Bartschat v Allan [1992] QSC 270

) / TRANSCRlPT OF PROCEEDINGS State Reporting Bureau. 4th Floor, The Law Courts. George Street, BRJSBANE. 0. 4000 Tel. (07) 2Z7 .4360 (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 RYAN J No 1954 of 1991 UDO BARTSCHAT and MARK ANDREW ALLAN BRISBANE .. DATE 31/07/92 Plaintiff Defendant 1 -- 1 of 15 -- .310792 HIS HONOUR: I give judgment for the plaintiff against the defendant in the sum of $318,908, and I order the defendant to pay the plaintiff's costs including any reserved costs to be taxed. I publish my reasons. 10 0 30 0 50 60 2 JUDGMENT -- 2 of 15 -- \ ) ' ~ IN THE SUPREME COURT OF QUEENSLAND No. 1954·of 1991 BETWEEN: UDO BARTSCHAT Plaintiff AND: MARK ANDREW ALLAN Defendant JUDGMENT - RYAN J. Delivered the Thirty-first day of July, 1992 Counsel: Mr. A. Williams for Plaintiff Mr. A.M. Wilson for Defendant Solicitors: Michell Silar Nicholsons for Plaintiff Tobin & Co. for Defendant Hearing Dates: 9-10 July, 1992. -- 3 of 15 -- ( \ IN THE SUPREME COURT OF QUEENSLAND No. 1954 of 1991 BETWEEN: UDO BARTSCHAT Plaintiff AND: MARK ANDREW ALLAN Defendant JUDGMENT - RYAN J. Delivered the Thirty-first day of July, 1992 The plaintiff claims damages against the defendant for negligence as a result of which he suffered loss. Liability is admitted by the defendant, and the sole issue is the assessment of damages. The plaintiff was injured when he was a passenger in a motor vehicle which collided with a vehicle driven by the defendant. The accident occurred on 19 November, 1988. The plaintiff was born in 1957 in Germany. He left school at age 14, and became an apprentice motor mechanic. He was employed as a mechanic in Germany after he finished his apprenticeship. In 1983, he came to Australia. He had initially experienced difficulty in getting employment in Australia, but after about a year he secured employment working on Mercedes Benz vehicles and subsequently on Porsches. In March 1987, he leased premises at Acacia Ridge, and started his own business repairing prestige European cars. He described it as being very slow at first, but in 1988 it grew -- 4 of 15 -- 2 rapidly and he took on an apprentice about five months before the accident. The plaintiff was taken by ambulance to Nambour General Hospital after the accident. He said that he woke up inside the car, and found that his teeth were missing. He did not feel any back or foot problems; but when he got out of the car, he had pain in his lower back and his foot was swollen like a football. He could not stand on his foot or walk on it. A report by the Nambour General Hospital dated 16 December, 0 1988 states that the plaintiff received a soft tissue injury to his right ankle, bruising to his lower back, and dental injury, including horizontal fractures through the roots of both upper incisors and a vertical fracture of the second upper tooth on the left hand side. The hospital dentist removed both upper, central incisors and the left, upper second tooth. Dr. Taylor, the plaintiff's physician, referred him to a radiologist. He found him to have a vertical crack fracture of the neck of the talus bone, a fractured medial cuneiform, and a fracture of the base of the second metatarsal. Lumbar spine x- ray was normal. Dr. Farquhar, an orthopaedic surgeon, examined the plaintiff in April 1989. He reported inter alia that x-rays of the lumbar spine revealed that there was an upper lumbar hyphosis with vertebral body wedging and vertebral end plate irregularity with Schmorl - node formation. There was some abnormality of shape of each of the lumbar vertebra and there were degenerative changes at the L4/S level with anterior osteophyte formation. He expressed the opinion that the plaintiff would have 0 0 0 -- 5 of 15 -- 3 experienced some severe pain with the fractures in the right foot sustained in the accident, and that he would have remained in significant discomfort during the six weeks or so that it takes for fractures of this nature to unite. He considered that he suffered a flexion extension type injury to his lumbar spine in the accident resulting in strain in the musculo-ligamentous supporting structures of the spine in the lumbar region and aggravation of pre-existing degenerative changes in the lumbar spine. Dr. Farquhar examined the plaintiff again in August 1990. He reported that the wasting of the plaintiff's right thigh and calf was probably the result of inability to use the right lower limb normally as a result of the ankle