Conyard v Hancock Bros Pty Ltd [1998] QSC 36

s~~\~ IN THE SUPREME COURT ' .. -<'.'., OF QUEENSLAND No. 1713 of 1995 Brisbane Before the Hon. Justice White [Conyard v Hancock Bros Pty Ltd] BETWEEN: JEFFREY HUGH CONYARD Plaintiff AND: HANCOCK BROS PTY LTD. Defendant JUDGMENT - WHITE J Judgment delivered 25/311998 CATCHWORDS: Personal Injury - s.9 Workplace Health and Safety Act - employers liability. Counsel: Mr P Mylne for the Plaintiff Ms A Philippi des with Ms Buxton for the Defendant. Solicitors: Walker Pender for the Plaintiff O'Mara Patterson & Perrier for the Defendant -- 1 of 22 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane Before the Hon. Justice White [Conyard v Hancock Bros Pty Ltd] BETWEEN: AND: JEFFREY HUGH CONYARD HANCOCK BROS PTY LTD. JUDGMENT - WHITE J Judgment delivered 25/3/1998 No. 1713 ofl995 Plaintiff Defendant The Plaintiff is a 40 year old married man who was employed as a press operator by the Defendant when he sustained injuries to his back in July and again in September 1994. He has been unable to return to work since September 1994. Both liability and quantum are in issue although no submissions were made by Counsel for the Defendant against findings of negligence. It was somewhat surprising that liability remained in issue in light of the way in which the trial was conducted with respect to negligence. • Liability The Defendant's business was manufacturing sheets of plywood. The premises contained two mills which engaged in the same process, described as a top mill and a bottom mill. It was in the latter that the Plaintiff worked. A series of photographs (exhibit 15) and a sketch map -- 2 of 22 -- 2 (exhibit 16) assisted in understanding how the work in which the Plaintiff was engaged was carried out. The process at the time comprised glueing sheets of wood together and placing them in a cold press. The boards were then transported manually in a stack along runners from the cold press by pushing. When the stack of boards reached an intersection, a trigger system operated and the stack was pushed along another set of runners at right angles on to a hoist. The boards were then transferred manually from the hoist to a loader while the men stood on the hoist. Each board had to be manually separated from the next and placed in the loader. The loader pushed the loaded ply boards into a hot press. The boards were pushed out of the hot press onto a trolley or a receiving rack where they were immediately hosed with water to cool. The trolley, which had a fixed point in one corner, was swivelled manually through 90° to come to rest parallel to a set of runners. The boards were then removed manually from the trolley and placed on the runners in a stack. When the unloading was complete, the stack of boards was pushed manually up a slight incline along the runners to a point where the boards could be removed by a fork lift. The press operators usually worked in pairs. A stack of 45 to 50 boards from the cold press would entail 3 loads into the loader, and each would remain 20 minutes in the hot press. On 18 July the Plaintiff was handling ply boards approximately 8 x 4 feet and 19 mm thick. There were about 50 boards to be put into the loader. The Plaintiff and his working partner elevated with the stack of boards on the hoist and starting at the top, pushed the first board into the top slot. When all the slots were filled the loader pushed the boards into the hot press. A recurring problem for the press operators loading was that the boards stuck together because of the glue. It was necessary for one or other of the operators to shake his end of the board to get some purchase so that the other operator could have a corner to lift. On some occasions it was so difficult to separate the boards that the operators used an axe. Another difficulty was that the hoist in the bottom mill, unlike the top mill, did not attain a sufficient height to enable the men -- 3 of 22 -- 3 conveniently to slip the top boards into the loader without undue bending and reaching up. The Plaintiff and his partner had about 5 boards left of the 50 with which they had started. The Plaintiff yanked a board to free it so that his partner could grab one side to lift it into the loader. He freed the board and strained a muscle in his back. He was able to lift the board into the slot in the loader and then reported his injury to his foreman. The Plaintiff was given 2 weeks rest. When he returned to work his medical officer certified that he should be given light work for four weeks. The Plaintiff was put on the crosscut saw for one shift, but it seems that inexperienced persons working on the presses caused the Plaintiff to be asked to return to his old position the following day. The Plaintiff made no complaint about his symptoms being reactivated by this assignment to heavy duties and it is not a particular of negligence that doing so was causative of his second injury. On 12 September 1994 the Plaintiff and his partner unloaded the boards in the trolley on to a stack on the runners. They commenced unloading at the top of the trolley by sliding the board out and lifting it up onto the top of the stack. There were about 45 plywood boards in the stack; each board measured 8 x 4 feet and 31.2mm thick and weighed about 32 kg. The Plaintiff and his partner were required to push the stack along the rollers for some distance to a point where the boards could be off loaded by a fork lift. The floor was constituted by metal sheets. Three metal wedges were on the floor just