Broad v Letizia [1997] QSC 255

IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: AND: BRIAN WAYNE BROAD ROBERT LETIZIA SHELTOP 29 PTY LTD trading under the firm name or style of JAY & JAY INDUSTRIES JUDGMENT - HELMAN J. Judgment delivered 31 July 1997 No. 823 of 1993 Plaintiff First Defendant Second Defendant This action arose out of an incident which occurred early in the afternoon of Saturday 20 April 1991 when the plaintiff, then a truck driver and now a taxi driver who does some limousine driving, jumped off the tray of a truck he was loading. The plaintiff alleges that the defendants were guilty of negligence and, or alternatively, breach of statutory duty which caused the incident and that as a result of it he suffered personal injury, loss, and damage for which the defendants are responsible. He claims damages for negligence. The defendants deny they are guilty of negligence or breach of statutory duty. At the trial the plaintiff was the only witness. The plaintiff, an experienced general carter, was engaged by the second defendant to load goods, chiefly bales of rags, at its factory at Hudson Road, Albion, Brisbane and to take some of them to a rubbish tip and others to the Gold Coast. The plaintiff began the job on Friday 19 April and came back the following day at about 8.00 a.m. to finish it. At the time of the incident, those loading the truck were hurrying to finish doing so following a disagreement between officers of -- 1 of 14 -- 2 the second defendant and another person at the site. On the Saturday the plaintiff, with some help, loaded the truck, an International eight tonne "flat bed" truck with a wooden tray 6.7 metres long and about 2.1 metres wide from edge to edge. The tray had a steel rim around it approximately 38 millimetres high and 38 to 51 millimetres wide. Among the goods to be loaded were two solid timber bale racks. Each was 1.8 metres long, 90 centimetres wide, and 1.2 metres high. Viewed from above each looked like the letter "E" - three arms protruded from the back piece. Each stood on three legs. On the top sides of the arms were sharp spikes on which bales could be hung, but the racks had no bales on them at the time. The first defendant, a director and agent of the second defendant, was helping the plaintiff with the final load when the incident took place. The truck was almost loaded to capacity and the two racks, for which there was adequate space on the truck, were the last things to be included in the load. The plaintiff asked the first defendant to place the first rack to be loaded with its arms facing towards the rear of the truck. There were bales of rags already on the truck, but there was a little more than 90 centimetres left between the end of the load and the rear of the tray for the racks. The first defendant picked up the rack on a forklift and drove the forklift to the truck, which was parked outside the factory partly on the road and partly on the footpath. The first defendant then put the rack on the tray, but not in the position the plaintiff had requested; the arms were facing towards the front of the truck instead of towards the rear. The first defendant had not driven the forklift before the day of the incident and did not have a certificate permitting him to operate it, as required by s.109 of the Workplace Health and Safety Act 1989. Part of the rack was on the rim of the tray on the passenger's side. There were about 30 centimetres between the driver's side of the tray and the rack, and about 6 centimetres between -- 2 of 14 -- 3 the rack and the goods already loaded. The rack was stationary and stable on the tray. The plaintiff agreed in cross-examination that the rack was "totally on the tray", although placed to one side (transcript p.52, lines 10-13). The plaintiff, who was near the truck when the first defendant put the rack on the tray, saw that his request as to the position of the rack had not been carried out. He asked the first defendant to stop, but latter did not, because, I conclude, he did not hear the plaintiff The plaintiff did not tell the first defendant that the rack was in the incorrect position. He then took the action which resulted in his being injured. The plaintiff, who is 1.73 metres tall, climbed onto the tray, crouched underneath the middle arm of the rack and, facing the rear of the truck, began to apply an upward force with his right shoulder. The rack, thus disturbed, began to slide off the tray. Before the plaintiff moved the rack it was in no danger of shifting, overbalancing, or toppling off the truck. The plaintiff, fearful of being injured ifhe fell off the tray with the rack, jumped off clear of the rack. The rack fell off the tray onto the road at the rear of the truck on the passenger's side. It did not hit the plaintiff but his right ankle was fractured when he too landed on the road to the rear of the truck - "roughly