Bartels v WDT (Engineers) Pty Ltd & Ors [1995] QSC 127

:. ·..· - . ~· ., ~ sc__ q5( I :17 State Reporting Bureau 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 DEMACK J Writ No 143 of 1993 HARVEY MICHAEL BARTELS and WDT (ENGINEERS) PTY LTD and BRAMBLES AUSTRALIA LIMITED trading as BRAMBLES and DALRYMPLE BAY COAL TERMINAL PTY LTD MACKAY .• DATE 28/03/95 JUDGMENT 1 REVISED COPIES ISSUED State Report:ng Bureau Date Jo I 3 1 9_;- Plaintiff First Defendant Second Defendant Third Defendant -. - -- 1 of 11 -- 280395 T2-3/RT M/T MKY124/95 (Demack J) HIS HONOUR: Mr Bartels was born on 26 May 1947. He was injured in the course of his employment with the first defendant on 1 February 1993. At that time he was 45 years of age and obviously· at present he is close to his 48th birthday. The action has been settled, apart from the question of Mr Bartels' future economic loss. It is therefore necessary to deal with the matters that the parties were not able to resolve. Mr Bartels has been employed with the first defendant, WDT (Engineering) Pty Ltd, since that company commenced operations in 1971. He commenced as a tradesman fitter turner with that company, and has become a supervisor in the Mackay region. The company manufactures pressure steel vessels which are used in the sugar industry and in some parts of the mining industry and, obviously enough, in the transport industry. At the time when he was injured Mr Bartels was supervising the installation of equipment at the Dalrymple Bay coal loading facility. A beam, the installation of which he was supervising, was being supported by a crane. The sling which was supporting the beam broke and the beam fell on him. He suffered very severe injuries. However, Mr Bartels was able to return to work. He has been able to meet the expectations of his employer. For a time he worked with a reduced workload and for a time there was some loss of pay. However, he is now at the equivalent rate of pay that he would have been receiving but for his injury. 2 JUDGMENT 10 20 30 40 50 60 -- 2 of 11 -- 280395 T2-3/RT M/T MKY124/95 (Demack J) The first defendant is effectively controlled by a Mr Webster who gave evidence. He impressed me as a man who was running a successful engineering business that employed up to about a hundred employees. He spoke in very glowing terms about Mr Bartels, and I need only to quote one passage in his cross- examination by Mr Myers, who appeared for Mr Bartels. Before quoting it I should say that Mr Webster's method of giving evidence was one of great caution and he did not always speak very directly to the matter in hand. It became apparent that the reason for this was because he had a number of employees who were very loyal and responsible and who were also very concerned about rates of pay that they receive, and consequently at times Mr Webster did not appear to want to disclose all that he might have known. However, this, it seems to me, was fully explicable in the light of all his evidence, and I have no doubt that what he said in this answer to Mr Myers at page 23 is an honest answer: "I think you've got me a bit wrong there in terms of - there's no question of keeping Harvey on, right? But, if over time his mobility was affected, and that would be 10 20 30 of his own determination, you would be more inclined 40 to - well, not push him out on the large safe jobs, if you like, but that's not to say he wouldn't be still playing a pretty solid role. We're probably getting into a hypothetical area there, but there's no - let me put it to you this way: if Harvey was in a wheelchair I'd do my best to keep him on in a pretty good level." It was also apparent that he regarded Mr Bartels" as a very so valuable employee". It appears that even now there is still some prospect of Mr Bartels gaining advancement with the first defendant if Mr McKenzie, who is presently senior to him, should retire. 60 3 JUDGMENT -- 3 of 11 -- 280395 T2-3/RT M/T MKY124/95 (Demack J) It was largely because of this security of employment which the first defendant offered that the issue of the extent of future economic loss was before me. The other evidence that the plaintiff placed before me which was said to give rise to a very substantial claim was that of Dr Myers. Dr Myers, who, of course, is a physician, gave evidence about the likelihood of the plaintiff needing a hip replacement operation. on the face of it it seems unusual that this evidence should be led from a physician, but nonetheless that is how it came before me. At page 28 he expressed the view that at present Mr Bartels requires a hip replacement. However, because those operations are only successful for a time, there is a tendency to delay the operation as long as possible. However, the doctor expressed the view that the operation would be necessary very soon and that probably in the next two or three years the plaintiff would no longer be able to work, even with his hip replacement. The plaintiff was examined by Dr Nutting for the purposes of litigation. The doctor, in the course of his report of 13 July 1994, said: 10 20 30 40 "With respect to the pelvic fracture, I think it's quite reasonable that Mr Bartels will require hip replacement so and that one should assess his disability as that of having successful hip replacement. This would be of the order of a 20 per cent impairment of the lower extremity with the hip replacement in optimum position." When he was asked by the plaintiff's solicitors for the cost of this replacement, he set this out in a letter of 3 August 60 4 JUDGMENT -- 4 of 11 -- 280395 T2-3/RT M/T MKY124/95 (Demack J) 1994 in which he also said: "In response to your questions I am unable to make any reasonable guess as to when Mr Bartels would require hip replacement." In view of that evidence coming from an experienced orthopaedic surgeon, it seemed to me a matter of looking at the whole situation to see what weight could be given to Dr Myer's much more precise estimate. It is apparent that Mr Bartels suffered very severe injuries. The report from the Prince Charles Hospital dated 6 May 1993 shows that Mr Bartels was hit by a steel girder weighing several tons. He was taken from the Dalrymple Bay coal loading facility to the Mackay Hospital for respiratory distress and then brought to the Prince Charles Hospital the following day. On admission there he was found to have a major chest injury consisting of a fractured right clavicle, fractured right ribs two to five, fractured left ribs six to nine, mediastinal collection of blood and lung contusions. He had a comminuted left pelvic fracture with dislocation of the femoral head, and a fractured left pelvis. He had a fractured right distal shaft radius and fractured ulna styloid. He had a fractured thoracic nine vertebral body with displacement to 25 per cent of the spinal canal diameter. He was also anaemic secondary to blood loss. He was operated on that day for plating of the right radial fracture and the dealing with the right femur. On 9 February he went back into theatre for open reduction of the fractured 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 11 -- 280395 T2-3/RT M/T MKY124/95 (Demack J) right acetabulum. His progress was complicated by right femoral nerve palsy. He had an in-dwelling catheter until 17 February and was in traction until 5 April. During that period he was in a head down position and was then placed in a brace. He was eventually discharged on 16 April. The overview of those injuries by Dr Nutting is that as in July last year most of the injuries were stable. He said that the restriction to the right shoulder meant a loss of function of the order of 20 per cent. The chest injuries have been obviously well treated and leave Mr Bartels with some discomfort of a minor nature and are unlikely to lead to significant degenerative changes. In respect of the right wrist and fracture of the radius, Dr Nutting assesses a 30 per cent loss of function of the right upper limb, and he says that he assumes that there will need to be some form of intervention in the future for degenerative change. As I understand it, Mr Bartels is a right-handed man. The fractures of the thoracic vertebrae leave him with a disability of five to ten per cent of the whole person. With the fracture of the pelvis I have already referred to his opinion that there is 20 per cent impairment of the lower extremity. Mrs Coles has seen Mr Bartels on two occasions, and her detailed recording of the answers he has given of his disabilities is also indicative of the extent of his 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 11 -- 280395 T2-3/RT M/T MKY124/95 (Demack J) disability at present. She notes that he says his lower back pains after standing for long or sitting for long in an uncomfortable chair. The right hip is in constant pain. That was in June 1994. It was aggravated by walking and weight bearing, standing or walking on uneven ground or stairs. She noted he had trouble on stairs. He has said he can not climb up ladders. Pain in the right forearm and wrist is intermittent, and in the right hand he can not extend his fingers fully, and his right hand is weak. However, in a manner that is typical of Mr Bartels, he tries to use his right hand as much as possible. Her observations of him as he performed the tasks she gave him were that his gait was observed to be impaired: that he can still negotiate stairs in a conventional manner but could not run nor climb a ladder or jump. When standing he takes more weight on his left-hand side. He does not feel safe balancing on his right leg. His sitting tolerance had improved but he was not able to squat or crouch. He was not able to kneel. She noted that he had travelled from Mackay by plane and "prior to the assessment he was experiencing the usual painful discomfort". He had not taken any medication. It seems to me that it is a mistake here to focus simply on the fact that WDT (Engineering) is what is called a sympathetic employer. A very large part of the rehabilitative process through which Mr Bartels has gone has been his achievement and his achievement alone. It is quite extraordinary that someone as grievously injured as he