Bulmer v Utah Development Company [1990] QSC 153

10 20 30 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MASTER WHITE BRISBANE, 14 MAY 1990 F:~~\.'j~·:~:D c~c-,~.J\E-:S !SSlJED c:c:_:ft F-£::p~,;·ting Bure2u Date, G/ ~/ <tc, No. 4168 of 1985 Sc (Copyrigh_t 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: JOHN BULMER Plaintiff - and - UTAH DEVELOPMENT COMPANY Defendant JUDGMENT MASTER: In this action there will be jU:dgment for the plaintiff in the sum of $331,534.18. I publish my reasons. I further order that the defendant pay the plaintiff's costs of the action. 10 20 30 40 40 --· 50 50 60 60 G 214-Govt. Printer, Old. -- 1 of 16 -- IN THE SUPREME COURT OF QUEENSLAND HELD AT BRISBANE NO. 4168 OF 1985 BETWEEN: CATCHWORDS: COUNSEL: SOLICITORS: BULMER Plaintiff UTAH DEVELOPMENT COMPANY Defendant JUDGMENT - MASTER WHITE Delivered the Fourteenth day of May, 1990 DAMAGES - personal injuries - quantum - plaintiff miner 38 injured back falling backwards off ladder in underground mine - whether plaintiff left without capacity for regular remunerative employment prior to injury plaintiff had asymptomatic spondylolithesis - question as to what age the plaintiff would have been incapacitated for work in any event because of the pre-existing spinal disorder W.A. Martin with him T.D. North for the plaintiff W.D. Campbell for the defendant Messrs. Brittan & Associates for the plaintiff Messrs. Morris Fletcher & Cross for the defendant HEARING DATES: 30th April, 1990 to 1st May, 1990 -- 2 of 16 -- IN THE SUPREME COURT OF QUEENSLAND HELD AT BRISBANE NO. 4168 OF 1985 BETWEEN: BULMER Plaintiff UTAH DEVELOPMENT COMPANY Defendant JUDGMENT - MASTER WHITE Delivered the f.., /L/, day of May, 1990 The plaintiff, presently aged 43 years, sustained an injury to his back when he fell backwards off a ladder in an underground mine at Harrow Creek Colliery near Dysart in Central Queensland on 10th December, 1984. Liability has been settled between the parties. The plaintiff came to Australia in August 1980 from the United Kingdom and commenced work with the defendant in about March 1984. He was employed as a shiftman miner at its underground mine at Harrow Creek and had been so employed for some eight months. The plaintiff felt immediate pain in his spine after falling but thought that his back was merely badly bruised. He expected to be able to continue with his work until he went on holidays two days later. He continued with his shift but a fellow-worker, William Weir, confirmed that the plaintiff complained of the pain in his back until, finally, as ~e attempted to lift a cable the next day, he felt such extreme pain that he could no longer continue. By then he could no longer walk without assistance and was bent over. An ambulance -- 3 of 16 -- 2 took him to the surface and another to the Dysart Hospital. He was transferred to the Mackay Hospital on 17th December, 1984. X-rays taken revealed him to have a marked pre-existing spondylolisthesis of LS on S1 without evidence of disc prolapse. He was treated conservatively with skin traction, analgesics, muscular relaxants and epidural steroids and was confined to bed. The plaintiff was in severe pain. He appears to have been discharged for a few days in January but was readmitted on 29th January with pain. He remained in hospital until 8th August, 1985. On 15th April, 1985 Dr. Cook, orthopaedic surgeon performed a spinal fusion operation L4-S1. During this long period of hospitalisation the plaintiff was confined to bed. He suffered pain in the middle of his spine and around his hips. He described this as "the worst experience" of his life. His family, consisting of his wife and two children were some 300 kilometres away at Dysart and he appears to have seen them but rarely. He was discharged home to Dysart early in August. It appears that although the plaintiff was still quite incapacitated he applied to his employer to be put on some work. The only job then available was that of first aid officer at Harrow Creek Colliery. Dr. Bartels, in a report dated 20th August, 1985 (Exhibit 3) wrote "because of his disability and his limitation of movement a job as First Aid Officer would be out of the question. Indeed any job that involved bending of [sic] lifting would be unexceptable [sic]" The plaintiff's evidence was that after discharge he lay flat on the bed in his living room for some months requiring assistance from his wife to walk and to bath. His mood was depressed. He said that about twelve to eighteen months after the operation he was able to walk around and move on a regular basis. The plaintiff's evidence would suggest that it was then -- 4 of 16 -- 3 that he applied for light duties from his employer, (see transcript p.9) but Dr. Bartels' report of 20th August, 1985 would suggest that this may have been shortly after discharge. In a report dated 14th October, 1985 (Exhibit 6) to the defendant Dr. Cook who performed the surgery in April 1985 stated that the plaintiff would not be able to return to work in his former capacity and would possibly remain totally and permanently incapacitated. The plaintiff's employment with the defendant was terminated approximately