Alan Raymond Gibbs v Eric Jenota [1996] ACTSC 66 (14 June 1996)

SUPREME COURT OF THE ACT

ALAN RAYMOND GIBBS v. ERIC JENOTA
No. SC479 of 1992
Number of pages - 6
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T. CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Fractured Dislocation of the Right Hip - Loss of Earning Capacity - No Issue of Principle.

Taroporwealla v Berkley (1983) 3 NSWLR 28
Stott v Paulin (unreported, Supreme Court of the ACT, Master Connolly, 19 April 1996)

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Laird v Smith (unreported, Supreme Court of the ACT, Miles CJ, Gallop

and Higgins JJ, 31 May 1996)

HEARING

CANBERRA, 21 May 1996
14:6:1996

Counsel for the Plaintiff: Mr R. Mildren

Instructing Solicitors: Crossin Barker Gosling

Counsel for the Defendant: Mr C.C. Branson QC and Mr C. Leahy

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $461,515.73.
2. The defendant pay the plaintiff's costs.

DECISION

MASTER T. CONNOLLY This is a claim for damages arising from a motor vehicle accident on 12 September 1990 in which the plaintiff's light truck collided with the defendant's station sedan, which was on the wrong side of the road, on the Monaro Highway near Williamsdale in the Australian Capital Territory. No defence was delivered to the Writ of Summons and Statement of Claim and on 22 February 1995 an interlocutory judgment was issued in this Court that the plaintiff recover against the defendant damages to be assessed. The matter thus came before me as a matter of assessment only.

2. The plaintiff was born in September 1950, and was thus 40 at the date of the accident. He was schooled to the Intermediate Certificate level at Narrabundah High School in Canberra, and left school in 1966 to take up an apprenticeship as a baker. He persisted with this for nearly three years, but decided that this was not his vocation, and went to Sydney where he completed a Dogman and Riggers Certificate at Granville Technical College. He began working in the construction and civil engineering industry, where he has remained ever since.

3. He returned to Canberra in the early 1970's and took up an apprenticeship with Theiss Constructions as a fitter in the field of repairing heavy plant and equipment used in civil engineering and earthmoving. While he has never taken out a formal "ticket" or trade qualification it is clear that the plaintiff is a skilled and accomplished fitter in this specialised area of maintenance of heavy equipment. He has worked for a variety of companies over the years in and around the Canberra district. He married in 1974, and he and his wife have three children, two of whom have now grown up. Their daughter Kate, now a student in year 10, is the only child still living at home.

4. The plaintiff spent just under a year in Papua New Guinea in the early 1970's working on the OK Tedi mine site, where he says he earned "big money", some $50,000 tax free, but since then he has been based in Canberra, although he gave evidence that this has involved working throughout the region at times, from Wollongong to the snowfields. He has worked consistently as a fitter and plant mechanic for a variety of local companies, large and small. In the early 1980's he began work, as a wages employee with Wollongong Constructions, a Canberra based civil engineering firm whose then principal, Mr Da Deppo, gave evidence in the hearing. He then worked for a rival firm for a period, before returning to Wollongong Constructions in 1987, this time as a subcontractor. While Wollongong Constructions paid his workers compensation, and provided him with access to a light truck equipped as a service vehicle, he was an independent contractor. He operated this business in partnership with his wife, but it was uncontested that his wife only played a minor role by way of taking telephone calls, organising the paperwork and preparing taxation returns for their accountant's approval, and from time to time collecting spare parts. She did the banking once a week. I accept that, for the purposes of assessing the plaintiff's loss of earning capacity, the bulk of the partnership income should be taken as the loss, despite the fact that for taxation purposes this had been split between the plaintiff and his wife. (Compare, Taroporwealla v Berkley (1983) 3 NSWLR 28, Stott v Paulin (unreported, ACT Supreme Court, Master Connolly, 19 April 1996). I would find that the plaintiff's contribution should be taken as 90% of the total partnership income. This produces an income for the 1989-90 financial year of $33,914.70. I take $34,000 as the starting point for calculating economic loss.

