Wingett v Wingett

IN THE SUPREME COURT
OF QUEENSLAND
REGISTRY BRISBANE
  No. 558 of 1994
Before Mr Justice Ambrose
[Wingett v Wingett]
BETWEEN:              JASON ANDREW WINGETT
  Plaintiff
AND:  RONALD GEORGE WINGETT
  Defendant

REASONS FOR JUDGMENT - B.W. AMBROSE J
Delivered the 26th day of October 1999

At the time of his injury on 19 December 1989 the plaintiff was employed by his father as a panel beating assistant. He was then just under the age of 16 years and was on school vacation. He had completed Grade 11 and was working for his father during the school holidays before returning to school to complete his Grade 12 year.
In the course of following instructions given by his father, the plaintiff was standing near an engine into which he was inserting petrol when flames emanated from it and enveloped his body causing partial thickness burns to the face, neck, torso and left hand.
Liability is admitted and the case was contested only on the issue of quantum of damages. 4 After suffering the petrol burns, the plaintiff was taken immediately to Toowoomba Hospital where he received treatment to relieve pain. From there he was transported by ambulance to Royal Brisbane Hospital where he was examined and photographed by hospital staff under the direction of Dr Pegg. He was kept in hospital receiving treatment for the very severe and painful burns to his face, neck and chest for a period of fifteen days when skin grafting operations were performed on him. He was re-admitted to Royal Brisbane Hospital for three days in November 1991 for further operations to excise scar tissue and to relieve contraction to the neck scarring when further skin grafting took place. Over the years the plaintiff has from time to time received treatment for his neck scarring contraction problems.
The plaintiff at time of injury was a well built, good looking young man who was quite keen on sporting activities and particularly motor car racing. He was socially accepted by other young people of his age - both male and female. He was careful of his appearance and presentation in sporting and social activities.
As a consequence of the burns to the neck in particular he was left with significant disfiguring scarring in spite of skin grafting. Photographs taken at the time he was admitted to Royal Brisbane Hospital demonstrate the serious nature of the injury and I had the opportunity of examining his disfigurement at trial - nearly ten years after it was caused. The disfigurement at the moment is quite noticeable and is raised above the level of the surrounding skin although of course it does not have anything like its appearance in the hospital photographs which were tendered.
The scars have healed in such a way as to permit contraction of the scar-skin graft tissue which leads to pain in the neck by virtue of abnormal pressures applied to the cervical spinal column. As well, the scar-skin graft tissue itself becomes quite painful. The plaintiff complains of discomfort to the scars on his chest and abdomen, particularly when he attempts to work in dust or in the sort of conditions found in motor vehicle industry workplaces. He also complains of a weakness in his left hand which was scarred. That scarring has improved significantly although his left hand is now more subject to injury if bumped than the other hand. The medical evidence indicates that the scarring does not explain the weakness of which the plaintiff complains; it suggests that pressure on a nerve in the area of the plaintiff’s cervical spine may result from neck angulation which the scar-skin graft contraction induces, and that this may explain some degree of weakness. On the other hand perhaps, the plaintiff may subconsciously treat his left hand as being weaker than it would otherwise be simply because it obviously sustained an injury. I accept the plaintiff as a reliable witness and I accept that he feels that his left hand is a little weaker than it would otherwise be. It may be that it would have been a little weaker than his right hand quite apart from any injury suffered. The medical evidence however suggests that the scar-skin graft tissue on the hand really could not explain any weakness in the left hand and the operation proposed on the scar tissue on the plaintiff’s neck may result in a lessening of pressure on a nerve in the spinal column which may be responsible for some minor weakness in the left hand. To the extent that the plaintiff experiences any undue weakness, however slight, in the left hand subsequent to the proposed operation, I would simply attribute that to a cause unrelated to his scarring or to psychological causes rather than to any damage to the hand or nerves in it.
On the evidence I am satisfied that the plaintiff has suffered a quite significant physical incapacity of the neck by reason of the nature of the scar with which he was left. I find that the scar and its effect improved after the first six months or so of the injury to a certain stage but that it has not significantly improved since. In my view the plaintiff’s capacity to work and earn an income has been very significantly diminished by reason of pain which he suffers to the neck as a result of the scar-skin graft contraction. I am satisfied that for a long period of time he was only able to work a couple of days a week because the pain inflicted on his neck by the condition of his scar-skin graft required that he take much time off work. He must still take time off due to such pain.
