Crowe v Council of the Shire of Pioneer [1993] QSC 403

. '- ~·-- . ·-· . -· ....... ~ ' ... __ .., .... ~- ....... . , o-l< ~?5?----. .. . . .. . ~.State ReportingBurCaz .TRANSCRIPT OF PROCEEDINGS, (Copyright in this tran.scrlpt is vested in the Crown. Copies thereof must not be made or .sold ' without the written authoritY of the Director, State Reporting Bureau.) ·~---.-----------·· ..... ~ r-.~::·<:~·>:~~ - ••.•.. \ "::-.... • 1 ••• "·. _.... -~··.o ....... •:'4•.··· • SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 37 of 1992 · PETER NORMAN CROWE and· COUNCIL OF THE SHIRE OF PIONEER MACKAY .. _. . • DATE 12/-11/93 JUDGMENT 1 ,- . ·..;- ·~:::. _; .~. ::_ ~-. : : . '·:·;·_\.)_/~\./A.!> ·· .... ; • . .. ,,__.__.,,_._ .. r ...... _... ,.. -<-~--·-:~··"-•-'--r-•I:"P"f'·>:"•,.,. ·, Plaintiff · Defendant -- 1 of 19 -- 121193 M/T MKY423/93 (Demack J) HIS HONOUR: Mr Crowe was born on 9 July 1942. He was injured on 21 September 1989. He fell into a drain constructed by the defendant, which had an incomplete grating cover. The circumstances are such that the defendant has accepted liability for the injury. Mr Crowe attended at the Mackay Base Hospital that afternoon. The hospital report is Exhibit 3 and I shall quote from it to set the picture of his disabilities: "On examination he had an abrasion over the right lower leg. A small laceration over the left lower leg and pain in the right trapezius muscle radiating into the right shoulder. Movements of his neck produced pain in the right shoulder especially on left rotation and left lateral flexion. X-ray of the cervical spine and right shoulder showed no abnormality. He was diagnosed as suffering from muscular injury and was prescribed rest and physiotherapy. He was reviewed on 25 September, 26 September, and 29 September, 1989. At this time, the pain in his neck improved, however he still had pain and numbness in his right arm, extending to the thumb and index finger in the distribution of the fifth and sixth cervical dermatome. He was admitted to hospital from 29 September to 18 October 1989 and was treated with traction, physiotherapy, NSAIDS, and muscle relaxants. His pain was relieved while he was in traction, but it returned after he became ambulant. A myelogram was performed, which failed to definitely confirm disc pathology. He was referred to Dr Reno Rossato, neurosurgeon in Townsville, for further management." He also attended his GP, Dr Allsop, in September, November, December, January, and February. He was referred to Dr Rossato in Townsville and admitted to the Townsville General Hospital on the 18 October 1989 and remained there until the 28 October 1989. 2 JUDGMENT 10 20 30 40 50 60 -- 2 of 19 -- 121193 M/T MKY423/93 (Demack J) During that time fusion of one of the disc spaces in his neck was undertaken and he was kept in a neck brace for tfiree months after he was discharged from hospital. He was readmitted to hospital on the 28 November 1989 for further observation, and remained in hospital until the 4 December 1989. He continued to have problems and was readmitted by 10 Dr Rossato to the Townsville Base Hospital on the 12 September 1990 and remained there until the 18 September 1990. Further fusion surgery was performed on his neck. He was required to use a neck brace for three months after his discharge from hospital. 20 For the purposes of litigation, Mr Crowe has been seen by Dr Macfarlane and also by Dr Nutting. There was some area of disagreement between the doctors initially, but this seems to have been to a large extent cleared up because Dr Macfarlane 30 says he was using an older edition of a set of tables and now substantially agrees on the percentage disability arising from the disc injury. However, Dr Macfarlane notes a further disability in the right arm, which does not appear to be noted by Dr Nutting. 40 I accept Dr Macfarlane's opinions where they differ from those of Dr Nutting. They do seem to be consistent with the observations which I have referred to in the Mackay Base Hospital report in relation to the pain and numbness in the right arm. Dr Macfarlane notes that there is surgical fusion in the bodies of CS to 7. The position of these vertebrae is 50 3 ~ JUDGMENT -- 3 of 19 -- 121193 M/T MKY423/93 (Demack J) unchanged and there is no evidence of any narrowing of the cervical canal at this level. C4, 5 intervertebral disc immediately above the fused segment shows degenerative change within the intervertebral disc. Dr Macfarlane pointed this out on X-rays which had been taken 10 recently on the 28 October 1993. Dr Nutting had not seen those X-rays and consequently his opinion on them is not available. However, what Dr Macfarlane demonstrated did seem to be consistent with what is called lipping, and Dr Rossato had indicated that there was a probability that degenerative 20 change would develop in the disc above those that had been fused. This is a common enough circumstance referred to by doctors and I have no hesitation in accepting Dr