Andrews v Beaumont [1990] QSC 270

C C C C IN THE SUPREME COURT OF QUEENSLAND CAIRNS DISTRICT REGISTRY No. 149 of 1987 Before Mr. Justice Kelly S.P.J. BETWEEN: AND: Delivered the CATCHWORDS: Counsel: Solicitors: ROBERT JOHN ANDREWS RICHARD PATRICK BEAUMONT JUDGMENT - KELLY S.P.J. t'? fL day of ~ G.J. Houston for plaintiff P.J. White for defendant Knell Bottoms & Davies for plaintiff Murray Lyons & Co. for defendant Hearing dates: 28th and 29th June, 1990. Plaintiff Defendant 1990. -- 1 of 14 -- C C C !c IN THE SUPREME COURT OF QUEENSLAND CAIRNS DISTRICT REGISTRY BETWEEN: AND: Delivered the ROBERT JOHN ANDREWS RICHARD PATRICK BEAUMONT JUDGMENT - KELLY S.P.J. day of No. 149 of 1987 Plaintiff Defendant 1990. The plaintiff was injured on 3rd February, 1987 whilst employed by the defendant as a truck driver. He was at that time working in the Chillagoe area with other drivers employed by the defendant and was driving a Kenworth prime mover which was coupled with a trailer described as a rigid tipper. The plaintiff and other drivers were engaged in carting sand from a river bed to a mine, a distance of about 20 kilometres. There were three braking systems for the unit driven by the plaintiff, comprising the prime mover and trailer. The brakes on both the prime mover and the trailer were activated by an air operated system when the foot brake was applied. Brakes described as maxi-brakes, which corresponded to the hand brake on a normal vehicle, operated on the two drive axles of the prime mover and were activated by means of a button in the cabin which also had to be pushed in in order to release those brakes. If the maxi-brakes were not applied when the vehicle was stationary -- 2 of 14 -- 2 and the engine turned off those brakes._ would be applied automaticaliy after 15 to 20 - minutes when . in -- this . p·articul·ar vehicle the ~ir had leaked out of the air operated system.·· There was in addition an emergency trailer brake system which could be independently activated by means of a lever in·- the cabin. The emergency trailer brake system also operated automatically when the air pressure in the air operated system was too low and when the pressure reached the correct level, which should be about· 15 minutes after starting the vehicle, the trailer brakes ~ere Q rele~~ed. The button to activate the maxi-brakes was sit~ated in the centre of what was apparently a panel and was to the left of the driver's seat and about four feet froni. the door. The lever to activate the trailer brake system was·on the right-hand side' bf-·the· sfeering ·column . . The "plaintiff .. "described various defects in· the braking syst~ins -of the· vehicle which he drove. , - . The brakes to the wheels 0 on th~- · front or steering axle were badly worn and ineffective and Q the brake ·assembly · on the rear axle on the off side of the ·· · trail'er had been removed so that there was no braking mechanism on t.hat wheel. There were also some leaks in the air operated system. Whilst it.does not appear that those particular defects had any causal connection with the incident in which the plaintiff was injured they form part of the generai picture of the condition of the ·braking systems of the vehicle. ' - When the plaintiff first drove the vehicle he found that after a time the brakes were n'of holding as. they should and that he .. started to - . lose effective br.aking. On examination he found that the brake'·'· . drums,· brake. shoes and brake linings ori "the . maxi-brakes • were 0 -- 3 of 14 -- 3 fairly __ w~ll worn. A further defect was that the slack a_dju~ter locking _rings were pe_rmanently in a depressed position with the result that they were not operatio~al and consequently t}:le plaintiff had to adj_ust the brakes on the drive axles of the prime mover at least _twice and sometimes three times a day because as_ he put it "you kept running out of brakes". _ The plaintiff informed a Mr. Coyne, who was in charge of the defendant's operations in the Chillagoe area, of his problem w_i th 0 the adju~tment of the brakes and was told that they would have to "batt~e_ through". In fact in the period of eight days prior to t:he, incident during which the plaintiff was driving· the C C C vehicle he complained to Mr. Coyne of this about three times and his answer.was to the_effect that he (the plaintiff) would "just .- . . .. have to keep doing it" if he wanted to keep his brakes worki;ng. " ., ' - -·- ... ,_ The plaintiff_ said that when he lost brake adjustment _he lost ·• - . s - . - " . ' - . -~. - -- -- _. . --.