Vincent Lavery v White Industries Limited, White Industries (ACT) Limited (Formerly Known As Pdc Constructions (ACT) Pty Limited, National Convention Corporation Pty Limited, White Constructions (ACT) Pty Limited, Austwork Pty Limited and Marr Contracting [1994] ACTSC 79 (11 August 1994)

SUPREME COURT OF THE ACT

VINCENT LAVERY v. WHITE INDUSTRIES LIMITED, WHITE INDUSTRIES (ACT) LIMITED
(formerly known as PDC CONSTRUCTIONS (ACT) PTY LIMITED, NATIONAL CONVENTION
CORPORATION PTY LIMITED, WHITE CONSTRUCTIONS (ACT) PTY LIMITED, AUSTWORK PTY
LIMITED and MARR CONTRACTING PTY LIMITED
No. SC1476 of 1988
Number of pages - 9
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

CATCHWORDS

Damages - Assessment - Personal Injury - Work Accident - Collapsed crane - Fractures of Wrist, elbow and pelvis - Multiple lacerations - Loss of earning capacity - Vagaries of Construction Industry - No issue of principle.

HEARING

CANBERRA, 1-2 August 1994
11:8:1994

Counsel for the Plaintiff: Mr R. Williams QC and Mr B. Meagher

Instructing Solicitors: Pamela Coward and Associates

Counsel for the Defendant: Mr J. Maconachie QC and Ms J. Gleeson

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

The Court Orders that Judgment be entered for the plaintiff against the fifth defendant for $695,496.

DECISION

MASTER A. HOGAN This is an action for damages for personal injuries suffered by the plaintiff in an accident at work on 2 March 1986. Liability has been admitted by the fifth defendant. The plaintiff has discontinued the action against the first, second, third and fourth defendants.

2. The plaintiff is a married man with two children in their early twenties. He was born on 16 March 1945, so that he was 41 at the time of the accident, and is 49 now.

3. He left school at the age of 14, having obtained the intermediate certificate. After some time as a warehouse clerk he began work in the construction industry, initially as a labourer, and then as a scaffolder and rigger. He obtained his scaffolder's qualification when he was about 21, and his rigger's certificate at the age of 33.

4. He was a keen player of Rugby League, in a team in the South Sydney Juniors competition. He received a number of sports injuries over the years, but they did not affect his work capacity. He began work with the construction team known as "The Men from Marrs" in about 1980. He had been in secure permanent employment with them for about five years at the date of the accident.

5. He was fit and in good health. He had played football to the age of 37, and then kept fit with regular gym work and football training with friends.

6. On the weekend at the beginning of March 1986 the team was engaged in dismantling and then re erecting a Favco tower crane at the White Industries construction site in Canberra.

7. On the Sunday the tower crane had been erected to a height of just over 100 feet. The crane driver, the plaintiff and another rigger named Edwards, were on the platform at the top. The motor was bolted down, and the A frame put into place. The driver then began to slew the crane to lift the jib. As he did so there was a jolt, and the plaintiff saw that the base of the crane was starting to lift off the ground.

8. Mr Edwards put himself in a relatively protected position as the crane began to topple, and the plaintiff got down beside him.

9. As the crane toppled from such a height, he naturally expected that death was possible. He lost consciousness in the crash and has now no recollection of the actual impact. He recalls being extracted from the wreckage, and taken by ambulance to hospital. His principal memory was of the pain in his left wrist.

