SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: McClintock v Trojan Workforce No 4 Pty Ltd & Anor [2011] QSC 216 PARTIES: FILE NO: 483 of 2009 DIVISION: PROCEEDING: ORIGINATING COURT: SEAN PATRICK McCLINTOCK (plaintiff) v TROJAN WORKFORCE NO. 4 PTY LTD (ACN ) (first defendant) and STREET CONSULTING PTY LTD T/A STREET BUILD (ACN ) (second defendant) Trial Division Claim DELIVERED ON: 3 August 2011 DELIVERED AT: Supreme Court at Rockhampton Brisbane HEARING DATES: 14 and 15 June 2011 JUDGE: ORDER: CATCHWORDS: Applegarth J 1. Judgment for the plaintiff against the first defendant in the sum of $473, Judgment for the plaintiff against the second defendant in the sum of $637,969. DAMAGES MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT MEASURE OF DAMAGES PERSONAL INJURIES GENERAL PRINCIPLES where plaintiff suffered serious back and shoulder injuries in the course of his employment as a labourer where plaintiff rendered unable to work as a labourer in the future where plaintiff also suffered psychiatric injury as a result of being unable to work where plaintiff had pre-existing physical conditions and personality problems that may have affected his employment had the accident not occurred where plaintiff had demonstrated a good work ethic and had obtained employment in the two years before being injured quantum of damages

2 2 Cameron v Foster [2010] QSC 372 cited Corkery v Kingfisher Bay Resort Village Pty Ltd [2010] QSC 161 cited Craddock v Anglo Coal (Moranbah North Management) Pty Ltd [2010] QSC 133 cited De Girolamo v State of South Australia (1991) 56 SASR 40 cited Dutschke v Bormann (1988) 50 SASR 171 cited Hoppe v Burns [2010] QSC 490 cited Mahoney v GEC Australia Ltd [1994] 1 Qd R 397 followed McMillan v Kissick [2006] QSC 202 cited Waller v McGrath [2009] QSC 158 cited Waller v Suncorp Metway Insurance Ltd [2010] QCA 17 cited Weightman v Noosa Shire Council [2001] QSC 300 cited COUNSEL: SOLICITORS: R C Morton for the plaintiff J O McClymont for the defendants Suthers Lawyers for the plaintiff Barry & Nilsson for the defendants [1] The plaintiff was badly injured on 3 October 2006 while he was employed in demolishing a coldroom at the Woolworths supermarket at Gympie. He fell from the ceiling of the coldroom and suffered serious injuries, including: (a) (b) (c) a crush fracture to his second lumbar vertebra; a crush fracture to his twelfth thoracic vertebra; and a partial tear of his right rotator cuff. [2] The debilitating effect of his physical injuries meant that he could not work after the accident. As a result of the accident, his chronic pain and loss of employment, the plaintiff suffers from an admitted psychiatric injury. He has suffered a major depressive disorder and an aggravation of a pre-existing episodic alcohol abuse problem. These physical and psychiatric injuries are admitted by the defendants, who also admitted liability shortly before the trial. The first defendant, a labour hire company, was engaged to provide labour for the second defendant at its worksite. The second defendant is a construction company that was involved in the redevelopment of a Woolworths site at Gympie. The plaintiff was employed by the first defendant to work for the second defendant on that project. [3] The substantial issues concerning assessment of damages relate to the likely course of the plaintiff s physical and mental health, and his employment, if he had not been injured on 3 October There is no real issue that the plaintiff s accident-related injuries leave him without a residual capacity to undertake the kind of labouring work he had undertaken prior to 3 October He has not been able to work since and he has a limited capacity to undertake any kind of work because of the effect of his injuries and his background, work experience and aptitude. Dr Gillett, who assessed the plaintiff at the request of the defendants lawyers and whose evidence I accept, concluded that, based on the plaintiff s previous work history, the

3 3 plaintiff will not be able to return to the workforce because of the injuries to his lumbar and thoracic spine. Dr Gillett says that the plaintiff will be permanently affected in relation to employment and would require at best in an ideal world sedentary employment and that would require retraining. The pain that the plaintiff experiences in undertaking the activities of ordinary daily life indicates that he has little, if any, residual earning capacity. The defendants do not submit that he has such a capacity. For example, although the plaintiff had certificates to operate a forklift, a front-end loader and a road roller, he is disabled from operating such machinery. He cannot undertake activities such as mowing his lawn. He cannot do anything strenuous. The pain he experiences has even caused him problems in sleeping in a normal bed and he has taken to sleeping on a couch. He cannot drive any great distance because of the pain he experiences. He is limited in what he can lift when he goes shopping. [4] The principal issue between the parties is the extent to which the assessment of past and future economic loss should be discounted on account of adverse contingencies. There is no significant difference between the parties in relation to the assessment of general damages and special damages. The plaintiff [5] The plaintiff has recently turned 46. He left school when he turned 15, having reached Grade 8. He was born with a clubbed right foot and no toes on his left foot. He was bullied at school and suffered anxiety. After leaving school he undertook a variety of labouring