Duffield v Western Engineering Service Pty Ltd & Ors [1993] QSC 290

IN THE SUPREME COURT OF QUEENSLAND No. 1586 of 1988 Brisbane Before Mr Justice Mackenzie [Re: Duffield & Ors] BETWEEN: STEPHEN THOMAS DUFFIELD Plaintiff AND: WESTERN ENGINEERING SERVICE PTY LTD First Defendant WESTERN ENGINEERING SERVICE (A FIRM) Second Defendant AND: PAUL WILLIAM SANDELL Third Defendant AND: FIRE AND ALL RISKS INSURANCE COMPANY LIMITED Fourth Defendant FAI GENERAL INSURANCE COMPANY LIMITED Defendant by Election REASONS FOR JUDGMENT- MACKENZIE J. Judgment delivered 04/10/93 Counsel: Solicitors: K Fleming QC and D Kent for Plaintiff C Newton for Defendant by Election Hawthorn Cuppaidge & Badgery for Plaintiff Bradley & Co for Defendant by Election Hearing Dates: 13-15 September 1993 -- 1 of 10 -- \ IN THE SUPREME COURT OF QUEENSLAND No. 1586 of 1988 Brisbane Before Mr Justice Mackenzie [Re: Duffield & Ors] BETWEEN: AND: AND: AND: AND: STEPHEN THOMAS DUFFIELD Plaintiff WESTERN ENGINEERING SERVICE PTY LTD First Defendant WESTERN ENGINEERING SERVICE (A FIRM) Second Defendant PAUL WILLIAM SANDELL Third Defendant FIRE AND ALL RISKS INSURANCE COMPANY LIMITED Fourth Defendant FAI GENERAL INSURANCE COMPANY LIMITED Defendant by Election REASONS FOR JUDGMENT - MACKENZIE J. Judgment delivered 04/10/93 The plaintiff was injured on 4th May, 1985 when his motorcycle came into collision with a Toyota Land Cruiser driven by the third defendant on a curve on the Rex Range near Mossman. The motorcycle ridden by the plaintiff and upon which there was -- 2 of 10 -- 2 a pillion passenger was being driven in a westerly direction up the range. The Toyota was being driven in the opposite direction. The location of the incident was a curve where the motorcycle was describing an arc to the left and the Toyota an arc to the right. There was a high embankment on the plaintiff's left which restricted vision around the curve. ·Liability and quantum are in issue. However the issues are quite narrow in the end. So far as liability is concerned the primary allegation of the plaintiff was that as he rounded the bend he was confronted by the Toyota which was about a metre on the wrong side of the centre line which at that point was a double white line. He gave evidence that he made a snap decision to "drop" the bike. The result of that was that the plaintiff himself and the pillion passenger did not collide with the vehicle but the underside of the motorcycle hit the bull bar of the Toyota. The plaintiff and his passenger were thrown off and according to his evidence the motorcycle was propelled back down the range for some distance. The plaintiff and his passenger were propelled even further. The motorcycle caught fire and photographs tendered show scorch marks on the roadway in two (, areas. It is alleged that the scorch marks farthest up the hill L/ are near the point of impact and that those lower down the hill emanated from the motorcycle after it came to rest. The third defendant gave evidence that he was driving in third gear down the range at about 40 kph or thereabouts on his correct side of the road when the motorcycle suddenly appeared in front of him. He said that the plaintiff appeared to have already lost control of the motorcycle when he first saw it. He -- 3 of 10 -- 3 gave evidence that it slid into the path of his vehicle on the side of the road upon which the third defendant was entitled to be. The third defendant suggested, although this was not put to any of the plaintiff's witnesses, that the road was damp at the time. There is no evidence but the third defendant's that suggests that the road was other than dry. As can be seen there is a significant issue of credit involved. The plaintiff was one of a group of motorcycle enthusiasts who were travelling to Mt Carbine for a meeting of such enthusiasts. Three other members of the group were on the scene 1 almost immediately after the collision but none of them saw what i \_. happened because of the terrain. However two of them gave evidence that initially the Toyota was stationary at least partially on the incorrect side of the road on the upward side of the motorcycle, which was by that time in flames. Their evidence was that the Toyota was then moved and parked on a gravel shoulder on the outside of the curve. The third defendant gave evidence that when the Toyota collided with the motorcycle the front right-hand side went in the air as if it was running over the motor cycle and continued down without stopping to the place where it came to rest on the gravel edge. The photographic exhibits showed two distinct dark areas on the roadway consistent with inflammable liquid from the motorcycle having burnt. It was argued that certain marks left on the road where fuel had burned were consistent with gouge marks, indicating that the motorcycle had already been sliding -- 4 of 10 -- 4 some distance further down the hill from the