Carr v Ayr Boring Co Pty Ltd [1993] QSC 228

~ s:c. "13/c:>?oz? State Reporting Bu1=eau TRANSCRIPT o:F PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereofmu~o.t..he.made..o:t:..sol-d---~--"l without the written authority of the Director, State Reporting Bur~e,att.) r-.,:_·.: .. .":.~. · .. :: :-_ ~-:~ _··<· .. -~.:::~~ ! I I ,_ . __ :,. --: ~:.: ... ; --··--··''' : ~ f ' • • c.- . I .. .-' . . . ··· · . . .. I ; Date -Jr) I 1- I .c~ -4 i /('! ~-- --"""--- / : SUPREME COURT OF QUEENSLAND I I L- .\..__.-/ )/ CIVIL JURISDICTION CULLINANE J No v-730 of 1991 DOUGLAS JOHN CARR Plaintiff and AYR BORING CO PTY LTD Defendant () TOWNSVILLE .. DATE 20/01/93 u ORDER .. 1 -- 1 of 9 -- HIS HONOUR: There will be-judgment for the plaintiff agfr±nst th~ defendant iri the sum bf $174,498.69 with costs to be tax~d. I publish my reasons. 2 10 20 30 40 50 60 ( \ ( ( - _j -- 2 of 9 -- ~i.·i L~ ,·t_ COURT 0;- CUEnJSL.LND IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE W. No. 30 of 1991 20.JUL 19S'3 BETWEEN: DOUGLAS JOHN CARR FILED TOWNSV!LLt Plai.ntiff sec:c~;~.;:1,~ .AND: AYR BORING CO. PTY. LTD . Defendant REASONS FOR JUDGMENT- CULLINANE J. DELIVERED THE TWENTIETH DAY OF JULY, 1993. The Plaintiff was born· on the First day of September, 1965 and <=) was injured on the 23rd October, 1989 in the course of his () 0 employment with the Defendant. His cause of action is admitted. The Plaintiff's injuries were sustained when the.boom of a drilling rig came into contact with electric power transmission lines resulting in the Pla~ntiff wh~ was holding a cable sustaining electrical burns. The· entry·wound was ·i. through his hands and chest and the exit wound through his right foot. He sustained burns to the anterior chest wall and to the right hand and to the right great, second and third toes. The distil half of the big toe and the second toe was excised. A skin graft was tak~n from the left forearm and applied to the sole of the foot. There was also grafting of the index finger of the right hand. His treatment and convalescence are set out in reports from -- 3 of 9 -- 2 the Townsville Hospital and the Royal Brisbane Hospital. So far as his hand and chest are concerned he no longer has any significant problems in these areas. He did have a somewhat difficult and painful recuperation with a number of surgical procedures and infection in the foot. He describes his various problems in the statement which is C) Exhibit 1 4. 0 A substantial number of medical reports have been tendered in evidence. According to reports of Orthopaedic Surgeons such as Dr. Douglas (exhibit 7) and Dr. Walters (Exhibit 8) he has a serious disability of the right foot. He is unable to sustain 1 :) weight bearing on this for any prolonged period and has an \_/ impairment of his balance. He is only a young man and his sporting and recreational activities have been substantially curtailed. He suffers pain after being on his foot for any length of time and I am satisfied that he has had a significant impairment of his capacity to engage in a wide range of activities and of the amenities of life generally. I assess general damages in the sum of $50,000. So far as interest is concerned, I attribute some $25,000 to the past. He has received some $10,000 by way of a lump sum -- 4 of 9 -- .., ..J payment from the Workers' Compensation Board for his disability. I allow interest on $15,000 at 2% for three years and nine months. This produces a sum of $1,125. At the time the Plaintiff sustained his injuries he had been employed by the Defendant for some months as a Driller's ( -" ~ ) Assistant. I have before me details of the income he was earning and what he might have earned had he remained in such employment or if he had graduated to the position of Driller. He expressed before me the opinion that he would have liked to continue in that field. He had moved to the Burdekin area over a year prior to his accident and whilst there met and married his wife. She is ,~~\ the daughter of a cane farmer and he has relatives in the u area. He had in the past moved from job to job. He left school at a relatively early age and I am satisfied that he is quite unsuitable for clerical work. The evidence suggests that he has trouble reading. He was always going to find whatever employment he found in physical, relatively unskilled types of work. His history had been of moving from job to job with periods of unemployment between. However I arr satisfied that he had reached the stage of life where it was likely that he would have settled down and that he would have been seeking permanent employment and my impression is that he had reasonable prospects of obtaining this and remaining in full- -- 5 of 9 -- 4 time employment. He has worked since the accident and the details of this were set out in Exhibit 18. However I am satisfied that he has been in employment for periods in addition to those set out in that Exhibit and indeed he said so himself as did Mr. Deambrosis, a brother-in-law of the Plaintiff who says that he employed him during other periods which do not appear on that document. It is not possible to determine with precision what the Plaintiff has earned since he returned to work. There was a suggestion that he had in fact returned to work somewhat earlier than