared to conclude that the plaintiff will not be fit for or in fact obtain work in this period of adjustment. But I am not prepared to find that then, aged 41, he will be unfit for work, or that he will neither seek nor obtain work. Physically he will be capable of nearly all the kinds of work that he performed in the past. His past employment history does not compel him to do the heaviest work or nothing. Given his lack of education and clerical skills, he has competently handled work involving a degree of administration. Psychiatrically, he will have adjusted to seeking out employment, and holding it when it is obtained. It is true that he will then have been seven years out of work; but I do not consider that this will decide, adversely, the fate of his job-seeking. In the past, the plaintiff has shown himself able to obtain work of a variety of types in country districts to which he has recently moved. That tells in favour of his ability to obtain work, given self-motivation.
I think that it is right to conclude that, at the end of the two year period, work that the plaintiff obtains is likely to be at no lesser wage than the plaintiff earned before his accident. His earnings were always quite low.
Beyond the next two years, the plaintiff will have, as I have said, a modest physical and psychiatric impairment. I think it is fair to conclude that the former may be exacerbated by the heaviest physical strains; and that for that reason the plaintiff's areas of potential employment will be just a little confined by comparison with his pre-accident situation. That may well lead to there being slightly longer breaks between jobs than was hitherto the case. I think it is also fair to conclude that the plaintiff's depressive symptoms may vary a little from time to time; and that they may at their worst bring about short breaks in employment. It is obviously impossible to be precise about the employment effects of those considerations, but I estimate them to be the equivalent of something between one and two months' work each year – in money terms, about $50 per week over a 52 week period. I consider it right to take that figure out to age 60 in a labouring man; and to discount only to a small extent what is a modest allowance for the residual impairment.
Treating the plaintiff's earning capacity as presently being about $410 nett per week (that is, broadly including, on an immediate basis, the value of the employer's superannuation contribution), and in order to make use of the multiplier to age 60 (793), I assess the claim for loss of earning capacity (excluding the claim for loss of profits from pastoral activities) as follows:
• $410 less $50 = $360 x 2 years = $37,500 approx. • $50 x 793 = $39,650 • less discounts = $70,000 overall
I have on a number of occasions mentioned the plaintiff's claim for loss of profits from pastoral activities. According to this claim the plaintiff and his wife, in a true partnership, were building up a herd of beef-bred females, running them (and some sheep) partly on leased land and partly on an agistment basis. The intention was to build up a herd of a hundred breeding females, which, it was said, would have been profitable. The plaintiff's injury put an end to the operation. Stock had been sold. According to the plaintiff's claim, the prospective loss of profits up to 27 October 1999 was some $35,000. This was a projected partnership profit; and was untaxed. Mr Meldrum submitted that I should treat the plaintiff's partnership share as being 50% in this period and that tax should be applied at a rate of, say, a third. He argued that I should allow $10,000 for past loss of profit from pastoral operations.
Then, as to the future, Mr Meldrum submitted that I should conclude that pastoral profit would stabilise at about $6,600 per annum. I should treat the plaintiff as having a true partnership share of between 50 and 75% - say two thirds. Then I should tax off that share by a third. He advanced a bottom line figure of $80 per week. But that did not take account of income tax. The taxed-off figure, on the above assumptions, would be $56 per week.
Mr Thomson submitted that I should make no allowance for past or future loss of profit on pastoral operations. He contended that the business had always operated at a loss, that assumptions made by the plaintiff's agricultural expert, Mr Allan, were flawed, and that in any event the plaintiff had not been and would not in the future be precluded from farming work.
I do not doubt that the plaintiff has had a long-term and genuine interest in breeding stock – particularly cattle, but also sheep. I am quite unpersuaded, however, that he would ever have turned that interest into a profitable venture. The plaintiff's tax returns show that the venture had always been unprofitable. I do not agree with the plaintiff's suggestion that this was explicable by his building up stock numbers.
Mr Allan's report is the foundation of the claim. It assumes a venture of a very different kind than that previously conducted. It assumes a lease of land at a commercial price – rather than bits and pieces of land for which cheap rental was paid. It assumes a different, reduced pattern of setting expenses against income. It assumes sale prices far higher than those for which the plaintiff himself budgeted. In order to achieve projected increases in numbers it assumes an ability on the plaintiff's part to inject $7,400 into cattle purchases in the 1993/94 financial year; and it assumes an extremely high rate of retention of heifers for breeding purposes.
I am not prepared to accept that the plaintiff would have conducted an operation on the lines assumed in Mr Allan's report. The pattern of purchases both before the accident and in the several years thereafter, when the operation continued much as it had earlier done – albeit that the plaintiff limited his own physical involvement – is not the pattern assumed by Mr Allen. It is not a pattern which supports the plaintiff's claim that the operation would have become profitable.
Mr Allan drew a favourable conclusion about the plaintiff's operation based upon the few cattle that the plaintiff still had when he, Mr Allan, assessed the situation this year. It seems very likely to me that the few stock which remained were the best of the herd; and having regard to the pre-accident pattern of purchases it seems unlikely that they were representative of the stock which had been disposed of in the intervening years.
Accepting, then, the plaintiff's genuine intentions with respect to stock breeding, and accepting that he has very much scaled down his operation in the years since 1994 because he has subjectively felt incapacitated from doing necessary work, I cannot accept either that the breeding programme would have developed in the manner projected by Mr Allan, or that it was likely to have reached a position of profitability.
The plaintiff's claim in this connection fails without my considering whether the plaintiff should in the future be regarded as incapacitated for stock work. In fact I would be reluctant to reach that conclusion.
Conclusions:
The plaintiff's claim against the defendant succeeds without reduction for contributory negligence. Subject to any adjustments that might need to be made, there should be judgment in the plaintiff's favour for $170,000 pecuniary loss damages and for $120,000 pain and suffering damages.
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