behind the back of the stack the purpose of which would seem to be to give some leverage to the pushers. The floor was always very wet because of the hosing operation. Darren Watkins, a former fellow employee of the Plaintiff, said that the tracks were on a slight uphill slope to the point where the boards could be unloaded with a fork lift. The wedges were of little assistance because they were too close to the stack and too wet. There was no capacity to position the stack further forward so that a reasonable distance could have been obtained between the wedges and -- 4 of 22 -- 4 the back of the stack for pushing because of the fixed position of the trolley. The ball bearings on the runners stuck into the bottom of the boards because they were wet, which also made it difficult to start the push apart from the weight of the boards. This particular load on 12 September was difficult to move. The Plaintiff and his partner had just started to move it when he felt a "clunk, crack type thing" (t/s24) in the bottom part of his spine about the belt area. He said that the pain knocked him to his knees and he managed to walk to a nearby stack to sit down. He never returned to work. The Plaintiff's evidence was that he and his fellow workers regularly requested some mechanical assistance, both with respect to the loading of the boards into the loader and pushing the stack. This was confirmed by Mr Watkins who had worked at the Defendant's premises for about 3 years covering the period of the Plaintiff's employment. Within a week of the Plaintiff's second injury an hydraulic ram was installed to push the stacks of boards along the rollers to the fork lift point. The first, a 3 ton(ne) model, was broken within a week and was replaced with a bigger model. The top mill which carried out the same functions as the bottom mill was equipped with a machine which obviated the need for manual loading into a loader for the hot press or after leaving the hot press. Although the cross examination of the Plaintiff was conducted on the basis that no complaints or requests for mechanical assistance had been made to management via the foreman and/or the supervisor, no attempt was made to adduce evidence to that effect even though Mr Walsh, the supervisor of the bottom mill at the relevant time, was called by the Defence. It was suggested to the Plaintiff that he could have called upon other assistance from other workers in the mill to move the stack of ply boards. His evidence was that after some effort he and his partner had managed to move the stack. Both he and Mr Watkins said that it was only when it proved impossible to move the stack that employees would look around the mill in order -- 5 of 22 -- 5 to find extra hands to assist. With respect to the incident on the 18 July, the system of work exposed employees to a risk of injury of the very kind which occurred to the Plaintiff It was necessary to bend to lift the boards and, in particular, to use excessive force in order to separate them because of the glue. This was aggravated by the hoist not reaching sufficiently high to the top of the loader so that when the stack was depleted, the men had to bend over and stretch to lift the board into place at the top of the loader. There was available within the premises a machine which eliminated this manual handling and no evidence was led by the Defence to suggest that there was any reason why such a machine could not have been in use in the bottom mill. I find that there was an unsafe system of work and injury arising out of it foreseeable. It could have been eliminated, it seems, without undue difficulty or expense. The Defendant was negligent. There is evidence from both Dr Gillett and Dr Boys as well as the Plaintiff's own evidence that he had fully recovered from the effects of this injury by the time the second accident occurred in September 1994. It is not a particular of negligence that the failure to put the Plaintiff on light duties contributed to the injury which he sustained in September, nor, knowing that he had suffered a back injury that the Defendant ought to have been more concerned for safe work practices as they related to the Plaintiff I accept that numerous complaints and requests for mechanical assistance to move the stacks had been made. Within a week of the Plaintiff's injury an hydraulic ram was installed to carry out the work that the employees had been required to do in the bottom mill previously. Gibbs J in Nelson v John Lysaght (Australia) Ltd. (1975) 132 CLR 201 observed at p.215: " ... it was practicable to eliminate or minimise that risk by adoption of a different method, namely, that which has in fact since been adopted, and that it was unreasonable of the respondent not to have adopted that method before the accident occurred." -- 6 of 22 -- 6 It was reasonably foreseeable that the Plaintiff would sustain injury as he did in moving the heavy stack of boards and that the risk of injury could have been eliminated by a reasonably available mechanical aid. I find that the Plaintiff's claims in negligence against the Defendant in respect of the incident on the 18 July and that of the 12 September 1994 have been established. The Plaintiff pleads in the alternative that the Defendant was in breach of its obligations pursuant to s.9(1) of the Workplace Health and Safety Act (1989) which provisions apply to this case. No submissions were made in respect of the statutory obligation. That section provides: "An employer who fails to ensure the health and safety at