Wilmink v Pinkerton Investments Pty Ltd
[2012] QDC 394
•21 December 2012
DISTRICT COURT OF QUEENSLAND
CITATION:
Wilmink v Pinkerton Investments Pty Ltd [2012] QDC 394
PARTIES:
ANDREW PETER WILMINK
(Plaintiff)AND
PINKERTON INVESTMENTS PTY LTD
(Defendant)FILE NO/S:
BD2422/11
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court
DELIVERED ON:
21 December 2012
DELIVERED AT:
Brisbane
HEARING DATE:
10, 11 and 18 December 2012
JUDGE:
Reid DCJ
ORDER:
Judgment for the Plaintiff in the sum of $351,526.59
CATCHWORDS:
Personal injuries – Fracture of left tibia and fibula – Damages
COUNSEL:
D. Kelly for the Plaintiff
R. Morton for the Defendant
SOLICITORS:
Ehrich Monahan & Tisdall for the Plaintiff
Bruce Thomas Lawyers for the Defendant
In this action the plaintiff claims damages for personal injury suffered on 22 May 2008 in the course of his employment with the defendant. He suffered a compound fracture of his left tibia and fibula. Liability has been admitted.
Background and employment history
The plaintiff was born on 11 December 1980; he was thus 27 years of age when injured and is now 32. He is a single man.
After completing year 12, he obtained an OP score of 13. He attended TAFE doing an IT course for one semester but did not do well. I am sure this was because he did not enjoy the course as he strikes me as a man of intelligence and one who is hard-working. He had worked part-time at Clifton Park Turf Farm from the age 14 years and nine months and approached them after he finished at TAFE seeking full-time employment. He has worked on turf farms ever since. He has over time developed a particular expertise with soft leaf buffalo grass. He appears to enjoy outdoors work but is, in my assessment, intelligent. I formed the view that he is certainly capable of running a turf farm. I have no doubt that but for the accident he would have been successful in his future career whether as a sought after employee or through owning his own turf farm.
It is agreed between the parties that his income from employment is properly summarised in the following table:
| Year Ended June | Gross Earnings | Net Earnings | Earnings per week from employment |
| 2005 | $29,054 | $22,964 | $440 |
| 2006 | $43,371 | $34,086 | $653 |
| 2007 | $43,540 | $33,821 | $648 |
| 2008[1] | $41,726 | $33,793 | $706 |
| 2009[2] | $31,775 | $26,911 | $685 |
| 2010 | $46,211 | $34,835 | $668 |
| 2011 | $53,626 | $42,482 | $814 |
| 2012 | $66,186 | $51,453 | $986 |
| 21/11/2012 (20.6 weeks) | $27,216 | $21,357 | $1,036 |
[1] The plaintiff was injured on 22 May, so worked only about 47 weeks. In this year he also received WorkCover payments of $3,685 gross and $3,068 net. His net weekly income inclusive of WorkCover was thus $706 per week.
[2] In this year he also received WorkCover payments up to 1 November 2008 totalling $10,131 gross and $8,806 net. His net weekly income inclusive of WorkCover was thus $685 per week but his weekly earnings from employment are difficult to calculate with precision.
After he was injured he was off work for some two months. When he returned to work he did so initially part-time under the supervision of an exercise psychologist
from Balance Rehabilitation. I gather from Exhibit 1 Doc 7 that by the end of October 2008 he was working six hours per day, five days a week and it was anticipated he would return to a full eight hour day within a further period of two weeks.
In late 2009 the defendant sold the turf farm where the plaintiff was employed (see Exhibit 7). He was not re-employed by the new owners. He gave evidence, which I accept, that all other workers were re-employed by the new owners. I infer this was because of the obvious incapacity he had arising from the subject injury. He was then unemployed for a period of about seven weeks up until 2 December 2009.
Over that time he made significant efforts to obtain work but was unable to do so until he obtained work with his current employer, Turf Force, from early December.
After the plaintiff had worked there for a few months he was offered a position as a spray technician with the business. The plaintiff told me he had a chemical application certificate which allowed him to do this job.
