Hunter & Anor v New Fishing Australia P/L [2009] QSC 229

Supreme Court of Queensland|2009-08-24|Before: Cullinane J

[1] CULLINANE J: In these proceedings the plaintiffs Glenn Ronald Hunter and a company controlled by him, Hunter Fishing Co Pty Ltd instituted proceedings against the defendant.

[2] The action has proceeded however only in so far as the claim by the plaintiff Glenn Ronald Hunter is concerned and I will refer to him hereafter as the plaintiff.

[4] The plaintiff was born on 2 October 1959 and was injured on 25 October 2001.

[5] The plaintiff left school at age 16 in Western Australia and spent almost the entirety of his working life until March 2005 in the fishing industry. In March 2005 he acquired a boat hire business situated at the Port Hinchinbrook Resort. I will return to this in due course.

[6] He commenced work as a prawn fisherman when he was 17 and graduated to the position of skipper of prawn trawlers in 1985. He had commenced employment with the defendant in June 1981 and worked with it until December 1985. Working as a skipper, he achieved a gross annual income of about $140,000 by 1995.

[7] After working for other companies in Western Australia he returned to work again for the defendant in 2002 as a skipper.

[8] At the time he first commenced to work as a skipper for the defendant he had set up a company (the second plaintiff) and this company and the defendant entered into an agreement which governed all of the subsequent period of employment with the first defendant.

[9] The terms of the agreement were broadly that the defendant would provide the trawler and all the necessary equipment and would be responsible for the provision of all fuel and all maintenance and repairs. The plaintiff on the other hand would provide all of the crew and all of the necessary food provisioning for the vessel and would be responsible for all travelling expenses and wheelhouse equipment as well as certain other equipment relating to the personal requirements of the crew such as a microwave oven, washing machine and dryer.

[10] The defendant would pay 20-22 per cent of the gross value of each catch to the company and of this share some 30-34 per cent would be held by it and the balance paid to the crew and to meet other expenses for which Hunter Fishing would be responsible.

[11] The plaintiff impressed me as a man who took considerable pride in his proficiency as a prawn trawler skipper. The work generally is arduous and requires being on a vessel away from the shore for extended periods. Some aspects of the work are more arduous than others and overall require a fit able bodied person.

[12] As the plaintiff explains in his quantum statement, the work involves engaging in two separate prawning seasons. The first is the banana prawn season which lasts for six weeks from 1 April each year, a period which is apparently limited by law. This involves intense activity around the clock for the whole period.

[13] The second season is the tiger prawn season which lasts for three months generally concluding in October each year. It is not as intense as the banana prawn season because the activity is limited to between the hours of 6.00 pm and 8.00 am each day.

[14] The first season's activity is conducted along the north Australian coast from Weipa in the Gulf of Carpentaria to the Joseph Bonaparte Gulf in Western Australia. The second is primarily carried out in the Gulf of Carpentaria.

[15] A larger crew is generally used because of the intense activity in the banana prawn season.

[16] On 25 October 2001 the plaintiff sustained severe injuries to his left hand. The vessel was at that time in the Gulf of Carpentaria in Northern Territory waters.

[17] The plaintiff was holding a rope on a winch which was held there by a cleat. The winch was stopped but began to move and as it rotated the plaintiff's left hand became crushed between the winch and the rope. Each finger of the hand was caught in the rope with the main injury being sustained to the left index finger.

[18] The plaintiff's dominant hand is his right hand.

[19] There are reports from a number of medical specialists including Dr Coleman whose qualifications are as an orthopaedic surgeon but whose speciality if of the hand and upper limb. There is also a report of Dr Boys, orthopaedic surgeon tendered by the defendant.

[20] The plaintiff was taken initially to Groote Eylandt and then to the Darwin Hospital. It was concluded at the time of his admission to the latter hospital that the index finger was not viable and an amputation was performed through the proximal inter phalangial joint. Fracture of the proximal phalanx of the ring finger was fixed with K wires. The thumb, middle and little finger were not subject to any procedures.

[21] There is no real difference between the specialists in relation to the extent and nature of the plaintiff's disabilities. He has full extension of all metacarpo phalangial joints. The metacarpo phalangial joint of the index flexes to 80 degrees and the others to 90 degrees. The proximal joint of the middle finger flexes from 0 to 80 degrees and the distal joint to some 20 degrees. The proximal joint of the ring finger flexes from 20 to 40 degrees only and 20 degrees at the distal joint. The little finger flexes from 0 to 65 degrees at the proximal joint and 0 to 60 degrees at the distal joint.