10. He came under the care of Dr Stubbs, orthopedic surgeon, who described his injuries as follows:
"1. Dislocated left lunate bone (a bone of the wrist, indicating severe

disruption of the wrist ligaments and transitory, complete dislocation
of the wrist). This was associated with median nerve compression (the
nerve at the wrist had been crushed).
2. Dislocated right elbow with comminuted and compound fractures of the
humerus, radius and ulna. (The bones of the arm and forearm at the elbow
were shattered and a large rent caused through the skin, muscle and
joint).
3. Diastasis of the symphysis pubis (the pelvis had been sprung open
like opening the pages of a book).
4. Degloving injury of the right shin. (The skin had been peeled back
exposing bone).
5. Fractured sternum, uncomplicated (the breast bone was broken,
fortunately without damaging the heart or major chest blood vessels).
6. Facial lacerations.
7. Multiple abrasions.
8. Closed head injury (loss of consciousness without open fracture or
major brain damage)."
"He was admitted to the Intensive Care Unit for resuscitation and taken
to theatre later that day. The facial lacerations were sutured and the
large laceration to the left shin was treated by surgical excision and
interval skin grafting. The dislocated lunate was treated by open
reduction and the carpal tunnel was decompressed to relieve the pressure
on the median nerve. The fracture of the right elbow was treated by
extensive wound excision due to the compound nature of the injury and
then primary internal fixation of the fractured humerus using two AO
screws and of the fractured ulna with a Rush pin. The wounds were closed
over drains."

11. While Dr Stubbs dealt with the orthopedic injuries, Dr James, Plastic surgeon, repaired a full thickness laceration through the left ear, a large deep laceration on the left cheek, and smaller lacerations on the left eyebrow and lip. He reduced and repaired a compound fracture of the nose. The area of tissue loss on the right leg was debrided, and a partial thickness skin graft was taken from the left thigh and applied to the area after 48 hours. A back slab was applied to his right arm, and a full plaster to his left forearm.

12. The plaintiff is not a demonstrative man. When asked in evidence how he felt in hospital he responded laconically, "I wasn't very healthy". Dr Robbie, psychiatrist, who examined him in December 1991, extracted from him the following description, which to my mind sums up the evidence.

"He remembers a lot of pain in the Canberra Hospital. The whole of his
body was aching, and the pain got a lot worse when his medication was
reduced at 3 to 4 days after the accident. He thinks he was 2 to 3 days
in Intensive Care. At around 4 to 5 days after the accident he called
out to the staff in the middle of the night. Until then he said he had
felt detached, but while the pain was no worse on that particular
evening, he seemed to come to a realisation of what had happened to him,
and he said he "panicked", by which he meant he realised the horror of
it all, and felt very frightened. He also recalls sweating heavily, and
being a little disorientated, though he could not recall a tremor,
hallucinosis, or the like. His recall of what happened on that night is
vague though, and I would wonder about the possibility of some sort of
withdrawal reaction. The timing is right. On the other hand, doubtless
he was on a lot of medication, and that may have been all there was to
it. Further, it is possible he did panic, with an acceptance of what had
happened at that time."

13. The medical evidence in this case was not contentious. None of the doctors whose reports were tendered on the plaintiff's behalf were cross examined. The defendant did not tender any reports.

14. The plasters were removed on 14 March 1986, and he was discharged from hospital the next day.

15. He returned home to Sydney, where he was nursed by his wife. He came under the care of Dr Gibbs, who noted that the skin graft was not taking. He referred the plaintiff to Dr Sorrenti for his orthopedic injuries, and to Dr Baldwin for the skin graft.

16. Dr Sorrenti saw him first on 26 March 1986. He was wearing a collar and cuff and a splint to his right arm, and a splint to his left wrist. The range of movement of the elbow was very restricted. There was a right radial nerve palsy. Dr Sorrenti prescribed physiotherapy for the right forearm and left wrist.

17. Dr Baldwin also saw the plaintiff on 26 March 1986. He noted that the graft was not healing. On 2 April 1986 it was no better. He therefore admitted the plaintiff to Netherleigh Private Hospital on 10 April 1986 and performed a debridement and split skin graft on 15 April 1986. He discharged him with the wounds healed on 24 April 1986. On review on 28 May 1986 he noted that the graft was healed and stable.

