Draper v O'Phee Manufacturing Pty Ltd [1993] QSC 145

State Reporting Buieau -------------------·-·----- --- -----·- ·•••------------------------•~----w-.--------~~-----=-------------------m-•1--.---~*~ TRANSCRIPT fJ:F PROCEEDINGS (Copyright in this transcript is vested in the C:e.·own.. Copies thereof must not be made or sold without the written a\lthority of the Director~ Sttate Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION ( WHITE J No 22 of 1989 LAWRENCE HENRY GEORGE DRAPER Plaintiff and O'.PHEE MANUFACTURING P'l'Y LTD Defendant ( BRISBANE .. DATE 21/05/93 JUDGMENT 1 4th Floor, The Law Courts, GeorJre Street, Brisbane, o. 4000 Telenhmrr.: mn 2.214.'~6/J. Fnrcii-HilP! (111) ??7 l;t;~? -- 1 of 23 -- 210593 clc (White J) HER HONOUR: In this action there will be judgment for the plaintiff in the sum of $21,526~34. I give liberty to apply as to the arithmetical calculations set out in these reasons. I publish my reasons. HER HONOUR: The order which I will make in relation to the costs, doing the best I can and bearing in mind that the report of Dr Hepple to the plaintiff's solicitors is dated 10 January 1991, and allowing for a few weeks to consider that matter is as follows: that the defendant is to pay the plaintiff's costs of and incidental to the action to be taxed on the Supreme Court scale to 31 January 1991 and thereafter on the appropriate District Court scale. JUDGMENT 2 1 l 10 20 30 40 50 60 -- 2 of 23 -- ( ) (_) { ) "---- IN THE SUPREME COURT OF QUEENSLAND No. 22 of 1989 Toowoomba Before Justice White [Draper & Ors.] BETWEEN: LAWRENCE HENRY GEORGE DRAPER Plaintiff - and - O'PHEE MANUFACTURING PTY. LTD. Defendant REASONS FOR JUDGMENT - WHITE J. Judgment delivered 21/05/93. CATCHWORDS: Counsel: Solicitors: Hearing Dates: Employer/employee lifting existing degenerative spine - quantum of loss Mr. K. Geraghty for the plaintiff Mr. B. Hoare for the defendant Shine Murdock, Solicitors for the plaintiff Wanderley and Hall, Solicitors for the defendant 10th and 11th May, 1993 I -- 3 of 23 -- 0 (! / )l l) IN THE SUPREME COURT OF QUEENSLAND No. 22 of 1989 Before Justice White [Draper & Ors.] BETWEEN: LAWRENCE HENRY GEORGE DRAPER Plaintiff AND: O'PHEE MANUFACTURING PTY. LTD. Defendant REASONS FOR JUDGMENT- WHITE J. Delivered the 21st day of May, 1993 The plaintiff is a 38 year old married man who allegedly sustained an injury to his back whilst loading his tool box into the boot of his car after work on 31st March, 1988. He has undergone a number of operative procedures on his back and has not been in remunerative employment since August 1988. Both liability and quantum are in issue. For completeness I should mention that the plaintiff claimed damages in the statement of claim from the defendant for injuries sustained by him when he fell from a 44 gallon drum whilst servicing one of the defendant's machines in December 1987. He apparently sustained, at the least~ a fractured right wrist. That part of this action has been compromised without reference to the Court. It is the defendant's contention that there was no breach -- 4 of 23 -- 2 of the duty which it owed as employer to the plaintiff on the afternoo? of .31st March, 1988 when he placed his tool box into the boot of his car. If there is a finding of negligence then the defendant submits . that the plaintiff was contributorily negligent in some significant degree due his knowledge of the weight of his. own tool box. The defendant accepts that the plaintiff is severely disabled by his back pain and does not contend that he has any residual capacity to be remuneratively employed. There is uncontroverted medical evidence that the plaintiff· had a degenerative ~isease in his back on the 31st March, 1988 of a quite serious kind. The_medical evidence varied as to when in the future it was likely that the plaintiff would have been, in .any .event, disabled by that condition. Dr. Hepple, the plaintiff's treating orthopaedic surgeon estimated within months; Dr~ Phillips, a general practitioner specialising in muscular and skeletal medicine estimated within two years; and Dr. Maguire, orthopaedic surgeon, considered that if the plaintiff was faced with a similar_stress at any time in the future the result would be the_ same as he suffered in March to May 1988. It is_ necessary to consider briefly the. plaintiff's employment history. He left school at 14 years, having completed Grade 8. He worked in a variety of labouring occupations until he joined Queensland Railways in. 1972 as a cleaner. After several years, he left the Railways and worked in the meat industry in a labouring capacity for five years before joining the 'E>resent defendant for .three years. After a few months as a crane driver with a different employ~r, he again returned to 0 0 0 -- 5 of 23 -- 3 Queensland Railways in 1982. In the course of his time with Queensland Railways he qualified for a number of positions