[22] Dr Boland performed a procedure on 2 March 2002 which Dr Coleman had foreshadowed might be of some assistance. This involved the removal of fixation from the left ring finger phalanx and the application of a bone graft and plate.

[23] Dr Boys, using the AMA 5 assessment criteria, assesses the plaintiff as having a 30 per cent impairment of the upper extremity constituted by the various disabilities of the various fingers. This amounts to an 18 per cent impairment of the whole person.

[24] The plaintiff returned to work for the defendant in early 2002 and found considerable difficulty in performing the necessary tasks because of the constant pain he was suffering in his left hand and the difficulty he was having with certain tasks because of his inadequate grip. The hard physical labour required of a skipper during the season was, he found, not something he was able to cope with. He resigned from the defendant in November 2002. He had worked in both of the seasons that year.

[25] It seems common ground that the plaintiff does not have the capacity to perform this work and will never return to the prawn fishing industry or indeed, on my assessment, to active fishing activities.

[26] Prior to the accident he had acquired as an investment, a small vessel to which was attached a commercial east coast and Torres Strait licence which enabled the vessel to be used for catching coral trout.

[27] He had commenced re-fitting the boat, intending to use it for live coral trout fishing on the Queensland east coast fishery. He intended to carry out the re-fitting between prawn fishing commitments and then a little later to devote himself to fishing for coral trout with the aim ultimately of engaging a skipper whilst he managed the undertaking on shore. He attempted after the accident to complete the re-fitting but says he could not manage it. He realised he was not going to be able to work the vessel because of his disability and he sold it and the licence in 2004 for a substantial sum of money. He received over one million dollars for the licence alone.

[28] The sale of the licence was possible because of a policy adopted by the Federal Government to rationalise the fishing industry pursuant to a scheme which involved buying back licences. There were other options open to boat owners which involved substantial financial assistance.

[29] The plaintiff used the proceeds of the sale of the licence and boat to acquire a business, Hinchinbrook Rent a Yacht to which I have already referred. The plaintiff made it clear that this business was chosen because of his experience with boats.

[30] Initially the business was to be conducted in partnership with his then partner and with his brother and his brother's wife and it was intended to be run with the active involvement of each.

[31] In the initial stages of operating the business he found difficulty with some of the physical tasks, because of the sensitivity of the stump of the index finger which he subsequently had fully amputated on 2 May 2007 by Dr Price an orthopaedic surgeon in Townsville.

[32] The plaintiff's brother and his wife did not proceed with the proposed arrangements and left and for some time the plaintiff and his partner ran the business but the relationship broke up at the beginning of 2006 and his partner left.

[33] He now employs some five staff and he and the staff conduct the business which involves eight vessels and certain dinghies. He describes the tasks involved at paragraph 35 of his statement. Some of the vessels are owned by the business and some are rented by it.

[34] It is plain that the business is not profitable and indeed in the financial year, ending 30 June 2007 it made a substantial loss. The plaintiff ascribes the difficulties with the business to a number of things. One is the fact that he has to employ staff to do work which it had been envisaged would be performed by the proposed partners in the business. In addition he suggests that the management of the resort is somewhat lacking and this has had an adverse effect upon his business. No doubt the present economic slump is also having some impact. At present the plaintiff is proposing to persist but it is obvious that the business cannot sustain losses of the kind which it has sustained in the last financial year for very long. There is substantial capital tied up in the business.

[35] The plaintiff's claim so far as past economic loss is concerned is based upon the impairment of his earning capacity, which capacity was exercised in such a way as to divert the income generated by his activities to his company. The principles in the judgment of the High Court of Husher v Husher and Another [1999] HCA 47; [1999] 197 CLR 138; [199] HCA 47 were relied upon and there was no dispute about their applicability. Nor is there any dispute as to the assessment made by accountants of the measure of the plaintiff's earning capacity calculated by an analysis of the arrangement between the defendant and the plaintiff company.

[36] The plaintiff's earning capacity was calculated as being in the range of $70,000 to $80,000 per annum gross. The tax payable on a gross income of $75,000 would result in a net income of a little over $54,000. The claim which is advanced is based upon an assumed increase in income since that time and assumes a net income of $1400 per week. Some allowance is made for what is said to be a residual earning capacity based upon a return of $200 per week from his current activities increasing to some $500 per week based upon the evidence of the earnings of employees performing light duties such as a storeman or car park attendant, evidence of whose earnings were placed before me.

[37] The plaintiff is no longer capable of engaging in the work of a prawn trawler skipper or the skipper of a vessel engaged in the fishing industry or for that matter any work which involves heavy tasks requiring him to be able to use both hands or which involves the need to grip objects with both hands.

