Bakker v Prince Constructions Pty Ltd [1991] QSC 350

~ IN THE SUPREME COURT \1 \0i_ OF QUEENSLAND MACKAY No. 142 of 1988. BETWEEN: AND: JOHN BAKKER Plaintiff PRINCE CONSTRUCTIONS PTY LTD Defendant JUDGMENT - DEMACK J. DELIVERED the 5th day of December 1991. CATCHWORDS: Negligence - employer's liability - loss of earning capacity. Damages - personal injuries - lesion in L4/5 disc and lumbo sacral strain. Male labourer, aged 28 years. COUNSEL: Mr B. HARRISON for Plaintiff Mr J. DOWLING for Defendant SOLICITORS: MACROSSAN & AMIET for Plaintiff JOHN TAYLOR & CO for Defendant HEARING DATES: 21st and 25th November, 1991. -- 1 of 6 -- IN THE SUPREME COURT OF QUEENSLAND MACKAY DISTRICT REGISTRY No. 142 of 1988. BETWEEN: AND: JOHN BAKKER Plaintiff PRINCE CONSTRUCTIONS PTY LTD Defendant JUDGMENT - DEMACK J. DELIVERED the 5th day of December 1991. Mr Bakker was born on 16 February 1963. He was injured in the course of his employment with the defendant on 27 November 1987. injury. The defendant has accepted liability for his After leaving school in June 1979, Mr Bakker worked in various labouring jobs until April 1986. One of the cane farmers who employed him during the early part of that period, Mr David Simmons, said he could not fault the quality of his work ( p. 29) . From May 1986 until June 1987 he travelled around Australia on a working holiday. He commenced work with the defendant on 2 July 1987. Until he injured himself lifting a steel concrete buggy, he had been an eager and reliable employee. He was a strong young man, who in August 1991 had a right (dominant) hand grip strength of 70 k.g. and a left hand grip strength of 65 k.g. ( report of Helen Coles, (ex. 1 , p. 9 ) . With very modest educational attainments, his future in the workforce lay in the labouring field. -- 2 of 6 -- 2 On 27 November 1987, he experienced severe pain in his lower back when lifting a steel concrete buggy. It was late afternoon, and he went home soon after. The pain did not improve overnight. Next day he reported for work, but after climbing approximately 80 feet up scaffolding he was unfit for work. He went home to rest. He attended Dr Le Ray on the following Monday. He diagnosed a muscular strain to the lower back. He prescribed physiotherapy, which did not provide any relief. On 11 January 1988 he consulted Dr White, orthopaedic surgeon, who prescribed bed rest and physiotherapy, without improvement. He was admitted to the Mackay Base Hospital on 18 January 1988 and remained in ho~pi tal until 1 February 1990. Traction provided some initial relief, but the pain returned. Since then he has had a CT scan and a discogram as well as further Xrays. He has not returned to permanent employment. The orthopaedic specialists do not agree about the nature of his problem. It is clear that following the discogram on 23 August 1990 he suffered an infection which caused severe pain. He was treated for this in the Mackay Base Hospital from 13 September to 3 October 1991. He was then transferred to Brisbane to see Dr Ryan, orthopaedic surgeon, who admitted him to the Mater Hospital. A . bone scan suggested a disc space infection which was treated with intravenous antibiotics. He was discharged on 11 October 1990. Two orthopaedic surgeons, Dr Macfarlane and Dr Johnson Nurse, gave evidence at the trial. I accept the opinions of -- 3 of 6 -- 3 Dr Macfarlane in preference to those of Dr Johnson Nurse. Dr Macfarlane holds the opinion that there is a lesion in L4/5 disc and a lumbo sacral strain. It seems to me that the reports of Dr Lewis given in 1985 and 1989 support disc damage, and the persisting pain suggests a soft tissue strain as described by Dr Macfarlane at p. 41. I should note that I did not interrupt Mr Dowling's cross examination for some six pages as the transcript suggests. His questions resume at the top of page 42. Mr Bakker had strained his back in 1984, but the medical evidence (ex. 17) is that this was in the upper lumbar spine. There is, in my opinion, no evidence to suggest that he would not have been able to work as a labourer until about 55 years of age, if it had not been for this accident. Now he is fit only for light work, when that is available. In recent times he has helped Mr Simmons, who has now given up cane farming in favour of growing prawns. The work that Mr Bakker does at the prawn farm is not for the periods of time that would be necessary in a full time job. In my opinion, this is a case where the plaintiff's loss of economic capacity is best assessed on a percentage basis. In my opinion, such an assessment is not assisted by the kind of loss of function assessment Dr Macfarlane has made. The functions of bending, lifting and standing, which are significantly impaired, are the ones which are essential in the work for which Mr Bakker is fitted. For the past I shall begin with the material contained in exhibit 16. When he was injured Mr Bakker was being paid well in excess of the award rate. It cannot be assumed that he -- 4 of 6 -- 4 would have continued at that rate continuously since 27 November 1987. Nevertheless, Mr Bakker was a willing worker and the wages he was paid show what he could earn. Exhibit 16 shows a nett loss of $98,849.78. I shall allow $75,000, taking into account the amounts received from Mr Simmon' s. Allowing for the periodic payments of Worker's Compensation and unemployment benefits I shall award interest on the sum of $34,000 at 6% per annum, which I assess at $8160. For the future, it seems to me that Mr Bakker has lost 40 per cent of his earning capacity. take into account all the factors This figure attempts to that emerge from the exhibit 16, his weekly nett evidence. On the basis of capacity is now $520. I assess his weekly loss at $200, over a future working life of 27 years. I shall round off the figure to $155,000. Special damages were agreed in the amount of $8125.16. I understand that the items other than those paid by the Workers' Compensation Board, including income tax, attract interest, that is an amount of $4175.22. This amount has been spent over a period since the accident and I shall allow 6% over the four year period, rather than commercial rates on individual items. I shall allow $1000. Mr Bakker requires regular medication. There is no suggestion that he requires surgery. He will need regular medical examination. I shall allow $4 per week for this, for a period of 45 years, an amount of $3800. Mr Bakker has had considerable pain since 27 November 1987. He has tried very hard to get back to work and has undergone a rehabilitation program. He will still need much -- 5 of 6 -- 5 patience and persistence to find a job. He will need to withstand pain and discomfort while he is working. Prior to the accident Mr Bakker played Rugby League and indoor cricket. He was interested in karate, pig shooting, fishing and camping. He still goes fishing, but frequently experiences pain. He does some gardening, helps Mr Simmon's at the prawn farm and does domestic chores. He becomes angry and frustrated at times, and this affects his relationship with his de facto wife. For pain, suffering and loss of amenities I shall allow $50,000. Allowing for the Workers' Compensation payment for permanent partial disability I shall allow interest on $15,000 at 4%, an amount of $2100. In summary the award is: Past economic loss including interest Future economic loss Special damages including interest Future chemist and medical expenses Pain, suffering and loss amenities including interest Less Workers' Compensation refund $ 83,160 $155,000 $ 9,125.16 $ 3,800 $ 52,100 $303,185.16 $ 28,657.05 $274,528.11 There will be judgment for the plaintiff against the defendant for $274,528.11 together with costs to be taxed. -- 6 of 6 --