eighteen months after sustaining his injuries. In about January/February 1989 the plaintiff's wife and children separated from him and commenced residing with another man. The plaintiff attributes the break-up of his marriage in part to his injuries and particularly to the financial constraints of an invalid pension, his depression and short temper and the long period of being in close proximity to his wife without a break. The plaintiff moved to .Adelaide to have the support of relatives. He lived with them for a few months, paying rent, and then moved into a granny flat where he now resides and for which he pays $65.00 per week. The plaintiff presently complains of pain down both legs if he walks on anything other than a flat surface and feels "a lot of pressure" on his spine. He is unable to reach past his knees with his fingers, cannot squat, cannot run or walk briskly. He can walk a good twenty to thirty minutes without pain and on a level surface but thereafter needs to stop and rest. He can sit for about five minutes without an ache in his spine and after thirty minutes he needs to get up and move around. He can drive for about an hour before needing to walk around to relieve the spinal pain. He uses a stick to assist in walking on uneven surfaces but does not otherwise require it. He takes pain- killers on a daily basis when too uncomfortable. He fills in his -- 5 of 16 -- 4 day by reading, watching television, listening to music and doing community work as a volunteer. He visits the elderly, transports them to hospital for appointments and takes out intellectually disabled persons. Prior to his injury he would go camping and fossicking for gold most weekends and enjoyed a robust family life with his wife and children. He was unable to return to these pursuits because, in particular, he could no longer bend down to pan for gold or carry heavy equipment. The plaintiff has experienced severe pain particularly in his long periods in traction and post-operatively. From a man engaged in a robust physical occupation he has been rendered at a young age into a semi-invalid. constant ache in his back and He continues to experience a sometimes legs· which can be precipitated into stronger pain by many ordinary events such as walking over rough ground or lifting moderate weights, driving too long. He has difficulty in sleeping because of the pain. He has suffered a considerable diminution in his quality of life including the break-up of his marriage. He has experienced the pleasure of assisting those whom he perceives as benefiting from his assistance in his occasional charity work. The compensation which he should be awarded must relate to the period during which his symptoms are attributable to his work-related injury. I award the plaintiff $42,000.00 for pain and suffering and loss of the amenities of life for the past and future. Half of that amount I allocate to the past and it will attract interest. It is necessary to say something about the plaintiff's pre- injury work history. He left school aged fifteen years, did part of a plumber's apprenticeship, spent some time in a driving job, joined the army when aged 21 and left at age 26 on his wife's insistence. He then went into the mines. He had other family who were miners. He says it was good money and he enjpyed the -- 6 of 16 -- 5 work. He worked in two mines in the United Kingdom for some seven years before coming to Australia in 1980 and he obtained work in a mine near Woolloongong. He remained in that employment until April 1981 when he purchased a mixed business/takeaway food store in Woolloongong. He had apparently long held a desire to own his own business. However, he became disenchanted with the long hours of work and sold that business profitably about ten months later. The plaintiff returned to mining for eighteen months and was then retrenched. He was unemployed for some eight months and searched for work throughout that period. He concentrated on looking for work in New South Wales as he had by this time purchased his own home in Woolloongong and was, not unreasonably, reluctant to leave it. The plaintiff lived on his savings for a time and then resorted to unemployment benefits~ He obtained work at German Creek in Central Queensland but remained there only a short period before moving to Harrow Creek Colliery where he continued until sustaining his injury. Save for a four week period relieving a regular worker in a community based organization in Adelaide about a year ago the plaintiff has not been gainfully employed since. He says that he would be unable to obtain employment as taxi driver since he would be unable to lift a heavy suitcase out of the boot of the car and neither would he be able to assist persons in difficulty getting into or out of the cab. He further says that he has no training for clerical work and would be unable to do it. In fact, the plaintiff has applied for no employment of any kind apart from the voluntary work to which I have referred since sustaining his injuries. He said in evidence that he had not done so because he did not believe that he was fit enough for any manual work. He had clearly not even contemplated