appears in his statement but notwithstanding the submissions of the Defendant in this regard which were based on some rather vague evidence of the Plaintiff and Mr. Deambrosis, I am satisfied that he had not returned to work until some time around the middle of 1991. He received (_) periodic payments of compensation from the Board until March 1991 . The difficulty that I have is in establishing what his income since his return to work has been. He has been employed by a number of employers for varying periods. During some of these periods his income was quite substantial. It is essentially in relation to the periods during which he was employed by Mr. Deambrosis but which are not set out in Exhibit 18, that the difficulty arises. In relation to this it seems to me that it is appropriate that I should adopt a conservative rather than generous approach in my assessment of past economic loss. -- 6 of 9 -- 5 Exhibit 29 sets out the calculations of what the Plaintiff might have earned as a Driller's Assistant or alternatively, had he graduated during that period to the position of a Driller. Doing the best I can on the material before me, I allow in respect of past economic loss the sum of $37,500. In view of the amount which the Plaintiff has received by way of {'\ \___) substitution of income from the Department of Social Security and the Workers' Compensation Board, no interest should be 0 allowed on this sum. The Plaintiff since the accident has been able to perform a number of tasks involving the use of machinery on cane farms, in cane harvesting operations and in earthmoving operations involving the laser levelling of farms. He is described by his employers in these areas as a good employee and I am satisfied that he is capable of performing these tasks. I am however also satisfied that he suffers a good deal of pain and discomfort in the course of performing these operations. Before me the Plaintiff expressed the view that he was not capable of engaging in this type of work on a full-time basis. He says that he has performed his tasks with considerable difficulty and only for relatively short periods. It is in fact the case that the Plair.tiff has worked in t~ese fields for varying periods with his employment in each case being terminated because there was no further work req·:.1ired. He has operated such machinery for significant periods -- 7 of 9 -- 6 involving quite extended hours and as I have said the witnesses who gave evidence before me and who had employed him, spoke both of his proficiency and of his application. I am satisfied that the Plaintiff is able to engage in this work and is likely to do so in the future although in assessing damages, I take into account the fact that he will have considerable pain and discomfort and that there may be times when he will have to cease work and that this undoubtedly will make hin1 a much less attractive employee than others who are not disabled in the way he is. However it seems to me that the most substantial impact upon the Plaintiff's capacity to work is that he is unable to engage in a whole range of occupations of an unskilled nature which would require him to be on his feet for any significant l) length of time. I am satisfied on the orthopaedic evidence before me that this is not possible and indeed the Plaintiff's own experience which I accept in this regard is that he simply cannot carry out this work. This is also borne out by the evidence of Mr. Fabrellas, the Plaintiff's father-in-law. For a young unskilled man this is a significant disability in terms of his capacity to obtain and hold employment. It is on the one hand the Plaintiff's good fortune that he resides in an area where there should be a ready availability of work of the kind which the Plaintiff has demonstrated the ability to carry out and which I am satisfied he will in the future obtain work for significant periods in. On the other -- 8 of 9 -- 7 hand the Plaintiff is an unskilled man with limited education who would always have had to rely upon his physical capacities to provide an income in some unskilled or semi-skilled field. He is excluded from a whole range of these. My impression is that he will be employed for substantial periods of each year driving machinery but he will be precluded at other times from obtaining employment in other unskilled work because of his disabilities. I also take into account that even in the {~ occupations he is likely to find employment in he will be at a '-~ ~~ disadvantage and may lose E=plcyment because of the need to take time off or because he will be a less attractive employee (-') \~ than an able-bodied man because of the risk of this. I think the impairment of his earning capacity, whilst not as great as he alleges, is substantial. I adopt for the purposes of future economic loss a weekly sum of $150 which I allow for the next 25 years. The present value.of the sum thus produced by reference to the five percent tables is $111,654. Special damages including any interest component have been agreed upon in the sum of $9,402-09. The total of the Plaintiff's damages is therefore $209,681-09. From this must be deducted the amount of $~5,182-40. There will be judgment for the Plaintiff in the sum of- ' // /· I/' ' ~·-. ..._..:_ -- 9 of 9 --