Dermott v Yarralumla Marine Pty Ltd [1998] ACTSC 100 (18 September 1998)

Last Updated: 13 October 1999

Dermott v Yarralumla Marine Pty Ltd [1998] SCACT 100

(18 September 1998)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Industrial accident - Plaintiff working at defendant's garage and panel beating shop - A jack collapsed - Plaintiff attempted to take the weight of the partially dismantled vehicle - Fracture to the left wrist which has required surgery - Mild ongoing disability - Possibility of further degenerative changes - No issue of principle.

No. SC 974 of 1996

Coram: Master T Connolly

Supreme Court of the ACT

Date: 18 September 1998

IN THE SUPREME COURT OF THE )

) No. SC 974 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: IAN ANTHONY DERMOTT

Plaintiff

AND: YARRALUMLA MARINE PTY

LIMITED

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 18 September 1998

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $65,358.64.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from an accident at a workplace which occurred in 1987. Proceedings were brought out of time pursuant to an order of Justice Gallop of 13 December 1996. The accident occurred when the plaintiff, who worked as a trades assistant at the defendant's garage and panel beating workshop, was assisting to move a partially dismantled car from the workshop to the yard. A jack collapsed, and the plaintiff attempted to take the weight, fracturing his wrist in the process. Liability was not in issue. An interlocutory judgement was entered for the plaintiff with damages to be assessed on 24 August 1998. The matter thus proceeded before me by way of an assessment of damages only.

2. The plaintiff was born in 1959. He left school at the age of 14 having reached year 9 education, and worked in a variety of jobs in rural industries as a labourer or trades assistant. Before starting with the defendant he had been working as a wine making assistant at a South Coast winery. He commenced working as a trades assistant with the defendant in about 1986. The defendant's business involved a garage and workshop which performed mechanical and body repairs to motor vehicles. His duties involved dismantling vehicles prior to the trade work being performed by qualified tradesmen, and assembly work. He says that he enjoyed the work and was good at it. His employer gave him a chance to do some trades work, and it was agreed that he could enter into an apprenticeship with the defendant as a panel beater. The necessary approval from the appropriate Australian Capital Territory vocational training authorities were obtained, but the plaintiff had not signed his indentures and formally entered into the apprenticeship.

3. The accident occurred on 29 April 1987. The plaintiff said that he felt a numbness and tingling of his wrist at the time, but continued working. He in fact continued working with no time off from the accident until he took leave in August 1987 in Sydney. During this time the processing of his application for an apprenticeship continued. His employer filled in the necessary forms in May, and in June he was formally approved for entry as an apprentice.

4. He says that he had noticed an ongoing loss of power in his wrist, and ongoing pain, but this had not prevented him from attending work or continuing with his Army Reserve activities. While he was with his father during his holidays in August 1987 his father insisted that he attend a general practitioner to have his wrist looked at. This was the first time he had obtained medical attention. The general practitioner referred him immediately to an orthopaedic surgeon. Dr Caspary, his surgeon, reported to his general practitioner on 17 September 1987 that

"On examination he is extremely tender over the left scaphoid. X rays of 9 September 1987 confirm that he has an ununited fracture of the left scaphoid which has been present for some time. There is cystic formation around the non union site. It is important that the fracture be internally fixed and I have arranged his admission to hospital for Herbert's screws fixation and possible bone grafting of the left scaphoid. As he does not realise the significance of his injury he has not yet filled in a claim form and I have asked him to do so."

5. The plaintiff says that he was advised not to return to his former duties, and he accordingly put in a claim for, and was paid, workers compensation.

6. The plaintiff underwent surgery on 8 April 1988. Dr Caspary reported to his general practitioner on 13 April 1988 that

"Operation was carried out on his left scaphoid through a volar approach. A Herbert's screw was inserted into the left scaphoid and the area around the non union site was packed with bone graft taken from the distal radius. These procedures went very smoothly and I hope he will do well."

7. The plaintiff remained on workers compensation payments. Dr Caspary reported to his general practitioner on 13 October 1988 that

"There is only very slight tenderness in the region of the scaphoid. X rays today show that the fracture has almost united. While he is not fit for his pre injury job as a panel beater I understand a job as a security guard is available to him at this time. I have therefore certified him as fit to return to this sort of work from 17^th October 1988 and will review him again in three months with further x rays."

8. The plaintiff began work as a security guard in October 1987, and has worked in that industry since that date. It appears that he did not return to Dr Caspary for the review proposed in his October 1988 report. In a report of October 1996 to the plaintiff's solicitors Dr Caspary said that an x ray taken in September 1996

"...shows that the fracture of the scaphoid is now completely united. A Herbert screw remains in place. There is a very small area of a localised degenerative change around the fracture site."

Dr Caspary said in this report that

"Examination of his left wrist shows a well healed scar over the volar aspect of the scaphoid. The area is only slightly tender. Movements of the wrist are full and pain free."

9. In his evidence the plaintiff claimed to still have some restrictions of movement in his wrist. I note however that when Dr Caspary again examined him in May 1998 he again reported that

"Movements of the wrist are full and pain free."

