Bell v Tyson & Anor [1994] QSC 171

IN THE SUPREME COURT OF QUEENSLAND BUNDABERG DISTRICT REGISTRY No. 5 of 1992 BETWEEN: ROBERT ARTHUR BELL Plaintiff AND: RAYMOND BASIL TYSON First Defendant AND: R. & J. PRODUCE PTY. LTD. Second Defendant JUDGMENT - DEMACK J. DELIVERED the 23rd day of May 1994. Mr Bell was born on 16 September 1949, at Nowra in New South Wales. He left school at fourteen years. He worked in various manual tasks until he obtained a job as a setter with Wunderlich Tile Company in Sydney. He remained in that work for seven years. He then worked for seven and a half years in a nursery and then for ten years in a laminating firm. In 1987, he and his wife decided to leave the Sydney area and move to Bundaberg. His wife had been working in a nursery as had one of his wife's daughters. Mrs Bell is almost twenty years older than Mr Bell and was previously married. They sold their house in Sydney, bought land near Bundaberg and built a home there. The idea was that they would establish a nursery. The property was unencumbered. -- 1 of 7 -- 2 Things then moved at a leisurely pace. Mr Bell obtained some casual farm work, but mostly he drew unemployment benefits. He worked on their land, clearing it and planting some fruit trees. On 4 September 1990, in the course of his employment with the defendants, Mr Bell fell from the back of a truck. Liability has been admitted. Mr Bell was taken to the Bundaberg Base Hospital. He did not appear to have lost consciousness, but was disoriented for about fifteen minutes and had vomited seven times. X-rays did not reveal any skull fracture. He was found to have nystagmus. On the second day he complained of a slight headache and of pain in the back of the neck and in the small of the neck. Symptoms subsided and he was discharged on 10 September. He had persisting problems of deafness in the right ear and unsteadiness on his feet. It took a while to diagnose these accurately, but recent testing has confirmed the opinion of Dr Christopher Perry, ear, nose and throat surgeon, that he sustained some fracture of the skull base. This involved his right temporal bone, causing some compression of the facial nerve resulting in swelling and a transient weakness. It also damaged his hearing and balance. He has a totally dead right ear and a complete loss of balance nerves on the right side. Dr John Cameron described the effects of this at p. 54, "It has left the brain, I believe, virtually unaffected but the inner ear structures on one side - the hearing, it is fairly obvious how that would have an effect on a person but the balance of the vestibular canal system provides a significant input to the person's orientation. They are like little gyros, I suppose you could describe them, and these little sensors in the inner ear for balance tell the -- 2 of 7 -- 3 brain how fast he is moving, how much rotation is occurring when he turns his head. It also gives his brain a lot of input, when he closes, his eyes and you remove the visual input of orientation, and it also feeds some information down to your joints. So when you disrupt one of these canals, it really leads to a dramatic disturbance of this person's orientation and balance. The brain is getting abnormal messages; that is "lurching", he tends to fall. So he is all over the place all the time. If you put this man into a - submerse him in water, dark water, he can't see. He will drown. He wouldn't know where up was. His brain would not be able to tell him with any degree of accuracy. So it is a very severe injury. Even though it has left the brain virtually alone, it has just damaged one of the inputs, his information." Mr Bell also has severe tinnitus. This is constant, and severe enough to wake him at night. Mr Bell has also been seen by an orthopaedic surgeon, Dr Pentis, who found some degenerative changes in the cervical spine. In his opinion, the fall caused some soft tissue musculoligamentous injuries and aggravation of degenerative changes. These have left him with some pain and inconvenience and loss of function. Mr Bell found it very difficult to copy with the loss of balance, deafness and tinnitus. This caused great strain on his marriage and he and his wife separated for a time. He is now very dependent on his wife. He is virtually unemployable because of his loss of balance. He is socially isolated by the deafness and the irritability that his difficulties produce. He is socially embarrassed by his loss of balance. He has been asked by a police officer to submit to a breathalyser. His neighbour, Mr Evans said (p. 46), "if you didn't know him, you'd swear he'd been on the turps". He is acutely aware of his disabilities. -- 3 of 7 -- 4 There were three areas in the assessment of damages which received considerable attention, economic loss, the need for assistance and the award for pain suffering and loss of amenities. The major difficulty in respect of economic loss arises from the slow progress towards the establishment of a nursery. Mr Kent, who appeared for the defendants, extracted Mr Bell's actual earnings from his tax returns (ex. 18). These show an average weekly income for the year ended 30 June 1988 of $35, for the year ended 30 June 1989, $100 and for the year ended 30 June 1990, $44. He