18. Dr Tockar, a general practitioner, saw him about an unrelated problem on 30 April 1986. He prescribed some antibiotics. He noted that the plaintiff was fairly depressed about his general condition, which confirms the evidence given by the plaintiff's wife.

19. By 21 May 1986 Dr Sorrenti noted about 10 degrees of improvement in range of movement of his right elbow. He was no longer wearing the splint to his right wrist, and the radial palsy was improving. Wrist movement was improving.

20. On review on 25 September 1986, the right elbow movement was between 70 and 120 degrees, pronation and supination was 20 degrees. There were complaints of pain in the groin and the lower back.

21. X rays that Dr Sorrenti saw on 13 November 1986 showed a diastasis of the symphysis pubis of 1.5cm. He thought that gap would be permanent.

22. The plaintiff continued to suffer pain in the right elbow. Early in September 1987 Dr Sorrenti admitted him to North Harbour Hospital, and carried out bone grafting of the ununited fracture of the elbow.

23. Eventually union was achieved at the fracture site, but he was troubled by the wires used for the internal fixation. On 23 January 1989 he was admitted to Castlereagh Private Hospital, where the wires were removed. A small wound infection developed, but this settled down with antibiotics.

24. He was genuinely anxious to get back to some form of work, and despite the loss of status involved, obtained work as a nipper, engaged in light general duties supporting a construction team.

25. He had a number of short term jobs as a safety officer, a nipper and a cleaner.

26. On 14 March 1991 Dr Sorrenti noted that he was experiencing an increase in pain in his elbow joint, related to his work as a cleaner. There was also decreased sensation in his hands, pain and restricted movement in the left wrist, and low back pain. He attributed the marked disabilities to ongoing degenerative changes.

27. On 12 November 1991 the plaintiff was examined at the request of his solicitors, by Associate Professor Jones, an eminent Rehabilitation Consultant. He had not had any full time work since May 1991. He was finding that he was disadvantaged when seeking work both by his age and by his injuries.

28. Professor Jones summarised the important conditions which would affect his independence as being the reduced movement in the right elbow, where there was a 40% loss of function, soft tissue injuries to his back causing 10% reduction in function, fracture of the wrist causing 10% reduction in function and various lacerations and scars. He could certainly not return to work as a scaffolder or rigger. He advised him to look for clerical or supervisory work on a full time basis, or as a hoist operator part time.

29. His solicitors also referred him to Dr Robbie for psychiatric assessment. Dr Robbie's report details his history and complaints, which accorded with his evidence. Indeed, one comment of Dr Robbie's struck me as applying equally to his evidence, namely that, "There was absolutely nothing of the functional on examination, indeed what was noticeable was an absence of the exaggerative, of the reasonable opportunity to make a point of things."

30. Psychiatrically, he had a tendency to fear of heights, but it did not amount to a phobia, and seemed to Dr Robbie to be eminently sensible. He did not have panic attacks, did not have a generalised anxiety disorder, and was not depressed. Despite the terrifying nature of the accident, the long and painful recovery, and the continuing disabilities, he did not have a post traumatic stress disorder.

31. Professor Jones re examined him on 28 June 1994. He had been actively seeking work, but had not been able to obtain any. His disabilities had not altered. Professor Jones summed up his employability as follows,

"My assessment of percentage loss of function still holds, and my
opinion regarding his employability is confirmed insofar as his
potential is compromised by his injuries, and that opportunities for
re-employment have not eventuated. On the balance of probabilities and on
the basis of his physical impairments, he could not return to work as a
scaffolder and rigger, and because of the limitations of sitting and
standing, he would have difficulties in doing non-physically demanding
work with such limitations. His educational status as at present would
prevent him from obtaining a clerical occupation.
Intensive vocational rehabilitation is unlikely to ensure vocational
placement."

