Drew v Makita (Australia) Pty Ltd [2008] QDC 223

DISTRICT COURT OF QUEENSLAND CITATION: Drew v Makita (Australia) Pty Ltd [2008] QDC 223 PARTIES: PAUL DREW Plaintiff V MAKITA (AUSTRALIA) PTY LTD Defendant FILE NO/S: BD4664/04 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 29 August 2008 DELIVERED AT: Brisbane HEARING DATE: 19,20, 26 November and 5 December 2007 JUDGE: Tutt DCJ ORDER: 1. Judgment for the plaintiff against the defendant in the sum of $194,454.86 for damages I shall hear the parties further in respect of costs. CATCHWORDS: PERSONAL INJURIES – products liability – whether breach of s 75AC of Trade Practices Act by manufacturer – whether design fault in circular saw – whether manufacturer negligent in design and/or manufacture of saw – where plaintiff sustained serious injuries to hand – where liability and quantum in issue – contributory negligence alleged – where claim includes claim for gratuitous services rendered by plaintiff’s partner – where partner in receipt of carer’s allowance for plaintiff’s psychological condition unrelated to subject injury – whether carer’s allowance should be taken into account in assessment of damages – where claim for future medical expenses. Social Security Act (Cth) 1991 Trade Practices Act (Qld) 1974 s 75AC Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 -- 1 of 43 -- 2 Davies v Taylor [1974] AC 207 Donohue v Stevenson (1932) AC 562 Griffiths v Kirkmeyer (1977) 139 CLR 161 Harth v Schick [1992] 2 Qd R 101 Jesberg v Rackemann [1986] 1 Qd R 181 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Mallett v McMonagle [1970] AC 166 at 174 McIntosh v Williams [1979] 2 NSWLR 543 National Insurance Co of New Zealand Limited v Espagne (1961) 105 CLR 569 Read v J Lyons & Co Ltd [1947] AC 156 Scarf v State of Queensland and Anor [1998] QSC 233 Smith v Inglis Ltd [1978] 83 DLR (3d) 215 Veivers v Connolly [1995] 2 Qd R 326 Veselinovic v Thorley [1988] 1 Qd R 197 COUNSEL: J W Lee, with M A McLennan for the plaintiff R A I Myers for the defendant SOLICITORS: Wellner’s Lawyers for the plaintiff Sparke Helmore Lawyers for the defendant INTRODUCTION: [1] Paul Drew (“the plaintiff”) is a 59-year-old male who claims damages for personal injuries and consequential loss suffered by him as a result of an alleged breach by Makita (Australia) Pty Ltd (“the defendant”) of s 75AC of the Trade Practices Act 1974 (“TPA”) and/or a breach of duty of care owed by the defendant to the plaintiff at common law. At the relevant time the plaintiff was operating a circular saw claimed to have been manufactured and supplied by the defendant. While he was in -- 2 of 43 -- 3 the process of cutting a “Weathertex” cladding sheet his left hand came into contact with the exposed blade of the circular saw causing severe injuries to his left hand. THE FACTS: Plaintiff’s Evidence: [2] The plaintiff’s evidence is in the following terms: • He completed his apprenticeship as a shopfitter, carpenter and joiner in 1970.1 He was drafted into military service in the Australian Defence Forces and posted to Vietnam as a conscript in October 1970. 2 • Shortly after his repatriation to Australia 12 months later in October 1971 he resumed his former occupation but for personal reasons ceased to continue in this occupation as a livelihood and commenced contract-cleaning.3 • Although he commenced contract-cleaning, he maintained his interest in his trade and “… always maintained tools and I always done jobs for neighbours and things like that to help out friends, all the time, all the way through, right when I was cleaning.”4 • He commenced to receive a Totally and Permanently Incapacitated (TPI) pension in or about 1998 as a result Post-Traumatic Stress Disorder (“PTSD”) due to his army service but continued to use his “… skills as a shop fitter, 1 Trial Transcript (T.T.) page 31 lines 15-33. 2 T.T. page 32 lines 41-46. 3 T.T. page 33 line 47. 4 T.T. page 34 lines 15-18. -- 3 of 43 -- 4 carpenter and joiner” from time to time in the same manner as he had done previously, helping out “… neighbours and friends and also other Vietnam veterans”.5 • He did this work in an honorary capacity as apart from assisting various persons he used the work as a form of therapy for his medical condition. • On 31 May 2001 he purchased a new “…7 and a quarter inch … Makita circular saw, 6 Model 5806 serial number 225507K … from Queensland Trade Tools”, the receipt for which is Exhibit 2 in the proceeding. 7 • He “completed a warranty registration card” when he purchased the saw, which appears to be confirmed by an internal email of the defendant which became Exhibit 9 in the proceeding. • The plaintiff further stated he had used the saw “…approximately four or five times…” before using it “…on the 19 th December 2001…” when he suffered the injury, the subject of the proceeding (“the incident”).8 • Prior to the incident he had not modified or changed the saw; had never dropped or damaged the saw in any manner and after use “… it was always placed back into the box and then put in a secure place.”9 • On 19 December 2001 the plaintiff was assisting a neighbour with some house renovations and immediately prior to the incident “…was cutting a product called Weather-tex. Weather-tex is an artificial board used for the external 5 T.T. page 34 lines 51-55. 6 Exhibit 3 in the proceeding. 7 T.T. page 35 lines 34-55. 8 T.T. page 36 lines 49-54. 9 T.T. page 37 lines 1-21. -- 4 of 43 -- 5 cladding of a house and it comes in various shapes. It was in the shape of two weather boards.”10 • The dimensions of the board to be cut in two down the centre were “…3.6 metres long by 300 mm wide by 12 mm thick.”11 • He described the work system he used to carry out the task in the following manner: “I set up two saw horses which are approximately 600 ml [sic] high and then on top of those I placed two boards which were 200 ml [sic] to 250 ml [sic] in width by 3.6 metres long by 50 ml [sic] thick. They were placed on top. The working bench was approximately 650 ml [sic] high.”12 • The boards were not clamped onto the saw horses “… because they were hardwood boards and the weight of the boards actually keep them on”. 13 • He had “…performed this sort of task before … On many occasions” and was “…satisfied that the system you (he) set up was safe”.14 • He commenced to use the saw to carry out the task in hand and his evidence on point is in the following terms: “Prior to commencing operating the saw, did you deliberate [sic], that is consciously, wedge the lower guard open?-- No. Prior to commencing using the saw, did you deliberately, that is consciously, tie the lower guard open?-- No. At any time after you commenced operating the saw that day did you deliberately, that is consciously, wedge the lower guard open?-- No. 10 T.T. page 37 line 56 - page 38 line 5. 11 T.T. page 38 lines 17-18. 12 T.T. page 38 lines 43-47; (Typographical error should read “mm” – millimetres). 13 T.T. page 38 lines 52-54. 14 T.T. page 39 lines 1-8. -- 5 of 43 -- 6 At any time after you commenced operating the saw, did you deliberately, that is consciously, tie the lower guard open?-- No.” 15 • He further stated that throughout the time he was operating the saw on the day of the incident he was “… aware that there was a guard on the saw which was designed to retract automatically and cover the blade” and he was not “… aware, at any time, prior to the incident, of this guard malfunctioning on this saw.”16 • He stated there were a number of reasons “…why the operator of the saw might choose to move the guard back using the control lever, rather than allow the piece of work to force the – the guard back as can happen at times”17 namely: o the thickness of the material to be cut; o when the operator is carrying out a “plunge cut”; o when the operator is carrying out a “rip cut”; o where the piece of board to be cut “…has a mitre on the end of the board”.18 • That he was unaware that it was possible for the operator of the saw to “…consciously lock the guard into a position where it is permanently open by design.”19 • He was assisted in the task before the incident occurred by the witness Matthew James Vayro (“Vayro”), who the plaintiff stated: “… he was at the end of the first horse, at the end of the 3.6 metres, right, holding it, with his arms spread out holding it down to the 15 T.T. page 39 lines 30-42. 