Youd v West Coast Transport Pty Ltd
[1990] TASSC 144
•17 October 1990
Serial No B67/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Youd v West Coast Transport Pty Ltd [1990] TASSC 144; B67/1990
PARTIES: YOUD
v
WEST COAST TRANSPORT PTY LTD
AUSTRALIAN NATIONAL RAILWAYS COMMISSION
FILE NO/S: 293/1986
DELIVERED ON: 17 October 1990
JUDGMENT OF: Zeeman J
Judgment Number: B67/1990
Number of paragraphs: 28
Serial No B67/1990
List "B"
File No 293/1986
YOUD v WEST COAST TRANSPORT PTY LTD
and AUSTRALIAN NATIONAL RAILWAYS COMMISSION
REASONS FOR JUDGMENT ZEEMAN J
17 October 1990
On 16 January 1986 a tragic accident occurred at a level crossing on River Road, Wivenhoe. A semi–trailer operated by the first defendant came into collision with a train operated by the second defendant. The driver of the semi–trailer, and the driver of the train and that driver's assistant were all fatally injured as a result of the collision. At the time of the collision the plaintiff was a guard employed by the second defendant, travelling in the guard's van at the rear of the train. The plaintiff saw the semi–trailer travelling towards the train just before impact. It was apparent to the plaintiff that a collision would occur. The plaintiff saw the aftermath of the collision when portions of the train, including the engine in which the driver and his assistant were travelling, toppled into the river. The plaintiff claims to have suffered nervous shock as a result. Interlocutory judgment for damages to be assessed has been entered against both defendants and I am required to assess the plaintiff's damages.
Except where I make an express finding to the contrary, I accept the evidence of the plaintiff and his witnesses.
The plaintiff is employed as a guard by the second defendant and has been so employed by the second defendant and its predecessor, the Tasmanian Government Railways, since he was aged 26. The plaintiff is currently aged 57. He lives in a long standing de–facto relationship and has two daughters, aged 20 and 16, from a prior marriage. Both daughters are undergoing full time education and the plaintiff contributes towards their support. Prior to joining the railways the plaintiff was a farmer. When he first joined the railways it was in the capacity of a shunter. After fourteen months he was promoted to guard although during the credit squeeze of the early 1960's he was temporarily relegated to the position of leading shunter. The plaintiff was liked by his fellow employees. He was an easy going sort of person always ready to help his fellow workers. During the course of his employment he was successful in various examinations relating to his employment.
In 1984 the second defendant resolved to alter one aspect of the operation of trains. The second defendant had operated what were known as three man trains in that they were manned by a driver, his assistant and a guard. It was resolved that in future trains would not longer carry guards. As a result those persons employed as guards, such as the plaintiff, were invited to apply for positions as locomotive assistants. In the normal course of events, appointment as a locomotive assistant would lead to promotion to the position of driver. The plaintiff successfully completed an examination to enable him to be appointed a locomotive assistant. He was accepted for appointment to that position not long before the accident, although, for the time being, he continued to do the work of a guard.
The rate of pay applicable to a first year locomotive assistant was less than that applicable to a guard but the second defendant operated an income maintenance scheme whereby a person in the plaintiff's position would not suffer a reduction in wages as a result of moving from the position of guard to that of locomotive assistant. In due course, promotion by natural progression (subject to passing examinations), culminating in appointment to the position of driver, would lead to remuneration at rates higher than those applicable to a guard. Had the accident not intervened it is likely that the plaintiff would have taken up a position of locomotive assistant shortly thereafter. Had he taken up such a position it was anticipated he would have progressed to Driver class I on 28 January 1989 and to Driver class II (being the highest class available in Tasmania) on 28 July 1990. There are two salary levels for Drivers class II. Upon appointment the plaintiff would have been paid at the lower rate, becoming entitled to be paid at the higher rate after having served as a Driver class II for twelve months.
Principally, the damages which the plaintiff says he has suffered fall into two categories:–
(a)A post traumatic stress disorder which has produced anxiety and depression, well beyond mere grief and sorrow, leaving him with a legacy of frequently reliving the accident, sleeplessness, nightmares and other disturbances as well as a general loss of self esteem; and
(b)Economic loss in respect of a loss of earning capacity upon the basis that the traumatic experience which he suffered as a result of seeing the accident and its aftermath has resulted in him not being able to cope with train driving, so that he has passed up the opportunity of being promoted to locomotive driving and has continued doing less remunerative non–driving work in and around the railway yard at Devonport.