but when he left in November 1987 he was mainly employed as a porter/car driv~r at Gladstone where he had been for five years. Family illnesses caused him to return to the Toowoomba region on 1 2 months' leave of absence from Queensland Railways. He obtained a position as a welder with the defendant again. Near to the Christmas break in 1987, the plaintiff was offered a () position with the defendant to service the machinery on the defendant's premises to be carried out over the holiday period. ( (J (_) The plaintiff continued after this period to work as a welder but also worked as a general repairer throughout the defendant's work premises when required. When he commenced work as a welder he was supplied with goggles, a helmet and gloves, but realized that he needed other tools, particularly to service and repair the machinery and he brought his own tools to work to do so. These tools were kept in a tool box, a photo of which can be seen in ex. 25. It was the·policy of the defendant to require its employees· to provide their own tools, such as hammers and spanners. Many of the machines which the plaintiff serviced and repaired were supplied with their own sets of tools. The employees kept their tools in tool boxes which they left at the defendant's premises overnight but which some took home at weekends and generally all took home when starting holidays. There was no storeroom provided for the employees to secure-their tool boxes but the premises were locked and patrolled at night and at weekends. The plaintiff took his tool box home on occasional weekends and for longer holiday -- 6 of 23 -- 4 periods. He was concerned for its security, but I find that the predominant purpose was to use his.tools at home and in doing jobs fo~_family and· friends. He was a very capable handyman. I should add that on the view which I take of this matter it makes no difference whab the reason was for taking the tools away from the defendant's premises ... When the plaintiff was called to fix a machine at work, he would generally investigate the problem, decide what he needed and then get either specific tools or carry his tool box to the Q machine. The tool box was heavy weighing about 31.5 kilograms. It was ·known to Mr,. Whittaker, the plaintiff's foreman at the time to be heavy. Indeed on an earlier occasion Mr. Whittaker had given the.plaintiff a lift home in his van and had helped him to .put the tool box in the back of the van and to take it out when he reached his home. The plaintiff on occasions asked a fellow-employee to help him carry the tool box. Mr. Whittaker and Mr. Gordon, another foreman, said that if an employee needed help to carry a tool box he had only to ask and it would be giyen. The plaintiff cited no refusal to assist him carry his tool bo~ if he asked whilst he was employed by the defendant. On the other hand, I understand the plaintiff's evidence to be that he would not seek assistance if there was no one apparently free to help. There was no instruction given by the defendant that help should be sought to carry heavy tool boxes on the premises. There was no evidence that the defendant gave any safety instructions or had any practices in place with respect to lifting heavy weights. ·Trolleys were generally around the workshop and a forklift was in use, although it was plain that 0 0 0 -- 7 of 23 -- 5 no employee would have contemplated using a forklift to move a tool box. Mr. Gordon's response to questioning about lifting heavy weights was that it was "commonsense" that an employee could get someone to help him with a heavy tool box. The plaintiff had had his tool box for many years. He had it in Gladstone and moved it around in his car when doing jobs for friends, which seemed to have occurred fairly regularly. Sometimes he got his wife to help him to lift it, although she (~) said that she suffered from indifferent health in Gladstone. ( I turn then to consider the plaintiff's state of health immediately prior to hurting his back on 31st March, 1988. In 1975 the plaintiff sustained a fractured right fe~ur for which he remained in hospital for nine weeks. He was left with his right leg approximately three-quarters of an inch shorter than his left which resulted in a mild limp. There are records of three previously reported work-related (~) incidents in which the plaintiff sustained back injury. He is able to. recall only the most recent of those occurrences. In 1980 when employed by the present defendant, the Workers' Compensation Form 4 (ex. 27) signed by the plaintiff reveal~ that the plaintiff was lowering a sheet of steel when he felt a sharp pain in his lower back. He was, according to the form, away from work from 21st July, 1980 until 4th August, 1980. In August 1983 in the course of employment with Queensland Railways as a porter the plaintiff lifted a box and injured his lower back. There is no indication of the