work of all his employees, save where it is not practicable for him to do so, commits an offence against this Act." Although the section in its terms merely creates an offence, the Court of Appeal accepted in Rogers v Brambles Australia Limited Appeal No. 189 of 1995 (C.A. 961437) that a civil action may be brought by persons injured by failure to comply with the provision. The Court of Appeal accepted as correct the decision of the N.S.W. Court of Appeal in Kingshott v Goodyear Tyre & Rubber Co. Aust. Ltd. (No.2) (1987) 8 NSWLR 707 in respect of a similar provision that the onus of proving impracticability lay upon the employer. See also Nimmo v Alexander Cowen & Sons [1968] A.C. 107. There was no evidence led by the Defendant or otherwise which suggested that it was not practicable to eliminate the risk of danger inherent in the requirement to push the stacks or to load manually. Indeed the evidence was the other way. By not having in place a safe system of work on 18 July and 12 September 1994 the Defendant failed to ensure the health and safety of the Plaintiff and was in breach of its statutory obligation. • Quantum General Damages The Plaintiff experienced excruciating pain in his back, radiating down his left leg and into his left -- 7 of 22 -- 7 groin and testis. He attended the Ipswich General Hospital and then his general practitioner on 12 September 1994. He was referred to Dr J Morris, orthopaedic specialist. An x-ray and CT scan showed a left postero-Iateral disc protrusion at LS/S 1. Bed rest produced no significant relief and in October Dr Morris performed a laminectomy. This reduced the pain initially but the Plaintiff suffered what he and his wife described as a "locking up" of his muscles shortly after discharge from hospital. He was admitted to the Princess Alexandra Hospital with acute pain. An J\.1RI showed no abnormality. The Plaintiff underwent bed rest and observation in hospital and was released with the pain less acute. Dr Patrick Doughty, specialist in occupational medicine, has suggested that there is a reasonable possibility that the Plaintiff developed arachnoiditis and has permanent scarring involving the LS-SS (sic) nerve roots. The Plaintiff undertook a 6 week rehabilitation course at the WCB South Brisbane Centre. He was unable to do many of the exercises shown to him but was able to make some use of the swimming pool. He was discharged after 3 weeks of the course. Apart from some treatment with Dr J O'Callaghan, anaesthetist and specialist in pain management (the extent of which was not indicated in evidence and which the Plaintiff said gave him little or no relief) the Plaintiff has undertaken no other rehabilitation. The Plaintiff experienced acute disabling pain prior to the laminectomy and, apart from the acute episodes of pain associated with "locking up", that high level of pain was reduced after the operation. Nonetheless, his pain has continued unremittingly since then with some days better than others. The pain is experienced particularly in his lower back and radiates from his left buttock down the left leg and into his foot. He also experiences pain in his left groin and testis. On occasions he experiences a feeling of numbness and sometimes a pulling and pinching sensation. He experiences acute pain in his left testicle during sexual arousal and, as a consequence, avoids sexual activity which, in any event, is generally inhibited by his back pain. -- 8 of 22 -- 8 He experiences pain in other parts of his body from time to time. For a period the Plaintiff developed an unpleasant skin reaction which seems now to have abated thought to be attributable to his medication. For a number of years and currently the Plaintiff has taken and takes 4 to 6 Panadeine Forte to alleviate his symptoms of pain. Initially he took a much higher dose but concern for his health caused him to make a concerted effort to reduce his intake. Dr P Mulholland, psychiatrist, has concluded that the Plaintiff is in a state of codeine dependence from what he describes as "an excessive and potentially problematical dose"( exhibit 8). The Plaintiff also takes Diazepam, a benzodiazepine, at night to help him sleep. For about a year following his injury the Plaintiff was cared for at his home at Bundamba by his parents and members of his wife's family while his wife was at work. That assistance eventually became unavailable and his wife gave up her work as a cleaner to look after him. It was suggested that she did so so that they both could be in receipt of a pension. To the extent that it is relevant, I am satisfied that the dominant purpose was to care for the Plaintiff. A number of medical specialists express surprise at the Plaintiff's level of pain and dependence over such a long period. Dr Mulholland suggested that Mrs Conyard probably did too much for her husband and that he should be encouraged to do more physically for himself. He noted that the codeine dependence could have an unhelpful effect in respect of rehabilitation. Although Dr Boys, orthopaedic specialist, spoke of inappropriate and exaggerated pain behaviours when he examined the Plaintiff, this was not the experience of other specialists. Muscle wasting in the left leg was measured and noted by Dr Gillett, orthopaedic specialist, in 1997 but not observed by Dr Redmond, orthopaedic specialist in 1995. Mrs Conyard kept a daily diary for about a week in September 1995 at the suggestion of Mrs Helen Coles, occupational therapist, of all that she did for her husband, and much of that