Doctor Pegg who treated the plaintiff advised him to get back to work as an assistant panel beater as soon as he was able. The plaintiff’s father took steps to assist him to get back to work. Indeed, the plaintiff’s mother also gave some assistance in trying to get him back to work.
For about seven years after his injury the plaintiff was not very successful in maintaining any sort of meaningful employment or really in earning very much money to support himself. In my judgment his lack of success was based upon not merely the pain to which he was subjected as the result of his problems with the scar-skin graft tissue on his neck but also to the very significant psychiatric impact that the disfiguring scar-skin graft had upon him.
The plaintiff in fact returned to school after he had had his first skin grafting operations when the school year commenced in 1990. However he was very conscious of the significant impact the scar-skin graft had on his appearance and this was brought home to him by observations and comments made by other students attending his school over a few months. He suffered such pain in the first six months in any event that it distracted him from his studies and I accept the evidence of his mother that after a few months he regularly left school in the pre-lunch period and walked to where she was working rather than persevere with his school attendance. He did not complete Year 12 but rather lived with his mother in Toowoomba who continued to look after and encourage him to try to overcome the psychiatric impact that the scarring and his experience with it at school had had on him. I accept that she gave him the assistance he required to assist recovery from his operations on his scars. There was no real contest as to the appropriate award of damages under Griffith v Kerkemeyer in this regard should I accept the need for services to which the plaintiff and his mother attested. I accept the evidence of the plaintiff and his mother as to the impact it had on his social life. He commenced to wear clothing of a kind which hid as much of the scar-skin graft tissue as possible; of course it was not possible to hide it all, but only to camouflage part of it. He showed an unwillingness to go out in public or even to leave the house where he was residing with his mother.
I am satisfied that his personality changed dramatically for the worse. He became withdrawn and moody and lost the capacity which he formerly had to mix socially with people. I accept the evidence of the plaintiff’s brother who conducts a motor engine reconditioning shop that the plaintiff lost his former ability to mix with people and socialize and is of such a disposition now that he would be unwilling to employ him with other workers in his motor reconditioning shop.
The plaintiff’s father arranged a job for him with J & L Arthur Smash Repairs as a labourer/panel beater for a period of about eight months from October 1990 to May 1991. In this period he earned a tax paid income of $6,060. However he could not tolerate the effect of the workplace environment on his neck and he discontinued that employment.
The plaintiff’s father then arranged for the rental of premises where the plaintiff might work by himself really on motor vehicles that his father sent to him from his motor vehicle business. The plaintiff carried on that business under the name A.O.K. Salvage I accept that the plaintiff was only able to work periodically for a few days a week at this time. I am quite unpersuaded that he made much money but the work at least maintained his interest in doing something of a panel beating kind. He had no formal training whatever as a panel beater, not having taken any apprenticeship but he had picked up some panel beating skills sufficient to make some sort of income doing work of a kind that his father gave him, while formerly working about his father’s business and while working for J & L Arthur Smash Repairs for eight months.
The plaintiff applied himself for a period of six months or so to this sort of work but was unable to continue because of the effect of his contracting scar-skin graft and also of the effect of heat and dust and other irritants to his scars which he encountered in his workplace environment. He went off to the Gold Coast where his mother rented a shed in the hope that he would be able to do some work down there and perhaps also become involved in the sale of imported motor racing gear from the United States. However, this did not eventuate and he made no income while down at the Gold Coast.
In 1997 he came to some arrangement with his brother who by that time had established a profitable engine reconditioning business in Toowoomba. The plaintiff set up his own business called Better Deal Engines in rented premises and mainly assisted in the distribution of engines reconditioned in his brother’s workshop. He used to pick up engines from his brother and deliver them and sometimes pick up engines to be reconditioned and deliver them to his brother. He also embarked upon canvassing people in the motor trades industry who might want reconditioned engines. He spent some time working about his brother’s business, using the telephone and so on but over the last year or so, has managed to develop a business which produces an after tax income of about $13,600 per year. At least that is what his business produced in the year ended 30 June 1999. The business has obviously improved over the three years since its establishment in the 1997 tax year when it yielded $3,862; in 1988 it yielded $4,991. For the first three calendar months of the current tax year it has yielded $3,455.