16 T.T. page 41 lines 51-56. 17 T.T. page 43 line 57 - page 44 line 2. 18 T.T. page 46 line 33. 19 T.T. page 48 lines 33-34. -- 6 of 43 -- 7 bench. Once I proceeded through and got through approximately half way, that’s when he come around – I stopped and he come around and held onto the back of it so he’s not in my road.” 20 • The plaintiff described what happened when he suffered his injury in the following terms: “And what happened then as you go towards the end of the ripping action on that particular board?-- I got to approximately 3 to 400 mm from the end and for some unknown reason the board fell and I tried to grab hold of the board that was falling because that’s the natural instinct, right, I tried to grab hold of the board but the board wasn’t there. And what happened?-- Consequently because the guard did not retract back around, I grabbed hold of the blade.”21 • The plaintiff further stated that he subsequently received a letter dated 14 November 2002 from the defendant, which became Exhibit 11 in the proceeding referring to the same model saw he had purchased, requesting that the saw be taken to “… your closest Authorised Service Agent … for modification at no charge”. [3] Exhibits 12 to 14 inclusive were tendered through the plaintiff and were respectively: • the original Makita Product Safety Recall notice of circular saws including the one used by the plaintiff in the incident; • the same Makita Product Safety Recall notice posted on the internet; and • the Rework Instructions Manual for the said saws. 20 T.T. page 50 lines 15-20. 21 T.T. page 50 lines 26-34. -- 7 of 43 -- 8 Plaintiff’s Cross-Examination on Circumstances of Incident: [4] The plaintiff was cross-examined at length on the circumstances of the incident including: • what he had told various medical practitioners from whom he received treatment; • when he first contemplated pursuing his claim against the defendant; • how he operated the circular saw on the day of the incident and in particular his use of the guard; • he was asked in cross-examination: “So, Mr Drew, are you saying, that on this day, although you didn’t mean to do it, you did lock this open?-- I did not lock it open. Not consciously lock it open.” 22 • and further: “And you locked it open?-- I - I did not purposely lock it open. No. But you subconsciously or inadvertently locked it open is what you’re saying?-- Maybe. Yes. You’re saying. I’m asking?-- You’re telling me that I locked the guard open and – no, I did not purposely lock the guard open.”23 [5] The plaintiff further stated that he did not “… realise … [that he] could lock the guard in the open position.” 24 22 T.T. page 122 lines 37-39. 23 T.T. page 123 lines 26-33. 24 T.T. page 128 lines 1-2. -- 8 of 43 -- 9 Medical Evidence and Plaintiff’s Treatment: [6] Over the two and a half years following the incident the plaintiff underwent a series of operations and treatment set out in Exhibit 5 of the proceeding. Further major surgery is still contemplated to attempt to provide him with better use of the hand.25 [7] As a result of the injury the plaintiff says he has been deprived of a number of hobbies and/or recreational activities in which he previously participated.26 [8] He was required to wear “about 50 or 60 different braces” during his rehabilitation “… all designed to get my hands moving.”27 He required assistance for personal needs, which were rendered by his partner as set out in Exhibit 7 in the proceeding. A further Schedule of Services was provided in respect of less intensive periods of care which became Exhibit 8 in the proceeding. [9] The plaintiff further stated that he has difficulty in picking up objects because of lack of strength in his left hand and “muscle deterioration” and that he cannot operate a normal motor mower “… because of the vibration” as a result of which he had to purchase “… a Scott Bonner self-propel mower with a roller”.28 [10] There was a substantial volume of medical evidence and commentary adduced at the hearing including reports from the following specialist medical practitioners and others: • Dr Mark Ross, Orthopaedic Surgeon (called by plaintiff), reports dated: 9 September 2002; 20 November 2002; 25 See evidence of Dr Soares following. 26 T.T. pages 53-54; (Ie., Golf, gardening, ten-pin bowling and fishing). 27 T.T. page 55 lines 44-50. 28 T.T. page 91 lines 20-30. -- 9 of 43 -- 10 18 February 2003; 15 April 2003; 26 June 2003; and 8 July 2003. • Dr Desmond Soares, Orthopaedic Surgeon (called by plaintiff), reports dated: 22 November 2004; and 15 November 2007. • Dr Steven Coleman, Surgeon (called by defendant), reports dated: 15 February 2005; and 19 June 2007. Dr Ross:- [11] Dr Ross reported that the plaintiff sustained: • “… a very severe injury to the left hand … and the injury was almost severe enough to result in him losing the large part of his hand but fortunately it was salvaged;”29 • “… he has had stiffness due to the quite extensive nature of the damage to his hand;”30 • “… he has developed significant stiffness of his metacarpo-phalangeal joints of the small, middle, and index fingers;31 • The plaintiff underwent further surgery at St Andrews’ Hospital on 26 June 2003 where various procedures were undertaken in respect of the left hand “Under a general anaesthetic”;32 29 Report of Dr Ross dated 9 September 2002 marked as Exhibit 25. 30 Ibid. 31 Ibid. 32 Report of Dr Ross dated 26 June 2003 marked as Exhibit 31. -- 10 of 43 -- 11 Dr Soares:- • Dr Soares gave evidence in respect of his reports referred to above confirming their contents and in particular that the plaintiff’s contact with the saw caused: “… the blade partly severed off his left hand. This happened around the area of the mid-palm. His hand was held on by dorsal tendons and the index and middle metacarpals.”33 • “His injuries included 100% laceration of all digital nerves to thumb, index, middle, ring, and little fingers.”34 • He had fractures of various metacarpal bones; lacerations of tendons of fingers and thumb. 35 • “Following his initial surgery he started to develop carpal tunnel symptoms in the right hand.”36 • “In all Mr Drew has had nine operations so far, including the two carpal tunnel releases performed on his right hand.”37 • In summary, Dr Soares states that the plaintiff: “… suffered a severe partial amputation to his left hand. This has left him with severe impairments to his left hand. This has also greatly affected his functioning at home and beyond.” 38 • Dr Soares further advised that:39 33 Report of Dr Soares dated 22 November 2004 marked as Exhibit 16, page 2. 34 Ibid. 35 Ibid. 36 Ibid. 37 Ibid, page 3. 38 Ibid, page 7. 39 Ibid, page 10. -- 11 of 43 -- 12 “Mr Drew will require further surgery to his hand”, and at that time: “Mr Drew is unable to manage even the most basic tasks with his injured hand that he managed before. He needs significant assistance with home tasks and any tasks that require him to put a load on his hand. He requires assistance from his partner to dress himself, to cut up his food and for other activities of daily living.” • In Dr Soares’ second report of 15 November 2007, five years eight months post injury and two years nine months after his first report, he assesses the plaintiff’s “impairment” in the following terms: “…I would evaluate Paul Drew as suffering a 22% (twenty two percent) whole body impairment.”40 • Dr Soares further states that in respect of “Home Help” the plaintiff “… would require assistance for an aggregate of 90-120 minutes per day.” He further states as noted, that the plaintiff “… will require further surgery to his hand” setting out the “procedures” and that “Even after the surgery listed above he will still be left with a permanent impairment of at least 15% whole person impairment.”41 • In evidence Dr Soares estimated that the cost of the “… further surgery … would be between 12 and $15,000 all up, which includes surgeons, anaesthetists, prostheses, hospital stay” and with further “… post operative rehabilitation treatment” the total cost would be “Seventeen thousand all up” so that the range of the future surgery would be “… 14 to $17,000.” 