Doodson v Richter Drilling Pty Ltd [1990] QSC 142

l \ 10 20 30 40 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE DOWSETT BRISBANE, 3 APRIL 1990 No. 1409 of 1987 (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: PETER WILLIAM DOODSON -and-' RICHTER DRILLING PTY. LTD .. JUDGMENT Plaintiff Defendant HIS HONOUR: The plaintiff was born on 16 November 1956 and is, therefore, presently 33 years of age. He alleges that he was injured in an accident which occurred at his employment on 12 April 1984. I should· say at the outset that I have in this case been seriously hampered by the approach which the plaintiff has taken to his evidence. Although in the end I am satisfied that he was injured substantially in the way that he alleges - and for this purpose I am satisfied to accept his evidence - I find that his evidence as to the effect of his injuries upon him, as to his history since the accident and as to his present complaints is entirely 10 20 30 40 50 50 60 unreliable. He has, in my view, substantially exaggerated his complaints and the difficulties which he has had in the past. I am satisfied that he suffered an injury which was not insignificant and that he has suffered considerable pain in connection with it. However his account of his ·, Qld. 1 60 -- 1 of 12 -- injuries and his pain and suffering has been quite inconsistent with certain objective facts. His evidence was, in my view, marked by obvious exaggeration, evasion and inconsistency. I am only mildly affected in my view of him by the 10 10 20 fact that he has been convicted for offences of dishonesty in the period since his accident, although I would observe that it is consistent with my view of him that this should be the case. The medical evidence indicates, in my view, that he is grossly exaggerating his lim~ and that he has grossly exaggerated the pain which he has suffered since the fusion operation which he underwent in 1987. The purpose of the operation was to reduce pain. The operation appears to be clinically successfu~ and yet the plaintiff asserts a 20 30 30 40 so I 60 history of increasing pain since the operation. He asserted very considerable pain in the months and years following the accident and yet after a period of six months, he was able to go back to work and maintain his employment for a period in excess of a year, although it should be noted that his employment was of a kj_nd in which he was able to work a month on and then for a month off. I think that he exaggerated his evidence as to his complaints at the time,and I think he has exaggerated his evidence as to his continuing condition. I take comfort from the fact that both orthopaedic surgeon~ Doctors Blue and Dickinson, whose evidence I generally accept, have formed a similar view of at least some of his complaints. The unfortunate aspect of this is that notwithstanding the fact that the plaintiff has a genuine grievance and a -Govt. Printer, Old. 2 40 50 60 -- 2 of 12 -- 10 20 30 40 50 60 genuine cause of action and has genuinely suffered loss, he has made it all that much more difficult for me to calculate for him and to try to do him justice. In other words, he has done himself something of an injustice by the approach which he has taken. It may be understandable in a man who has been deprived of what he sees as his chosen calling in life that he should become anxious and perhaps exaggerate with a view to assisting his case and guaranteeing his own financial security but, nonetheless, it does not make my task any easier. Liability has not been admitted,and so it is necessary that I deal · with it. The plain.tiff was employed as a driller by the defendant and was at the time of the accident engaged in erecting a drilling rig on a drilling field. Exhibits 2 and 3 are photographs of the type of rig in question. It will be seen that it is built out of what are sometimes called box girders, bolted together The box girders are made out of what appears to be angle iron. In the course of erecting the rig, it is assembed on the ground and then raised to rest on what is called a crown 10 I 20 30 stand. The crown stand is a steel structure placed under 40 the head or crown of the rig so that it is raised to a position which is more or less parallel to the ground, the other end resting on the platform on which the rig is to stand, as is demonstrated by the hand drawing in Exhibit 2. The plaintiff performed his duties under the supervision of somebody called a tool pusher, a position to which the plaintiff claims to have aspired. He also had a number of people working under his supervision. At some stage on the day of the acciden~ the plaintiff inquired as -Govt. Printer, Qld. 3 50 60 -- 3 of 12 -- 10 20 30 40 50 60 to whether anybody had checked the rig for loose objects. Apparently it is a common experience when raising such a rig to the vertical position that debris and abandoned tools sometimes fall out,with great risk to those standing beneath. Therefore, a practice was .adopted the employer at the relevant time to cause one of the employees to inspect the rig in its position on the crown stand to ensure that there were no loose objects likely to so fall out. I find that it was also part of his duties, in undertaking this task, to ensure that all of the various linking pins and safety pins were in place. The plaintiff o~ly included the linking of- safety pins in his task, but I gathered from the eviden.ce of the other witnesses that other pins were also to be checked. I think the 10 20 plaintiff thought that his case would be improved by his \ saying thqt he was not responsible for secl1ring other p~ns, as one aspecl 30 of -his.case depended upon the alleged failure of the defendant to secure the other.pins, ·although I may be a little unfair to him in this regard. He says that he was walking along the rig,and on occasions had to go dowil into the box girders to retrieve debris and tools caught in the angle iron. He says he had in fact done .this on