Farr v Woolworths Pty Ltd [1995] QSC 317

Sc. 95{.s,\--=} 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 ,_B__u=r=ea=u=..,__)_______ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILLIAMS J No 104 of 1993 WARREN ROSS FARR and WOOLWORTHS PTY LTD CAIRNS .. DATE 28/11/95 .. JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date 2C/; II It;'< Plaintiff Defendant 4th Floor, The Law Courts, George Street, /Jrish:ine, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 8 -- 281195 HIS HONOUR: At the outset of the trial the defendant admitted that as a result of negligence on its part the plaintiff sustained an injury to his back in the course of his employment on 3 January 1992. The only matter left for determination was quantum of damages. MRI scanning showed that as a result of the incident there was a signifi~ant lesion with disc compression and protrusion at C7 which was impacting on the C7 nerve root. Immediate surgery was called for and that was performed by Dr Rossato on 21 May 1992. As is demonstrated by the plaintiff's evidence and the medical reports he suffered the usual symptoms prior to the surgery, and experienced the usual trauma associated with such surgery. There is no conflict in the medical reports and evidence and it is not necessary to record specific findings on such matters. The most significant matter is that in May 1989 he suffered pain in the right neck and shoulder after a lifting incident at work. A myelogram performed in June 1989 did not indicate any specific lesion. All the doctors (with the possible exception of Dr Watson) consider there is some link between the two instances, and I accept the medical opinion on the balance of probability that the two incidents involved the same disc. He did return to his butchering trade after the first incident and had no difficulty with lifting until the incident of 2 JUDGMENT -- 2 of 8 -- 281195 January 1992. I accept the evidence, primarily given by Dr Boyce, that after the incident in 1989 his neck was vulnerable to injury and the probability is that sometime during his working life he would have damaged the disc further as happened in 1992. But the significant fact for present purposes is that it was the incident in 1992 for which the defendant was responsible that precipitated the need for surgery and left him with the disabilities which result from such surgery. According to Dr Boyce, who in oral evidence modified his last written report, the plaintiff has been left with a disability of 15 percent of his whole body. In his assessment the only deterioration in the last 18 months has been some weakness of the muscles supplied by the injured nerve root. Dr Weidmann has assessed the plaintiff's disability of the whole body as of the order of 10 to 15 percent. Thus there is little or no difference between the principal doctors. All the medical evidence is to the effect that the plaintiff can no longer work as a butcher nor do any heavy work. One of the major issues of the trial related to the issue of economic loss. The plaintiff was becoming depressed at home after the operation without a job. His wife had a good job in the hospitality industry in Cairns. Because it was felt that the plaintiff needed a job they decided to sell their jointly owned home in Cairns and to invest the proceeds in a small business. 3 JUDGMENT -- 3 of 8 -- 281 195 In December 1992 they purchased a takeaway food business at Mission Beach and began living in a rented house. Initially the business included a boat hire section but that was sold shortly after the purchase. Both the plaintiff and his wife worked in the business and they employed casual labour from time to time. It was a profitable business but involved the plaintiff working long hours. During this period the plaintiff req~ired regular massage to his back to ensure he could keep working. He visited a masseur regularly and that was supplemented by massage provided by his wife. In March 1995 he had quite severe pain after a professional massage session and since then his wife alone has provided that service. Sometimes he needs three massages a day to keep going. As the long hours in that business were taking their toll on the plaintiff it was decided to sell it and that was done in June 1995. When the sale of both the boat hire and the takeaway businesses are brought into account there was a significant profit on the resale. In July 1995 the plaintiff and his wife purchased another business, a wholesale fishing tackle business servicing a large part of North Queensland. There is an extensive amount of driving involved, but so far the plaintiff has been coping well provided he takes it easy. His wife looks after the books and the office work. The plaintiff is confident the· business will be a success and speaks of expanding its activities. His wife is not so optimistic. 