assistance has been continuous to the date of trial. She assisted him to get ·out of bed, which -- 9 of 22 -- 9 would sometimes take as much as a half to one hour, with showering, dressing and preparing breakfast. During the day she provided him with meals, assisted him to get about, gave him his medication because of his unreliable memory and generally serviced him as an invalid. No criticism was made of Mrs Conyard. She presented as a devoted, supportive and loyal wife and I accepted her evidence without reservation. She is still a young woman whose life has been devastated by her husband's condition. They have virtually no sexual life which previously had been satisfactory to them both. Her hope for children has been rendered most unlikely to be realised because of the cost, since they had planned to participate in an IVF program, and the Plaintiff's dependence. The Plaintiff has one adult son who has 3 young children and he misses being able to play with them. The Plaintiff presented well in court. He walked with an appreciable but not seemingly exaggerated limp. He needed to stand after about an hour and did so without fuss. His difficulty in sitting for long periods was accepted by the specialists as a consequence of the injury and the subsequent operative procedure. He otherwise appeared fit, although he complained that he had lost muscle bulk. Prior to his injury in September 1994 he engaged in a variety of recreational activities including fishing (he had a boat), competitive darts and pool, karate, boxing and playing soccer. Presently the Plaintiff experiences constant unremitting pain which is temporarily alleviated by taking codeine. It is aggravated if he lies or walks, stands or sits for any lengthy period, or attempts to bend or lift a weight over a few kilograms. His wife assists him with most personal activities and has taken on his share of the domestic tasks which he did formerly. He says that he is able to do very little at all for himself now. All the specialists consider that he could do more and ought to do so for his own well being. He is, as has been mentioned, entrenched in a situation of dependence, both upon his wife and upon his intake of codeine. The financial assistance which this litigation will bring will allow the Plaintiff and his wife to make -- 10 of 22 -- 10 modifications to their home by the installation of extra handrails, for example, and the purchase of lighter utensils and so on which will give him the opportunity to do more for himself The Plaintiff and his wife had an apparently contented life involving socialising with friends and going out to films and meals. The Plaintiff was engaged in developing the downstairs area of his home, including building a games room when he was injured. A neighbour has since completed the work for him for which no claim is made. He now goes out very rarely, being anxious about being knocked over in particular. He helps his wife do a few minor chores around the house and garden. There is no suggestion that he has done more than he states he has, apart from one rather spiteful comment from Mrs Conyard' s former employer. Not surprisingly the Plaintiff has expressed feelings of depression at his situation, particularly his loss of a sexual life, his inability to work, anxiety about money and his chronic pain. Dr Mulholland diagnosed him in July 1996 as suffering from "chronic adjustment problems essentially of a depressive nature". He also noted that he had a chronic pain disorder with codeine dependence. In his opinion the pain was primarily due to medical rather than psychological causes. He thought the Plaintiff much the same in 1998 and noted: "This man continues to have a chronic low grade depression which is probably not of a severe enough degree to warrant a formal diagnosis of psychiatric disorder but just the same does result in ongoing emotional pain and suffering for him and also, which should not be forgotten, emotional pain and suffering for his wife. He has not had any treatment for same, and no treatment is indicated as basically no amount of treatment would change the situation in respect of his chronic low grade depression which is an inevitably [sic] by product of his life situation". Dr Mulholland assessed the Plaintiff as being impaired psychologically at about the 2.5% level, but as a consequence of his chronic codeine dependance he regarded him as having a total psychological impairment at 5% to 10% of overall bodily functioning. Dr S Stening, urologist, examined the Plaintiff in September 1996 in respect of pain -- 11 of 22 -- 11 associated with sexual function. He found no abnormality of a physical or organic kind. He concluded from the time of onset and the description of pain, that the pain was referred from the area of disc protrusion to such an extent that it disabled the Plaintiff from any normal coital function. Dr Stening considered the degree of his disability at 20% of the whole person. When Dr Stening saw the Plaintiff some 18 months later in February this year, the frequency of coitus had increased to about once a month. It was still associated with severe pain and was accordingly perfunctory and unsatisfactory. As a consequence of this increase in activity Dr Stening reassessed his degree of disability related to the genito-urinary system as 15% of the whole person. Dr Gillett and Dr Boys assessed the Plaintiff's bodily loss of function as 12.5%, whilst Dr Redmond estimated a 7.5% partial disability of the spine. r accept that the Plaintiff's perception