Dunstall v Dick & Anor [1991] QSC 201

10 20 j'REVis~s ,ISSUED 1.sc 9 1/o2o1 i Court Reportin'.] Bureau j ~e: Jt./-1 l, ,I ~ I l IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE BYRNE BUNDABERG, 4 JUNE 1991 No. 15 of 1989 (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: GARY STEVEN DUNSTALL -and- DOUGLAS DICK -and- F.A.I. GENERAL INSURANCE COMPANY LTD. JUDGMENT Plaintiff Defendant Defendant by election 10 20 30 30 HIS HONOUR: The plaintiff sustained severe injuries to the reg~on of his right hip and leg in a collision on 5 May 1987 at Bundaberg. He was riding a motor cycle which came into collision with a car. The plaintiff, who was born on 26 February 1962 was then aged 25. He is now 29. 40 40 Liability is not in issue and the primary facts which matter to the assessment of quantum are not in dispute either. The dislocation of the right hip was treated at the Bundaberg Hospital. The hip was reduced and he was treated by traction for a period of three weeks. The plaintiff was slowly 50 50 60 mobilised on crutches and treated with physiotherapy. He was discharged about a month after admission. His time in hospital involved severe pain occasionally, ameliorated by the narcotic, Pethidine. His injuries were significant and they were serious. · Govt. Printer, Qld. 1 60 -- 1 of 12 -- 10 20 After his discharge from hospital, the plaintiff went.to live with his grandmother. She was able to provide some care in the next few months. Throughout this time he continue to receive physiotherapy and gradually gained a measure of increased mobility. However, he is left with a prominent limp and a marked degree of instability in the leg, particularly in the region of the right knee. This instability led to a fall in September or October 1987, which resulted in further treatment. The extent of it is described in the reports of Royal Brisbane Hospital which are Exhibits 2 and 3. This treatment too was associated with considerable pain. A plaste cast was applied. It remained in place until about Christmas 1987. Thereafter, the plaintiff was gradually mobilised under the care of an orthopaedic surgeon and a physiotherapist. Physiotherapy continued throughout 1988. The movement of 10 30 30 40 50 60 the right leg continued in that year to be associated with pain and he was not able to return to work. In August or September 1988, after an operation performed by Dr. Sharwood, the plaintiff began looking for work. He found this a trying experience. He now walked with an obvious limp and there was a degree of instability and restriction of movement. He applied for jobs involving outdo9r work, the kind of work he had always done. He approached, for example, the proprietors of a wrecking yard, but too much heavy work was involved. He considered working as a process worker. This was not practicable either. He coul not stand up all day. Eventually, he obtained employment with a fruit and vegetable wholesaler .. This was in early February 1989 at the Brisbane Markets. He began by sorting and stackin apples. He found the work very difficult. He.started working Govt. Printer, Qld. 2 40 50 60 -- 2 of 12 -- 10 20 30 one day a week and gr"adfrally increased the number of days worked. The work which he undertook was associated with pain on the job and a degree of related stress and discomfort afterwards. He took pain-killers and continued to do so until last year. After about two months working at the markets he became a fork-lift driver and he still works in that capacity. It is a tribute to his industry and stoicism that he worked as a fork-lift driver initially about 55 to 60 hours a week. He badly needed the income, but the pain associated with this level of activity was too much for him to bear. After about six or seven months, he decided to resign because his employer expected him to work such long hours. He was a good employee and the employer did not want to lose him. About two to three weeks after he left the employment he was asked to return. At first the employer was willing to accept that he would work three days a week. He was then asked to work four and at a pace which meant that he was working between 40 and 45 hours a week. This was too much for him. The pain and the instability meant that, again, he was obliged to resign and look for other employment. The 10 20 30 40 40 50 60 employer, who was not only anxious to keep him but also sympathetic, entered into new arrangements with him. He was to work 30 hours per week. He has continued to do so since that time. He now works four days each week, finding that not having to work five alleviates some of the considerable discomfort which his employment still brings. He works principally as a fork-lift driver. However, the job also involves some.lifting, for example, of trays of stone fruit although he tries to avoid work of this nature, because it is likely to overtax his right leg. · Govt. Printer, Qld. 3 50 60 -- 3 of 12 -- 10 20 30 40 50 60 There is some difference.of opinion amongst the orthopaedic .speqia~ists who have