4 JUDGMENT -- 4 of 8 -- 281195 The financial situation with both businesses is dealt with by the evidence of the accountant Coonan. In the end it was not the subject of any specific substantial challenge. There is no doubt the plaintiff was an experienced butcher and could have earned at the top of the level for such a tradesman until age 65. He is now age 48 and at least it must be said there is uncertainty as to his working future. Again the fact that he had a pre-existing back condition which could have affected his earning capacity at any time must be brought into account. Bearing in mind what I have said about the plaintiff's pre-January 1992 condition I assess damages foi pain and sufferin9 and loss of amenities in the sum of $25,000. I allow interest on half that amount for 3.8 years at 2 percent, an amount of $950. So far as past economic loss is concerned regard must be had to the fact that the plaintiff in effect bought a job and income after selling his home. If the plaintiff had been employed as a butcher from the date of the accident to trial he would have earned $82,638 net. In fact from both businesses he has in fact earned $24,948 net. There is then also the fact that in an accounting sense he is worse off because he has sold his home and living in rented accommodation. Clearly he has had since at least December 1992 a significant earning capacity and that must be brought into account. Given the somewhat unusual facts calculation of 5 JUDGMENT -- 5 of 8 -- 281195 past economic loss is not an exercise in arithmetic alone. In all the circumstances I assess past economic loss in the sum of $65,000. He received periodical Workers Compensation payments totalling $15,641 and they must be brought into account in calculating interest. I allow interest in the sum of $9,375. Future economic loss is difficult to assess because of the difficulty in placing a figure on his present earning capacity. He was in settled employment for many years and could have so continued until age 65. He has now lost the opportunity to earn in that secure trade. In all the circumstances, and bearing in mind his pre-accident back condition, it is not unreasonable to allow $200 per week for 15 years. I assess future economic loss in the sum of $111,000. He has also lost superannuation entitlements and I allow $5,000 under that head. There was no issue with respect to special damages paid by the plaintiff in the sum of $2,454 and interest thereon of $552. There is also a claim for past and future under the Griffiths v Kerkemeyer head. There was no issue with respect to the first ten items in Schedule C to Exhibit 1. The extent of the remaining four items was challenged. The claim is not made out in full by the evidence. I will allow on the evidence a total of 450 hours at $9 per hour. To that has to be added 6 JUDGMENT -- 6 of 8 -- 281195 $100 for Georgina O'Connor and $80 for mowing. I allow $4,230 plus $320 interest. For the future I would allow one hour per week for massage, that is $10 per week for 30 years, a total of $8,220. The plaintiff is also entitled to medical and other expenses paid for by the Workers Compensation Board in the sum of $9,018.91 and the Fox v. Wood factor in the sum of $3,285.90, a total of $12,304.01. That leaves the question of future expenses. There will be the cost of Panadol and Dencorub and some expenditure for a professional masseur if the plaintiff decides to undergo that treatment again. In all the circumstances I allow $10 a week for 30 years, a total of $8,220. My award can therefore be summarised as follows: (i) Pain and suffering and loss of amenities (ii) Interest thereon (iii) Past economic loss (iv) Interest thereon (v) Future economic loss (vi) Loss of superannuation benefits (vii) Special damages paid by the plaintiff (viii) Interest thereon (ix) Past Griffiths v. Kerkemeyer (x) Interest thereon (xi) Future Griffiths v. Kerkemeyer 7 JUDGMENT $25,000 $ 950 $65,000 $ 9,375 $111,000 $ 5,000 $ 2,454 $ 552 $ 4,230 $ 320 $ 8,220 -- 7 of 8 -- 281195 (xii) Payments by Workers Compensation Board $ 12,304.01 (xiii) Future expenses $ 8,220 A total of $252,625.01 There has to be deducted from that the amount of 32,937.16 refundable to the Workers Compensation Board. That means there will be judgment for $219,687.85 HIS HONOUR: There will be judgment for the plaintiff in the sum of $219,687.85 with costs to be taxed, such costs to be on a solicitor and client basis after 28 March 1995. 8 JUDGMENT -- 8 of 8 --