Boulter v Australian Meat Holdings & Pentland No 2 Pty Ltd [1996] QSC 194

sc qt/ !'14 Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Coprright 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.) -~ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J MARK JOSEPH BOULTER and AUSTRALIAN MEAT HOLDINGS - PENTLAND NO 2 PTY LTD TOWNSVILLE .. DATE 23/09/96 JUDGMENT This only. 1 ----:::--::::::-·--'-•·, REVISED COPIES ISSu State Reporting Burea~ Date .J(, I I C) Plaintiff Defendant • • 1 ' i::ri\ld..te scuoy \N8V w;1.hout ., 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 553~ -- 1 of 18 -- 230996 HIS.HONOUR: The plaintiff was injured in the course of his employment with the defendant on or about 21 August 19~7. The plaintiff was ·Bmployed by the defendant at its meatworks at Pentland as a stockman. He had had experience with horses from an early age, and by the time of his accident, he was an experienced stockman. He was riding, on the date he sustained his injury, a four year old chestnut mare, and was engaged in cutting out male cattle, bulls and bullocks, from a mixed group of cattle in a yard, the dimensions of which appear in Exhibit 2. The male cattle were being moved from that yard into another yard when a bull broke away and the plaintiff chased it on the chestnut mare. There had been rain and the conditions were wet. The evidence would seem to suggest that the bulls in the group had been sent to the meatworks from the Northern Territory as part of a tuberculosis and brucellosis eradication scheme, and that they had been mustered by helicopter and were somewhat wild because they were not used to being handled. When the horse was brought alongside the bull, the plaintiff says he turned the bull off the fence, "Just in off the fence a bit to me" and he said he noticed as he got up alongside it that the mare tried to savage the bull. The plaintiff says that the horse did not turn its head in towards the beast as an experienced horse would, and he had to turn its head in towards the bull. He said that when she, about halfway along the backbone tried to bite the bull and 2 JUDGMENT 10 20 30 40 50 60 -- 2 of 18 -- 230996 wanted to strike at him, he eased her back, by which I understand him to mean he pulled on the reins. He said she had a sore mouth and he did not reef on her, he just eased her back, and when he did she just took the bit and flew straight up in the air on her hind legs, and as she did her back legs slipped out from underneath her, and, "She came down over backwards more or less." She did not go right over, but she came over sideways. He had jumped off her when she reared, but she fell, striking his left leg. The plaintiff says that he had ridden the horse a few times before. According to the plaintiff she was a young green horse, flighty, with a sore mouth. He said that on one occasion, not_long before he sustained his injury, she _had tried to strike the bit with her front feet when he pulled on the reins. The plaintiff says that this horse was allocated to him on this day, something which would appear to have been confirmed by Mr Jones, who was at the time, head stockman. He says there were five horses in all, available generally for use with different horses allocated at different times. His evidence was that prior to the accident and this evidence was not challenged he had complained about the horse whilst at the hotel at Pentland, to Mr Toomey, who was the head cattle buyer and in control of all the stock and movement of stock around the meatworks. Mr Toomey was Mr Jones, the head stockman's superior. 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 18 -- 230996 Mr Stewart, who was a very experienced horseman, called by the plaintiff, and who has considerable experience in most aspects of the cattle industry, expressed the view that a horse with the characteristics which the plaintiff describes, namely inexperienced, flighty and with a sensitive mouth, and with a tendency to rear, was quite unsuited for this sort of work, that is, working with cattle in the confined spaces of a yard. 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 18 -- 230996 There was evidence from Mr Heading, who was with the plaintiff on that day as was Mr Jones, that the horse following ~he accident was ridden by him, not in yard work but in mustering work. Mr Heading forthrightly expressed the view that the horse was not suited for use for yard work, having regard to its inexperience and green nature and its tendency to rear. He says that when he rode it subsequently out of the yard it demonstrated a tendency to rear. As I understand his evidence he said he rode it because you do not back down on a horse and so as to establish, if I understand him correctly, some dominion over it. There was some evidence that the horse and its characteristics were discussed at a union meeting prior to and following the plaintiff's accident. There was no direct evidence that any complaints were made about it by the union to management. It may be a matter of inference that this is what is likely to have happened, but in the absence of direct evidence I do not think it appropriate to draw any conclusion in this regard. Mr Jones gave evidence. He was, as I have said, the head stockman at the relevant time and is still a head stockman employed by a company associated with the defendant. He also described the horse as somewhat young and flighty but tended to take the view that it was the horse which was allocated and therefore had to be used. I had the impression that Mr Jones did not think it appropriate for him to be expressing any opinion about the suitability of the horse, given the fact that it was supplied by the employer and was what was required to be used. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 18 -- 230996 I. was told what was involved in the education of a horse for yard work and what characteristics make a horse suitable or unsuitable or unsafe for this type of work. There was evidence, which I accept, that a well educated horse would rarely, if ever, rear in the way that this one did~ although a well educated horse, as Mr Stewart explains, works on its back legs, pivoting with its front legs a little off the ground whilst working cattle. I should say also that Mr Stewart tended to think that the plaintiff may have been mistaken in his belief that the horse was trying to savage the bull and that it may have been the case it was attempting to strike the bit. Whether this is so or not seems to me to, in the ultimate analysis, be of no great importance as it is the rearing and slipping of the horse which is primarily the risk which the plaintiff says the defendant failed unreasonably to guard him against. I accept that in even the best of circumstances the risk even of a well educated horse falling cannot be totally excluded. However the evidence here satisfies me that the horse that the plaintiff was allocated to ride was, by virtue of its characteristics, such as to pose a risk of injury to him in the type of work that he was required to carry out with it and I am satisfied that the injury occurred here was a realisation of the risk to which he was exposed and further, that had a suitable, properly educated horse been used the probabilities are that the accident would not have occurred. 6 JUDGMENT 1 ' 10 20 30 40 50 60 -- 6 of 18 -- ' 230996 I find that the defendant was negligent in the respects alleged in paragraph 7 of the amended statement of claim. There is no allegation of contributory negligence, nor in my view would there be any basis upon which the plaintiff could be found guilty of contributory negligence. I turn now to the question of damages. The plaintiff sustained a serious injury to his left ankle joint in the nature of a dislocated left subtalar joint with a crushed fracture of the posterior aspect of the talus. It would appear that he also sustained an injury to the left knee at the same time. His treatment and the course of his convalescence appear in the various medical reports which form part of Exhibit 5 as well as in the plaintiff's statement which is Exhibit 3. The plaintiff has had a long and difficult recovery from his injuries. He has had a great deal of pain and discomfort associated with his disabilities and the treatment of his ankle joint. He was for a significant period immobile. In March of 1988 Dr Gibberd, an orthopaedic surgeon, performed a fusion of the subtalar joint of the left ankle. The plaintiff says and I accep~ that this was not successful in reducing in any significant way his pain, and that indeed the pain as time has gone on, worsened and that he has also increasing pain in his knee. The plaintiff unfortunately also developed following surgery, an infection which is usually referred to as golden staph which has also contributed in no small way to the plaintiff's 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 18 -- 230996 problems as a result of the injury sustained in the accident. The plaintiff suffered a fall in 1989 in circumstances which he has described in evidence before me. It is not contested that this incident which occurred whilst he was carrying a gas bottle is causally related to the disability of the left leg. Following that, he developed a pain in his lower back which also must be regarded as causally related to the defendant's negligence. I am satisfied that he had a pre-existing degenerative condition in his back which was exacerbated in the sense that the symptoms were brought to life as a result of the fall. I have had evidence before me as to what the likely future of the plaintiff's degenerative condition would have been but for this incident. Dr Douglas thinks that the plaintiff would have become incapable for strenuous physical work about the age of 50. Dr Gibberd who gave evidence before me that he thought that the plaintiff would not have been capable of continuing in heavy type of work somewhere around the ages of 50 to 55. The plaintiff ma~ have to have sometime in the future, surgery to his left knee and it has been suggested to him that he might undergo a further arthroscopy and he says that he would be prepared to do this. The plaintiff prior to his accident had worked primarily in the grazing industry. He in fact following his schooling, undertook an apprenticeship with a painter and decorator and 8 JUDGMENT 1 ' 10 20 30 40 50 60 -- 8 of 18 -- 230996 completed this apprenticeship but never worked in that trade. He has always had a desire to work on properties and says he has always been interested in horses. He worked as a stockman on a number of properties before 1987 when he obtained employment at the defendant's meatworks at Pentland. Initially he was employed on a casual basis as a labourer, but after a short time a vacancy arose for the position of a stockman and he was working in that position at the time of the accident in August 1987. He has worked in some positions since, these appear in his statement, however, it is obvious that he has had a good deal of difficulty in performing these jobs and took substantial quantities of analgesics to be able to do so. The longest position that he worked in was on a mail delivery run in 1991, 1992 and into 1993. However, he says that he found that he could not tolerate sitting all day because of the pain, that this work which involved delivering mail to stations over what can be taken to be fairly rough roads caused in his left knee, left ankle and back. The plaintiff currently lives on a property at Homestead. He occupies a dwelling there for no charge. He does some relatively minor tasks around the property, keeping an eye on things. 