- ~ - • 1 ~ _:· • ' • nearly all the l:>raking power of the prime mover and that it w~s, -, only t~e five brakes that were working on the trailer that were J . pulling .up the truck instead of all the brakes. Because of the problem with the brakes when the plaintiff parked his vehicle overnig}:lt_he would back in with the rear wheels of the trailer up ag,ain~t a_ big mound of earth so that the vehicle would not run awar. On 3rd February, 19_87 the plaintiff's vehicle with _other vehicles was eng_aged in carting sand from the riv_er bed and about ' ~ . . . '. 9.00 a.m. _a number of drivers_including the plaintiff stopped for smoko, which la_ste,d about_ 20 _l;Ilinutes to ha~f an hour. When the plaintiff stopped his vehicle h~ applied the maxi-brakes and~ • • :>. • • ~ - : ., ' • ' C after the turbo had cooled down, turned the motor off. This -- 4 of 14 -- -----~---------~------------------------~--- -~----------~ 4 meant that towards the erid of' smoke the emergency trailer-brakes· would have been on and the maxi-brakes were on as well.· The plaintiff I s - vehi-cle -was parked about 30 feet behind another of the defendant's vehicles· driven by Kenneth Carrington and-on·a slight _ incline which ran towards · Carrington' s vehicle. The plaintiff's vehicle was empty. At the conclusion of smoke the plaintiff got back into his vehicle, started the engine and waited for air to build up :tri the system and also for Carrington's vehicle to move as it was next in line to be loaded. After he had been waiting in his vehicle for about 10 minutes the plaintiff received a call from Carringt'on on h·is two-way radio enquiring whether he had a hammer as the· trailer brakes on·carrington's vehicle had locked. The plaintiff got out of his vehicle, obtained a hammer and proceeded down -- to.: Carrington I s vehicle,· leaving the engine, of his• own vehi:d1e·::running and, he says, with the maxi-brakes' on.' The plaint.if f and Carrington then got under Carrington Is trailer and' ende·avoti'red -- to release the brakes, the plaintiff being on 'the grmfo'd 'between the centre and back axles of the trailer. - When they had been under the trailer for what the plaintiff says-was about five to seven minutes, although he is not quite sure df this time, the plaintiff heard a call from Mervyn Algood, who was engaged in the sand 'carting operation with his own vehicle/ to· the effect ·that hi's, (tlie plaintiff's) truck was 'coming - towa~ds the trailer. Carrington managed to get clea'r but the plaintiff was - unabl~ to do so and was still under the' trailer when - the driver's side of his prime mover collided with the rear left-hand-- 0 0 0 0 -- 5 of 14 -- 5 side of Carrington's trailer and then veered off a little to th~ left_ and went away from the trailer .. The plaintiff said that one of the axles of the trailer hit him in the neck and something hit him in the face and smashed his teeth.· He managed to get out from under the trailer and he saw that his prime mover was moving slowly towards the river. He moved towards it for a distance of about 15 feet and then got one foot onto a step on the driver's side of the prime mover and CJ activated the lever which applied the trailer brakes and this immediately brought the vehicle to a complete halt. From the position he was in, which was outside the vehicle, he was unable to reach the maxi-brake button. and he said that it was impossible to open the door, which was closed, as it was smashed in. The window on the.driver's side was down . . . The p_laintiff _ said that there was no mechanic with .. the defendant's vehicles in the area and the drivers did their own C maintenance during the_day. He said that prior to his accident the last occasion on which he had adjusted the slack adjuster in the .. maxi-brakes was on the previous afternoon and that he probably would next have done it about lunch-time on the day.