Caldwell v Halberstater & Anor [1993] QSC 303

/ \ TRAl'TSCRIPT 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 No 115 of '1987 BRECK ALLAN CALDWELL and GERARD HALBERSTATER and SUSAN GAY HALBERSTATER ROCKHAMPTON .. DATE 06/09/93 JUDGMENT ······-·------------·---.-,. --· -·· ·--···-~--: Plaintiff Defendants -- 1 of 9 -- . --------------.- --- 060993 (Demack J) HIS HONOUR: In this action I have reduced my reasons to writing which I now publish. There will be judgment for the plaintiff against the defendants for $571,479.91 together with costs to be taxed. 10 20 30 40 50 -~_60 JUDGMENT () (~l ( ' \~) -- 2 of 9 -- IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON Rockhampton District Registry Before The Hon. Justice Demack [Re: CALDWELL v. HALBERSTATER] BETWEEN: BRECK ALLAN CALDWELL AND: .s c. ,. 3 /3o 3 No. 115 of 1987 Plaintiff GERARD HALBERSTATER AND SUSAN GAY HALBERSTATER Defendants REASONS FOR JUDGMENT - DEMACK J Judgment delivered 06/09/93 CATCHWORDS: Damages - Personal Injuries - Naumatic Amputation of Left Arm - Stump to Short for Prosthesis - Stockman and Helicopter Pilot - Good Prospects of Station Management Role - Crocodile Hunting to Mitigate Loss - Male Aged 32 years atTrial. Counsel: Mr Ford for Plaintiff Mr Mellick for Defendants Solicitors: Kerry Connolly & Howard for Plaintiff Grant & Simpson for Defendants Hearing Date/s: 25/8/93 to 27/8/93 -- 3 of 9 -- IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON No. 115 of 1987 BETWEEN: AND: BRECK ALLAN CALDWELL Plaintiff GERARD HALBERSTATER AND SUSAN GAY HALBERSTATER Defendants JUDGMENT - DEMACK J. JUDGMENT DELIVERED the 6th day of September 1993. Mr Caldwell was born on 6 July 1961. He was injured in the course of his employment with Mr and Mrs Halberstater on 12 August 1986. The parties have agreed that the defendants should bear 85% of the blame for his injuries. Mr Caldwell 1 s left arm was caught in machinery. He suffered a twisting type injury which caused the arm to be amputated with an associated spiral fracture of his proximal (-) humerus, just below the neck of the humerus. Re-attachment of "-/ the arm was not possible. The bone was trimmed and later a skin graft performed over the wound. The amputation is so high that it precludes in practice the wearing of a working artificial arm. It constitutes a 100% loss of function of the left arm. Agreement has been reached on many aspects of the assessment of damages. What has been left to me is the assessment of past and future loss of economic capacity and the value of future services gratuitously rendered. Mr Weston, a psychologist, has described Mr Caldwell very well as "a hard working independent minded man with very high achievement needs, oriented to bush and property life." Witnesses who had worked with him spoke highly of him, and I accept their evidence without discounting it in any way. Mr Caldwell 1 s injury · is so severe for a person with his -- 4 of 9 -- 2 background that people could easily gild the lily. satisfied this has not happened. I am I am satisfied he was a good horseman with an ability to break in horses. He was very experienced with cattle. He had acquired a helicopter pilot's lice~ce and would have gained work as a helicopter pilot in cattle mustering. I am also satisfied that he would have moved to management positions in the cattle industry. Mr Weston found him to have above average intellectual ability. After the accident, Miss Green, an occupational therapist, found that he was not suitable for retraining in clerical work or in book keeping. However, that was to some extent influenced by his desire for outdoor work. I am satisfied that if book work had been associated with bush ( ~ and property life he would have handled it with ease. \ / I am satisfied that his injury has changed this completely. His pilot's licence has been cancelled. He cannot handle any but the quietest of horses. He cannot perform the many "hands on" tasks involved in station life. Since the accident he has attempted station work, but was unable to manage the tasks. He has had some success working as a crocodile hunter. He learned the necessary skills from Mr John Lever of Koorana Crocodile Farm. However, the bounty imposed by the Queensland Government on the capture of wild crocodiles has made this uneconomic. Nothing displays Mr Caldwell's "very high achievement needs" better than thi~ attempt to mitigate his loss. He used the lump sum payment from the Workers' Compensation Board to purchase a four wheel drive vehicle, an aluminium boat and other equipment. M/s Stephenson, occupational therapist, spoke of him as having a charismatic personality and expressed the following optimistic opinion (exhibit 14):- Despite his disability, I would consider Mr Caldwell has unusual potential to gain future employment through his tenacity and determination. He is currently disadvantaged in exploring most work options that would suit his physical capabilities through lack of financial means. He would be most likely to establish a satisfying career for himself through establishing his own business. -- 5 of 9 -- 3 The significance of this opinion lies in the remarkable optimism Mr Caldwell conveyed to M/s Stephenson. Clearly, if he had not been injured he had the capacity to inspire confidence in others which would have enabled him to find a successful and well paid career in the pastoral industry. I am satisfied that since the accident Mr Caldwell has made all reasonable efforts to obtain work. There has been a period when he has spent time in Rockhampton caring for his ageing grand parents, who reared him. However, he has also spent some of that period hunting crocodiles. It does not seem to me that there is any need to discount past loss because of time spent in Rockhampton caring for his grandparents. Mr Ford and Mr Mellick prepared detailed submissions about how economic loss should be calculated, exhibits 35, 36 37 and 38. I am satisfied that Mr Caldwell would have gained work as a helicopter musterer in about January 1987, and that by July 1991 he would have obtained