Atkins v Associated Minerals Consolidated Ltd [1992] QSC 184

9fJTR.AJ'JSCRIPT OF PROCEEDINGS sc..-'9.2/trSf State Reporting Bureau, 4th F1oor, The Law Courts, George Street, BRJSBANE. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Cro"W!l. Copies thereof must not be made or sold without the wrinen authority of the Director, State Reporting Bureau.) ;·--··· . ~ ~ ~··~·r ••••"'A~ -~·~~~~- ~::i~~;h;=:~-~-;··:~~:,::·. ·;~~~·""•l SUPREME COURT OF QUEENSLAND ! :.:~~-~\:: >~·~:;:>:·.~;:"\:; :?~.:::J:::.! j D~'> ;;j b I CJ d....J . ~ --... ... ~..,...r...:.·, .. _...:...•..o.•..-·-- .................... ....., .. , ..... ! ..... ," ..... ...,._...,..., __ ,..., __ CIVIL JURISDICTION THOMAS J No 1419 of 1990 TREVOR IAN ATKINS Plaintiff and ASSOCIATED MINERALS CONSOLIDATED LTD Defendant BRISBANE .. DATE 4/, 6/92 .. JUDGMENT 1 -- 1 of 15 -- 040692 JUDGMENT HIS HONOUR: In this matter there will be judgment for the plaintiff for $243,867.86. The judgment will be with costs including reserved costs, if any, to be taxed. I publish my reasons. Parties have liberty to apply if there is any question of mathematical or formal correction necessary. 2 10 20 30 40 50 60 -- 2 of 15 -- IN THE SUPREME COURT OF QUEENSLAND No. 1419 of 1990 BETWEEN: AND: CATCHWORDS: Counsel: Solicitors: TREVOR IAN ATKINS ASSOCIATED MINERALS CONSOLIDATED LIMITED REASONS FOR JUDGMENT - THOMAS J. Delivered the Fourth day of June, 1992 Damages - Quantum Mr. R. Mcilwaine for plaintiff Mr. K. Boulton for defendant Plaintiff Defendant Messrs. Peter Channell and Associates for plaintiff Messrs. Pender and Whitehouse for defendant Hearing Dates: 28th and 29th May, 1st June, 1992 -- 3 of 15 -- IN THE SUPREME COURT OF QUEENSLAND No. 1419 of 1990 BETWEEN: TREVOR IAN ATKINS Plaintiff AND: ASSOCIATED MINERALS CONSOLIDATED LIMITED Defendant REASONS FOR JUDGMENT - THOMAS J. Delivered the Fourth day of June, 1992 On 29th July, 1983 the plaintiff was reversing a B9 bulldozer over a sand heap on Stradbroke Island. The existence of tree stump caused a loss of control and in the result his machine fell about six feet before landing on a layer of hard sand. His body was jarred, with his left side hitting the seat and a gear lever. The parties have agreed for the purposes of this action that the incident was caused by negligence of the defendant, that the plaintiff was guilty of contributory negligence, and that the apportionment should be 90% against the defendant and 1 0% against the plaintiff. My task is therefore to assess the damages attributable to this incident. The plaintiff was 39 years old when he suffered his injury. He had left school at age 12, and had a meritorious and continuous work record, firstly as a worker on dairy farms, and from 1961, as a plant operator. At the time of the accident he -- 4 of 15 -- l had been continuously employed by the defendant for 18 years. He was not ambitious and it is not suggested that he would have sought advancement or changed his pattern. His lifestyle was simple and he presents as a man of whom it may safely be inferred that he would have continued in the same kind of employment for as long as such employment was available provided of course that his physical capacities permitted this. In the accident in question the plaintiff sustained a blow to the lower left chest, probably from the gear lever. This caused severe left chest pain. He also suffered general pain in the left side and in his back, but the dominant injury and source of trouble to h~m for an appreciable time thereafter was the pain in his chest and the consequences that it produced. He remained at work that day and also the following day (a Saturday). On the Sunday afternoon he started to cough blood and he consulted the local doctor the following morning. He was suffering from a haematoma within his left lung. The collection of blood in the lung became infected causing inflammation of the pleura. The local doctor (Dr. F. Carrell) treated him with antibiotics and after one week off work, the infection seemed to have disappeared, so on 9th August he returned to work driving bulldozers.. Four weeks later he returned to the doctor stating that he had strained his chest climbing the dozer. He was also coughing blood and pus, and further chest examinations followed. On 8th October he was referred to a specialist, Dr. Lomas for treatment. He had a large cavitated lesion and infection within the axillary region of the left upper lobe of the lung. On 21st October he underwent a left thoracotomy. A substantial part of -- 5 of 15 -- J the left lobe of the lung was surgically removed and the remainder was sutured. The operation was