centre", as he put it. The plaintiff was wearing boots at the time. He took no further part in loading the truck because of the pain of his injury. Loading resumed. Once completed, with the plaintiffs permission, the truck was driven to the Gold Coast by someone else. Throughout the Saturday another man - not the first defendant - who was, on behalf of the second defendant, also helping to load the truck helped the plaintiff to change the position of things on the truck. That man had climbed onto the tray with the plaintiff and the two had moved objects together. When the plaintiff decided that the rack should be moved, however, he did not discuss the matter with either the first defendant, the other man, or anyone else. He proceeded by himself although help was available. -- 3 of 14 -- 4 The requirement of foreseeability, as it applies when one is determining whether a duty of care exists, was satisfied in this case. When the truck was being loaded, injury of some kind to a class of persons of which the plaintiff was one might reasonably have been foreseen as a not unlikely consequence of any carelessness on the part of the defendants: Chapman v. Hearse (1961) 106 c.L.R. 112 at pp .120-121. The requirement of proximity was also satisfied, in my view. I conclude then that the defendants did owe a duty of care to the plaintiff to avoid injury to him when the forklift was being operated and anything else was being done when loading the truck. In deciding whether there has been a breach of a duty of care a tribunal of fact must determine what response would have been made to the risk by a reasonable person. The tribunal does that by balancing the relevant factors: the magnitude of the risk and the degree of probability of its occurrence, as well as the expense, difficulty, and inconvenience of taking alleviating action and any other conflicting responsibilities which may exist: Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 at pp.47-48 per Mason J., and Miletic v. Capital Territory Health Commission (1995) 69 A.L.J.R. 675 at p.677. The risk of injury to the plaintiff - as I have said an experien~ed carter - from a misplacement of an object loaded onto the truck, though not far-fetched or fanciful, was very nearly so in my view. But at all events it was remote. The plaintiff then expected to rectify any error in loading the truck by himself without incident. Had the plaintiff been disabled in some way, or inexperienced, the risk would have been greater no doubt; but there is no evidence of anything like that in this case. The plaintiff was, after all, engaged as a carter, i.e., one holding himself out as capable of performing competently the tasks of loading and transporting the goods in question. The risk of injury being so slight, a reasonable person in the position of either defendant would have been justified in disregarding it and taking no steps to eliminate it. But in -- 4 of 14 -- 5 fact the means of reducing the risk of injury even further than that which would have existed had no assistance been available to the plaintiff was at hand. The plaintiff could have asked the first defendant to remove the rack and replace it as he had requested, or he could have sought the help of the other man to whom I have referred, and who had, it appears, assisted him satisfactorily earlier. Assisted in either of those ways, the plaintiff could have rectified the first defendant's error safely. In those circumstances it is difficult to see what more the defendants could have done, since it is inevitable that misunderstandings or mistakes of the kind that happened in loading the truck would occur, and rearrangement of the load would become necessary. I am not satisfied that, as alleged in the further amended statement of claim, the first defendant failed to keep any or any proper look out, nor am I satisfied that the first defendant's driving or operating the forklift when "unlicensed" - pleaded as a particular of his negligence - was in any relevant sense a cause of the plaintiffs mishap; nor was the second defendant's causing, permitting, or allowing the first defendant to operate or use the forklift knowing, as was probably the case, that he was inexperienced and without a "licence" to operate it - as pleaded against the second defendant. I am not satisfied that the first defendant placed the rack on the truck in a position which was unsafe, since it was stationary and stable and totally on the tray. I am not satisfied that the placing of the rack on the truck facing in the opposite direction to that which the plaintiff had requested constituted in the circumstances a breach of the first defendant's duty of care to the plaintiff. Placing the rack in that position was nothing more than a trivial incident arising from a misunderstanding or momentary lapse of attention of a kind that can be expected when loading a vehicle, particularly