and foot symptoms. Some degenerative changes had developed in the metatarsal region. The condition of his right foot was stable with evidence of permanent disability of about 15 per cent impairment of right lower limb ( ) function. The back pain that he continued to complain of was ' " attributable to the musculo-ligamentous strain type injury and to aggravation of pre-existing degenerative changes in the lumbar spine. He had a disability arising in the lumbar region of his spine of 15 per cent impairment of body function. He considered that the injury had resulted in a permanent disability of 7.5 per cent impairment of body function arising in the lumbar spine. Dr. Tuffley, an orthopaedic surgeon, who examined the plaintiff in February, 1990, stated that the x-ray changes in his spine seen on the x-rays of 21 November, 1988 did not relate in any way to the accident, but were pre-existing. The situation was now stable, and he had a disability in his right foot as a -- 6 of 15 -- 4 result of the accident which equated with one per cent of total body function. He thought it likely that he will develop degenerative changes in the joints involving the medial cuneiform bone due to the damage at this site. He considered his working ability to be essentially unaffected. In oral testimony, Dr. Tuffley said that the plaintiff sustained soft tissue injury in the accident. He thought it possible rather than probable that he could have gone on until age 45 or 50 without problems in his back. Dr. watson, who is also an orthopaedic surgeon, reported in May, 1991 that on examination of the plaintiff's back he had an upper lumbar kyphosis. He was tender to the right of the mid line over most of this area. All movements were restricted by pain. The foot showed no deformity and no swelling. Movements were good but forcing the movements hurt. He was tender at the base of the second metatarsal and on to the apex of the arch. The metatarsal fracture had healed solidly and should give no trouble. X-rays of the lumbar spine shows the multiple Schmorl 's nodes and wedging of a lot of the lumbar vertebrae. Schmorl's nodes affect the 2-3, 3-4, 4-5 discs. It is impossible to say just when they occurred. He expressed the opinion that as a result of the accident he had in effect a traumatic arthritis of some of his tarsal joints. He should be regarded as having a 15 per cent permanent disability of his leg. He considered that in the accident the plaintiff aggravated a pre-existing and highly vulnerable back condition which he thought would have troubled him significantly within ten years. 0 0 0 0 -- 7 of 15 -- 5 years. ~ ) A psychiatrist, Dr. Cameron, reported in October 1990 that apart from his physical injuries and their aftermath the plaintiff suffers from a severe adjustment disorder with dysthymia caused by the motor vehicle accident and his subsequent injuries. In February, 1992, she reported that she considered that his back had improved a good deal over the past few months because of his persistent exercise efforts, and that his efforts in rehabilitation had improved his general outlook. The pain in his back occurred now only with unusual bending. He was not unduly depressed, and was on no medication. The plaintiff gave evidence that he returned to work about a week after the accident, but he was unable to work. He could -- 8 of 15 -- 6 not move around, by reason of pain in his back and foot. He closed down his business. After some attempts to work as a mechanic on his own accord, he sought employment and obtained a position at the Coorparoo Management Centre as a clerical worker who could discuss mechanical work with clients. He was dismissed after four months, partly though·lack of work, and partly because he was unable to help in the workshop. In August 1990 he obtained a position in a real estate agency, but left after a week. He said that he could handle the 0 job physically, but he became depressed. At present he assists his wife and mother-in-law in a pizza business, working for about 20 hours per week. He finds this work frustrating. He said that 0 he may be able to do mechanical work if he had someone to assist him with heavy work, and that some mechanical work was still within his ability. It would be necessary to pay not less than $500 net per week to employ a competent mechanic, and it would not have been financially feasible for him to do this in his business. 