The plaintiff said that during the week or so after the accident he kept reliving it constantly, having great difficulty in sleeping. He was absent from work for some time. Initially he was paid workers' compensation and thereafter he took periods of annual leave and long service leave. The last day upon which he took leave was 12 April 1986. The plaintiff said he took this leave because he just felt he wanted more time off work. The plaintiff said that during this period of absence from work he continued to have difficulty in sleeping and suffered from frequent nightmares, sometimes by way of reliving the accident. The plaintiff said that his difficulties in sleeping continued up until the time of trial. He said that about 2–3 years ago he ceased sharing a bed with his wife because of what he described as his twitching keeping her awake. As a result he decided to move into the spare bedroom to enable his wife to sleep without being disturbed. The plaintiff's wife said that during the first month or so after the accident, the plaintiff suffered from nightmares during which the plaintiff would come out in a sweat, call out and throw himself around the bed. She said that the nightmares and a very bad sleeping pattern continued for 3–4 months but that crying fits continued for much longer. She said that crying fits continued to occur up until trial on occasions when the plaintiff became depressed. The plaintiff's wife said that she did not sleep with the plaintiff "that much". When asked whether the plaintiff continued to have nightmares she replied that she did not know because she was "not sleeping with him much". I find that the plaintiff sleeps with his wife infrequently and that that is the result of his continuing poor sleep pattern causally related to the mental trauma he suffered as a result of the accident.
The plaintiff consulted his general practitioner on several occasions. Some medication, including sleeping tablets, was prescribed from time to time. Currently the plaintiff takes medication only infrequently. He is not undergoing any form of medical treatment. At the suggestion of his general practitioner he consulted a psychiatrist, Dr Briggs, who gave evidence. Dr Briggs first saw the plaintiff some 5 months after the accident. He then found that the plaintiff was distressed, pre–occupied with the events which had occurred, pre–occupied about his ability to do his job again and pre–occupied with the stress symptoms which he was feeling. Dr Briggs saw the plaintiff again in July 1987 when he considered that the acute symptoms had subsided although the plaintiff told Dr Briggs that he was still quite restless at night, tending to relive the experience of the accident. At that time Dr Briggs formed the view that the plaintiff was coming to terms with the accident and that he appeared to have resolved any feelings of grief in connection with the loss of colleagues who had died in the accident. Dr Briggs saw the plaintiff again in November 1989. His conclusions on that occasion were that the plaintiff had had very acute symptoms for perhaps the first year after the accident but that there had been a slow resolution since then.
The plaintiff is entitled to be compensated for the consequences of the nervous shock which he suffered at seeing the impending collision and is aftermath including being aware of the presence in the river of the submerged engine containing his workmates. He is not entitled to be compensated for his grief at the loss of his workmates. Leaving aside losses of an economic nature I find that the plaintiff was affected in the following ways:–
(a)For about a year after the accident the plaintiff suffered very significant interference with his amenity of life, being unable to sleep, suffering frequent nightmares, crying and being generally depressed.
(b)Since then the plaintiff has continued to suffer from those symptoms although to a lesser degree. They are gradually diminishing but may well remain with him to some degree for the rest of his life.
(c)Since the accident the plaintiff has undergone a minor personality change in that he in not as affable and willing as he was formerly although his social life does not appear to have been significantly affected.
(d)The plaintiff has suffered some loss of self esteem and standing amongst his workmates as a result of not having progressed to the position of driver.
I consider an appropriate sum by way of general damages for non–economic loss to be $15,000.
The principal claim by way of damages for economic loss related to the alleged loss of earning capacity flowing from the plaintiff's inability to take up the position of locomotive assistant which in turn would have resulted in him becoming a driver. It does not appear to be seriously disputed that had the plaintiff progressed to becoming a driver then he would have expected to earn and would have continued to earn income at a rate higher than that applying to him in his present position.
When the plaintiff returned to work in April 1986 he resumed work as a guard although for some time he was only required to work on trains travelling from Devonport to Launceston, presumably so that he would not be required to pass the scene of the accident. The plaintiff said that on the first occasion that he saw Dr Briggs he believed that Dr Briggs expressed the view that the plaintiff should not work on trains again. The plaintiff said that at that time his own state of mind was that he really did not wish to work on trains. Dr Briggs agreed that the question as to whether or not the plaintiff should take up his option of becoming a driver was discussed but said that he did no more than discuss "the pros and cons of that" with the plaintiff leaving it to the plaintiff to make his own decision. However Dr Briggs believed that on that first occasion the principal issue discussed with the plaintiff was whether the plaintiff should return to work at all, Dr Briggs expressing the view that he ought to go back to work. Certainly Dr Briggs did not say that he advised the plaintiff not to work on trains again.
The plaintiff said that in about July 1986, whilst he was working as a guard, trains upon which he was travelling were involved in two level crossing collisions, not involving injury, which occurred a day apart. After those collisions the plaintiff did not work on trains again. It appears that those accidents occurred a little earlier than July because they were the subject of discussion between the plaintiff and Dr Briggs on the first occasion that the plaintiff saw Dr Briggs. Dr Briggs' impression was that those collisions had exacerbated the plaintiff's symptoms to some extent. He said that he thought that those collisions may have made the plaintiff think more definitely about whether he would ever become a driver. His precise words were "I think that may have pipped (sic) the scale there. I can't say that for sure, but an impression."