examined him, but the differences .are not great - a conclusion which is testified to by the absence of cross-examination of any of them. Dr. Sharwood in his report of December 1988, Exhibit 6, expressed the opinion that, in relation to the hip, he had suffere9 significant pain and discomfort. However, he anticipated no long complication at the time. He did, however, sound a caveat that the last x~ray had been taken nearly 12 months before the dislocation. With -respect to the knee, he described the damage to the articulate surface as significant and spoke of some surgical correction having been undertaken with respect to the ~mmediate problems. His prognosis for the long-term was that the plaintiff was almost certainly going to develop significant degenerative arthritis of the lateral compartment of the right knee and would require surgery. There is a further report of Dr. Sharwood of 3 October 1990. The additional examination which had been possible by the time this report was prepared enabled some revision of Dr. Sharwood's earlier view. In October 1990, he expressed the opinion that the plaintiff had a permanent partial disability as a result of the hip and knee joint which he assessed overall as 15 per cent of the total person. He thought that: in the long-term, degenerative arthritis would probably develop in both joints and he maintained his prediction that further investigations or surgery would be required for them in the future. However, he did not anticipate the procedures being required for at least 20 years. He expressed the view that the plaintiff would always have some restrictions on his employment as a result Govt. Printer, Old. 4 10 30 40 50 60 -- 4 of 12 -- 10 20 30 40 of the injurrwith his leg and would not be able to undertake heavy manual work~ It was his opinion that the plaintiff should avoid activities which involved placing excessive stress on the right leg. Dr. Morgan has provided some useful information concerning the likely future in respect of these injuries. In his report of 29 October 1990, Exhibit 8, he expres"sed the view that the plaintiff has a 24 per cent chance of going on to develop symptoms and signs of a progressive degenerative arthrosis in the right hip joint. He thinks it is likely that over the ensuing three decades; the permanent partial disability will increase to approximately a 40 per cent loss of the normal functional capacity of the right' lower limb. He expresses this opinion: "If that is the case, by the age of 60, it is likely tha he will require a right sided total hip replacement. Thi will result in a loss of fifty per cent of the ··norma functional capacity of his right lower limb." With respect to the knee injury, again, he anticipated that, in. time, the plaintiff would experience symptoms as a result of a lateral compartmental degenerative arthrosis whic 10 20 may give rise to a loss of approximately 15 per cer:it of th, 40 normal functional capacity of the right lower limb. HJ anticipated that the degeneration in this respect would be slow, steady demise in the function of the joint. In Dr. Morgan's report of 14 March 1991, he qualified what so he described as the "quantum disabilities" mentioned in hi so 60 earlier report. He said that when the eventual 15 per cen partial disability in the region of the . right knee joint i combined with the predicted 40 per cent disability in th region of the right hip joint, a total loss of 49 per cent of Govt. Printer, Qld. 5 60 -- 5 of 12 -- 10 20 30 40 50 60 the normal functional. capacity of the right lower limb is yielded. He went.on to say that when that 15 per cent eventual disability in the region of . the right knee joint is combined with a 50 per cent post total hip disability referable to the right hip, a total functional disability equal to a loss of 58 per cent of the right low lower limb can be calculated. 10 The plaintiff's injuries had other consequences. His lifestyle has been considerably affected. No longer can he participate in a range of physical activities which, with his disposition towards outdoor activities, he enjoyed before his accident. There was a substantial range of them. Just as importantly, for present purposes, he experienced irritability and moods of depression associated with a moderately severe post traumatic stress disorder. According to Dr. Grant, a psychiatrist, the orthopaedic disabilities 30 resulted in "quite dramatic changes" to the plaintiff's lifestyle. In his report, Exhibit 7, he expresses these conclusions: "He is unable to carry out many of the hobbies and interests which he had prior to the accident. His sporting incidents have been almost totally curtailed. His working life has also been considerably hampered and 40 he is now only capable of working part-time. He suffers from continued symptoms of pain. In addition to thephysical sequelae, he has a number of symptoms which, together, indicate that he has suffered from a moderate post traumatic stress disorder. These symptoms includeanxiety in relation to riding motor cycles, particularlyin traffic, prominent nightmares along the themes of accidents, ruminations about the accident on a dailybasis, personality change with some social withdrawal, and severe irritability reflected from interpersonal 50 relationships and in his driving behaviour. Some of the symptoms of this post traumatic stress disorder have diminished· in: the years since the accident ( particularly the nightmares), but the personality change and irritability ·remains prominent.'