period of time off work on the form signed by the plaintiff. -- 8 of 23 -- 6 The plaintiff after .seeing the Workers' Compensation records was able to recall the third ipcident which occurred on 20th Jul,y, 1987. He li.fted a box _which was too heavy for him and said th9-t he strained a back muscle but in a different place from the subject area. It was above the. trouser belt line. He was off work for eight days and was treated with l:>ed rest. He recalled being pain free by the time he returned to work. On the afternoon of 31st March, 1986, which was the day before Good Friday the plaintiff had telephoned his wife to collect him- from work and in the meanwhile assisted Eric Gordon to lock,up the pre,mises. There were other employees still about at the works bar having a social drink but they were not near to the plaintiff. Rain was falling heavily and Mrs. Draper, at the plaintiff's request~ backed their car up to the door, opened the boot and stepped inside the .building to keep dry while waiting for him. ,The tool box was inside the door. The plaintiff picked it up and leaned forward to put it on the floor of the boot of the car .. Just as he was about to let go of the tool box he felt a dull ache in his lower back. Mrs. Draper heard a dull moan come from the plaintiff as this happened. The plaintiff mentioned this to his wife. I should say that I accept the plaintiff and his wife as honest witnesses. Photographs (exs. 23, 22, and 21 ) demonstrate how the plaintiff undertook the manoeuvre (the tool box is empty in the photographs). Photographs ex. 24 and 25 depict the tool box which can been seen to have handles on each end. Mrs. Draper drove home. The pain remained and the plaintiff's evidence, which I _accept, is that he has never been 0 0 0 0 -- 9 of 23 -- () ( \ ,_) ( 7 free of it since then. He spent Friday resting and on Saturday, whilst walking in the garden, coughed, which cough brought on a stronger pain in his lower back like a muscle spasm. That experience left the plaintiff bent over. He spent most of the Easter holiday resting and on Tuesday consulted with his general practitioner, Dr. Porter. He treated the plaintiff with physiotherapy and one week off work and, although he still had back pain at the expiration of that time, the plaintiff said that he could work. He carried · out his normal duties but felt restricted because of the pain. On Saturday, 7th May, '1988 he commenced work at about 7. 00 a.m. doing some welding in a squatting position. After about 15 minutes he experienced strong pain in his lower back to such an extent that he fell backwards and could not get up without assistance. He went home to bed rest and the following morning whilst seated on the toilet, to use the_plaintiff's words, his "back seemed to explode" and he experienced serious, disabling pain in his back and left leg. He was taken to Pittsworth Hospital -and was unable to be removed from the vehicle until injected with pain relieving drugs: The following day, he was taken to Toowoomba and examined by Dr. Hepple, orthopaedic specialist who performed a lumbar laminectomy on 11th May, 1988. Dr. Hepple removed a very large fragment of lumbo-sacral disc which was found pressing on a nerve root. The plaintiff felt considerable improvement after this operation and although he still had back pain he could walk with care. This relief was not long lasting and his pain became so disabling that Dr. Hepple performed a further laminectomy on 14th June, 1988. The plaintiff was able to perform light duties at -- 10 of 23 -- 8 wo:r:-k,. butone morning, in early August, he was unable to get out of bed .due to his back condition. . A further laminectomy was performed on 16th August, 1988 and, as previously, a period of improvement followed. The plaintiff was able to do some light bench work in a repair business under the auspices of a Workers' Compensation Board rehabilitation program from March to July 1989 but on~some days he was so troubled by back pain that he could not attend work. Dr. .Hepple referred the plaintiff to Dr. Alastair Robson, an orthopaedic surgeon in Canberra specialising in difficult back cases. Dr. Robson operated on the plaintiff on 8th- January, 1991 using fixation plates. The initial result was quite satisfactory for both his leg and back pain. _The· plaintiff now has relief from his severe sciatic left leg pain-but has continuous loweF back pain. From time to time when the pain is too severe the plaintiff's general practitioner administers a pethidine injection. Prior to Ma.rch 1988 the plaintiff enjoyed involvement in the Army Reserve, bush walking, fishing and a variety of handyman activities for himself, his family and friends. Since then he has ano is able to restore slowly an old Austin A 30 motorcar, doing it up assisted -by. his family, and he engages in restoring old furniture. -He is very slow at this work. He_is unable