The plaintiff described in his evidence the nature of work on a turf farm. I accept that whilst not excessively heavy it is demanding work much of which requires long hours on one’s feet. The work of a weeder for example involves walking, as the plaintiff described, up to 20 to 30 kms per day and bending and kneeling to pull weeds by hand. Such work would be beyond the plaintiff given his current disabilities. During cutting of the turf a stacker is required to handle rolls of turf each weighing 15–20 kg or, if the soil is wet, more. This too is heavy work, and probably beyond his current capabilities at least for any extended period. One of the advantages of working as a spray technician was that the plaintiff was able to spend much of his time seated on the tractor which was an automatic tractor with what he described as a shovel shift. He detailed difficulties in using his left leg to depress the clutch on many machines. This job was, it seems, easier than what he had been doing before his injury. From about Easter 2011 he accepted a job with Turf Force as farm manager at a farm at Bli Bli. The job involved a significant increase in pay but also longer hours and somewhat heavier work than that of a spray technician.
His income as a spray technician was $46,800 per annum plus superannuation, for a 38 hour week. As a farm manager he earns $65,000 per annum plus superannuation but is expected to work a 50 hour week. It can be seen that the hourly rates are little different, especially if some allowance is made for the small effect of inflation between the commencement of his work as a spray technician and that as a farm manager.
The work as manager is more varied. He has in the 20 months he has been farm manager put on two part-time employees – a weeder who works 20-25 hours per week and a stacker employed during cutting of grass who works, on average, 15-20 hours per week. Those jobs are not ones that he can readily do given the effect of his injuries. The extent to which these additional employees are employed because of the plaintiff’s on-going disabilities is a matter to which I shall later refer.
The plaintiff said in evidence that he requires extra breaks each day amounting to about half an hour per day. I assume these are two 15 minute breaks, one in the morning and one in the afternoon in addition to the usual breaks that he may have. He says these are necessary because of the pain and fatigue he gets in his left leg. I accept that that is so. He says he makes up for the breaks by working an additional two to three hours on weekends. Again, I accept this is so. The plaintiff impressed me as both diligent but also as an honest employee.
Effect of the injury on his employment
In my view it is clear;
1.That the plaintiff is less efficient than he would be had he not been injured. He suffers ongoing pain which precludes him from performing some aspects of turf farm work.
2.That through his general stoic nature, knowledge of turf farming and hard work he is able to hold down a job paying significantly more than he was earning at the time of his injury and is working longer hours.
At trial the plaintiff’s claim with respect to economic loss was based on alternative premises; namely:
1.That he was “not commercially employable without assistants and faces the risks of long periods of unemployment”; or
2.Will not be able to tolerate continuing to work in a demanding labour intensive industry such as the turf industry. He will in a few years be required to obtain less demanding employment or work reduced hours in part-time employment; or
3.That he is at significant risk in the labour market and is commercially unemployable without a sympathetic employer.
In my view it is clear the plaintiff is intelligent and skilled. To date he has been able to overcome much of the loss of earnings which might otherwise have occurred by his stoicism, hard work, persistence and knowledge of turf farming. Whilst those factors have minimised his loss to date I do find that but for the injury he was likely to be someone who would have achieved significant success in the future in the industry, either as a valued employee of a turf farm business or as the owner of a turf farm himself. It is still possible that either of those eventualities, or both, may occur despite his disability. His disability does however mean that, even then, he is likely to suffer some loss either by way of reduced profits through having to employ others to do tasks he himself might have done or loss of wages through reduced capacity to work long hours or from periodic periods of unemployment. There is a real risk for him that instead of being a manager or owner of a turf farm he might have to seek lighter work such as, for example, that he did as a spray technician or obtain work outside the industry, perhaps by driving an automatic forklift. He may face significant periods of unemployment. It is in such circumstances difficult to be precise about the likely level of his future economic loss.
The farm he currently manages at Bli Bli was established by the plaintiff’s current employer with a view to it being run utilising one to one and a quarter people. Currently, as I have already said, there is a weeder and a stacker employed in addition to the plaintiff; thus it is effectively operated by two people having regard to the 35-45 hours per week work performed by these two part-time employees, and the work performed by the plaintiff.
Because of his disability the plaintiff is no doubt slower at performing many tasks and, as I have said, is unable to perform some specific jobs such as that of a weeder. There was specific evidence about the effect of his injuries on the operation of the machine used to cut the turf to be sold.
Mr Curtis, who is the general manager of Turf Force, gave evidence. He said the machine had been specifically purchased because it allowed one man to both operate the machine and stack the cut grass on pallets which sit on two tines on the back of the machine. The stacker can stand on a small metal grill next to the pallets and directs the cut turf onto them from a conveyer belt. He has within reach hand operated instruments to operate the machine.