10 20 30 40 50 9 ,M JUDGMENT -- 9 of 18 -- 230996 His wife does anything which is heavy, including mowing the yard and taking care of it, and doing most of the gardening work. I should add that Mrs Boulter was employed also at the defendant's meatworks, which closed finally in September 1989. The plaintiff is to undergo an arthrodesis recommended by Dr -~ Gibberd. This arthrodesis, which is of the ankle, is at the joint level above where the other arthrodesis was carried out. Dr Gibberd has expressed the view that the arthrodesis has a high prospect of success, somewhere in the order of 90 per cent or more. A successful arthrodesis would result in a largely pain free ankle, although it would not give him any greater capacity to engage in employment. It seems to be generally accepted by orthopaedic surgeons that the plaintiff is incapable of heavy work or work which required any degree of agility or even which required him to be on his feet for any significant length of time. For somebody with the plaintiff's lack of qualifications or experience in sedentary or similar type of work he must be regarded as havi~g had virtually a total destruction of his earning capacity, although some allowance has to be made for a minor residual earning capacity. I think it is important that care be taken not to overstate his prospects of converting this into income, and think it likely that it is only for circumstances something like his present circumstances where he is able to do some relatively minor tasks in the nature of caretaking or supervisory activities and receive in return 10 JUDGMENT ! 1 . 10 20 30 40 50 60 -- 10 of 18 -- 230996 free accommodation, for which allowance is to be made. I am told that the parties agree that about $65 a week would represent the reasonable value of the accommodation that he receives, and he has had this accommodation since about April of last year. The consequences of a successful arthrodesis should include a significant reduction in a number of his needs, such as the assistance which he claims, pharmaceutical and travelling expenses. I turn now to the various heads of damage. I accept that the plaintiff has had a great deal of pain and discomfort and general disruption of his life, and that he has significant ongoing problems, but that it is likely that his pain will significantly reduce. I assess his general damages in the sum of $65,000, which I should add is the amount which the defendant before me contended for a figure, which as things would have it, was slightly higher than what the plaintiff contended for. Of this sum, I ascribe $30,000 to the past. The plaintiff has received, by way of lump sum settlement from the Workers' Compensation Board, a figure of $15,360. I allow interest on the difference between these two figures, namely $14,640 at two per cent per annum for six years pr·oducing a sum of $1,756. 1 1 JUDGMENT 10 20 30 40 50 60 -- 11 of 18 -- 230996 I have allowed six years rather than the nine years that have passed since the accident, because it seems to me that in the absence of any explanation this period represents an unreasonably long period for the matter to have remained unresolved. I note that the action was instituted in 1990. The plaintiff claims the past economic loss on a basis which appears in Exhibit 3. Primarily, it can be said he contends that he would have remained working for the defendant until the end of the season and at the closure of the season, would have taken work he had been offered by a witness for some three months and that he would have also worked breaking in horses, supplementing his income. He says that in the following year he would have again continued to work for the defendant at its meatworks and again, at the closure of the season, worked as a stockman and again supplemented his income by breaking in horses. As I have said, the meatworks closed finally on 21 September 1989 and the plaintiff says that he would have remained in employment until that time with the defendant, after which he would have pursued work as a stockman, or attempted to obtain employment as the manager of a station which he says was his aim at the time. And thereafter, the figures are calculated on the basis of these assumptions which I should add, also includes an income from breaking in horses. 12 JUDGMENT .' 1 . 10 20 30 40 50 60 -- 12 of 18 -- 230996 I had evidence before me as to the opportunities such work would have offered to agist one's own cattle and to derive significant ihcome from that. There is evidence which includes favourable comment on prospects of the plaintiff successfully becoming a station manager and I had some evidence of what such a person earns. There was evidence before me of the difficult times which the cattle industry is currently going through. As I have said, the plaintiff has primarily been employed as a stockman prior to working in the defendant's meatworks. There have to be taken into account it seems to me, a number of factors. The plaintiff is certainly entitled to have taken into account in his favour the prospect that he may have obtained work as a station manager and thus had access to the significant income that this and the associated opportunities provided. On the other hand, he may have found himself once the meatworks closed, in intermittent work in the grazing industry. There have to be taken into account the usual vicissitudes and contingencies. Doing the best I can and balancing the various considerations, I allow in respect of past economic loss including loss of superannuation entitlement, the sum of $130,000. The plaintiff has received by way of income substitution amounts totalling $110,900. I allow interest on the difference, namely $19,100 at 5 per cent per annum for six years producing a figure of $5,730. 