to fish or walk but has developed a worm patch at home, no doubt against the day when he may be able to fish again. He enjoys taking photos and has some idea of doing something more with it in the future. He is now unable to engaged in home maintenance and is restricted in servicing the family car. 0 0 -- 11 of 23 -- 9 The plaintiff has had in the past and presently gets severe cramps in his legs quite regularly which his wife relieves by massage. He has been deeply depressed by his continuous pain. He also suffers from insomnia and irritability and loss of libido. Some of these symptoms, particularly the depression and insomnia have been relieved by the use of drugs. Dr. Fabian Bryant, psychiatrist, has recommended that a cours& of psychotherapy would assist him with his morbid pre-occupations () and restricted inter-personal relationships.'~ --/ In order to resolve the issue of liability in favour of the () plaintiff it is necessary to identify a breach of duty by the defendant. Mr. Geraghty for the plaintiff submitted that the defendant had an obligation to provide its employees,with all the tools that would be needed to carry out the task in hand and to forbid employees from taking such tools away from the premises. Such a particular of negligence is not pleaded but might () conceivably come within the general plea of failure to provide a safe system of work. However I am not persuaded that the law (_) would impose such an obligation on an employer as a means of discharging its obligation to provide a safe system of work for its employee on the facts of this case. In any event, it was not suggested that had the employer provided the tools they would not have been carried about by the plaintiff from job to job on the premises in a tool box and would constitute a heavy weight. It was the bending forward motion, holding the heavy load, which more probably than not caused the pain which was symptomatic of an underlying injury. -- 12 of 23 -- 10 The focus must then be upon the failure of the employer to give any instructions about lifting heavy weights, .. including tool boxes which were brought onto the premises by most employees. Mr. Whittaker and Mr. Gordon who were .both called by the defence agreed that there were . no instructions of any kind given to employees about safe lifting practices at the defendant's works. Mr. Whittaker's attitude was that it was commonsense that if an employee wanted to lift something heavy he would get assistance by way of a trolley or a fellow-employee. The dangers associated with lifting in the work-place are well recognized and are re-enforced by cl. 25 of the Factories and Shops Act.1960. The defendant, through Mr. Whittaker knew of the plaintiff's heavier than usual tool box, indeed he estimated it at 50 kilograms. He had helped the plaintiff to carry the tool box on at least one remembered occasion. The number and variety of tools were required by the plaintiff's need to service and maintain a great variety of machines and equipment at the defendant's premises in addition to his usual job as a welder. It does not seem to me to be to the point to submit, as Mr. Hoare did for the defendant, that it was entirely fortuitous that injury occurred when leaving work rather than during a weekend at home doing domestic tasks. That is a matter to be considered with respect to the quantum of the plaintiff's damages. The fact was that the injury was sustained at work and the work system did not by instruction or some form of back safety awareness re-enforce to employees the need to seek assistance of either a manual or mechanical kind in lifting and lowering heavy weights. 0 0 c -- 13 of 23 -- 11 Mr. Geraghty submitted that the plaintiff ought to have been required by the defendant to keep his tools in two tool boxes at work to reduce the weight. There was no evidence that the· plaintiff would have considered this course had he been required to do so. The impression was gained that the plaintiff was a conservative man about his tools and that one tool box was· regarded as the appropriate and convenient way to store them. As Gibbs CJ observed in Castro v. Transfield (Old.) Pty. Ltd. (J (1983) 57 A.L.J.R. 619 at p. 620:- "The question, which is to be answered in the light of· all the circumstances of the case, is whether the ') respondent unreasonably failed to take rrieasur·es, · or (~ adopt means, reasonably open to him which would have protected the appellant from the dangers of th~ task without unduly impeding its accomplishment." The well known facts in that case bear some similarity to the present. What is of significance in that case is that the leading hand' s - response: to get assistance from a fellow (_) employee to lift a heavy weight (in that case an oxygen bottle) was commonsense and required no instruction. The Court held that the employer was in breach of its duty to the employee not to ( ) give that instruction. Having concluded that there was an obligation upon the defendant to instruct and warn about the dangers associated with lifting heavy weights the question must be asked whether it was likely that had such a system of instruction and warning been in place that the plaintiff would have sought assistance on this occasion, see Turner v. State of South Australia ( 1982) 56 A.L.J.R. 839 per Gibbs C.J. at p. 840. After some hesitation I have concluded that the plaintiff would. The plaintiff was clearly loath to disturb his fellow employees who were relaxing -- 14 of 23 -- 12 at the work's bar but he may.well have sought out or waited for Mr. Gordon. He . might .also have asked his . wife, who had occasionally helped lift the tool box in the past and who was standing next to him. It is the re-enforcing of the dangers inherent in. lifting heavy weights by instruction and education which would, in my view, have likely caused the plaintiff to seek help on this occasion. Conversely, failure to so instruct and warn had the effect that he did not bother to seek help on this occasion when it was a.little inconvenient or difficult. Breach Qj of clause 25 of the Factory and Shops Act 1960 is made out, about which there were virtually no submissions made, see ex.32. I then turn to the_question of contributory negligence .. As was observed in Bankstown Foundry Pty. Ltd. v. Braistina (1986) 160 C.L.R. 301, at p.310-11:-. "A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in th~.circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage: see Podrebersek v. Australian Iron & Steel Pty. Ltd. (1935) 59 A.L.J.R. 492, at pp. 493-494; 59 A.L.R. 529, at p.532. In Podrebersek (1985) 59 A.L.J.R., at p. 494; 59 A.L.R., at pp.532-533, the Court said: 'The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris (1956) 96 C.L.R. 10, at p.16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] 0 -- 15 of 23 -- 13 A.C. 663, at ~.682; Smith v. Mcintyre [1958] Tas. S. R. 36, pp. 42-49 and Broadhurst v. Millman [1976] V.R. 208, at p.219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.'" It is clear that the plaintiff must bear some responsibility for his own injury. He was well aware of the heaviness of his tool box, he had had assistance in lifting it in the past and people (including his wife) were available to assist on this c) occasion. There was no anticipation based upon previous () experience that a request would be refused, although I'do.accept that social constraints might have operated upon the plaintiff on this occasion· such that he would ncit call a fellow-employee away from the bar. Further, the plaintiff had sustained a number of injuries to his back in the past - the most recent about eight months previously when he had had more than a week off work which ought to have alerted him to care for his own safety. I conclude (_) that the plaintiff ought to-bear a 20 per cent responsibility for the injury which he sustained. () The evidence of Dr. W.D. Maguire was to the effect that the degenerative condition seen in the x-rays . shortly after the injury, had been developing over the past seven or eight years and that it was impossible to have achieved this condition from the time of lifting the tool box on 31st March, 1988. His view was that the plaintiff's back had reached an unstable state by 31st March, 1988 and that each succeeding event - the cough, squatting to work, and sitting on the toilet caused further disc protrusion. He concluded that if the plaintiff's back had been -- 16 of 23 -- 14 exposed to a similar stress as that which occurred on 31st March, 1988 then the ~ame resu~t could have occurred at any time.- Dr. Hepple was of a similar view. He noted a degenerative lumbar spine when he operated on .11th May, 1988. His opinion was that even without the. tool, box incident the plaintiff may have come to surgery on that.day, but if not then it would have occurred,.shortly thereafter within about three or four months. Dr. Hepple.considered that the tool box incident was probably not the triggering injury but that early back strains in 1980 and 1983 ,indicated that there was something wrong with the plaintiff's lumbar spine. Dr. Jeffrey Phillips also gave evidence. He practices in the field of muscular skeletal medicine .. He examined the plaintiff on referral from Dr. Porter, the plaintiff's gener~l practitioner on 9th May, 1988 when he was in acute pain. He was also of the view that the degenerative changes on the CAT scan were unlikely to have taken place over the past six wee~s f~om the tool box incident. He considered that. at :least within two years the disc herniation would have occurred. He admitted that heavy manual work was bound to increase .the risk but also added that a cough, a sneeze or an inadvertent stepping off the kerb of a footpath could cause the disc to herniate. Dr. T. Blue and Dr. B._Meibusch, orthopaedic