Bell v Mannesmann Demag Pty Ltd & Ors [1990] QSC 76

10 30 .C"/ ('40 50 60 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION No. 1238 of 1984 BEFORE MR. JUSTICE RYAN BRISBANE, 6 APRIL 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be mare or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: BRUCE WALTER BELL -and- MANNESMANN ~BMA.G PTY. LTD. -'""'and-- R.Q.Y.S. MARINE LIMITED -and- SINCLAIR KNIGHT & PARTNERS PTY. LTD . JUDGMENT Plaintiff First Defendant Second Defendant Third Defendant HIS HONOUR: I give judgment for the plaintiff against the defendantsin the sum of $85,320.50. I order the defendan~ to pay the plaintiff's costs to taxed. I publish my reasons. -Govt. Printer, Qld. 1 10 20 30 40 50 60 -- 1 of 13 -- C THE SUPREME COURT OF QUEENSLAND .~\U-tb No. 1238 of 1984 Before Mr. Justice Ryan BETWEEN: AND: AND: AND: CATCHWORDS: BRUCE WALTER BELL Plaintiff MANNESMANN DEMAG PTY. LIMITED First Defendant R.O.Y.S. MARINA LIMITED Second Defendant SINCLAIR KNIGHT & PARTNERS PTY. LIMITED Third Defendant JUDGMENT - RYAN J. Delivered the Sixth day of April, 1990. Personal injuries - Damages - Loss of opportunity to be Skipper of a vessel. Counsel: Mr. W.D.P. Campbell for Plaintiff Mr. G.A. Thompson for Defendants Solicitors: M.G. Lyons & Co. for Plaintiff Henderson Trout for First Defendant Hearing Dates: 12th - 14th March, 1990. -- 2 of 13 -- C IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: AND: AND: No. 1238 of 1984 BRUCE WALTER BELL Plaintiff MANNESMANN DEMAG PTY. LIMITED First Defendant R.O.Y.S. MARINA LIMITED Second Defendant SINCLAIR KNIGHT & PARTNERS PTY. LIMITED Third Defendant JUDGMENT - RYAN J. Delivered the Sixth day of April, 1990. The plaintiff claims damages from the d.efendants for (, 1 negligence or breach of statutory duty by which he suffered loss. Liability is admitted and the only question for determination is the assessment of damages. The plaintiff was injured on 14th October, 1981 when he was engaged in operating a crane for the purpose of removing a yacht from water at a marina. The jib of the crane became detached from a vertical pillar and fell upon him. The plaintiff suffered physical injuries, and claims that he has also suffered economic loss. The plaintiff was born in December, 1935. He is now ag~d 54 years. -- 3 of 13 -- 2 The plaintiff was - admitted. to the• .. Princess ·Alexandra. Hospital· following - the accident. He sustained a compound fracture of· ·the skull, fracture of· the · left · first- rib, penetrating injury to the right knee joint and lacerations to the lateral aspect of the right knee, to the left lower hip and on the medial-aspect of the right elbow.· At the time of admission he was conscious and orientated.· There was a 10 cm. -laceration over·the occipital region and a 15 cm. laceration in the right parietal region. There was also a 3 cm. laceration of the forehead on the right side and obvious deformity related to a depressed . fracture of the skull. He was noted to have loose right~upper central and lateral incisors. · ·'The plaintiff was taken to the operating-theatre and under a general·anaesthetic 0 loose fragments of bone were removed and the·"depressec:F-fracture ·-of·: the· skull elevated. -·-The lacerations were 'cleaned and· sutured. The penetrating injury- of the right•· knee joint was explored, debrided and sutured. He was discharged onJ23rd octoberj 1981. · :: .: · A report by· ari oral s·urgeon dated 21 st December, 1981- stated· th·e -- plaintiff had received severe facial· and dental injuries. However . the· fractured· jaw was healing satisfactorily in. good position. On 10th Nov~mber, 1981 the right upper central and lateral incisors were-removed,· and a partial denture £i~led. Further· dental ·work was· later required. By 17th August, . 1982,. it'·was reported that dental :treatment had·been ·completed, but the prosthetic work then in place could not be expected to last for th~ plaintiff's:lifetime. According to a report-by a neurosurgeon, Dr. Atkinson, dated•· 10th Oecember, 1982, the plaintiff suffered a severe head' injury.: 0 0 0... 0 -- 4 of 13 -- 3 in the., accident._. This h_ead injury was complicated by cerebral contusion; He did - not develop any physical disability as a result of this o:rganic brain damage. He was at increased risk from epilepsy in the future in the order of three per cent. It was unlikely that the injuries would shorten his life. expectation, but they continued to interfere with his enjoyment of life. Doctor Atkinson _stated that he would not expect the injuries to interfere with his employment_expectations. In a report, dated 18th.January, 1990, Dr. Atkinson reported that the ~ L plaintiff suffered personality changes as a result of the organic brain injury he suffered in the accident. - There h~d probably been some minor blunting of his cognitive. function and some increased impulsiveness and irritability, and these had probably interfered with his marriage and caused some domestic breakdown. . Another . neuro~urgeon, .