Casey v Pearson Bridge (Qld) Pty Ltd [1992] QSC 224

.· ·t .. . .: c ..:": c TRANSCRIPT OF PROCEEDINGS State Reporting Bureau; 4th Floor, The Law Courts, George Street, BRISBANE. 0. 4000 Tel. (07) 227.4360 (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 Rep<:ming Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION KNEIPP J No 224 of 1986 ROBERT LIONEL CASEY Plaintiff and PEARSON BRIDGE (QLD) PTY. LTD. Defendant TOWNSVILLE .. DATE 27/5/92 :. . . JUDGMENT·=r... .. ..•.·.•. ·.: .. · -~ ...·.·· 1 -- 1 of 12 -- ( HIS HONOUR; ' The first matter which I have to decide is what was the state of ·the sea on the day in question. . I had evidence from a variety of witnesses as to their estimates of wind forces and wave heights and it is not unnatural that in giving opinion ·evidence on those matters the witnesses should vary· considerably in their estimates. It is sufficient for me to say that the evidence as a whole supports the view that there was a significant sea, and I so find. The process of transferring from a boat to the scramble-net was, I think, at any time a risky business, but I am satisfied, in particular by the evidence of Mr Rodd, that in the conditions which prevailed a transfer was very risky indeed. I accept the. 10 evidence of the plaintiff as to the circumstances in which he 0 was injured and events thereafter until he arrived on shore. From what I s·ay later on matters of quantum it will be obvious 30 that I feel that I must treat any evidence of the plaintiff with considerable reserve, but he was persuasive on these ma~ters. Mr McGrory, called for the defendant, gave evidence which, to a considerable extent, was in conflict with that of 0 the plaintiff~ ·I was not impressed by his evidence.. I did 40 not think that he intended to mislead me deliberately, but he 0 was dogmatic and reseritful of-any suggestion that circumstances or events were not in accordance with what he would think they should be. For that reason, I think that his evidence was not reliable, and I reject it where it is in 50 conflict with that of the plaintiff. Given that the transfer from the boat to the net.was a very risky business, ·there were three arguments put forward. for the plaintiff-as to ways:in which the risks should have been 60 -- 2 of 12 -- ( avoided or lessened. First, _it was said tha~ the problem should have been anticipated by reference to weather forecastings an~·thus by_work done on.tbe previous day. The necessity to go out on the day in question would have been avoided. It is sufficient to say that this. suggestion was based on some evidence which was obt13-ined casually .. It was not really explored, and I am not satisfied that the plaintiff has made out the propositions which it would have to make out in order to succeed on this basis. The second basis suggested was that a rope ladder should have been used. I am not persuaded that this would have been any C/' less risky than the method which was in fact used 1 particularly having regard to the evidence of M~ Prince, the engineer called for the defendant. I am not prepared to accept this argument. The third argument was that, given that the transfer was to be c on to the net, there should have been close supervision of employees who were making a transfer at any time, and in C particular close supervision-of the plaintiff at the time in question. I accept the evidence of Mr. Rodd on these matters. The defendant should have had in place a system which required trained observers who would be. in at.tendance and supervise the transfer of each workman, giving appropriate instructions if necessary. It appears that there was some casual ass_is._tance from time to time by a deckhand, but there is no reason to think that these people were suitably.trained, and in addition to that ·I.accept the evidence of the plaintiff that there was ~ ~· . . ~. . - . ' . not any deckhand who ~as __Q"iving any assistance on the occasion 3 10 20 30 40 50 60 -- 3 of 12 -- ( in question. I therefore find that the defendant was negligent in-the'respect alleged in para 6E of the Statement of Claim,'and that this negligence-was a·cause of bodily injury which I: am satisfied he suffered. However, although it is conceded that the plaintiff suffered some bodily injury, there ~as a·conflict as to causation i~ relation to· the plaintiff's present complaints, and this I must deal with later. It was argued that the plaintiff was guilty of contributory negligence which resulted in his coming to grief. It appears, and I ·find, that the cause of his coming.to grief was that he j'umped to the net before the boat had risen to its full height on that approach.· r think that what he did could only properly be described as inadvertence or misjudgment. This was the very thing which the defendants should have guarded against; ·and to find him guilty of contributory negligence wo1rld ·really be· to put the onus of providing a safe system in the ~rorig quarier. I therefore find that he was not guilty of contribuiory negligence.