0 The plaintiff said that before the accident he had enjoyed sport, including swimming and skiing, and he maintained high 0 levels of fitness. He had wanted to be a stuntman and stunt coordinator. He obtained stunt jobs in 1986 in two films, and he had worked on two episodes in a series called Mission Impossible before the accident, for which he received a fee and "residuals", which I understand to be royalties. After the accident, he could not do stunt work, though he obtained a very minor job in a couple of films. He tried parachuting but stopped when he saw an experienced man hit the ground hard. He said that -- 9 of 15 -- ( 7 but for the accident he would be at the top of stuntmen, though he admitted he would not be the best. He denied that being a stuntman was a dangerous occupation. It was their business to make the stunts look dangerous. He agreed however that there had been serious injuries. At the time of the accident, the plaintiff was living at Wacol. His future wife (they married in September 1990) was the driver of the vehicle in which he was a passenger. After the accident, he moved into her mother's home. He was on crutches. She and her mother and his wife's sister helped him to bathe, to dress, and to get in and out of bed, and she used to take him to medical appointments. She estimated that for an initial three months period she assisted him for four hours daily; and over the next three months for two hours daily. Similar evidence was given also by the plaintiff. A Commonwealth Rehabilitation officer had recommended that ( ) he undertake a cinematographic course, and he expended $1,500 on this, but he did not proceed with it. ( ; He took up ultra-light flying, and obtained an unrestricted license. He intends to become a flying instructor and to work as a flight instructor. Evidence was given by an instructor that he expected the plaintiff to become qualified as an instructor within a few weeks. Evidence was given by Mr. Skippen, who is a stuntman, stunt coordinator and safety officer that he considered the plaintiff to have been a very good all-rounder as a stuntman and to have had first class potential. He was potentially a top stuntman on the way up. He had given the plaintiff some stunt work. At -- 10 of 15 -- 8 present the top stuntmen were in competition for a few jobs and since the last eighteen months there had been only limited work. He said that his average income was $45, 000 gross. Expenses were less than $5,000 per annum. He said that the work was not constant, and that it was a good idea for a stuntman to have another business as a back up. Another stunt coordinator, Mr. Hicks, agreed that many stuntmen had another business, and that work was presently difficult to obtain. He rated himself as fifth or sixth among stuntmen in Australia. In his best year his income was $75,000 gross, and last year it was $40,000 gross. He assessed the plaintiff as being in 'the average middle range of some 40 stuntmen. The plaintiff is to be compensated for pain and suffering and loss of amenities on the basis that he has injuries to his leg and back, he has dental injuries, he suffers pain from his injuries and he is depressed as a result of the loss of his ability to run his own mechanical business and to be a stuntman. 0 0 0 I accept the evidence as to his physical injuries given by Dr. Pentis. I assess damages for pain, suffering and .loss of 0 amenities at $36,000. I allow interest on $12,000 of this amount at two per cent for three and two-third years. That amounts to $880. I assess damages on the Griffiths v. Kerkemeyer principle at the agreed rate of $7 per hour on the basis of two hours gratuitous assistance per day for three months and one hour per day for the following three months. That amounts to $1,890. -- 11 of 15 -- 9 Evidence provided in reports by dentists indicates that the ·cost of repairs to his teeth as a result of the injuries received in the accident and of subsequent review and treatment would be approximately $11,500 and I allow that amount. Special damages are agreed in the sum of $7,357.10. They are not agreed in relation to the cost of the cinematography course, for which $1,500 is claimed, and $12,945 for ultra-light pilot's lessons. The issue, I consider, is whether the expenses were reasonably incurred in order to mitigate the loss occasioned to the plaintiff by the defendant's negligence. In the case of the cinematograph expenses, I consider that although they were incurred following advice by a Commonwealth Official they were not