His brother has reservations about the plaintiff’s skill and ability as a businessman. He thinks that the plaintiff is prepared to deliver engines and do work at a charge which is really insufficient to compensate him for the trouble and expenses involved. In spite of this criticism however, it seems that the plaintiff is willing to do this work and is able in his current state to do it to some extent although with difficulty and not full time. More importantly, should he have the operation to dramatically improve the scar-skin graft to his neck, and the scarring to chest and torso which is recommended by Dr Pegg and by Dr Jenkins, it seems likely that the physical incapacities from which the plaintiff has suffered over the last ten years as the result of the scar-skin grafting to his neck will very probably be greatly improved. There is some possibility that the operations may not succeed and for that reason, I do not proceed on the basis that when the operations are performed the plaintiff will for all intents and purposes be relieved of the incapacity from which he has suffered over the last ten years which has so diminished his earning capacity. On the other hand, having regard to Hutton v Mellick, I take the view that the operations will most probably if not almost certainly greatly reduce the plaintiff’s physical incapacity which has to date reduced significantly his ability to work eight hours a day for five days a week. Perhaps if the operation is successful he will be able to work for even longer hours if self employed in his own business if it continues to improve.
On the other hand although the medical evidence is to the effect that if the proposed operation succeeds - and it probably will succeed - it may greatly improve the cosmetic disability inflicted on the plaintiff, it may not for that reason alone lead to a significant improvement in the psychiatric/psychological condition from which he has suffered over the last ten years. At its most successful, the operation will still leave the plaintiff with a very large patch extending from the jawline to the clavicle which for practical purposes will be distinguishable from the skin which surrounds it. It will however, be much smoother skin because it will be taken from the groin area. It will probably take three or four years and a couple of follow up operations to permit the skin graft to achieve its maximum effect. The skin will probably always be a lighter colour than the surrounding skin. For the first few years there will be a red coloured margin at the edge of the new skin graft. The plaintiff has really become obsessed with the impact of a very ugly scar on him at age 15. He is now 25 years of age and for the last ten years has had to cope with the psychiatric insult which the scar-skin grafting inflicted upon him when he was at a very vulnerable age. It has substantially prevented him from mixing socially with female companions or for that matter from developing the sort of romantic attachments which many if not most young men perhaps going through those years tend to develop. I accept the observations of his mother and brother and conclude that to the extent that the plaintiff asserts that he does have female companions with whom he mixes, there is a degree of bravado if not of wishful thinking. I accept his mother’s evidence that he has lived with her for most of the last 10 years and she is not aware of any female companion with whom he has developed even a short term social relationship during that period.
The prospects then for the plaintiff’s improved psychological/psychiatric reaction to the visible scarring on his neck seem to be not as good as the prospects for the relief of pain to the neck as a result of the overcoming of the contraction of the existing skin graft. Nevertheless Dr Chalk thinks that the plaintiff will have a better chance of overcoming this psychiatric insult if the operation is successful and his appearance becomes significantly better. However, he made it clear that he cannot predict such an outcome from a successful operation with any certainty. He says that if the operation is very successful then it will make the plaintiff’s recovery from the psychiatric insult caused by the scar more likely. However he is quite unwilling to speak with any confidence as to the outcome for the plaintiff psychologically and psychiatrically even if from an objective point of view, the operation it is a very successful one.