that he might do some other kind of part-time work similar to that which he was doing on a -- 7 of 16 -- 6 voluntary basis: He seems to have been able to carry out the work of answering the telephone and co-ordinating the volunteers when he worked for about four weeks last year. The plaintiff has no plans for his future. Mr. T. North of counsel who appeared for the plaintiff, handed up a schedule of the plaintiff's loss of wages to trial. Those figures were based on the pay slips of William Weir, a fellow-worker for the period. Mr. Campbell who appeared for the defendant accepted the principle and the arithmetic. Those calculations show a pre-trial loss of $159,352.18. Mr. Campbell submitted that the figure should be discounted for the usual contingencies. Since the work continued to be available and the plaintiff enjoyed his work and had a reasonable past employment record, amongst the contingencies which I must consider is the possibility that the plaintiff might have sustained some other injury which wouid have precluded him from working to the date of trial. He engaged in heavy physical work but was otherwise not exposed to more than the usual vicissitudes of life. I therefore discount the plaintiff's pre-trial loss of wages to $150,000.00. Prior to sustaining his injury the plaintiff suffered from asymptomatic spondylolisthesis which is thought to be of developmental origin. The evidence of Dr. Curtis, orthopaedic surgeon, was that a person suffering from such a condition is susceptible to symptoms from quite a young age, particularly if exposed to the trauma of an extension stress on the spine (such as the plaintiff experienced when he fell backwards off the ladder). Dr. Curtis' clinical experience was that men with su~h spondylolisthesis have two peaks of presentation - in their mid- twenties usually associated with trauma (particularly parachuting, sport and motor cycle accidents) and "in middle age, -- 8 of 16 -- 7 in late 40's to S0's from industrial accidents''. Dr. Curtis was of the view that by the age of 50 any disability experienced by the plaintiff would have occurred from the natural progression of the pre-existing disorder in any event. On the other hand the experience of Dr. Watson, orthopaedic surgeon, was that he had read an article some 25 years ago which suggested that 45 years was the age when such naturally occurring symptoms are first diagnosed and his clinical experience, he said, had supported that. He also observed that people within their 60's and 70's are seen complaining of a backache for the first time. I take it here that Dr. Watson was referring to persons with developmental spondylolisthesis. Dr. Watson was not, as I understood his evidence, asserting that upon reaching 45 years more probably than not the plaintiff would be expected to have been incapacitated for work had he not been injured. The symptoms then occurring would have been of low back pain, worse on leaning over backwards and possible leg pain. If care were taken not to extend the back, those symptoms might not become more severe unless doing physical work involving his back. If those naturally occurring symptoms became too severe, Dr. Watson was of the opinion that a spinal fusion operation might assist. He observed that there was a 10% failure rate for a single disc fusion and a. 15% or more failure rate for two discs. The issue then is, at what age would the natural progression of the plaintiff's spondylolisthesis have produced symptoms which would have prevented him from working as a miner or in light duties in a colliery, if at all. The evidence of Peter Neilson, State Secretary of the Queensland Colliery Employees Union (n~w the United Mining Workers Federation of Australia, Queensland Branch}, was that a shiftman miner rate of pay represents the minimum pay paid to workers in the coal industry and if such a -- 9 of 16 -- 8 person came to the surface to do light duties the take home pay at the end of the year would show virtually no difference from that of a shiftman miner. Mr. Neilson gave evidence that B.H.P. Utah were considerate towards employees who had sustained injury or disability under whatever circumstance provided that that employee could work at an available job. He gave examples of quite severely incapacitated persons joining the colliery office staff after having worked in more physical occupations. The conclusion can thus be drawn that if the plaintiff's symptoms had manifested themselves naturally during his working life and if work was available which he could do with his symptoms, he would suffer no financial detriment. The further evidence of Mr. Neilson was that the statutory retirement age for miners in Queensland is 60 years with voluntary retirement at 55 years. The average retiring age is around 58 years. It seems not unreasonable to conclude that if an employee was suffering from disabling symptoms due to naturally occurring spondylolisthesis he would be able to retire beneficially at age 55. It is thus quite unrealistic to suppose that he would remain in employment to age 60 years. No scientific predictions can be made as to when the plaintiff's naturally occurring symptoms