Noel Dalton Webb v Malcolm Bruce Krueger [1996] ACTSC 75 (12 July 1996)

SUPREME COURT OF THE ACT

NOEL DALTON WEBB v. MALCOLM BRUCE KRUEGER
No. SC334 of 1994
Number of pages - 5
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Plaintiff Pedestrian Hit by Car - Extensive Laceration to Left Foot - Heel Almost Severed - Crushed Bones in Left Foot - Loss of Earning Capacity - No Issue of Principle.

Laird v Smith (unreported, Supreme Court of the ACT, Miles CJ, Gallop and Higgins JJ, 31 May 1996)

HEARING

CANBERRA, 25 June 1996
12:7:1996

Counsel for the Plaintiff: Mr J. Pappas

Instructing Solicitors: Pappas J. - Attorney

Counsel for the Defendant: Mr P. Callaghan SC

Instructing Solicitors: Allen Allen and Hemsley

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $201,945.00.
2. Credit be allowed for any of the out of pocket expenses of $7,341 which have been paid by the defendant.
3. The defendant pay the plaintiff's costs.

DECISION

MASTER T. CONNOLLY This is a claim for damages for personal injuries arising from a motor vehicle accident on 18 December 1993. The plaintiff was then a pedestrian in Eyre Street Kingston, and was struck while walking on the footpath by a vehicle driven by the defendant. At the hearing liability was admitted, and the matter proceeded by way of an assessment of damages only.

2. The plaintiff was born on Christmas Day of 1943 at Boonah, a dairy district in rural Queensland. He was described by his Counsel as "a battler", and this is a fair description, used in its best sense. He left school at the age of 12 to work in his parents' dairy farm, and at the age of 13 he took up with a cane cutting gang and learned the trade of manual cane cutting. He worked with the Webb brothers, and he changed his name from Abell to Webb. The work was hard during the season, and in the off season he looked for and took up other casual labouring jobs. He has worked in fruit factories and as a general rural labourer.

3. As a 17 year old, Mr Webb obtained his drivers licence and started driving trucks and semi trailers. He continued in this line of work for many years, in Brisbane and rural Queensland. He gave evidence, which I accept, that prior to his motor vehicle accident he had not seen a doctor in 30 years, and had not missed a day's work through abuse of alcohol. I accept that he has been a hard and reliable worker.

4. The plaintiff married in 1964, but the marriage broke up in about 1970. In the early 1970's he moved to Dalby as a truck driver, and later took up employment with a local farmer driving farm plant and wheat trucks. In the early 1980's while on holiday in Newcastle he was offered a job as a back hoe operator, and he moved to the district to take this up, eventually obtaining his formal trade ticket for back hoe and grader driving. At around this time he met and began living with his de facto spouse. They moved to Bundaberg to get away from her former husband, and he obtained a job as a sandblaster and industrial painter. This involved using heavy sand blasting equipment on mining and marine plant, as well as heavy spray painting. This employment took him away from home a lot, including working on patrol boats in Cairns and major construction jobs in Darwin. He was in this line of work, with the one company, for some twelve years.

5. He gave evidence that there were problems with his relationship due to the travel, and in about 1988 his partner moved to Canberra, where she had extended family. He came to Canberra in the hope of employment, as the company for whom he had been working had been involved in the Parliament House project, but the job was coming to an end and there was no work. There is no doubt that Mr Webb's employment history has changed as a consequence of his move to this area, and he has not been in continuous long term employment since.

6. Mr Webb had a limited formal education, and it was obvious from his evidence that he has difficulties with reading and numeracy, factors that effectively limit his employment to the type of jobs that he has been engaged in - which limits opportunities in this district. Nevertheless the plaintiff has held a range of jobs in and around Canberra, including truck driving and some sand blasting jobs. This employment has not been steady, and in the year leading up to the accident the plaintiff gave evidence that he was not earning any wage income, but was helping a friend whose sandblasting business had gone bankrupt. During this time he was working but received board only (by way of a caravan on the site and food) and assistance with his beer and cigarettes. He said he was doing this to help his friend, and in the expectation that when things improved they could be partners. He at no time claimed any social security benefit while this arrangement was in place.

7. There was no dispute on the medical evidence in this case. The plaintiff was taken by ambulance from the scene of the accident to Woden Valley Hospital. A report from the Medical Superintendent of the Hospital of 24 October 1995 says: "On examination the patient was noted to have a swollen bruised left foot with a large laceration over the posteromedial aspect of the foot. X-rays were performed which revealed a communited burst fracture of the cuboid bone of the foot. Other injuries noted on x-ray were a fractured lateral cuneiform bone, a fractured neck of the third metatarsal and a fractured base of the first proximal phalanx all of the left foot."

8. At the time of the accident an industrial dispute with Visiting Medical Officers severely limited surgery at Woden Valley Hospital and as a result, the plaintiff was admitted and then transferred to Melbourne, where surgery was performed to repair his foot. This required the insertion of a number of metal pins to internally fix the fracture. The plaintiff returned to Woden on 24 December 1993 and was discharged on 2 January 1994.

