Drummond v Central Queensland Fuel Services Pty Ltd & Yingally Pty Ltd [1996] QSC 208

/::_ ~-- {t z04s-;·;_ ,7.. ·__ ., --_ Iii' State _Reporting Bureaz I \ 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.) e:,.. - SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 111 of 1993 DANIEL COLIN DRUMMOND and CENTRAL QUEENSLAND FUEL SERVICES PTY LTD and YINGALLY PTY LTD ROCKHAMPTON .. DATE 1 6 / 1 0 / 9 6 JUDGMENT Plaintiff First Defendant Second Defendant .. of research and private ~tudy 1 -- 1 of 14 -- 161096 . . -~ ( Demack J) HIS HONOUR: The plaintiff was born on 7 September 1965. He was employed by the two defendants which conducted a fuel distribution service in the Rockhampton district. It is not necessary to analyse the periods during which the two defendants operated and I will refer throughout simply to the defendants. The plaintiff c6~menced work with the defendants on 10 April 1986. Initially he drove a rigid truck, but early in 1988 he commenced driving semi-trailer tankers. Initially he mostly 10 drove the tanker registered number CQF-03 and on occasions 20 the tanker registered number CQF-04. However, there was a change in operating procedure by the defendants and the plaintiff came to drive CQF-04 on a daily basis. He found that the seat that was provided for the driver in that semi-trailer was a very poor one that would readily bottom out. Although it had an adjustment, the adjustment did not seem to be properly maintained so that if he adjusted it to his weight it still allowed him to bottom out. If he made any further adjustment it became quite rigid and its fundamental purpose was denied. In the course of his work he would deliver fuel to rural properties. Often this involved driving over dirt roads, and he found that the suspension on CQF-04 was also badly in need .bf maintenanc~: He complained to his superiors employed by the·defendants. .. On 20 June 1989 he saw Doctor Kenny complaining of lumbar pain in the area LS/S1. He was given tablets by Doctor Kenny and following his complaint to a Mr McKinlay he was told that ~- a new seat was comi~g. However, no new seat came and he went JUDGMENT 30 40 50 60 -- 2 of 14 -- 161096 ~ ,...... (Demack J) back to Doctor Kenny in early 1990 and in February 1990 a CT scan was performed. Doctor Kenny referred h~m to Doctor Bulwinkel who saw him first in May of 1990. There was then a period of some confusion with the investigative procedures undertaken and initially there was no certainty ~n Doctor Bulwinkel's mind as to the exact nature of the problem that Mr Drummond had in his lower 0 - spine. Mr Drummond kept working· after seeing Doctor Bulwinkel in May 1990 and later the seat was replaced and work was done to the suspension of CQF-04. However, Mr Drummond's back did not improve and by early 1991 he could no longer work because of pain in his back and into his legs. He saw Doctor Bulwinkel again and by this time further CT scans and myelograms demonstrated that there were two areas of damage to discs, both at L4/5 and LS/S1. Doctor Bulwinkel performed surgery at those two levels. Mr Drummond maintains that he was injured in the course of his employment with the defendants because the seating provided in the truck was such that its use carried a foreseeable risk of spinal injury. Liability was not contested by the defendants, however, the question of contributory negligence was persisted with. A number of allegations were made in the defence, but as the evidence was given these variously fell by the wayside. It became clear that Mr Drummond had complained on a number of occasions about the y·· vehicle were having effect the seating and suspension of the on his back. It is clear that nothing JUDGMENT 3 10 20 30 40 50 60 -- 3 of 14 -- 161096 . (Demack J) was done for a long time and that from the records of the defendants by the time something was done a great deal needed doing. It is also clear that Mr Drummond did adjust the seat and did try to take all reasonable steps to protect his back while working with that particular vehicle. The remaining allegation that Mr Britton argued in addresses was that having seen Doctor Bulwinkel Mr Drummond failed to D. seek alternative duties. The defendants' manager at the relevant time said that if he had been approached he would have found alternative duties for Mr Drummond. Doctor Bulwinkel was asked about the effect of Mr Drummond continuing to work after Doctor Bulwinkel saw him in May 1990. The questions and answers extended over more than a page of the transcript and it seemed to me that at the end of his consideration of the matter Doctor Bulwinkel came to the 10 20 view, "With the degree of injury that was there I don't think 30 it would have made much difference. I think he was just managing with a significant degree of injury." The problem from Doctor Bulwinkel's point of view was that there were these two levels of injury and the way in which 40 that kind of injury arises is quite different for those two levels. It seems clear enough that the kind of damage that is done by the use of a poor seat in a vehicle that is driven over poor roads can result in axial damage to the vertebra at LS/S1. However, the damage to