Connolly v Moohin [1992] QSC 132

.r·· • ( ~\ I I ( ~. i \ i TRANSCRIPT OF PROCEEDINGS 31.03 42.._ State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRJSBANE. 0. 4000 Tel. (07) 22:7.4360 (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 Bure~u.) · SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 6 of 1990 GREGOHY JAMES CONNOLLY and MICHAEL MOOHIN MACKAY .. DATE 31/3/92 JUDGtiENT Plaintiff Defendant 1 -- 1 of 8 -- 10 20 30 40 50 310392 JUDGMENT HIS HONOUR: In the matter of Connolly and Moohin I have reduced my reasons to writing, which I now publish. There will be judgment for the plaintiff against the defendant for $244,098.j8 together with costs to be taxed on a solicitor and client basis. G 214-Govt. Printer, Qld. 2 ------------------ 10 20 0 30 40 0 0 50 60 -- 2 of 8 -- IN THE SUPREME COURT o OF QUEENSLAND MACKAY DISTRICT REGISTRY No. 6 of 1990. BETWEEN: GREGORY JAMES CONNOLLY Plaintiff AND: MICHAEL MOOHIN Defendant ( JUDGMENT - DEMACK J. DELIVERED the 31th day of March 1992. ( CATCHWORDS: Damages - Personal Injuries - L4/5 disc protrusion impinging on the thecal sac - unfit for heavy lifting, bending and prolonged sitting or standing- shop assistant aged 31 years. COUNSEL: Mr D. MCMEEKIN for Plaintiff I\ Mr B. HARRISON for Defendant SOLICITORS: MACROSSAN & AMIET for Plaintiff BECKEY KNIGHT & ELLIOTT for Defendant HEARING DATES: 21st February, 1992. -- 3 of 8 -- ( / IN THE SUPREME COURT OF QUEENSLAND MACKAY DISTRICT REGISTRY BETWEEN: GREGORY JAMES CONNOLLY AND: MICHAEL MOOHIN No. 6 of 1990 Plaintiff Defendant JUDGMENT - DEMACK J. DELIVERED the 31st day of March 1992. Mr Connolly was born on 11 June 1960. On 29 August 1989, in the course of his employment with the Defendant, he injured his back. The Defendant has accepted liability for the damages that arise from that injury. On 31 August 1989 Mr Connolly was examined by Dr O'Neill. The doctor diagnosed muscle sprain and ordered rest. A week ( later there was marked muscle spasm in the left lumbar region. The condition did not improve, and on 2 October 1989, he was referred to Dr David White. A C.T. scan was performed on 28 November 1989, and it showed an L4/5 disc protrusion impinging on the thecal sac. Mr Connolly described his present symptoms in the following passages of evidence (p 8):- Well, I have got a burning feeling in the bottom four inches of my spine. It pushes towards the hips and sometimes I feel like the bottom four inches of my spine is going to drop out. It feels so heavy and the weight is - I have got to get the weight off it. I have got to lay down or do something, but a lot of sharp pain - me back tends to crawl, it vibrates and crawls. Nothing much I can do about it, but the wife massages me. I have got leg pain. I have this leg - me right leg, it is numb all the time, and the left leg is sort of numb to -- 4 of 8 -- ( ( 2 the middle of the knee. It sort of stops at the knee and it feels like - both legs feel like they are pulling on the bottom of me heel all the time. There is a tendon or something in there that is too short. Well, I never walked with a limp before. I noticed I have got a small limp now. Yeah, I would say a little bit. I am not real certain as to putting it down either. Sometimes the ground is not flat or anything. They are always there, but on some occasions they are a lot worse. You know, if I make the mistake of walking over rough ground or stepping in a hole or anything, you - it just "bang", you have got to lay down somewhere. Dr White favours surgery. Dr Gavin Douglas suggests more investigative procedures should be undertaken. Dr Johnson Nurse favours a pain clinic. Mr Connolly is not keen on surgery. Previously he cut his left hand on a saw while working in a saw mill. He had extensive surgery following that, and wants to know that surgery will be 100% successful. What is clear is that, prior to the accident, Mr Connolly had performed labouring work or else work that included lifting. He is now unfit for heavy lifting, bending and prolonged sitting or standing. Mr Connolly was working in a second-hand dealer's business, when injured. He would like to open his own second hand dealer's business. Clearly he enjoys buying and selling, and he does it well. There was not much dispute