if the loading is being done in a hurry. As another particular of the first defendant's negligence it was alleged that he failed to warn or adequately to warn the plaintiff of the dangers of the load's shifting and toppling over when a reasonably prudent person would have done so. The first defendant did fail to warn the -- 5 of 14 -- 6 plaintiff about the position of the load, but since there was no danger until the plaintiff took the action he did I am not satisfied that that particular can be relied on. In any event the plaintiff saw where the rack was placed and was able to assess for himself its potential for causing harm. My conclusion is then that there was no breach of the duty of care to the plaintiff owed by either defendant. The mishap he suffered was of his own making. I should add two things concerning the way in which the plaintiffs case was pleaded. First, the claim against each defendant was, as I said at the beginning of this judgment, framed in negligence and breach of statutory duty. The breaches of statutory duty alleged related to the first defendant's not having a "licence" to operate the forklift "pursuant to the Workplace Health and Safety Regulations 1989". The absence of a certificate was established by answers to interrogatories (exhibits 1 and 2). Although the absence ofa "licence" was a basis for particulars given of negligence and of breaches of statutory duty the only damages claimed were for negligence, and that was the way in which the case was conducted before me. Secondly, in paragraph 4 of the further amended statement of claim, in which the plaintiffs allegations as to the events in question are set out, the plaintiff alleged, in (t), that the load "overbalanced and toppled off the truck, causing the Plaintiff to fall to the ground with the load striking him". That allegation is of course at variance with the plaintiffs evidence as to how he came to be injured. I shall now proceed to the assessment of the plaintiffs damages. Soon after the incident the plaintiff was taken by ambulance to the Royal Brisbane Hospital where he was found to have a severe comminuted fracture of his distal right tibia extending into the surface of the ankle joint. On 21 April 1991 Dr John Walters, orthopaedic surgeon, performed an open reduction and internal fixation of the right ankle. Multiple screws were used to hold the bone fragments in place. The plaintiff remained in hospital with his leg -- 6 of 14 -- 7 elevated for over a week. A cast was applied on 7 May 1991. When the plaintiff was last seen at the hospital X-rays showed early union of the fracture complex. The plaintiff used crutches and later a walking stick for several months. He had some physiotherapy treatment which was unsuccessful, but he stopped having it because he could no longer afford it. When examined by Dr Walters on 10 June 1993 he was working satisfactorily as the self-employed driver ofa two tonne truck. Dr Walters examined the plaintiff again on 25 November 1996 when X-rays confirmed degenerative change in the ankle joint. There was mild wasting of the right calf muscle which measured one centimetre less in circumference than the left one. Ankle movements were quite restricted - less than half than normal. Movements of the sub-talar joint were also reduced by approximately half Movement of the right ankle was accompanied by some palpable and audible crepitus. There was a loss of joint space, and associated bony sclerosis and irregularity. The plaintiff has traumatic arthritis in his ankle joint as a consequence of the injury. The degenerative process will be slowly progressive. The ankle joint has limited life and at some time in the future surgery will be required to fuse or arthrodese the ankle joint. Immobilization in a cast for three months will be required and the plaintiff will be unable to drive a taxi for four to six months. A successful fusion of the ankle joint would cause a permanent twenty-five per cent. loss of function of the leg. The injury has left the plaintiff with a permanent disability of his right ankle. He is now unable to walk more than about one kilometre on flat ground or to run. He walks with a slight limp. He has pain in his right ankle almost every day. Walking on sand or uneven ground and down stairs causes pain and discomfort. His ankle is worse in cold weather than in warmer weather. The right knee aches from time to time. He has been unable to return to his former sports of touch football, which he played once a week before the incident, and squash, which he played on the odd occasion before the incident. He is now unable to pursue the intention he had -- 7 of 14 -- 8 before the incident to resume playing rugby football. He has been able to cope with driving a taxi despite the injury to his right ankle: he has been able to use his left foot when the right ankle "plays up". He does not take anything