Wilson v Wilson t/a N and G E Wilson
[2000] QDC 427
•23/02/2000
[2000] QDC 427
IN THE DISTRICT COURT
| HELD AT CAIRNS | Claim No. 84 of 1999 |
| BEFORE HER HONOUR JUDGE BRADLEY | |
| 23 FEBRUARY, 2000 | |
| BETWEEN: | DAVID JOHN WILSON |
Plaintiff
| AND: | NOEL WILSON Trading under the name firm or style N & G E WILSON |
Defendant
REASONS FOR JUDGMENT
The plaintiff’s claim is for damages for injury to his back sustained on 1 March 1995
when he was working for his father, the defendant, as a bricklayer’s labourer.
Liability
As a bricklayer’s labourer the plaintiff was required to keep his father and his brother
who were working as bricklayers on the construction of a block home, supplied in “mud” i.e.,
mortar and concrete blocks. At the time that he was injured the plaintiff was engaged in the
task of carrying L-corner concrete blocks from a pallet to a position on the site where his
father and brother were laying the blocks some 10 to 15 feet away. The plaintiff’s evidence
was that he was carrying two such blocks in each hand, that he placed the blocks in his left
hand down on the ground to his left following which he placed the blocks in his right hand
down to his right by twisting the top half of his body to the right. As he did this he felt “one
big clunk” in his back and immediate severe pain in his lower back area. He immediately dropped to his knees, took some time before he was able to stand upright and shortly
afterwards went home and sought chiropractic treatment that day. The following day he
sought further chiropractic and medical treatment and was admitted to the Mareeba Base
Hospital for bed rest and pain management for two nights. For four months his symptoms
were very severe and the plaintiff needed to take analgesics on a daily basis.
With respect to the question of liability a report was tendered into evidence prepared by
Ken King of the InterSafe Group Pty Ltd and Mr. King gave evidence before me. It was Mr.
King’s evidence that a number of factors regarding the task that the plaintiff was carrying out
including –
the weight of the blocks (13.2 kilograms each),
the twisting motion of the body in placing the blocks down,
the asymmetric loading of the body,
the frequency with which the plaintiff engaged in the task,
the method of picking up the blocks from the pallet,
and the fact that the plaintiff had received no appropriate training or instruction on how
to carry out the task so as to minimise any risk of harm,
meant that there was a high degree of risk of physical harm involved in the task the plaintiff
was engaged in. It was Mr. King’s evidence that the task should have and could have been
reorganised to significantly reduce the risk of injury without an effect on overall productivity.
Liability was in issue in the trial on the basis that it was disputed that the plaintiff was
carrying two blocks in each hand and it was asserted that he was carrying only one block in
each hand. However, the only evidence adduced by the defendant contrary to the plaintiff’s
was that of his father, the defendant, who testified that he had never given the plaintiff
instructions to carry two L-corner blocks in one hand and that he had no memory of ever seeing the plaintiff carrying more than one L-corner block in each hand, but he did expect the
plaintiff to work quickly and stay ahead of the bricklayers and he could not say how many
blocks the plaintiff was carrying at the time that he was injured.
As a result of the way the evidence fell, counsel for the defendant did not make any
submissions as to liability and in the circumstances I have no difficulty making the following
findings:-
1. The plaintiff was at the time he was injured, engaged in the carrying of two blocks
in each hand in the manner described by him.
2. The plaintiff had not received any instruction from the defendant not to carry more
than one block in each hand.
3. The plaintiff had not been given any instruction by the defendant with respect to
safer methods of carrying out the task he was engaged in.
4. The task the plaintiff carried out did involve high risk of injury to the plaintiff.
5. There were reasonable alternative methods of carrying out the task which would
minimise the risk of injury to the plaintiff which would not affect overall
productivity.
6. The defendant was negligent and as a result of his negligence the plaintiff sustained
injury.
Quantum
The major issue in this case was the amount to which the plaintiff is entitled by way of
compensation for his injuries.
