Davis v Dabo Constructions Pty Ltd & Ors [1993] QSC 82

State Reporting Burearl~ 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 DEMACK J No 101 of 1989 ARTHUR HOEY DAVIS and DABO CONSTRUCTIONS PTY LTD and THE NOMINAL DEFENDANT (QUEENSLAND) and PETER STANLEY McFAUL and WORKERS' COMPENSATION BOARD OF QUEENSLAND ROCKHAMPTON .. DATE 18/03/93 .. JUDGMENT REVISED COPIES ISSUED State Reporting Sureay Date ;J;J.; 3 1 _q 3 ·~ --- ............. .. Plaintiff First Defendant Second Defendant Third Defendant The-Defendant by Election 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 ....... ~.·----..-.-~ .. - ... ·......................... . -- 1 of 10 -- 180393 (Demack J) . HIS HONOUR: Mr Davis was born on 9 December 1941. He was injured in the course of his employment with the first defendant on 2 November 1988. The circumstances of his accident are unusual. He was part of a road construction team constructing a new section of the Bruce Highway in the vicinity of Bajool. A detour road ran parallel to the road being constructed. Mr Davis was cleaning out a drain. He noticed that a front~end loader, which had been left unattended on the embankment above him, had started to move and run down a bank towards him. He moved to avoid the front-end loader but in so doing came into the pathway of a semi-trailer being driven along the detour. He was run over by that vehicle and sustained multiple injuries. The first defendant and the defendant by election have accepted responsibility for the plaintiff's injuries. He was taken to the Rockhampton Base Hospital. He was found to have multiple injuries. The medical reports were tendered by consent and Dr Johnson Nurse was the only medical practitioner to give evidence. The·x-rays he had taken in 1989 do not show exactly the injuries referred to in the earlier hospital reports. However, I assume that the various bony fractures that were detected by Dr Johnson Nurse are the ones that were sustained in the incident in November 1988. These show that there were fractures on the left 6th through to the 11th ribs and on the right fractures of the 7th through to the 9th ribs posteriorly. These fractures left Mr Davis with a flail chest. JUDGMENT 2 1 .• ...... 10 20 30 40 50 60 -- 2 of 10 -- 180~93 (Demack J) He was initially admitted to intensive care where he developed a small left pneumothorax which was drained. He also suffered a wedge fracture of the vertebral body of the lOth dorsal or thoracic vertebra. He appatently also sustained a fracture to the inferior aspect of the scapula. Because of the extent of 10 the trauma to his left hip some myositis ossificans was seen lateral to the joint in the soft tissue. Dr Johnson Nurse - explained that this was one of the corisequences of severe trauma to the tissues there and that this meant that there was something like bone developing in the muscle structure. This 20 constituted quite a significant disability. Not all of the bony fractures that I have referred to are referred to by the hospital. Specifically, the various 30 fractures in the ribs are not ones which are all detected in the hospital records, neither is there reference there to the injury to the scapula. However, the nature of the injury that was sustained seems to me to make it more likely than not that all of the bony fractures generally in the chest area are 40 attributable to the accident. Mr Davis was discharged from the Rockhampton Hospital on 21 November 1988. He returned to his home at Archer and was cared for by his sister-in-law. so He has on one occasion tried to return to work but was not able to do so and he has not, in effect, worked since his injury on 2 November 1988. The likelihood of this occurring was noted by Dr MacFarlane in 1989 when he was Director of JUDGMENT 3 -- 3 of 10 -- 180393 (Demack J) , Orthopaedics at the Rockhampton Hospital. He said, "He was previously doing heavy work concreting and I can't see him doing this in the future." The doctor recommended some assessment for light work. However, although this was followed up apparently in the correspondence nothing seems to have come of that. Dr Johnson Nurse examined Mr Davis in 1989 and has not examined him since that time. In effect, there are two areas of severe damage following the accident. First, there is the damage to the vertebral body at level 10 in the ches~ and secondly, there is the calcification in the left hip which has produced wasting and weakness in the left quadriceps muscle. This alone meant that Mr Davis would not be able to continue heavy work. In addition to that, Dr Johnson Nurse noted that there was some minimal degenerative change in the left knee. This apparently was not directly related to the accident. There is also degeneration in the lower lumbar spine. The existence of the degeneration from the lower lumbar spine in a man who was doing heavy labouring work meant that Dr Johnson Nurse was invited to estimate how long Mr Davis would have continued with his heavy work if he had not been injured. The doctor gave a range of answers to that question but it seemed to me that when they were all looked at it meant that it was more likely than not that if there had been no accident, Mr Davis would have been unlikely to have continued in his concreting and form setting beyond about the age of 57 or 58. JUDGMENT 4 ·. 10 20 30 40 50 60 -- 4 of 10 -- 180393 (Dernack J) He was assy~ptomatic at the time of the accident and spoke of continuing on to 65 but that seems t0 me, in the light of Dr Johnson Nurse's evidence, to be unrealistic and I would accept that his working life was limited to about the age of 57. The items of the plaintiff's claim for damages which Mr McMeekin has pressed are set out in Exhibit 17. Going through these, beginning with past ec6nomic loss, I begin the assessment by using the schedule which has been prepared by the accountants, Exhibit 13. This shows that if Mr Davis had been in continuous employment as a form setter and concrete finisher from the date of the accident to the date of trial, he would have earned something just in excess of $100,000. The evidence to support the suggestion that this would have been his fate came essentially from Mr Blanch who himself is involved in concrete contracting. He says that there has been plenty of work about since 1988. He also said that from early 1987 through to mid 1988 there was plenty of work about for concreters, although "you had to travel for it sometimes". During that particular period Mr Davis was unemployed for a substantial period. The exact length of this is not clear on the evidence. It seems to range from around about 13 months to possibly 18 months·. In the light of Mr Blanch's evidence it seems