L4/5 is more often caused by rotatiunal movements. Certainly by the time Doctor Bulwinkel saw Mr Drummond in May 1990 there were significant injuries at both levels and surgery apparently was discussed. ~,, Mr Drummond at that stage wanted to keep working. He had JUDGMENT 4 50 60 -- 4 of 14 -- 161096 ,;, ;·. ( Demack J) complained to his employer and was entitled to expect that changes would be made to the seating in the truck. In fact, changes were made some time after May 1990. Doctor Bulwinkel did not, in fact, tell him to stop driving a truck. It is noteworthy that on 6 February 1991 Doctor Bulwinkel signed a certificate to the effect that he believed Mr Drummond's current lumbar disc disability had been aggravated by his current truck dr'=iving duties. However, he had not made such a written assertion in May 1990. Also there were periods of remission, and it does not seem to me that it was demonstrated that, by keeping on working after May 1990, Mr Drummond showed such a disregard for his own well-being that he should be held to be contributorily negligent. As he said, employers do not as a rule look very favourably on people with bad backs and he did not rush into seeking alternative employment. · Certainly there is no suggestion that the men with whom he spoke at that time suggested to him that alternative employment within the defendants' operation was available to him. I am not satisfied that he failed to take reasonable care for his own safety. I am satisfied that his damages were caused solely by the negligence of the defendants. The major issue that needs some consideration is the effect of a previous injury that Mr Drummond had sustained in 1984. At that time he was working for Goodyear Tyre Company and he lifted a floor jack on to a truck. This produced what Doctor Kenny was inclined to call a muscle strain. He was off work for a few days and went back to work. When the matter was discussed at some length with Doctor Bulwinkel he directed his mind to the fact that there was damage at the two levels in the lumbar spine. As he reflected upon this it seemed to s JUDGMENT . 1 10 20 30 40 50 60 -- 5 of 14 -- / 161096 (Demack J) him that it was likely that there was some damage to the disc in 1984 and that an episode that was reported t~ Doctor Kenny in 1988 was something that related to that 1984 discal lesion. There is no suggestion that the damage at LS/S1 is anything other than damage arising from the poor seating and suspension to which the plaintiff was exposed in his c~ . employment with the defendants. The difficulty in respect of the 1988 incident is that Mr Drummond went to see Doctor Kenny complaining of a knee injury and secondarily spoke of pain in his leg and also back. Doctor Kenny's notes were brief and it is, of course, a long time since that incident. It was by no means clear in Doctor Kenny's recollection whether the first complaint of pain to the left knee may also have involved pain that radiated beyond that knee and somehow linked in with leg pain and possibly back pain. Consequently, although there is notation about a recurrence of back pain at that time, it is based on a very slender recollection. 10 20 30 On the whole it seecs to me that it is more probable than not •o that Mr Drummond did suffer some damage to his disc in 1984 and that this disc at L4/S was subject to some further pain and stress in 1988 which, of course, was during the time when Mr Drummond was working for the defendants but before he became constantly involved with CQF-04. It seems to me that all that can be done in these circumstances is to make some discounting which is fairly nonspecific because what happened to his back subsequently is far more serious than anything that he had experienced up to 1988. JUDGMENT 6 50 60 -- 6 of 14 -- 161096 , (Demack J) The situation is that he has regular pain in his back and into his legs. Doctor MacFarlane describes this as a 30 per cent loss of whole body function. Doctor O'Callaghan, who is a pain specialist, believes that there is pain that arises from scarring following surgery as well as mechanical pain which he says comes at least in part from facet joints. The result is that Doctor O'Callaghan sees that there may be D - a need for quite a variety of interventions to reduce pain. Mr Drummond is, of course, aged only 31 and has a long life ahead of him which will be studded with pain. This has meant that he cannot pursue any of the kind of physical work that he was used to prior to his disability. What he has done is retrained himself very commendably by pursuing university qualifications in computing. Since June this year he has gained employment and his supervisor spoke very highly of him 10 20 and spoke as if his work was secure in as much that anyone's 30 work in the workplace today is secure. What he is earning now is considerably less than he would have earned as a truck driver driving semi-trailers which haul- fuel. There is room fo~ considerable speculation about 40 what his future would have been if he had not been injured and if he had remained employed by the defendants. The defendants have sold out their interest in fuel distribution in the Rockhampton area. There