might have emerged had he not sustained trauma and of their severity. The medical evidence could be no more precise than to reflect what seemed to be the age range within which such persons presented with symptoms. It is not a question of preferring the evidence of Dr. Curtis who said that his experience indicated 50 years to that of Dr. Watson whose experience indicated 45 years, but rather to evaluate that evidence and all the other factors which were adduced in evidence in attempting to arrive at some reasonably likely age. All I can do is to consider Dr. Curtis' evidence and -- 10 of 16 -- 9 Dr. Watson's evidence; the plaintiff's prior symptom-free life notwithstanding the nature of his work to age 37, and an employment future devoted to physical work involving the spine, for example, shuttle car driving, erecting timber, the extension of his arms and wielding a hammer overhead; the personality .of the plaintiff as observed by me, and the possibility that the plaintiff may have remained symptomless for the rest of his life or at least until after age 60 years. There is the further evidence of the plaintiff that he enjoyed his work as an underground miner. Indeed this was a marked feature of the evidence of others in the mining industry - Mr. Neilson, Mr. Jones and Mr. Weir - that underground mining seemed to be a particularly addictive occupation. This must be considered against the plaintiff's background of employment. Accordingly, taking into account all those matters I. have selected the age of 50 years as the time when the plaintiff might have been expected to cease working altogether due to naturally occurring symptoms associated with his spondylolithesis. Harrow Creek Colliery closed down in 1987 but all who were employed there and who wanted work were accommodated in other mines. Mr. Weir worked in the same team as the plaintiff and was present when he was injured. He is now aged 43 years, as is the plaintiff, and works as an underground miner at German Creek, Central Queensland. He currently earns $673.00 nett per week. No basis has been advanced by the defendant for distinguishing his work situation from that of the plaintiff had he not been injured. Using the 5% tables a future loss of $673.00 nett per we~k results in a loss of $211,301.00. I have already considered the contingencies both positive and negative to the plaintiff in relation to the pre-existing spondylolisthesis in fixing the -- 11 of 16 -- 10 likely age to which the plaintiff would have worked. I must also have regard to the other usual contingencies of life operating upon the plaintiff for the next seven years had he not been injured. In my view, there should be a small reduction to take account of those contingencies. I accept that the plaintiff would have been likely to remain in employment as a miner. He liked the work, no evidence was adduced to suggest that it is not a stable industry as far as the employment of miners is concerned, although I must give effect to the possibility that work may not continue to be available for that period in the future. The plaintiff had tried private enterprise and was unlikely to try it again. If I round off th,e figure to $190,000.00 this does not seem to me to be unduly generous to the plaintiff. Both Dr. Curtis and Dr. Watson were of the view that had the spinal fusion been entirely successful the plaintiff should not be experiencing the severity of the symptoms which he describes. Dr. Cook, who carried out the operative procedure, stated in his report of 14th October, 1985 (Exhibit 6) "X-rays showed the graft to appear to be consolidating and healing well but bone scan has shown that the bone graft is not consolidated in the manner in which it should have done and this is resulting in the spinal fusion failing to immobilize the lower lumbar spine L4-S1 .... it is anticipated that he will not be able to return to work in his former capacity and unless the graft consolidates or the bone graft is revised he will remain totally and permanently incapacitated." Dr. Watson caused X-rays to be taken in November 1988 and reported on 22nd November, 1988 (Exhibit 12) "X-rays show that he has had a bilateral lateral fusion from L4 to S1 and the graft appears to have taken soundly on each side and to be hypertrophied .... He has continuing symptoms despite what appears to be a successful spinal fusion .... H{s symptoms include a suspicion of nerve entrapment in the affected region." -- 12 of 16 -- 11 In oral evidence Dr. Watson stated that the best single sign of successful fusion apart from bone scans are the building-up of hypertrophy and if ... it does. show then there can be confidence that the union has occurred. Thus, Dr. Watson was led to conclude on the evidence of his X-rays that there had been successful union and that the only possible explanation for the symptoms described was nerve entrapment. His attention was not drawn to Dr. Cook's bone scan results in evidence and he makes no reference to that in his report. It may be that the fusion has consolidated since the bone scan in 1985. This was not considered by Dr. Watson or Dr. Curtis. There are thus two possible and likely explanations