Doogood v Water Resources Commission [1993] QSC 331

Sc..-93/3 3! 8~"'--·~ State Reporting Bureau -~. ----------------------------------------------------- TRANSCRIPT 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 ( CULLINANE J No 6 of 1991 TIMOTHY ANDREW DOOGOOD and WATER RESOURCES COMMISSION \ CAIRNS .. DATE 18/08/93 .. JUDGMENT '._~· Plaintiff Defendant 1 -- 1 of 9 -- 190893 D.1 T 1/FEW M/T CNS410/93- (Cullinane J) HIS HONOUR: In this matter will be judgment for the plaintiff against the defendant in the sum of $248,162.90 with costs to be taxed. I publish my reasons. --2 JUDGMENT 10 30 () 40 0 50 60 -- 2 of 9 -- ! l I l I ! I i ( 1 IN THE SUPREME COURT OF QUEENSLAND Writ No.6 of 1991 CAIRNS DISTRICT REGISTRY BETWEEN: TIMOTHY ANDREW DOOGOOD Plaintiff AND: WATER RESOURCES COMMISSION Defendant BEFORE THE HONOURABLE MR. JUSTICE CULLINANE JUDGMENT DELIVERED THE 18th DAY OF AUGUST 1993. In this matter the Plaintiff's cause of action is admitted. The Plaintiff was born on the 31st May, 1947 and sustained the injury, the subject of these proceedings, on ~he 17th May, 1989. He was at that time employed by the Defendant and had been employed for approximately 5 years prior to that. The work as he explained it to me ~hat he was doing at the time of the accident was undoubtedly heavy work. His work history is set out in exhibit 7. He has a history of back complaints which are also dealt with in this exhibit and in various medical reports. Some of his earlier back injuries had led to him being off work for significant periods of time. He apparently sustained an injury in 1980, another on the 24th May, 1985 which led to him being off work for some three months and a further injury the 3rd June 1987 when he had six weeks off work. In addition to that it appears that he had at least another incident or other incidents which caused him pain and discomfort in the back. -- 3 of 9 -- ( ' 2 All of the specialists who have provided reports are of the view the Plaintiff had a significant back condition at the time of this injury and I think there is little doubt that his future employment was limited. He could not have been likely to perform heavy work of the kind he was performing for more than a few more years as Dr. Watson who gave evidence before me said. Of those who have provided reports the most pessismistic as to the Plaintiff's likely future but for the accident is Dr. Morris. His view was that by the time of his report of the 16th March, 1993 the Plaintiff would have been suffering from symptoms which "may not have been greatly different than if the accident in May 1989 had not occurred." He thought that it was unlikely that the Plaintiff would be capable of undertaking any heavy work even if the accident had not occurred from that time onwards. He says that the Plaintiff was vulnerable to sustaining an injury of the kind which I am satisfied he sustained in the lumbar spine in any one of a number of ways. He suggests a number of activities which may have resulted in his sustaining an injury of the kind which he did. The Plaintiff has a congenital condition of the spine which apparently results in somewhat abnormal stresses being placed upon it. He has since the accident undergone an intertransverse fusion from the 4th lumbar to the 1st sacral vertebrae. It is obvious that he has severe disabling pain which greatly affects the quality of his life. When he gave evidence before -- 4 of 9 -- ~ I (' ~ ~ ! I 3 me he was in obvious pain and had to stand and sit alternately. I am satisfied that he is now completely unemployable and that he will never return to the workforce. In this regard I accept the opinions expressed by Dr. Watson and to the extent that Dr. Morris is of a different view I prefer Dr. Watson's opinion. The Plaintiff requires significant assistance from his wife in many activities. These are dealt with in exhibit 8 which is a statement by her. A number of heads of damage are affected by the assessment that I make of the Plaintiff's likely future but for the accident. I think that it is likely that the Plaintiff would have suffered continuing and increasing symptoms in his lower back and that there was some risk that he would have had a condition something like his present disabled condition precipitated either by heavy activities at work or in the course of day to day living. Nonetheless I proceed upon the basis that the likelihood is that he would have managed at a reasonable level so far as his day to day activities are concerned and that he would have managed with increasing pain to live a reasonable life with there being a necessity, as time went on, to curtail his activities more and more. I take into account the risks that I have already mentioned. I assess general damages at $45,000.00. I ascribe some $20,000.00 of this to past pain suffering