The plaintiff was born on 21 November, 1962 and was 32 ¼ years old at the time of the
accident and 37 years of age now.
| 8 | When the plaintiff was 18 he hurt his back when he jumped from a tree into shallow water landing on his buttocks. He was admitted to the Mareeba hospital for about 10 days and |
damaged his vertebrae. However, his injury settled quickly and had little effect upon him
subsequently. Since leaving school after year 10 until the accident the plaintiff had a good
work history, working in various capacities as a storeman, labourer, plant operator and
bricklayer’s labourer. He had no significant problems with his lumbar spine until the time of
the accident.
X-rays taken some three months after the accident revealed that the plaintiff had “L5/S1
disc degeneration with a central disc protrusion,” and it is common ground amongst the
orthopaedic surgeons who have examined the plaintiff that the plaintiff aggravated pre-existing
degenerative changes in his lower lumbar spine region as a result of the accident.
A report from Dr. Andrew Graham, orthopaedic surgeon, was tendered on behalf of the
plaintiff and Dr. Graham gave short evidence before me. A report from Dr. Iain McFarlane,
orthopaedic surgeon, was tendered on behalf of the defendant. These doctors were essentially
in agreement with respect to the plaintiff’s present condition which is that he suffers from
chronic lumbar back pain and is essentially unable to carry out heavy manual work. His
condition is now stationary and stable. Both doctors are of the opinion that the plaintiff has
a 10 per cent permanent impairment due to his back problems. Dr. Graham estimates that
perhaps 2 per cent of this would be due to the accident whereas Dr. McFarlane relates only 1-2
per cent to the accident.
Surgery, a spinal fusion, has been offered to the plaintiff but rejected by the plaintiff at
this stage and neither of the specialists view that rejection as unreasonable.
The only point on which the two specialists differ is with respect to their estimate as to
when the plaintiff’s pre-existing degenerative changes would have prevented him from
engaging in heavy work. Dr. McFarlane in his report dated 3 November, 1998 states – “By the age of mid to late 30’s at most” whereas Dr. Graham in evidence before me said that his
“guesstimate” was that the plaintiff could have reached the age of 40 before he would have
been prevented from engaging in heavy labouring type work. One factor which Dr. McFarlane
took into account in reaching his conclusion was that the plaintiff is “a smallish man”. As I
previously noted, the plaintiff’s father gave evidence before me and although he is of relatively
small build he continues to be engaged in the brick/block laying industry. The plaintiff’s work
history, both prior to the accident and since then, and my impressions gained regarding his
character from his giving evidence before me, lead me to the conclusion that he is a man who
is keen to work, who works hard and is best suited to manual work and as such he should be
given the benefit of any doubt so far as estimating the age at which he would have been forced
to find alternative employment if it were not for the accident. I find that on the balance of
probabilities the plaintiff would have been able to continue in his chosen field of work if it had
not been for the injury he suffered on 1 March, 1995 until he reached the age of 40 years.
It is clear that the plaintiff suffered considerable pain and discomfort for sometime
following the accident and was significantly disabled for about three months. Since then he has
suffered varying degrees of pain which has now settled to chronic back pain. He suffers bad
days with severe low back pain and occasional leg and groin pain. These bad days occur on
average once a fortnight.
In these circumstances, I assess the allowance for pain and suffering and loss of amenities
in the sum of $25,000.00. Interest on 2/3 of this sum at 2 per cent for a period of 4.9 years
since the accident amounts to $1,633.00
Loss of Earnings
At the time of the accident the plaintiff was employed on a casual basis and was being paid the sum of $17.00 per hour by his father. However, because of the nature of the building industry the plaintiff was not working a 40 hour week throughout the year. It was the
evidence of the defendant that the number of hours worked per week varied depending on the
work available and that things were “pretty quiet” around that time but that in the last couple
of years the industry has improved to the point where the defendant now has more work than
he can handle. The defendant said that the plaintiff was a good worker and that he would have
continued to employ him were it not for the accident and that he would have been paying him
$18 or $19 per hour from around late 1995 or early 1996. I do therefore find that the
plaintiff’s rate of pay and number of hours worked would both have increased between the date
of the accident and the present time. Having regard to the documents relating to the plaintiff’s
income for the three years prior to the accident and the factors that I have just mentioned I find
that the average net earnings per week that the plaintiff would have earned since the accident
would be $470.00 which amounts to a figure for probable earnings between the date of the
accident and the present time of $120,555.00. Actual earnings received by the plaintiff during
that time amount to $47,448.00, leaving a balance of $73,107.00. This amount should be
discounted to take into account the usual contingencies, the nature of the actual work engaged
in by the plaintiff and the nature of the building industry in general and the pre-existing
condition of the plaintiff’s spine. I would therefore allow $60,000.00 for past loss of earnings.