Macfarlane's opinion about this. Dr Macfarlane says in his assessment in Exhibit 7, which is a report dated 2 November 1993: "This patient has h~d quite a severe injury to his neck as outlined above and previously there has been fusion of two cervical discs. There is a decreased range of movement of his neck, decreased power in his right arm, decreased sensation in his right arm, and pain in the right arm with decreased reflexes." He regards this as a 13 per cent impairment of the whole patient, and the situation seems to be likely to deteriorate as the degeneration in the C4, 5 disc continues. This matter was well prepared for trial and the defendant had opportunity to examine the plaintiff's claim in detail. ,. Consequently, many of the items which the plaintiff seeks to 4 JUDGMENT 30 40 50 60 -- 4 of 19 -- 121193 M/T MKY423/93 (Demack J) cover are not in dispute. Mr Mellick, who appeared for the plaintiff, set these out in detail in Exhibit 21. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 19 -- 121193 M/T MKY423/93 (Demack J) Mr Dowling, who appeared for the defendant, made substantial submissions only in relation to the past and future economic loss items. Mr Mellick had suggested a figure of $50,000 for general damages to cover pain and suffering and loss of amenities. Mr Dowling very properly recognised that this was, as he said, at the top of the range. To indicate the extent of the matters covered by this component I should set out some further details about Mr Crowe's loss. Mr Crowe had come to Mackay shortly before the incident in which he injured himself. He had travelled here with a friend and business partner, Mr Doggett. Prior to that Mr Crowe had enjoyed an active life, being an A Grade pennant tennis player in Victoria. He also enjoyed playing an occasional game of golf. He and Mr Doggett were_in the habit of going fishing and owned a boat, which they brought with them to Mackay. Mr Crowe also had, over a number of years, been a handyman around the house and had renovated old homes. He can now not play tennis or golf, he has tried going fishing in the boat, but_finds that the movement of the boat produces pain and discomfort. He has lost interest in fishing from the bank. He cannot perform tasks around the home in the way he used to. Mr Crowe and his wife had separated and for a time he had custody of two teenage girls. This kept him very much occupied with home duties for some years prior to moving to Mackay. Those two girls became independent of him and it was following that that he moved to Mackay. 5~ JUDGMENT 10 20 30 40 50 60 -- 6 of 19 -- 121193 M/T MKY423/93 (Demack J) He says that he has disrupted sleep. He has pain each day at work. There is numbness in the right arm with an overall slight weakness in that arm. He did have some degeneration in his neck, in the cervical spine previously, but Doctor Macfarlane's opinion is that the would have worked to a normal retiring age. He now has this degeneration and pain and the disc pathology that resulted in the fusion of two disc spaces. Doctor Nutting describes it as, "residual muscle spasm" and "intermittent neuralgia". As I have indicated, Mr Crewe's treatment required the four periods in hospital and two rather protracted periods wearing a neck brace. It is to be noted that the wearing of the neck brace occurred in each instance at the beginning and into summer, so it would have been a thoroughly unpleasant experience quite apart from the pain. In those circumstances it seems to me that the suggested figure of $50,000 is a proper sum to award by way of ·general damages. Doing the best I can with the figures, I am not able to reach Mr Mellick's figure for interest. I am satisfied that it is proper to allow interest on $20,000 of the sum of $50,000. The reason for this is that without thi$ injury Mr Crowe would have experienced a normal life with some discomfort in his neck, from time to time, as he aged. Now he is left with increasing pain and discomfort at a time when he should be able to enjoy life more fully. Consequently it is appropriate to apportion the $50,000 in the way suggested. However, on my calculation the appropriate sum for interest 6 JUDGMENT 10 20 30 40 50 60 -- 7 of 19 -- 121193 M/T MKY423/93 (Demack J) over 4.13 years at two per cent is $1652 and I will allow interest in that amount. The other items which were much more substantially contested, concern past economic loss and future economic loss. As I have indicated, prior to coming to Mackay, Mr Crowe had been through a bad time with family problems and had been unemployed for some time. His income over the three years preceding the accident was largely derived from social security payments. He had previously followed, principally, the skill of being a book binder, but had also worked from time to time as a cook or chef. He came to Mackay with Mr Doggett, looking to go into business. He had not begun to work at the time when he suffered his injury. These circumstances mean that