Arnold v Mazlin [1994] QSC 76

TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written aathority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No 136 of 1993 DEREK JOHN ARNOLD Plaintiff and ROBERT and KAROLYN MAZLIN Defendants TOWNSVILLE .. DATE 21/03/94 JUDGMENT 1 4th Floor, The Law Court.<>. Geor~e Street. Hri.<;hane, Q. 4000 Tt•lefJhone: (07) 217 4360. F:rc<;imile: ({17) 227 5532 -- 1 of 9 -- 210394 HIS HONOUR: In this matter there will be judgment for the plaintiff against the defendants in the sum of $334,620.58 with costs to be taxed. I publish my reasons. 2 10 20 30 40 50 60 -- 2 of 9 -- IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE BETWEEN: DEREK JOHN ARNOLD w. No. 136 of 1993 Plaintiff -----AND:..--- ( SUPREME COUn f OF QUEENSLAND ,... :t• -. , ..... 1'\, ' ..) f ····:\ : ~ ,.i I 'i FILED I TOW"':c:viL 1 c: . . ~ '1'be 'lnau:.t;.ff' s ROBERT AND KAROLYN MAZLIN Defendants cause of action is admitted. He was injured whilst working. for the Defendants on the Eighteenth day of May, 1988. The parties have reached agreement as to a number of heads of damage and the only heads in respect of which I am required to assess damages are general damages and future economic loss. The Plaintiff was born on the 19th March, 1963. He left school after completing part of Year 9 which year he was then undertaking for the second time. He commenced employment with the Defendants in August 1979 and remained with them until he was injured. The Defendants carried on business as builders but it appears that their business was one of performing building works for various real estate agents in the nature of repairs or extensions or renovations to dwellings and other buildings which the real estate agents rented presumably on behalf of clients. -- 3 of 9 -- I ( ! \ / I\, 2 The Plaintiff submitted income tax returns as a sub- contractor. He performed the work of a builder's labourer but was required in the course of doing so to perform many aspects of the work of various types of tradesmen. This is described at page 8 of exhibit 1, a statement of the Plaintiff. In submitting his income tax returns the Plaintiff claimed deductions for various expenses primarily associated with the running of a vehicle and depreciation on that. Some equipment was also provided by him. His description of the relationship between himself and the Defendants would suggest that he was virtually in the position of an employee working exclusively for the Defendants and engaged on a full-time basis. The Plaintiff sustained a fracture of the first lumbar vertebra. He had rods inserted into his spine from the eleventh thoracic vertebra to the third lumbar vertebra and some bone-grafting was performed. Subsequently the rods have been removed. At the same time a further bone-graft was performed. The Plaintiff's treatment and his convalescence are dealt with in the various medical reports which were tendered by consent and in the Plaintiff's statement. The Plaintiff was in a body brace for approximately six months. I am satisfied that the Plaintiff had a difficult and painful -- 4 of 9 -- ' / ( ( 3 as well as a prolonged convalescence. The nature of his disabilities is dealt with in the various reports which have been tendered. Different expressions of opinion as to the percentage loss of function of the spine or the body as a whole have been expressed in these reports. Dr. Gavin Douglas who has provided the most recent of the orthopaedic reports before me (exhibit 10(b)) has attempted to reconcile these in that report. I accept that the Plaintiff has a 30' loss of function of the lumbar spine and a 9' loss of total bodily function. In addition the accident and its consequences has had a very serious impact upon the Plaintiff's life. It has according to Dr. Richards (exhibit 3) resulted in the break-up of the Plaintiff's marriage and has resulted in emotional regression, avoidance of paternal responsibilities and the other consequences he refers to. He describes them comprehensively as a kind of personality change. The Plaintiff apparently suffered a low grade anxiety disorder prior to the accident with occasional episodes of panic. This condition was exacerbated by the accident but settled to the previous level by about the middle of 1989. I accept the various complaints which the Plaintiff makes in consequence of his back injury. His activities are significantly limited and he has pain and difficulty with many of these. His various complaints are set out in paragraphs 66 to 86 of exhibit 1. I have said I accept these as being correct and I do not believe the Plaintiff has overstated -- 5 of 9 -- ( 4 them. His present complaints are I am satisfied likely to be permanent. I assess the Plaintiff's general damages in the sum of $60,000-00. I ascribe $25,000-00 to past pain and suffering. The Plaintiff has received a disability settlement in the sum of $8,377-00. I allow interest on the balance at the rate of 2% per annum since the date of the accident producing a sum of $1,938-00. So far as future economic loss is concerned, I am satisfied that the Plaintiff but for his injuries would have remained working for the Defendants indefinitely but