in this case. The Defendant valued Mr Connolly as an employee. Mr Connolly had worked for the Defendant for two years, and had gone into a second-hand business in partnership. The partnership failed, and Mr Moohin invited Mr Connolly to return to work for him, which he did on 20 August 1989. Thus, although Mr Connolly's work history shows many changes of employment, I am satisfied that he had found his niche in the second-hand business and would -- 5 of 8 -- ( ( ( 3 have continued with Mr Moohin. Since 28 August 1989 Mr Connolly has earned $930 in three periods. He has tried hard to find work, but has been unsuccessful. He has always lived in Mackay, and unemployment there has been high. I am satisfied that up to this point there should be no discounting on the basis of an unused economic capacity. Such a deduction must be realistically based. Mr Connolly is keen to work, he has sought work, but has not been able to remain in employment. I assess past economic loss at $37,000. I shall allow interest in the amount of $3,700. For the future, I shall allow a continuing loss of economic capacity of $150 per week. If Mr Connolly were still employed by Mr Moohin, his nett weekly income would be $306. If he had not been injured he could have kept working until he saved enough to begin his own business. The best prospect he has for the future is opening his own business. Whatever he does, his capacity will remain impaired, and his income will be less than it would have been. The best guide of the extent of this seems to me to be about half the wage paid to an employee in a second-hand store. the value of the loss. That seems best to indicate In my opinion, a period of 30 years should be allowed. It could seem likely, if Mr Connolly had opened his own business, he would have worked well beyond 61 years. There must be some allowance for contingencies, and it seems to me that the period of 30 years makes such allowance. That produces a sum, in round figures, of $120,000. -- 6 of 8 -- ( ( ( 4 Special damages amount to $4, 341 . 65, and no interest is payable. Mr Connolly has needed constant assistance from his wife which goes well beyond the ordinary demands of domestic life. He needs massaging every day, as well as assistance with showering and dressing. His friends help him with mowing and cleaning around the house. This is work he used to do and can no longer manage. Uncontradicted evidence was given which shows that 6 hours a week in the past is properly claimed. $7 per hour was the agreed rate. I shall allow $5,200, with interest in the sum of $780. In the future Mr and Mrs Connolly plan to move to a smaller property, so that their need for help from friends will diminish. It seems to me that $30 per week for the balance of Mr Connolly's life is reasonable. His life expectation is 42 years. I shall allow $28,000. Mr Connolly will need not less than $5 per week for medicines and medical care. He may need surgery or treatment in a pain clinic. For these matters I shall allow $6,000. Mr Connolly is still a young man, and he has a very painful back. His wife has been forced to help him daily, and they have postponed indefinitely the prospect of having a family. They lived on a large block of land outside Mackay and enjoyed that. They will have to move to a smaller block in the city. They enjoyed many outdoor pursuits together, all of which are now denied them. Their marriage has been put under severe strain. Even if surgery successfully removes the leg pain, back pain would persist. For all these matters I -- 7 of 8 -- ( ( 5 shall allow $57,000, $15,000 of which relates to the period before trial. Allowing for the payment by the Workers' Compensation Board for permanent partial disability, I shall allow interest in the amount of $1,220. In summary Past economic loss, including interest Future economic loss Special damages Gratuitous services in past and interest Future gratuitous services Medicines and medical Pain, suffering etc $ $ $ $ $ $ $ $ 40,700.00 120,000.00 4,341.65 5,980.00 28,000.00 6,000.00 58,220.00 263£241.65 After deduction of the amount paid by the Workers' Compensation Board, there will be judgment for $244,098.38 together with costs to be taxed on a solicitor and client basis. -- 8 of 8 --