42 40 Report of Dr Soares dated 15 November 2007 marked as Exhibit 17, page 3. 41 Ibid, pages 5-6. 42 T.T. page 75 lines 11-44. -- 12 of 43 -- 13 [12] In cross-examination Dr Soares indicates that the plaintiff has “… certain trigger points (in his left hand) and touching those would trigger intense pain, then that is what – is the problem in Paul Drew’s case.”43 He further confirmed that the plaintiff “… has a significant permanent impairment.”44 [13] Dr Soares further confirmed the assistance the plaintiff needs in the various “…activities of daily living”45 and that whether the plaintiff is likely to undergo any “…future operative treatment is completely up to him”.46 He stated that the further treatment “… would only really make about a 2 to 3 percent difference in his total whole person impairment”47 and “… on balance you (he) would hope that his pain would be reduced significantly.”48 Dr Coleman:- [14] Dr Coleman’s also gave evidence that in respect of carpal tunnel release “…generally persons are back at light duties at work, for example, within two weeks and heavier manual duties within three, four weeks”.49 Dr Coleman further stated in respect of the plaintiff’s “left limb” that he “… would normally expect that he would be in some sort of splint for a minimum of six weeks with that sort of injury because he had tendon and nerve injuries, and then there would be a – less splints but still some splintage and an extended period of hand therapy for up to three months, and possibly longer with intermittent splintage.”50 43 T.T. page 78 lines 26-28. Refer also T.T. page 78 lines 30-40. 44 T.T. page 78 line 39. 45 T.T. page 79 line 29. 46 T.T. page 80 line 34. 47 T.T. page 80 lines 47-48. 48 T.T. page 81 lines 38-39. 49 T.T. page 134 lines 6-9. 50 T.T. page 134 lines 14-19. -- 13 of 43 -- 14 [15] Dr Coleman confirmed in his report of 15 February 2005 (three years two months post injury) that the plaintiff “… could not give a finite answer … on the number of hours required for assistance … He said some days he can care for himself quite well and other days requires more. It is mainly for dressing, food and dishes. Most assistance is provided by his partner who has a carer’s pension for this task.”51 [16] Dr Coleman’s assessment of the plaintiff’s “permanent impairment” is “… 28% whole person impairment.”52 [17] With respect to “treatment in the future” Dr Coleman says “There is no absolute indication of any of these procedures, and they will make minimal difference to his long term function. If pain develops in the little finger metacarpal, this would then indicate that he should have the joint replaced.”53 [18] In Dr Coleman’s further report of 19 June 2007 he was of the view that in respect of further surgery his estimate was that the plaintiff had “… a 50% chance that he will require any of the above procedures” and that “The joint replacement will not be done to improve his range of movement, and simply to reduce pain from any arthritis.”54 It is to be noted that both Dr Soares and Dr Coleman are in agreement on this issue. 51 Report of Dr Coleman dated 15 February 2005 marked as Exhibit 33, pages 5-6. 52 Ibid page 7. 53 Ibid pages 4-5. 54 Report of Dr Coleman dated 19 June 2007 marked as Exhibit 34, page 2. -- 14 of 43 -- 15 Plaintiff’s Witnesses: Witness Vayro:- [19] The witness Vayro confirmed that he was the plaintiff’s assistant on the day of the incident and that when the plaintiff commenced to cut the Weather-tex board he “…was at the other end”.55 [20] Vayro confirmed that “… about half way through the board” he was asked “… to go behind and secure the other end”. 56 He stated that he did not see “… exactly what happened”, as at the time of the incident he was positioned behind the plaintiff.57 After the incident occurred he sought assistance for the plaintiff. [21] In cross-examination Vayro could not remember that there was any timber straddling the trestles by way of support for the Weather-tex board to be cut, nor could he remember the piece of timber “… dangling outside of the trestle”.58 [22] Generally Vayro seemed to be doing his best to recall the sequence of events on the day of the incident but, he was unable to remember what occurred with any degree of detail or accuracy. His evidence was of relatively limited value. Witness O’Shea:- [23] The witness William Micheal O’Shea (“O’Shea”) was a registered builder and knew the plaintiff from his army service. He was working with the plaintiff on the day of the incident. Essentially his evidence corroborated that of the plaintiff in respect of 55 T.T. page 195 line 19. 56 T.T. page 195 lines 23-24. 57 T.T. page 196 lines 3-6. 58 T.T. page 208 lines 4-5. -- 15 of 43 -- 16 the system of work which was adopted on the day and he “… was actually the supervisor on the job and controlling the job” that day.59 [24] O’Shea described the “… work station that the plaintiff had set up on this day” in the following manner:60 “There was two saw stools with a couple of planks probably 10 to 12 foot long on it where the Weather-tex was resting on when it’s being cut.” He regarded this “… as a solid safe stable working platform.” [25] After the incident O’Shea states that he noticed that the Weather-tex board “… had been cut three-quarters of the way along, and it was laying on the ground.”61 He also noticed the saw lying on the ground with “… the blades touching the ground” and with the guard not having “… retracted to cover the blade.”62 O’Shea tested the saw by manipulating the guard and says that “… it showed that the guard was actually sticking and jamming”63 and that he did this several times but the guard jammed “Probably only sometimes.” 64 Witness Canning:- [26] The plaintiff’s partner, Jennifer Canning (“Canning”), gave evidence that from in or about 1998 the plaintiff “… did all the outside work … He did all the lawn mowing and the trimming of the trees and the gardens.” She states further that from about this time she and the plaintiff “… played golf together and ten pin bowling.” 65 [27] Canning further states that: 59 T.T. page 253 lines 44-45. 60 T.T. page 254 lines 27-45. 61 T.T. page 256 lines 45-46. 62 T.T. page 257 lines 9-11. 63 T.T. page 257 lines 26-27. 64 T.T. page 257 lines 54. 65 T.T. page 277 lines 9-31. -- 16 of 43 -- 17 • She went to the scene of the incident and saw “Paul’s lying on the ground with blood all over him;”66 • She went to the hospital with the plaintiff. [28] Canning further states that when the plaintiff came home from hospital after the incident: • “Neither hand was functional”;67 • he could not “… dress himself … attend to himself when going to the toilet … brush his teeth … feed himself … cook for himself”.68 She did these things for him and prepared a schedule of the time spent doing them.69 [29] Canning states further that it was necessary for her to administer medication to the plaintiff at this time “…because he had no hands to do it with” and that this would be done “… a couple of times during the night;”70 • she had to take him to the toilet during the night; “In the first few days it was quite frequent because he was losing fluid from his body”;71 • she was required “… to change the bandages on his left arm from time to time;”72 • she had to take the brace off his left arm; 73 66 T.T. page 278 lines 10-11. 67 T.T. page 281 line 6. 68 T.T. page 281 lines 13-20. 69 See Exhibit 7 in the proceedings. 70 T.T. page 281 lines 51-52. 71 T.T. page 282 lines 7-8. 72 T.T. page 282 lines 17-18. 