Currey v Leamon Consolidated Queensland Pty Ltd [1990] QSC 192

(---- 10 20 (j 30 50 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR.JUSTICE DEMACK MACKAY, 16 MAY 1990 No. 104 of 1986 (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: HENRY CHARLES CURREY Plaintiff - and - LEAMON CONSOLIDATED QUEENSLAND PTY.LTD. Defendant JUDGMENT HIS HONOUR: Mi. Currey was born on 11 June 1947. He was injured in the course of his employment with the defendant on 8 May 1985. On that date, he was driving a front-end loader. He used that machine to load some bins at a site on Farley Hill outside Mackay. When he had completed the loading, he was to drive the front-end loader from the area of the bins down towards Mackay Harbour. This involved driving over a fairly rough road up to a crest and down the hill. The track down the hill was curved and had a relatively steep grade with a rough surface. It was conceded by the defendant that the front-end loader in question had no effective braking system. Mr. Currey commenced the descent in low gear. The engine stalled. This meant that the power steering became ineffective. Mr. Currey tried to use the manual steering which was very heavy. He thought of dropping the bucket of the front-end loader onto the 1 10 20 30 40 50 60 -- 1 of 9 -- 10 20 30 40 so ground, but believed that if he did this~ there was a very serious risk that the machine would go end over end. In fact, the front-end loader overturned and he was injured. It seems fairly obvious, as the defendant's then ~anager Mr. McDougall conceded, that brakes are an essential piece of equipment on a vehicle such as a front end loader. The bra~es were, in fact, needed· for the various tasks for which the front- end loader was required.· They were specifically needed when 10 the vehicle was driven down the hill because it was quite foreseeable that a situation would arise where it was necessary to bring the vehicle under control. With no brakes, this kind of control was impossible. It was also foieseeable that if the vehicle could not be controlled in a situation of emergency, Mr. Currey could be injured and injured seriously. ·It was simply a·matter of carrying out routine maintenance of a proper kind on a piece of industrial equipment. It was suggested that the defendant· did not have the financia 1 resource'.s I to carry out effective repair of the brakes. That does not see I to me to be an,explanation that the law can accept. It was the , ' defendant's duty to provide safe equipment for its employees, and it would seem to me to be fundamental in the case of a front-end loader that that safe equipment included an effective braking system. It is not cle~r on the evidence why the vehicle stalled, but that-does not seem to me to be a significant issue. What is clear is that it is known that vehicles from time to time stall and if that happens on a'.hill, then the need for brakes becomes absolutely imperative. The possibility of stalling was one .of those risks that was foreseeable. · It was a risk that carried with it grave consequences and those consequences could - ... . . -....vYL Printer, Old. 2 20 0 30 C-) ( ) 40 ( '. , I ' / I L 50 60 -- 2 of 9 -- only sensibly be met by the provision of,the effective braking system. The defendant had been warned of the possibility. of such an incident when one of the other brakeless front-end.loaders got out of control while being driven by Mr. Bonham. Mr. Bonham 10 managed to get the vehicle to the bottom of the hill without any 10 injury. Ordinarily, such an incident should have alerted the employer to carry out the necessary repair work on.the vehicles. That does not seem to have happened here. I am satisfied that the defendant was negligent in.failing () 20 to provide an effective braking system on the front-end loader that the plaintiff was required to drive. I am satisfied that that negligence caused the.plaintiff's injury. 20 () (_) ( ) Various matters were pleaded by way of.contributory negligence. Many of them involve allegations of fact which are 30 not sustained on the evidence. For instance, it is alleged that the plaintiff was eating while he drove the loader. · I am satisfied that that is not proved. It is alleged that he drove the loader with the bucket in an elevated position by which( I G understand it to be said that the bucket was high off the () 40 ground. I am satisfied that the plaintiff drove with the u 50 bucket at the same level as he ordinarily drove, which was certainly more than one foot above the ground but not elevated to the degree that it would cause instability. The plaintiff was an experienced driver and I am satisfied that he did nothirig