work, and became involved in heavy machinery as a trades assistant. During his twenties he became more aggressive. He did not hold down jobs for long and committed some minor offences, particularly when intoxicated. He had an anger management problem over the years, and told Dr Martin that he had fallen foul of the boss on a number of occasions. [6] His most enduring personal attachment was with a woman with whom he had a son. However, the plaintiff s personality problems and alcohol abuse led to a deterioration in this relationship. The plaintiff s partner obtained domestic violence orders, and the plaintiff breached them. His offending led to the activation of a suspended sentence and he was imprisoned. [7] Going to jail had a salutary effect on the plaintiff. He decided that upon his release he would go to work, and upon his release he found work very important. He explained in his evidence that work gives me everything... pride, self-respect, money, a fair way of life. He found work by fronting up to places, hounding people and making inquiries. In the period of approximately two and a half years between his release into the community in March 2003 and his injury in October 2005, the plaintiff obtained employment for various periods. There were some periods of unemployment between jobs that cannot be precisely ascertained from the records. The plaintiff undertook about 10 different jobs and the longest period of employment was 17 months with a company called Triform Constructions Pty Ltd. His employment history is conveniently summarised in Exhibit 3. [8] He commenced employment with the first defendant on 11 August He was not happy with the hourly rate that he was being paid, but that hourly rate was dictated by the first defendant s contractual arrangements with the second defendant. The plaintiff s supervisor requested a pay rise for him and this was

4 4 declined by his superiors, but the plaintiff was offered more hours instead. After labouring during the day he would do additional work related to the security of the site. As a result, he was working long hours in the first defendant s employment in the few months prior to his injury on 3 October Often he would work in excess of 50 hours and in some weeks he worked in excess of 70 hours. The demolition phase of the project would have come to an end. The evidence called by the defendants did not establish that the second defendant s involvement was limited to the demolition phase, and it is possible that it may have had some continuing role in the refurbishment of the site. In any event, at the time he was injured the plaintiff was a well-regarded employee with a demonstrated work ethic. He may have been able to undertake additional labouring and after-hours supervision work on that site, in association with either the second defendant or a builder. However, it is unlikely that he would have been able to continue to obtain the very long hours that he was working at the time of the accident. Once employment at the Woolworths site came to an end the plaintiff would have had to look for work elsewhere. [9] With his recent work history, certificates to operate machinery and interest in pursuing work, I conclude that it is likely that he would have found other work in Gympie or in its vicinity. He may not have been able to obtain permanent work with a particular employer. However, it is likely that his pattern of employment would have been similar to that of the two and a half years prior to the accident. The plaintiff s income over the full two and a half year period prior to the accident averaged $512 per week, which includes periods of unemployment and the period when he worked long hours with the first defendant in the few months prior to the accident. During his work with Triform his average net weekly income was $582. In the financial year ended 30 June 2006 his average net earnings from employment were $622 per week. His average earnings in the employment of the first defendant were $ per week. However, I do not consider that this is an appropriate figure upon which to base an assessment of economic loss. Such evidence does indicate an earning capacity of $880 per week and, in that sense, one might say that the plaintiff had such an earning capacity and that it has been effectively lost. However, the assessment of the measure of his impaired earning capacity, both in the past and for the future, should be based upon a figure that represents the plaintiff s likely net weekly income during periods of employment, subject to discounts for contingencies that affect all employees and contingencies that are personal to the plaintiff. One such contingency is the risk of unemployment and, in the plaintiff s case, this contingency must take account of the fact that he was not in secure, permanent employment at the time of the accident. [10] If the accident had not occurred he may have found regular, semi-permanent employment with a particular employer. However, his work history makes it likely that his employment after October 2006 would have had a similar pattern to that shown in the period of two and a half years prior to the accident. I think it likely that, had the accident not occurred, the plaintiff would have continued to seek employment and, subject to problems associated with his pre-accident physical condition, particularly his congenital foot deformities, and his pre-accident personality disorder, he probably would have been able to obtain regular employment. Instead, the plaintiff has been unable to work and the effect on his life has been devastating.