· of the-accident. Mr. Algood gave evidence of the occurrence of the accident which was to the same effect .as that given by the plaintiff. He .. said :.that from where •. he saw tr.ie plaintiff standing after he had jumped-onto the side of the prime mover and reached in through the window it ·· was. not possible for him to . have. reached the maxi~brake button. He also said that it was not possible to open the driver's side door because of the damage it had sustained. -- 6 of 14 -- 6 Mr. Algood was cross..:..exarri:iried about ·a statemeiit 'he had given some months after the accident to· a person · he nelieved 'to· be - a . . representative of the irisu·rarice company .. It ~as put to him that he had said to this person "I think Andrews jumped up and got into· his truck to stop ·it rolling down into the river"~ Mr. Algood' s answer was · "Well, he couldn' t have because you couldn't open the door", although he agreed that he may have said what·· had been put to him. I accept the plaintiff's evidence on the matters which I Q have·· set out and I find as facts that the condition·. of the·· braking· system of 0 his. vehicle was as he described it, t.hat· he made the complaints to Mr. Coyne and received the replies which he d·escribed arid that the events of 3rd February, 1987 were·· as he de'scribed them~ - 'In particrilar I find that· at the time when he l~":ft his vehicle to go to the assistance of Mr. Carringt~n his •- maxi.".:.brakes were applied and that the brakes which he applied in · 0 order to bring his vehicle to a halt after it had· collided with ·o Carrington's vehicle were the emergency trailer brakes. I found Mr. ' Algood a· credible witness and on consideration of his evidence in conjunction with that of the plaintiff I am satisfied that in his attempt to stop his vehicle the plaintiff climb~d onto the.step of'the vehicle arid reached through the open.window to operate the l~ver which activated the eme·rgency .trailer brakes and that he did not~ operi' the door because 'it was not possible to do so. : · in· answer to a.n iriterrogatory the def·endant · said that his' · · foreman, Ia~ Edw~rd Coyne, inspected the truck the plaintiff had: been:driving·a shcirt "t-ime' following the inciderit"aild fotindth~t 0 -- 7 of 14 -- C C 7 the m~~i-brake was appli~~- On the. basis that, in accordance with the evidence which I have accepted, the .plaintiff was unable. to reach the button to activate the maxi~brakes from outside the cabin and could not open the door to go inside the cabin, that evidence ~n my view supports the evidence.of the plaintiff that the maxi-:-brakes had been applied at the time he left the vehicle. Kenneth Leslie King, a safety consultant with an engineering background, who was called on behalf of the plaintiff as an expert had prepared a report to which objection was taken and which, after argument, I did not admit into evidence. Mr. King had, .by leave, been present in court during the plaintiff's evidence and I permitted him to express an opinion as to whether, on that evidence alone, the. prime mover and attached tra.iler could unexpected.J.y roll with the maxi-brakes applied .. · His a:n,s.v1~r. was t.hat it could and the only . question .. put to him in cross-examination was to suggest that he was wrong, a suggestion with which he disagreed. On the findings which I have made I further find the cause of the accident and of the plaintiff's injuries was that, ~Y reason of the defective condition of the maxi-brakes of the p;-i~e mover which the plaintiff had been driving, the prime mover and the attached trailer rolled when parked on a slight incline at. ~ . a ti,me when those brakes were applied and came into collision with the trailer of Carrington's vehicle under which. the plaintiff was working to assist Carrington in releasing the brakes of. the trailer whiqh had. locked. I fihd that the injuries, lo.ss ai:i,d d~mage suffer~d by the plaintiff were caused by the defendant's breach of quty in providing the plaintiff with. -- 8 of 14 -- 8 a vehicle · with maxi-brakes · in a •defective condition · ···and unreliable,·' in failing to provide for· proper' maintenance· of the · vehicle and consequently iri failing to provide. the plaintiff with a safe· system· of work~· I proceed then to assess damages. At the date on which he was injured the plaintiff was almost 37 years of age and·he is now aged 40. The principal injury which he suffered and' the cause of his - subsequent disability was a crush injury to - the right brachia! plexus. He suffered some other injuries which are relatively minor. - The injury to the brachia! plexus resulted in almost total dysfunction of the C5-T1 nerve roots · and cons'equently in a complete absence of sensation in the arm. The plain'tiff·underwent· surgery and extensive physiotherapy without any C significant result and he was then fitted, with a spring loaded adjustable splint which -supports the right arm in various - positions depending on the function which the plaintiff intends to carry out. He· is right handed. He suffers severe· and constant pain to the brachia! plexus which he describes as being simrlar to·- a cramp. · During the period since the accident he has tak~n ~arious pain-killers prescribed for him but he ha~-been able to reduce the dosage as his body adjusted to· the pain:.