· .. The prognosis is fair inthat he has alreay made some improvement and will continue to .improve. However~ it is likely that given the chronic nature of his physical prob+ems, he will continue to experience some,psydhological difficulties. In Govt. Printer, Qld. 6 60 -- 6 of 12 -- 10 20 30 particular, he will be vulnerable to reactive depressio and his personality is not likely to ever fully recover. I suspect ·he will remain chronically embittered by hi experience. " ( See also the report of Dr. Nothling,psychiatrist, which is Exhibit 11.) The plaintiff did not complete Grade 11. He has little aptitude for and even less interest in clerical or sedentary occupations. He has no formal training. His onl qualification is a fork-lift driver's ticket. After leaving school, he worked in several jobs in intervals separated by regular bouts of unemployment. In the nine years or so which elapsed between his leaving school and the accident, he had worked as a labourer, a house painter, a seasonal picke of tobacco, a cane cutter and farm machinery hand, a surveyor' assistant, and a station hand. He was unemployed at the timJ of the accident, but in 1986/87, had been employed in Bundaberd by a fruit grower working as a general hand carrying out als the duties of a fork-lift driver as well as being involved i machinery maintenance and general shed care. Most of the jobs which he had before the accident cannot now perform, and he will not in the future be able to engage in them. His interests and his only experience lie 10 20 30 40 40 in practical, largely unskilled work. His injuries have significantly limited the range of job opportunities availabl to him. He is, as I have said, presently employed by sympathetic employer working a four day 30 hour week as a fork- lift operator. He now earns $270 per week net. 50 50 60 Ever since he obtained that employment, in February of 1989, the employer has been anxious for him to work longer hours. There is no doubt that had he not been injured, he could have worked ·as a fork-lift driver or in other equally remunerative employment for at least the great bulk of the Govt. Printer, Qld. 7 60 -- 7 of 12 -- 10 20 30 40 50 60 period since the il).j u:r7; and it is, in m:z7 view,. highly likely that were it not for the accident, the plaintiff would, throughout that period~ have worked at least. a 40 hour week fo most if not all of the time and would, for the indefini t future, have wo:r:ked at least a 40 hour week, and regularly. It is .true that in the three years preceding the acciden the plaintiff was in receipt of unemployment benefits for abou half the time and that otherwise in that three year period, h was employed largely in seasonal work. Apart from security benefits derived in the three years ended 30 1987, he earned an average annual amount of $6,000, earnings had decreased in each of the three preceding years. For the year ended 30 June 1985, his gross earnings $7,834. In the 1986 year, they dropped to 5,796 return for. the year ended 30 June 1987, Exhibit 14, shows gros social securit1 receipts of less than $4,600, excluding benefits. But those years were associated with an unhapp:z'i marriage contracted in about 1983. The marriage did not las long: It was always a good chance that, as he got older c.ontracted a .more stable domestic relationship, with th growing sense of maturity and responsibility likely t~ accompany it, he would have both gained and retained much mpoar1.·j regular and remunerative .employment. Indeed, despite his • 1 and the disabilities, that is what he has achieved. He no enjoys a de facto relationship and accepts that he must work a hard as he can. He does this both for reasons of self-estee and to provi~e an ad~quate standard of living. Between .5 May 1987 and when he.assumed employment with hi current employer on 6 February 1989, if he had still bee employed in Bundaberg .with P.L.D. & C. Courtice Pty. Ltd. and Govt. Printer, Old. 8 30 40 50 60 -- 8 of 12 -- 10 20 30 40 50 60 had worked ·uninterrupted throughout that period, he could hav expected to have earned not less than almost $19,000~ excludin any allowance for over Award payments. In assessing thJ component which ought to be allowed for pre-trial economic los in respect of this period, some allowance should be made fo the prospect that by choice or other circumstances, he woul not have remained in employment with Courtice or else secure employment with someone · else ( enabling him to derive a net income of about $19,000). period I assess at $13,000. Reasonable