that if for one reason or another he lost that employment he would have been able to obtain other employment which would have remunerated him for his experience and the skills which he had developed. He has been in some employment since the accident and this is set out in exhibit 1. He is presently in employment with a security firm but works on a part-time basis. This work involves some travelling to mine sites some distance from Charters Towers on a Saturday and Sunday. The work is performed in the morning and in the evening and the Plaintiff rests between these times. He receives a wage of $150-00 per week. Evidence was given by Mrs. Frew who attends to various management and book-keeping functions for a building company -- 6 of 9 -- I \ / I \ ' 5 which conducts its operations in Townsville and has for many years. She gave evidence of rates of pay and the manner in which employees are remunerated. In her evidence she referred to some recent changes in the legislation governing the building industry. Pursuant to this, persons who have worked in the industry and developed certain skills are able to obtain certificates to work as tradesmen notwithstanding the absence of any formal training in this regard. Some allowance has to be made for the prospect that the Plaintiff may have been able to take advantage of this legislation although the evidence does not permit a positive finding in that regard as the extent of the Plaintiff's experience in the various fields and whether this would satisfy the requirements of the legislation or of those who administer it and determine whether a particular applicant has had sufficient qualification, was not canvassed in any great detail. The Plaintiff's present employer was called by the Defendant. He gave evidence that he was hopeful of some expansion in his operations. In evidence-in-chief he suggested that in that event the Plaintiff would be offered further work in addition to the part-time work he presently has and that it would be a matter for the Plaintiff as to whether he took that. The Plaintiff had given somewhat similar evidence. The employer however later in his evidence suggested that now that he was aware of the extent of the Plaintiff's injuries that his present employment might be in jeopardy. -- 7 of 9 -- ' ( I , . I 6 The Plaintiff has lost, I am satisfied, the capacity to engage in work in the building industry of the kind which he previously engaged in or for that matter any other heavy work. He does have a residual earning capacity according to the medical evidence which I accept but it is limited to relatively light work and it is my view that he would have pain and discomfort in performing any work which required him to move around to any significant extent or to sit or stand for any extended period. This would make him a somewhat unattractive employee to an employer and he may not obtain or even lose work because of this. He may obtain suitable full- time employment or he may be in employment intermittently. He is not in my view, suited for clerical or similar work having had no experience in these fields. His lack of education would I think preclude him from such work and he expressed an aversion to it. Allowance has to be made when assessing the Plaintiff's pre- accident work history for the fact that whilst he worked on a full-time basis, an analysis of the figures would suggest it was something less than a five days a week, fifty-two weeks of the year, job and allowance has to be made for the expenditures which he incurred in producing such an income. The Plaintiff has in my view suffered a substantial impairment of his earning capacity. The impact of this upon him means that he is precluded from the well-remunerated work in the building trade which would otherwise have been available to him without any formal qualification and there must be taken -- 8 of 9 -- r \ 7 into account the possibility that he may have been able to take advantage of the legislation I have already referred to and improved his position somewhat further. On the other hand, the industry is a cyclical one and some allowance has to be made for the wish that they may have been times when work was not plentiful. Various figures were placed before me in schedule form in the course of addresses. In calculating the Plaintiff's future economic loss I also make allowance for the loss of the superannuation entitlements which the Plaintiff would have received. I allow the sum of $260-00 per week for 25 years producing an amount at present values of $193,534-00. The Plaintiff's past economic loss together with interest is agreed upon in the sum of $102,000-00. A claim for past care is the subject of an agreement in the sum of $8,880-00. Special damages together with interest and the Fox and Wood component are agreed upon in the sum of $27,275-07. ~31J.Jf07 The total of the Plaintiff's damages is $lS&,'6a7 0~ From this must be deducted the sum of $51,006-49 representing the total sum paid to him by the Workers' Compensation Board. There will be Defendants in judgment for the Plaintiff against the -:J •·..1;J., ~.lA 's~ A"< the sum of $334,620 58-with costs to be taxed. /# ///t~tu~ -- 9 of 9 --