Currently the machine is operated by the defendant, who sits on a seat as on a normal tractor, and the part-time stacker who does the usual stacking job but does not drive the machine in the way Mr Curtis says it had been designed.
In evidence the plaintiff conceded the real motivation in doing it this way was because of safety concerns (see T1-36, line 56 to T-37, line 20), but confirmed it was possible to drive it, by hand, whilst stacking as I have detailed.
By contrast Mr Curtis said he understood the current system was utilised only because of the plaintiff’s disability. I find it difficult to understand why, if it is really only a one man operation as Mr Curtis said, the stacker who is currently employed does not perform the operation alone, freeing the plaintiff to perform other tasks.
In those circumstances and in circumstances where the plaintiff accepts that the real motivation for utilising two men was a safety issue I accept that to be so.
I also find that the reason the farm is not currently able to be operated by only one to one and a quarter people, as Mr Curtis said it was designed for, is because it is being significantly upgraded. Mr Curtis quite frankly said that the plaintiff was doing an excellent job but that much of the farm was still relatively underdeveloped in that it was producing only B grade grass and not A grade grass. I understand that this is primarily because of problems with weeds and this is being addressed by employment of the part-time weeder.
Be that as it may I have no doubt that the plaintiff’s injury will affect his ability to obtain and retain work in the future, and will affect his capacity to earn what he could otherwise earn if he owned his own farm. He has particular skills which have allowed him to overcome some of the effects of his injury. Whilst he will no doubt do so again in the future, it must be remembered that he is still significantly disadvantaged by his injury.
If not for the effects of the accident he would have still been a trusted, intelligent employee with significant skills as a manager of a turf farm, especially with respect to broad leaf buffalo grass, but would also have been able bodied. I have little doubt he would have progressed well in the industry. He may still do so but his future is now significantly less assured.
There was no evidence before me just how the plaintiff might have progressed in the industry. The only evidence I have as to earnings in the industry is his past earnings and the contents of Exhibits 8 and 9 which set out his income as a spray technician and as farm manager to which I have already referred.
Although the plaintiff did not say so in evidence before me I note that he told Miss Stevenson, an occupational therapist who was engaged in the matter, that he hoped in the future that he may be able to own his own turf farm. Mr Curtis described the Bli Bli farm which the plaintiff currently manages as a boutique farm operated by Turf Force to grow a particular form of soft leaf buffalo grass, called Jabiru grass. He said that there is a growing demand for such grass and that it sells at a significant premium because it is non-allergenic. He said it was the business plan of Turf Force to develop this farm and then to sell it to others to operate as a franchise. He said it was designed to be operated by a husband and wife working together. He said that, prior to the plaintiff moving to Bli Bli, the property was not a success but that the plaintiff had been very successful in improving it. Mr Curtis said that about half of the 40 acres under production produces A grade turf and the balance B grade. It is anticipated all will grow A grass eventually. He said the farm currently returns a profit of about $60,000 but Mr Curtis said that when fully operational it is designed to return a profit of $400,000. I assume that this is on the basis that there is no debt load.
It seems to me that in part the need for the extra employees currently employed is because of the need to bring the farm up to A-grade quality by, for example, eliminating the weeds. Part is also no doubt due to the fact the plaintiff is not capable of doing all that he previously could have done. Part may be due to the decision to operate the cutting machine using two persons, a decision motivated by safety concerns.
Although the plaintiff’s case for economic loss was run on the basis that he will suffer loss as an employee it seems to me a distinct possibility is that he will in time wish to own his own turf farm. I have no doubt he has the abilities to do so. He would however be disadvantaged in doing so by reason of his injuries. I think it likely, if he were to do so, he would require an employee for no more than 20 hours per week to compensate for the effect of his injuries. He and such a part-time employee would in my view clearly be able to do all that could be done by the plaintiff alone if he were able bodied. Such an employee is unlikely to cost no more than about $26,000 per annum, making some allowance for costs such as WorkCover payments, superannuation and other expenses but also bearing in mind that the plaintiff would have been on holidays for some part of each year. After allowing for income tax on profits, the net cost to the plaintiff, if he were to own a turf farm of his own, would in my assessment be about $350 per week.
If one assumes a normal retirement age of 67 (in 35 years time and using a multiplier of 876) a loss of this sum over that period, discounted 15 per cent for contingencies, would amount to about $260,000. In such self employment he would not suffer loss of superannuation.