73 T.T. page 282 line 26. -- 17 of 43 -- 18 • after each operation she had to care for the plaintiff and she is still required to “… button his shirts; tie his shoelaces … Do up belts.”74 Cross-examination: [30] In cross-examination Canning confirmed that in or about 1998 as the plaintiff’s partner she paid the bills; undertook the shopping; cleaned the home; prepared all the meals.75 [31] Canning also confirmed that: • “In May 1998(3 years 7 months pre-accident)… He (the plaintiff) did suffer a lot of back pain” and that “… he hasn’t recovered completely, he does have back pain”.76 • “…in May 1998 he (the plaintiff) ceased golf completely because of his headaches, back and knees”77 and that “… his back, his arms and his legs made it difficult for him to garden.”78 • the plaintiff “in July 1999 … was a person who was prone to … ‘fly off the handle’ … could not … handle any form of stress … (and described) both of his knees - as being quite stuffed”. 79 • the plaintiff has adapted to his disability in respect of dress and generally the plaintiff “… will wear a polo shirt or a T-shirt or something of that sort, when he can.”80 74 T.T. page 288 lines 18-20. 75 T.T. page 299 lines 19-27. 76 T.T. page 299 lines 33-50. 77 T.T. page 299 lines 56-57. 78 T.T. page 300 lines 1-2. 79 T.T. page 300 lines 13-32. 80 T.T. page 303 lines 48-50. -- 18 of 43 -- 19 • she continues to clean the plaintiff’s false teeth and “cut up his food”.81 Experts’ reports: [32] Two engineers Brendan McDougall (“McDougall”) and Frank W Grigg (“Grigg”) gave evidence and tendered reports.82 McDougall’s Evidence:- [33] McDougall’s report of 2 December 2004 confirms that he inspected “… a Makita Model 5806B circular saw with Serial Number 225507K…” and he took photographs of the saw “as supplied” and that “The lower moveable guard was observed to be jammed in the fully open position exposing the saw blade. No other damage or defect was observed on the saw.”83 [34] McDougall removed the saw blade and further photographs were taken which he states “… illustrate how the trailing edge of the moveable guard has become wedged as it deflected laterally and partially moved over/onto a protruding structure in the guide path formed by the fixed upper guard.”84 [35] McDougall further states that: 81 T.T page 304 line 31 – page 305 line 2. 82 Reports of Brendan McDougall (Consulting Engineer) dated 2 December 2004 and 30 October 2007 being Exhibits 40 and 41 respectively in the proceedings; Report of Dr Frank W Grigg (Engineer) dated 27 October 2005 being Exhibit 43 in the proceedings. 83 Report of Brendan McDougall dated 2 December 2004, page 1. 84 Ibid pages 2-3; (Photographs 3 and 4). -- 19 of 43 -- 20 • “By applying moderate force, the moveable guard was able to be forced clear of this obstruction. Once clear, the lower moveable guard closed and appeared to operate in the expected manner;” 85 • “The author was readily able to reproduce jamming by inducing some lateral movement of the lower moveable guard as it opened and approached the limit of travel. Force required to achieve this would be described as slight. This lateral movement is a combination of clearance in the lower guard attachment mechanism and elastic bending of the guard;”86 • “This potential for jamming is an undesirable design feature of the saw which should have been identified and rectified had the product been subject to an appropriate risk assessment. There are a variety of techniques such as HOZOP studies which assist manufacturers identify such potentially damaging situations. As contact with the rotating saw blade is an extremely common mechanism of serious injury, any hazard study should strongly focus on reliability of safety guards.” 87 [36] In his second report of 30 October 2007 McDougall further states: • “The author has had the opportunity to observe a number of Makita Model 5806B circular saws. On some saws the size, shape or position of the rill in the upper guard is such that the jamming of the lower guard was not possible. On other saws the stop has been modified, as illustrated in Figure 9, to limit how far the lower guard opens and to prevent contact with the rill. The problem with the guard jamming is therefore likely to be a combination of inadequate design, inadequate design specification provided to the manufacturer, or lack of quality control by the manufacturer. Monitoring of products to ensure compliance with design specifications is a critical final step in any product quality management or risk management system. Irrespective of where the problem arose, the consequence (guard jamming open) should have been identified during audits and risk assessments prior to the saw being supplied to end users.”88 [37] During the course of McDougall’s evidence the following exchange occurred: “HIS HONOUR: … Is it intended that the guard on that implement there be designed to retract automatically to the closed position after it has been moved forward to expose the blade or is the guard also designed to be 85 Ibid page 4. 86 Ibid page 6. 87 Ibid. 88 Report of Brendan McDougall dated 30 October 2007, page 14. -- 20 of 43 -- 21 locked into the open position thereby exposing the blade until the guard is again closed manually or by a deliberate action?-- No, your Honour, it is designed to always self-close. But that particular guard doesn’t always self-close, does it?-- That’s correct. It sometimes self-closes and it can be made not to self-close, in other words, it can be made to remain in the open position?-- Yes, your Honour. Is that correct?-- Yes, your Honour.”89 [38] McDougall was further asked in re-examination: “MR LEE: You speak of lateral movement, in your view, would it be possible to perform that lateral movement in moving the control lever of the guard forward without consciously knowing you’re doing it?-- Yes. And in your view if the design of the machine is such that the operator could do so, would that constitute a design defect?-- A design or manufacturing defect, yes.”90 [39] In the same paragraph McDougall further described the noise made by the saw when in operation as “Very loud”.91 Grigg’s evidence: [40] Grigg inspected the saw on 20 July 2005 and states in his report “As made available, the bottom guard of the saw was seen to be jammed with its control lever in the fully forward position, as shown in Photo 1 after the blade was removed.”92 He states further “It was found during the inspection that it was possible to cause 89 T.T. page 332 lines 15-31. 90 T.T. page 334 lines 5-12. 91 T.T. page 334 line 19. 92 Report of Dr Frank W Grigg dated 27 October 2005, page 2. -- 21 of 43 -- 22 the bottom guard to jam simply by pushing forwards on the control lever so as to move it to the approximate position shown in Photo 1.”93 [41] In his conclusions Grigg states among other things: “Although it was found that the bottom guard of the saw could be made to jam on a rib within the top guard, this would only occur if the guard was open beyond its working range by applying a forward force to the control handle of the guard.”94 This “… would not occur during normal operation of the saw.”95 [42] In cross-examination, the following exchange took place: “MR LEE: … Dr. Grigg, are you saying that it is on your inspection possible to operate this saw so that by pulling the lever back far enough you can cause it to jam?-- I say by pushing it forwards far enough you can cause it to jam. Or by moving it - shall we use a natural [sic] term. By moving the control lever far enough you can cause it to jam?-- That is correct. Yes. Are you saying in your view that the saw is designed so that it will do that?-- Well, it is certainly manufacture [sic] so that can happen. Whether it was designed so that could happen I’m not sure. Well, let’s assume that the design – the manufacturing is in accordance with the design it would follow-----?-- If that is the case then yes – it was designed. Yes. Is it your view that a saw so designed is one which is safe to use?-- I don’t believe it is unsafe. Would you accept that a aw [sic] so designed has the potential to cause injury if in fact the guard is jammed open?-- Well, anything which causes the guard to jam open can obviously leave the blade exposed and that is undesirable. So you’re agreeing with me, aren’t you, that a saw so designed is capable potentially of causing injury?