one occasion and was climbing back on top of th~ box girder when he put his knees on one of the pins which connected the box girder sections. It turned 1 and he fell. I do not accept his evidence as to the pin turning. At one other stage in his evidence he said that his knee moved. I think this more likely and that the account of the pin turning was a reconstruction, but it does not matter in any event, in light of the view which I take of the evidence. It was not seriously challenged or, indeed, challenged at all, I think, that he fell whilst carrying out this tas~ ·'::,Old. 4 40 50 60 -- 4 of 12 -- 10 20 30 40 50 and I am satisfied to infer that this was so. It seems to me that it was a very dangerous thing for an employer to ask an employee to perform this function. The box girders were not designed for pedestrian traffic and at the time at which the task was being carried out,the rig was some 20 or 30 feet above ground level. Quite obviously there was a real risk that a person performing the plaintiff's task might fall, and there was a serious risk that if he fell, he might suffer serious injury, although it is unlikely he would have suffered fatal injury at that height. I thus think that if the plaintiff was to be asked to perform this task, it was encumbent on the defendant to provide appropriate safety measures. The alternative may well have been to perform the task while the· rig was at. · . a lower .. ,--.level 10 20 is doubt about whether it could have been effectively 30 performed in that way. Mr. Kahler, who gave evidence, suggested that either a safety net could be used or a safety wire could be installed running along the length of the rig to which could be attached a braking mechanism which would feed out wire to a safety harness worn by the worker in question. By a process similar to that which is used in inertial seat-belts in motor cars, if a worker were to fall suddenly, his fall would be arrested by the brake. Such a mechanism was apparently well-known in i984~ although it seems a fairly cavalier approach to' falling t installing such a system was about $4,000. It is reasonable to infer that these rigs are very expensive pieces of equipment. They are erected to remain in a location, I 40 50 60 60 _ • , '.er, Qld. 5 -- 5 of 12 -- 10 20 30 40 50 60 would imagine, for a significant period of time. I can see no reason why such a safety procedure ought not have been adopted, having regard to the serious risk which any employe was exposed to when asked to do the job which was being done by the plaintiff. In the circumstances, I think that substantial injury from an obvious reasonably foreseeable. -I think that the defendant ought to have taken steps of the kind described by Mr. Kahler; that is, to instal a safety harness system. The risk of falling and of injury was quite 10 high. out. I am therefore satisfied that liability has been made 20 There is a claim for contributory negligence,but I can see no basis for this. Turning to the question of quantum, it must .be inferred, I think, that at the time of the accident the plaintiff suffered the injury to the sacro-iliac .j.oirit ,.'_.which was /, subsequently discovered and treated by Dr. Dickenson. It may be that it was not discer1nlible. at the time of the accident but I am satisfied to infer that it was incur-red. The plaintiff was off work for six months and then returned to work for something over a year, although his shifts were staggered, as I have already described. I accept Dr. Dickinson's evidence that after the six months' layoff, the various tendons and non-bo~y tissue had united in such a way as to enable him to cope with his work. I do not accept the plaintiff's evidence that he coped with great difficulty. It seems to me that even on his own story. it was not until very late in the year that any complaints 6 30 40 50 60 -- 6 of 12 -- 10 20 30 40 50 60 were made about him;and I have some doubts about those complaints, particularly in view of the fact that he concedes,. that at some stage in that year he was recommended for promotion by those above him. This leads me to the conclusion that he was coping with his work, although I accept that ·he -~~as piobably sufferin~ in doing so. -Govt. Printer, Old. 7 10 20 30 40 50 60 -- 7 of 12 -- 10 20 30 40 50 60 He went on to Compensation in J~nuary of 1986, and I infer that he did so because of pain. In May of 1986, he was laid off as a result of contractions in the industry and in February of 1987, he underwent a fusion operation at the hands of Dr. Dickinson, which operation, I am satisfied,was substantially successful. He has continued to suffer some pain and inconvenience, but I am satisfied, as I say, that it is not to the extent alleged by him, and that it will continue to improve. It has probably interfered with his capacity to earn income and with his capacity to enjoy life. By way of pain, suffering and 1-oss of amenity, I award him the sum of $27,500. Had I been satisfied that he was being truthful, the figure might have been substantially more, but it is at this point that it becomes difficult to tell fact from fiction. I fix the quantum of past loss under this heading at $20,000, and I allow him interest at 6% per annum for four years on that sum, showing a further $4,800. Agreed special damages, including• the Fox v. Wood component andfuterest on part of the special damages totals $22,727.53. I have included interest in that amount on a small part of special damages at 6% for four years. As to the question of past economic loss, there is agreement between the parties as to loss in the year 1983/84, $5,639; 1984/85, $9,766. There is almost agreement between the parties as to loss in the 1985/86 year at $2,171, and I will fix the losses for those years in those amounts. As to the 1986/87 year, that is the year in which his .employment was terminated and in which he underwent the operation, I am satisfied to infer that prior to the operation he was,at G 214-Govt. Printer, Qld. 