5 5 [11] He was required to wear a body brace for six months, and to walk on crutches. He suffers chronic pain. He resorted to alcohol and started to drink very heavily about 12 months after the accident, particularly for a period of between three and four months. He explained that he started to drink heavily because he really didn t want to see the day and because the light had gone out, so to speak. Although his chronic pain and loss of employment were not the only problems in his life, they contributed to a resumption of alcohol abuse and a deterioration in the relationship with the mother of his young son. Disputes over access to that child arose. The plaintiff had resumed his relationship with his partner and son before the accident, but became estranged from them. Problems escalated in 2007 and his partner took out a domestic violence order early in that year after the plaintiff began drinking heavily. He breached that domestic violence order. In October 2007 he attempted suicide. [12] Given his history of episodic alcohol abuse, the plaintiff had some difficulty in recalling specific events and dates. However, he struck me as an honest witness who did his best to tell the truth. He did not attempt to minimise problems in his past or to blame all of his current problems on the accident. It is possible that, if the accident had not occurred, the plaintiff s relationship with his former partner would have deteriorated and he may have encountered problems in obtaining access to his son. However, the accident and its aftermath materially contributed to the downward spiral in the plaintiff s personal life. He committed a very serious drink driving offence on 29 January 2008 when he had a blood alcohol level of He was cross-examined about the breach of domestic violence order that occurred in March 2007, which was during the period when he was drinking heavily and felt angry and frustrated about a threat not to allow access rights every second weekend. When asked about his upset and frustration in relation to access to his son his evidence was: There was a whole issue of things. My not being able to work changed everything, the perspective or, you know, dealing with things. [13] Fortunately, the plaintiff does not abuse alcohol to the extent that he did in the period of about 12 months after the accident. He still drinks, but not to excess. He remains in significant pain most days. When asked at trial to rate his pain on a scale of one to ten, with ten being unbearable, he said that most days three to four would be the norm. Activity makes it worse. After coming out of the back brace he had some gradual improvement, but there is no further improvement. He has received some physiotherapy treatment, but no treating doctor or other medical practitioner in the case has suggested that there is anything that can be done to treat his permanent disability. Pain, suffering and loss of amenities [14] The plaintiff will suffer lifelong pain because of the spinal injuries he received as a result of the defendants negligence. The defendants acknowledged that his injuries caused him a psychiatric illness. Although other factors contribute to the plaintiff s depression, I consider that a large measure of his past and current psychiatric symptoms are attributable to the accident, the pain he experienced as a result of it, his abuse of alcohol, particularly in the period, and the loss of selfesteem that he experiences from not working. The medical evidence confirmed the

6 6 value that the plaintiff placed on his ability to work, and I accept his evidence that not being able to work has changed everything. [15] The parties contended for similar amounts of compensation for pain, suffering and loss of amenities. The plaintiff s counsel submitted that $100,000 is appropriate because of the devastating effect that the injuries have had upon the plaintiff. Reference was made by counsel in their submissions to comparable cases including McMillan v Kissick, 1 Corkery v Kingfisher Bay Resort Village Pty Ltd 2 and Cameron v Foster. 3 [16] Counsel for the defendants submits that the decision in McMillan concerned a less significant spinal injury but a comparable level of chronic pain and incapacity in a younger man. On that basis the decision is acknowledged to be a useful benchmark for the assessment of general damages. However, the submission is made that certain features of this case were not present in McMillan. These include the preexisting condition of the plaintiff s feet and a back condition that was likely to cause increasing pain and incapacity for heavy manual employment at some time in the future. Counsel for the defendants submits that an allowance of $80,000 for general damages is appropriate in the circumstances. [17] In McMillan the plaintiff was injured in a motor vehicle accident just before his twenty-seventh birthday. He had experienced a troubled life before the accident, including binge drinking, depression and suicide attempts, leading to the diagnosis of a pre-existing adjustment disorder that made the plaintiff prone to decompensate in life. 4 He was someone who might have always had problems in obtaining and retaining employment, with personal relationships and drugs. 