was 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 11 -- 280395 T2-3/RT M/T MKY124/95 (Demack J) should have been back to work so quickly and should be having his action determined only a little over two years after the incident that so seriously injured him. I was referred by Mr Freeburn to the case of Victorian Stevedoring Pty Ltd v. Farlow (1963) Victorian Reports 594. That was a case where a wharf labourer was injured, having lost portions from fingers on both hands in an industrial accident. He returned to work shortly after the accident but did not suffer any loss of earnings and there was no evidence of any likelihood that his employment was in jeopardy. Mr Freeburn submitted that this was the situation here, that Mr Bartels has been able to return to work and, on the evidence of Mr Williams, his employment is not in jeopardy; therefore some global sum should be assessed and that was it. It seems to me that this is not a case that is at all like that of Victorian Stevedoring Pty Ltd v. Farlow. It seems to me, in view of the serious nature of the injuries and the broad span of the disabilities which cover not only shoulder, arm and wrist but also thoracic spine and hips and leg, it is more likely than not that even Mr Bartels, with all his courage and determination, will not be able to work beyond the age of 55. His employer may still feel sympathetic, may still feel that there is some place for him, but his disabilities are so broadly spread across his body that there does not seem to me to be any realistic prospect of his continuing to have a place in the work place. Consequently, to assess the basic component of his loss of 8 JUDGMENT ,o 20 30 40 50 60 -- 8 of 11 -- 280395 T2-3/RT M/T MKY124/95 (Demack J) economic capacity, I am satisfied that his working life should be treated as being cut short by 10 years. There is no evidence that he would certainly have worked to the age of 65 but for the injury. However, the whole history of his work for the first defendant is that of someone who has been 10 keen to work, who has won a good reputation in the work place and who has a father who is now aged 76. In those circumstances it seems to me more likely than not that he would have continued to work to the age of 65. He is now almost 48, so that on the tables the figure for the multiplier is 294, being the difference between the figure for 17 and that of seven. His take home pay at present is $500 per week, but there are additional bonuses paid depending on the prosperity of the first defendant. Even ignoring those bonuses, the loss for that period would be $147,000. In addition, Mr Bartels said that he has from time to time worked overseas. On occasions this has been as an employee of the first defendant. However, he says that he has been interested in obtaining work specifically in Singapore where his father lives. He expressed the view that he might have liked the opportunity of working there and spending time with his father. However, it is also clear that he has been able to holiday in Singapore with his father on a number of occasions in recent years. Nonetheless, he is certainly unlikely to be employed by anyone other than the first defendant, so that he has lost the chance of work overseas. I do not believe this is a significant part of the award, but it is nonetheless something to be taken into account. 9 JUDGMENT 20 30 40 50 60 -- 9 of 11 -- 280395 T2-3/RT M/T MKY124/95 (Demack J) The first defendant has been a successful engineering concern for 24 years, but, of course, there is always the possibility that it may cease to be so. Mr Bartels could be thrown out into the open labour·market before he reaches the age of 55, and if this were to happen he would certainly be very vulnerable. It would seem to me likely that he would be unemployable by anyone else. There needs, therefore, to be some small allowance against the possibility that the first defendant should cease to be in a position to employ Mr Bartels. All in all I am satisfied that the appropriate sum for future economic loss is $175,000, and I assess that component in the award in that amount. The other parts of the award were all agreed and set out in Exhibit 1. There was an additional sum of $600 by way of interest which needs to be added to that. When that is done and the additional amount for future economic loss that I have assessed is added, the total of the award is $297,928.89. I am advised that the nature of the settlement that is reached between the defendants is such that the amount that has been paid by the Workers' Compensation Board should be deducted from the judgment which I order in respect of the first and third defendants but not deducted in respect of the second defendant. 10 JUDGMENT 10 20 30 40 50 60 -- 10 of 11 -- 280395 T2-3/RT M/T MKY124/95 (Demack J) There will therefore be judgment against the first and third defendants for $271,533.65, and judgment against the second defendant for $297,928.89. I order that the defendants pay the plaintiff's costs of the action to be taxed. 11 JUDGMENT 10 20 30 40 50 60 -- 11 of 11 --