other than what an ordinary experienced driver would do. There are allegations that he.failed to stoμ the vehicle_prior to attempting to restart ~t. That is a strange pleading coming from a defendant who failed to provide a braking system to enable the vehicle to be stopped. .,er, Old. 3 30 40 50 60 -- 3 of 9 -- 10 20 30 40 so Ther~ ar~ also allegations of excessive speed whi6h I reject, and of a failure to put the vehicle into low gear which I reject. - There' is also the contention that he should have ·dropped the loader:bucket immediately the engine cut out. ·ram satisfied that 'if he had done that, there was a risk of even more serious injury than he sustained. I am satisfied that he·· considered· that possibility and his response to it was a reasonabl~ one in the circumstances. I am not satisfied that ~ny contributory negligence has been proved. Mr.Currey was taken to the Mackay Hospital. On admission, he had bilateral severely contused lungs~ the right more so than the left; abrasions about the left upper trunk and loin region; strain of the left sacroiliac joint with downward displacement of the left h~mi-pelvi~. There was a fracture present in the pelvic rami on x-ray of this region. There were no rib fractures. He required two chest drains to remove fluid from his lungs. His chest condition became stable after several weeks of intensive treatment. There does not seem to be any suggestion of any continuing chest problems. However, he suffered very serious disabilities in respect of his lower back and his pelvic region. He has been under the care of Doctor Cook since December 1985 and I ac~ept Doctor ~oak's evidence and his opinion. Doctor Johnson Nurse examined the plaintiff for the : . . defendant. · He raised some· questions about the connection between the i~1~ty ibd-the ~isability that Mr.Currey has in his lower'ba6k. However, it seemed that when he had been info:tme'd of° the complaints Mr. Currey made quite - early in the piece to Doctor Cook, he· accepted that the problems in the · • Printer, Qld. 4 10 30 c·) c~) C-) (_j 40 C) C) 50 60 -- 4 of 9 -- () () 10 30 ( ) 40 / L 50 lower back related directly to the injury sustained on 8 May 1985~ Doctor Cook_ has performed two operations on Mr.Currey. The first of those was performed on 19 January 1987 when he carried out an arthrodesis of the left sacroiliac joint. In May 1989 he carried out a bilateral posterior lateral spinal fusion from L4 to Sl. H:e now proposes to carry out an arthrodesis of the right sacroiliac joint. This will, of course, mean that a very large part of the lower spine will be fused. This should significantly reduce the pain in that area, however, it will mean that Mr.Currey will have considerably r~duced mobility. Also, it will mean that there will be added strain thrown on the other joints in the area. These joints not only include the other lumbar joints in the spine, but also both hips. There is also stiffness associated with the left hip because of the fracture in the acetabulum. At the time of the accident Mr.Currey was aged 37. He has not worked since the accident. He is said to have some- residual capacity for work or should have after this next operation, however, that is clearly of a very marginal character. I am satisfied that if he does perform tasks such as mowing for about an hour, this then produces pain and discomfort which may take as much as two days'rest before recovery. For the purposes of assessing his pretrial economic loss, S.~.Tait & Company have prepared a schedule which is Exhibit 11. This is mad~ up of two distinct components, because for many years Mr.Currey had worked in two capacities. During the crushing season he had driven semi-trailers for ,ter, Old. 5 10 20 30 40 50 60 -- 5 of 9 -- 10 20 30 40 50 ·. 60 Zarb's. He was 1 well regarded.by that firm and could reasonably to expect to continue working .for them quite indefinitely. -~uring offrseason he had worked for the defendant from time to time and.,also for Mr.McDougall, as well as in o~her capacities. The schedule, in Exhibit 11, · is made up by having, as the.component for the crushing season, the., average gross wage earned by Zarb employees in the Mt.Ossa area. That seems to me to be a very proper basis fo~_assessment of that part of the plaintiff'~ los~. The balance is taken for varying numbers of weeks at the rate appropriate under the proper award. In the two years before the accident Mr.Currey had· periods of unemployment. It se.ems likely that during those times he was doing work on his farm. He mentioned only one of these. in hi::;, statement, al though the. tax. returr:s showed two years. Consequently, it seems to me, there ·must be some discounting of the figures-in Exhibit 11 that takes . ·-· ' ' . account of the possibility that he would want some time off work or that he would take some time off work to work on his farm. The figure in the schedule is $85,968. I assess the pre-trial 0 loss at $80,000. It is important, I believe, to note Mr.McDougall's description of the plaintiff at p.55 of the transcript as a very competent man in all aspects of: his employment. So far.as .interest is concerned, $52,000 was received from the Workers' .Compensation Board in periodic.payments anc:L.in lump .sum. Si~ce th!:lt .ceased in .. 