Baggow v Commissioner for Railways [1991] QSC 61

10 C:o C 30 40 C 50 60 REVISED CCPi'.=2, t. -SUcO ' Court F-~epcrting 8 1r02u IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE DEMACK ROCKHAMPTON, 11 MARCH 1991 Date ll / 3 / 0, I No. 29 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: HIS HONOUR: STEPHEN BRADLEY BAGGOW -and- THE COMMISSIONER FOR RAILWAYS JUDGMENT Plaintiff Defendant In this action I have reduced my reasons to writing which I now publish. There will be judgment for the plaintiff against the defendant for $176,392.83 together with costs to be taxed. Govt. Printsr, Qld. 1 10 20 30 40 50 60 -- 1 of 7 -- i I I C IN THE SUPREME COURT OF QUEENSLAND MACKAY DISTRICT REGISTRY BETWEEN: STEPHEN BRADLEY BAGGOW AND: No. 29 of 1989. Plaintiff COMMISSIONER FOR RAILWAYS Defendant JUDGMENT - DEMACK J. C DELIVERED the 11 th day of March 1991 . CATCHWORDS: Negligence of employer - Damages personal injury - lower back - male labourer, aged 32 years. COUNSEL: Mr B. HARRISON 0 Mr. J. ABERDEEN SOLICITORS: JOHN TAYLOR & CO. S.B. WRIGHT WRIGHT & CONDIE for Plaintiff for Defendant for Plaintiff for Defendant HEARING DATES: 28th February, 1991 -- 2 of 7 -- C IN THE SUPREME COURT OF QUEENSLAND MACKAY DISTRICT REGISTRY No. 29 of 1989. BETWEEN: AND: STEPHEN BRADLEY BAGGOW Plaintiff THE COMMISSIONER FOR RAILWAYS Defendant JUDGMENT DEMACK J. DELIVERED the Eleventh day of March Mr Baggow was born on 5th March 1959. 1991 . He was injured C in the course of his employment as a rail jointer with the C defendant on 14th March 1988. liability for his damages. The defendant has accepted On 14th March 1988 Mr Baggow and another of the defendant's employees were shifting a length of railway line on a "flat top". The rail twisted and Mr Baggow took its full weight as it fell to the "flat top". He felt immediate pain in the lower back going down the left leg. The incident occurred about half an hour before knock off time. Mr Baggow had great difficulty doing any work in that time. He reported for work on 15th March 1988, and was given light duties. He was still suffering considerable pain and did not do any bending. That evening he arranged to see a physiotherapist on 17th March 1988. He attended work on 16th March, but because of pain he stopped. The physiotherapist thought he had pulled a muscle. He attended work on 18th March 1988. Pain prevented him from doing -- 3 of 7 -- I C C C C 2 anything. He has not worked since. He consulted his general practitioner, and was referred for physiotherapy. This made his pain worse. He was referred to an orthopaedic surgeon, Dr White, who ordered rest. On 28th April 1988 he was admitted to the Mackay Base Hospital. He was treated with skin traction, muscle relaxants and NSAIDS. He was discharged on 12th May 1988. On 4th July 1988 a CT scan showed generalised bulging of the L3-4 and L4-5 with protrusion of the L4-5 disc postero- laterally into the intervertebral foramen which was more marked on the left side. Dr White has advised on the possibility of surgery in the form of a laminectomy/discectomy. However, conservative treatment has reduced the level of Mr Baggow's pain to a degree which he can tolerate at present. Dr White and Dr Douglas agree that Mr Baggow cannot return to heavy work. He is fit for light work. He has begun a course of study in the Mackay Campus of the University College of Central Queensland. At present he is enroled in a Bachelor of Arts course, but he hopes to be able to transfer to the Bachelor of Business Studies course. He appeared to be determined to study hard. However, he left school in grade eleven, and at the date of the hearing was only in the second week in his course. This then is a particularly difficult case in which to assess damages. The unknown factors are critical in determining the future economic loss. His grade ten results were English A, Maths C-B, Technical Drawing A, Manual Arts C, Science C, Citizenship A. To gain entry into the -- 4 of 7 -- 0 C 0 i I IJ 3 Bachelor of Arts course he completed a fourteen week course in continuing education skills preparatory studies. His results were sufficient to gain entry into Arts but not into Business Studies. It seems to me unlikely that he is going to gain the necessary improvement in his grades to be able to enter Business