· Dr . - ,'·Edwards, _.__ .r.e.f erred,_ , to .. , the .. plaintiff suffering occasional turns involving blurring of his vision and headaches_ followed by a feeling of exhaustion. He thought it probable that the turns were a _ partial form. of epilepsy, and the fact that they were becoming less frequent was in keeping with the natural history of that. type of _ post,.. traumatic epilepsy. No new neurological sequelae should arise in the future as a result of the head injury in 1981. A report by a psycholog~st, Dr. Lynagh,. dated 3rd June, 1983, ref err~d .to adverse _psychological _ consequences for the _ plaintiff. There_wa~ impairmeqt of some specific, intellectμal powers, minor speech_ apha~ia variabili~y in concentration,. and. significant personality changes. The. plaintiff had .told Dr. Lynagh that h~ had diff:iculties. with_short.,..term memory, but one testing he performed at ~ superior level on all memory -- 5 of 13 -- 4 . processes. · However, a report -dated 15th August, 1985 by another psychologist· referred to. a below·· -average·· l'evel in ability' to learn· ·new material. It· stated that- he had good specific levels of ··memory skill;· but· that he 'was experiencing difficulty. in acquiring new verbal learning. ·. Scarring · was· reported to be minimal · but permanent. An .· orthopaedic surgeon · reported ·that· there is · some .· subjective sen'sory loss over· the thumb and index fingers, but· the degree of disahility from this is fairly minor. ·There is some wasting of the· muscle in the left lower limb, and there is some cruciate ligament damage and· possibly also some lateral meniscus damage .. These'~effects produced some bone weakness and instability, and. O it is likely that some increase in the degree of osteoarthritic change:: :in - the knee . will :· occur as a result · of this. · An ortfiepa.edic : stirge6n. estimated in 1983. there<was 'then ·,·a· ·:15 1per. · cent 'loss''' of' function to the left lower· limb as · a whole which wou.Id .· inc:te·ase to 20 per cent within 1 O years. In relation to his right lower limb, there was observed to be one half inch wastfng·of-the quadriceps muscle on the-right side. ·There was sigriif1cant laxity of the cruciate ·ligaments, possibly. both posterior and anterior. In November,· -1983 a lateral meniset:tomy. was preformed for a very·· tcirn lateral ·meniscus ·in· the right knee. This required the plaintiff being in hospital for about four days and off.work for 11 about twb weeks~ His leg disability··was estimated as being in' 1985 less than 1 o· per cent~- :·. The· medical rep·orts ·to 'which I have referred were admitted by. consent; without their authors being· called to give evidence .. · .- ·_y 0 0 -- 6 of 13 -- C: C-\_.· 5 The plaintiff gave.evidence from which I have concluded he suffers occasional-blackouts and headaches, as a-result of which he· becomes dizzy, - feels severe pain and frequently . feels exhausted. He experiences depression from time to time,- and is more short-tempered than he had been before the accident. - He tends to walk with a slight limp, and his leg tends to ache at the· end of the day. He. has -- some difficulty in- moving -and bending.· According to his· wife, the plaintiff is now very prone to mood changes, and has suffered a loss of self-confidence. She and the plaintiff separated in September, 1988 after a -happy marriage lasting 30 years, and both attribute this to the effect of. his personality changes. measure due to the accident. I accept that this is in larg_e .. Oral testimony was given by - a clinical psychologist, Mrs. Dignan, ,-that the ,plaintiff',s ability- to learn. new ....verbal~ ,_· material was impaired. . She said that he was a tenacious man, and probably underestimated some of his problems·. I. accept,_ this., evidence. - The plaintiff has suffered as a.result of the accident the_ physical injuries set out in the medical reports.and the other disabilities to which I have referred. For pain;- suffering and loss of the amenities of life I assess damages in the sum of $36,000.00. I apportion two-thirds of this to the pre-trial period.