His future employment is in my view likely to include:
(a)Periods, as now, when he is earning much as he would have if not injured;
(b)Periods when he is only able to obtain work earning less income than he would if not injured, for example, $756 net per week as a spray technician rather than $982 net per week as a manager. It may include periods working driving an automatic forklift, perhaps outside of the turf industry.
(c)Periods when he is unemployed.
Whilst there were always potential risks, the number and duration of such periods of underemployment or unemployment are likely to be significantly greater now than if he had not been injured.
Any assessment of economic loss is of necessity a global assessment. If he were employed as now in employment in which he suffers no loss for, say, 30 per cent of the time, lesser employment such as I have postulated for 50 per cent of the time, and unemployed for the balance, and assuming he would otherwise have been fully employed as a farm manager (since other scenarios such as unemployment are taken into account by means of the discount for contingencies) his average weekly loss could be calculated as follows:
0.5 x (982 – 756) + 0.2 x 982 = $309.40.
This is of course informed conjecture but in my view is a realistic possible scenario. Such loss to age 67, less 15 per cent for contingencies, would amount to $230,000.
In my view such a sum for future economic loss is reasonable. It is also broadly comparable to the loss I postulated in the event of self-employment, having regard to the fact that superannuation losses would not be recoverable if he were self employed.
I would allow loss of future superannuation at the agreed figure of 11% of my assessment of future economic loss. This amounts to $25,300.
In so concluding I am mindful of Dr Fraser’s report and the note of consultations between he and counsel for the plaintiff. Dr Fraser was not cross-examined. From that material I conclude:
1.That the plaintiff has a 10 per cent whole person impairment as a result of the compound fracture of his left tibia and fibula. I note Dr Gillett, who assessed a lower level of impairment, said in a subsequent report that he did not disagree with Dr Fraser’s opinion.
2.No further deterioration will occur but further improvement is unlikely (see paragraph 8.1(iii) of Dr Fraser’s report being Doc. 9 of Exhibit 2)
3.His working life will not be shortened and he would be physically capable of doing the work he is presently doing until normal retirement age.
I note also that the note of Mr Kelly’s consultations with Dr Fraser indicates that Dr Fraser accepted that the plaintiff may not be able to perform tasks such as stacking turf whilst standing on the back of a tractor. I also find, having regard to the evidence of the plaintiff and his description of the duties of a weeder, that he would not be able to perform that task with any regularity. I also find that due to pain and fatigue he needs to take some breaks from work as he described in his evidence. Generally this can be accommodated by taking two breaks, each of about 15 minutes, each day. If his duties were eventually to involve some more sedentary paperwork or other sedentary duties he may be able to perform some of that during such rest breaks.
Dr Gillett has provided three reports, of 27 July 2009 and 4 June and 31 October 2012. In his initial report he recommended removal of the internal metal wear in the plaintiff’s leg. He felt this would improve his “kneeling issues”. He assessed a six per cent whole person impairment. In his report of 14 June this year he said the loss of muscle bulk in his left leg, which is obvious in photos tendered before me, would be permanent. He said the plaintiff would have ongoing problems with fatigue and problems with long standing and operation of machines with his left leg.
Somewhat curiously he said the plaintiff “would not be able to work as a turf farm worker without the assistance of an off-sider” but then said “he is better to be able to work with an off-sider”. I take this to mean that he would be unable to perform the full duties of a turf farm worker. In my view it is clear that he would not be able to regularly do the duties expected of a weeder or a stacker. That is of course not to say he is not still a very useful employee on such a farm. As I have said, Gordon Curtis, the General Manager of Turf Force, described his as very valuable because of his honesty, reliability and knowledge particularly with respect to the growing of soft leaf buffalo grass.
General damages
Generally I accept the plaintiff’s description of the effect of the injuries upon him. I find him to be an honest and straightforward witness. I find he does have ongoing pain and that he cannot now engage in the range of recreational activities he previously enjoyed. I am sure that with time and the end of these proceedings he will again find some enjoyment from activities such as camping and bushwalking but accept that he will not be able to do so to the extent he previously did. Furthermore, preparing for such activities may now take some forethought. He may for example need to pack a fold-up chair when previously he could have just sat on a log or on the ground. Some activities such as ten pin bowling and backyard games of cricket and basketball, running on the beach or indeed running at all, are lost to him. I accept that he needs a shower chair and has difficulties operating the clutch in a motor vehicle. I accept also that he takes regular pain medication. He has difficulty sleeping. He says his enjoyment of sexual relationships in inhibited by pain and some positions are precluded. The effect on a young man especially one who is single and enjoys the outdoors for both work and recreation will be profound. I assess this general damages in the sum of $60,000. In so concluding I had regard in particular to the decision of Byrne SJA in Bathis v Star Track Express Pty Ltd & Ors [2009] QCA 331 and to the summary of a number of cases relied on by the Plaintiff’s counsel which was Exhibit A before me. I allow interest on half of that sum at 2% per annum for 4.6 years, amounting to $2,760.