for the plaintiff's severe symptoms - entrapped nerve or failure of the fusion. It. was not put to the plaintiff that he was exaggerating his symptoms and it was not suggested by the medical specialists that he was likely to be doing so. Mr. Campbell submitted that the plaintiff had some residual capacity for employment, for example, as a taxi driver, a security guard or a social work assistant. It seems likely that if there were available some part-time position of a few hours per day involving minor clerical activities, answering a telephone but not lifting or sitting for lengthy periods the plaintiff may be able to do that. The plaintiff did that kind of work in a relieving capacity for four weeks in 1.989 without, apparently, undue distress. But many factors may have caused him to be chosen for that work - familiarity with the organisation, his availability, and his acceptance of the modest remuneration. Bearing in mind the evidence of Drs. Curtis, Cook and Watson that the plaintiff's symptoms and training make him unemployable, I am not inclined to assess the plaintiff as having any residual capacity for regular remunerative employment. He may from time -- 13 of 16 -- 12 to time pick up the odd job but it will probably be of a temporary kind such as that which he engaged in 1989 for a few weeks at most. I have taken account of this possibility in calculating the plaintiff's loss of future earning capacity. He may do more voluntary work but this permits him to do what he is able without undue pain. The evidence was that throughout the coal industry in Queensland with the exception of the Ipswich area, subsidized housing is provided to miners by their employers and in particular, provided for those miners employed at the Harrow Creek Colliery and at the German Creek Colliery. The rent at Harrow Creek was $8.00 per week for employer accommodation to a married man in 1984. The plaintiff had availed himself of this. The rent at Middlemount and German Creek Mines after the Harrow Creek Colliery had ceased operation was and is $16.00 per week. Leslie Jones, a miner at Middlemount Colliery, gave evidence that he had purchased the house that he had been renting in Dysart from his employer in about 1986. He moved to Middlemount to work and occupied subsidized housing but had no difficulty in renting out his house in Dysart for $100.00 per week. Mr. North submitted that this must be considered as part of an employee's wage package and represents an employment benefit capable of precise calculation. Mr. Campbell submitted that the proper approach should be the actual loss to the plaintiff with respect to the rent which he has paid since the accident for his accommodation. I prefer to characterize the subsidized housing benefit as part of the plaintiff's employment package which was lost to him July 1986 when he was requested to vacate the company house in Dysart. The plaintiff has calculated that loss at $80.00 per week which is reasonable. This amounts to a past loss of $15,760.00 and applying the same contingency factor as to past employment I would allow $14,000.00. The -- 14 of 16 -- 13 future loss is to be calculated at $80.00 per week for seven years using the 5% tables and amounts to $24,462.00. Various contingencies might occur, including the discontinuance of the benefit or an alteration to the taxation laws. I would allow $18,000.00 as representing the loss to plaintiff of this benefit. Certain expenses were paid on behalf of the plaintiff by the Workers' Compensation Board of Queensland. They amount to $4,568.07 and are admitted by the defendant. No other special damages are claimed by the plaintiff. The Workers' Compensation Board has paid the plaintiff $29,576.39 in weekly compensation and a lump sum payment of $4,808.00. The tax component (Fox v. Wood) is $5,754.54 which must be reimbursed to the plaintiff. The compensation actually paid to the plaintiff plus the lump sum approximates the loss of wages to 18th February, 1987 and thus no interest is payable on past loss of wages to that date. The figures in summary are as follows:- Pain and suffering and loss of the amenities of life past and future Interest on past pain and suffering ($21,000.00) at 6% per annum for five and a third years Past loss of wages Interest on $110,424 at 6% per annum for five and a third years Special damages (no interest thereon) Loss of future earning capacity Loss of housing subsidy benefit past Interest thereon at 6% per annum for 3 years 10 months Loss of future housing subsidy benefit Fox v. Wood component Total $ 42,000.00 $ 6,720.00 $150,000.00 $ 35,335.70 $ 4,568.07 $190,000.00 $ 14,000.00 $ 3,220.08 $ 18,000.00, $ 5,754.54 $469,598.31 -- 15 of 16 -- 14 The amount of $44,144.46 has been paid to or on behalf of the plaintiff by the Workers' Compensation Board of Queensland and must be deducted from the plaintiff's award of damages. I am informed that the parties have agreed that the plaintiff is to bear a 20% responsibility for his injury. Accordingly, there will be judgment for the plaintiff in the sum of $331,534.18. I further order that the defendant pay the plaintiff's costs of the action. -- 16 of 16 --