described as a left upper lobectomy. After the operation he was off work for about three months. Upon returning to work driving a bulldozer, he was troubled by the dust and suffered coughing and shortness of breath. At some undefined stage after his return to work he started to suffer symptoms of sleep apnoea. He would momentarily drop off to sleep a number of times during the day. I do not propose to set out the evidence in relation to this condition, because the medical evidence is unable to relate it to the accident, and in any event, when he did seek medical attention for it, it was able to be controlled relatively easily. However the onset of this condition and the anxiety which it caused him (particularly in relation to his driving of heavy machinery) played a part in his decision to resign his employment with the defendant in November 1986. During this fairly substantial period of return to work (early 1984 to November 1986) he had very few absences from work, although clearly he endured a good deal of pain and medical problems. In October 1985 he was again coughing blood and pus, and it was found that an abscess had formed near the sutures. The sutures were removed and there was a quick recovery. He did not lose much time from employment during this period. Again on 26th August, 1986 he was coughing blood, but a bronchoscopy showed no obvious cause. During this period the defendant company was taken over by C.R.L. which re-employed personnel on Stradbroke Island. The -- 6 of 15 -- .i main mining areas were known as Bayside, Amity and Gordon. The plaintiff applied for work in the rehabilitation area, which generally involved the use of small tractors, seeding devices and the like. His classification as "dozer operator" or (B9 operator) remained the same, although overtime opportunities were less in the rehabilitation section. The plaintiff did not clearly state his reasons for applying for this work at that time but I apprehend he was fully occupied coping with his work, and that contemplation of working in the mining areas and seeking overtime in such a position was at that stage beyond him. He found the driving of the large machines troublesome. At a later stage, probably during the last six months of his employment with the defendant, he was able to obtain work which involved less driving of heavy machinery and more ground work such as planting trees and grass. Upon his resignation in November 1986 he moved to Kendall, New South Wales where he has lived with his elderly parents ever since. In February 1988 he was granted an invalid pension. The major issue litigated before me concerns whether the accident was responsible for a fairly serious back disability from which the plaintiff now suffers. The back is degenerate, particularly in the area LS-S1. Disparate views were expressed by a variety of medical practitioners on this issue. I do not propose to discuss the evidence at length. I accept generally the views of Drs. Curtis, Bendeich, and K. Carrell, noting that the differences in their views are explicable in the main upon different histories. I find the views and discussion of Dr. Curtis the most acceptable in this particular case. It may be -- 7 of 15 -- ~ noted that I have rejected the rather extreme views (one in favour of the plaintiff and the other in favour of the defendant's viewpoint) expressed by Dr. Seton and Dr. Cameron. Whilst I accept the plaintiff as an honest witness, I note that his memory is poor to a surprising extent, and I think he has rationalised the position he now describes in relation to the continuity of severe back pain. I accept that he felt pain in his back at the time of the injury, but do not accept that it was a source of serious trouble to him at any stage in the following eighteen months. I have reached this conclusion after giving full allowance to the possibility that at least in the early stages his attention may well have been concentrated upon the chest pain. His failure over an extended period to make any complaint of back pain or of back problems in situations where such a complaint would have been expected (as for example to Dr. Lomas who questioned him about pain in other areas or to Dr. F. Carrell who treated him many times) suggests that it was not a significant problem to him at these stages. It was not of the serious disabling and continuous nature that would be necessary for significant internal derangement of the disc to have occurred in the incident. Despite a good deal of contact with doctors he failed to suggest any back problem, let alone a significant back problem, during these material times. He had a history