Colson v Corda Pty Ltd [1999] QSC 108

,. t.-I r5rZ..AP2-Cj - SJ Pf4£!Ylc SCClc(/IOt] ,---State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) (Issued subject to correction upon revision.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No 94 of 1994 TREVOR JAMES COLSON and CORDA PTY LTD (ACN 010 533 741) FLINTSTONES PEBBLES & PAVING SUPPLIES TOWNSVILLE .. DATE 09/04/99 JUDGMENT 1 REVISED COPIIES ISSUfiOj State Reporting Bureau . Date 9 I If. I 9' 9 Plaintiff Defendant 4th Floor, The Law Courts, George Street, Brisbane Q. 4000 Telephone: (07) 32474360. Facsimile: (07) 32475532 -- 1 of 10 -- /~ ) "---/ 090499 T5/DKG M/T TSVSC5904 (Cullinane J) HIS HONOUR: In this matter the plaintiff's cause of action is admitted. The plaintiff was born on 20 June 1949 and he sustained the injury that I am concerned with in September of 1992. The plaintiff has spent most of his working life as a technician working for Telecom. He took a voluntary redundancy package in 1991 and commenced employment with the, defendant in September 1991 as a truck driver. The skills which he had as a technician have now been superseded by technology, and it seems clear enough that he would no longer be able to return to that work assuming he was physically capable of doing so. He was working for the defendant as a truck driver, and at the time that he was injured he was in fact performing the work of a pit supervisor. He says that he would have remained with the defendant and worked as a truck driver for the remainder of his working life. The plaintiff sustained, it would seem, a central and lateral disc herniation of the L4/5 disc, with compression on the L5 nerve root. He underwent laminectomy, which gave him some relief for a period, but the symptoms returned. He has undergone other procedures without any benefit. The plaintiff was in receipt of worker's compensation payments until about the end of April 1994. He has not received any Social Security payments following the cessation of worker's 2 JUDGMENT 10 20 -- 2 of 10 -- 090499 TS/DKG MIT TSVSCS904 (Cullinane J) compensation. His wife works and her income supported the family. He obtained employment with Flintstones Bulk Haulage Proprietary Limited on 27 June 1994 as a truck d~iver, driving trucks carrying loam and sand. He suffered an accident whilst performing that work when a truck turned over, but it seems clear that this incident has not affected the course of the plaintiff's disability. The plaintiff says that he suffered a good deal of pain and discomfort whilst carrying out the work 10 r-, with Flintstones and would inevitably have had to cease that work because of the pain that he was suffering. He had a trial with a loader in the same employment but found after half an hour that the pain was so great because of the vibrations and the movement of the vehicle that he had to cease it. It is the plaintiff's evidence, and I accept it, that his symptoms have deteriorated over a number of years until about ~ two years ago, since which time they have remained more or ~/ less constant. The plaintiff suffers from chronic pain in the lower back and in the left leg and occasional pain in the right leg. I am satisfied that the complaints which he makes of pain and discomfort are genuine and I accept the plaintiff's evidence as to the restrictions that these impo~e upon him and also the impact that they have had upon his personal life. 3 JUDGMENT -- 3 of 10 -- 090499 T5/DKG MIT TSVSC5904 (Cullinane J) I have evidence which suggests that whilst he suffers no psychiatric condition he does suffer a good deal of frustration and anxiety and this has plainly adversely affected his relationship with his wife and children. He is frustrated about the position in which he finds .himself and I accept what he says about his feelings in this regard. He has at times resorted to the abuse of alcohol and also he has had weight problems because of his lack of exercise .. He seems to have both of these problems now under control. I have reports from a number of specialists and I had evidence from Dr Lewis, an orthopaedic surgeon and Dr McFarlane, an orthopaedic surgeon. It is plain that the plaintiff had a degenerative spine prior to this accident and it is common ground that at some time the plaintiff would have developed symptoms which would have restricted his capacity to perform work and that it is likely that by 55 he would have been unable to continue in the work force. 10 Dr McFarlane suggests that this is the time at which he would ~ have had to cease truck driving. Dr Lewis thinks that he ~- . would have had to cease truck driving a little earlier than that, but that he would have been able to perform somewhat lighter work for another few years. But each of them suggest that he would have been out of the workforce by about age 55. The plaintiff suffered a heart attack, which is the subject of a report by Dr Moyter, Exhibit 8. This occurred on 23 March 1997 and it would appear that he would have been out of the work force as a result of that, in any case, for about six ~ 4 JUDGMENT -- 4 of 10 -- 090499 T7-8/JAB MIT TSVSC5904 (Cullinane J) months. The evidence suggests that this would not have, however, imposed any restrictions on his capacity to work and I will assess damages on that basis. The matter is complicated somewhat by the fact that the defendant went into liquidation. This occurred on 28 May 1993. Flintstones also subsequently went into liquidation. I have calculations based upon the income the plaintiff might have received had he remained working for the defendant, with whom he enjoyed some additional benefits. I also have figures which would show how much he would have received had he remained in employment with Flintstones. His income from Flintstones was a generous one, based on an hourly rate, but he had not been there for very long and it is plain that that income was generated by working very long hours and it is also clear that he would not have been likely to remain there for much longer. I also have evidence based upon award rates of pay. In the assessment of damages the development of the ~/ plaintiff's degenerative condition and the increasing symptomatology will have an effect upon some heads of damage and require discounts. These will include general damages and, of course, future economic loss. 10 20 So far as general damages are concerned, I allow these in the sum of $45,000. I ascribe $25,000 to past pain, suffering and ~ 5 JUDGMENT -- 5 of 