have been mergers of fuel distribution agents in the Rockhampton area. Some of the work that was formeLly done by agents operating from Rockhampton is now done by agents operating from Gladstone and from Emerald. v_,, There was talk about the possibility of Mr Drummond being JUDGMENT 7 50 60 -- 7 of 14 -- 1 61096 .. (Demack J) able to drive a B-Double ve_hicle; that is a semi-trailer with a trailer attached that carries fuel. The people who drive these vehicles are paid very high rates of pay and work long hours. Mr Drummond was inclined to say that he would have pursued that sort of work if he could have. The manager who knew him well felt he did not have the experience to do that and would not have gained that experience without a number of years passing by. There is also the suggestion by the 0 - manager that Mr Drummond was destined more for management than for truck driving. There is then the issue about his present work. Although it is said that he is performing his work very well, he does have constant pain and regularly takes analgesics. It seems optimistic to try to base his whole future in computing on three months' experience in the workforce. Certainly in the future he will lose time from work if he attends a pain clinic which Doctor O'Callaghan recommends and he may have time off for surgery or other treatment. Mr Drummond presents as a very courageous young man who is 10 20 30 lovingly supported by a very caring young wife. It would 40 appear that he has a secure base from which to continue his life, but the pain and loss of ability associated with it has had serious effects upon his wife and his relationship with his family. 50 Going then to assess the various items of damage, his past economic loss has been calculated by accountants on the basis of earnings of employees with the defendants. It seems to me that there should be some discounting of that amount because of the factors I have already mentioned; the defendants sold JUDGMENT 8 60 -- 8 of 14 -- 161096 ~~ (Deraack J) out their interest, there have been mergers of agencies in Rockhampton with loss of employment opportunities through those mergers, and there have bee~ changes in the way in which the larger vehicles are operated to distribute fuel in Central Queensland. Mrs Drummond indicated that their recent move to Brisbane was a source of great stress to her and it is by no means clear D - whether Mr Drummond would have been able, if offered the opportunity, to operate successfully from Emerald or Gladstone on the large B-Double tankers. So I will allow $175,000 for past economic loss. The Workers' Compensation Board periodic payments amount to a net figure of $36,113 and there have been payments from the Department of Social Security in the amount of $45,574. So I will allow interest on $93,313. I calculate that sum at $30,800. The factors that make it very hard to assess the future loss have already been mentioned. Mr Drummond does impress me as someone who is a very good employee. He seems to have quickly gained a high opinion in the eyes of his supervisor. He is in an area that is one of those growth areas in industry at present and would seem to be a place where there are good prospects. He, as I say, earns less now than he would have earned as a truck driver, and it seems likely that for quite a long time that will be the case. However, in the long term it would seem to me he should be able to earn similar amounts in his present work as he might have earned ~ ___,..,A:f he had moved into management in, say, his late 40's or ~ 50's in the fuel distribution business. JUDGMENT 9 10 20 30 40 50 60 -- 9 of 14 -- 161096 ·. (Denack J) · Overall, I will allow a loss of $200 a ~eek for a period of 25 years to take into account all of these various possibilities. This is a future loss of $150,000. I have tried to calculate the loss of superannuation benefits in a similar manner to that used by the accountants, namely, to look at the proportion that is set aside by the employer c:::, • taking into account the figures I have used for loss. For the past I assess this at $7,500 and allow interest at 2 per cent over 4 years which is $600. For the next six years I have worked on a loss of $200 per week and an average employer contribution over those six years of 7 per cent, and working that through to $728 per annum or $14 per week, the figure over six years is $3,794. For the balance of the 25 years that I have previously used, the employer contribution is said to be 9 per cent which, ·coming through the same mathematics, amounts to $18 per week and a loss over those years of $8,694. In all the superannuation loss, including the interest on the past component, is $20,588. Mr Drummond has needed and received a great deal of care and attention from his family, particularly from his wife. However, his parents have also been involved in meeting the needs that have been created by his disability. To obtain V his present Rockhampton work he and his wife shifted home from to Brisbane. His father and mother said they had been planning to shift to Brisbane at some stage, but have JUDGMENT 1 0 10 20 30 40 50 60 -- 10 of 14 -- I·. ){ 161096 (Demack J) now also moved so that they will be living not too far from where Mr Drummond lives. All of this indicates the kind of support he has been receiving, all of which is necessary because of his pain and discomfort. Mr Britton accepted the figure claimed by the plaintiff for the hours of gratuitous services in the past, but submitted that the rate that should be allowed is between 8 and $9. (.