the assessment of damages for economic loss is necessarily fraught with difficulty. However, Mr Crowe has shown quite an extraordinary capacity to rehabilitate himself and has turned his experience and skill as a cook or chef into a very successful business in Mackay. He and Mr Doggett conduct a restaurant which is known as Pippi's. This restaurant has been owned by them for a period of two years. While Mr Crowe was going through a process of rehabilitation with the Commonwealth Rehabilitation Service, he suggested that he might try to train as a cook. It appears from a report of the Commonwealth Rehabilitation Service, Exhibit 9, that Miss Joanne Cook, occupational therapist, arranged a work training placement at Pippi's Bistro for 7 JUDGMENT 10 20 30 40 50 60 -- 8 of 19 -- 121193 M/T MKY423/93 (Demack J) Mr Crewe with the concurrence of his GP, commencing on 4 June 1991. Mr Crewe and Mr Doggett assessed the capacity they had to run that restaurant and took it over about two years ago. Mr Crewe is the chef and Mr Doggett is the maitre de. They analysed the situation carefully in conjunction with the Commonwealth Rehabilitation Service, apparently with Miss Cook, and decided that because of Mr Crewe's disability they would need someone to work closely with him in the kitchen to do heavy tasks, but also to take over in moments of pressure when his pain and disability would mean that he could not work at the pace that is required in a busy restaurant. 8 JUDGMENT 10 20 30 50 60 -- 9 of 19 -- 121193 M/T MKY423/93 (Demack J) Fortunately, the previous owner had employed a lady, Jann Simpson, who had worked on Fridays and Saturday nigh~doing some general cleaning up. She apparently also had a good understanding of what was involved and she was brought on full-time to stand by Mr Crowe and in effect enable him to work to full capacity. The result of all this is that 10 Pippi's Restaurant has won the Mackay tourism award as the best restaurant in Mackay. Praise of the restaurant came from a Mr Gorrie who operates a motel which has a restaurant attached to it. Mr Gorrie is 20 not a friend of Mr Crowe or Mr Doggett. His restaurant won the prize for the best restaurant associated with a motel or other accommodation. He spoke in terms that were not flowery or over indulgent in respect to the stature of Pippi's Restaurant and it seemed to me that his evidence was entirely 30 credible. The excellence of Pippi's Restaurant was referred to also by Mr Clarke, a rehabilitation counsellor. He spoke of it as a successful business with a reputation for providing individually prepared high quality cuisine in a timely manner, that is from Exhibit 10. Mr Gorrie's evidence is particularly found at page 31 of the transcript and I do not need to quote it at length. What he says is in effect that guests at his motel often desire to eat out and when the motel tries to make bookings for them at Pippi's, often the place there is booked out. Against this background, it seems to me more likely than not 9 JUDGMENT 40 50 60 -- 10 of 19 -- 121193 M/T MKY423/93 (Demack J) that quite soon after he came to Mackay, Mr Crowe would have been able to obtain work as a cook. There was the obvious disadvantage that he did not have any professional qualifications and he had no recent employer who could be contacted by a prospective employer to ascertain the quality of his work. Nonetheless, he has shown such a skill with 10 cooking, in spite of his disabilities, that it seems to me more probable than not that that skill would have come to the fore as he sought employment and then a business for himself in that period after arriving in Mackay. Mr Gorrie says there is always a shortage of good cooks, and back in the period of rehabilitation, a good chef in Mackay would have been paid round about $600 per week. Thus, in respect of that part of past economic loss, a precise 20 calculation has been done which shows that a chef employed 30 from 21 September 1989 to 31 August 1991 would have earned $45,769.86. Clearly, such a precise figure cannot be allowed, because it does not take account of the need for Mr Crowe to find work and to become established in that work so that he would earn the pay that a good chef attracts. There is a very significant difference between what Jann Sirnpson is paid as a kind of kitchen hand cum cook and the rate of pay that the chef receives. Mr Mellick has suggested that 75 per cent of that sum would be an appropriate figure for past economic loss for that two year period. I shall allow $34,000 to cover that period. Quite a deal of cross-examination was directed to the place that Jann Simpson occupies in the kitchen. 