compensation for this The other component of pre-trial economic loss relates to the period between his assumption of employment with Carter i early February 1989 and the present day. That is a period approximately 21 months. In that time, he has actuall earned - see Exhibit 20 - $41,713.65. If throughout that period he had instead worked the hours performed by the notional employee upon whom the calculations in Exhibit 21 were based, he would have earned a total net income of a little more than $55,300. As it happens, no one presently employed by the plaintiff's employer is paid so much as would enable the whole $55,300 to have been derived. It is also questionable whether, had he not been injured, despite his personal motivation, the plaintiff would have averaged 55 hours per week in employn_ient as a fork-lift driver throughout the entire 21 month period. It is, in my opinion, a reasonable allowance for that 21 month period to award him compensation of $10,000. An assessment of his future economic loss involves a degree of difficult prediction. He currently earns $270 net per week. The highest amount presently paid to any fork-lift driver working for Carter is $550 per week. That is a gross Govt. Printer, Old. ·9 10 20 30 40 50 60 -- 9 of 12 -- 10 20 30 40 figure. After tax, ;the net earnings .from $550 is $424 pe week. If, however, the plaintiff were uninjured and working fo Carter at ar1 average of 55 hours per week - something whic might be maintained for substantial periods and for quite somJ time into the. future - the plaintiff could have expected t have earned $489 per week net. The plaintiff is highly regarded in the work that he does. He has been described in evidence before me as reliable an conscientious and other generous epithets were used by person, well placed to know his industry and capacity, the wi tnessej Fusco and Wyrill. There is, in my view, no reason to doubj that if the plaintiff had been uninjured, he would presently b, earning ,0 at least with the best of those now being paid a fork-lift drivers by Carter. That position would probably hav remained while his current domestic situation remained stable. ' . There is, therefore, a satisfactory basis for using, assessin a ~ubstantial aspect of the component for future economic loss, a base figure of $150 per week. Projecting that to age 55, a I exerci~e which involves some discounting for contingencies an~ vicissitudes -0f life and using the 5 per cent tables yields figure of $113,842. However, in my opinion, that amount is not an adequate allowance in respect of this plaintiff's diminution of futur earning capacity. He is, as I have said, unable to undertake a substantial range of job opportunities of the only kind whicJ 10 30 40 50 50 60 for someone of his interests, lack of skill and education, wa available. If ,he loses his present job, he may not another sympathetic employer willing to accept him on part-time basis and he may not be able to find any remunerative employment in the short-term, easily or, possibly, Govt. Printer, Qld. 10 60 -- 10 of 12 -- 10 20 at all.· In the longer term, if he finds jobs, it may well be that he cannot derive an income equivalent to that which he is now being paid by Carter. These things must sound in any assessment of the component of the general damages award whic relates to future economic loss. It is best in circumstances, 10 and it will avoid any risk of double counting, if the assessment is approached globally. Having regard to the factors which I have mentioned allow $140,000 in respect of diminution in future earninl capacity. In respect of pain and suffering and loss of the enjoymen. 20 of $25,000 to the pre-trial component and allow interest at 2 pe cent per annum on that amount. (See M.B.P. [S.A. J v. Gogi . . . I [1991] Vol. 65 A.L.J.R. p.203.) The total then for this amoun 30 30 40 is $52,000. The pre-trial economic loss totals $23,000. For th purpose of the interest calculation, the amount of socia security benefits paid approximately $11,000 ( see Exhibit 22) must be taken into account. Allowing interest on the reduce figure at 6 per cent yields an interest component on pre-tria economic loss of $2,880. In aggregate then, pre-trial economi loss with interest will be allowed at $25,880. Special damages are proved at $11,025.53. I allo interest of $420 in respect of them. Discounted to present 40 50 50 60 vaiue, the cost of the total hip replacement amounts to $2,200. The whole of that amount should, in my opinion, be allowed, th total hip replacement being, I think, nigh on inevitable. Gratuitous assistance has been agreed, including interest, a $1,000. · Govt. Printer, Qld. 11 60 -- 11 of 12 -- 10 20 30 40 so 60 There will, therefore, be judgment for the plaintiff against the defendant by election for $232,525.53. There will be a further order that the defendant b election pay the plaintiff's costs, including reserved costs, to be taxed in case the parties differ about the same. Govt. Printer, Qld. 12 10 30 40 50 60 -- 12 of 12 --