13 JUDGMENT 0 10 20 30 40 50 60 -- 13 of 18 -- 230996 In relation to future economic loss, again similar considerations have to be taken into account with of course also the fact-that the plaintiff's capacity to engage in strenuous physical work would in any case have been limited for reasons which I have already canvassed. There is a substantial claim under this head based upon a weekly rate of $600 per week. The defendant contends for a figure of $400 per week. Each of the figures seems to have been based upon the plaintiff having a working life of about another 15 years which I think represents the best view of the evidence for him, although it is conceivable that he may have found as time went on, with experience and contacts, work which enabled him to remain in the work force longer as his capacities reduced and his ability to perform strenuous tasks diminished. I think again, however, there have to be taken into account contingencies which I have mentioned in relation to the question of past economic loss. I allow in respect of future economic loss, including the loss of superannuation entitlement the sum of $230,000. There is a claim for past care which is agreed in the sum of $25,000. I allow interest on this sum at the rate of 2 per cent per annum for six years producing a figu!e of $3,000. In relation to future care, there is a claim for $20,000 advanced on behalf of the plaintiff. On behalf of the defendant it was contended that no more than a nominal sum of about a thousand dollars should be allowed. There is no doubt that following the surgery which the plaintiff will have, and following surgery which he may have, the plaintiff would 14 JUDGMENT 1 • 10 20 30 40 50 60 -- 14 of 18 -- 230996 require some period of assistance and I think it also reasonable to conclude that the plaintiff's capacity to perform some of the heavy work around the yard will remain as it currently is and that this is likely to be performed by others. I think that the claim is a more significant one than the defendant suggests and that whilst the claim made on behalf of the plaintiff should be discounted somewhat, the evidence supports that an ongoing need exists and that there will be a period of need of some significance and there may be further periods of such need. rt is impossible to approach this I allow in respect of matter on any mathematical basis. future care the sum of $15,000. So far as future surgery is concerned, and by this I mean the arthrodesis which the plaintiff will have, it is agreed that the sum of $3,843 should be allowed. 0 There are special damages which represent amounts paid by the Workers' Compensation Board and recoverable of such of $11,145.81. There is a Commonwealth Rehabilitation Service charge which is agreed in the sum of $1,200.90. In respect of future pharmaceutical expenses a substantial claim is made by the plaintiff, namely $16.75 per week for the remainder of the plaintiff's life expectancy for the defendant. rt is suggested that something like $1500 should be allowed upon the basis that the plaintiff's need for pharmaceuticals will virtually disappear following successful surgery. 15 JUDGMENT 10 20 30 40 50 60 -- 15 of 18 -- 230996 Again, it is impossible to do anything but to make an allowance which it is hoped represents no less than the plaintiff is l~kely to incur. There has to be taken into account the possibility that the surgery may not be successful, although this is a relatively small possibility. The plaintiff has pain and discomfort in his knee joint which may deteriorate and lead to further surgery. Doing the best I can I allow in respect of future pharmaceutical expenses the sum of $5,000. This leaves outstanding claims in respect of travelling expenses in the sum of $8,150. On behalf of the defendant it is said that this represents a claim based upon rates which are excessive and also, as in the case of the claim for future travelling expenses, fails to take into account that almost certainly the travelling expenses, at least from the property where the plaintiff lives into Charters Towers, would be likely to be multipurpose in character. I allow, again upon the basis that the evidence does not allow any precise mathematical calculation to be made in relation to this, the sum of $3,500. So far as future travelling expenses are concerned a substantial claim of $24,420 is made. This is to obtain pharmaceuticals and also for medical attention. I accept that the needs in this regard should be very substantially reduced following successful arthrodesis and that the figure should be greatly reduced from that claimed. Indeed, I accept generally the defendant's criticism of what is said in relation to this 16 JUDGMENT ,1 1 • 10 20 30 40 50 60 -- 16 of 18 -- 230996 claim. I allow in respect of future travelling expenses the sum of $4,000. There are claims for possible future surgery. I have already discussed these. Doing the best I can I allow the sum of $1,250. The claim for the cost of future medical treatment in the form of consultations is advanced in the sum of $2,521. This is based on evidence which appears at page 36 and primarily relates to prescriptions for pharmaceuticals which the plaintiff currently takes, as well as other consultations from time to time. As I have said, I think that it is reasonable to infer that upon a successful arthrodesis the plaintiff's pharmaceutical requirements will be greatly reduced. He, I accept, may nonetheless have to attend from time to time doctors in relation to his condition and I allow, in respect of this, the sum of $1,000. There is agreement that the plaintiff should be allowed $1,500 for past pharmaceutical expenses. 17 JUDGMENT 10 20 30 40 50 60 -- 17 of 18 -- 230996 I allow interest on the past travelling expenses at the rate of 5 per cent per annum for six years, producing a fig~re of $1,050. The total of these figures is $508,975.71. From this there has to be deducted the moneys paid to the plaintiff by the Workers' Compensation Board, namely $56,090.61. There will be judgment for the plaintiff against the defendant in the sum of $452,885.10, with costs to be taxed, such costs including reserve costs to be taxed on a solicitor and client basis. 18 JUDGMENT J >. 10 20 30 40 50 60 -- 18 of 18 --