The following exchange then occurred:–
"Had he not had the first accident that is in January of that year but had been confronted with the two level crossing accidents, what's your view about whether he would have retired from loco driving? .... Ah again
HIS HONOUR.: Well he never started did he on the evidence
MR BARTLETT: Well taken up – would you have foreseen that he would have foreseen that he would have continued in the progression to be a loco driver leaving aside the first accident? .... Well it's a bit difficult to say, I my impression is that he would have taken up the option of driving. He seemed to be quite keen, he'd done the exam, he'd passed it, obviously it was his plan and I think he would have done it because, as I understand it those level crossing ones were they were anxiety provoking but they weren't major. So I think he would have gone ahead with it but that's"
The plaintiff asserted that he ceased to work on trains as a result of recommendations from his doctors. Dr Briggs' evidence does not confirm that he made any such recommendation and I did not hear from any other medical general practitioner. I am not prepared to find that such a recommendation was made. However I do find that the plaintiff was anxious about becoming a driver (certainly after the further level crossing accidents), that he was relieved at being permitted to stay on as a guard and that his medical advisers did not disagree with his decision not to continue with locomotive work.
I am satisfied that the combination of the nervous shock suffered by the plaintiff as a result of the accident and the occurrence of the two later level crossing collisions involving trains in which the plaintiff was travelling as a guard led him to a state whereby he was unable to cope with the concept of driving a train or indeed travelling on trains at all.
The plaintiff was cross–examined as to those later accidents when the following exchanges took place:–
"How long after the accident in January '86, was the first of those, just roughly, was it in '86?... It was in '86, it was after I had my long ser – annual leave and my long service leave, what I'd taken, and the first week I went back to work, and the first one I
So very shortly after the first accident..... The first week, the one on the Friday night and the next one on the
The first week?... The first week I was back at work, Yes.
Right and that was a pretty bad accident too I gather?...
Well it was pretty bad, there wasn't anybody killed, but..
Could have been, and that happened at where?... That happened at Ulverstone.
Ulverstone, and that stirred you up a bit did it?.. Wasn't too good sir.
And the second one happened here?... Lemana Junction just out of Deloraine. Like Lemana Junction out of Deloraine on the Main Highway.
Lemana... Yeah on the Mole Creek Road, you go from Mole Deloraine to Mole Creek on that road, about 4 miles out of Deloraine.
And was that a totality, or just a serious accident?... No ran into the side of the train, the empty log wagons and he was a very..
What the car ran into the side of the train?... Yes, mm.
Right and again you had the unpleasantness of seeing the aftermath of the collision?... Yes.
And was it that accident or the combination of the two, the last straw so far as you were concerned as travelling in trains or wishing to drive them?... At that, at that time, there and then I think that is the last straw sir.
MR LEVIS: Did you have any time off after either of those accidents?... That's, I think it was straight after that when I didn't go out on the guards again I think if I remember rightly.
But did you have any time off work?... No, no.
And what space separated those two later accidents?... Friday night and Saturday. That space you mean? Like between the two of those two accidents?
Yes... Well one happened on the Friday night and one happened on the Saturday.
So they were on successive days?... Yes.I see."
Dr Briggs was cross–examined on the same issue. The transcript records the following in relation to the later accidents:–
"And did you go into much detail as to how they had affected him?.. No I didn't, he mentioned them and told me that they had added to his feelings of anxiety and stress and my impression is that the whole thing added up to making him feel less and less inclined to take on driving as a career.
It was the straw that broke the camel's back?... That sort of thing yes.
And if they had not occurred would you agree that he might well have gone on to driving?... I'd have to say that the January '86 accident was the significant one for him and that was always the impression I got and I believe that as a result of that I think that he was not going to go back to driving, I mean at least experience now shows that, at that time I didn't know that.
I suppose it's a very difficult thing when you've got four factors in effect operating, one the stress reaction to the first accident, coupled with it the grief that one would feel at the loss of two very close friends, close workmates, then two more accidents that expose you to the unpleasant effects of an accident involving a train which is his work–place and a motor vehicle. And I guess it's a very difficult task to put your finger precisely on what's causing the end result?... Yes I'd agree with that but as I say –
And I guess the best one could say in fairness is that all of those factors would contribute to produce the ultimate condition in which you see Mr Youd in June of 1986?...Yes although as I explained earlier I did separate the grief from the stress reaction and to me that was perfectly clear –"
I am not satisfied that standing alone the accident of January 1986 would necessarily have resulted in the plaintiff feeling unable to take up the position of a driver. However I am satisfied that the accident very significantly increased the vulnerability of the plaintiff so that any later level crossing accident involving a train in which he was travelling (even if in itself it was relatively minor) would have been likely to lead to that result. I also find that the nature of train driving is such that there is a high degree of risk that train drivers will from time to time be involved in level crossing accidents. Although the plaintiff is not entitled to be compensated upon the basis that he would necessarily have been unable to cope with train driving as the result of the accident, even if no later accident had occurred, he is entitled to be compensated upon the basis that the first accident made him vulnerable to a high degree in the event of any later accident occurring.