of pain is genuine and that it has probably been aggravated by his dependence upon codeine for pain relief. Whether, if a different course of treatment had been embarked upon, or if his family had responded differently to his apparent needs, he would have been in a better position as far as his pain is concerned is speculative. Nonetheless, there is no conscious exaggeration on my finding and the pain is attributable to the injury which he sustained in the workplace. Dr Gillett considered that in a safe manual handling environment the Plaintiff may have developed low back symptomo10gy due to the ageing process and the labouring nature of his work. It was his opinion that within a period of some 5 to 10 years from 1994 he may have developed some back pain. He considered that the back pain may not have precluded him from doing heavy manua11abour at that time but by a period of some 10 to 15 years from the date of the injury he would have been precluded from heavy manua11abour. He expected that he would have been able to transfer to lighter duties and to have continued working. Because the onset of -- 12 of 22 -- 12 the back pain would have been gradual, it would not be correct to conclude that that pain would have been at a similar level to the pain he presently experiences. It may well have been the case that after about 15 years from the date of the accident he would have been experiencing steady, disabling pain. His general damages for pain and suffering will need to be assessed with that in mind, but also that it may have remained asymptomatic. Dr Mulholland did not regard the Plaintiff as susceptible to unusual responses to injury and his response, although not ordinary, is not abnormal. The Plaintiff complained to Dr Mulholland of the uncertainty of litigation and a wish to have his life regularised. No doubt with a favourable resolution of the litigation he may be encouraged to seek professional assistance to manage his pain. I note that Ms Reed in 1996 recommended one on one physiotherapy which should ideally be hydrotherapy treatment. He may also be able to approach the question of professional pain management assistance afresh after resolution of this litigation. Taking into account the various factors which I have mentioned, including that the Plaintiff most likely would have experienced pain in his lower back due to natural degeneration, that there is some chance that matters will improve with the resolution of the litigation and adding a modest component for the pain and suffering associated with the incident in July of$1,500.00, I assess the Plaintiff s general damages for pain and suffering and loss of the amenities of life past and future at $50,000.00. Of that amount $25,000.00 is attributed to the past which will carry interest at 2% per annum for 3Y2 years. This amounts to $1,750.00. Economic Loss The Plaintiff ceased work with the Defendant on 12 September 1994 and his employment was terminated on 23 May 1995. He was in receipt of Workers' Compensation payments and then Social Security payments. He has earned no income from the date of the accident until trial. A significant feature of the Plaintiff's employment profile is his functional illiteracy. He has made -- 13 of 22 -- 13 a number of genuine attempts in the past prior to injury to remedy this, without success. He has been able to get by at work and in his daily life by developing a variety of compensatory procedures assisted by his wife. Mr Peter Jordan, psychologist, tested the Plaintiff and concluded that he has a significant learning disability which would preclude retraining for new skills in relation to non-manual tasks, all of which would require at least a functional level of literacy which he does not have and would be unable to attain. The Plaintiff was born in England in 1957 and came to Australia when he was 10 years of age. He left school at 14 and worked in a variety of occupations until he returned to the United Kingdom when he was about 19 years. He worked on a car assembly line for 4 years and as a truck driver for 7 years. He returned to Australia in about 1989 and his employment history thereafter was irregular. He had a few months working for the Department of Main Roads in Sydney as a labourer repairing roads. He had a job repairing radiators for about 3 months and then came to Brisbane. Within a week he had a job with another company repairing radiators and worked for about 6 months. Thereafter he was unemployed for about a year before he commenced working with a friend in a partnership repairing radiators. He was again unemployed for about a year before commencing work with the Defendant with whom he was employed for about 12 months before sustaining his injury. The Plaintiff enjoyed working with the Defendant and had hoped to secure a better job and remain with the company for the foreseeable future. There was no suggestion that his work was unsatisfactory at Hancocks, indeed the evidence of his fellow employee, Mr Watkins, was that he was particularly skilled at his work. There had been complaints about lateness on a number of occasions but his former superior did not say that this would have led to dismissal. Although the Plaintiff had two lengthy periods of unemployment between his return to Australia and his employment by the Defendant, the history of his employment in the United Kingdom indicated -- 14 of 22 -- 14 that he was quite capable of maintaining regular employment over some years. • Past Loss of Earnings At the date of the Plaintiff's injury his