·• Mr Jones QC asked for $10 and relied on the dictum in the case of Brown v. Hale (1996) 1 Queensland Reports 234 at 236. There the Court in discussing the appropriate interest rate on services gratuitously rendered in the past said that there were two principal considerations affecting the interest rate that was appropriate. Those were, "Firstly that the award is generally based on the current value of the services gratuitously provided." Mr Jones submitted that this meant that the rate was the rate appropriate at the time of trial. It seems to me that the judgment is ambiguous because it could refer to the rate that was current as the services were being provided or it could refer to the rate that was current at the time of trial. My experience is that when there are agreements on these matters the agreement generally, and indeed in my memory always is, for a lower rate up to the date of trial than the date that is picked for the future. This seems to me to 10 20 30 40 reflect the concept that the appropriate rate in the past is 50 the rate that is current as the services are being provided. So I will allow the rate of $8.5 per hour for the past 1646 hours of work that ~ave been provided for Mr Drummond. The amount then is $13,991, and allowing interest at 2 per cent JUDGMENT 1 1 60 -- 11 of 14 -- 1 61096 (Demack J) over five and a half years the appropriate figure for interest is $1,539. For the future it seems to me that the amount of time that will be required will vary. The various procedures that Doctor O'Callaghan envisages should mean that there will be periods when less help is needed than others and there will -.... also be periods ~hen more help is needed than at other times. Overall it seems to me the figure of 4 hours per week at $10 per hour is appropriate. It would seem to me also that the primary time when this need will be felt will be while Mr Drummond is working. Once he passes beyond his working years he will certainly have an uncomfortable retirement, but 10 20 he should be able to do many of the domestic tasks that he 30 needs to do with less assistance. So overall I would allow that claim for 30 years. The amount then is $32,880. The .total then for services gratuitously rendered in the past with interest and in the future is $48,410. Special damages are assessed in the amount of $37,069.75. Interest on the items that the plaintiff has borne amounts to $532. The various procedures that Doctor O'Callaghan has mentioned will all obviously involve cost, some of it in the reasonably foreseeable future, others in the distant future. Mr Jones has prepared a list of how these expenses might be incurred, and some of them were itemised in detail in the plaintiff's quantum statement. I do not·propose to try to \ '2... JUDGMENT 40 50 60 -- 12 of 14 -- ~- 161096~ (Demack J) analyse them in detail or to balance them one against the other. I will allow the sum of $25,000 to cover all these various items, including the pain clinic. For future pharmaceutical expenses I will allow the sum of $10,000. The plaintiff hascsuffered a great deal of pain and discomfort that continues up to the present time. He had the difficulty of an ambiguous diagnosis initially which always carries with it additional stress and uncertainty. He had surgery to two levels that was not immediately successful and further surgery was 'performed. The pain and discomfort remains until today. He is working hard to minimise his loss of economic capacity and paying the daily price of pain for that. He and his wife have two young children, but most of the delights of fatherhood will be denied Mr Drummond in the early years. He really is not able to play any vigorous . games with his children and has to exercise great care in lifting them while they are still young. As they grow up and offer him the opportunities of play and recreation, most of these things will be denied him. As I have indicated, his marriage has been under stress, although there is no doubt that Mrs Drummond has a deep love for him and there is every reason to have a realistic hope that the marriage be remain intact. I will allow $85,000. For all of these matters A great deal of this has to relate to the past. There was a disability payment from workers' compensation of $17,837. Taking that into account I will allow interest on $20,000 JUDGMENT 1 3 10 20 30 40 50 60 -- 13 of 14 -- ·"'"';;\ I 161096 .._ {Demack J) representing the component of pain, suffering and loss of amenities that relates to the past. That interest is $2,200. The total then of the assessment is $584,599.75. The Workers' Compensation Board payment is $75,259.85. So there will be judgment for the plaintiff against the defendant for $509,339.90 togeth~r-with costs to be taxed as between solicitor and client. JUDGMENT 1 4 10 20 30 40 60 -- 14 of 14 --