1988, Mr.Currey has· been receiving. social security payments. I am unaware of the amount of these but I believe I should make some -inter, Old. 6 10 20 0 30 (J C 40 ( ) , l.' I 50 60 -- 6 of 9 -- ,·. (1 ( ' \___) 10 30 ( ) 40 lJ 50 60 allowance for what seem~ to be an approximate amobnt there. in determining what part of the $80,000 should bear interest. I should allow interest on the amount of $14,000 of the $80,000 and I assess interest at $4,200.- Taking the last year in the schedule to .Exhibit 11, I assess Mr.Currey's present economic capacity.but for.the accident at $400 per week net •. The figure, as I understand it, cannot be calculated precisely because it does not appear cl~arly how long the crushing season has been in each of these years, but $400 per week seems to me to be justified on the table. As I have previously indicated, this does not allow for time off either for holidays or various other matters. Also, some allowance must be made for this residual capacity, even though it is minimal. ror the purposes of assessing the future economic loss, I shall treat Mr.Currey's loss at $300 per week. He is now aged 43 and I am satisfied, on all of the evidence,·that a period of fifteen years for future loss is justified. It produces a sum of $166,500 for future loss of economic capacity. I am satisfied that this sum takes into account the various contingencies of life as well as the specific disabilities that would arise in this particular case. ,Special damages are taken essentially from the·Workers' Compensation Board letter. These show that the payments that have been made to doctors and hospitals and otherwise in this case, amount to $8,566.21. There is also the sum of $5,313.04 in respect of income tax deductions, which makes a total of $13,879.25, no part of which beais interest.· In addition, Mr.Currey says he has spent about $120 on medication; $84.57 of this has been established with:receipts, •inter. Old. 7 10 20 30 40 50 60 -- 7 of 9 -- I i. 10 20 30 40 50 but I accept his evidence of $120.· I will allow $10 interest on that because these items seem to have been spent since 1988. The tot.al :then for special damages is $14,009.25. As I calculate Ddctor Cook's eVidetice, the cost of the operation which should take p~ace shortly r~· $2,645 which I shall allow in that amount. So far as pain, suffering and loss of amenities are concerned, Mr.Currey has had the two operations I have referred to and will have the further one shortly. He has also had a great deal of treatment of varying kinds, including traction. He has suffered a great deal of pain and discomfort and will still have that in the future. Also, he will have, as I have indicated, a very stiff back. At the time bf the accident he was enjoying a- full, vigorous life, being fully employed and well respected for his skill. He also had a farm which was in the nature of a hobby farm for him. He there kept a few cattle, a couple of horses and planted some fruit trees. All of this amounted to a very pleasant physical life for him. His recreations were riding horses and working on the farm and occasional fishing. He has not been able to return to horse riding and sold the horses. He finds it difficult and painful to perform the •-various tasks around the farm of mowing and caring for the fruit trees and tending the four head of cattle that he still has. He depends very much on his wife and members of his family to help him with those tasks, however, this is not of a precise nature which would justify any separate item. To cover all of these matters of pain, suffering and loss of amenities, I shall allow the sum of 8 10 30 c\! () ! (! l) 40 CJ ( 50 60 -- 8 of 9 -- () (_) 10 30 50 60 $50,000, $20,000 of which will bear interest which I fix in the sum of $6,000. The total .of the award then is $323,354.25. The amount of the Workers' Compensation Board refund is $60,465.94. There will be adjustment for the plaintiff against the defendant of $262,888.31, together with costs to be taxed. ,;;ter, Old. 9 10 20 30 40 50 60 -- 9 of 9 --