net weekly earnings were calculated by his counsel at $449.00. The calculations are set out in a schedule and involved using the Group Certificates and Tax Returns and deducting the accrued holiday pay for the last period from 1 July 1994 to 13 September 1994. These were different from the calculations made by the Defendant's counsel but I accept that the former correctly represents the Plaintiff's pre-injury earnings. The calculations produce a nett sum of$81,718.00 for 3.5 years. !ftwo extra week's wages are added to take account of the period between the date of those calculations and judgment, a figure of $82,716.00 is obtained. The Plaintiff concedes that that figure should be discounted to take account of his past unemployment history as well as the usual vicissitudes. The issue is whether the Plaintiff was capable of earning during some part of this period which should be deducted from that sum. In cross examination Dr Gillett said that during the period when he saw the Plaintiff from the end of September 1995, that he may have been able to do light work where he could change his position on a frequent basis and not be involved in bending and lifting. He thought that a caretaker job or a car park attendant where he collected some money might have been possible. In his report of the 29 December 1997, taking into account Dr Doughty's and Mrs Coles' reports he considered that it was unlikely that the Plaintiff would return to the workforce and would remain on a disability support pension. Dr Gillett saw no evidence of abnormal illness behaviour in the Plaintiff. Dr Doughty, whilst conceding that with some pain management the Plaintiff might have been able to do some light sedentary work commensurate with his literacy disability, that was very much "in theory". When he examined him, the Plaintiff would not have been capable of any work on a commercially viable basis because of the degree of his pain. With further pain management -- 15 of 22 -- 15 it was possible that he would have been able to attend work on a reasonably regular basis. The work would have to be bench work of a repetitive kind which did not require any reading or writing. He thought a parking attendant's position, ifhe could sit and stand alternatively, and walk on the flat with no stairs, and if he had further pain management would have allowed him to tolerate part time employment. Dr Boys thought that the Plaintiff's physical disabilities were such that work of a service station consol operator, parking attendant or caretaker work would be within his physical capacities and would have been possible from about 3 months after surgery. Dr Boys accepted that a pattern of psychologically based conduct could impact upon orthopaedic issues. He did not refer to the Plaintiff's functional illiteracy which Mr Jordan considered excluded him from all work requiring any reading, including operating computers. In his report dated 19 February 1998 (exhibit 9) Dr Mulholland noted that for the Plaintiff to take up any light work or indeed to engage in any retraining exercise, his pain levels and his intake ofPanadeine Forte would have to be less. He concluded that for the foreseeable future, those two factors would not make it realistic for him to take up any form oflight work, or be able to engage in any form of retraining. He noted that both the chronic pain and the codeine consumption would impact upon any retraining learning in any event. His evidence under cross examination was not really satisfactory in as much as he tended to vacillate. He seemed to suggest that the Plaintiff was unable to work for both psychological and physical reasons and at the same time suggesting that from a psychiatric point of view he could do some light work. As I have found, the plaintiff was not falsely exaggerating his symptoms and he genuinely has had and continues to have perceptions of quite disabling pain. Whether or not different outcomes would have been reached had he been appropriately encouraged and offered suitable rehabilitation training in the months after his operation remains a moot point. It is unrealistic to contend that the plaintiff had some residual income earning capacity after he had recovered from -- 16 of 22 -- 16 his operation which could be represented in actual monetary terms which he could have earned. I am of the opinion that no amount ought to be deducted from his past loss to take account of this theoretical physical capacity to do part time light work. Mr Mylne for the plaintiff submitted that the plaintiff's past loss of earnings should be discounted by 20% to take account of his poor employment history and the possibility that he may have lost his job with the Defendant. Had the latter occurred he may have experienced considerable difficulty in obtaining new employment quickly. I accept that submission and reduce the figure of $82,716.00 between injury and judgment by 20% to reflect the ordinary vicissitudes of life as well as the matters to which I have made reference. That gives an amount of $66, 172.80 which is allowed for past loss of earnings to judgment. • Interest on Past Economic Loss The Plaintiff received Workers' Compensation benefits in the sum of $19,429.42. From 6 September 1995 he has been in receipt of a joint pension with his wife in the sum of $288.50 per week. Half of that amount should be attributed to the Plaintiff, giving an amount of $19,139.25. The total amount of benefits received since the date of injury is $38,568.67. Interest should be awarded on the difference