Past economic loss
After the sale of the Clifton Park Turf Farm on 9 October 2009, the plaintiff was not employed by the new owners. I have said already that I accept that this was because of his disability. He was then out of work until 3 December 2009. His loss over this period is thus recoverable. He also received net WorkCover payments of $13,598.75. These were, it was agreed, paid at 85% of his normal wages.
At Turf Force he has not suffered loss thereafter. Indeed he now earns significantly more than he did prior to the accident.
In the circumstances I assess past loss in the sum claimed by the plaintiff, namely $19,355.69. I allow interest on $7,338 thereof at 5% per annum amounting to $1,678 as claimed.
It was agreed past superannuation should be 9% of the assessed loss. This amounts to $1,742.
Other heads of damage
Fox v Wood damages of $1,942 are agreed.
In my view it is desirable that the pins be removed from his leg. It was agreed this is likely to cost about $6,000. I allow that expense.
Dr Gillett also says he will require about three weeks to recover from that procedure. It may be possible to have this done during a period when he is off work, but otherwise he would need to take time off. In my view it is unreasonable to expect him to take holidays and I would allow three weeks loss of wages amounting to about $3,000 (inclusive of superannuation) by way of future loss in addition to the other future economic loss I have allowed.
He may also require some medical and related attendances during rehabilitation. I allow $600 for the cost thereof.
He said he takes up to eight Panadol daily to cope with pain. The cost of panadol is said to be up to about $4 per bottle. I would allow $5,000 for future medication.
The plaintiff’s statement of loss and damages claims for future GP visits on an irregular basis. There was no evidence of such a need and I disallow it other than as I have previously indicated for the period immediately after the removal of the pins.
I would allow WorkCover, hospital, medical and rehabilitation expenses in the sum of $18,981. I would also allow Medicare expenses of $489.25, past Panadol at the cost of $7 per week amounting to $1,680 and $300 as a global award for past travel expenses. In all his special damages therefore amount to $21,450.25. I allow interest at 5% per annum on $1,980, amounting to $455.
The plaintiff claims $5,000 for the cost of aids. These are set out in the report of Ms Stephenson. In my view, whilst the need for some of these is questionable, the global claim in that sum is justified merely by the necessity of him driving an automatic car rather than a manual car. I allow the sum claimed.
The total refund to WorkCover is some $33,297.29.
The only remaining issue concerns a claim for future paid assistance for car washing. A claim for mowing of the plaintiff’s lawn was abandoned during submissions and the plaintiff’s counsel confined the claim to the cost of car washing on those occasions on which the plaintiff will pay a sum, said to be about $10, to have the car washed in an automatic car wash. He gave evidence that since May 2008 he has done this on 5 or 6 occasions.
At the trial there was discussion about the effect of the decision in Forster & Anor v Cameron [2011] QCA 48, and of the definition of the term “paid services” in s 306D of the Workers Compensation and Rehabilitation Act 2003. Ultimately it is unnecessary to decide any such issue because it is in my view impossible to conclude a man who currently works 50 hours per week does not have the capacity to wash his car. I am sure, that like many citizens, he may from time to time have his car washed in an automatic car wash, but this is more probably due to pressures of time than any relationship to his injured leg.
In all I assess his damages as follows:
General damages $60,000.00 Interest thereon $2,760.00 Past economic loss $19,355.59 Interest thereon $1,678.00 Past superannuation $1,742.00 Future economic loss $233,000.00 Future superannuation $25,300.00 Fox v Wood $1,942.00 Future medical and pain relief $11,600.00 Future aids $5,000.00 Special damages $21,750.25 Interest thereon $455.00 Total $384,582.84 WorkCover refund $33,056.25 Judgment total $351,526.59
I give judgment for the Plaintiff in that sum. I will hear any submissions as to costs.
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