5 The plaintiff in that case suffered a whiplash injury. He did not suffer from any permanent neurological impairment, but his cervical and upper thoracic ligamentous strain caused headaches, and he was diagnosed with a pain disorder. He was increasingly dependent on narcotic analgesia. Justice Douglas assessed him as suffering a five per cent loss of function by reason of his orthopaedic injuries. There was some prospect that the plaintiff s narcotic dependency could be overcome, with the result that the plaintiff would be able to return to remunerative employment in due course. General damages were assessed on the basis that the plaintiff s physical injuries were not, objectively, in the worst category but he has clearly suffered real pain for a long time and developed a narcotic dependency that creates great difficulties for him, including depression, anxiety and significant restrictions in his day to day activities. 6 Even if the plaintiff was weaned off narcotics he would probably continue to suffer some pain. General damages were assessed at $60,000. [18] Both the physical and the psychiatric effects of the accident in this case are more serious than those encountered by Mr McMillan. This is acknowledged by the defendants submissions that an assessment of $80,000 is appropriate. [19] The plaintiff in Corkery v Kingfisher Bay Resort Village Pty Ltd was injured shortly before his fiftieth birthday when he fell down a flight of steps. He was 58 by the [2006] QSC 202. [2010] QSC 161. [2010] QSC 372. [2006] QSC 202 at [44]. Ibid. Ibid at [50].

7 7 date of trial. He sustained fractures of the transverse processes on the right side of L3 and L4 and a right shoulder injury and had ongoing difficulties with his back. It ached on long car trips. He described no longer being capable of doing some heavy tasks associated with aspects of his professional work as a geologist. An orthopaedic surgeon considered, however, that with regular exercise the plaintiff would be able to cope with most of his work activities in a modified sense. 7 He returned to work not long after the accident, although there were some tasks that he was unable to perform. Justice P Lyons assessed general damages in the sum of $60,000. Again, the plaintiff in this case has experienced more severe pain and suffering, and a greater loss of the amenities of life, than the plaintiff in Corkery. [20] Cameron v Foster was a case in which a furniture removalist was struck forcefully on the head by a heavy board and suffered a significant aggravation of a preexisting degenerative disease of his cervical spine, which disease had previously been of little significance. He was almost 52 at the time of the accident and was aged 56 at trial. As a result of his injuries he suffered a major depressive disorder. His neck symptoms resulted in pain that radiated down his shoulders. His orthopaedic injuries were assessed as a seven to eight per cent whole person impairment. His physical injuries led to a finding that he was in constant and extreme discomfort which intruded into every facet of his life, such that his enjoyment of life had been very significantly impaired. 8 In addition, the plaintiff was significantly psychiatrically disabled and his prognosis was quite poor. His psychiatric condition was subject to a possible slight improvement. Justice Douglas concluded that an award of general damages of $80,000 was appropriate. [21] The plaintiff in Cameron v Foster did not suffer from any pre-existing psychiatric disorder. The consequences of the plaintiff s injuries in this case in terms of pain, suffering and loss of amenities are just as severe as those suffered by the plaintiff in Cameron as a result of his injuries. The plaintiff in this case was significantly younger than the plaintiff in Cameron v Foster at the time of their respective accidents. Mr McClintock was 41 when he was injured, whereas Mr Cameron was 51 at the time of his injury. The cases are broadly comparable. I consider that the assessment of general damages in this case should be higher than those awarded to Mr Cameron because of the nature of the injuries and the period over which the plaintiff must endure them. [22] Later I will address in greater detail the possible onset of back problems, and problems that the plaintiff has encountered with his feet. For present purposes, it is sufficient to observe that the possible future onset of back problems may have caused the plaintiff pain and some degree of incapacity for heavy manual employment at some uncertain date in the future if he had continued in heavy manual employment. The plaintiff has had long-term problems with his feet, but has managed to cope with them and was coping with them at the time of the accident. I take account of the possible onset of back pain and further problems with his feet if the accident had not occurred. However, the lifelong pain, suffering and loss of amenities that have been caused to the plaintiff by the defendants negligence warrants an award of general damages in excess of $80,000. The plaintiff has a life expectancy of 40 years. I assess general damages at $90, [2010] QSC 161 at [74]. [2010] QSC 372 at [29].