place the plaintiff nominated as the point of impact. Once again there was a conflict as to whether there were gouge marks on the road or whether they were simply marks where burning fluid had flowed following the contour of the road. The hypothesis that the motorcycle was sliding before the place where it came to rest encounters some difficulty in accommodating the burn mark further up the road. Further the third defendant did not really say in his evidence that the motorcycle was actually sliding on its side at the time when he first saw it. Rather his evidence was to the c effect that it was in the act of falling and the passengers were in an unstable position on it, as if they were beginning to fall off when he first saw it. One other matter that should be referred to is a mark on the road which was said by some of the witnesses to resemble rubber from a tyre. On the plaintiff's evidence it is in the vicinity of but on the uphill side of the point of collision~ It was suggested to the plaintiff's witnesses that it was in fact a mark left after a vehicle had run through oil on the road after the event. That suggestion was denied. ( \ ( __ / It is true, as Mr Newton submitted, that in a case that is some eight years old and the attention of non-party witnesses has not been focused on the circumstances of the accident for a number of years there is likely to be an element of reconstruction. However I am satisfied to the required degree on the whole of the ·evid~nce before me that the most probable conclusion is that the motor vehicle driven by the third defendant was on the incorrect side of the road as the motorcycle -- 5 of 10 -- 5 came around the bend. I accept that the accident happened substantially as claimed by the plaintiff. There is nothing in the evidence to suggest contributory negligence and accordingly I determine the question of liability in favour of the plaintiff. So far as damages are concerned there is not a large area of conflict. It was accepted that the plaintiff had suffered serious injuries. It was also accepted that he had a significantly diminished capacity to work. The area of major dispute was the extent to which he should be compensated for past and future economic loss. In the accident the plaintiff suffered a compression . ~ fracture of the L4 vertebrae affecting the nerve root, a ~/ fractured nose and a closed fracture and dislocation of bones in the left foot. He underwent a laminectomy and spinal fusion involving the insertion and later removal of Harrington rods. The medical evidence which attempted to quantify his disability puts the degree of permanent partial disability at 25 per cent of effective bodily function. The residual effects are that he suffers constant back pain which varies in intensity from time to time, pain in his foot, foot drop, ankle stiffness and a clumsy walk in consequence of those disabilities. It is not suggested that he is incapc;tble of physical activity but the evidence is to the effect that he could not compete in the ordinary labour market with his disabilities. The plaintiff was a plumber by training. However his interest in motorcycles had led him to consider at about the time of the accident, entering into an arrangement with a friend of his to import and recondition motorcycles, particularly classic -- 6 of 10 -- 6 motorcycles, with a view to selling them to enthusiasts. It was submitted that employment as a plumber on a full time basis was therefore not a proper benchmark from which to measure economic loss. I accept that the plaintiff was not committed to pursue the occupation of plumber on a full time basis. However I am satisfied that he was sufficiently financially motivated to ensure that his income provided him with a reasonable standard of living and, whether it was by the proceeds of his venture into a motorcycle business or by a combination of that and obtaining occasional work as a plumber, he would have generated a level of income that suited his needs. He accepted that in the early stages 6f his involvement with motorcycles he was in a learning phase and that the income that would be generated might not be substantial. However he had the plumbing trade to fall back on to enable him to supplement that income at least to some degree. Mr Fleming submitted that past economic loss should be calculated on the basis of work as a subcontractor throughout the period. The differ~nce between award rates and subcontract rates was calculated on the basis of $80 net per week. The calculation was done on the basis of full time employment throughout this period. H~ving regard to the considerations that have been mentioned an assumption of full time work is unrealistic. The assumption that all work would be done at subcontract rates is also unrealistic. I propose to allow, after taking into account those matters together with other general contingencies, for a sum of $125,000 