· The plaintiff was born on 12 May· 1942 and he· was injured ~n 21 Apr'il· 1983. ·He left school at the age of 14 after finishing Grade 8. He has no· formal qualifications, but from his work history and other evidence~ including what is seen on the· videos to which I refer later, it is clear that he is very proficient in a variety of activities which would usually be carried out by pe.Ople such as carpenters, painters,_ mechanics and panel beaters. ·.·He was before the accident also active in a variety of recreat{ons. His· description of what occurred to 4' 10 0 30 0 40 0 50 60 -- 4 of 12 -- ( c him in the accident as c9ntained in his statement was that he sensed that after he got on to the net the vessel was coming forward, and knowing that he could ndt get away in time, he locked his arms and legs into the net so that.he could not be thrown in the sea, He_said that the tug hit .. him hard on the left side of his ribs, almost taking him off the net, and,that this twisted_his body right around the net .. He said that as well as pain in the upper part of the body, he was suffering pain in the spine immediately after the accident. His main complaints at that time were about the upper part of his body, but he said that he did complain to a doctor not long after the accident about spinal problems and that.the only response was that this was only to be expected. I accept his evidence as to that complaint and that he was in fact suffering from spinal pain. He saw Dr Watson, an expert in rehabilitative medicine specialising in spinal problems, on 11 July 1983. This was some three months after the accident, but the evidence shows that in general one could only see Dr Watson. C some considerable time after making an appointment, so that the probabilities are that he had complained to a general c practitioner and obtained a reference some time before 11 July 1983. He was complaining at tbat time, according to Dr Watson, of pain in the cervical, mid dorsal and lumbar areas of the spine, and he has complained constantly of pain in the first and third of those areas since that time. He , describes his present situation in his statement as follows: "55. I find that as a .. result of the accident· I cannot sit or stand for extended periods. I ~annot run, I cannot walk for prolonged periods and I have. difficulty looking up, bending, lifting objects ofany more than. a very light weight, twisting or 5 10 20 30 . 40 50 60 -- 5 of 12 -- ( 1 . turning. 'I really cannot perform any work which requires moderate physical exercise on my part. 56. I suffer from constant pain, headaches and back pain which are chronic at times. I suffer pains or radicular and/or referred type in both upper limbs and legs. 57. I ·find that I have to sleep in an arm chair or on the floor with my feet on a lounge. This, I find, 10 ·reduces the stress on my back. 58. I frequently use a·walking stick for support and reassurance to move around." on his appea~ance in court, the plaintiff was constantly stooped and used a stick. The· plaintiff's complaints and the proposition ttiat thei were caused by his ~ccident on the scramble net·were accepted by the medical witnesses, Dr Lewis and Dr Douglas, who are orthopaedic surgeons, and Dr Watson, until they viewed.the videos to which I have referred. Those videos, in my view, seriously flaw the picture which was 30 presented to them and in evidence by the plaintiff. They range in date from 1987 to 1992 and show the plaintiff in occupations su~h as driving sprint cars and saloon cars in races, doing carpentry work on a catamaran, handling ultralight aircraft, and being concerned in what appears to have been an exhibition of ultralight aircraft in the Flinders Mall with a considerable amount of walking and standing. The plaintiff also trained in flying ultralight aircraft for some time. The evidence·is to the effect that flying in ultralight aircraft is usually a fairly rough business because of up-winds which prevail at the low heights at which they are flown. So far as the videos are concerned; Dr Douglas gavehis 40 50 60 0 0 CJ -- 6 of 12 -- ( G c c c impressions on what he saw on .them in a report.dated 13 April 1992, which I set out, because they conveniently reflect my impressions - "I refer to your _letter of the,18th March,:1992 and.would advise that I ha~e-~iewed the eight tapes that you delivered. The only tape that has a date on it is the one taken of a man in the.mall dated the 19th January, 1990. This tape shows the activities of a.man in the mall from 11.48 am until 5.02 pm. Up until just before 4.00 pm he had been standing around and maintaining a stooped position for quite prolonged periods of time without any apparent back disability. At about.3.55 p.m. it is noted that he puts