did not suggest that Mr Bell was not spending much of his time on the property. Rather he sought to demonstrate that the move to Bundaberg involved a change of lifestyle with an accompanying loss of income. I am satisfied that there is some truth in this but not to the extent Mr. Kent suggested. Mr. Bell is still only 44 years old. He had worked constantly in physically demanding work from fourteen years to forty one years. It is understandable that he might ease up for a time, but I am satisfied that economic pressures would have forced him to exercise most of his economic capacity. Schedules have been prepared which show what he might have earned up to the trial, either as a farm hand/farm labourer or as a nurseryman. The respective amounts are $45,182 and $53,238. Taking into account difficulties Mr Bell appears to have had in gaining employment, as well as his concentration on the property, I shall allow past economic loss in the sum of $30,000. He received periodic payments from the Workers' Compensation Board in a net amount of $20,737.21. I shall -- 4 of 7 -- 5 allow interest in the amount of $1,945. For the future, I am satisfied that by now Mr Bell would have established a nursery. His wife and step daughter would be working in that with him. There are no figures available to act as a guide on the likely profitability of such a venture. It seems to me likely that Mr Bell would receive somewhat less in this family business than he would receive if working for wages. Of course, the business might flourish. The respective net weekly wages for the two callings previously mentioned are $242.31 and $286.52. Mr William, who appeared for the plaintiff, pointed to Mr Bell's earning capacity in Sydney, which is of the order of $500 per week net. It seems to me that that capacity had been abandoned, and offers no guide for present purposes. I doubt that Mr Bell has any remaining economic capacity. It is hard to see any task he could safely and economically perform with the kind of disability Dr Cameron described. I am satisfied that his loss is not less than $240 per week, even allowing for the more leisurely life style he had adopted. Mr Bell is presently aged 44 years. I am satisfied he would have worked to sixty five, but for his disabilities. I shall allow sixteen years loss to take account of contingencies. This produces an amount of $139,200. Mr Bell has become very dependant on his wife. His sense of insecurity, largely arising from loss of balance, but contributed to by deafness, means that both physically and emotionally he leans on her. Mr Kent submitted that this is a matter that is caught up the award for pain, suffering and loss -- 5 of 7 -- 6 of amenities. I accept that for the future. In the past, there has been a need caused by the injury which has been met by Mrs Bell's services. This has been part of the rehabilitation process. Mr Williams suggested an hour an day for the three and a half years. The rate was agreed at $10 per hour. It seems to me that a figure of five hours a week is appropriate. I shall allow $9,000. The hourly rate used is one which, in my experience, approximates to the current rate. I shall allow interest at 2%, a sum of $630. Special damages were agreed in the sum of $6,800.29, and interest on $950 of this amount is allowed in the amount of $200. The loss of superannuation benefits is a particularly difficult question, because Mr Bell was about to embark on a business in which he would have been self employed. However, the basis on which I have assessed loss of economic capacity is the wages that he would otherwise have earned. In those circumstances the loss of superannuation benefits should also be allowed. These benefits are part of the employment package now, and it would be inconsistent to exclude them from consideration. On the basis of the figures in ex 16, I shall allow $10,000. The award for pain, suffering and loss of amenities must be very substantial. There is no prospect of any improvement in deafness, balance or tinnitus. Mr Bell had been enjoying a normal lifestyle that allowed him a proper measure of work and leisure. Now he is subjected to the constant irritation of -- 6 of 7 -- 7 tinnitus. He has joined a self help group, and found some benefit from this. As Mr Kent noted, his dependence on his wife is covered in this head of damages. She, of course, is almost 20 years older than him. It is easy enough to imagine how miserable life will become for both of them as age takes its toll on Mrs Bell. This will serve to increase Mr Bell's irritability and isolation. For this head I shall allow $70,000, $15,000 of which relates to the pre-trial period. In view of the lump sum payment of Workers' Compensation, there will be no allowance of interest. In summary:- Past economic loss $ 30,000.00 Interest on past economic loss $ 1,945.00 Future economic loss $139,200.00 Loss of Superannuation $ 10,000.00 Past gratuitous services $ 9,000.00 Interest on past services $ 630.00 Special damages and interest $ 7,000.29 Pain, suffering and loss of amenities $ 70,000.00 $267,775.29 less Workers' Compensation $ 58,155.00 $209,620.29 There will be judgment for the plaintiff against the defendants for $209,620.29 together with costs. -- 7 of 7 --