40 50 10 60 JUDGMENT -- 11 of 19 -- 121193 M/T MKY423/93 (Demack J) Clearly, over the past two years, the amount of work required in the kitchen has expanded and some additional staff has been employed on busy nights. However, it seems to me that the essential evidence here is that the employment of Jann Simpson in the kitchen was clearly undertaken as part of the assessment in rehabilitation. If Mr Crowe had not obtained 10 this position and been, with Mr Doggett, prepared to hazard life in a small business, it is difficult to see what kind of work he could have done. He has a significant neck disability. He would not be able 2o to pursue book binding. Work in shops or places where bending of the neck is part of the normal day to day activities would seem to be largely beyond him. Consequently, being a chef is particularly appropriate for him, and functioning as a chef was only possible if Jann 30 Simpson was employed to help him. This help is given across a wide range of things in a busy restaurant kitchen, but nonetheless, it is essential if he is to exercise his residual economic capacity. Her presence there is brought about by the need created through his injury. There is the complication that Mr Crowe is in partnerShip with Mr Doggett. However, before they entered into the business, Mr Doggett indicated that employing Miss Simpson was an extra cost and as it was a business, he was concerned about that. Mr Crowe indicated that he would make a claim in his damages claim in respect of this, and would share what he recovered in respect of Miss Simpson's wages. That is an arrangement between the partners. However, it seems to me i• 11 JUDGMENT 40 50 60 -- 12 of 19 -- 121193 M/T MKY423/93 (Demack J) the more significant thing here is that the work in the restaurant is clearly divided into two areas, as is common enough. Mr Crowe looks after the kitchen, Mr Doggett looks after the front of the house. Mr Crewe's disability requires the expenditure of an additional sum, namely Jann Simpson's wages, in order that his residual capacity can be exercised as a chef. Consequently, the measure of that disability, whether it is taken on its own or whether it is looked at 10 through its impact on the partnership, is the same. It is 20 the cost of paying Jann Simpson. So I will allow the amount of wages that have been paid in respect of Jann Simpson since the business began as part of the past economic loss. This is a sum of $36,227.14. When 30 the restaurant began, it opened six nights a week, being closed on Monday. Friday and Saturday are the busiest nights in the restaurant, and Mr Crewe found that on Sundays he had great difficulty getting out of bed. 40 50 12 60 JUDGMENT -- 13 of 19 -- 121193 M/T MKY423/93 (Demack J) Those who have seen him working at the restaurant recognised that he does have considerable pain and difficulty night by night. He has to stop and sit down and have a rest. Jann Simpson has to keep things moving while he has this rest. On most nights he manages to get through. Friday and Saturday nights, because the restaurant is busy, leave him exhausted 10 on Sunday. Consequently the decision was made reluctantly to close on Sunday night. I am satisfied that this happened solely because of the disability that Mr Crowe has arising from his 20 injury. Mr Doggett indicated that he was most reluctant to close on Sunday night. The alternative of employing someone else meant the loss of the unique talent that Mr Crowe brings to the business. There are clearly many places in Mackay where one can buy a meal, but there is only one Pippi's, insofar as the Mackay Tourist Bureau sees it, and obviously the reason for the popularity is the cooking skills of Mr Crowe. If the 30 restaurant functioned on the night when he was not present, 40 this would have some overall impact on its standing, and the partners were not willing to risk that. Consequently they closed on Sunday night, and it seems to me that the loss that arises from that is also a loss of economic capacity, which sounds in damages in this claim. There was difficulty in calculating this because, for some reason which no doubt seems good to them, the partners bank on a weekly or even fortnightly basis. Mr Doggett is 13 JUDGMENT 50 60 -- 14 of 19 -- 121193 M/T MKY423/93 (Demack J) responsible for all of the keeping of accounts and that is the method he has chosen. It is therefore impossible-for their accountant, Mr Donnelly, to indicate the income on Sunday nights over the period up until the beginning of this year. He has worked out the average takings and done a calculation on the basis of that. Mr Gorrie said that, in his experience, Sunday night was the quietest night for restaurants, and went so far as to say 10 this was the experience around the World. Mr Donnelly, the accountant, who not only is accountant to the partners, but 2o also frequents Pippi's Restaurant, said in his observations, Sunday night was an average or better than average night. Mr Doggett maintained also that that was the case. As I have said, it is a very difficult situation for the ~ accountant to try to assess in those circumstances. Mr Mellick has recognised that in respect of this item, all that can be recovered is Mr Crewe's loss, because this is part of the overall partnership business and all that can be measured as his