Signet Engineering Pty Ltd v Melvan & Anor [2003] WASCA 313

Signet Engineering Pty Ltd v Melvan & Anor [2003] WASCA 313 - WASCA 2003 case summary — Zoe

[143]

"64 The plaintiff saw Mr Robinson on or about 3 May 1995. Mr Robinson thought that the plaintiff had some residual supraspinatus tendonitis and he injected the subacromial space with local anaesthetic to increase the plaintiff's range of movement. A technetium bone scan taken in May 1995 showed significant uptake in the shoulder on the AC joint on the right side. In light of this Mr Robinson decided to carry out an open excision of the acromioclavicular joint to inspect the rotator cuff repair through the superior approach and also inspect the acromion. On or about 29 May 1995 the plaintiff underwent an open decompression and incision of the outer 1 centimetre of the clavicle. The wound from the surgery became infected and for most of June 1995 the plaintiff needed to take antiobiotics and have the wound continually dressed.

65 When the plaintiff saw Mr Robinson on or about 7 August 1995 he complained of significant pain in his shoulder which limited his ability to elevate the limb beyond 90 degrees. Mr Robinson organised some hydrotherapy and injected the joint with some cortisone. An ultrasound showed a possible partial tear of the rotator cuff. However Mr Robinson dismissed this possibility because the rotator cuff had been inspected on two occasions at operation and there was no significant microscopic tear present. In a report dated 21 August 1995 Mr Robinson stated that the plaintiff was making satisfactory but slow progress with regard to the range of movement of the right shoulder. He stated that he did not think that the plaintiff would be fit enough to return to his duties as a boilermaker in the long term. He recommended vocational assessment and redeployment.

66 Mr Robinson continued to see the plaintiff in September and October 1995. During this period the plaintiff continued to complain about his right shoulder. His ability to elevate the shoulder reduced from about 90 degrees to about 45 degrees. He was admitted to Glengarry Hospital for three days for intensive physiotherapy treatment using slings and springs. After such treatment he still experienced pain but was able to elevate his arm to 120 degrees. He complained to Mr Robinson that shoulder pain woke him up at night. In November 1995 the plaintiff was discharged from Mr Robinson's care and advised to continue with his own exercises and continue to see Dr Tye."

[172]

"100 By about mid-1998 the plaintiff had had a long history of working as a boilermaker/welder. It is heavy work. Much of his work was undertaken in relatively remote country towns or at least away from Perth. The plaintiff had reached the point in 1994 where he did not want to work away from Perth. On my assessment of the plaintiff I think there is a real possibility that he would have at least reduced the amount of work he did as time progressed. I also think that there is a real possibility that the plaintiff would not have worked to age 65 years.

101 I think that the plaintiff was wanting to at least reduce his level of working hours given the combination of his age, the length of time he had been a boilermaker/welder, the heavy nature of the work and his desire not to be away from home. I note that the plaintiff's taxation returns for the years ending 30 June 1995 and 1996 include deductions of $35,075 and $4,088 respectively for a fee to manage a vineyard. This is consistent with my view that the plaintiff was at least becoming less interested in work as a boilermaker/welder and was turning his interest elsewhere.

102 It seems that the nature of the plaintiff's work required him to go from one project to another with the potential for periods of unemployment in between. The economic environment for the construction industry is cyclical and is well known to have been fairly difficult in recent years. The future looks better with the prospect of developments in the north west of the State. On the positive side for the plaintiff it should also be borne in mind that he was a good tradesman and so his prospects of securing employment would have been better than for many others.

103 The average annual gross income of a boilermaker/welder in Western Australia in the financial year ending 30 June 1994 was $37,845. The plaintiff's gross income of $25,746 in the financial year ending 30 June 1994 equates to 68 per cent of the average. Even when taking into account that there would have been boilermaker/welders who earned less as well as more than the average it would be fair to say that in both years ending 30 June 1993 and 1994 the plaintiff was not working to full capacity. This needs to be taken into account when assessing contingencies. The possibility of working more hours is, of course, a positive contingency for the plaintiff.

104 By not working the plaintiff has saved in the past and will save in the future the expenses necessary to earn an income as a boilermaker/welder. The plaintiff's taxation returns show that he has claimed and received deductions for expenses relating to a motor vehicle and tools. This saving should be taken into account as a contingency. It is a negative contingency for the plaintiff."

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Judgment (180 paragraphs)

Signet Engineering Pty Ltd v Melvan & Anor [2003] WASCA 313 (11 December 2003)

Taking into account material which was not in evidence

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Legislation Cited (1)

Cases Cited (11)