8 10 20 30 40 50 60 -- 8 of 12 -- 10 20 30 40 so 60 that time, unable to work as a result of his incapacity. I also think it reasonable to infer that he could not work at any time prior to 30l)June 1987. I do not mean that is the date at which he should have gone back to work, but I accept that until the end of that financial year, he certainly could not have been expected to go back to work. The situation, 10 is complicated by the fact that he was laid off. The plaintiff's case is that an experienced driller such as the plaintiff could have found other work. He seems to have been a person of more than average skill, and I am satisfied to infer that. The question then is what loss should be fixed for that year. His net wage was something in excess of $26,000. I will fix his loss for that year in the sum of $20,000, allowing for some period of unemployment. As to the year 1987/88, I think that for most of that year he would still have been recuperating from the operation and that thereafter, he was faced with the need to find other employment because I think it would have been unrealistic to expect him to go back to drilling. I should say something about that. Dr. Blue fixes his incapacity at about 10% of the leg and says that he would be fit for most employment, incl:uding repetitive heavy lifting. I think Dr. Blue is a bit optimistic. The incapacity is probably a little more than that, and it is unlikely that he could go back to heavy lifting. H~s work as a driller was heavy work. Dr. Dickinson fixes his incapacity at rather more than 20% and limits his capacity to work quite substantially. I think Dr. Dickinson was a little pessimistic. I find that the incapacity is somewhere between 10 and 1 2 •%: What that means is probably G 214-Govt. Printer, Qld. 9 20 30 40 50 60 -- 9 of 12 -- not very much, but I do think that it is unlikely that he could undertake heavy work and that it is unlikely that he could go back to drilling. Hence, in the 1987/88 year, he was faced with recuperation and then with trying to find another job. Again, there is ·a difficulty in that a downturn was 10 10 20 30 being experienced in the industry and, again, I accept that he may have had some difficulty in finding another job., It is a difficult exercise, but I will allow him, for the year 1987/88, the sum of $25,000. His award rate for that year averages out, I am told, at $33,218 and I have made some discounting for the reason that I have already given. The year 1988/89 and 1989/90 pose different problems. I think that he is fit for a wide range of activities, including, probably, driving a truck, as Dr. Blue suggests, and driving a taxi, although he may need periods of rest from time to time. I prefer Dr. Blue's evidence to that of Dr. Dickinson in this regard, save for the question of heavy work. I think that there are clerical jbbs that he could do and that he is fit for the task which he is now undertaking which is that of an insurance salesman. He has derived a riet income 20 30 40 40 50 in the 1989/90 year after ta.x of $17,906 from such employment. The plaintiff asserts - and I accept - that he had good prospects of graduating to employment as a tool pusher. It is suggested that the appropriate salary for such a person in the 1988/89 year was in excess of $50,000 apB .similarly in the 1989/90 year. The relevant rate for a driller at that time was $43,000. These figures are gross. G 214-Govt. Printer, Old. 10 50 -- 10 of 12 -- 10 20 30 40 50 60 I find that the has failed to maximise his capacity to earn in the period since 30 June 1988. For that reason, .I cannot ·::"~;-imply allow him the difference between what he_ is now gettin':X and the wage 0fa- tool ... pusher, although I accept that he may have become a tool pusher. The best I can do for 1988/89 and 1989/90 is to mak 10 a general allowance, and I will allow him for the year 1988/8 the sum of $20,000 and for the year 1989 to date the sum of $5,000. This shows a total of $87,576 by way of past economic loss. He has received about $63,000 from the Workers' Compensation Board and from the Department of Social Security. I will allow him interest on $24,000 at 6 per cent for four years; a further sum of $5,760. As to future economic loss, for reasons I have already given, I find it very difficult to estimate with accuracy what his current capacity-is because of the gross exaggeration in his evidence. The plaintiff and the defendant seem to be agreed that working upon the basis of his income to date as an insurance salesman, he might be expected to derive about $28,000 net per year. The plaintif, submits that in fact. a lower figure should be adopted because it is said that his business seems to have fallen off in recent months. However, in view of my attitute towards the plaintiff's evidence, I am not inclined to take this view. The difference between this and the after-tax income .:tool ··pusher appears to be something like $200 a week or of a perhaps a little more. However, as I have said, I am not willing to accept that the plaintiff is maximising his income at .the moment. ;Jr, Old. 11 20 30 40 50 60 -- 11 of 12 -- 10 20 30 40 50 60 Doing the best I can, I will allow him $120 a week for 22 years at 5 per cent and, after a little rounding off, that shows $83,000. The award will, therefore, be as follows: Pain, suffering and loss of amenity Interest on $20,000 for four years at 6 per cent Agreed special damages, including Fox v. Wooq_ comp::inent and ·some interest Past economic loss Interest on $24,000 at 6 per cent per annum for four years Future economic loss $37,500.00 $ 4,800.00 $22,727.53 $87,576.00 $ 5,760.00 $83,000.00 $241,363.53 I fix the amount repayable to the Workers' Compensation Board in the sum of $65,327.09. There will, therefore, be judgment for the plaintiff against the defendant in the sum of $176,036.44. I order the defendant to pay the plaintiff's costs of the action. -Govt. Printer, Old. 12 10 20 30 40 50 60 -- 12 of 12 --