[38] Evidence was placed before me showing what this loss would be calculated until the age of 67.

[39] Given the arduous nature of work in the prawn industry and fishing activities generally and the long periods away from shore it is implausible I think that the plaintiff would have worked until 67 in such activities. He accepted this in cross-examination and in any case it is inconsistent with the plans which he had.

[40] The plaintiff has some psychiatric consequences of the accident. Each party tendered a report of a psychiatrist. The diagnosis is of an adjustment disorder with depressed mood. He may obtain some improvement with some counselling but is likely to have some ongoing sequelae.

[41] The plaintiff gave the impression of being an unhappy man, anxious understandably enough, about his current predicament and his future. He is, as I have already said, someone who appears to have taken considerable pride in his proficiency and feels the loss of his capacity to do this work.

[42] I have the impression that he is a man of some enterprise and I think it somewhat improbable that he would be content to work in positions such as those of a car park attendant or a storeman. He has however no qualifications outside of the fishing industry. He may be an attractive employee to an operator in this industry at least so far as the performance of some aspects of the work required in that or an associated industry is concerned. He may be capable of conducting as a principal some business of this kind but some other person would have to do the heavier aspects of the work although the plaintiff could be expected to do a range of the tasks involved. I saw a DVD showing him performing some tasks associated with his current business.

[43] Overall he has lost the capacity to engage in the only work that he has for all intents and purposes ever engaged in and to earn the substantial income which people who do engage in that type of work have access to.

[44] The defendant contends that no ongoing economic loss can be ascribed to the injury sustained in the accident from the time he commenced to operate his current business as he may have been in the same position in any case given his plans to leave active fishing.

[45] I do not think the matter can be approached in this way. The plaintiff has lost the capacity to work as a skipper in the prawning and fishing industries and has no other qualifications. He could but for his injuries have continued to work in these fields or returned to them if it became necessary to do so.

[46] The plaintiff contends that his present predicament should be ignored (apart from an allowance for the very small figure he is currently drawing) as an attempt to mitigate his losses. However the plaintiff's plans to leave the industry in any case may have seen him acquire a business and any such business would have been likely - as has turned out to be the case - to be one associated with his expertise with fishing or vessels. The possibility that it may might not have been successful must be allowed for.

[47] Whilst the plaintiff was capable of light work and he is on my assessment of him an enterprising person, the fact is he is now 50 and has no other qualifications. He must be regarded as having a substantial destruction of his earning capacity.

[48] There is considerable agreement about the various heads of damages.

[49] General damages in the sum of $85,000 are agreed upon as is interest on general damages in the sum of $4,680.

[50] Special damages and interest thereon are agreed upon in the sums of $8,985.05 and $2,810 respectively.

[51] Past care and assistance and interest are agreed upon in the sums of $1,470 and $573 respectively.

[52] Past economic loss is claimed in the sum of $300,000. This is after making allowance for his earnings to date. Given the uncertainties associated with the plaintiff's future at the time of his injuries, I think some further modest discounting should be applied to the amount claimed by the plaintiff and I allow the sum of $250,000.

[53] I allow interest on $235,000 producing a figure of $91,650.

[54] Future economic loss is claimed by the plaintiff upon the basis of some $1,200 per week for three years and then some $900 per week for fifteen years until age 67. It is common ground that the 3% table should be used in any calculations of future losses.

[55] In my view this is not a case in which it is possible given the many imponderables to adopt a mathematical approach to the calculation of future economic loss.

[56] Doing the best I can I allow the sum of $300,000 for future economic loss.

[57] There is a claim for future care and assistance in the sum of $23,124. This is a substantial claim and I do not think that it is borne out by the evidence. Reference was made to the need to obtain assistance with mowing a lawn if he owned his own home and one can readily imagine that there would be some tasks associated with maintaining a home which his lack of power and grip in the hand would render difficult. However any allowance it seems to me must be purely a matter of impression and I allow the sum of $4,000 under this head.

[58] There is a claim for pharmaceutical and other expenses in the sum of $5,000. The plaintiff takes pain killers and can be expected to do so. There are some vague references in the reports to possible surgery but the procedure which the plaintiff refers to in paragraph 65 of his statement was not identified.

[59] Again it seems to me this must be largely a matter of impression and I allow the sum of $2,500 under this head.

[60] The total of the damages is therefore $ 751,668.05

[61] I give judgment for the first plaintiff against the defendant in the sum of $751,668.05

[62] I will hear any submission on the question of costs.

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