8 8 [23] I attribute one third of his general damages to the past. The plaintiff submits that interest should be awarded on past general damages at the rate of two per cent on half of the award for general damages. The defendants submit that the plaintiff s receipt of a lump sum payment from WorkCover Queensland of $64, should result in no interest being allowed on the component representing past pain and suffering (which the defendants submit would be one third of the assessed amount). Reliance is placed upon Mahoney v GEC Australia Ltd, 9 which was followed in Weightman v Noosa Shire Council. 10 The plaintiff submits that those authorities pre-date the 2003 amendments to the legislation, which amendments altered access to lump sum payments. The plaintiff also noted the apparent absence of authority applying those cases to awards that post-date the 2003 legislation. Counsel for the defendants submits that the passage of legislation in 2003 does not alter the point of principle. I accept that submission. I decline to award interest on past pain, suffering and loss of amenities because of the plaintiff s receipt of a lump sum payment that exceeds $30,000. Economic loss [24] I have earlier addressed the plaintiff s employment history, pre-accident earnings and earning capacity. The principal issue in dispute between the parties is the appropriate treatment of contingencies and the extent to which certain contingencies, such as the risk of unemployment and physical problems personal to the plaintiff, including the condition of his feet, are already reflected in his pre- October 2006 income. [25] The defendants submit that the plaintiff s likely ability to engage in employment was affected by his feet, back and neck problems and his psychiatric conditions. [26] The medical evidence, particularly Dr Gillett s report, is to the effect that the abnormal mechanics of the plaintiff s feet would tend to cause worsening symptoms over time, requiring a working role that enabled him to be off his feet from time to time during the working day. The evidence indicates that the plaintiff has largely been able to cope with the demands of manual labour over the years, notwithstanding the congenital deformities in his feet, by changing boots regularly and cushioning with suitable socks. He could not recall occasions when he had significant problems with his feet that forced him to give up work. However, records tendered in evidence indicated that he experienced increasing pain in early 2003 in respect of his right foot which meant that he could not walk long distances or stand for a long time. A treating doctor s report prepared for Centrelink purposes on 26 March 2003 reported no past treatment, that the plaintiff was taking painkillers and that surgery was contemplated. Centrelink records also reported the plaintiff s account of increased pain in his feet and the possibility that he might require surgery. One document, dated 15 April 2003, states that his increasing pain in recent months had resulted in his resignation from a job. On 7 June 2004 a Visiting Medical Officer at the Gympie Hospital, Dr Hayes, reported to the plaintiff s general practitioner about the possibility of corrective surgery on the right club foot, and that the plaintiff s name had been placed on a waiting list. However, no such surgery occurred [1994] 1 Qd R 397. [2001] QSC 300.

9 9 [27] The medical evidence before me does not suggest that such surgery was bound to improve the plaintiff s condition, and there may have been risks associated with it. Dr Gillett thought that the operation recommended by Dr Hayes was appropriate since its objective was to realign the plaintiff s foot to enable him to get shoes on. But there was a risk that the operation would make him worse. Dr Gillett said that it was for the patient to weigh up the risks against the benefit of the surgery and that a simple way to treat the condition was to get modified shoes and boots. [28] The plaintiff continued to work after he saw his general practitioner and Centrelink in early 2003 and after he saw the Visiting Medical Officer in June In fact, he worked for Triform Constructions Pty Ltd between 16 November 2004 and 18 April 2006, with the first defendant for almost two months in late 2006 and with other employers after he ceased unemployment benefits in September I conclude that the plaintiff was able to work before the accident despite problems with his feet and probably would have been able to continue to cope with labouring work after October 2006, provided he wore suitable boots and socks and rested his feet whenever foot problems became acute. [29] As to the plaintiff s pre-accident back and neck condition, and its likely future course had he not been injured in October 2006, the plaintiff s evidence and medical records indicate that the plaintiff experienced back pain from time to time. This might be caused when he lifted heavy steel or twinged his back. The plaintiff would seek treatment for such back pain at the local hospital, but he did not take time off work. On one occasion in 2002 he experienced a painful upper back when he was bending over to tie his shoelaces. [30] Having reviewed the relevant material, Dr Gillett in a supplementary report dated 28 May 2010 thought that the plaintiff s back would have caused trouble with heavy manual work but that it was impossible to define when this would have been. In his supplementary report Dr Gillett thought that it would most likely be in the range of five to ten years from the date of the injury. He fairly acknowledged that the exercise involved looking into a crystal ball but he thought that ultimately the plaintiff s back would prevent him from undertaking heavy, laborious work. Dr Gillett was cross-examined on the issue and accepted that there was no scientific way of telling when, if ever, somebody with radiological evidence of degeneration will exhibit symptomatology. He acknowledged that in the case of a person who was asymptomatic and had radiological changes it is difficult