of intermittent back pain prior to the accident, although not of substantial degree. There were four or five incidents during the nine years preceding the accident when he suffered from back pain to such an extent that he absented himself from work for a day. It may also be noted that -- 8 of 15 -- Q there is evidence that prior to the accident he suffered from high blood pressure and gout. I give sufficient credence to the plaintiff to accept that he had some back pain after the accident and that it continued, although not in a significant way. If that is accepted, Dr. Curtis considers that the history is best explained by acknowledging a pre-existing degenerative disorder which was jolted by the accident, the progression of which was accelerated thereby. It is very difficult for a doctor or a court to forecast the point at which the natural degenerative process (accelerated as it would have been by his continuing to drive bulldozers) would have reached the stage where he could no longer have coped with that type of employment. On the evidence in this case I consider it unlikely that he would have been able to sustain such employment for a further period greater than ten years. This takes into account not only the final discussion of Dr. Curtis, but also his earlier general impression, based on the pre-accident history, of a probability of an increasing pattern of episodes disqualifying him from work "at the end of the forties". It also lies within outer estimates of five years and fifteen years. It will also be reasonable to suppose that although disqualified from driving machinery (his main interest and occupation) after ten years and although then suffering from a painful back, he may have been able to sustain some intermittent employment in a lighter capacity for a number of years thereafter. At the present time, it is still possible that he may be -- 9 of 15 -- 2 fortunate enough to find some rem~nerative position, but I think it very unlikely given the fact that he has been disrupted from the workforce and given the further factors of his residence in Kendall and his current lifestyle as an invalid pensioner caring for his aged parents. With his lack of education and fairly narrow work experience, his present disabilities are sufficient to make his prospects of remunerative activity virtually negligible. The plaintiff is to be compensated for the effects of his chest injury and for the acceleration of the degenerate condition in his back. The combination of these was sufficient to justify his terminating his employment in November 1986, and in failing to return to work thereafter. On the other hand, his effective working history in his chosen line of work was likely to have been limited to a period of ten years in any event. Past Economic Loss This should be assessed at a level very close to the projection of the actual earnings he would be expected to have made by continuing his employment with the defendant, less his actual earnings. It is true that almost nine years have elapsed since trial which is a long time over which to project continuous employment. However, this falls within the ten year period over which I consider he would have remained capable of sustaining such employment and he is aided by his excellent pre-accident work record. employment It is of course possible that he may have lost such by reason of some other trauma or some other circumstance, but such contingencies should be given relatively -- 10 of 15 -- !! small account in the present case. The following periods require separate consideration:- ( i) July 1983 to 31st January, 1984. During addresses both counsel agreed that the mathematical figure of loss (without discounting) was $5,038.75. I shall allow $5,000. (ii) (iii) April 1986 to 6th November, 1986. The evidence is unsatisfactory in relation to the possibilities of the plaintiff earning greater sums by way of overtime or of applying for a transfer to a site where his earnings would be greater. Some general loss of overtime may be inferred over this period, and I accept that he was generally debilitated and struggling to cope with his job over ordinary hours. This loss will be assessed at $1,800. 