Evans v Smith [2005] QDC 291

DISTRICT COURT OF QUEENSLAND CITATION: Evans v Smith [2005] QDC 291 PARTIES: DEBRA ANN MAREE EVANS (Plaintiff) v COLIN FRANCIS SMITH (Defendant) FILE NO/S: 110 of 02 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court, Mackay DELIVERED ON: 14 th of July 2005 DELIVERED AT: Mackay HEARING DATE: 11 th and 12 th of July 2005 JUDGE: FORDE DCJ ORDER: 1. Judgment for the plaintiff against the defendant in the sum of $38,760.50 2. It is ordered that the defendant do pay the plaintiff’s costs of the action including any reserved costs to be assessed on the District Court scale. CATCHWORDS: ELECTRIC SHOCK INJURY – GENERAL DAMAGES – INTEREST – FUTURE ECONOMIC LOSS – SPECIAL DAMAGES – Future recurring expenses – 39 Year old Plaintiff COUNSEL: Mr P Cullinane for the Plaintiff Mr R Green for the Defendant SOLICITORS: Morrin Lawyers Quinlan Miller & Treston -- 1 of 8 -- 2 Introduction [1] The plaintiff, Debra Ann Maree Smith, was turning off a tap in her laundry at 112 Kippen Street, Mackay on 18 August 1999 when she suffered an electric shock. Her hand was “glued” to the tap for some moments. She was able to pull it off and then fell to the ground. Her next recollection was that of lying on the ground with a dog licking her face. The defendant was the owner of the residence. He had entered into a written rental agreement with the plaintiff1 and she moved into the residence with her husband and child at Easter time 1997. [2] A report was prepared for the electricity supplier Ergon Energy.2 According to the evidence of Mr. Peter Aprile, who prepared the report, the cause of the electric shock was two fold. First, the service neutral on the footpath has been burnt off. Second, the earth system to the house was defective. He measured the voltage to the metallic water pipe on the date in question as 233 volts. On the second day of the trial, the defendant admitted liability. Nature of the Injury [3] The plaintiff gave evidence that the electric current ran through her arm to her shoulder. Her hand and arm were hot and swollen. She was able to telephone Ergon Energy. She was feeling dizzy and nauseous. She was taken by ambulance to a doctor.3 Dr. Keily examined the plaintiff. She told him that her hand was clamped onto the tap for about 60 seconds.4 At examination, the plaintiff appeared “mildly distressed and upset”. She complained of pain in her right shoulder and in the right upper arm. The muscles around the shoulder were tender to touch. She 1 Exhibit 7. 2 Exhibit 8. 3 Exhibit 9 paras.16-19. -- 2 of 8 -- 3 was prescribed Panadol and anti-inflammatory medication. She did not take the latter until 2002. [4] The plaintiff was examined by Dr. Reimers, a neurologist, on 7 June 2002. He performed nerve conduction studies to her right arm. There was no evidence of any significant right median or ulnar nerve dysfunction.5 Her reflexes were normal and there was no significant sensory loss. The symptoms of which she complained included discomfort, mild persisting sensory disturbance, and mild subjective weakness to the right arm. In the days following the incident, she had severe pain to the arm and shoulder. The plaintiff complained that she had a tendency to drop things from her right hand. [5] In her evidence, the plaintiff confirmed the nature of the symptoms. She also continues to have pain up the arm and to the shoulder for some hours for three to four times per month. According to the medical evidence, the nature of her symptoms were consistent with the type of injury suffered.6 Dr. Reimers was of the opinion that the symptoms, given the lapse of time, were likely to continue.7 She had suffered a soft tissue injury. [6] The evidence of the plaintiff and that of Dr. Reimers was not undermined in any way by inconsistencies or contrary evidence. Having observed the plaintiff, I find that she is a stoic person: wanting to get on with her life, look after her son, and continue to work on a part time basis. She has been able to cope by taking Paracetamol. 4 Exhibit 20. 5 Exhibit 3. 6 Dr. Reimers T.63.5. 7 Exhibit 3 p.3; T.59.48. -- 3 of 8 -- 4 General Damages [7] The plaintiff was born on 27 December 1965. Her son was born on 22 November 1994. At the time of the incident, the plaintiff was working about 3 and one half hours per night on average as a filler with the Coles supermarket at Mr. Pleasant. She was able to continue this work after the accident with no time off. She then stayed at home to look after her son after she resigned from Coles. During this time the plaintiff noticed that her right arm was much weaker and her right hand grip also weak. She experienced numbness in her fingers on occasions. The pain extended to the right side of her neck. [8] Since resuming work in 2003, the plaintiff has worked for Queensland Health. Her position is described as a health worker. She drives to the homes of aged persons or those with disabilities and cleans their residence. It involves mopping and vacuuming. This type of work causes her some aching to her arm. She is conscious that her arm is weaker. She intends to continue this type of work. [9] I find that this type of work will continue to cause the plaintiff to have discomfort on the days that she works. She is sleeps mainly on her left side. When she sleeps on her right side, it aches around the shoulder area. Also, she does not assist her husband around the house doing odd jobs as she used to. She goes ten pin bowling and did so prior to the incident. Since the incident, she does not go ten pin bowling as often. One reason for this is that her arm and grip is weaker. [10] The plaintiff is still a relatively young person who looks after the needs of her son and husband around the house. Doing daily tasks causes her discomfort. I assess the general damages at $20,000.00. -- 4 of 8 -- 5 Interest on general damages [11] The electric