Francis James Joseph Montanari v Ampol Petroleum (Queensland) Pty Ltd [1990] ACTSC 22 (21 June 1990)

SUPREME COURT OF THE ACT

FRANCIS JAMES JOSEPH MONTANARI v. AMPOL PETROLEUM (QUEENSLAND) PTY. LTD.
S.C. No. 1603 of 1986
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - lifting injury - damages for loss of future earning capacity - contingency figure to reflect possibility that capacity would not be completely limited by pre-existing degenerative problem.

Joze Malec v. J.C. Hutton Pty. Ltd. (unreported, High Court of Australia) (1990) 10 Leg Rep 3

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

HEARING

CANBERRA
21:6:1990

ORDER

There be judgment for the plaintiff in the sum of $182,196.92.

DECISION

The plaintiff sues the defendant for damages for personal injuries arising out of alleged negligence on the part of the defendant. Liability was admitted when the case was called on for hearing on 7 May 1990.

2. The plaintiff, who was born on 15 December 1951, sustained his injury on 26 October 1981. He was off work for varying periods thereafter and has not worked since about 21 April 1983.

3. The writ was issued in this Court on 2 October 1986 and a certificate of readiness filed on 27 September 1988.

4. The plaintiff was employed by the defendant in Rockhampton, Queensland, where he sustained his injury. All witnesses in the case travelled from Rockhampton or Brisbane, and for that reason the case was given listing preference as a special fixture. However, the only connection that the case has with the Australian Capital Territory is that the defendant has a registered office in this jurisdiction. The costs incurred may be expected to be substantially higher than if the proceedings had been taken in the Supreme Court of Queensland.

5. The plaintiff was at the time of his injury employed as a casual truck driver. His injury occurred in the following circumstances. He was trying to lift a 44 gallon drum filled with fuel in order to get it into an upright position. He got down on his haunches and put his hands under the end of the drum. He got it about a quarter of the way up and experienced a sudden sharp pain in the lower middle back. He dropped the drum. He continued "working for a while" (as he later told Dr McClymont). He was referred by the defendant to a general practitioner, Dr Davies, who in turn referred him to an orthopaedic surgeon, Dr McClymont, in Rockhampton who first examined him on 11 November 1981. He was sent for physiotherapy which did not have any lasting beneficial effect. On possibly the first visit to Dr McClymont, and certainly prior to 27 January 1982 when Dr McClymont reported to the Workers' Compensation Board in Rockhampton, the plaintiff complained of occasional lumbar pain radiating to the left leg. Dr McClymont certified him fit to resume light duties on 1 February 1982. The pain persisted, however, and he went off again from 12 February 1982 until 27 April 1982. On 27 April 1982 he again complained to Dr McClymont of increased pain in the lower back occurring the day after he had been shifting empty fuel drums. On this occasion the pain was radiating to both legs. He remained off work until 14 May 1982, during which time he was using crutches and receiving physiotherapy. He resumed work on 14 May 1982, again on restricted duties and with persisting pain. He was told by representatives of the defendant that he would not be permitted to resume truck driving because of the risk of further injury to his back. He was asked to resign which he did on 6 July 1982.

6. On 11 December 1982 the plaintiff commenced work with a firm of interior decorators which involved travelling to Blackwater, some two hundred kilometres west of Rockhampton. His job was to measure and quote for curtain hanging, fix the curtain tracks to walls and on occasions hang the curtains. The driving and problems with climbing ladders and stretching out to measure caused him to abandon that employment on 7 April 1983. Whilst so employed there had been an incident when he kicked the top step of a staircase which aggravated the condition in his lower spine but does not appear to have caused him to cease work immediately or to lose any substantial time from work.

7. The plaintiff then remained out of work until 13 April 1983 on which date he commenced working for a friend engaged in the plumbing business. The job was of a light nature, but the plaintiff says that it aggravated his back condition so much that he was forced to cease on about 21 April 1983. He has not engaged in paid employment since then. He was on worker's compensation till 24 July 1985 and since then has been in receipt of an invalid pension.

