Murray v Bluemoon P/L & Ors [2002] QSC 309

Supreme Court of Queensland|2002-10-08|Before: Muir, J

Hawthorn Cuppaidge & Badgery for the first defendant

[1] The plaintiff on 11 November 1997, aged 34, was injured when an internal staircase collapsed in premises rented by him from the second defendant. He claims damages under a number of heads from the first defendant (the second defendant's letting agent), the second defendant and the third defendant (a builder who was alleged to have inspected the staircase for defects).

[2] On the first day of the trial the parties reached agreement on the question of liability, leaving the quantum of the plaintiff's claim the only issue for determination on the trial.

[3] The plaintiff's injuries fall into four distinct categories -

[4] It is the injuries in categories 1 and 2 which the plaintiff contends have led, and will continue to lead, to substantial economic loss.

[5] The plaintiff sustained damage to the retro-patella surface of the knee, which, according to Dr Gillett, orthopaedic surgeon, in a report of 17 January 2000, will cause the plaintiff -

"... ongoing problems associated with his knee leaving him with some discomfort and fatiguing phenomena related to his knee. He will have difficulties with uneven terrain, running and stair climbing. He will have difficulties with kneeling and squatting activities. He has been left with an impairment of lower limb function of 7% as a consequence of this accident".

[6] Dr Morris, orthopaedic surgeon, noted "muscle wasting" of the right leg and "crepitus in the knee itself caus(ing) him to limp" at the time of his report of 10 September 2001. He concluded that the knee problems gave rise to a 10% impairment of the right leg and recommended further surgery "in the form of an arthroscopy and lateral release". He apportioned the 10% impairment equally between the 1997 injury and another knee injury sustained by the plaintiff in 1987.

[7] In Dr Gillett's opinion, expressed in a report of 17 January 2000, the plaintiff is "best suited for a more sedentary occupation with the ability to change posture and change his position as need be". He accepted, in cross-examination, that the plaintiff could do office work, sales activities, boiler making work restricted to bench-type work with appropriate lifting equipment and of a lighter nature, light courier work and a range of different types of truck driving.

[8] He said that the plaintiff "will have difficulties with uneven terrain, running and stair climbing (and) ... with kneeling and squatting".

[9] Both of these reports postdate an arthroscopic procedure on the plaintiff's right knee on 19 February 1998. He also underwent a right shoulder reconstruction in April 1999. At the time of being seen by Dr Parker, orthopaedic surgeon, in October 1999, the plaintiff was recovering from that procedure. He assessed the plaintiff's permanent disability as -

2% loss of function of the whole body as a result of the soft tissue injury to his neck

In his opinion, the plaintiff was able to "resume truck driving of a light nature, if ... not involved in the loading and unloading."

[10] Dr Gillett described the injury to the plaintiff's right shoulder as one which, following reconstruction, left him with a 15% permanent impairment of upper limb function.

[11] Dr Morris, in his report of September 2001, concluded that the plaintiff had a 7% impairment to his right shoulder.

[12] In a report written in August this year, Dr Morris expressed opinions that -

(a) The plaintiff would be able to work as a courier and a truck driver (if he was not required to load and unload), do some types of security work and boiler making, if not required to do work above his head or ascend or descend ladders.

(b) The plaintiff's right leg symptoms may be improved by a further arthroscopy.

In cross-examination Dr Gillett agreed with the last mentioned opinion.

[13] On 3 March 1998 the plaintiff underwent a varicose vein operation to excise bulging veins caused by his leg injury. Dr McGahan, vascular surgeon, advised the plaintiff that it is possible that other veins in his left leg may become incompetent and enlarged to the point of requiring removal. Dr Price, vascular surgeon, in his report of 19 March 1999, stated -

"I anticipate that he would benefit from having definitive stripping of the long saphenous vein. The presence of popliteal incompetence, however, indicates that he may experience long term problems with venous hypotension in the future, independent of what action is taken with regards to the superficial incompetence."

[14] The plaintiff suffered severe swelling and bruising to the right side of his face in the accident which caused damage to and around his 13th tooth. It requires root canal treatment and, possibly, a crown.

[15] Dr Kzlauskas, psychiatrist, in her report of 13 February 1999 to the plaintiff's general practitioner, assessed that he was suffering from an adjustment disorder as a result of his accident. In the opinion of Dr Curtis, psychiatrist, the plaintiff suffered "actual psychiatric illness and continuing personality problems as a result of the ... accident" amounting to "significant nervous shock". He further observed that the plaintiff "has suffered adjustment problems which were continuing and a loss of anticipated amenities of life and rewards from his efforts".