to put a timeframe on when, or if ever, that condition might become symptomatic. The degeneration of the plaintiff s spine was regarded by Dr Gillett as minor. [31] In giving an opinion about when the plaintiff might have experienced problems with his back arising from this minor degeneration, Dr Gillett placed some weight on the history of back pain recorded in the Gympie Hospital health records. However, he acknowledged that any problems might not have occurred for another 20 or 30 years, and that it might have been 20 or 30 years before the symptomatology was sufficient to drive the plaintiff out of the workforce. Dr Gillett also recognised that if and when the plaintiff suffered back pain, then, subject to the opportunity to change out of heavy manual work, the plaintiff might have transitioned to other work which was less physically demanding, such as driving machinery. What would have been involved, if the plaintiff had not suffered the kind of acute accident that he suffered in October 2006, was a gradual degenerative process with the back

10 10 becoming more painful but enabling the plaintiff to seek other work if the opportunity presented itself. [32] As to the plaintiff s pre-existing personality disorder, I have already remarked upon the plaintiff s pre-accident problems with anger management and alcohol. His significant personality problems were evident in 2003 and culminated in a period of serious alcohol abuse, breaches of domestic violence orders and imprisonment. The medical evidence establishes that the plaintiff had a vulnerability to resort to alcohol abuse and aggression to cope with problems in his life. When the plaintiff breached the domestic violence orders in 2003 he was not an angry young man. He was in his late thirties. I accept that, if he had not been severely injured at work in October 2006, it is possible that his pre-existing personality problems would have been triggered by some event and would have adversely affected his ability to maintain employment. A breakdown in the relationship with his partner and problems over access to his son may have resulted in resort to alcohol and bouts of unemployment. However, in the period of two and a half years after his release from prison, the plaintiff was true to his resolution to change his life and gain work. He did so. He resumed a relationship with his partner and gained worthwhile employment. The evidence, including the medical records contained in Exhibit 11, suggests that the plaintiff used his work, namely manual labour, to help him deal with his emotions and that after the accident, when work was no longer available to him, anger issues emerged. Given the duration and extent of the plaintiff s pre-accident emotional problems, account should be taken of the contingency that had the October 2006 accident not occurred some other event might have triggered the plaintiff s emotional vulnerability, triggered serious alcohol abuse and led to prolonged periods of employment. That said, the period of two and a half years after his release from prison and prior to the accident involved gainful employment, resumption of a relationship with the mother of his son and no encounters with the criminal justice system. It is likely that had the accident not occurred the plaintiff would have continued to seek and obtain employment, and derived satisfaction, self-esteem and monetary reward from it. This would have enhanced his prospects of maintaining a mostly stable relationship with his partner and others. [33] There is no evidence that the area around Gympie has been subject to chronic unemployment in recent years or that the plaintiff would have lost his desire to seek work. He demonstrated a commendable work ethic in working the long hours that he did in the weeks and months prior to the accident. There is no evidence that he was not a valued worker. Continuing work at that site and at other locations would have enhanced the plaintiff s self-esteem, his financial position and his chance to cement a positive relationship with his partner. These things were lost to him as a result of the defendants negligence. While it is possible, even had the accident not occurred, that his pre-existing personality problems would nevertheless have manifested themselves in a serious way leading to the end of his relationship with his partner, strife over access to his son, alcohol abuse and other problems, these possibilities should not be elevated to contingencies that were highly likely. [34] Overall, I consider that it is likely that, had the October 2006 accident not occurred, the plaintiff would have continued in employment at the Woolworths site for some period, and sought and obtained other employment in the Gympie area. He probably would have experienced some periods of unemployment between jobs. However, his ability to maintain employment with one employer for 17 months after November 2004 indicates a capacity to remain in employment with a single

11 11 employer for a substantial period. There is no assurance that this would have happened after October However, the distinct possibility exists that, over time, the plaintiff s employment would have become more secure, and he would have made greater use of his machinery certificates and gained other skills and certificates. The plaintiff s limited formal education and work history make it unlikely that he would have progressed into management roles. It is more likely that he would have continued with manual work and work as a plant operator. If his feet or back or both caused him increasing pain and problems in the later years of his employment, particularly during his fifties and sixties, then he may have been able to transition into less physically demanding work, and done more work as a plant operator. Past economic loss [35] A starting point for the assessment of past economic loss is the plaintiff s net weekly income during his period of relative stability in the two and a half years prior to the accident. This figure takes into account periods of