between that amount and the amount of past economic loss, which is a figure of $27,604.13. Interest is awarded on that amount at 6% per annum for 3.5 years which amounts to $5,796.88. • Loss of Future Earning Capacity The Plaintiff accepts Dr Gillett's assessment that 10 to 15 years from September 1994 the naturally occurring degenerative disease in his spine would most likely have caused him to abandon heavy labouring work. Thereafter he would have sought lighter duties probably with the same employer. The Plaintiff said that he had proposed working to age 65 and in light of Dr Gillett's opinion would have sought work as a fork lift driver, a glue mixer or a glue spreader in -- 17 of 22 -- 17 the Defendant's factory. Dr Gillett indicated that the work of a fork lift driver would have been detrimental to the Plaintiff's degenerative condition, but that nonetheless it was likely that that would have been the sort of work that he would have done after ceasing heavy labouring work. In due course that too would have caused him too much pain and he would have proceeded to other lighter duties. There was no evidence that by working as a fork lift driver or in any other less arduous capacity his earnings would have been any less than they presently are. Miss Philippides for the Defendant, has approached the question offuture economic loss on the basis that at most the Plaintiff would have had 10 years heavy labouring for his injury and thereafter would have proceeded to light duties which would be reflective of his current working capacity. That does not take account of the realities of the situation for the Plaintiff. His chronic pain and codeine dependance make it unlikely that he will be able to engage in regular employment in the future. I accept, however, that there is some potential for some kind of work from time to time, but his illiteracy will keep the range of options very narrow. His options for employment in the past were only ever in the labouring field, heavy or light, and he is incapable of retraining for any occupation requiring any reading skills although he does have some numeracy capacity. It was not clear that the orthopaedic specialists were aware of the completeness of his illiteracy and jobs such as a con sol operator may well require more facility than he has. The starting figure for his loss is $440.00 nett per week. This figure should be discounted to take account of the usual vicissitudes of life, together with his past history of significant periods of unemployment, together with his risk on the open labour market prior to injury because of his functional illiteracy, together with the prospect, which is not high, that from time to time he may be able to engage in some employment. Using the 5% tables over a period of24 years gives the sum of $324,632.00. That sum should be discounted by 25% giving an amount of $243,474.00 which is allowed. -- 18 of 22 -- 18 Past Care As this case amply demonstrates there are often difficulties in assessing the needs of a plaintiff for the purpose of compensation in a domestic setting. A passage from the j oint judgment of Deane and Dawson JJ in Van Gervan v Fenton (1992) 175 CLR 327 at p.343 is a reminder of the appropriate approach. "The assessment of damages for personal injuries in a negligence action is not an exact science. It must always be governed by considerations of practical commonsense in the context of the circumstances of the particular case. It may be that, if the appellant had not been married, it would have been reasonable, for the purposes of assessing damages, for him to have continued to live at home and to have employed the services of a 7-day-a-week live-in housekeeper to attend to his accident-caused needs during the period of7Yz years following the trial. The facts of the matter were, however, that the appellant was and was likely to remain a party to a stable marital relationship and that the ordinary incidence of that relationship and the give-and-take activities of the parties to it provided a significant part of the active services and passive attendance in and about the matrimonial home which were necessary to look after the appellant's accident- caused needs. In assessing compensatory damages in that context, the ordinary incidents of a particular continuing relationship, such as joint activities and companionship, cannot, in our view, legitimately be seen as transformed by the injury to one spouse into "services" rendered or to be rendered by the other spouse even if they obviate a need for such "services" which would otherwise exist. Nor, subject to an important qualification, can domestic services which are undertaken, as part of the mutual give-and-take of marriage, by persons in a marital relationship for the benefit of one another and of their matrimonial establishment, legitimately be seen as converted into additional services necessary to. attend to the accident-caused needs of an injured plaintiff in circumstances where they would have been performed in the same way and to the same extent in any event. The qualification is that such services will be taken out of the area of the ordinary give-and-take of marriage to the extent that the injuries to the wife or husband preclude her or him from providing any countervailing services. To that extent, the continuing gratuitous services provided by the spouse assume a different character which should be treated as additional services which have been or will be provided by that spouse to look after the accident-caused needs