shock occurred in August 1999. The plaintiff did not give instructions to sue until 2002. The defence have conceded that interest over a period of three and one half years is appropriate. I agree. I allow interest on the sum of $10,000 at 2% for that period. This amounts to some $700.00. Future Economic Loss [12] There is no claim for past economic loss. The claim for future economic loss is based upon the premise that the plaintiff is less employable on the open labour market because of her ongoing symptoms. These symptoms are, I find, likely to continue. Her past employment history is one of working at the canteen at a hospital, at KFC doing cleaning, taking orders, preparing and serving meals and attending to the cash register. She has worked at the Pizza Hut, as a domestic at a hospital and a cleaner for periods. As mentioned, she has also worked as a filler and continued to do so immediately after the accident. Her present position as a carer is part time. She is working similar hours to what she worked pre-accident.8 [13] The plaintiff’s case is that if the accident had not occurred, and after her son had left school, she would have looked for full time work. She did not work between 1998 and 2003 as she says she was looking after her son. In cross-examination the following evidence was given9 : 8 Exhibit 9 para. 15 and Exhibit 5. 9 T.48.50. -- 5 of 8 -- 6 “Now, as I understand what you were saying before when you were giving your evidence, your plans were always going to be that you were going to do part- time work? -- Not always but, yes. Okay. So does that mean that you would have looked at full-time work at some stage? -- If the accident hadn’t happened, yes, and I didn’t have a child to look after.” [14] I find that the plaintiff would probably have looked for some full time work after her son was off her hands and if the accident had not occurred, but that it would be more likely to be intermittent and consistent with her previous working history. The limitation on the plaintiff’s obtaining full time work would be that she cannot do heavy lifting. This would prevent her from such positions as a nurse’s aid. Also, the longer hours might aggravate her present symptoms which occur after a day’s work. On the other hand, the plaintiff’s skills are somewhat limited. Her work history is not one of sustained full time employment, even before her son Ashley was born. One reason for stopping work was her husband’s working commitments. Younger persons might be preferred for work in the hospitality industry which is where the plaintiff envisaged doing some full time work. Younger persons are employed at a lower hourly rate. However, if there were positions which required her to carry out heavier tasks or repetitive tasks over longer periods, she would be likely to be unable to do so on a full time basis.10 To this extent, she has, I find, suffered a diminution in her earning potential. [15] By the time her son finishes school, the plaintiff will be in her late forties. She might have obtained full time work for five to ten years. Her hours may have increased from say 20 to 35 or 40 hours per week if her physical condition had allowed her to do so. She earns about $20.00 per hour. However, I have discounted this figure to take into account the usual contingencies including her past work -- 6 of 8 -- 7 history and the availability of employment for a semi-skilled person. I assess the damages under this head at $15,000.00. It was conceded by the plaintiff that the assessment could only be on a global basis. For the reasons stated, I reject the defence submission that no sum should be allowed for future economic loss. Loss of future superannuation benefits [16] There was a submission by the defence that this sum should not be allowed. There have been cases, according to the plaintiff’s counsel where such a sum has been included in the lump sum awarded for future economic loss. Given the nominal amount awarded for economic loss, it was appropriate to include this loss as part of that sum. Special Damages [17] The claim for special damages is as follows: General practitioner consultations 244.65 Dr. Riemers 260.85 Pharmaceutical expenses 1059.60 Travel 400.00 The only controversial figure relates to the use of Pharmaceuticals. The defence have allowed for three months at one packet of Paracetamol per week and thereafter one packet per fortnight. This would be at the rate of about $4.00 per packet. I allow the sum of $480.00 for this sum. The evidence was that the plaintiff initially required heavier use of pain relief but that since that time she would take up to four tablets about two to three times per week. There are 24 in a 10 Exhibit 9 paras.28-30. -- 7 of 8 -- 8 packet. Each packet costs $3.00-4.00. The sum of $1385.50 is allowed for special damages. Interest on special damages [18] The defence have conceded the sum of $175.00 in this regard. This seems reasonable on the principal sum for the period since the accident. Future Recurring expenses [19] As was discussed for pre-trial pharmaceuticals, the sum of say $2.00 per week for the future seems reasonable. Over 30 years, using the 5% discount tables, counsel informed me that the figure would be $1644.00. The plaintiff is 39 years of age at the moment. She might have taken tablets for other ailments during the next 30 years. For that reason, I discount the figure to $1500.00. Summary of Damages General damages 20,000.00 Interest on general damages 700.00 Future Economic Loss 15,000.00 Special Damages 1,385.50 Interest on specials 175.00 Future Recurring Expenses 1500.00 ------------ $38,760.50 Orders 1. Judgment for the plaintiff against the defendant in the sum of $38,760.50. 2. It is ordered that the defendant do pay the plaintiff’s costs of the action including any reserved costs to be assessed on the District Court scale. -- 8 of 8 --