work in managing a cattle property. However, it seems to me that Mr Ford's figures in exhibit 35 are too generous. The relevant award figures were produced, and detailed schedules were prepared on the basis of those figures. Mr Slingsby and Mr Eberhard made it clear that the industry does not take any notice of the award. However, the crucial figures seem to me to come from Mr Creed. He met Mr Caldwell when they were both training as helicopter pilots. Mr Creed had a background in the cattle industry and also had a fixed wing pilot's license. Mr Creed's evidence, (pp 97 and 98), which suggests an income generally over $40,000 per year gross, is not supported by his actual earnings in exhibit 33. While his gross figure in 1989/1990 is $41,559, that dropped to $29,529.50 the following year. Consequently, I will allow amount of $22,500 per year for 2! years and $25,000 for 2 years. Similarly, I shall allow a reduced amount as station manager, namely $30,000 per year. Taking exhibit 35, this produces a total of $173,700 for potential pre-trial earnings. I accept Mr Mellick' s figures -- 6 of 9 -- 4 for actual earnings as it appears the accountants missed an amount paid by Dundee Park Pty Ltd. Actual earnings were $13,319.65. An amount of $17,510.90 was received from the Department of Social Security which is not refundable. I assess past economic loss at $142,869.45. Nett periodic payments of Workers' Compensation amount to $6, 049.28 and refundable payments from the Department of Social Security amount to $19,113.77. It is over seven years since Mr Caldwell was injured. I shall allow $49, 450 as interest. For the future, the difficult task is to assess Mr Caldwell' s residual economic capacity. It seemed to me that M/s Stephenson's opinion was probably correct, but it did not offer much help in assessing dollars and cents. It seems to me to be a case where all that can be done is to assess a reasonably sustainable nett weekly income and to estimate a percentage that represents the residual capacity. On the basis of the evidence of Mr Zahnlei ter, I am satisfied that $600 is a realistic nett figure for the present value of Mr Caldwell' s pre-accident economic capacity. In reaching that conclusion, I have taken into account his experience as well ) as his obvious determination and capacity to generate confidence. Mr Luxford's evidence was particularly impressive in this respect. Mr Luxford had over fifty years' experience r in rural industries and over twenty years' experience as a \ drover. Mr Caldwell started working for Mr Luxford when he was aged 1 7 years, and Mr Luxford regarded him as the only young man, among forty or fifty men who had worked for him, who was above average. Mr Luxford did not appear to be a man who was generous with praise. I have also taken account of the risks associated with rural industries and the fact that on some occasions Mr Caldwell has acted in a hot-headed way. In all these circumstances I am satisfied that the figure of $600 is proper, and that a future working life of twenty-eight years, that is to sixty years, is reasonable. That makes adequate allowance for the contingencies associated with rural -- 7 of 9 -- ) 5 industries as well as the so-called usual ones. What part of this capacity remains? Mr Mellick referred November last year, There are significant me to a case I heard in Mackay in Robertson v. Plane Creek Central Mill. differences between Mr Robertson's prospects and those of Mr Caldwell. injuries and his work Most significantly here Mr Caldwell has tried to obtain work for seven years and has been seen by two occupational therapists. No identifiable source of income which is within his capacity has been found. All that can be said is that with Mr Caldwell's determination, something will turn up. I assess his residual capacity at one quarter of his pre-accident capacity. I assess future economic loss at $358,650. The remaining issue is the value of services which will be needed by Mr Caldwell in the future. Under this heading, Mr Ford claims an amount of $20 per week for expenses made necessary because Mr Caldwell can no longer do maintenance work on his motor vehicles. It seems to me that once it is appreciated that the stump length of Mr Caldwell's left arm is some two finger breadths only from the axilla (arm pit) and that the axilla is covered with a skin graft that extends on the stump and tends to tether the stump to the chest wall (exhibit 9) , it becomes very obvious that Mr Caldwell will need assistance with many daily activities for the rest of his life. On the other hand, he will learn to adapt to his disability, as he has done with his eating techniques. So far Mr Caldwell has had a de facto wife who has enjoyed the life style he enjoys. He and his wife at the time of the accident have separated, but his present wife seems just as keen on the outdoor life as his first wife was. For example, she goes fishing with him and baits the hook, and so on. It is obvious enough that a one armed fisherman needs considerable assistance. Mr Ford claimed three hours a day, and Mr Mellick suggested three hours a week. Doing the best I can with an impossible task I assess 1 hour per day. $8.00 per hour was -- 8 of 9 -- 6 agreed as an appropriate figure. With the amount of $20 for work on the motor vehicles, this represents a weekly cost of $76. Forty-two years is Mr Caldwell' s life expectation. I shall allow $71,000. In summary, including agreed amounts, the award is:- Pain, suffering and loss of amenities $ 75,000.00 Pre-trial economic loss including interest Future economic loss Past Griffiths v. Kerkemeyer damages including interest Future Griffiths v. Kerkemeyer damages Special damages including interest Fox v. Wood component Future/recurring expenses After apportionment Less refund to Board $192,319.45 $358,650.00 $ 11,400.00 $ 71,000.00 $ 4,889.83 $ 538. 1 0 $ 5LOOO.OO $718,797.38 $610,977.77 $ 39,497.86 $571,479.91 There will be judgment for the plaintiff against the defendants for $571,479.91 together with costs to be taxed. -- 9 of 9 --