8. In 1984 or 1985 the plaintiff began a correspondence course in the hospitality business. This lasted for six months, but he did not complete the course. Some time after that a rehabilitation service referred him to the Criterion Hotel in Rockhampton where he was engaged in an unpaid capacity for four to six months as a trainee hotel manager. He was not required or allowed to do any lifting but found that the constant walking and rushing about aggravated his back condition and he abandoned that job.

9. Since about 1982 the plaintiff has lived in a de facto situation with a lady who owns a restaurant. He goes into the restaurant on Monday and Tuesday nights, which are the quietest nights of the week. He assists in some of the lighter cooking tasks and waits on tables. During the weekdays he drives around purchasing supplies for the restaurant. Lengthy video tapes taken of the plaintiff's activities show that he is able to get in and out of a car without apparent difficulty and in particular able to work at the engine of a car on tasks which involve prolonged bending from the waist. However, the films also indicate that on about two or three occasions during the time taken for such activities, about an hour, the plaintiff placed his left hand at the base of his spine, as if in apparent discomfort.

10. According to the plaintiff, he went to see a local practitioner, Dr Davies. There is no convincing evidence that the plaintiff was off work until he was referred to Dr McClymont on 11 November 1981. The history obtained by Dr McClymont is of importance. The plaintiff told him that he had injured his back when he jumped off a tank at work about eighteen months before and kept working. The plaintiff went on to tell him that a week or two prior to the consultation he had hurt his back whilst lifting a drum. Although the plaintiff claimed in evidence that the pain he had experienced eighteen months previous to the subject injury was in the area of the rib cage, or at least significantly higher than the lower back, it is clear that he gave Dr McClymont to understand that the pain following both injuries was in approximately the same place, that is to say, in the lumbar region. At that stage Dr McClymont thought that the lifting incident caused a ligamentous injury in the lower spine, but he also envisaged the possibility of disc injury. Nevertheless, Dr McClymont thought that the plaintiff was anxious to return to work and it was mainly for that reason that he certified the plaintiff fit to resume work on light duties on 1 February 1982. It is significant that in this early period the plaintiff was already complaining of occasional pain radiating down his left leg and later down both legs.

11. The aggravation that appears to have occurred at the end of April 1982 and on various occasions until 1985 was not so severe as to have any significant or long-term effect on his condition and has not displaced or overwhelmed whatever causative effect there was between the injury on 26 October 1981 and the plaintiff's post injury condition.

12. Discograms taken in late 1983 indicated rupture of disc at L5/S1 with degenerative changes at L4 and L5. A fusion operation was suggested by Dr McPhee, an orthopaedic surgeon in Brisbane. Dr McPhee did not give evidence nor supply reports. The operation has not been carried out. I am quite sure that the plaintiff does not intend to submit to any operation in his present condition.

13. Dr McClymont considered that the plaintiff would have been likely to have the capacity without the subject injury for continuing to work as a storeman at least until the time of the hearing, and if he had been engaged in light work may have gone without symptoms indefinitely. Dr McClymont took the view that the plaintiff was at risk of further injury when he resumed work in January 1982 and that the repeated trauma on those occasions when the plaintiff has been at work since has acted upon a spinal condition rendered susceptible and symptomatic by the injury of 26 October 1981.

14. Dr McClymont caused x-rays to be taken in 1990 which showed recent lipping at L5-S1. The plaintiff was also complaining of pain in the coccyx area. However, there is nothing to convince me that this aspect of the plaintiff's condition is causally related to his injury in 1981. The plaintiff also complains of pain radiating down the right leg. Again, if this complaint is genuine it is not sufficiently connected with the injury to convince me that there is a causal relationship.