to relieve the pain in the ankle, which he manages by elevating the leg. After the incident the plaintiff was diagnosed as suffering from a condition unrelated to it, sleep apnoea. It has been successfully controlled and is of no moment in this action. The plaintiff has suffered and will continue to suffer in the future considerable pain and discomfort as a result of the injury to his right ankle. In addition to the matters I have already mentioned he gave evidence that as a taxi driver he worked "[a]nything to 110, 120 hours" a week to obtain "sort of the same money I was working with the truck" (transcript p.36, lines 33-37). That evidence was put forward by Mr Morton, for the plaintiff, as calling for a substantial extra component in the plaintiffs damages for impairment of earning capacity. It justified, he submitted, a conclusion that the plaintiffs earning capacity had been at least halved by the injury suffered by the incident, since when he was engaged in the carting business with the eight tonne truck he worked only about fifty hours a week. In my view any damages recoverable as a consequence of the plaintiffs working longer hours should be assessed under the head of pain and suffering and loss of amenities rather than under that of impairment of earning capacity, because the gravamen of this part of the plaintiffs claim is interference with his enjoyment of life by reason of the need to work allegedly excessive hours. The head of impairment of earning capacity is an objective matter of dollars and cents whereas the head of pain and suffering and loss of amenities is a subjective matter. This aspect of the plaintiffs claim naturally falls into the latter category. Should anything for the plaintiffs longer hours of work and consequently shorter recreational time be included in the assessment of his damages? It appears to me that on the -- 8 of 14 -- 9 evidence there is a proper basis for such a component, but I do not accept the submission that it should be as large as that contended for on his behalf, which was for the past an additional award arrived at by doubling his net earnings for the last two years and for the future an award based on half of his current net income. In the first place an analysis of the plaintiffs records, to which I shall refer in greater detail later, reveals that when the plaintiff was driving the eight tonne truck the earnings of the partnership which conducted the business were about $15,000.00 per annum after the deduction of income tax - $7,540.00, explained later, multiplied by two and rounded off - whereas the plaintiffs earnings since 14 April 1994 have been about $20,000.00 per annum after the deduction of income tax. (Before 14 April 1994 the plaintiff was working only forty weeks a year as a taxi driver from when he took up taxi driving on 10 September 1991.) Those figures mean that the plaintiffs earnings are now not the same as those of the truck business, but are in fact one third more. Nonetheless, even allowing for the increased income from taxi driving, one must conclude that the plaintiff is now working substantially longer hours than he did as the driver of the eight tonne truck. I should emphasize that the comparison relied on by the plaintiff is with the hours worked as a driver of the eight tonne truck and not with the hours worked before he began that enterprise. There was no evidence of the hours worked before then. The second matter that the evidence reveals is that the plaintiff probably will not continue working as a taxi driver with some limousine driving, but will move towards becoming exclusively a limousine driver, perhaps employing others. Among his reasons for doing that revealed in a report dated 6 February 1997 (exhibit 6) by Lesley Stephenson, occupational therapist, are reduced hours and better earnings, e.g., $200.00 for a one and one-half hour job for a limousine compared with $400.00 for an average of sixteen to eighteen hours a day for a taxi (p.13). There appears to me to be a high degree of probability that the plaintiff will take the step of becoming -- 9 of 14 -- ( 10 an exclusively limousine driver in the not-too-distant future. In my view no arithmetical formula can be devised to convert the reduced value per hour of the plaintiffs labour with his diminished enjoyment of life. I should allow, however, $25,000.00 for the plaintiffs diminished enjoyment oflife brought about by the necessity for his working longer hours as a result of the incident than he did before it: $15,000.00 for the past, and $10,000.00 for the future. For the other aspects of his pain and suffering and loss of amenities I should allow $35,000.00: $15,000.00 for the past, and $20,000.00 for the future. The plaintiff was born on 26 May 1954 and so is now forty-three years old. He was educated in Sydney. He left school when he was fifteen. He was trained as a stereotyper and has