which represents approximately a 25 per cent reduction on the figure proposed by Mr Fleming. Social security payments of $73,282.38 were made to the plaintiff from 7th May, 1985 to r L ,l I I ( ', G ( (__j -- 7 of 10 -- I/ __ 7 12th August, 1993. That sum will be left out of contention for the purpose of calculating interest. Further Mr Newton submitted and Mr Fleming did not disagree that interest for a period of five years only was appropriate in the circumstances of the case. On that basis the interest to be allowed at six per cent per annum is $15,615.28. So far as future economic loss is concerned, as I have previously said, it is not suggested that the plaintiff is incapable of physical activity but it is submitted that he could not compete in the ordinary labour market. The evidence established for example that he had done occasional odd jobs of a plumbing nature, of working on motorcycles by way of painting them, making exhaust pipes and doing metal polishing. The evidence was however that he has to work at his own pace which is far below a commercially viable pace. In addition extended physical activity causes aggravated pain. He also gave evidence of a sense of frustration at times which made him apathetic about starting or completing work. The evidence established that at best he could do work with a limited degree of activity in which he could sit, stand or otherwise change position as he felt necessary. There was a suggestion that he might be able to work as a security guard or night watchman, an occupation he had tried without success. In my view none of the suggestions with respect to possible avenues of a substantial commercial level of employment in manual occupations are realistic given his current disabilities which are not expected to diminish. So far as clerical occupations are concerned his situation is complicated by the fact that he suffers from dyslexia and difficulty with -- 8 of 10 -- 8 reading, comprehension, spelling and word expression which is described as a specific developmental written expression disorder. Apart from these problems his real level of general intelligence was assessed as being in the superior range of intellectual ability. Nothing that occurred in the trial leads me to disagree with that assessment. At the end of the day it appeared that tasks such as delivering files and other menial duties of that nature were the limit of what he might be capable of doing in the commercial work force. Taking a realistic view of the labour market I conclude that the probability is that his economic capacity will be limited to occasional casual work that he can do at his own pace. Mr Fleming's submission was based on evidence that a subcontract plumber would earn $20 per hour and on the assumption of an average throughout the year of 32 hours per work per week. This produced a figure of $484 net per week and the submission was that that should be allowed for 31 years, that is to say until about age 65. As Mr Fleming pointed out the assumption of 32 hours work per week has an inbuilt discounting factor in it. However it assumes that all of the work would be done at subcontractor's rates. For the reasons that I have referred to above I do not consider that that is wholly sustainable as the level of payment. No more than three-quarters of the time should be allowed at the higher rate. The rate for an award-wage plumber is approximately $370 per week. This calculation would produce an amount of a loss of the order of $455 per week net. That figure requires some slight reduction because allowance has to be made for the possibility that the plaintiff will exercise his remaining earning capacity albeit to r ( /1. ) ( lj -- 9 of 10 -- 9 a limited extent. I will reduce the figure by $50 per week net which gives a net loss of $405. So far as the suggestion that the future economic loss would extend for 31 years is concerned that must be discounted to have regard to ordinary contingencies. I propose to allow 26 years in this regard; When the calculations are done according to the five per cent tables the figure for future economic loss is $311,445. So far as general damages are concerned Mr Fleming submitted, and Mr Newton did not dispute, that a sum of the order of $60,000 was appropriate. It was submitted that one-half of this sum should be treated as past loss. That figure in my view is appropriate. Interest at two per cent per annum for five years on the past component is $3, 000. Special damages are largely agreed. I accept that expenditures not agreed upon have been sufficiently established by the evidence. The amount of special damages will be $13,377.33. Interest on $810 of this sum which has already been paid, for five years at six per cent will be $243. The result is that judgment will be given for the plaintiff against the defendant by election in the sum of $528,680.61 with costs to be taxed. -- 10 of 10 --