5. The plaintiff's work involved very heavy duties. He was responsible for keeping the plant in operational order, and this involved much work out in the field on road or subdivision sites where heavy earthmoving equipment was in use. He would regularly be involved in changing the blades on such equipment, involving very heavy and awkward lifting, and welding work in similarly awkward conditions. Mr Da Deppo, who remains involved in the industry as a consultant to Chinchilla Pty Ltd, a contracting firm run by his son, gave evidence that it was rare to find a person over 55 years of age still involved in this type of work, although there were such persons. The plaintiff gave evidence that it would have been his intention to continue in this field of work, but that he would have developed ways of "making it easier" as he got older.

6. On the day of the accident the plaintiff had been working on equipment at the Yorke Park site where overburden from the Parliament House construction was being broken up. He was driving a light truck which belonged to Wollongong Constructions and had been modified as a mobile workshop and service vehicle. At this time he was a contractor on about $25 per hour, and he worked anything between 8 and 14 hours a day, 5 to 7 days a week, depending on how busy Wollongong Constructions were and how often plant and equipment needed urgent attention.

7. He called in to visit a friend in Canberra after finishing work, and at about 9.30 pm was driving on the Monaro Highway toward Williamsdale heading towards his home on a two acre block near Michelago.

8. Liability is not in issue in this case, but the evidence establishes that his truck came into collision with a station wagon driving in the opposite direction which veered onto the plaintiff's side of the road. He gave evidence that he was trying hard to brake as he saw this vehicle approach, with his right leg extended and rigid applying maximum pressure to the brake. His recollection was of striking the windscreen, and then that his "Leg was all squelchy". He was in extreme pain, and was eventually conveyed by ambulance to Woden Valley Hospital and then to Royal Canberra Hospital. He was diagnosed with a fractured dislocation of the right hip. Dr McNicol, his treating orthopaedic surgeon, reported on 2 May 1991 that "His hip dislocation was reduced under general anaesthesia and was found to be stable in extension but unstable in flexion. He was therefore treated in traction and a posterior fragment was reduced surgically and internally fixed."

9. I am satisfied from the evidence that throughout his 4 week stay in hospital he was in great pain and discomfort. He gave evidence that at one point it was necessary to provide him with a catheter because he had been having difficulty passing urine, but that this procedure went astray, and caused him great pain for some time.

10. On his return home he was provided with great support by his wife. In the course of the hearing Counsel indicated that they had agreed that a claim for Griffiths v Kerkemeyer damages of $6,000 was appropriate. I accept this as so.

11. I was impressed from his evidence that the plaintiff is a person who expects to work hard and will try to make a go of this even with his ongoing disabilities. These are substantial. He continues to suffer pain from his hip. This has been confirmed by various medical specialists, whose reports were not contradicted. Dr McNicol in reports in 1994 and 1995 refers to him being in "severe hip pain especially at night after a heavy day's work" and to "a crunching sensation in his hip which was audible with abduction of the joint." In 1995 he described this as "a painful hip with weather changes in particular but had a constant ache most of the time." Dr McNicol is of the view that his hip is becoming osteoarthritic and that a total hip replacement will be necessary at some time.

12. Dr McGrath, a consultant in occupational medicine, saw the plaintiff in 1992 and 1995 and reported in 1995 that "The clinical and radiological evidence supports the notion of a very painful right hip, made worse by heavy activity with probable time related deterioration. It is probable that the osteoarthritis will continue to develop, leading to a total hip replacement sometime in the future....Clearly Mr Gibbs will have difficulty maintaining his employment in the mechanical field."

13. Dr Gavaghan, a consultant physician, saw the plaintiff in May 1995. He reported "In summary then your client is suffering from a significant injury as a consequence of his accident. His main complaint is the general debility of chronic pain in the right hip causes and as well the consequences to his normal life enjoyment....There is no doubt that these injuries were caused by his accident and there is no doubt that your client's condition has not stabilised and there will be progressive deterioration. There is very significant disability and I suppose if one was to put some form of limit on the degree of disability I would feel about 50%."

14. The plaintiff's injuries and ongoing disabilities are such that an award of $75,000 for general damages is appropriate. $50,000 of this should be for past loss, leading to interest of $5,693.15.

