Bennett v Benfell [1990] QSC 458

10 20 30 40 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE DEMACK ROCKHAMPTON, 3 DECEMBER 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: CECIL JAMES BENNETT -and- STEPHEN REX BENFELL JUDGMENT Plaintiff Defendant HIS HONOUR: Mr Bennett was born on 19 November 1946. In April 1984 he was employed as a boner at Metro Meats. There was an industrial dispute which had been continuing for sometime and he was involved as a picket at the entrance to the company's premises. On the afternoon of 11 April 1984, a four wheel drive Toyota approached the entrance to the Metro Meats premises. The road that approaches the entrance also travels on towards the Fitzroy River. The vehicle that approached had fishing rods on top of it, and appeared as if it was travelling on towards the river. Instead of doing that it turned right abruptly and did not stop and entered the 10 20 30 40 so 50 premises. Following that incident, one of the men in the picket line closed the gate. That gate consisted of two hinged pieces of piping in the nature of boom gates. These were opened later to allow a vehicle to leave and then again closed. It was then noticed that the same four wheel drive -~6_0---+---------------------------------------------~ 60 -Govt. Printer, Old. 1 -- 1 of 6 -- 10 20 30 40 50 vehicle was coming down the hill from the works. Mr Bennett stood clear of the gate alongside the fence. He thought he was beyond the position where the gate would come to if it were open. The vehicle came down towards the gate and accelerated striking the gate. The gate swung around and struck Mr Bennett inflicting a puncture wound on his left loin. He was knocked to the ground. He had a sense of breathlessness and of pain. The pleadings that have been amended allege from the defendant's point of view that Mr Bennett was involved in unlawful activity and put himself at risk in the carrying out of that picket line. The parties have accepted an apportionment of liability which recognises there is some merit in the matters raised in the defence but still negligence on the part of the driver of the Toyota vehicle which caused injury to Mr Bennett. It seems to me that it is proper to find negligence on the part of the defendant and contributory negligence on the part of the plaintiff. Obviously, the situation which had developed with the Toyota was such that it was likely the vehicle was going to charge down the gate. This would have been seen by Mr Bennett and he had the opportunity to withdraw well clear of the scene so as to take reasonable care for his own safety. However, the greater part of the blame for his injuries must lie on the defendant, and I would apportion blame 40 per cent against the plaintiff and 60 per cent against the defendant. The wound that was sustained was quite a deep one, and Mr Bennett was taken to the Rockhampton Base Hospital. On 10 20 30 40 50 60 -------------------------------~ 60 -Govt. Printer, Old. 2 -- 2 of 6 -- 10 20 admission to the Hospital he was suffering from local peritonitis on the left side of the abdomen and an intravenous pyelogram was performed which showed that there was no evidence of function from the left kidney. He was subjected to a laparotomy which revealed a small perinephric haematoma. There were small tears to the colon. The stab wound in the loin was explored with a probe. A drain was inserted via the stab wound and the tears were repaired. It appears that after a period the kidney function returned and now seems to function quite normally, although the left kidney is small compared with the right kidney. However, Mr Bennett has had problems with a hernia. This has been repaired on two occasions unsuccessfully. I accept Dr Wetzig's opinion that no further surgery is indicated and that the hernia will need to be treated by a 10 20 30 30 40 supporting brace. This, of course, restricts the kind of work that Mr Bennett can undertake. Heavy lifting is certainly not open to him, although he could perform light storeman's work with a proper brace. It seems also that when he was struck he sustained some injury to his lower back. Dr McFarlane has examined him and expressed the view that there is a strain to the left sacra iliac joint and lumbo sacral spine. This results in some restriction of movement in the lumbo sacral spine. It again simply 40 50 50 reinforces the fact that Mr Bennett should not be engaged in heavy lifting work. Consequently, his work as a boner is no longer open to him. He has been unemployed for sometime. However, he should be able to work in a range of light jobs of the type of a storeman._ ___.c6~0---+·····--------------------------------------------------~ -Govt. Printer, Old. 3 60 -- 3 of 6 -- 10 20 30 40 50 60 On the material before me, I would assess past economic loss at $55,000. There has been a schedule prepared which sets out the income a boner might have earned and also an indication of what has been earned by Mr Bennett. -Govt. Printer, Qld. 4 10 20 30 40 50 60 -- 4 of 6 -- It seems to me on these figures the sum of $55,000 represents proper compensation for that part of his loss. Taking into account the benefits received from Social Security, I would assess interest at $12,000. For the future I would allow loss on the basis of a diminution of 10 10 20 30 earning capacity of $100 per week. Over 15 years this represents a sum of $55,000. For a time Mr. Bennett was dependent on assistance from two flatmates. He obviously had a period where he required considerable attention because of the dressings he had and the disability he had. He will also need further medical treatment in the provision of the brace, and for these matters of services gratuitously rendered and future medical treatment, I allow the sum of $5,000. Special damages are agreed in the sum of $10,485. The matters relevant to pain, suffering and loss of amenities arise principally from the things I have already referred to. It is obvious that the injuries have left Mr. Bennett with quite a significant loss of amenities of life. Wearing the surgical corset will, of course, quite 20 30 40 40 significantly restrict his activities. Prior to the accident he regularly went deep sea fishing. He no longer does this, but does on occasions go fishing from the beach. He also was involved in water-skiing, but that is now no longer open to him. Such so 50 60 activity would significantly affect his hernia. He also played social cricket, but does not do that because he has difficulty running. This also is in keeping with his hernia. For pain, suffering and loss of amenities I would allow -Govt. Printer, Old. 5 60 -- 5 of 6 -- 10 20 30 40 50 the sum of $40,000, and allow interest in the amount of $6,000. The total award then would be $183,485. After apportionment this produces a sum of $110,091. I have been asked by the parties to vacant the order made for costs on the last occasion, and there will be judgment for the plaintiff against the defendant for $110,091. I order that the order for costs made on 23 October 1990 be vacated. I order that the defendant pay the plaintiff's costs of the action to be taxed. -----=-60.c..._-+---~--------·------------------------------------' -Govt. Printer, Old_ 6 10 20 30 40 50 60 -- 6 of 6 --