unemployment including any period of unemployment that resulted from the reported resignation due to feet problems. The sum of $880 net per week contended for by the plaintiff reflects his average earnings in the employment of the first defendant. The continuity of that employment was not assured for any substantial period, and the figure reflects the very long hours that the plaintiff was able to work in the weeks immediately prior to the accident, albeit at hourly rates that he considered were too low. His net income with Triform averaged $582 per week. His net weekly income in the employment he had in May-June 2006 was $622. [36] I consider that an appropriate basis to assess past economic loss is $625 per week in late 2006 rising to $675 at present or $650 on average before discounting that amount on account of the contingency of unemployment, other general contingencies and contingencies that are personal to the plaintiff. A loss of $650 per week for the period of 252 weeks since the accident produces a figure of $163,800. [37] I have been referred to authorities in relation to the usual discount for contingencies. 11 Of course, not all contingencies are adverse. 12 The plaintiff may have progressed to well-remunerated work in the mining industry or earned a higher income than he had prior to the accident if he worked in certain industries as a plant operator. Still, adverse contingencies, taken together with beneficial contingencies, justify a discount on the sum I have calculated for pre-trial economic loss. The contingencies include the plaintiff s vulnerability to unemployment in the light of his employment history, and matters personal to him, including his emotional vulnerability. The plaintiff submits that an appropriate discount for pre-trial loss of earning capacity is 15 per cent, whereas the defendants contend for a discount of 20 per cent Waller v McGrath [2009] QSC 158 at [47]-[53] (in which Martin J used 10 per cent as the starting figure, which was increased to 12 per cent for the plaintiff, who was a 12-year old with learning difficulties and attention deficit disorder before the accident; upheld on appeal: Waller v Suncorp Metway Insurance Ltd [2010] QCA 17 at [60]); Cameron v Foster [2010] QSC 372 at [46] (also 10 per cent); cf Craddock v Anglo Coal (Moranbah North Management) Pty Ltd [2010] QSC 133 at [72]-[76] (in which McMeekin J described 15 per cent as conventional and stated that any change to that was a matter for the Court of Appeal). Craddock [2010] QSC 133 at [75].

12 12 [38] I consider that an appropriate discount is 15 per cent. This produces a figure of $139,230. [39] Interest on this amount would be at the rate of five per cent. However, account must be taken of the net Workers Compensation benefits ($58,179.44) and Centrelink payments ($47,162) and the part of the WorkCover lump sum payment ($64,179.44) that exceeds my allowance for past general damages ($30,000), namely $34, These sums total $139, The view that a surplus (i.e. a payment in excess of the amount of damages) on one head of damages cannot be used to reduce the interest payable on another head of damages has been expressed by Professor Luntz. 13 However, I consider that I should follow the decision of Thomas J (as his Honour then was) in Mahoney 14 in the absence of any argument that the decision should not be followed or was wrongly decided. The result is that I do not award interest on past economic loss. Future loss of earning capacity [40] The plaintiff submits that future loss of earning capacity should be assessed over a period of 21 years, by which time the plaintiff will be 67. This submission is based upon Hoppe v Burns 15 in which McMeekin J calculated future economic loss to age 67. The plaintiff may not qualify for an age pension until he reaches 67. However, given his circumstances, I decline to calculate future loss of earning capacity to age 67. I adopt the defendants approach of calculating it to age 65. [41] I have earlier assessed past economic loss on the basis of an average pre-trial net weekly income of $650. I adopt a figure of $675 as the likely average net weekly income that the plaintiff would now be receiving had he not been injured. For the reasons previously addressed, this sum must be discounted to reflect a wide variety of contingencies, including contingencies that warrant particular consideration due to the plaintiff s personal circumstances. [42] The plaintiff submits that the starting point is the ordinary discount of 12 per cent and acknowledges that this should be increased. He submits that doubling this discount to 25 per cent is appropriate to take account of factors that are personal to the plaintiff. The defendants submit that an appropriate discount to reflect the numerous contingencies is 50 per cent. I do not consider that such a large discount is appropriate in all the circumstances. I consider that a discount of 30 per cent takes appropriate account of general contingencies, such as unemployment for someone with the plaintiff s work history, skills and qualifications, and factors that are personal to the plaintiff, such as his pre-existing psychiatric condition, congenital foot deformities and the likely effect of his back condition. I do not consider that a discount in excess of 30 per cent is justified. A discount of the size contended for by the defendants would place excessive weight on adverse contingencies and give inadequate recognition to beneficial contingencies. Despite the difficulties that the plaintiff encountered as a child and young man, his deformed feet and the emotional vulnerabilities that he carried into adult life, by the time of the accident he had a record of employment and a commitment to work long hours, Harold Luntz, Assessment of Damages for Personal Injury and Death, 4th ed. (Chatswood: LexisNexis Butterworths, 2002), 601 [11.3.5], citing Dutschke v Bormann (1988) 50 SASR 171 (FC); see also De Girolamo v State of South Australia (1991) 56 SASR 40. [1994] 1 Qd R 397. [2010] QSC 490 at [63].