32. I think Professor Jones is correct in that assessment.

33. In a terrifying accident the plaintiff suffered two very severe fractures, of the elbow and wrist, a severe fracture of the pelvis, the degloving of his shin, concussion, a relatively minor fracture of the sternum and other injuries. He underwent four operations in addition to the initial major operation. He has been left with a severely disabled elbow and wrist, and continuing back pain. He was a man rightly proud of his physical strength and skills, who will never again be able to enjoy physical activity or rewarding work.

34. He is only 49, and has a normal life expectancy of over 25 years.

35. For his pain and suffering I award $85,000, of which $25,000 relates to the future. Interest on the past component is $10,139.

36. The principal areas of contention in the case were his past and future economic loss. It is conceded that the accident permanently disabled him from working as a rigger or scaffolder. Those are really his only skills. He has no clerical experience or ability.

37. So far as the past is concerned, he has always been motivated to work, and has actively sought it. I think that the true measure of his actual earning capacity in the past, injured as he was, is the money that he has in fact been able to earn.

38. For the year ended 30 June 1986 his taxable income was $30,195, on which tax of $9,040 was paid, giving a net income of $21,155. He was injured on 28 March 1986, so that his net income, had the accident not happened, would probably have been in the order of $28,000.

39. He did not work again until about January 1988. For the year ended 30 June 1987 his income from personal exertion was nil.

40. In the year ended 30 June 1988 almost half of his taxable income consisted of periodical Worker's Compensation payments. His gross income and allowances from Thiess Watkins was $13,983, from which work expenses of $1,273 should be deducted, to give the relevant gross earnings of $12,710. Tax on his total taxable income was almost $6,000, so that half could be attributed to his earnings from personal exertion, giving $9,700 net.

41. For the year ended 30 June 1989 his then accountant made on his behalf an unsustainable claim for losses incurred in carrying on a book business. His assessment notice is not therefore a proper guide. His return shows salary and allowances, less work expenses, totalling about $32,000. The group certificate deductions total $9,655, giving a relevant net figure of $22,345.

42. For 1990 salary and allowances, less work expenses, totalled $43,518. Tax deducted from group certificates totalled $15,680 giving a relevant net figure of $27,836.

43. For 1991 the net figure was $27,005, on the same basis.

44. For 1992 only group certificates are available, showing gross earnings of $13,095, on which tax of $3,594 was paid indicating a net figure of $9,500.

45. As I understand the evidence, he has not worked in the 1993 or the current, tax year.

46. As an indication of the sort of money he might have earned, had he not been injured, the plaintiff gave evidence of the earnings of a Mr Lirsch, an experienced rigger, who worked as a rigger and dogman in the construction industry, mainly in Sydney. The defendant submitted that he was not really a comparable worker, particularly because he did more tower crane work than the plaintiff was likely to have done. Tower crane work is paid at a significantly higher rate than, for example, mobile crane work.

47. There is some force in the defendant's contention, but Mr Lirsch's earnings do help to mark out one boundary of the earnings open to the plaintiff.

48. The defendant also called evidence of Mr Edwards, the other rigger who was on the crane and was injured with the plaintiff. His skills and likely work pattern were more like those of the plaintiff, but he was injured, his eyesight is affected and his ability to use his arms is restricted. Although he returned to work as a dogman he does not go to heights, and supervises other riggers when work needs to be done of which he is not capable. I think that his earnings mark out another boundary of the plaintiff's potential earnings. An uninjured plaintiff would have been able to get work at least as remunerative as did the injured Mr Edwards, and probably much more.