loss. This is what would come to him. His calculation is an amount of $208.29 per week, an~I will allow $200 per week for that period. This is a sum of $8,800. The total then of past economic loss which I will allow is $79,027.14. There have been benefits received by Mr Crewe from the Department of Social Security, amounting to $14,670.11. I will allow interest on the sum of $64,357.03 and interest amounts of $15,947.66. If calculation of past 14 JUDGMENT 40 50 60 -- 15 of 19 -- 121193 M/T MKY423/93 (Demack J) economic loss was difficult, future economic loss is extremely difficult to calculate. Mr Crewe, at present, is having great difficulty coping with work in the restaurant. Dr Macfarlane and Mr Clarke both expressed the view that it is in Mr Crewe's best interests 10 that he keep working in some activity, and clearly he has a considerable flair as a chef. His food obviously is extremely attractive to the citizens of Mackay. However, he finds it very difficult to cope, and reluctantly Mr Doggett has agreed that the business should be sold. 20 This then leaves the future extremely clouded. Clearly it is a decision that has to be made by the partners, not by their medical adviser or their rehabilitation counsellor, and certainly the Court cannot lay down rules on what work a 30 plaintiff should undertake. However, there is very little else that Mr Crewe can reasonably be expected to do, given his disability. He is now aged 51. If he had not had the accident, he would 4 0 have been able to keep working for many years. It.is hard to close one's eyes to the reality that Pippi's Restaurant has been a great success for Mackay and for him, and if he were not injured, and if he had still been involved in that restaurant, it would have been a successful business for very 50 many years. Mr Mellick has suggested that the approach to assessing the future economic loss is to look at both the notional net 15 JUDGMENT 60 -- 16 of 19 -- 121193 M/T MKY423/93 (Demack J) weekly earning capacity of an employed chef, which is $542.83, and the current weekly loss, which is $540.59. He calculates the currently weekly loss as the cost of employing Jan Simpson and the loss of Sunday night trading. He suggests that if 80 per cent of this were taken as the future economic loss, and 12 years allowed, that would be an appropriate way of dealing with the situation. As I have said, in two years, Mr Crowe has built up for himself an enviable reputation as a chef in Mackay. Mr Gorrie recognised this and could envisage other establishments paying substantial sums to have Mr Crowe's name associated with their kitchen. He expressed the view to the effect that the mere presence of Mr Crowe in a kitchen would enhance the standing of the restaurant. Whether that be so or not, of course, only time can tell. However, it does seem to me to indicate that the goodwill attaching to the name of Mr Crowe in the restaurants of Mackay will remain for some time at least. Whether he will 10 20 30 be able, with Mr Doggett, to establish a business which has a 40 larger kitchen and allows him to do less work, while ·others perform the tasks and he adds the flair, only time can tell. However there does seem to be some residual capacity which must be taken into account. 50 60 16 JUDGMENT -- 17 of 19 -- 121193 M/T MKY423/93 (Demack J) All of this of course depends to some extent on Mr Doggett who is involved in the decision making but is of course an independent person for the purposes of this action. Doing the best I can with a very unusual and difficult situation, I will assess future economic loss on the basis of a loss of $350 a week for 12 years. It seems to me that 12 years is thoroughly justified here because there was no significant pre-existing disability and there was nothing in the work that Mr Crowe was about to undertake at the time of the accident which would place undue stress on his neck. This produces a sum of $166,000 for future economic loss. The total of the award then, taking into account the various items which have not been in dispute, is $345,321.85. That is - Pain and Suffering, General Damages Interest Special Damages Interest Wilson & McCleay Damages Interest Griffiths v Kerkemeyer Damages Interest Recurring Expenses Past Economic Loss Interest Future Economic Loss 17 50,000.00 1,652.00 17,841.80404.40 1,365.00338.25 6,000.00495.60 6,250.00 79,027.14 15,947.66 166.000.00 $345.321.85 JUDGMENT 10 20 30 40 50 60 -- 18 of 19 -- 121193 M/T MKY423/93 (Demack J) In respect of costs, this certainly is an unusual case and I can well understand the defendant wishing to put the plaintiff properly to proof. However, an offer was made four months or more ago which was substantially below the amount of the judgment and it seems to me that the usual rule as to costs should follow. There will be judgment for the plaintiff against the defendant for $345,321.85 together with costs to be taxed as between solicitor and client. 18 JUDGMENT 10 20 30 40 50 50 -- 19 of 19 --