- • Special damages :are agree_d in the sum of $5,330.80 .... The. present value of probable future dental treatment ~s-agreed to amount to $9; 318. 7 6, ._·- and -_ it is· agreed -- that past -_ volunta~y services , _should _ be . :compensated by. an amount- of $1,480.00 (inclusive of interest). -- 7 of 13 -- 6 At -the time of-the accident the .plaintiff was employed as the Manager of the marina.of the Royal Queensland Yacht Squadron at-Manly andihe is-still so employed. He had commenced work there in February, 1981 •. The construction and development of the marina was to -be carried out in three stages. Stage 1 was finished in August, 1983 and stage 3 has still.to be developed. The plaintiff had worked in Auckland for some years before he·- came to Victoria. There he. held the .position of. Credit Manager for Victoria of A.G.C. He left that employment to go to Gladstone in 1970. He worked as a,store proprietor and real estate·' agent, and subsequently was employed. by a firm of accountants. He resigned from the position to set up his- own busi~ess, afte~ he purchased a 38 feet motor cruiser late in 1975~. ; In 1980-, he -chartered his boat to a dredging company for us·e·:.:as ··a> surveT vessel, in ·Gladstone Harbour •. rHe admitted in cross-examination that. he experienced financial problems . in running' the charter .. • business, and that. he received higher remuneration when the boat was chartered to the company. · - At the end of :1980, he learned of the plan to build a marina at'- -Manly,· and made. an offer to help get the marina. going. He said that his intention at the time of the accident was to finish the-job and then return to sea. At that time he still had at least a year's work ahead of him. He stilL had his home in Gladstone andhis•boat.- He said that he saw.-bigger and.better bOats · at· the Mari-ly-mar-ina, :and he decided in his first year at the Squadron , to: get·. a Class: 3 Certificate. to enable him -to skipper~th~se boats~~ The plaintiff ··had obtained. a Class > 4 Certificate._ in _ November,· 1977. This• enabled him to act as Master Grade IV_ { 0 0 0 0 -- 8 of 13 -- . I i' I I I 1, i 11 1· C 7 between .the limits of Sandy Cape and the Keppel Islands including the-Capricorn and Bunker Groups and the Swain Reefs. He said that he -needed this to take. paying customers. on his vessel. However, -he did not need a Class 3 Certificate for his boat and business in Gladstone .. He said.that he knew. that he needed a Class 3 Certificate to be able to act as a skipper of luxury vessels of 60 or 70 feet dimension. I do not accept that the plaintiff had decided prior to his accident that he would sit for the examinations necessary- to obtain a Class 3 Certificate.- Evidence was given by Mr. Watkinson, who is a senior () shipping inspector with. the Department of .Harbours an_d Marines_ and an examiner for the Marine Board, that he would report to the. Board that : .it_ should not proceed with an examination of the plaintiff. for Class 3 Certificate .:if he received the i:r:i,fo:r:-ma_tion contained in the medical reports which were tendered. _ Regulatioz:i 12 .1 .of the Navigation (Examination of Masters and. Mates of Coasters) Regulations 197 5 provides that if prior to or, _during the- progress of an·examination the Examiner forms-the. opinion that a candidate is afflicted with a physical or mental disability such as to render him unfit for the prop~r performance of .the duties of an officer on a coaster he shall immediately discontinue the examination and report .the matter to. the Board. I consider, it probable that the plaintiff would not be permitted to sit for.an examination for-a Class 3 Certificate-in view .of the evidence. which I accept. that_ the plaintiff, su_ffers. from "turns" which are a partial form of epilepsy and inyolye . blurred vision, headaches and. possible.blackouts. If he was ad~itted,as a candidate,_ h~would have difficulty as a result of- -- 9 of 13 -- 8 the impairment · of his .. · ability ·to' learn· new verbal · material necessary for passing the examinations.· And if by· any ·chance he succeeded in :passing ·the·examinations, it·would be a-hazardous matter· to entrust him•with the task of skipper·of a vessel when he was subject to the "turns" which he experiences·.