6th November, 1986 to 4th June, 1992. Neither Mr. Rowe nor Mr. Bertossi here afford an ideal comparison with the probable earnings of the plaintiff over that period. The earnings of Mr. Rowe are in my view higher and those of Mr. Bertossi lower than the appropriate projection having regard to the fact that the plaintiff had initially chosen to do reclamation work; but he may have applied to go to one of the mining sites. The appropriate figure is somewhere between these two figures ($115,749 and $152,671). This loss will be assessed at $130,000. The total assessment for past economic loss will be $136,800. -- 11 of 15 -- Future Economic Loss On the view I take of the evidence, his pre-accident earning capacity in this kind of work would have subsisted only for another year (or 1 3 months) • The current level of earnings therein (with overtime severely restricted) is $391 per week. The projection of this weekly sum for 13 months on the 5% actuarial tables yields a present loss of $21,602. The difficult remaining task is to consider the difference between his residual earning capacity after loss of work of the present kind through a degenerative back condition, and his present virtually negligible earning capacity. Such a difference is in my view relatively slight, and the difference would tend to close up as the degeneration continued. The difference can be represented by a number of mathematical exercises, but in the end I think that it will be adequately compensated for any further loss of residual earning capacity in the future by making an additional allowance of $70 per week for a further ten years, such loss being calculated as starting one year hence. comes to $27,510. This Appreciating the uncertainty of the projections I assess his future economic loss at $50,000. Pain, Suffering and Loss of Amenities The plaintiff's present lifestyle is seriously deprived, and he is cut off from his former simple pleasures of country and western singing, and fishing. A good deal of his present problems stems from the back condition, and it would be wrong to assess damages on the footing that the defendant must pay for -- 12 of 15 -- 1Q these problems on a permanent basis. The correct assessment must be based upon the problems arising from his chest injury and acceleration of a disabling back condition by a period of ten years. He has a very substantial scar from his thoracotomy, and he is troubled by its appearance. He is short of breath, and suffers if subjected to a dirty environment. He also has difficulty coping with the effects of air-conditioning. The plaintiff did not, in my view, attempt to overstate his present problems, and it is plain that he is quite dejected by reason of them. The acceleration of his back problems is itself a significant matter, and the combination of this with his other problems is quite disabling. I assess his loss under this head at $40,000. Other Damages Out of pocket expenses (medical, travelling etc.) are admitted at $4,845. He will probably need an operation at some time in the future on his back, but it by no means certain that he will incur that expense, and in any event the defendant is not to be obliged to pay for more than an acceleration of the need for payment of same. An allowance for this cost should further be discounted by reason of present payment for a future outlay. I shall allow $1,500. I was invited to make further specific allowance for future physiotherapy and future medical expenses. The evidence in respect of these matters is not satisfactory, and I regard such matters as sufficiently accommodated by the other damages that have been awarded. -- 13 of 15 -- 11 Other medical expenses incurred on his behalf, and refundable to the Workers' Compensation Board total $1,952.75. Fox v. Wood damages are $1,038.27. Summary Pain, suffering and loss of amenities Past economic loss Future economic loss Other damages $40,000.00 $136,800.00 $50,000.00 $9,336.02 Interest on past pain, suffering and loss of amenities should be calculated on $25,000 for nine years at 2%, namely $4,500. With respect to past economic loss, counsel agreed for the purposes of this case that it would be appropriate to take into account the Workers' Compensation payments and the invalid pension payments received over that period by the plaintiff. In view of this concession, and the failure of defence counsel to suggest any abridgment of the period for interest, I shall calculate interest over the entire nine year period, noting that I would normally have limited interest to a shorter period having regard to the excessive delay in bringing the action to trial. This interest will be assessed at $37,800. The total of damages plus interest is $278,436.02. From this there must be deducted 10% for contributory negligence. This would result in a judgment for $250,592.41. However, the amount repayable to the Workers' Compensation Board ($6,724.55) must be deducted from this. There will be judgment for the plaintiff for $243,867.86 with costs including reserved -- 14 of 15 -- costs, if any, to be taxed. -- 15 of 15 --