10 -- 090499 T7-8/JAB M/T TSVSC5904 (Cullinane J) loss of amenities. I allow interest at the rate of two per cent for 6.58 years, producing an amount of $3,290. So far as past economic loss is concerned, I think that it is appropriate to proceed upon the basis that the plaintiff would have continued to work for the defendant until it went into liquidation, and that thereafter, the appropriate rate which should be adopted is the award rate. There has to be, as I have already mentioned, allowed 10 ~'. something for the six months during which the plaintiff would in any case have been unable to work, and some minor allowance for some delay in obtaining suitable work after that time. I do not think that it is appropriate to make any allowance for any failure on the part of the plaintiff to obtain work during this time. I will deal shortly with the question of any residual earning capacity. He has applied for work and has not been successful, and I am not satisfied there has been any failure on his part to mitigate his loss. ~ ~/ It would seem that had the plaintiff been receiving an award rate of pay at the time that 'he had his heart problems, he would have been likely to have lost some $9,447.10. I allow in respect of past economic loss, the sum of $115,OQO. The plaintiff has received by way of income substitution an amount of $23,842.64, being an amount received from the Workers' Compensation Board. 6 JUDGMENT -- 6 of 10 -- 090499 T7-8/JAB M/T TSVSC5904 (Cullinane J) I allow interest on the difference, namely $91,157.36, at the rate of four per cent per annum for 6.58 years, producing an amount of $23,992.61. I allow for loss of superannuation entitlement on past economic loss the sum of $5,750. So far as future economic loss is concerned, I haye already indicated that, on the medical evidence, which I accept, the plaintiff would have been unlikely to work past the age of 55. 10 The calculations I have are based upon this, and have been prepared upon the various bases that I have already referred to. The plaintiff may have had to obtain lighter work towards the end of that period. On the other hand, he would, by that time, have been in the industry for a significant period, and may have obtained supervisory work or work of a kind which did not involve any reduction in his income. So far as any residual earning capacity is concerned, I have had differing views expressed about this. Dr McFarlane thought the plaintiff did have a residual earning capacity which could be exercised in some light occupations. Dr Lewis did not think he was employable, as I understand the effect of the evidence he gave before me. Miss Purse, an occupational therapist, who saw the plaintiff earlier this year for the purposes of making a report, thought that he had, at least theoretically, a residual earning 7 JUDGMENT -- 7 of 10 -- 090499 T7-8/JAB MIT TSVSC5904 (Cullinane J) capacity, but that his chronic pain and discomfort, ahd the need for him to take time off when he had severe bouts of pain as he does from time to time, would render him, in the practical sense, virtually unemployable. I have accepted the plaintiff's evidence as to his symptoms. I think that, whilst he does have the capacity to perform some work, perhaps, on his own account, at his own pace, or with an extremely understanding employer, any allowance for this should be quite modest indeed, because I think there are very 10 significant obstacles to translating this into income. The plaintiff has no experience in working for himself, and apart from his qualifications as a technician with Telecom, has no other qualifications. I think, in these circumstances, it should be regarded as quite improbable that he would find employment with an employer in the ordinary labour market. In addition, any income that he might generate for himself, would, in my view, ~ have to be regarded as likely to be quite modest indeed. I make allowance for the ordinary vicissitudes and contingencies. Had the plaintiff remained in work as a truck driver until age 55 on the award rate of pay applicable to the work he was doing at the time he was injured, he would have. received an amount which, discounted by reference to the five per cent tables to the present value, is of the order of about $88,000. 30 8 JUDGMENT -- 8 of 10 -- 090499 T7-8/JAB M/T TSVSC5904 (Cullinane J) I allow for future economic loss, the sum of $82,500. I allow in respect of loss of superannuation entitlement, the sum of $6,600. So far as the other claims are concerned, there .is a claim for past care and assistance, which I am satisfied is made out, and to which no opposition was raised. I allow this in the sum of $2,970, together with interest at $356.40." I allow, by way of special damages paid for by WorkCover the sum of $13,575.38. I allow $1,512 for the costs of a laminectomy. I allow in respect to past medical consultations the sum of $1,400.06. I allow $1,264.80 for past medications, and interest in the sum of $379.44. I allow in respect of past head pads and the clinical chair that the plaintiff purchased the sum of $569.30 with interest in the sum of $95.75 as claimed in respect of part of that expenditure. I also allow in respect of the costs associated with the sale '-.... of a house at Rupertswood and the purchase of a house at Kirwan to which ultimately no real objection was raised, together with interest thereon, a total of $8,280. I am not persuaded that the claim for the pool cleaner has been made out. • There is a claim for travelling expenses which again was not the subject of any real challenge, in the sum of $1,820.29, 10 20 with interest at $546.08. ~ 9 JUDGMENT -- 9 of 10 -- !/- 090499 T7-8/JAB MIT TSVSC5904 (Cullinane J) There are some future claims which, on the evidence, it seems to me, are made out. These are future medical consultations, $1,200, future medications, $1,736.25, and future travel costs which represent a somewhat surprisingly high proportion of the medication costs, in the sum .of $1,000, but which would seem to be a product of the need of the plaintiff to travel from his home at Lucinda into the town of Ingham for such treatment. I also allow the Fox and Wood claim in the sum of $4,769.40. 10 The total of these sums is $323,607.76. From this has to be deducted the total paid to the plaintiff from WorkCover of $49,455.02. There will be judgment for the plaintiff against the defendant in the sum of $274,152.74 with costs to be taxed. 10 JUDGMENT -- 10 of 10 --