49. The earnings of the three workers may be compared as follows:

TAX YEAR LIRSCH EDWARDS PLAINTIFF
1987 37558 24283
1988 41446 28233 9700
1989 55355 27514 22345
1990 68090 25310 27836
1991 69509 33210 27005
1992 22608 24278 9500
1993 38833 26197
TOTALS 333399 189025 96386

GRAPH OMITTED

50. It is notorious that there was a marked downturn in the construction industry from about the end of the previous decade. Neither the evidence nor my general knowledge enables me to say when exactly it began. But workers such as riggers and crane drivers would be engaged on projects that would continue for some time after the inception of the downturn. The general trend shown by the graph of the earnings of the three workers indicates clearly enough that earnings were rising strongly from 1987 to 1990, tapered off during 1990-1991, and then fell fairly dramatically during 1991-1992. That accords with my general impression. There is no reason to suggest that the plaintiff's earnings would not have followed the same pattern. During the downturn there were obviously many workers in the industry who were out of work for various periods. But I think that it is likely that the plaintiff would have been in work more regularly than many, because of his skills, experience and motivation.

51. The team that he was working with, the "Men from Marrs", did not continue to operate on the same basis as when he was working with them. He would have been obliged to find other work when they ceased. But I think it is likely that he could well have obtained it without undue delay.

52. This element is obviously a matter for judgment rather than calculation. To guide me in that judgment I have plotted on the following graph a series of possible earnings that were less than those of Lirsch, more than those of Edwards, but following the same pattern of rise and fall. It does not purport to be the mean between them, erring if at all on the side of caution. The mean between the totals of Lirsch's and Edwards' earnings over the relevant years is $261,212.

TAX YEAR LIRSCH EDWARDS PLAINTIFF
1987 37558 24283 30000
1988 41446 28233 33000
1989 55355 27514 40000
1990 68090 25310 42000
1991 69509 33210 42000
1992 22608 24278 25000
1993 38833 26197 30000
TOTALS 333399 189025 212000

GRAPH OMITTED

53. Those figures and the graph cover only part of the period from the accident to the present.

54. There must be added about $7,000 for the balance of the 1986 tax year, at least $30,000 for 1994, and $3,000 for the current year to date.

55. When those periods are taken into account I think that the plaintiff's past earning capacity, had he not been injured, for the period since the accident, must be valued conservatively at a figure of at least $275,000.

56. He did in fact earn $96,386. I award $175,000 for past loss of earnings. He has been receiving periodic worker's compensation totalling $108,810. The difference is $66,184. I think it proper to award interest on that difference at half the rate derived from the practice direction. Since I have found that he would not have been out of work for substantial periods, I do not think any element of double counting is involved in doing so. On that basis I award interest on his past loss of earnings of $43,600.

57. A proper figure to give a starting point for the future is the evidence of Mr Nelson, called by the defendant, who is at present paying riggers at the rate of about $45,000 a year, before tax. Gross tax on that taxable income is $12,350, so that the figure suggested by his evidence is $820 per week. The present value of that weekly income for 12 years is $432,131.

58. Although there are discounting factors to take into account in valuing what the plaintiff might have earned, such as the higher than average risk of injury, and of downturns in the industry, they are offset to some degree by the probabilities that there will be periods when much higher earnings are possible.

59. I do not agree that the plaintiff has no future earning capacity at all. But it could not be valued highly, in the light of the medical evidence, particularly that of the rehabilitation specialist. I note that the present value of $100 a week for 12 years at 3% is $52,699.

60. As a matter of discretionary judgment I award $350,000 for loss of future income earning capacity.

61. The out of pocket expenses are agreed at $15,624.17, the Fox v Wood component at $6,558, and there is no opposition to what I consider proper awards of $5,375 under the principles of Griffiths v Kerkemeyer and $4,200 for the cost of future treatment.

62. The total award is made up as follows:

Pain and suffering $85,000
Interest $10,139
Past wage loss $175,000
Interest $43,600
Future wage loss $350,000
Out of pocket expenses $15,624
Fox v Wood $6,558
Griffiths v Kerkemeyer $5,375
Future treatment $4,200
TOTAL $695,496

63. I direct the entry of judgment for the plaintiff against the fifth defendant for $695,496.

64. I will hear argument about the disposal of the action so far as it concerns the sixth defendant, and about costs.