surgeons, both provided reports but did not give oral evidence. Their reports do not further assist the matter. . It was submitted that the plaintiff might, on the evidence, have completed his period of work with the defendant and returned to lighter portering duties with Queensland Railways and thus 0 0 G -- 17 of 23 -- 15 have avoided exposure to risk of back injury associated with the heavier physical work in which he was engaged with the defendant. I accept that the plaintiff more likely than not would have sought to return to Queensland Railways. This submission, however, overlooks the fact that the plaintiff was daily exposed to heavy physical work with the defendant until some period in the future when he might have returned to" Queensland Railways and that even had he safely returned to work with Queensland Railways (~) his evidence was that he used his tool box regularly whilst in Gladstone for domestic purposes prior to coming to work for the () defendant. The range of time which the specialists suggest can only be informed speculation as they readily concede but I find of considerable assistance the evid~nce of Dr. Hepple since he·had first hand knowledge of the state ·of the plaintiff's spine. Bearing that evidence in mind and considering the kind of work l~ the plaintiff was engaged in and his domestic activities which had a strong physical component and also allowing that the ~ plaintiff might have returned to the lighter woik at Queensland \) Railways I conclude that more probably than not the plaintiff would have been brought to much the same condition with his lower · back within two years of 31st March, 1988. The defendant submits that it.oug~t not to be liable for the cost of all of the plaint"iff' s operative procedures, particularly that of Dr. Robson in Canberra as it occurred in 1991 well after the plaintiff would likely alr~ady have experienced the need for a laminectomy. A difficulty with this submission· is that because of the wrongful act of the defendant the plaintiff has lost the -- 18 of 23 -- 16 chance of having one successful spinal operation had it occurred on another occasion. It was not suggested that so_many operative procedures are usual for the spinal condition from which the plaintiff.suffers. The operation performed by Dr. Robson was as a direct consequence of the particular injury. Further it is likely that had the need for an operation occurred in the future in a non-compensible situation the plaintiff would have utilized the public hospital. system ~n view of his financial situation. Accordingly, I allow the costs associated with Dr. Robson's surgery. The damages under each heao are as follows:- Pain and su~fering and loss of the amenities of life The plaintiff suffered severe disabling pain particularly after 8th May, 1985. Prior to that he suffered quite debilitating pain from 31st March, 1988. After each operative procedure he experienced severe pain. Even though I have concluded,that the plaintiff would have been brought to a back operation within two years as mentioned above, the chain of operative procedures which he ac~ually had to endure was prompted by the injury for which I have found the defendant liable. Accordingly, the. pain associated with those operative procedures is compensable. The plainti~f i~ to be compensated for his loss of amenities of life for a two year period. As must be readily conceded it is quite impossible to make anything like a precise estimate particularly when limited to a particular period. I assess the plaintiff's general damages at $20,000 which will attract. interest at- 2 per cent per annum to date. ', 0 0 c -- 19 of 23 -- ,· (\ _) 17 Past loss of wages The plaintiff's past loss of wages has been calculated by reference to his employment as a welder from 4th April, 1988 to 31st December, 1988 at the appropriate rate (ex. 36) which amount to $11,430.60 which I allow. Beyond that the claim is predicated upon the expectation that the plaintiff would have returned to work ·with Queensland Railways. I accept that and will assume that he would have worked as a porter as he had done before for the period under consideration. I will adopt a period from 1st January, 1989 to 1st April, 1990 at the rate set out in ex.40. That amounts to $20,765. This produces a total loss of earnings of $j2j196. Past Griffith v. Kerkemeyer claim The plaintiff required the assistance of his wife to change the dressings after each operative procedure and to assist him in showering and dressing. She gave him constant assistance in (_) massaging the cramps in his legs. · I do not accept that bringing cups of teas and meals to the plaintiff from the Easter holiday until he returned to work as compensable. It is something·which is done in the ordinary management of family life when a ·member is indisposed. Mrs. Draper accompanied the plaintiff to Canberra for the consultation