to me this is a significant factor that has to be taken into account to discount the amount in the schedule which the accountants have prepared. Mr Davis himself admits that there have been gaps in his JUDGMENT 5 10 20 30 40 50 60 -- 5 of 10 -- 180393 (Demack J) employment over the years. It is clear enough that concreters are required to get into a job and then get out, to use Mr Blanch's words. This suggests that there are gaps in their employment and Mr Davis' gap on that one instance was a substantial one. Doing the best I can with this part of the evidence, I shall allow $70,000 for past economic loss. Mr Davis has received Workers' Compensation periodic payments to the net value of $16,227.97. He has also received some $22,000 from the Department of Social Security. I shall allow interest on the amount of $31,500. This amounts to $8,127. The allowance for past economic loss together with interest is $78,127. I am satisfied on all the evidence that Mr Davis is unemployable. He has a very persistent pain in his back. He has to shift position regularly. The combination of the back and the hip mean that he cannot pursue any form of heavy work and there is no light work available to him that has been suggested. It seems to me that the combination of the bad hip and the bad back and the need to shift about on a regular basis mean that, effectively, he is unemployable at his age. He could have kept working, as I have said, for some further years and during that· time he might have earned substantial sums of money in the order that Mr Blanch spoke. However, it seems to me that the future is best gauged using the award rate and assuming the best for him within the limits of ~ ~irness to the defendant, I assess his future economic loss ~ at $340 per week. I shall allow that for a period of five JUDGMENT 6 10 20 30 40 50 60 -- 6 of 10 -- 180393 mlm (Demack J) years being a sum of $78,880. The other issue that was most debated before me was items in respect of travelling expenses. I accept that Mr Davis has acted reasonably in giving tip his driving licence. He was apprehensive about driving and it seems to me that that is a 10 reasonable response to his disabilities and to the experience he had when he was injured. Dr Johnson Nurse gave some general evidence about how people with bad backs can drive cars, but Dr Johnson Nurse has not 20 examined the plaintiff since 1989. I am not satisfied that that general opinion outweighs the evidence Mr Davis gave. Generally Mr Davis, although not of a high level of intelligence, did appear to be someone who was trying to tell 30 the truth. This means that in respect of the claim for services gratuitously rendered I shall allow that claim, both as to the past and as to the future, as it is spelled out by Exhibit 19. 40 I am satisfied that Mr Davis has been dependent on his ·- sister-in-law, not only for care around the house which has been necessary because of his disability, but also to accompany him to various doctors' appointments for the whole of that particular p~rt of the claim. I shall allow the sum 50 of $13,225. So far as future medical expenses and treatment are concerned, the claim for actual medication and treatment is made in the v:m of $5,175. This was formulated before Dr Johnson Nurse 60 JUDGMENT 7 -- 7 of 10 -- 180393 (Demack J) . gave evidence about the possible use of a pain clinic. Consequently, although there was no evidence as to the actual cost of such a clinic or of its possible usefulness to Mr Davis, I will allow slightly more than the amount claimed for medication and treatment. I shall allow the sum of $5,500 for that head. There is a claim also made for travel associated with this treatment. Mr Davis lives some distance from Rockhampton at Archer and has to travel in to Rockhampton for treatment and to collect medication. For this he is dependent on his sister-in-law. However, it is clear that their ordinary arrangement prior to the accident was to come regularly to Rockhampton to transact business and to shop. Mrs Davis said that she was not coming to Rockhampton any more frequently since the accident and before it. Consequently, it does not seem to me that the claim for additional travel costs for treatment in the future is made out. I have, as I understand the calculations, made some allowance for Mrs Davis' time in respect of that treatment, but the travel seems to me to be part of the situation in which the plaintiff finds himself because he lives some distance out of town and is not influenced by his disability. The item in respect of income tax paid on the periodic payments of Workers' Compensation is claimed and allowed in the sum of $2,830.30. Special damages I shall allow in the amount of $8,412.90 and interest in the sum of $327. Jy::I have indicated, Mr Davis suffered a severe injury when he JUDGMENT 8 10 20 30 40 50 60 -- 8 of 10 -- 180393 (Demack J) >vas run over by the semi-trailer. It also must have been a very frightening experience. He has suffered acute pain during his period of treatment. and has had at least one very severe onset of pain last year. He describes himself as simply lying about the house for almost three to four weeks. He was referred by his general practitioner to an orthopaedic surgeon. Mr Davis is not in the situation that commonly comes before the courts where a person has a pre-existing degenerative lumbar spine which is activated by a work related incident. He had a pre-existing degenerative lumbar spine but the defendant has added to that a serious disability in the thoracic spine and a serious disability in the hip. While it is true that the degeneration of a. lumbar spine would have prevented Mr Davis from continuing in his heavy work beyond the age of something like 57, he now has not only that source of pain and disability but the other quite severe source of pain in his thoracic spine and the considerable disability in his left hip. He also sustained the injury to his chest in the uncertainty of the pneumothorax. He was severely gravel rashed across both his shoulders and generally has suffered a great deal of pain and discomfort. I am satisfied that for all these matters an award of $65,000 is appropriate and I shall allow interest on the sum of $10,000 in the amount of $860. The total of the award then is $253,161.93. The Workers' 0\ ~ompensation Board refund is $31,688.01. if JUDGMENT 9 10 20 30 40 50 60 -- 9 of 10 -- .. 180393 (Dernack J} So it will be judgment for the plaintiff against the defendant for $221,473.92. I order that the defendant by election pay the plaintiff's costs of and incidental to the action including reserve costs to be taxed. JUDGMENT 10 ' '' 10 20 30 40 50 60 -- 10 of 10 --