13 13 if required, to give his life meaning and to support his young son. The longer he worked after October 2006 the more likely it is that there would have been greater stability in his employment, income and personal life. He may have continued to go from job to job, with many employers. However, there is a reasonable prospect that his employment would have become more stable and would have changed over time to take up opportunities as they presented themselves, including the opportunity to work as a plant operator. Such a form of employment would have been better suited to any difficulties the plaintiff encountered with his feet, back or neck. Had the accident not occurred the plaintiff probably would have continued in gainful employment for most of the next 20 years, if not longer. A number of contingencies may have prevented him from doing so. However, their impact should not be overestimated, and I consider the defendants submission of a 50 per cent contingency does so. Nor should the impact of these contingencies be underestimated. Overall, I consider an appropriate figure for contingencies is 30 per cent. [43] Future economic loss should be assessed for a weekly loss of $675 to age 65 on the five per cent discount tables (multiplier of 646). This equates to $436,050. A discount of 30 per cent results in an assessment of $305,235. Loss of superannuation [44] Loss of superannuation should be calculated at the rate of nine per cent on past and future economic loss. The figure of nine per cent is agreed between the parties. Nine per cent of the total loss if $40,002. Special damages [45] WorkCover Queensland expenses are $23, [46] Expenditure on medication according to the PBS summary is $ After excluding unrelated medications, the total is $ Interest on that amount, in the sum of $84.00, brings the total to $428. The Plaintiff gave evidence of expenditure on over-the-counter medication approximating $18.00 per week at the present time. However, some of that expenditure is included in the PBS summary, and he has not always supplemented his prescribed medication with over-thecounter medication. Additionally, it is impossible to calculate precisely his accidentrelated expenditure on medication because before the accident he took medication for other conditions. I assess the plaintiff s past over-the-counter pharmaceutical expenses at $2,000 from 13 May to date, with interest on that amount of $320. [47] The Plaintiff travels three kilometres to see his general practitioner or attend the chemist. Past travelling expenses of $500, including interest, should be assessed. Future expenditure [48] Future expenses cannot be calculated with precision. I have regard to Exhibit 8 and the plaintiff s evidence concerning the costs of Nurofen. Given the plaintiff s life expectancy of 40 years an appropriate allowance for future pharmaceuticals is $12,500. He is likely to incur other expenses arising from his injuries, and I accept the plaintiff s submission that a modest allowance of $5,000 should be allowed. 16 The date of cessation of the WorkCover claim, during which claim such expenses were reimbursed.

14 14 Fox v Wood [49] The Fox v Wood component is $15,168. HIC refund [50] The refund to the Health Insurance Commission is $3, Summary [51] I assess damages as follows: HEAD OF DAMAGE AWARD Pain, suffering and loss of amenities of life $90,000 Past economic loss $139,230 Future economic loss $305,235 Superannuation loss $40,002 Workcover expenses $23,955 Fox v Wood $15,168 PBS $344 Interest thereon $84 Pharmaceuticals $2,000 Interest thereon $320 Travel expenses (inclusive of interest) $500 Future pharmaceuticals $12,500 Future expenditure $5,000 HIC refund $3,631 Total $637,969 The refund due to WorkCover Queensland is $164, The judgment against the first defendant should be clear of this refund. Accordingly, there will be judgment against the first defendant in the sum of $473,929. There will be judgment against the second defendant in the sum of $637,969. [52] I will hear the parties in relation to costs.