- He has·· no· feeling or movement from the shoulder to the fingertips and :·no - feel·ing from the right clavicle to the right side of the: shoulde~ bl~de. · In consequence of this ~oss of feeling he has inj~r~d-his.ri~ht ~rm 6~ man~ occa~ions, mainly-as a result of burns an.a·· cuts, and - his doctors have discussed with· him 'the .. - •· question· of· amputat:i.ori for his own safety.'. He would ·be prepared· : .- to undergo · this · sur'gery if so: advised ... 0 0 0 0 -- 9 of 14 -- 9 The . medical evidence. consisted : of .reports and .. no oral evidence of this nature was called. The most recent report, that. of D_r. Thomas, an orthopaedic surgeon, is that the plaintiff has suffered 100 per cent loss of use of the right upper limb and that his condition is static and unlikely to change in the foreseeable future. Dr. Thomas regards amputation of the upper limb. as an outside possibility should the plaintiff develop atrophic changes, such as deep seated infection, which fail to (' heal within a reasonable time. C C C Prior to the accident the plaintiff was active in sport and played tennis and bowls and engaged in water skiing. Of those sports the only one in which he has been able to engage since the accident is- water skiing, which he has tried with , limited success. He ~equires assistance in dressing, preparation of meals,and certain other everyday tasks, although he has changed his lifestyle -to suit his disability as best he can. It is admitted ~hat at age 40 the plaintiff has a life expectanc~ of 33 years. I include in general damages for pain, suffering and loss of amenities the sum of $60,000.00 and I apportion $15,000.00 of . that;sum to the period up to trial. :. , After leaving school the plaintiff joined the Regular Army and ?erved for six years until his discharge in 1974. From about 1977 -. to July 1986 he was employed by East-West Express as a long distance truck driver and when that company was about to be_taken over ·by._ another company he left and, seeking a change in lifestyle, took_~mployment-with ~he defendant.as a truck driver on a casual permanent basis_ on 9th September, 1986 . and this -- 10 of 14 -- 10 employment continu·ea until the date. of ti1e injury. · He received periodical payments of. iJorkers' - compensatidn, J.ntil 3rd March, 1988 and subsequently received a lump sum payment. He was placed on ~ri ; invalid pension irf October 1988. The plaintiff again.- . . . worked for the defendant from about September·1987 to May 1988 to asc·ertain whether he was capable of acting as a truck driver · but this proved not to be so. He estimates that his net.income in this period was approximately $12,000.00. The plaintiff has not worked since that time. 0 rt appears that the plaintiff is no longer· capable of drivlng a truck and counsel for the defendant did not ~u~gest" otherwise: He says that.he is not re-co-ordinated with his left hand ind· it appears that his attempts at ~riting with fhat ha~d are-riot.as yet very successful. He is not really sufe as to the· work which he may be capable of doing. Dr. Thomas 'expressed the'· · · - . ~ ' opin:i.ori ·that it:·· seems that· the plaintiff is a ·fairly well 0 motivated man who-·is going to accept the fact that he is· going 0 to be· completely one-armed and he considers that in time. the plal~tlif wiil be able to retrain himsel£ into certain duties consis~enf with this type of disability. . ' I accept that this is so and proceed on the basis that the plaintiff has not completely . -·. lost.hfs ·capacity to earn income although~ being realistic, one couta. not be overly optimistic as to the amount.which he may be capable ·of earning. The ·period for whfch economic loss up to the date of trial . is ·to be assessed is 1·75 weeks·. There was some evidence ·as to· th~ plaintiff Is. earnlncj's whilst employed by E'ast-West Express but thfs' is' of .. limite·a ·va:iU:e · as ·the in~~me C tax 'returns from ~h:i.6h 0 -- 11 of 14 -- lo 1 1 this information comes were prepared on the basis.of estimates. as no group certificates were available when the returns were prepared. In any event.at the time he suffered his injury the plaintiff was employed on a different basis than he had been with East-West Express. I am unable to accept his assertion that but for his injury he would have earned in excess of $400. 