In my judgment the plaintiff has suffered significant financial loss over the last ten years as a result of the burns he suffered in December 1989. It is impossible however in the circumstances to determine with any precision at all what the quantum of that loss is. The plaintiff gave evidence that he intended to attempt to join the Air Force where he could engage in computer programming. He was doing quite well at computer courses at school in Grade 11 but was not doing very well in some of the other academic subjects that he was studying. I find on the probabilities that he would not have joined the Air Force. I think the probability is that like his brother, he would have become employed in the Toowoomba area in the motor vehicle industry. Whether had he not been injured he would have worked with his father in the wrecking yard or worked with his brother or worked in connection with his brother and/or his father or ultimately set up his own panel beating shop is of course uncertain. I am satisfied however that the likely employment of the plaintiff for a few years until he reached his early twenties would have been with his father and/or his brother and/or some other person in the motor vehicle industry known to those family members in Toowoomba. He would have made an income from employment in the motor vehicle industry in Toowoomba from about the beginning of 1991 (after completing Grade 12 in 1990) until about the end of the 1996 tax year. In my view he would then probably have set himself up in some sort of motor vehicle business as his brother did and I have regard to the calculations contained in Schedule B, Scenario 2 to the report of Vincents Chartered Accountants which is Exhibit 10.
I adopt the total of the net “notional” wages that the plaintiff would have earned for the tax years 1991, 1992, 1993, 1994, 1995 and 1996 contained in those calculations which produce $81,700.
Deducting from that sum the net income actually earned in the tax years 1991 and 1994 which amounts to $10,000, I find that during that period of time until the plaintiff commenced to establish the business which he currently conducts he lost a figure which discounted for other possible losses of income I fix at $71,000. Between the commencement of the 1997 tax year and date of trial I assume that the plaintiff by then, if not earlier, would have been self employed rather than working with his father or brother or for some other employer. During the year 1997 he would have been 23 years of age. I discount the figures for notional income in Schedule B, Scenario 2 to the Vincents’ report because I think some allowance should be made for difficulties the plaintiff would in any event have experienced in starting off his own business in the year 1997 at age 23. Although he would have gained some experience working for people over a six year period, and perhaps even obtained a trade qualification, it seems to me appropriate to assume that he may have had some difficulty in reaching a notional income after tax of $24,100 approximately before September 1999. Accepting the notional income after tax for those three years and the first three months of the 2000 tax year would amount to $77,785, I discount that sum to $60,000.
I find that to date of trial the plaintiff suffered economic loss to the extent of $131,000.
I assume that from date of trial in 1999, the plaintiff would have been able to earn at the rate of $24,143 per annum had he not been injured.
For the purpose of assessing future loss of earning capacity I find that at date of trial had it not been for his injuries he would have been self employed in the motor industry and earning not less than $464 per week after tax. I am satisfied that the likelihood is that with increasing age his income would have increased, rather than decreased. I take that into account in making an allowance for contingencies in assessing damages for future loss of earning capacity.
His actual weekly income for 13 weeks ending 30 September 1999 was $266. Upon this figure I find that at date of trial his loss of earning capacity is $198 per week.
The loss of $198 per week for a period of 40 years; using the five per cent table amounts to $178,596. While this sum might normally be discounted for contingencies by reducing it by 15% I have regard to the likelihood that not merely would the plaintiff’s earnings have increased rather than decreased had he not been injured - as indeed has been the situation with his brother- but that his income will in fact probably increase over the next twenty years as it has over the last three as his business has gradually improved. Moreover if the proposed operative treatment does successfully remove the contraction problem and improve the plaintiff’s psychological/ psychiatric problems he may by age 30 to 35 have the same earning capacity as would have been the case had he not been injured.

The assessment of damages for the plaintiff’s future loss of earning capacity on the facts of this case is a difficult exercise. One difficulty emerges in finding what the current loss of earning capacity is having regard to the present age of the plaintiff and his work history for the last ten years influenced as it has been by his disability. While satisfied that the plaintiff in any event would have established his own business by the 1997 tax year and assuming that he would then have been earning at least the income that an employed panel beater would have earned as indicated in the schedule to Vincents’ report as at date of trial, there is a reasonable possibility that he would have been earning more conducting his own established business at that time. On the other hand the plaintiff’s efforts to establish himself in his own business since the beginning of the 1997 tax year appear to be succeeding. They are succeeding in spite of the significant limitations which his neck injury and psychiatric reaction to it have placed upon his ability to run such a business. The plaintiff himself seems confident that it will improve further and I think that this is likely although not certain. I do not propose to make any allowance for loss of superannuation entitlements because I think it probable that the plaintiff would never have been employed for a sufficient length of time to justify treating lost superannuation entitlements in the future as the result of employer contributions separately as an additional loss to be added to lost future income. The real difficulty in arriving at a discounting figure is the medical evidence which to my mind makes it likely that the operation will successfully remove the physical disability which the contraction of the plaintiff’s scar-skin graft tissue has played in his lost earning capacity over the last 10 years. It is uncertain however on the evidence just what the future will hold for the plaintiff’s psychiatric condition even if objectively speaking the proposed operative treatment with counselling should assist him to overcome the terrible impediment he has borne since age 16 to his present age of 26.