· I conclude therefore that the plaintiff has been deprived as a consequence of 'the'injuries he received of the possibility of returning to the sea as a skipper of a vessel. I am satisfied that if he had not been in.jured, he would probably have sought a position as skipper of a vessel, and probably would have stud"ied to obtain• a. c~lass 3 Certificate in order to be able to skiPI>er'· · larger and more expensive vessels .. than those he was• permitted to ~kipper as the holder of a Class 4 Certificate. - He has been •involved in boats ·since he lived in New Zealand, he has· owned and operated a boat as a busines:s. venture, 'and he· has· a love·of l:>oats and· sailing. As he has changed jobs from·time to 0 titne, I 'consider it probable that he would have left his present· erriployrrterit after four or five years if he had obtained his Class. 0 3 C~rt:ificate and had found an attractive ·position as an·employed skipper·. The plaintiff gave evidence that he thought that his presen:t position was available ·to him for as long as· he chose to stay~· · Hi~: present . salary package is $40,000.00 per annum gross, composed of a salary of" $35,000.00, a superannuation contribution. of'$3,000.00, and car allowance of$2,000.00~ Evidence . wa's· called whi'th was designed . to enable me ·to -. as~ess· damage·s · for lbss of· the opportunity to earn money -as :a skip.per of a lu:>tu:i:y··vessel·.' First, evidence was given by ·a· charter boat· .. operator,. Mr.' Black~ who holds· a: Class 3 0 -- 10 of 13 -- ! i C ' } 9 Certificatel arid. who .. is .. slcipper of a game fishing boat which operates_: from the Gold Coast to Lizard Isla.nd. He said that there were.in excess of 300 charter boats employing skippers and crew in Queensland. He.described his average working week as being an 80 to 90 hour week, and gave details of his earnings since the 1984-85 financial.year. He said that in 1988-89, his salary. was $27,500.00, he received a cash_payment of $7,500.00, and he received benefits worth $24,_000.00, of which $14,000.00 consisted in the use. of a luxury motor vehicle .. Next, evidence was given by a person, Mr. Maston, who was..,employed on a daily .. ' . basis as a skipper of a vessel owned by a corporation. His daily -~ rate is $150. 00. He estimated that his gross income as a skipper .. \_, was at least $70,000.00. Mr. Maston holds a Clas.s_ 1 Certificate,. and has qualifications and experience far surpassing those .of the . - .. - ~ ;: . plaintiff or of Mr.-Black. ' ·,. -~: . ., I am unable on_ this evidence to make any exact assessment of the. plaintiff's loss of opportunity to earn income as a C: skipper .of a boat. It may well be the position that the salary and benefits paid to skippers varies greatly dependin~ on their r\ employer, their duties, and the kind of vessel involved. No:t1?-ing \__,.• that was put. before me would enable me . to conclude that the salary or benefits paid to Mr. Black or Mr. Maston were typical of. those paid to skippers holding a Class -3 Certificate. Nevertheless, as Moffitt J. said in Kealley v. Jones ( 1979) 1 _ N.S.W.L.R. 723 at p. 734, llthere have been numero11;s cases in which the courts have brought to account, in assessing damages for diminution of earning capacity, likely" or contingent prospects of loss due to diminished working capacity, even though it had to determine the loss~without the aid of any schedule of -- 11 of 13 -- 10 moneys . or wages to· be •earned." - One such case -was National Instruments .Pty. Ltd. v~·Gilles (1975)·49 A.L~J.R. 349, where it was said that, in assessing damages for loss·of the possibility by a _:law student -- of entering into private practice as a solicitor, the trialjudge·was entitled to decide that he would suffer a considerable loss of income, whatever its particular amount might be, and that he had no need to have evidence of the specific earnings of a solicitor in private practice or as to the precise level of these earnings. I am satisfied that the plaintiff has lost the opportunity ( ' of earning as a skipper income in excess of that which he is presently earning. I consider that I should allow the plaintiff Q a global amount for diminution of his earning capacity. I allow him $25,000.00. Accordingly, I assess damages as follows:- {a) Pain, suffering and loss of amenities of life Interest on $24,000.00 at six per cent for 8 1; 3 years {b) Special damages Interest thereon {c) Past economic loss {d) Fox v. Wood component {e) Griffiths v. Kerkemeyer component {f) Future dental expenses (g) Loss of earning capacity $36,000.00 0 12,000.00 5,330.80 0 590.78 1,987.78 335. 16 1,480.00 9,318.76 25,000.00 ~92,043.28 -- 12 of 13 -- r • u 1 1 From this there is to be deducted the sum . of $6,722.78 pursuant to s. 9A of the Workers' Compensation Act. That leaves an amount of $85,320.50. I give judgment for the plaintiff against the defendants in the sum of $85,320.50, and I order the defendants to pay the plaintiff's costs to be taxed. -- 13 of 13 --