his right hand on his back and takes a stick in his left hand. From then on he starts to develop signs of back discomfort leaning against objects, changing posture from one foot to another and using a stick and developing a limp. Eventually the limp becomes quite marked and just after 5.00 p.m. he sits down as thetape finishes. The next tape I viewed was labelled 'Mystic Sands', 1st February, 1992. In this tape he is seen using a sander and bending and stooping without any apparent difficulty. He also lifts a large object which was probably a door and was seen to carry a bucket ofwater. At no stage did I observe any signs of.backdiscomfort on this tape. · The next tape I viewed was that of a shed/bussequence which is stated to have occurred on the 7th February, 1992. He bends occasionally in this sequence without any apparent trouble, but I did notice on one occasion as he wai usin~ a drill he appeared to be protective towards his back as he bent.· There were two tapes showing· activities at a speedway. I could not identify the drivers of these vehicles and would only comment that it appeared to be a fairly strenuous activity. There was another tape showing activities around an ultralight aircraft and in this tape he is shown bending frequently and maintaining a stooped positionwithout any apparent difficulty. He also lifts and manipulates a trailer without any apparent problems. I also saw two tapes which showed activities around a shipyard. One of the tapes I had seen previously inthe court. In this tape he is shown bending and lifting on numerous occasions and pushing a car on one occasion .. It is noted that. periodically he puts his hand or hands on his thighs as if for support. 10 20 30 40 50 60 -- 7 of 12 -- r- ( In the second tape which I had not seen· previously he again demonstrates the ability to bend and maintain a stooped'position and to use a saw in an awkward position. He also again supports his body weight on his·kneei and on occasions appeared to be prbtective towards his back when he bent forward. My conclusion from viewing all these tapes is that he probably had some low back disability but it is not as severe as he indicated to me at the time of my examination. It would probably be sufficient to prevent his engaging in heavy labouring work" Dr Lewis also saw the videos, but think it is fair to say that he was not p~sitive as to what effect one should give to them and he expressed no positive conclusion. So far as Dr Watson is concerned, he said that the videos show~d that the Plaintiff's appearance was that of a person who was less disabled than he had thought the plaintiff was, 1 10 0 but his opinion was that the condition of a person such as the 30 plaintiff can fluctuate considerably from time to time and that he had seen the plaintiff on occasions when he showed little or no symptoms referable to spinal problems and on .. ""'"• 0 occasions when was completely disabled. One might be inclined to ask why the plaintiff was seeing Dr Watson on occasions 40 when his symptoms were minimal, .but as I have said, one could 0 see Dr Watson only after a considerable time by appointment, ' . and I take it that, having made the appointments, the plaintiff went to the doctor no matter what his condition at the time might be. 50 There is a body of other evidence as to the plaintiff's activities. He carried on his own business as a panel beater for some time after his accident and also engaged in the '.. • • • • • !..- -~ ... 60 -- 8 of 12 -- ( C. - C'. business of carrying on a. coffee shop. There is evidence of activities in a radiator business, and in a c.ar wrecker's business, although ;E am satisfied,. contrary to the submissions made for the defendant, that he was not an employee in any of those businesses. Finally, I should mention that there was evidence from the last witness for the defendant, a Mr Smith, as to what he said he observed in relation the plaintiff's activities on different occasions. It is sufficient to say that I would not place any reliance on any of the things which Mr Smith said. The reason wouldbe obvious to anybody who cares to_read a transcript of his evidence. There is no value in my canvassing all this evidence in detail, and I propos~ only to state my overall conclusions on the matter. In fairness to the plaintiff, it must be said that he refers to· a number of his activities in his statement and discussed a number of them with Dr Watson, so there that there was no apparent attempt to c=~- conceal-those activities. The evidence of the witnesses for c ,. the defendant and a viewing of the videos show, in my view,· that the plaintiff at times is capable of a wide variety of activities. On the other hand, I am satisfied from the ·videos and the evidence of the witnesses for the plaintiff, including Dr Watson, that the activities which he does perform are not activities involving substantial strain on his back and that he is usually not able to perform them for substantial periods of time. I am also satisfied that he is substantially disabled for considerable periods.