On balance I have come to the conclusion that the present value of the plaintiff’s current loss of earning capacity must be significantly discounted to allow for the prospect of the success of the proposed operation within the foreseeable future in relieving the contraction problems resulting from the plaintiff’s present scar and skin grafting condition of his neck and as well in assisting the plaintiff to resolve significantly if not completely his psychological/psychiatric problems from which he has suffered to date. There is no evidence upon which one could be confident that the psychiatric/psychological problems will be cured but having regard to the evidence and having listened to the plaintiff I have come to the conclusion that the likelihood is that there will be a real improvements in that condition. It may be that that improvement will not emerge until the maximum benefit of the operation has been obtained after a period of three to four years and the new “patch” of skin has become less noticeable to an observer (and of course principally to the plaintiff). In three or four years time and after a few minor operations while the new skin graft may be observable it ought not have the appearance that the current one has. While it is impossible on the state of the evidence to predict what effect an improvement in the appearance of the scar might have on the plaintiff’s psychological and psychiatric reaction to it I assume that those reactions will be improved at least to the extent that they do not interfere with the plaintiff’s earning capacity to the significant extent which I find they have to date. The plaintiff will lose or at least have diminished the capacity to earn income from his current business while he is having the operative procedures to his neck scar to which I have referred.
Keeping all these things in mind and taking into account the ordinary contingencies of life, I discount the sum of $178,600 by 25 per cent and assess the plaintiff’s future loss of earning capacity in the sum of $134,000.
I assess damages for pain, suffering and loss of amenities of life in the sum of $75,000. I apportion that sum to $45,000 pre-trial and $30,000 post-trial.
I award interest on the sum of $45,000 for a period of 10 years at the rate of six per cent per annum which is $29,000.
With respect to the past economic loss which I have assessed at $131,000, I award interest on $65,424 of that sum at six per cent per annum for 10 years, after allowing for social security payments of $28,542 and net wages $37,034, in the sum of $39,254.
I assess cost of past care in the sum of $17,910. I award interest on that sum at three per cent per annum for ten years in the sum of $5,373.
I assess special damages in the sum of $9,766.01. I assess interest on $5,901.55 of that sum at six per cent for 10 years at $3,540.
Travel expenses I assess at $3,201.75. Interest on that sum at six per cent for 10 years I assess at $1,920.
I assess future care at 400 hours at $12.50 an hour which is $5,000.
Costs of future surgery by Dr Jenkins (with hospital care) I assess at $39,500.
Future counselling I assess at $1,800.
I list the assessments of damage as follows:
Past economic loss..................................................................................................... $131,000.00
Interest on $65,424 of past economic loss at 6% for 10 years....................... $39,254.00
(net wages $37,034 and DSS $28,542 totalling $65,576)
Future economic loss.................................................................................................. $134,000.00
Pain, suffering and loss of amenities of life..................................................................... $75,000.00
Interest on $45,000 of that sum for 10 years at 6%........................................... $27,000.00
Past care...................................................................................................................... $17,910.00
Interest on past care at 3% per annum for 10 years............................................. $5,373.00
Special Damages............................................................................................................ $9,766.01
Interest on $5,901.55 of special damages at 6% for 10 years.............................. $3,540.00
Travel Expenses............................................................................................................. $3,201.75
Interest on travel expenses at 6% for 10 years.................................................... $1,920.00
Future care for 400 hours @ $12.50 per hour................................................................ $5,000.00
Costs of future surgery and hospitalization................................................................... $39,500.00
Future counselling......................................................................................................... $1,800.00
TOTAL $494,264.76
I give judgment for the plaintiff in the sum of $494,264.76
I order that the defendant pay the plaintiff ‘s costs of and incidental to the action including reserve costs if any to be taxed.

[1999] QSC 324

26 October 1999