-- Well, saws are capable of producing – causing injury at any time. 93 Ibid. 94 Ibid, page 4. 95 T.T. page 345 line 9. -- 22 of 43 -- 23 All right?-- Look, they have to be used correctly is the important thing about any portable saw. Would you accept that by virtue of the feature – the design feature which allows the guard to be jammed open by virtue of that feature the saw is capable of causing injury?-- By virtue of that feature, yes, it is. Yes?-- Yes.”96 [43] Further in cross-examination Grigg agreed that: • the “injunction” on page 4 of the instruction manual accompanying the saw refers to “… someone not deliberately or consciously or knowingly wedge or tie the guard open” and further that “… nowhere in the manual does it warn of the possibility or the potential for this guard to be wedged open inadvertently”;97 • “… in circumstances where there’s the risk of a guard being jammed open inadvertently … that, in the least, the manufacturer should give warning of that fact”;98 • “… a design that allowed for that guard (that is the guard of the saw) to be jammed open inadvertently would be a faulty design;”99 And further he was asked: • “… if there was a risk assessment conducted under your control of such a device, for the purpose of seeing whether that device could be released onto the market, you’d send it back for rectification, wouldn’t you?-- Yes;”100 96 T.T. page 345 line 50 - page 346 line 29. 97 T.T. page 351 lines 3-10. 98 T.T. page 351 lines 42-45. 99 T.T. page 352 lines 17-18. 100 T.T. page 352 lines 21-24. -- 23 of 43 -- 24 • “You would never have allowed this saw to get onto the market, would you?-- No.” 101 Defendant’s Concessions: [44] In respect of the saw the defendant made the following concessions: (i) The design of the machine is such that the guard should return to the closed position within 0.3 of a second;102 (ii) “For the purposes of the Trade Practices claim it is a deemed manufacturer of the saw”;103 and (iii) “For the purposes of the general law negligence claim, it caused the saw to be manufactured, it packaged and marketed the saw”.104 The law: [45] As stated in paragraph [1] above the plaintiff’s case is based upon a breach by the defendant of s 75AC of the TPA and/or a breach of the common law duty of care owed to the plaintiff. [46] Miller’s Annotated Trade Practices Act (“Miller”) states:105 101 T.T. page 352 lines 26-27. 102 T.T. page 69 line 9. 103 T.T. page 86 lines 17-18. 104 T.T. page 86 lines 18-20. 105 Russel V Miller, Miller’s Annotated Trade Practices Act (26 th ed, Thompson Lawbook, Sydney, 2005), page 701-702. -- 24 of 43 -- 25 “Section 75AC defines the term ‘defect’ for the purposes of the operative provisions of this Part (Part VA). The standard to be adopted in determining whether or not goods are defective is an objective standard based on what the public at large, rather than a particular individual, is entitled to expect. The level of safety is that which the community is entitled to expect. However, the Act does not require goods to be absolutely free from risk: ACCC v Glendale Chemical Products Pty Ltd [1998] FCA 180; (1998) 40 IPR 619; ATPR 41-632; Glendale Chemical Products Pty Ltd v ACCC (1998) 90 FCR 40; (1999) ATPR 41-672. The term ‘defect’ is widely defined. Section 75AC(1) defines ‘goods’ as having a defect if their safety is not such as persons generally are entitled to expect. Section 75AC(2) sets out a series of matters to which regard is to be had in determining whether goods are safe, being: • the manner in which they are marketed; • the purposes for which they are marketed; • their packaging; • the use of any marks in relation to the goods; • the instructions or warnings provided with the goods; • what might reasonably be expected to be done with or in relation to the goods; and • the time when they were supplied by the manufacturer.” [47] Miller further says:106 “The relevant test107 is what ‘persons generally are entitled to accept’. This is different to the common law ‘reasonable man’ test. It is necessary to look to the class of persons to whom the product is directed or marketed, including ‘the astute and the gullible, the intelligent and the not so intelligent, the well educated and the poorly educated’ (Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45; 74 ALJR 573; 169 ALR 677; 46 IPR 481; [2000] AIPC 91-540; ASAL 55-043; (2000) ATPR (Digest) 46-201), and determine what members of that class would be entitled to accept. However, as Smithers J observed in Ransley v Black & Decker (A/Asia) Pty Ltd (1977) 3 TPR 138 at 140; 2 TPC 343: 106 Ibid page 702. 107 Probably most important test. -- 25 of 43 -- 26 ‘It has to be remembered that this representation [concerning an electric saw] is not made to all and sundry, to the dwarfs, to the giants, to the blind, to the deaf – it is made by reference to the reasonable conditions which must exist in relation to the operation of any machine of this kind. Obviously it is a dangerous machine … [W]hen you approach a safety razor you have to take note that it is sharp and you have to adjust it accordingly. When it comes to machines like this which are likely to lop off limbs, anybody knows that great care must be taken.’” Common law negligence: [48] The fundamental principles of the duty of care owed by one to another are long established and have been restated in various ways in a legion of case law since Lord Atkins’ pronouncement in Donohue v Stevenson (1932) AC 562 with the two dominant principles being those of proximity and foreseeability. Equating those two principles to the instant case as the plaintiff submitted:108 “The standard of care required by a manufacturer is proportional to the danger involved.109 A relevant consideration in determining the standard of care required is how easily the danger could have been eliminated.110 If the manufacturer fails unreasonably to test a product before it is released to the market, and as a result a defective product is released, the manufacturer cannot rely on the intermediate examination to detect the defect. Nor can the manufacturer deflect liability by pointing to a negligent intermediate examination.111 The standard of care is irrelevant if a product has been defectively designed and the cause of action is based on breach of warranty, either in contract or by statute.112 The standard of care in an action in negligence is relevant when a product is defectively designed.113 ” 108 Plaintiff’s written submissions dated 5 December 2007 at paragraphs [18]-[21]. 109 See Read v J Lyons & Co Ltd [1947] AC 156, per Lord McMillan at 172-173: “The sound view, in my opinion, is that the law in all cases exacts a degree of care commensurate with the risk created.” 110 See Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514. 111 See Smith v Inglis Ltd [1978] 83 DLR (3d) 215. 112 See Adelaide Chemical & Fertilizer Co Ltd v Carlyle supra. 113 Ibid. -- 26 of 43 -- 27 Plaintiff’s submissions on liability: [49] The plaintiff’s submissions on liability include the following: • The plaintiff adopted a safe system of work in carrying out the task in hand on the day of the incident;114 • The evidence of the expert witness McDougall is of assistance to the court and McDougall “…makes the point that the high reliability of an engineering/design control as against a behavioural/procedural control leads to a strong obligation to ensure that risks are obviated by the design process.”115 • The conclusions reached by expert witness Grigg in his evidence seem to be based on the premise “… that the plaintiff knowingly (or as is pleaded in paragraphs 9.2.2; 10.2; 10.3; 10.5; 11.3; 11.4; 11.5; 11.7; and 12 of the defence) ‘deliberately’ jammed the guard … (and) the Court would not accept that premise.” 