Finglas v Finglas & Anor [1991] QSC 160

IN THE SUPREME COURT OF QUEENSLAND CAIRNS DISTRICT REGISTRY BETWEEN: Gary Malcolm Finglas AND: Carol Ann Finglas .Sc 91/ 100 Writ No. 133 of 1989 Plaintiff Defendant ANP: FAI General Insurance Company Limited Defendant by Election BEFORE THE HONOURABLE MR. JUSTICE McPHERSON S.P.J. DELIVERED THE 6TH DAY OF JUNE, 1991. Catchwords - Damages - Personal injuries 31 year old Trawler skipper - Patellectomy - 25% disability of right leg - General damages $35,000.00. Counsel for the plaintiff: Counsel for the defendants: Solicitors for the plaintiff: Forde Robinson Farrellys, Cairns, for Greer & Timms, Port Douglas Solicitors for defendant by election: Baker Johnson & Co, Brisbane Hearing dates: Judgment date: 26, 27 May, 1991 6 June, 1991 -- 1 of 9 -- IN THE SUPREME COURT OF QUEENSLAND CAIRNS DISTRICT REGISTRY BETWEEN: Gary Malcolm Finglas AND: Carol Ann Finglas Writ No. 133 of 1989 Plaintiff Defendant AND: FAI General Insurance Company Limited Defendant by Election BEFORE THE HONOURABLE MR. JUSTICE McPHERSON S.P.J. DELIVERED THE 6TH DAY OF JUNE 1991. Liability is admitted in this action for damages for personal injuries sustained by the plaintiff, who was a little less than 31 years of age at the time of the accident and some 35.5 years old at trial. He was a passenger in a motor vehicle driven by the defendant that overturned on the Bruce Highway on 23 September, 1986. The injuries he sustained comprised a fracture of the inferior pole of the right patella; a compound wound on the lateral side of the right knee; and lacerations to face, arms, and legs. The plaintiff was admitted to the Rockhampton Hospital where he underwent operative treatment including a skin graft, after which he was transferred to Calvary Hospital in Cairns, where he came under the care of Dr. Muscio, orthopaedic specialist, on 8 October, 1986. He was discharged from that hospital on 13 October, 19867 with his leg immobilised in a plaster cast. By 30 October the fracture had united and the plaster was removed. He attended a physiotherapist and within a month had regained a useful range of knee flexion. In late December 1986 he was back -- 2 of 9 -- 2 in hospital for removal of a benign intramuscular myxoma, which was not related to the injury sustained in the accident. On 11 January, 1987 the plaintiff returned to work. His range of knee flexion was then o= to 130= and the area of the skin graft had healed well. There was an L-shaped laceration over the medial aspect of the knee measuring 1.5 ins., some lateral laceration, and an area of 2.5 x 2.5 ins. on the anterior thigh from which the grafted skin was taken. The knee wounds have produced some cosmetic blemishes in the form of scarring. After returning to work he experienced pain in his knee and on 1 June, 1987 he was re-admitted to hospital for an arthroscopy of his right knee, which was found to have undergone considerable degenerative change. He once more returned to work but again experienced increasing pain. Consequently, on 6 October, 1987 a patellectomy was performed, after which his knee was again encased in a plaster case for some six weeks. Thereafter he underwent physiotherapy, returning to work on this occasion on 3 January, 1988. A further arthroscopy was performed on 13 October, 1989. He resumed work some ten weeks later. He final!~~ ceased work on 8 June, 1990, but this.was due to a tear in the stomach wall for which he required hospital treatment, and was not directly attributable to the knee injury. He has not worked since that date except for a brief period in his father's engineering works. The result of the injuries sustained in the accident in September 1986 is that the plaintiff has a permanent disability of his right lower limb of the order of 20 to 25%. He has difficulty squatting or walking up or down steps, and he claims -- 3 of 9 -- 3 not to be able to walk very far, or to climb ladders or to lift weighty objects from floor level, without experiencing pain. He complains of pain in the knee, which interferes with his sleep, and is aggravated by cold or wet weather or by over-exertion. To offset the pain he constantly takes pain-killers. All these difficulties or disabilities tend to make him irritable. He cannot now play squash, ride a motor bike, or participate in other vigorous physical activities. I am, however, satisfied after hearing evidence from witnesses called at the trial by the defendant by election that there is some degree of conscious exaggeration in the plaintiff's description and presentation of his symptoms. As to quantum I was referred by counsel to·my decision in Gibson-Smith -v- Fuller, given in March, 1990, in which a 37 year old male plaintiff, who was 32 at the date of injury, was awarded $45,000.00 for pain, suffering and loss of amenities. The extent of his permanent lower leg disability was, however, 40%, in contrast to the 25% which counsel for the defendant by election was content to accept in the case of this plaintiff. Furthermore, th~ plaintiff in the case before me last year had sustained other injuries, in addition to the more serious knee injury for which he had undergone seven operations and had suffered two and a half years in plaster or splints and on crutches. The condition of the plaintiffs in the two actions is comparable in kind but not identical in extent. I consider a proper award for the pain, suffering and loss of amenity sustained and to be sustained by the plaintiff in this case to be $35,000.00. Of this I apportion $20,000.00 to the past, carrying -- 4 of 9 -- 4 interest at 4% for approximately 6 years since the accident, which produces an additional $4,800.00. The plaintiff has sustained special damages agreed at $12,082.00, comprising hospital and medical expenses ($8,345.00), cost of medication ($2,865.00), and travelling expenses ($872.00). The cost of future knee replacement discounted to a present value is agreed at $3,725.00. This leaves for consideration the major item in the plaintiff's claim, which is for economic loss, particularly future economic loss. -~ The plaintiff was formerly employed by hi~- parents as a prawn trawler skipper. Medical opinion on behalf of the plaintiff is to the effect that he ought not to remain any longer in that occupation because of the pain that results from using his knee in rough conditions at sea, and the slippery decks, ladders and lifting of heavy weights that are involved. It was on