15. Dr James Curtis, an orthopaedic surgeon, saw the plaintiff on reference from his solicitors on 8 February 1989 and 3 May 1990. His view was that the plaintiff was suffering from a degenerative condition of the spine in October 1981 and that he sustained injury to the disc "as evidenced by the severity of the initial pain and subsequent development of left sciatica within a few weeks". Dr Curtis thought that all subsequent injuries could be regarded as aggravations of the original condition, that the plaintiff remains moderately disabled with residual pain and stiffness of his spine and variable left sciatica. Dr Curtis also thought that the degeneration of the spine as in 1981 was "a consequence of his previous heavy lifting tasks during the period of his employment as a storeman, rolling and lifting fuel drums for some two or more years".

16. Ms. Madonna Forster, an occupational therapist, interviewed the plaintiff and prepared reports for the Workers' Compensation Board in Queensland. In many respects she acted merely as a sounding board for the plaintiff's complaints, but assuming that the plaintiff's complaints to her were genuine, her professional experience is of some assistance in indicating the range of activities for which the plaintiff may be suitable or unsuitable. Ms. Forster's opinion was that the plaintiff was excluded from employment in such occupations as storeman, labourer, gardening and mechanical duties and that he was not likely to be able to manage the requirements of truck driving. Ms. Forster thought that the plaintiff should consider clerical or administrative work, or sales work in boutique shops where it is possible to vary positions between sitting and standing. She also considered that the plaintiff would not be likely to tolerate the sitting requirements for full-time study but with his trade background the plaintiff would be likely to manage the duties of motor vehicle loss assessor or spare parts salesman. She thought that the plaintiff was unlikely to be able to participate in any family sports or coaching duties, but it is significant that the plaintiff continues to act as a trainer in the Australian Rules Code in Rockhampton. It should also be emphasised that he was continuing to play Australian Rules in 1982 and that he suffered a leg injury which incapacitated him for a period of some two months. Clearly, his incapacity during that period from the injury in late 1981 was overshadowed by the injury at football for that period of two months or so.

17. Doctors who examined the plaintiff on behalf of the defendant are very sceptical of the plaintiff's complaints, and consider him to be able to carry out a much greater range of activities than those he admits to. Dr Toakley, a neurosurgeon, for instance, thinks there is a functional element in the plaintiff's claim. Dr Anderson, an orthopaedic surgeon, considers that the plaintiff is fit for sedentary work and occupations that do not involve recurrent bending and heavy lifting, but does not really exclude the probability that the subject injury and subsequent injuries have made symptomatic a low back that was the site of degeneration previously asymptomatic and that his back has consequently been made more vulnerable to injury although it was already vulnerable by the reason of the underlying degeneration. It appears to me to be significant that Dr Anderson's opinion is based partly on the view that there was no sciatica in the early days following injury and that the absence of sciatica therefore excludes any disc injury. On the other hand, although the evidence is by no means crystal clear, I think the probabilities are that there was complaint to Dr McClymont at first of pain radiating down the left leg prior to the end of January 1982 and later of bilateral radiating pain by May 1982. I am satisfied that the complaint in relation to the left leg was genuine. I am less confident about the pain in the right leg.

18. The defendant laid some emphasis on the initial history to Dr McClymont that the plaintiff had suffered injury eighteen months previously and had suffered from continuous pain in the lower back since then. However, on the probabilities I am not convinced that there was continuous pain during this period. The plaintiff was not injured sufficiently for him to go off work. What happened, in my view, was that the plaintiff's already degenerative lower back was temporarily aggravated by at least that incident at work eighteen months prior to his injury in October 1981, but the injury in October 1981 was sufficiently traumatic to overwhelm the causative relationship, if any, which might have existed between injury or injuries prior to 26 October 1981 and the condition which followed that injury.

19. There was considerable evidence and cross-examination relating to the plaintiff's financial dealings over the years, particularly as they related to raising money for the purposes of financing his de facto wife's business. Whatever really is the exact nature of the plaintiff's financial relationship with his de facto wife, I do not think that it reflects earning capacity except to the extent that it shows that the plaintiff has more than a casual interest in the business, and whatever that interest is, it motivates him sufficiently to play a limited but active role in the business. He does the buying for the needs of the restaurant, he is on duty at least two nights a week performing varied duties as a part-time cook, waiter and manager. All this goes to show that he is capable, in my view, of working at least half the normal working week. I think that he has been able to work in this way since the end of 1985. I am satisfied on the balance of probabilities that until then the periods he had off work were mostly attributable to his injury on 26 October 1981, but that in the last year or so of that period he had recovered a certain amount of earning capacity.