00 per week net on average during.the period from the date of the injury to the date of trial. The plaintiff said that he earned on average $340.00 per week during the period that he was employed by the defendant prior. to his injury and it would seem that this included the short period when he worked. in the Chillagoe area when he received almost twice.as much as when he was working around the Ipswich area where the defendant was based. I consider that at the most the plaintiff would have earned something of the or.der of $60,000.00 net during this period. Some discounting of this_ · figure is.necessary to have regard to the possibility that the_ plaintiff may not have worked continuously throughout the period and _the sum of $12,000.00 must be deducted to take actual earnings into account. In the result I include in general damages the sum _of $42,000. 0.0 for economic loss up to trial. In considering future economic loss I proceed on the basis that it.is more probable than not that the plaintiff would have continued in employment as a truck driver for the rest. of his working life, which I am prepared to assume would have been up to the age of 65, sul:>ject_of c<Jurse to any contingency which may have compelled hill'! to cease emplpyment earlier. As he gave up working as an _interstate driver and elected for a. change in -- 12 of 14 -- 12 tif estyle by engaging- 'iri · the type of work in which- '·he - was employed by the - dEffendant prior to the - accident, I am not disposed to·regard this merely as a "stopgap" measure until he could - find alternative employment with an interstate trucking company,. as the plaintiff asserts. I would consider that it may well'be that taking as a whole the period up to the date when he would.in the ordinary course of events ultimately cease work~ he would not on average have earned above the award wage. Taking- the present award' wage of $310. 00 per week net as. a base figure Q this would result in the sum of $233,430.00 for 25 years on the five-per cent tables. If for the 1s·years which the plaintiff says he·could have been employed as an interstate driver he were' in fact to obtain and hold such employment he would no doubt have' earned a good deal more than the award wage. On the other hand, -> if he were to be compelled to cease work earlier than age 65 dr were 'to suffer ~eriods of unemployment he may in the event earn a good deal less·than·the figure produced by the calculation. Some regci'rd must also be had to the plaintiff I s residual earning capacity and, -- whilst allowance is to be made for this, -I would make · only a ·relatively' small deduction on this account. I include in general damages the sum of $210,000.00 for future economic loss. On the material in evidence a sum of $15,000.00 is claimed for the future cost of medicines. The material supports this and I would allow it. The contingency of this expenditure becoming less if the limb were to be amputated appears to me to be counter-balanced by the likely cost involved in undergoing such an operation. 0 0 0 -- 13 of 14 -- ,; J 13 The .total of the plaintiff's general damages is therefore $327,000.00. Special damages in the sum of $8,876.02 are admitted and, as counsel for the defendant is prepared to accept the figure of $2,000.00 for the cost up to trial of medicines for pain relief which was proposed in the course of argument, I allow special damages in the sum of $10,876.02 so that total damages are _assessed at $337,876.02. From that amount workers' compensation payments of $50,882.28 are to be deducted so that C the sum.for which judgment is to be given, apart from interest, is $286,993.74. C C C' In arriving at the sum on which interest is to be allowed regard must be had to the periodical payments of workers' compensation and the social security payments received. After taking these into account the sum on which interest is to be allowed is $25,000.00 made up of $15,000.00 for pain, suffering and loss of amenities, $8,000.00 for net economic loss and $2,000.00 for .the cost of medicines up to trial. I allow interest on $25,000.00 at the rate of six per cent per annum for a period of three years, being the amount of $4,500.00. I give judgment for the plaintiff for $291,493.74 with costs, .including reserved costs if any, to be taxed. -- 14 of 14 --