worked as a stereotyper, storeman, truck driver, salesman, and cleaner. He was a soldier for six years. The plaintiff and his de facto wife, Patricia Delforce, owned the International truck and conducted the carting business as equal partners from October 1989 until the middle of December 1994 when their personal relationship ended. The work of carting was all done by the plaintiff. After the incident the partners employed a driver to keep the business going. The plaintiffs income tax return for the year that ended on 30 June 1988, a copy of which became exhibit 14, showed his taxable income as a salesman-cleaner was $25,894.00. In the same occupation in the following year his taxable income was $27,492.00, the income tax payable being $6,997.80 and the Medicare levy being $343.65 (exhibit 15). In the year that ended on 30 June 1990 his taxable income was $14,794.00 made up of $6,998.00, half of the net profit of the partnership of$13,996.00 as shown in the profit and loss statement for the year (exhibit 7), and a further $8,81l.00 from other employment less deductions of$I,015.00 (exhibit 16). For the year that ended on 30 June 1991 the profit and loss statement of the partnership (exhibit 9) showed a net operating loss of $248.00. The plaintiffs income tax return, a copy of which was -- 10 of 14 -- 11 exhibit 17, showed a loss of $389.00: $124.00 from the partnership, to which were added deductions of$265.00. A profit and loss statement for the partnership for the period 1 July 1990 to 31 March 1991 (exhibit 8) showed a net operating profit of$6,310.00. In that period the motor vehicle expenses included a sum of $8,721.00 for repairs and maintenance which was probably unusually high. The documents show then that prior to the plaintiffs going into partnership with Ms Delforce his earnings were about $20,000.00 per annum after the deduction of income tax. After he began the partnership business and before the incident his income declined. After the incident it declined further. For the year that ended on 30 June 1992 the profit and loss statement of the partnership (exhibit 10) showed contract fees of$42,395.00 were received, but the partnership suffered a net operating loss of $11,110.00. The plaintiffs income tax return, a copy of which was exhibit 18, showed a corresponding loss of$5,555.00 for that year. In the year that ended on 30 June 1993 the partnership received gross contract fees of $50,850.00 and interest of $22.00 but again suffered a loss, this time $7,012.00 (exhibit 11). The plaintiffs income tax return showed a loss of$3,506.00 for that year (exhibit 19). For the year that ended on 30 June 1994 the partnership showed a profit of$438.00 (exhibit 12) and the plaintiffs taxable income shown on his income tax return for that year was $5,957.00 which was made up of$5,738.00 from driving a taxi and $219.00 from the partnership (exhibit 20). For the year that ended on 30 June 1995 the plaintiffs taxable income was $25,852.00 made up of $25,849.00 from driving a taxi ($31,024.00 in receipts less expenses of $5, 175 .00), and $3.00 interest on a bank account (exhibit 21). For the year that ended on 30 June 1996 the plaintiff received $31,116.00 in fares but his net operating profit was only $14,286.00 after expenses of$16,830.00 had been deducted (exhibit 13). His taxable income for that year was assessed at $14,286.00, upon which income tax of$I,777.20 -- 11 of 14 -- 12 was payable (exhibit 22). The documents show then that after the dissolution of the partnership the plaintiffs earnings were about the same by the year that ended on 30 June 1995 - about $20,000.00 per annum after the deduction of income tax - as they had been prior to his going into partnership with Ms Delforce, and have remained at that level since. In reaching that conclusion I have ignored what appears to be an unusual increase in expenses in the year that ended 30 June 1996; his taxable income for that year appears to have been depressed from the level of the previous year by the trebling of expenses, though receipts remained at the same level as the year before. The figure of$20,000.00 per annum is consistent with a figure given by the plaintiff in his answer to interrogatory number 12(e) (exhibit 26), sworn on 5 October 1994, in which he said that he was then employed for wages and earned approximately $52l.64 gross, $410.64 net, per week. Multiplying $410.64 by fifty-two one arrives at $21,353.28. I therefore conclude that the plaintiffs earnings are now at approximately the level they were before the incident and before he entered into the partnership with Ms Delforce. That does not mean of course that his earning capacity has been unaffected for the future by his injury because there are now occupations, such as truck driving, that it has rendered him permanently unable to follow. I shall return to that topic later when I am dealing with the