Studies. His grade ten results appear more encouraging for the successful completion of an Arts degree, but that must also have some uncertainty about it. So far as past economic loss is concerned Mr Baggow had been in regular employment with the defendant as a rail jointer since 31st July 1979. I am satisfied that it is proper to allow in full the wages that he might have earned since 18th March 1988. This amounts to $55,837.04. I shall allow interest on the sum of $40,000 in accordance with the agreement of the parties (p. 3). I fix interest in the sum of $7,200. For the future, Mr Baggow would now receive $437 nett per week as a rail jointer. If he gained light employment his nett weekly wage would be at least $100 less than that. He may complete an Arts degree and gain employment which pays more highly than $437 nett per week. complete a degree in Business Studies. He may even He apparently intended to retire at 55. If he completes his studies it will have cost him something in excess of $6000 for fees. It seems to me that at this point I can only assess his maximum loss and then make a deduction from that to take account of these possibilities. If he gains work under the Storeman and Packers Award, -- 5 of 7 -- C C C ! ,, 4 and that seems to me to be the most likely situation, his weekly loss will be $120. Over 23 years this amounts to $86,520. There should be an additional sum to take account of his vulnerability in the work place, so that a proper figure on this basis would be $100,000. As I have indicated there are significant possibilities which call for a substantial redirection in this amount. Doing the best I can, I assess future economic loss at $70,000. Special damages were agreed in the amount of $5572.40, and I shall allow $44 interest. Future surgical costs are set out in exhibit 14. There is a possibility, which seems to me to be a strong one, that this will be incurred, but into the future. $2000 and $3000 for loss of wages. I shall allow Mr Baggow has needed assistance from his wife and his father-in-law. In addition he employed Jack Russell to do mowing. This latter item is reasonable and I allow $572 together with $103 interest. Mr Keioskie, Mr Baggow's father-in-law, has performed tasks around the house that Mr Baggow did before his accident, such as those involving some mechanical knowledge. The statement Mr Keioskie made (ex. 10) does not give any great detail beyond some attention to the motor mower and the lifting of heavy items. It does not seem to have been much beyond the kind of help extended in families. I shall allow $400 for the past $72 interest and $500 for the future. In respect of Mrs Baggow's assistance, this also seems -- 6 of 7 -- C 5 to have been little more than that which is expected within a marriage. I shall allow $1000 for the past, $180 interest on that, and $2000 for the future. For pain, suffering and loss of amenities the award must be substantial. Mr Baggow remains an impressive man. He has experienced a great deal of pain, but he still holds a positive outlook. He played a great deal of sport particularly football and cricket, and enjoyed fishing and cycling. Now he plays only darts. Any activity that involves bending causes pain. Cold weather and wet weather make him worse. He has difficulty sleeping, and travelling C in a motor car. C C His relationship with his wife has been significantly impaired. He has two children, a girl aged 12 years and a boy aged 8 years. The boy has come to look to his grandfather to take him fishing, rather than to his father. Mr Baggow has undergone some painful treatment, and if he exercises his capacity to work by gaining employment as a storeman and packer, I am satisfied he will eventually require surgery. He will also suffer increasing daily pain. I assess this part of his award at $57,000 of which $17,000 shall bear interest which I assess at $3000. In summary then Past economic loss including interest Future economic lossSpecial damages including interest Future operationDomestic help Pain suffering and loss of amenities less refund to Board $ 63.037.04 $ 70,000 $ 5,616.40 $ 5,000 $ 4,827 $ 60,000 $208,480.44 32,087.61 $176,392.83 There will be judgment for the plaintiff against the defendant for $176,392.83 together with costs to be taxed. -- 7 of 7 --