and operation by Dr. Robson. The family took the opportunity to have a hOliday and broke their journey at Newcastle in order to stay with relations. They could not afford to stay at a motel which a more direct route would have necessitated. I 'find that the journey to Newcastle/Canberra would not have been taken but for the need to go to see Dr. Robson. It was not in my view unreasonable for Mrs. Draper to -- 20 of 23 -- 18 accompany her husband to Canberra given the long drive and his condition. The defendant did not seek to adduce evidence as to the cost of airfares from Toowoomba or Brisbane to Canberra. It may well have been less-expensive than $2,508 for travel by car and $448 for Mrs. Draper -to accompany him (64 hours at $7.00 per hour) but in _view of no other evidence I shall allow the hours claimed. As to other travelling expenses to treatment, since Mrs. Draper's evidence was that her husband invariably did the driving it does not seem reasonabl_e that the defendant should be liable to pay for each trip where she accompanied him. Bringing him home after ,each operation I would regard as reasonable as was delivering him to the hospital. I will allow $250 to cover these journeys., I will allow for some.~owing assistance_in the past although th~ plaintiff has two sons and they may have, in any event, assisted, particularly the elder son. I will allow $300 for this. No claim has been made for loss of home ma{ntenance done_. by the plaintiff. I do not allow any amount for the restoration of the Austin A 30 motor vehicle. There is no evi_dence as to when this commenced and the assistance might well come within normal family arra~gements. The total amount allowed under this bead for assistance rendered by Mrs. Draper to the plaintiff based upon the schedule prepared by Mr. Geraghty is $6;000. This is considerably less than the $13,300 claimed. I accept the periods claimed for past operative care. Daily visits to the hospital are not recognizably within the _ Griffi th v. Kerkemeyer principle unless demonstrated to be for the medical benefit of the plaintiff. The amount claimed for massage is not ', () 0 0 c -- 21 of 23 -- ,, ' .',. 19 consistent with Mrs. Draper's evidence. The period is limited to two years plus the assistance associated with the operations past that time, but bearing in mind that Mrs. Draper would have assisted her husband in relation to an operation which he-would have had in any event within two years. Doing the best I can I have arrived at the figures which are set out above which will attract interest. Special damages c./ The Workers' Compensation expenses for hospital are $190.99, medical expenses are $3,813.25 and other expenses are $486.13 and ( ) are not disputed by the defendant. The travelling expenses are as set out in the schedule (ex. 36) I allow iri the amount of $3,757.60. I also allow the amounts for the hospital in Canberra in the sum of $4,031.88, Dr. Kwan in the amount of $498 and Dr. Robson in the sum of $2,309. It is not clear to me.the period over which the pharmaceutical expenses are claimed but no (_) challenge was raised to this amount and I will allow it in the s urn of $1 21 . 3 5 . I will further allow an amount of $100 for dressing and ointment. An amount of $425 is claimed for accommodation which has not been further described by way of oral evidence. It is assumed· that it relates to accommodation in Canberra whilst seeing Dr. Robson. In all the circumstances I am not prepared to disallow this as an unreasonable expense. Accordingly special damages will be allowed in the sum of $15,733.20. Future Treatment The plaintiff indicated that if compensated he would seek professional therapy for his psychiatric problems which I have -- 22 of 23 -- . ' 20 described above. It is possible that he would have been depressed in some measure by incapacity resulting from the natural progression of his back disease, but in view of the many very painful operative procedures resulting from the initial injury I am prepared to conclude that the plaintiff's mental condition is properly attributable to that circumstance. I will allow the amount claimed in the sum of $1,392. In conclusion the plaintiff's damages are as follows:- Pain, suffering and loss of amenities $20,000.00 Interest at 2% per annum for 5 years $2,000.00 Past loss of wages $32,196.00 No interest Griffith v. Kerkemeyer $6,000.00 Interest at 6% for 5 years $1,800.00 Special damages $15,733.20 ·Future medical $1,392.00 Fox v. Wood $2,982.13 ~82,103.33 From that must be deducted payments made by the Workers' Compensation Board of $44, 156. 32, which leaves an amount of $37,947.01. After apportionment of 20 per cent that gives an amount of $30,357.61 There will be judgment for the plaintiff in the sum of $30,357.61. Liberty to apply as to the arithmetical calculations set out in these reasons. .. ' ' .4' -·'\ 1 u 0 0 C. -- 23 of 23 --