assessment of his damages for future impairment of his earning capacity. The assessment of the plaintiffs damages for past impairment of earning capacity is not without some difficulty because, although the documents suggest that after the incident and until the year that ended on 30 June 1994 the plaintiff was deprived of income because the partnership business produced only losses, there is other evidence which contradicts that conclusion. The starting point is an assessment of the earning capacity of the partnership business. The profit and loss statements exhibits 7 and 8 show that the profits of the partnership business were $20,306.00 -- 12 of 14 -- 13 in the year and a half from when it began in October 1989 to 31 March 1991: $13,996.00 plus $6,310.00. That would mean a profit of $260.00 per week. If allowance is made for the fact that the repairs and maintenance expenses from the period from 1 July 1990 to 3 1 March 1991 were unusually high, the profit and loss statements indicate the capacity of the partnership business to generate profits was $300.00 per week. That assessment is consistent with evidence the plaintiff gave that just before the incident the partnership business was earning about $281.32 a week "[o]n average after expenses" (transcript p.64, line 15). I conclude then that the plaintiffs share of the profits was about $145.00 per week or $7,540.00 per annum before the deduction of income tax. The figure contended for by Mr Morton on behalf of the plaintiff was $9,000.00 after the deduction of income tax, but it was based on what I consider to be a less accurate assessment of the earning capacity of the partnership business before the incident than the one that I have made. The plaintiff was unable to work for about twenty weeks after the incident, so that I assess his damages for impairment of his earning capacity in that period at $2,900.00: $145.00 per week for twenty weeks. It is unlikely that any income tax would have been payable on that sum. On about 10 September 1991 the plaintiff began working as a taxi driver employed by B & W Cabs and continued in that employment until the dissolution of the partnership in December 1994, although there was a short period when he returned to truck driving - this time on a two tonne truck to which I have referred (transcript p.63, lines 58-60). In answer to interrogatory number 2(b) (exhibit 25) the plaintiff said that from 10 September 1991 to 14 April 1994 he was employed part-time for approximately forty weeks each year and he earned approximately $10,000.00 per annum at the "periodic rate" of approximately $250.00 gross per week. The $10,000.00 per annum is of course $192.00 per week before the deduction of income tax. He said that since 14 / April 1994 he had been earning approximately $521.64 gross per week. I have already mentioned -- 13 of 14 -- 14 his answer to interrogatory number 12(e) on this subject, which shows that the after-tax figure on the $521.64 was $410.64. The plaintiff agreed in cross-examination that except for the period when he drove the two tonne truck he earned money "elsewhere apart from the partnership" (transcript p.66, lines 28-30). Allowing for the deduction of income tax on the $192.00 per week I nonetheless conclude that his earnings as a taxi driver were greater than any income he could have earned from the partnership business had he not been injured. I am therefore not satisfied he has established a loss which would justify an award of damages for impairment of earning capacity for the period from September 1991 to December 1994. As I have mentioned, from the year that ended on 30 June 1995 his earnings have returned to the level his earnings were at prior to his going into the partnership business, so that I am not satisfied that he has established a loss which would justify an award of damages for impairment of earning capacity from December 1994 to now. The plaintiff is settled in an occupation which returns a steady income. He should be able (. \ to continue his present business until he retires, but the range of employment now open to him, "-. if something should go wrong with his present business, has been narrowed by the injury suffered in the incident. In that way his future earning capacity has been diminished. It would be futile to attempt to express that loss as a weekly figure, so a broad brush is required. I should allow $25,000.00 for that head of damage. My assessment of the plaintiffs damages for impairment of earning capacity is therefore $27,900.00: $2,900.00 for the past and $25,000.00 for the future. The parties have agreed on: $6,500.00 for voluntary assistance and services, $2,500.00 for the past and $4,000.00 for the future; $5,000.00 for future surgery; and $3,544.90 for special damages. I therefore assess the plaintiffs damages at $102,944.90. There will be judgment fer the defendants. -- 14 of 14 --