15. Despite these disabilities the plaintiff has tried very hard to get back to work. He returned to his duties with Wollongong Constructions in January 1991, but he said in evidence that "I went back too early". He had problems coping with his duties, but this was resolved as the Company went into liquidation in March 1991. In April 1991 he obtained wages work with a forklift company, but left in mid May as "it got a bit hard". He then obtained work as a subcontractor with a plant hire company, but again was having difficulties. He did not work through most of 1992, but eventually found a position with Barry Coles Removals doing maintenance work and welding. He persevered with this work for some 18 months, but was clearly having problems. In August 1995 he obtained work with Chinchilla Pty Ltd driving a fuel cart and doing minor servicing of vehicles and plant in the field. This work finished after some 6 weeks, but he has been able to take up this work again from February of this year. Mr Da Deppo, the principal of Wollongong Constructions and a consultant with Chinchilla gave evidence of his work, and it is clear that this company is employing the plaintiff on the basis of his established reputation.

16. He says that he is "just coping" with this work. He is presently earning about $12.50 per hour, or $420 net per week. It is significant that this plaintiff, despite his obvious disabilities, and in the knowledge that his matter was marked for a hearing in May, was prepared to give this type of physical employment a go in February 1996. I am satisfied that this employment is at the extreme edge of the plaintiff's earning capacity, and that he would have difficulty in coping if this became a more intense job. It is significantly to the plaintiff's credit, and greatly aids his credibility, that he took this work up.

17. For past economic loss, I take the figure of $34,000 to be the appropriate figure on which to base calculations. It has been urged that I factor in to this figure a rate of growth of 7.5% per annum to take into account increasing profit. Against this, the defendant argues that not only should there be no growth, but that I must assume that the plaintiff would not have worked at all for a substantial period following the financial collapse of Wollongong Constructions.

18. There is certainly a level of "...uncertainty, speculation and conjecture..." (per Miles CJ and Gallop J, Laird v Smith, unreported, 31 May 1996) concerning the plaintiff's employment had he not been injured. This is not a case where a strict arithmetic approach of comparable earnings will give a precise outcome.

19. As a matter of discretion I will neither build in a growth factor nor apply a substantial discount. Taking the figure of $34,000 as the base, the plaintiff's past loss must be seen as 5.75 years at $34,000, being $195,500, less his total income received of $54,488. This results in a past loss of $141,012. He has received workers compensation payments of $43,441, which both parties accept should be deducted from this sum for the purposes of calculating interest. There is claim for Fox v Wood damages of $3,837.48, which I award. This results in a past loss component for interest purposes of $97,571, which results in an interest award of $35,232.50.

20. This results in a component for past economic loss of $176,244.50.

21. Assessing future economic loss in this matter is not easy. I allowed Counsel to prepare written submissions which have been helpful. Understandably, the assumptions from which they base their calculations produce very divergent outcomes. I am mindful of the comments of Miles CJ and Gallop J in Laird v Smith (unreported, 31 May 1996): "The nature of the work and the advancement of age are complicating factors. Accordingly, to make an assessment of the respondent's future by reference to what the respondent would have been earning at the date of assessment if there had been no injury, which is purely speculative, and doing the calculation for the future on that figure is not appropriate in this case and involves not merely double prophesy but guess work. It gives a false sense of mathematical accuracy in a case where it is impossible to achieve accuracy of that nature."

22. The plaintiff's calculations, based on notional present earnings of $58,000 and assuming both that his present earnings are above his long term capacity and that he would have worked to age 65, result, with appropriate discounts, to an award of some $500,000. The defendant's calculations, based on potential present earnings of $26,000 (being 70% of the 1989-90 partnership earnings) and accepting $420 as his long term capacity and assuming that by age 50 he would cease working beyond that level anyway, would result, with appropriate discounts, of an award of $76,000.

23. I will adopt the approach in this case of seeking to find a reasonable lump sum which will reflect the plaintiff's undoubted but not precisely calculable loss of earning capacity. I assess this at $150,000. This figure recognises the substantial reality of his loss, and acknowledges that he has been a hard worker and an achiever in his field. But the state of the market for his specialist services, and the very heavy nature of the work as age advances convinces me that the plaintiff's approach results in substantial over compensation. Conversely, the assumptions behind the defendant's calculations fail to properly take into account the real loss the plaintiff has suffered.

24. There is a claim for out of pocket expenses, which I accept, of $29,740.60.

25. The medical evidence establishes that a total hip replacement is very likely for this plaintiff, and that a further operation may indeed be needed. The cost of this procedure is agreed by Counsel at $15,000, and I think it is appropriate to award that full amount; accepting that it is very probable that at least one operation will be needed.

26. This results in an award of $461,515.73, which I think is appropriate in all the circumstances.