of the injured plaintiff" As the opinions of the medical specialists have established, the plaintiff's wife provides far more by way of services to him than his injury calls for and that has been so from 3 to 6 months after the operation. Mrs Conyard prepared a schedule (exhibit 17) setting out the amount of time -- 19 of 22 -- 19 per day she spent on a variety of activities which she attributed to looking after her husband. She also prepared schedules divided into weekly activities such as mowing and washing the clothes and fortnightly activities such as washing the car and grocery shopping etc. Mrs Conyard's evidence was that household tasks prior to the plaintiff's injuries were shared between them. The evidence suggests that they liked doing things together and, of course, they both worked much of the time. Whilst Mrs Conyard did the clothes washing and ironing and preparation of the evening meal, they shared other tasks such as shopping. It can be seen that this was probably a social activity for them. The plaintiff did the heavy outside work including the mowing and washing and cleaning the car. As has become the custom in such claims a detailed account is given of how many minutes per day is spent on each particular task. Some of those activities, such as attending to the animals, still involve the plaintiff giving companionsliip to his wife. The reasonable needs generated by the plaintiff's disability arising out of his injuries are for domestic assistance with heavy tasks such as vacuuming and cleaning which he shared with his wife previously. He can no longer doing the mowing and heavy outside work which was his domain previously, nor clean the car inside and out and he can not offer any countervailing activity. He has needed assistance to get out of bed in the morning, but in the future I am persuaded that he wi11learn techniques which will give him greater independence. This is true also for many personal tasks. He and his wife both say that he is forgetful about his medication and she has taken responsibility for it. Again I am persuaded that there are various devices which could be utilized to give him more independence and he can take charge of his own medication. The doctors could see no reason why he could not. The claim is for 26 hours 45 minutes per week for the past at varying commercial rates (agreed) of $9.50 to 30 November 1995 and of $10.00 per hour thereafter. An amount of $267.00 per week for care is claimed for the future on the basis that the plaintiff will require the -- 20 of 22 -- 20 same level of care as he is currently receiving from his wife over a life expectancy of33 years. There is no dispute that the plaintiff would have required a great deal of personal assistance following his operation in October 1994. The full amount claimed for 3 months should be allowed, that is, 12 weeks x 26 hours 45 minutes x $9.50 = $3,049.50. Thereafter it is reasonable to allow 4 hours per week for personal services to the plaintiff, 2 hours per week for heavy cleaning (vacuuming etc.) tasks and 4 hours per week for outside garden and maintenance (including cleaning the car) a total of 10 hours per week. The calculations are: 43 weeks (1st February to 13 November 1995) x 10 hours x $9.50 = $4,085.00. 120 weeks (1st December 1995 to 25 March 1998) x 10 hours x $10 = $12,000.00. The total for the past gratuitous services is $19,134.50. That should attract interest at 2% per annum for 3Yz years which amounts to $1,339.40. Future Care It seems likely that the plaintiff will require much the same level of assistance for the future although there may be some improvement from time to time. On the other hand he is likely to have periods where he is less able to care for himself It should also be taken into account that he may be unable to resolve his codeine dependance, even with professional help. This will impact upon his capacity to do things for himself It must also be borne in mind that his degenerative condition may well have brought him to the situation where he would no longer have been able to carry out heavy household and garden and maintenance tasks. Taking those matters into account it is reasonable to allow care for the future for 20 years at $100.00 per week. Discounted on the 5% tables that amount should be further discounted to take account of the usual vicissitudes oflife and should be allowed in the sum of$55,000.00. Special Damages Special damages are agreed in the sum of$9,782.54 and are allowed. -- 21 of 22 -- 21 Interest is allowed on $37l.20 which, from the statement ofloss and damage, appear to have been the plaintiff's out of pocket expenses at 6% per annum for 3.5 years amounting to $77.95. • Conclusion The following are the various heads of damage which are allowed: Pain and suffering and loss of the amenities oflife past and for the future Interest on $25,000 at 2% per annum for 3.5 years Past loss of earnings Interest at 6% per annum for 3.5 years on $27,604.13 Loss of future earning capacity Past gratuitous assistance Interest at 2% per annum for 3.5 years Future assistance Special damages Interest at 6% per annum for 3.5 years on $37l.20 F ox v Wood component Total $ 50,000.00 $ 1,750.00 $ 66,172.80 $ 5,796.88 $243,474.00 $ 19,134.50 $ 1,339.40 $ 55,000.00 $ 9,782.54 $ 77.95 $ 3,301.45 $455.829.52 There is a refund which must be paid to the Workers' Compensation Board of$ 37.854.48. There will be judgment for the plaintiff against the defendant in the sum of $417.975.00 I will hear submissions as to costs. -- 22 of 22 --