Taking into account the receipt by the plaintiff of Workers’ Compensation and Social Security
payments interest should be allowed on $35,472.90 at the rate of 5 per cent for 4.9 years. This
amounts to $8,690.85.
With respect to future loss of earnings I find that the plaintiff would have been earning
around $500.00 per week net on average at the present time were it not for the accident. He
is unable to engage in heavy manual work now and would have been prevented from engaging
in such work by the age of 40 because of his pre-existing condition in any event. Since the accident he has been able intermittently to obtain employment in lesser paid, less physically
demanding occupations and although he is presently unemployed there is every reason to
expect that the he will be able to gain such employment again in the future. His injury does
however make him more vulnerable in the workplace and less competitive.
I assess his future economic loss at $200 per week for a period of 2.75 years i.e.
$28,600.00.
Special Damages
The defendant accepted the special damages itemised by the plaintiff, save for the sum
of $798.00 claimed for travelling expenses incurred in visiting doctors, both in Mareeba and
Cairns. The defendant’s argument was that although it was accepted that these expenses were
incurred they are offset by the fact that being unable to work for some period of time following
the accident resulted in the plaintiff being saved the expense of travelling to and from work.
There is no evidence before me as to the plaintiff’s usual expenses in travelling to and from
work and I am not persuaded that it is appropriate in this case to offset any such notional
amount against travelling expenses to visit doctors. Accordingly, special damages will be
allowed as follows:-
Medical payments (paid by Workers’ Compensation Board) $ 1587.34 Other expenses (paid by Workers’ Compensation Board) $ 1194.39 Tax Paid by Workers’ Compensation Board $ 3614.84 Medical Treatment $ 731.85 Pharmaceuticals $ 830.57 Travelling Expenses $ 798.00 $ 8757.00 Interest is allowed on actual expenses paid by the plaintiff: medical treatment less Medicare payments, pharmaceuticals and travelling expenses and is calculated as follows:-
$2013.92 x 5 per cent x 4.9 years $ 493.40 Total Special Damages and Interest $ 9250.40 Loss of Superannuation Benefits
Past loss of superannuation benefits at six per cent amounts to $3600.00 and future loss
of such benefits at six per cent amounts to $1716.00 and I allow a total of $5316.00 in that
regard.
Voluntary Services
The amount claimed for voluntary services already provided to the plaintiff, including
interest, is agreed at $1830.92 and I allow that amount plus the sum of $163.40 for assistance
on the plaintiff’s future “bad days”, making a total of $1994.30.
Future Surgery
Although the plaintiff makes a claim for a proportion of the estimated cost of the surgery
suggested by the specialists of $8,000.00, the evidence of the plaintiff was that he had no wish
to undergo such surgery and in view of his evidence the possibility that he may change his mind
in the future is so slight that I will not make any award in this regard.
Future Pharmaceuticals
I allow the sum of $100.00 for the cost of future painkillers needed by the plaintiff.
Summary
In summary then, I allow the following:
General Damages $ 25,000.00 Interest $ 1,633.00 Past Loss of Earnings $ 60,000.00 Interest $ 8,690.85 Future Economic Loss $ 28,600.00 Special Damages and Interest $ 9,250.40 Loss of Superannuation Benefits $ 5,316.00 Voluntary Services $ 1,994.30 Future Pharmaceuticals $ 100.00 Total $140,584.55 The amount to be refunded to the Workers’ Compensation Board is $24,578.23 and I give
judgment for the plaintiff in the sum of $116,006.30 with costs.
Either party may make submissions as to mathematical corrections, if any, in writing
addressed to my associate within seven days.
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