the basis of this advice that he gave up work in June last year. Thereafter he was employed by his father doing welding work and the like until he left that employment in consequence of a disagreement. He has not located any alternative employment. His disability is such that a sedentary occupation would be desirable, but his schooling ended at grade 9 and he is said to have no clerical skills or aptitude. My own impression of his verbal ability based on seeing him give evidence is perhaps more favourable than that suggested by the psychological assessment to which he has submitted; but on all the evidence it seems unlikely that he can be employed or retrained to earn income in a clerical capacity in the future. I am, however, in -- 5 of 9 -- 5 no real doubt that he has a residual if impaired earning capacity if only as a driver of vehicles including light to medium trucks and vans, and possibly also some agricultural equipment. The problem is to find a form of employment that allows him to rest his knee from time to time. As trawler skipper for his parents' vessels the plaintiff was remunerated by payment of a percentage of the gross sales value of the catch. That is common in the industry, although the percentage varies from employer to employer. At 20% his share was larger than is common in the industry, which, however, is presently experiencing a lean time. The prawning business is such that one can expect to be at sea only for some six to seven months of each calendar year. In calculating both past and future loss a complicating factor is that in the past the plaintiff's income tax returns have been submitted and assessed on the basis of the existence of a partnership between him and his wife, from whom he has recently separated. It is quite plain that no such partnership has ever existed, and, despite Mr. Forde's submission to the contrary, it is clear that in calculating the damages to be awarded by the court the true net loss must be identified. The defendant cannot be expected to compensate the plaintiff for past or future losses of net income based on a calculation that involves misleading the Commissioner for Taxation and is not an accurate reflection of his real net income. Applying the correct tax scale to the past years for which loss is claimed, Mr. Robinson of counsel for the defendant by -- 6 of 9 -- 6 election reconstructed the plaintiff's income for each of the years 1986/87, 1987/88, and 1989/90. No claim is made by the plaintiff in respect of the year 1988/89. The loss for the period 8 June, 1990 to trial spans a little less than a year, particularly when account is taken of the period of approximately six weeks during which the plaintiff earned some unspecified amount of income working in his father's engineering shop. Mr. Robinson's reconstructed income schedule (which I will mark "B", and place with the papers) takes the plaintiff's actual income for each of the years in question, and then adds to it the- income lost in that year. The latter amounts are derived from ex. 32, which discloses a total of $32,195.59 that was paid for replacement skippers during the plaintiff's absences from work due to the knee injury. In schedule "B" this is apportioned across the annual periods in question, and added to the plaintiff's actual taxable income for each year. The corrected tax liability is then taken into account and the sum is compared to the actual net income for the year in question. The difference represents the net loss in each of those years. In the cas~ of the year 1986/87 the los~ is nil because the result would have been a small credit if the correct tax had been paid. In the years ending 30 June 1987/88 and 1989/90 the losses are $6,650.00 and $2,021.00. For the year 1990/91, Mr. Robinson arrived at a gross figure of $31,347.00, which represented what he described as a reasonable average based on the earnings (ex. 31) of skippers of two other vessels, one larger than the other, employed in the prawn trawling business of a Mr. N.M. Chitty, who gave evidence on behalf of the plaintiff. Adopting the ) -- 7 of 9 -- 7 deductions claimed in the plaintiff's tax returns, this process of calculation arrives at a net income figure for that year of $22,724.00, or $437.00 per week. The plaintiff claimed for most of the time to have been. skippering the larger of two vessels owned by his parents; but the figure of $22,724.00 is acceptable for a number of reasons including the circumstance that the period after 1 June, 1990 included some weeks in which income was earned that is not specifically accounted for in evidence. As to the future, there is a larger element of conjecture, both because of the common contingencies of life and because of doubts about the continued viability of the prawn trawling industry, which is oversupplied with operators. In addition, there is the difficulty of predicting the extent to which the plaintiff will be able to turn his residual earning capacity to account. In these circumstances, I was urged to follow the course adopted in Gibson-Smith -v- Fuller of applying a percentage residual earning capacity to the weekly loss over the balance of the plaintiff's working life. It was accepted by Mr. Forde that 25 years was reasonable, and he said he would not "quarrel" witQ 60% or 50% as the residual proportion of the former full earning capacity of the plaintiff. I propose to adopt the higher percentage as in my view more nearly representing the plaintiff's residual earning capacity as it is now and will be in the future. Taking the plaintiff as thus having lost 40% of his former earning capacity, and applying that percentage to the weekly income of $437.00 previously referred to, produces a weekly loss of $175.00, which if extended over 25 years results in a discounted present value of $130,000.00 in -- 8 of 9 -- 8 respect of the plaintiff's future economic loss. That is the amount I will award on this account. The result of all these assessments and calculations is as follows:- 1 . Pain, suffering, loss of - interest on $20,000.00 at 4% 2. Special damages - interest for 6 years at 3. Future surgery 4. Past economic loss - interest for 6 years at 5. Future economic loss amenities for 6 years 6% 6% $ 35,000.00 $ 4,800.00 $ 12.082.00 $ 4,320.00 $ 3,725.00 $ 31,395.00 $11,304.00 $130,000.00 $232,626.00 There will be judgment in the action for the plaintiff for $232,626.00 with costs including reserved costs, if any. -- 9 of 9 --