The plaintiff's work history prior to the accident

[16] After leaving school at the end of year 10, the plaintiff served a three year boilermaking apprentice and gained his trade qualifications. He worked in Mt Isa where he acquired a limited forklift licence and a truck licence. He then worked as a boilermaker in Cairns for a year, after which he worked as a boilermaker in Townsville for about two years. After Townsville he moved to Brisbane where he had a range of jobs. One of these was that of "bouncer" in night clubs. He graduated from that role to a job in which he worked in his employer's office for about two years making and answering telephone calls, checking on activities at various night clubs and collecting cheques. He next became a regional supervisor with responsibility for approximately 100 other employees - that job lasted for about four years and during that time he commenced day work as an armed vehicle driver for Armaguard. In the course of that employment he obtained a security officer and crowd controller's licence. The Armaguard job lasted for about five and a half years until the plaintiff resigned when his request for permanent status was refused. He then obtained work with a trucking company where he was principally employed in loading pallets onto trucks by means of a forklift. The work involved lifting and attaching gates to truck sides as well as driving. Some months before the end of that employment he was offered an office job and was doing "considerable telephone work in the office" at the time of his accident.

[17] Prior to the accident the plaintiff kept himself in a high state of physical fitness. Whilst employed with Armaguard he was involved with the "Gladiators" television programme in providing competition for programme participants. He was an active participant in karate sports and trained with Brett "the butcher" Sanchetta who, he said, was ranked 6th in the world in his sport.

[18] The plaintiff's tax returns revealed his income in the five years prior to the accident as follows -

[19] The plaintiff's net weekly income after overtime when employed by K & S Freighters (his last employer) appeared to average over $500 a week.

[20] The plaintiff returned to work about two weeks after his injury and commenced doing office work. The plaintiff said in his oral evidence that he was unable to continue working in that capacity because he then could not sit for any lengthy period and had a "Tens machine hooked up" to his leg. He tried doing boilermaker's work in the business in which his fiancé was employed but did not continue with it because it involved crouching and other activities which he felt unable to manage. He said that otherwise he has been unemployed since the accident.

[21] Mr Lee, for the plaintiff, contended that an appropriate range is $60,000 to $70,000. Mr Lane, for the second and third defendants, submitted that an appropriate award was $45,000 whilst Ms Carmody, for the first defendant, submitted that $40,000 was appropriate. Mr Lee pointed to an award of $40,000 in Taylor v Park.[1] In Taylor the plaintiff had a spinal injury resulting in a 10% loss of bodily function and a shoulder injury resulting in a 5% loss of normal upper limb function. He was in constant pain which was likely to remain throughout his life and, as a result, suffered from irritability and headaches. In my view the plaintiff's position is broadly comparable. His disabilities are a little different though in that they affect two limbs and also involve a psychiatric impairment. The plaintiff's leisure pursuits have also been curtailed or terminated to a greater degree. The appropriate award in my view is $45,000.

[22] The plaintiff claims $125,598 on the basis of a period of 252 weeks at $500 per week, being the sum it is contended he would have earned had he remained employed at K & S. Mr Lane submits that the award should be "a global sum of $110,000". The basis for this submission is that there should be a discounting having regard to the plaintiff's patchy pre-employment work history. Ms Carmody also relies on that work history in submitting that the appropriate award is $80,000. The evidence is that the plaintiff had a good work history with K & S. I think the probabilities are that, despite the somewhat curious and unexplained pattern revealed by his income tax returns, the plaintiff would have continued working for K & S in the short to medium term at least. He was in a stable romantic relationship and contemplating marriage at the time of the accident. The evidence discloses, however, that the plaintiff could have worked, after his operations, for a period of six to 12 months prior to the trial. In order to allow for this, I have assessed damages under this head at $115,000. There seemed to be a consensus that interest should be allowable over a period of 4.8 years.

[23] The plaintiff seeks to have this calculated on the basis that had the accident not happened he would have worked to age 65 (another 26 years) and earned an average of $550 per week. The defendants agree that he will be unable to do the type of work he was doing when injured. Mr Lee submits that the plaintiff, being intelligent and resourceful, is likely to find alternative income producing forms of remuneration but that, looking at matters broadly, his economic loss is likely to be about two-thirds of the sum he would have earned had the accident not occurred.

[24] Mr Lane submits that the plaintiff should be awarded $100,000 "on a global basis". Alternatively, he submits that although the plaintiff should avoid doing work of a "heavy" nature, there is nothing in the evidence to suggest that he cannot be retrained successfully for lighter duties, such as office or computer work or, for that matter, supervisory work. On that basis, he submits that the plaintiff may suffer a loss of $200 per week over a period of 22 years (until age 60). That loss on the 5% tables amounts to $139,194. This, he submits, must be discounted by 20% to take into account the vicissitudes of life and, in particular, to have regard to the nature of the plaintiff's work and the robust nature of his recreational activities.

[25] Ms Carmody submits that an appropriate figure for future economic loss is $120,000 calculated on the basis of a loss of $200 per week over 20 years. She submits that the plaintiff has been shown to be capable of office employment, lighter driving and courier activities for some time now.