· The problem is as to his capacity for work. I would agree with Dr Watson that it is not practical to consider that anybody would employ him 9 10 20 30 40 50 60 -- 9 of 12 -- { full-time. On the~othei hand, he is plainly competent in a variety of fields,· and my conclusion is that he should be regarded-as being capable of part-time work, or work on his -own behalf which he can perform at his own pace. The damages will be assessed accordingly. I should add that I find that the plaintiff's disabilities are consequences of the accident on the net.-- apart -·from the effect of what I have said, the material as to damages· is a long way from being satisfactory. In this connection I might remark at the outset that the only evidence on some items of claim by the plaintiff is to be found briefly expressed -in his statement. It was· submitted that without supportin:g evidence what is in the statement should be ignored~· However, the statement is evidence of its contents pursuant-to~ 92 of the Evidence Act-and there was no cross~examination as to most of the items. In these circumstances, I do not feel justified in rejecting them unl~ss they are-plainly unsustainable. I turn-to assessments under.t:Pe various heads. The first is loss-of;wagei to thi present. 'In relation to this, the plaintiff's work history shows that during his working life, between-his leaving school and the time of his accident, which was about 27 years, he was engaged in over 20 different jobs, the longest period being for five years and most of the others being for one year or less. One thinks ·that these vari6us changes'of occupations must have been accompanied by various periods ·of -uhemployrrient. In addition to this, it was point-ed out that his ·income tax returns showed that over the preV:ious 10' 10 0 30 0 50 60 -- 10 of 12 -- ·. ( few years, _if their contents. are to be taken as accurate, he was in work for something less than half the time. I must also take into acco~nt the findings which I ha.~e already made as to his capabilities. The claim is fo~ $140,000 spread over nine years, which appears to be based on $300 net per week. All I can do is to make a discount which I think is appropriate, and the amount I allow is $70,000. There is also a claim about which I did not hear a great deal, for the loss of an opportunity to engage in a business in ·the Northern Territory, the loss of profit alleged being very high indeed~ All I say about this is that the claim is not one which one could accept, and.I therefore reject it~ So far as the future (: is concerned, I take ten years at $150 per week, this bringing up $61,000. Other amounts which are claimed and which I allow are pharmaceutical expenses $3,664; medical expenses (own) $2,184; travelling expenses $531; medical expenses (Workers' compensation Board) $690, Fox v Wood $4,071, miscellaneous (Workers' Compensation Board) $871. There is a claim for future medication amounting to $16,000. In relation to this., the evidence is meagre, but in the absence of any questions on these matters I feel bound to allow the claim. For-future medication I allow $16,000. There is a Griffith vKirkemeyer claim. Having regard to my findings, I think that the evidence cannot support this claim and it. is not allowed. There is a claim for work on the plaintiff's motor .vehicle which, for similar. reasons, is not .allowed.· There was a claim for future travelling expenses. As to this, the plaintiff. and his wife live in a converted bus and one can only speculate as to where they might be living at any parti.cular time and I· do not think there is any basis on which I could make an 1-1 10 20 30 40 50 60 -- 11 of 12 -- ( ~ assessment. I assess general damages in the sum of S45,000. So far as interest is concerned, there will not be any on the loss of wages because of receipts by the plaintiff. so far as other items are concerned, I have not sufficient detail as to what has been paid and when. In addition, the period is nine years. I therefore, do not allow any interest except the sum of $1,500 on $15,000 being part of the $45,000. The items then are: past loss of wages $70,000; future loss of wages $61,000; pharmaceutical expenses $3,664; medical expenses (own) $2,184; travelling expenses $531; medical expenses• (Workers' Compensation·Board) ·$690; Fox v Wood $4,071; miscellaneous expenses (Workers' Compensation Board) $871; future medications $16,000; general damages $45,000, interest $1,500; a total of $205,511. The Workers' Compensation Board has a charge for $26,850. The balance is $178,661. I give judgment for the plaintiff against the defendant for the sum of $178,661 with costs to be taxed. 12 10 0 30 0 50 60 -- 12 of 12 --