and loss of amenities. -- 5 of 9 -- ( 4 The Plaintiff has received from the Workers Compensation Board a lump sum payment of $11,170.00. I allow interest on the difference between this sum and $20,000.00 for 4 years and 3 months at 2%. This produces a figure of $1,125.00. The Plaintiff claims past economic loss in the sum of $79,421.13. It is assumed that the Plaintiff would have remained in the employment he was then in without any time away from work. Whilst I think the figure provides a reasonable starting point there must be some discounting for the high risk that the Plaintiff would by this have had to cease such work and also for the risk that in that event he would have had difficulty in obtaining suitable light employment and also for the risk that he might have had time away from work even if remaining in employment. Doing the best I can and making some allowances for the superannuation factor I assess the Plaintiff's past economic loss at $60,000.00. The Plaintiff has received sums which can be regarded as having been received by way of income substitution in the sum of $43,448.10. I allow interest on the balance at 6% for the period since the accident. This produces a figure of $4,220.00. So far as future economic loss is concerned this of course requires an assessment of what the Plaintiff's likely future from this point would have been. I accept the submission on behalf of the Defendant that it is quite improbable that'he would have been able to continue in heavy work for much longer -- 6 of 9 -- ( ) . ( 5 although as I have indicated I think that what Dr. Watson has said in this regard is the preferable view of matters. I also accept that if he had had to cease this work, as would have been inevitable in my view, he would have had considerable difficulty in obtaining light work with the Defendant and the effect of the evidence is that this probably would not have been available. There has to be taken into account the Plaintiff's prospects of obtaining light work and remaining in it and I think that a reasonable allowance should be made for this. He outlines in his statement the fact that he had been offered work not long before his injury as a storeman at Red Dome Mines but because only 3 months employment was guaranteed he did not accept it. He was, I am satisfied, seeking light employment and had the opportunity presented itself would undoubtedly have taken it . The Plaintiff would have been in receipt of a net weekly income with the Defendant if he was still so employed of $366.50 . . Taking into account the ordinary contingencies and vicissitudes of life I would have allowed loss of income for some 12 years. The present value of a figure of $360.00 per week for 12 years is $169,431.00. I think that a significant discount has to be applied to this to make allowance for the various factors peculiar to the Plaintiff's condition that I have already referred to. I do not proceed upon the basis set out in Dr. Morris' report as I think the Plaintiff's working life was not as pessimistic as that. Nonetheless his future was attendant with very serious -- 7 of 9 -- 6 doubts. I apply an appropriate discount for these factors and assess the Plaintiff's future economic loss in the sum of $120,000.00. In reaching this figure I have made allowance for a superannuation component. There is a substantial claim for care and assistance provided by the Plaintiff's wife. There is no challenge to the evidence which was given by her. The details are embodied in exhibit 8. ( So far as the past is concerned there is a total claim of ' $17,238.00. Different considerations apply to an appropriate discount in the case of the claim for care and assistance than in the case for economic loss. Whilst the Plaintiff may have become increasingly disabled for work it is not likely that he ran the same risk of requiring the provision of care and assistance at all or at any rate at anything like the level he now does. Nonetheless there was at least a risk that he could have been in his current position as a result of the realisation of the risks referred to by Dr. Morris or in the course of employment or in day to day living. I allow in respect of the past claim the sum of $15,000.00. So far as the future is concerned I think an appropriate discount ought to be applied. The amount claimed is some $41,661.00 I allow the sum of $36,000.00 under this head. Special damages are agreed upon in the sum $11,494.25. There is a small interest component on this which I allow in the sum of $120.00. -- 8 of 9 -- 7 The total of the sums is $292,959.25. From this total has to be deducted the sum of $44,796.35, bringing the total monies paid by the Workers Compensation Board. I give Judgment for the Plaintiff against the Defendant in the sum of $248,162.90. with costs to be taxed. -- 9 of 9 --