116 • That the only evidence which the court should accept for the guard “jamming” in the open position “… is that of Mr McDougall, whose view that the jamming is a design or manufacturing fault was not challenged.”117 • Ultimately the plaintiff submits that the plaintiff’s case establishes that: “(a) The saw had a design defect; (b) It is a defect of which the defendant knew or ought to have known; 114 See T.T. page 39 lines 8-19 (Plaintiff’s evidence) and T.T. page 254 lines 44-45 (O’Shea’s Evidence). 115 Plaintiff’s written submissions dated 5 December 2007 at paragraph [28]. 116 Ibid at paragraph [34]. 117 Ibid at paragraph [46]. -- 27 of 43 -- 28 (c) There is no factual basis to support any allegation that the plaintiff knew, or ought to have known of the risk that the guard would not retract into place; (d) The failure to properly design the saw, and the failure to take adequate steps to ensure the saw as designed was safe, amount to both relevant negligence on the part of the Defendant and a breach of the TPA, and there is no basis for contributory negligence; (e) That negligence was causally connected to the Plaintiff’s loss and damage.” 118 And the defendant has failed to adduce evidence that would persuade the court to reach any contrary finding. • As a result of the foregoing “The Plaintiff should succeed on the liability issue.”119 Defendant’s submissions on liability: [50] The defendant’s submissions on liability include the following: • That the court “… will ultimately find that the plaintiff has failed to discharge the onus of proof that rests with him of establishing the circumstances in which this accident occurred.”120 • That “The plaintiff simply does not know the circumstances in which his hand was injured and is simply inventing a story designed to exculpate himself from his own inadvertence and to put blame on the defendant following the fortuitous receipt of a recall notice relating to this particular saw model.” 121 118 Ibid at paragraph [47]. 119 Ibid at paragraph [50]. 120 Defendant’s written submissions dated 5 December 2007 at paragraph [3]. 121 Ibid at paragraph [4]. -- 28 of 43 -- 29 • That the plaintiff’s credibility is in question in that he had told his instructing solicitor and the witness McDougall that at the time the incident occurred “… he had the handle of the saw on the saw that he was using at the time” but that was proved to be incorrect when the witness Grigg found the handle still wrapped in its “plastic container”. • That “... the plaintiff could not say what happened to the saw after he cut his hand.” 122 • That the plaintiff’s case “… is sheer speculation” and “the plaintiff acknowledged that he didn’t know at the time that he cut his hand that ‘the guard didn’t close’.” 123 • That “The plaintiff’s version of the alleged incident is entirely fanciful” that is where the plaintiff says in his evidence that “I got to approximately 3 to 400 mm from the end and for some unknown reason the board fell and I tried to grab hold of the board as it was falling because that’s the natural instinct right I tried to grab hold of the board but the board wasn’t there.”124 • That the court would accept “The more plausible explanation” as to how the incident occurred and that is “… that the plaintiff had informed Mr McDougall that he had cut to within 150 to 200 mm from the end of the cut” when “… only the bisected, unsupported, piece of ‘Weathertex’ that dropped away.”125 • That “… the evidence of Mr O’Shea should be rejected” as he “had never told anybody of his observations of the accident scene for six years until the 122 Ibid at paragraph [16]. 123 Ibid at paragraphs [17]-[18]. 124 Ibid at paragraph [20]; See also T.T. page 50 lines 27-31. 125 Ibid at paragraph [21]. -- 29 of 43 -- 30 Thursday before he gave his evidence”126 and essentially that the plaintiff’s version of how the incident occurred should be rejected and the plaintiff has failed to prove his case. Plaintiff’s submissions on quantum of damages: [51] Essentially the plaintiff submits that he is entitled to a substantial award of damages under the various heads for which evidence has been adduced. Supplementary submissions were exchanged between the parties in respect of “whether the receipt of a Carer’s Benefit by the Plaintiff’s de facto should have any effect on the Plaintiff’s claim for Griffiths v Kirkmeyer damages”127 with the plaintiff contending that the receipt of a carer’s benefit by the witness Canning should not impact upon any award to which the plaintiff may be entitled for gratuitous services. Defendant’s submission on quantum of damages: [52] The defendant concedes that the plaintiff sustained “a serious hand injury … And obviously in terms of damages it calls for an assessment of significant loss of use of the left hand,”128 but notwithstanding the plaintiff’s serious injury he has “overstated and exaggerated” his incapacity to do a number of activities for which he now says that he requires assistance and that overstatement and/or exaggeration should be reflected in the assessment of damages. 126 Ibid at paragraphs [26]-[27]. 127 Plaintiff’s supplementary written submissions dated 12 December 2007 at paragraph [1]. 128 T.T. page 360 lines 18-24. -- 30 of 43 -- 31 [53] Further to this in respect of the plaintiff’s claim for gratuitous services the fact that the witness Canning receives a carer’s benefit should be taken into account in the assessment of any damages to which the plaintiff may be entitled under this head. FINDINGS: [54] On a review of all of the evidence and the submissions made, I make the following findings in this proceeding: (i) On the 31 day of May 2001 the plaintiff purchased a Makita circular saw model 5806B Serial Number 225507K (“the saw”) from Trade Tools (Qld) Pty Ltd, Smith Street Capalaba, as a new saw and completed and registered a warranty card following the purchase as supplied by the defendant; (ii) The saw was manufactured and supplied by the defendant “in trade or commerce” within the meaning of section 75AC of the TPA; (iii) On 19 December 2001 the plaintiff was engaged in assisting others to renovate a neighbour’s house; (iv) In the course of that work the plaintiff was operating the saw to cut a “Weathertex” cladding sheet 3.6 metres long, by 300 millimetres wide, by 12 millimetres in thickness (“the Weathertex”); (v) The Weathertex was supported by two lengths of timber board, each of which was of the dimensions of 3.6 metres long, by 200 to 250 millimetres in width, by 50 millimetres in thickness, placed on top of two saw-horses approximately 650 millimetres high which formed the working-bench; -- 31 of 43 -- 32 (vi) The plaintiff intended to cut the Weathertex into two pieces lengthwise so that each piece when cut would be 150 millimetres in width; (vii) At the time the plaintiff commenced to cut the Weathertex, the witness Vayro was positioned in front of the plaintiff for the purpose of holding the Weathertex in place on the working-bench; (viii) When the plaintiff had cut approximately half way through the Weathertex the witness Vayro moved from his position in front of the plaintiff to a position behind the plaintiff to continue to assist him in the cutting process; (ix) When the plaintiff reached a position in the cutting process between 400mm and 200mm from the end of the cut, the Weathertex fell from the working-bench as a result of which the plaintiff instinctively attempted to grab hold of the Weathertex but instead grabbed hold of the exposed blade of the saw thereby suffering serious injuries to his left hand (“the incident”); (x) The safety guard of the circular saw was jammed or stuck in the open position and was therefore not able to retract to the closed position when removed from the cut; (xi) The saw had a design defect in that it was possible for an operator of the saw in the normal course of its operation to “jam” or “stick” the safety guard, either consciously or unconsciously, in the open position because of “the trailing edge of the moveable guard” being capable of becoming wedged “over onto a protruding structure in the guide path formed by the fixed upper guard” by only a slight lateral movement. -- 32 of 43 -- 33 (xii) I find therefore that the saw was defective within the meaning of s 75AC of the TPA and that