20. In a case such as this, and where the results of injury have occurred over such a long period of time, it is impossible to make an award on any of the aspects of damages with precision. The evidence about periods lost from work and the effects of suffering injury such as that sustained at football in 1982 is vague in the extreme. As far as the art of prophesying is concerned, it is true that the plaintiff, if not injured, might have gone into more lucrative work as a truck driver, but that has to be seen as a possibility only. It does not resound in any damages which are capable of mathematical calculation, and this aspect of the award (a loss of a chance) will be contained in general damages. I think that although the plaintiff led a fairly unsettled life before the injury, he would have settled down in regular employment. I think that the evidence of Dr Curtis should be accepted in relation to the plaintiff's likely working history without injury, that is to say, that he probably would have worked as a storeman for another ten to fifteen years without symptoms, that is to age 40 or 55, by which stage he would have reached his present condition by reason of the degenerative condition of his spine without the injury of 26 October 1981 and with or without similar injury.

21. On the basis of agreed earnings of a comparable employee I would award damages for loss of earning capacity in the past as follows:
1981 $ 1,800

1982 $ 5,000
1983 $14,000
1984 $17,000
1985 $10,000
Total: $47,800

22. For the period from the beginning of 1986 to date I would regard the plaintiff as capable of earning about half of what he might have earned if he stayed as a storeman. The figures for a comparable employee are as follows:

1986 $19,611
1987 $19,427
1988 $20,000
1989 $20,000
1990 $10,000
Total: $89,038

23. I would award the plaintiff $45,000 for this period, which makes a total of $92,800 for the past.

24. As far as the future is concerned, I would assess the plaintiff's loss to be $200 a week. On the basis that the injury shortened his working life by some ten to fifteen years as from the end of 1981 and that I have already allowed for past loss of earning capacity for some seven to eight years, then the conclusion is that there are only two to seven years of this period left. The parties are agreed that the arithmetical assessment for the future should be on the basis of a 5 percent discount, that being the applicable rate according to the law in Queensland (the place where the injury occurred). Taking an average of five years at that discount rate, the present capital value of a loss of $1 per week is $231 and therefore for $200 per week $46,200. For such a short period I think it appropriate to reduce it by about 10 percent for the ordinary vicissitudes or contingencies of life to $41,500. As it is not certain that the plaintiff's working capacity would have been completely eliminated by the progressive degeneration of his back without the injury of 26 October 1981, it is necessary to add some further figure to allow for the contingency that it might not have done (Joze Malec v. J.C. Hutton Pty. Ltd. (unreported, High Court of Australia) (1990) 10 Leg. Rep. 3). It is impossible to approach this aspect on any mathematical basis. I award $10,000 for this contingency.

25. There is no evidence of the plaintiff's out-of-pocket expenses except for $2,593.34 paid under the Queensland Workers' Compensation Scheme. The evidence about continuing out-of-pocket expenses is unconvincing. The Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component is $3,303.58. I award $22,000 for pain and suffering, as to which I apportion $15,000 for the past. There is no explanation why the plaintiff waited so long to bring his action or why it took so long to furnish a certificate of readiness. In the exercise of discretion, I award $10,000.00 in lieu of interest. (Interest at the usual rates would have been in excess of $18,000.) In the exercise of discretion I decline to award interest on past loss of earning capacity. Judgment will therefore be entered in respect of the following:

Past loss of earning capacity $92,800.00
Future loss of earning capacity $51,500.00
Pain and suffering $22,000.00
Out-of-pocket expenses (past) $ 2,593.34
Fox v. Wood component $ 3,303.58
Interest on past pain and suffering $10,000.00
Total: $182,196.92

26. The total damages appear to be appropriate to the case as a whole.

27. Unless the parties wish to be heard I propose to order that the defendant pay the plaintiff's costs.