reasonably incurred in order to pursue a future avocation. The plaintiff abandoned any cinematographic ambitions he may have entertained after one attempt. In relation to the ultra-light pilot lessons, I accept his evidence that he would not have engaged in ultra~light flying if he had not been injured. I consider that the lessons are a cost incurred in order to mitigate his future economic loss, and that the expenditure on ( 1 "_/ them should be compensated, just as his future income as a flying instructor should be taken into account in assessing his future economic loss. In assessing his past economic loss, I accept evidence that he would have tried to combine his motor vehicle repair business and stunt acting if he had not been injured. I am satisfied that his injuries made it very difficult for him to pursue these occupations, but I am not satisfied that he has done all that he -- 12 of 15 -- 10 could reasonably have done to secure or persevere in alternative occupations. In the period prior to the accident, he had made a profit from his vehicle repa~r business ·of $1,383 in the period 16 March, 1987 to 30 June, 1987; of $3,080 in the period 1 July 1987 to 30 June 1988; and $15,431 in the 20 week period 1 July 1988 to 19 November 1988. This supports his claim that the bus~ness was expanding rapidly in the period prior to his injury. Over the same period he received $9,670 in fees for stunt work. He also received an entitlement to residuals, which were paid subsequently in the amount of $13,543. If the business had continued at the level it was operating at the time of the accident or had expanded further, I consider that he could have engaged in a significant amount of stunt work only if he had engaged a qualified mechanic to assist him in his motor vehicle repair business. I find it difficult to estimate what his earnings would have been if he had accepted engagements as a stunt man in the pre-trial period, having regard in particular to evidence that ~ . 0 0 0 work in this field has declined. On the basis of the evidence Q of Mr. Skippen and Mr. Hicks, I consider it reasonable to think that it would not have exceeded a net amount of $30, 000 per annum. That would amount over the pre-trial period to $110,000. But to earn the amount, he would have had to expend approximately $96,000 in payment for a full time mechanic. I assume that he would have been able to devote several hours a week to his repair business, and that it would have expanded from the level it had attained prior to the accident. I consider that an appropriate -- 13 of 15 -- 11 basis for assessing his pre-trial loss would be to assess his net income from the business after employing a qualified mechanic at $15, 000 per annum and from stunt work at $20, 000 per annum. From this there would be deducted the amount of his post-accident earnings of $5,500. This would leave $122,833. I would discount this amount by 20 per cent to take account of his failure to seek or remain in employment which was reasonably available to him. Accordingly, I assess his past economic loss at $98,267. I allow interest on this at six per cent per annum for three and two-third years. That amounts to $21,619. In relation to future economic loss, I consider on the evidence of Dr. Pentis that he would not have been able to continue in work as a stuntman or as a mechanic working without assistance for more than a further ten years.- For the next ten years, he is entitled to be compensated on the basis that he would have carried out both these occupations. There is to be ( J set off against this the income he is able to earn as a flying I \. instructor and as a mechanic assisted by another mechanic. I assess this at $15,000 per annum . I assess his loss for the next ten years at a figure of $20,000 per year. That amounts to $160,000. I discount this by 20 per cent for the usual contingences, and award him $128,000 for future economic loss. Accordingly, I assess his damages as follows:- (a) Pain, suffering and loss of amenities of life Interest thereon (b) Voluntary assistance (c) Dental expenses (d) Special damages Interest thereon (e) Past economic loss Interest thereon (f) Future economic loss Total $36,000 880 1, 890 11,500 20,302 450 98,267 21,619 128.000 $318,908 -- 14 of 15 -- 12 I give judgment for the plaintiff against the defendant in the sum of $318,908, · and I order the defendant to pay the plaintiff's costs including any reserved costs to be taxed. 0 0 0 0 -- 15 of 15 --