the defendant ought to have known of such defect. (xiii) The incident was further caused by a breach of the duty of care owed by the defendant to the plaintiff in the following manner: (a) Manufacturing and supplying a saw which was unsafe for use; (b) Manufacturing the safety cover of the saw so that the trailing edge of the safety cover was capable of becoming “jammed” with the use of only a slight force by a “protruding structure” as it was deflected laterally in the course of opening the guard; (c) Manufacturing the safety cover of the saw so that it did not close as and after the saw was removed from a cut or at the end of a cut; (d) Failing to test adequately the safety cover of the saw to ensure that it closed as and after the saw was removed from a cut or at the end of a cut; (e) Failing to conduct any proper risk assessment in relation to the saw and its design relative to the instantaneous retraction of the safety guard as and after the saw was removed from a cut or at the end of a cut. [55] I find further that, although one method of carrying out the cut in question would have been to allow the cut of the saw to guide the safety guard as it continued along the Weathertex, the fact that the Plaintiff chose to open the guard before commencing the cut would have been a safe and acceptable method of operation of -- 33 of 43 -- 34 the saw (particularly in the course of carrying out work in progress) but for the design defect referred to above. [56] It follows therefore that the defendant is liable to the plaintiff for such injuries as the plaintiff suffered in the incident, together with his consequential loss and damage. [57] In making the above findings on the saw defect I rely upon the evidence of both experts McDonnell and Grieg who were essentially ad idem on the point that where there was a “possibility or the potential” for the safety guard of the saw to jam or stick in the open position inadvertently, the design of the saw is faulty and should have been rectified by the manufacturer.129 Contributory negligence: [58] The defendant has pleaded “further or alternatively the incident was caused solely by a deliberate act, negligence or inadvertence on the plaintiff’s part”,130 but I am not persuaded that the defendant has discharged its onus of proof in respect of this pleading, as I am not satisfied that the plaintiff deliberately or consciously jammed the guard in the open position before operating the saw. On the contrary I am satisfied on the evidence that it was possible for an operator of the saw either inadvertently or subconsciously to jam or stick the safety guard in the open position because of the inherent design defect referred to in paragraph [54(xi)] above. I therefore find the plaintiff did not contribute to his injury in any way. 129 See extracts of experts’ evidence referred to in paragraphs [32] to [43] hereof. 130 Amended Defence filed 21 August 2007 at paragraph [12]. -- 34 of 43 -- 35 Findings on injuries and damages: [59] On a review of the evidence and submissions made I make the following findings in respect of the plaintiff’s injuries and their effect: (i) that the plaintiff, who is right hand dominant, suffered a severe partial amputation to his left hand, affecting his thumb, index, middle, ring and little fingers thereof, ultimately resulting in a significant permanent impairment of his left hand and, for a time, loss of use of his right hand due to the development of carpel tunnel symptoms in that hand which I find were directly attributable to the injuries sustained to his left hand; (ii) that the specialist medical evidence before the Court referred to in paragraphs [10] to [18] above, is largely in agreement in respect of the nature of the plaintiff’s injury; the manner in which it has adversely affected him; his permanent disability and the likelihood of the plaintiff requiring further surgery to relieve his pain; and I accept in general the medical evidence given by all of the respective practitioners called, together with that contained in the various medical reports tendered but in particular I accept the evidence of Dr Coleman in respect of his assessment of the plaintiff’s disabilities; their medium to long term effects and the plaintiff’s treatment prognosis. (iii) that the plaintiff has endured moderate to severe pain and suffering from the injuries he sustained resulting in his loss of amenities and the capacity to enjoy and participate in a number of activities which he previously did. -- 35 of 43 -- 36 Assessment of general damages: [60] The assessment of the plaintiff’s general damages in this proceeding is not subject to the legislative changes relevant to claims for damages for personal injuries suffered post 18 June 2002 and is therefore to be assessed on the general common law principles applicable to claims arising before that date. [61] A summary of the plaintiff’s alleged difficulties and problems and the evidence in respect thereof has been set out in the preceding paragraphs above which must be read in conjunction with the findings in paragraph [59]. Taking all relevant matters into account including past and future pain and suffering and loss of amenities, I assess the plaintiff’s general damages in the sum of $75,000.00. I allow interest on the sum of $60,000.00 of this amount at the rate of two percent for 6.7 years which amounts to the sum of $8040.00. [62] Part of the plaintiff’s claim includes an allowance for past and future gratuitous services provided to him by his partner Canning. The defendant has submitted that because Canning is in receipt of a “carer’s allowance” which she received in February 2002131 in respect of the plaintiff’s war service disability this allowance should at the very least be taken into account in the assessment of any award for past or future gratuitous services even to the extent that such an allowance “… should preclude any entitlement that the plaintiff might otherwise have to an assessment of damages either past or for future care”.132 131 Plaintiff’s supplementary written submissions dated 12 December 2007 at paragraph [3]. 132 Defendant’s supplementary written submissions dated 10 December 2007 at paragraph [4]; The defendant relies upon the decision of the Full Court of the Supreme Court of Queensland in Jesberg v Rackemann [1986] 1 Qd R 181. -- 36 of 43 -- 37 [63] On the other hand the plaintiff submits that the allowance received by Canning is “a Carer Allowance under the provisions of the Social Security Act 1991” paid by Centrelink the current amount of which “… is $98.40 (per fortnight) effective from 20 September 2007”.133 [64] The plaintiff further submits that:134 • “By contrast a Carer Payment (Adult) is the maximum rate of $537.70 per fortnight”; and • the “allowance” received by Canning is “…assessed and paid in respect of the plaintiff’s post-traumatic stress disorder arising out of his Vietnam War service … not paid in respect of the consequences of the injury of 19 December 2001.” [65] The question of whether Commonwealth benefits should be taken into account in the assessment of damages claims before the courts has been the subject of judicial discussion and determination over the past 50 years.135 [66] Particular guidance on point is also to be found in the matter of Scarf v State of Queensland and Anor [1998] QSC 233 where her Honour White J considered “the principles to be applied in respect of gratuitous care” and as the plaintiff has submitted in paragraph 10 of his supplementary written submissions: “At paragraph [122] of Scarf, her Honour addressed the argument that a defendant did not need to pay Griffiths v Kirkemeyer damages if a third person was in receipt of Carer’s Pension to look after the injured Plaintiff. Her Honour said: 133 Plaintiff’s supplementary written submissions dated 12 December 2007 at paragraphs [3]-[4]. 134 Ibid at paragraphs [5]-[6]. 