Federoff v Rijcon Constructions Pty Ltd [1995] QSC 331

2b 7/6 SC 4s-/ . ~, State Reporting Bureau 'SC 95(33\ 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.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILLIAMS J No 62 of 1994 ROSS FEDEROFF and RIJCON CONSTRUCTIONS PTY LTD CAIRNS .. DATE 28/11/95 .. JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date 2lt I .f /·I C/C: Plaintiff Defendant 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 7 -- 281195 HIS HONOUR: The plaintiff in this action received personal injuries in a fall at the place of his employment on 4 June 1991. The defendant has admitted liability and the only matter for my determination is that of quantum. The plaintiff was taken, after the incident, to the Cairns Base Hospital where it was noted that there were lacerations around the right knee and abrasions to the right forearm. X-rays taken at the time indicated no fracture. He was immediately treated with debridement and suturing of the lacerations around the right knee under anaesthetic. He then came under the control of Dr Mansfield, an orthopaedic surgeon. He noted a V shaped scar over the right patella where the laceration had been sutured. He also noted on examination that his quads were wasted. He had a lot of crepitus and osteophytes around the patella and joint. He had a positive jerk indicative of an anterior cruciate ligament instability. X-rays taken showed a pan arthritis typical of a long standing cruciate deficient knee. In fact the plaintiff had had his right knee surgically reconstructed in 1980. Between 1980 and the date of injury he had been able to cope extremely well with his work as a rigger, dogman and crane driver and had no difficulty working at great heights. During that period he also had no difficulty in playing rugby football, both codes, and other active sports. Dr Mansfield came to the conclusion that in the fall on 4 June 2 JUDGMENT -- 2 of 7 -- 281195 1991 the plain~iff had sustained a serious injury to his right knee which had aggravated to a significant and marked extent the pre-existing pathology in the knee. On 19 August 1991 Dr Mansfield performed an open debridement of the knee and carried out an isometric patella tendon graft to stabilise the cruciate deficiency. In the doctor's opinion, notwithstanding the surgery that he had carried out, the right knee was productive of sufficient pain and disability to warrant a knee replacement. In his report of 12 August 1992, Dr Mansfield said: "At this stage this man has a significant partial permanent disability and I would think that at the present time, because of his painful arthritis, he has lost 80 percent function of his right leg as a whole and his prognosis is for continued function at that level until further surgery is undertaken which, as I have stated, I believe should be a knee replacement. Whilst there is little doubt that that accident caused the final breakdown in knee function in this man and brought him to his present situation, there is no doubt in my mind that this would have occurred at some stage. And considering the amount of arthritis present in the knee, I would feel it was unlikely he would have functioned at his previous occupation for more than five more years before this knee would have troubled him to the extent to make it impossible for him to continue in that occupation and for the present treatment regime to be required." That has been accepted by counsel for the plaintiff in the conduct of this litigation. In other words, it is conceded that the significant knee injury sustained in June 1991 brought forward what would, in all probability, have been the situation by June 1996. So when it comes to the assessment of damages both for pain and suffering and loss of amenities and economic loss, the 3 JUDGMENT -- 3 of 7 -- 281195 Court is only concerned with that five year period from June 1991 to June 1996. Counsel for the plaintiff quite properly, in my view, conceded that he could not ask for anything for ongoing recurring surgery and treatment after 1996, which may be required. The plaintiff was a highly skilled worker in the building construction industry. He was qualified as a dogman rigger and also had a crane driver's licence. It was an unusual combination of qualifications to have and I am satisfied that it meant that he was a readily sought after commodity in the heavy construction industry. For quite a number of years prior to 1989 he had based himself in Adelaide and worked from there. During that period he was married and he had a young family. That is what seems to have centred him on Adelaide. But his marriage broke down in 1989 and that, as he indicated in his statement, made travel to different places a lot less complicated and he was not restricted to working near his family base. He moved to Cairns in February 1990. As at 30 June 1988, his taxable income was in excess of $22,000. As at 30 June 1989, his taxable income was in excess of $31,000 and as at 30 June 1990, his taxable income was in excess of $32,000. At that stage he was in Cairns and I accept his evidence and that given by the witness Noack that there was then something of a downturn in the building industry, particularly in Cairns. There were other factors which also militated against him earning as much as he 4 JUDGMENT -- 4 of 7 -- 281195 otherwise might. For example, he had his children with him in Cairns for some six weeks around Christmas 1990. The accident happened, as I have said, in June 1991 and I am prepared to accept that thereafter there was an upturn in the construction industry and the plaintiff, in my view, would have had little or no difficulty in again returning to earn at least the award wage with a component for overtime. I accept the evidence of Noack that overtime was regularly worked by men having the qualifications of the plaintiff. The fact of the matter is that the knee was asymptomatic prior to this particular incident. Given the evidence of Dr Mansfield, I have to accept that within five years the stage would have been reached when the plaintiff would no longer have been able to work as a dogman/rigger/crane driver. But as it was asymptomatic, there was a r~asonable chance that he could have gone for much of that five year period before being compelled to give up his very remunerative employment. I am satisfied that he would have followed the work around Australia, particularly no longer having specific family ties, and that he would have been able to earn, as I have said, at at least the award level with the addition of overtime. I have had regard to the calculations made by Horwath and Horwath, particularly those based on a 40 week working year. Using a 40 week working year does make allowance for a number of discounting factors. It should also be noted that in adopting those figures there is no allowance for any loss of superannuation and no redundancy type payments are brought 5 JUDGMENT -- 5 of 7 -- 281195 into account. Again that indicates the element of discounting which is involved. I am satisfied that on that broad basis economic loss has been incurred. There are some other matters that I should mention. The accident in question involved the plaintiff falling some nine metres and sustaining the injury he did. That was a traumatic experience and further injuring his knee in that particular way did have an impact on his emotional state and on his general psychiatric condition. I am satisfied that the accident having happened in the way in which it did, did cause him greater anxiety which ought to be reflected in the award for pain and suffering and loss of amenities. Having received a lump sum payment from the Workers' Compensation Board, the plaintiff took the opportunity, whilst in Darwin, to obtain a tertiary qualification in the building industry. That has not yet been productive of any job for him but, undoubtedly in the future, it will do so. It has been submitted on behalf of the defendant that the period that he was undertaking that study should be disregarded when calculating economic loss, but in my view a basis for that approach has not been established. In assessing an amount for pain and suffering and loss of amenities, I have taken into account in the global sum a component for interest. I have also, in calculating interest on economic loss, taken into account the payments received 6 JUDGMENT -- 6 of 7 -- 281195 from Workers Compensation. There was agreement with respect to special damages paid for by the plaintiff and special damages including the Fox v. Wood factor paid for by the Workers Compensation Board. In the circumstances I assess quantum as follows: pain and suffering and loss of amenities, $20,000. Special damages $983.38, interest on special damages $200, specials paid by Workers Compensation Board including Fox v. Wood factor, $11,909.48. Economic loss, $120,000. Interest on economic loss $5,000. A total of $158,092.86. From that has to be deducted the amount of $56,204.14 repayable to the Workers Compensation Board. There will therefore be judgment for the plaintiff for $101,888.72. HIS HONOUR: There will be judgment for the plaintiff for $101,888.72 with costs to be taxed on the relevant District Court scale. 7 JUDGMENT -- 7 of 7 --