[26] In Taylor v Park, [2] I noted that different approaches to discounting for contingencies appeared to exist from State to State, observing -

"In this State 15% is sometimes regarded as `conventional' (Batiste v State of Queensland, [2000] QSC, s6547 of 1999, 14 September 2000) but I doubt that it can be said that there is any `usual deduction' on account of contingencies as in New South Wales."

Counsel did not suggest that this statement was inaccurate.

[27] In New South Wales it is "accepted that the `usual deduction' for contingencies is 15 per cent".[3] Such discounting in Western Australia "is rarely more than 15 percent and usually between five and ten per cent".[4] Professor Luntz, however, suggests that the normal discount in Western Australia for contingencies other than death, is in the range of 2% to 6%.[5]

[28] The principles relevant to the role of "contingencies" or "vicissitudes" in the calculation of future economic loss are comprehensively stated in the following passage from the joint judgment of Dawson, Toohey, Gaudron and Gummow JJ in Wynn v NSW Insurance Ministerial Corporation - [6]

"The principle and the relevant considerations were identified by Barwick CJ in Arthur Robinson (Grafton) Pty Ltd [1968] HCA 9; (1968) 122 CLR 649 at 659) as follows:

`Ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis, so that industries move their location, or are superseded by new and different techniques, the onset and effect of automation and the mere daily vicissitudes of life are not adequately reflected by merely - and blindly - taking some percentage reduction of a sum which ignores them.'

It is to be remembered that a discount for contingencies or `vicissitudes' is to take account of matters which might otherwise adversely affect earning capacity and as Professor Luntz notes, death apart, `sickness, accident, unemployment and industrial disputes are the four major contingencies which expose employees to the risk of loss of income'. Positive considerations which might have resulted in advancement and increased earnings are also to be taken into account for, as Windeyer J pointed out in Bresatz v Przibilla ((1962) [1962] HCA 54; 108 CLR 541 at 544) `[a]ll "contingencies" are not adverse: all "vicissitudes" are not harmful'. Finally, contingencies are to be considered in terms of their likely impact on the earning capacity of the person who has been injured, not by reference to the workforce generally (Lewis v Todd [1980] 2 SCR 694 at 714; 115 DLR (3d) 257 at 271-272."

[29] The matters relied on by the defendants suggest that some discounting may be appropriate.

[30] Against those matters, however, must be weighed: the plaintiff's previous robust good health, the evidence of strong demand for truck drivers doing heavy work, changes in motivation and behavioural patterns likely to be induced by married and family life and the plaintiff's initiative and ambition. The latter would appear to have been stifled, to a degree at least, by the effects of the accident. Weighing the competing considerations, I do not regard any discounting as appropriate.

[31] The evidence strongly suggests that although the plaintiff's employment opportunities have been reduced by the accident, he still has a broad range of jobs open to him. He has a demonstrated ability to undertake clerical tasks and to assume responsible roles.

[32] Having regard to the evidence of the likely earnings as a truck driver doing heavy work, with overtime, compared with earnings in pursuits left open to the plaintiff after the accident, I find that the plaintiff will probably lose to the order of $200 per week over a period of about 20 years. The assessment is necessarily a "jury" one which takes into account the factors discussed earlier.

[34] The plaintiff's $24,360 Griffiths v Kerkemeyer claim is based on the assumption that the plaintiff's friend, Mr Brookes, spent about nine hours a week for 26 weeks and then three hours a week for six weeks giving relevant assistance to the plaintiff and that his fiancé rendered relevant assistance for 21 hours a week from the date of the injury to the end of June 2000, a period of 137 weeks.

[35] It is further submitted that, in the case of Ms Moore, the claim is "limited to the first two years of assistance, amounting to 2,184 hours". I do not understand this submission as the claim to the end of June 2000 is for 3,877 hours. During submissions Mr Lane submitted, without objection, that the claim in respect of Ms Moore was for $21,084. It is plain that the claim in respect of Mr Brookes' assistance is overstated. His evidence is that he probably did about nine hours per week for the first one to two months, five hours per week for approximately the next month, and then some time in mowing over the four months immediately after the accident. The claim in respect of Ms Moore was vague in some respects and no attempt had been made to record time actually spent. The figure of $16,000 put forward on behalf of the defendants is reasonable and, in my view, all that has been substantiated on the evidence.

[36] The plaintiff's claim a sum of $26,594 for future treatment. That was identified in the statement of loss and damage. It was submitted that these figures "are supported by the relevant reports in Exhibit 1". I accept Mr Lane's submission that a sum of $20,900 is supported by the evidence. It is made up as follows -

[37] Having regard to the above considerations, I assess damages as follows:

Superannuation (9% of future economic loss) $12,527

Interest on special damages @ 5% for 4.8 years $4,560

[38] I give judgment for the plaintiff against the first, second and third defendants in the sum of $396,491. I will hear submissions on costs.

[4] Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167.

[5] Assessment of Damages for Personal Injury and Death, 4th ed pp 380-381.

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