135 See Luntz, H. Assessment of Damages for Personal Injury and Death (4 th ed, Butterworths, Sydney, 2002) at paragraph [8.5.1]. See also National Insurance Co of New Zealand Limited v Espagne (1961) 105 CLR 569. -- 37 of 43 -- 38 ‘122 Mr Williams submitted that since Mrs Hawley and her husband before her were in receipt of non refundable carer’s pensions to look after the plaintiff then there was no obligation on the defendants to pay further for a need which had already been met. He referred to Harth v Schick [1992] 2 Qd R 101. In that case a plaintiff sustained severe injuries in a motor vehicle accident. Her mother ceased full time employment in order to case for her and whilst doing so received a supporting parent’s benefit pursuant to the Social Security Act (Cth) 1947. Demack J, relying upon the decision of Veselinovic v Thorley [1988] 1 Qd R 197, used the mother’s loss of wages as a measure of the cost of meeting the plaintiff’s needs. On that basis he concluded that the supporting parent’s benefit should be taken into account as part of the “realities of family income” at p. 103. That decision was handed down just prior to the High Court decision in Van Gervan v Fenton which criticised the approach to calculating gratuitous care taken in Veselinovic. Whatever view one might take of the practical effect of such an outcome, where a non refundable source of income is provided to a carer specifically to cater for a plaintiff’s needs generated by the tortious acts of a defendant, it is to be disregarded in the assessment of the quantum of the plaintiff’s damages for past gratuitous care.” More so would this principle seem to apply where the “non-refundable” carer’s “income” is paid because of a plaintiff’s needs unrelated to “the tortious acts of a defendant” as in this instance. [67] In further discussion on the topic, Luntz136 also refers to the dictum of de Jersey J (as he then was) in Veivers v Connolly [1995] 2 Qd R 326 where his Honour said at page 333 in reliance upon Espagne (supra) that: “Use of the pension, albeit by the first plaintiff not Kylie, to defray expenses incurred by the first plaintiff in aid of Kylie, should not relieve the defendant of the need to reimburse those expenses.” 137 The dicta in these authorities would seem to support the plaintiff’s submission that receipt by the plaintiff’s partner Canning of the “carer’s 136 Luntz, H. Assessment of Damages for Personal Injury and Death (4 th ed, Butterworths, Sydney, 2002). 137 Plaintiff’s supplementary written submissions dated 12 December 2007 at paragraph [12]. -- 38 of 43 -- 39 allowance” should not be taken into account in the assessment of damages under this head of claim. [68] For the reasons set out above I am not persuaded that the assessment of the plaintiff’s gratuitous care component of damages should be reduced by Canning’s receipt of a carer’s allowance for the plaintiff’s needs unrelated to “the tortious acts of a defendant” and I find that the assessment of this component of damage should be made on this basis. Past and future gratuitous services: [69] I find that the plaintiff would have needed considerable assistance on a daily basis arising from the incident for various periods post-operations, such assistance being of varying intensity from time to time, relative to the various operations he underwent and the extent to which he was incapacitated thereby, apart from what might be described as more general recurring assistance such as cutting up food and being assisted to dress and undress. I accept the evidence of the plaintiff, his partner Canning together with the evidence of Doctors Soares and Coleman that the plaintiff would have required “intensive post-operative care” for various periods and in particular I find that this high degree of care would have been required for the following respective periods:138 138 See Exhibit 7; (Note that there are some typographical errors in respect of the periods claimed in both Exhibits 7 and 8). -- 39 of 43 -- 40 • from date of original discharge from hospital 12 weeks • from 13.11.02 4 weeks • from 27.06.03 4 weeks • from 28.04.04 4 weeks 24 weeks [70] In a practical sense as Canning conceded139 the level of assistance to the plaintiff would have reduced over time so that the level of care required in the early part of any post-operative recuperation would have been greater the latter part. Adopting an average over the whole of the respective periods set out above and having regard to all the evidence on point I find that the plaintiff would have required assistance for 2.50 hours per day for the 24 weeks aggregate period allowed. I therefore allow the sum of $7560.00 for this period calculated at the agreed rate of $18.00 per hour for a total of 168 days.140 [71] In respect of “non-intensive” assistance on a daily basis from the date of incident to the present time excluding the assistance referred to in paragraph [69] above, I find that on average the plaintiff has required assistance for approximately 0.50 of an hour per day to date. In aggregate therefore and “rounding up” the amount calculated I allow the plaintiff the sum of $30,000 for past gratuitous services.141 I will allow interest on this sum at the rate of five percent for 6.7 years which amounts to the sum of $10,050.00. [72] I am satisfied and so find that the plaintiff will require ongoing assistance in the future and although it is reasonable to expect that the plaintiff will be able to adapt 139 T.T. page 306 lines 25-34. 140 Ie., (168 x 18 x 2.5). 141 Ie., Approximately 6.2 years at $9.00 per day but rounded up. -- 40 of 43 -- 41 to his permanent incapacity (as he has done to date) with respect to the use of his left hand for the various activities of daily living such as “cutting up food – dressing and undressing” there will be other times when he will require more intensive assistance should he undergo further surgery and, taking all matters into account, I allow a future gratuitous care component in the total sum of $10,000.00 based upon a period of 2 hours per day in the immediate post-operative care period for say four weeks and continuing assistance thereafter for 2 hours per week for a period of 5 years. [73] I find that after this period the plaintiff should have sufficiently adapted his lifestyle to enable him to undertake all aspects of daily living without the assistance he previously needed. Future medical expenses: [74] With respect to the plaintiff’s claim for future medical treatment I find that it is more probable than not on the evidence before me that the plaintiff will require further operations for “pain management” and my finding in this respect on the medical evidence before me is essentially based upon the principles enunciated in Malec v J C Hutton Pty Ltd,142 (although in a different context) particularly the following passage: “If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into 142 (1990) 169 CLR 638. -- 41 of 43 -- 42 account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v McMonagle [1970] AC 166 at 174; Davies v Taylor [1974] AC 207 at 212, 219; McIntosh v Williams [1979] 2 NSWLR 543 at 550-1. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.”143 I therefore allow the sum of $15,000.00 under this head of damages. Special Damages: [75] The parties have agreed that the plaintiff’s claim for this item should be allowed in the amount claimed as that paid by the Department of Veterans’ Affairs (Commonwealth) for the plaintiff’s hospitalisation and treatment as set out in Exhibit 15. I therefore allow special damages claimed in the sum of $46,364.86. [76] In summary I assess the plaintiff’s damages as follows: Head of Damage Amount General Damages $75,000.00 Interest on $60,000.00 at the rate of 2% for 6.7 years $8,040.00 143 Judgment of Deane, Gaudron and McHugh JJ at p 643. -- 42 of 43 -- 43 Past Gratuitous Care $30,000.00 Interest on Past Gratuitous Care at a rate of 5% for 6.7 years $10,050.00 Future Gratuitous Care $10,000.00 Future Medical Expenses $15,000.00 Special Damages $46,364.86 TOTAL $194,454.86 [77] I give judgment for the plaintiff against the defendant in the sum of $194,454.86 for damages and I shall hear the parties further in respect of costs. -- 43 of 43 --