9. He was required to attend the fracture clinic on 9 occasions throughout 1994. As he still complained of pain and stiffness, he was referred to Dr Roberts, an orthopaedic surgeon, in February 1995. Dr Roberts' report of 6 March 1995 confirms that the plaintiff has limited movement in his foot. He says: "My understanding of his current situation is that he has developed significant mid foot arthritis following this open surgery and is developing continuing symptoms in his mid foot due to this. I would think it quite likely that in the future he will require a mid foot fusion and this should relieve some of the pain which he is currently suffering. He explained that he was unable to return to his job as a painter and I thought that this was reasonable in view of the fact that it required standing for long periods of time and walking up and down ladders. I believe that long term he will continue to have some symptoms even with a successful mid foot fusion. I feel that the prognosis is not good and I think he will require surgery and even then he may continue to have significant ongoing symptoms in his foot."

10. An occupational physician, Dr Robert Scott, examined the plaintiff in January 1996 and confirmed the previous clinical findings. He said "In my opinion Mr Webb would have great difficulty in returning to his pre accident employment as a painter with or without the proposed fusion. He would be hampered considerably in climbing ladders, standing in awkward positions, and prolonged walking and standing. I also believe he would find truck driving very difficult, even with automatic gears, as he would have difficulty climbing up into the cabin, and down from the cabin, or over the load, or onto the tray. With the above in mind, and with his lack of education and trade skills, I believe he will find difficulty in obtaining employment. His work capacity has been markedly reduced."

11. Reports from Dr Goldrick, who examined the plaintiff on three occasions for the defendant, are broadly consistent. While he has recorded improvement in Mr Webb's condition, he said in his May 1995 report: "The probability is that further improvement will eventuate to the point where, for all practical purposes, Mr Webb's only long-standing disability will be that which will involve heavy physical work. By his own statement, he is capable of driving a motor vehicle and walking for some distance. I would, on the other hand, agree that he would have great difficulty in climbing ladders repeatedly or climbing on scaffolding, tasks that would be involved in a trade as a painter. In fact I have considerable doubts that he will even be able to return to this type of occupation."

12. I am satisfied from the evidence of the plaintiff himself, that his ongoing incapacity has very markedly reduced his earning capacity. While there is a theoretical residual capacity, the reality is that all Mr Webb has ever done is the "heavy physical work" that Dr Goldrick accepts is now beyond him. Truck driving, his other recent occupation, involves considerable climbing and, on Dr Scott's report, is now beyond him. There is, for all practical purposes, no real present earning capacity.

13. It is clear from the plaintiff's recent history that calculations relating both to past and to future economic loss will be somewhat difficult in this case. At the time of the accident the plaintiff had chosen an arrangement in which he was not receiving an income, but he has demonstrated an earning capacity in recent years - through truck driving and stores type work which he has now lost, and for which he is entitled to be compensated.

14. This is not, however, a case where a simple arithmetical calculation will produce a reliable award for economic loss. 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."

15. Counsel for the plaintiff suggested that, looking at those periods in recent years when he has been in employment, his average net wage was around $368 per week. He suggests this as the basis for calculating economic loss, but concedes that an adjustment of the normal 15% for contingencies to 30% would be appropriate, given the applicant's age and employment record. This average is significantly below what Mr Webb has in fact earned in recent years. Counsel for the defendant disputed this approach, as the average wage figure only represents the period of his employment, and fails to take into account the 1993 arrangement where the plaintiff chose to work for no monetary income.

16. Nevertheless, his income earning capacity, for which he is to be compensated, remained with him in 1993, but has now been lost.

17. While the approach of Counsel for the plaintiff does involve a degree of "double prophesy" in the sense referred to in Laird v Smith, it does assist me. A notional wage of around $350 per week, which is substantially lower than what he has in fact earned for periods of time, would, when its present value is calculated and when a discount for contingencies is applied, lead to an award of some $130,000.

18. If I was to take an alternative approach and seek a reasonable lump sum to reflect the plaintiff's undoubted, but not precisely calculable loss of earning capacity, recognising the substantial reality of his loss and accepting that he was, before the accident, a fit man and a hard worker who could have expected to work to retirement as, say, a truck driver and earn a good wage, an award of this order would be appropriate.

19. For future economic loss I award the sum of $130,000 as a discretionary sum inclusive of any superannuation entitlements.

20. For past economic loss, I must accept that he had chosen not to earn an income in 1993 at the time of the accident but that he had been working as a driver and storeman and could have returned to these jobs at any time up to the date of the hearing. I award $20,000 as a lump sum, inclusive of interest, to represent all past economic loss.

21. In relation to general damages, I award $40,000 in respect of his foot injury, bearing in mind his need for surgery and his ongoing discomfort. Of this, $30,000 represents past economic loss, generating an interest component of $1,540.

22. There is a modest claim for Griffiths V Kerkemeyer damages of $1,064 to reflect the assistance he received following his discharge from hospital. This sum was not disputed, and I award it.

23. Past out of pockets were agreed at $7,341 and I award this amount, with the proviso that, if they have in fact been paid by the defendant, the award is to that extent satisfied.

24. In relation to future out of pocket expenses, there is a claim particularised to provide for the contingency of future surgery. At the hearing the plaintiff's need to wear odd shoe sizes was referred to in evidence, and a claim was made in respect of this. I am not convinced that special shoes are in fact required, as the cost of hand making a pair of odd shoes appears, on the evidence of a quote before me, to exceed the cost of two normal pairs of shoes. Nevertheless, this is an expense.

25. I award $2,000 as a buffer for future expenses, including the fact that the plaintiff wears odd shoe sizes.

26. This amounts to a total award of $201,945.00, which I order, plus costs.