In order to consider what the plaintiff would have earned had he progressed to becoming a driver I consider that it is appropriate to consider the driver Maxwell's earnings as being the appropriate guide to what the plaintiff's earnings might have been. I accept Mr Levis' submission that in comparing the actual earnings of the plaintiff and Maxwell regard must be had to the broad picture, ie not only to times when Maxwell earned greater remuneration than the plaintiff, but also to periods when Maxwell earned less that the plaintiff.
During the period of 1 July 1985 to 30 June 1990 the net income of the plaintiff was less than the net income of Maxwell (after adjustments reflecting the actual tax payable by the plaintiff) by $3182.00. It was agreed between the parties that during the period 1 July 1990 to 29 September 1990 the plaintiff earned income equivalent to a gross annual amount of $33,085.00 and Maxwell earned income equivalent to a gross annual amount of $37,076.00. In net terms that means that Maxwell earned approximately $46.00 per week more than the plaintiff earned. As at 1 July 1990 the plaintiff had left a little less than 8 years working life, assuming that he continues working until the age of 65 which is the applicable retiring age. Applying a 3% discount table (without allowance for mortality) to that figure one arrives at a gross loss of about $16,500.00. Also relevant to the question of the plaintiff's loss of earning capacity is the fact that he took annual and long service leave for the purpose of convalescence, thereby losing the benefit of being able to otherwise enjoy that leave. At the same time I find that the plaintiff took advantage of his leave to earn income greater than that which he would otherwise have earned from his part time employment as a barman.
The following matters must be taken into account in making a final assessment:–
(a)The usual contingencies including premature death and the possibility of early retirement. As to the latter the plaintiff has not availed himself of the opportunity for early retirement in the past but he may do so in the future although presently he is not inclined to do so. He is unlikely to do so whilst he is maintaining his children.
(b)The fact that had it not been for the two later accidents the plaintiff might have become a driver although I consider there was a very significant risk that even if he had become a driver his level of vulnerability was such that he would not have been able to continue in such occupation.
(c)The fact that of the difference in incomes between the plaintiff and Maxwell for the period ending on 30 June 1990 some $1,300.00 gross was the result of an extended period of sick leave having been taken by the plaintiff for reasons unconnected with the accident.
(d)The fact that past income histories suggest that the current differential between the earnings of the plaintiff and Maxwell may not be an entirely sound basis for future projections although one must bear in mind that it appears that Maxwell has only recently completed his training period to qualify as a Driver classs II and has yet to receive a further increment applicable to that classification.
(e)The fact that the plaintiff appears to have been a more able employee than Maxwell and more anxious to work overtime (leading to greater remuneration) although I find that current economic conditions affecting the railways mean that little if any overtime is available to drivers.
It is not possible to be precise as to the extent of the plaintiff's loss of earning capacity. Doing the best I can I assess it at $12,500.00 (excluding the period in respect of which workers' compensation payments were made).
I turn to the other heads of damage. In so far as past medical, hospital and pharmaceutical expenses are concerned the total sum of $261.60 was paid by the Commonwealth pursuant to the provisions of the Compensation (Commonwealth Employees) Act 1971. The plaintiff will be required to repay those amounts to the Commonwealth. I am satisfied that all those expenses were reasonably incurred by reason of the injury suffered by the plaintiff. I will allow the total sum of $261.60.
The plaintiff was paid the gross sum of $2,284.92 by way of weekly workers' compensation payments. I am satisfied that during the period during which that compensation was paid the plaintiff was incapacitated from working as a result of the accident. The gross amount is recoverable by the plaintiff upon the basis referred to in Fox v Wood (1981) 148 CLR 438. The plaintiff will be required to repay this to the Commonwealth but the repayment required to be made is not to be reflected in the judgment amount.
There is no evidence to suggest that the plaintiff will incur any significant future hospital, medical or pharmaceutical expenses although there is a likelihood that some minor expenditure will be incurred from time to time. I allow $250.00 under this head.
In summary the damages to which the plaintiff is entitled are as follows:
(a) General damages for non economic loss $15,000.00
(b) General damages for economic loss $12,500.00
not otherwise dealt with.
(c) Past medical etc. expenses $ 261.60
(d) Workers' Compensation received $ 2,284.92
(e) Future medical etc. expenses $ 250.00
$30,296.52
There will be judgment accordingly.
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