10. Dr Caspary's conclusion in both his 1996 and 1998 reports to the plaintiff's solicitor was that

"In summary, as a result of an accident at work on 29 April 1987 this patient sustained a fracture of the scaphoid which went on to non union. He later had internal fixation and bone grafting of the scaphoid with an excellent end result. Slight degenerative change has supervened. He can expect some continuing pain in his left wrist. He will remain permanently unfit for heavy work or repetitive work involving his left arm including his pre injury work as a panel beater. He remains fit for moderate or light work including his later work as a security guard. As a result of the injury at work on 29 April 1987 this patient continues to suffer a permanent loss of efficient use of 10% of his left arm below the elbow."

11. The plaintiff was also examined by Dr Selby Brown for the purposes of a medico legal report to his solicitors. He reported in May 1998 that

"In his left wrist Mr Dermott has a 5 centimetre scar over the radial aspect of the anterior surface of the distal left forearm and this area is moderately tender to palpation. There was no swelling about the left wrist or left hand. In the left wrist dorsi flexion was restricted to 0-70 degrees. He had full radial and ulnar deviation at the left wrist. There was no crepitus on movement of the left wrist nor any clinical evidence of any instability in the left wrist. Mr Dermott I consider had a strong grasp with the left hand. The circumference of his arms mid way between the shoulders and the elbows was measured to be equal as was the circumference of both proximal forearms."

12. The plaintiff has also been examined by Dr Neild for the defendant. He reported in August 1997 that he found a slight restriction of movement of the left wrist in all directions, but good power and equal muscle bulk in the forearms. He reported that

"...there is a 10% loss of the efficient use of his left forearm below the elbow as a direct result of his fractured scaphoid."

13. I note that this is the same conclusion as that reached by Dr Caspary. Dr Neild differs from Dr Caspary in that he says that the plaintiff is fit for his former work as a panel beater as well as for his work as a security guard. He notes that

"...the prognosis is for degenerative changes to possibly occur as a result of his fractured scaphoid."

14. The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 1 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, `in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

15. In relation to general damages, I assess the plaintiff on the basis of a fracture to the wrist which has required surgery, but which has united, leaving the plaintiff with some mild ongoing disability only, and the possibility of further degenerative changes. The plaintiff is right handed, and the injury was to the left wrist. I note that some limitation of movement was found by Dr Selby Brown and Dr Neild, who reported for the defendant, but that Dr Caspary, who was the plaintiff's treating surgeon, reported full range of movements in two reports. I note that both Dr Selby Brown and Dr Neild note good grip strength, and note that muscle bulk in the forearms is equal.

16. The plaintiff said that he used to be a body builder, but gave this up because of his injury. He conceded in cross examination that he had in fact continued to exercise, but not at his prior level, up until a 1996 back injury. The findings of equal muscle bulk are consistent with the plaintiff having similar movement and strength in both arms. I conclude that the ongoing symptoms and problems from this 1987 injury are minor, although they are permanent, and the prognosis is that degenerative changes could continue. In relation to general damages, I award $22,000, of which I would attribute half to past loss, generating interest of $2,500 leading to a total award of $24,500.

17. The plaintiff's claim for economic loss was particularised as an arithmetic claim based on the difference between the plaintiff's expected earnings as a tradesman panel beater, and his actual earnings as a security guard. He has worked as a security guard continually since October 1988, with some periods of unemployment. He suffered a back injury in late 1996. He lost his position as a security guard in January 1998 when the firm for whom he worked lost its contract to provide security services to a shopping centre.

18. The plaintiff's counsel conceded, properly in my view, that the claim should be seen as a buffer claim. The plaintiff had in fact never entered his apprenticeship, although he had been approved. It seems to me that this must be seen as a loss of a chance. In assessing the plaintiff's economic loss I accept the evidence of the plaintiff and Dr Caspary that it would not have been appropriate to enter into an apprenticeship with this ongoing disability, albeit minor. I do not accept Dr Neild's view that he was and remains fit for work as a panel beater.

19. The plaintiff agreed that his gross earnings as a trades assistant had been in the order of $13,000 in the year ended June 1987. If he had entered an apprenticeship, he would have expected to have had reduced wages until he qualified as a tradesman. His earnings in the first full year he worked as a security guard were, he agreed, in the order of $19,000 for 1988, and about the same for 1989. He continued to earn in this range, apart from periods of unemployment, with final gross earnings of $24,496 in the group certificate for the 1997 tax year.

20. While I accept that the plaintiff was told and accepted that he was unfit and unsuitable for training in the field of panel beating, he found employment in a field that at the outset paid him nearly half again what he had earned as a trades assistant, and which did not require him, as a man then of 28 years of age, to undertake a four year apprenticeship at reduced wages. I was told that the parties agreed that the present wages under the award for a qualified tradesman panel beater were $450 a week gross, with industry payments to good tradesmen up to $550. I note that this is within the range of his earnings in the 1997 tax year of $471 a week gross. While the plaintiff lost a chance of qualifying as a panel beater, he obtained a vocation which paid him well in excess of his trades assistant wages, and indeed more than the award for a qualified tradesman, without the need for a period of reduced wages while serving as an apprentice.

21. While it was submitted that a tradesman panel beater would be more secure in employment than a security guard in relation to the prospects of periods of unemployment, there was no evidence to support this assertion.

22. I am not persuaded that the plaintiff has in fact sustained any major loss. I must accept, however, that he does have an ongoing restriction in relation to the use of his left wrist. He claimed that this was causing him difficulty in relation to the duties of a security guard, but this is not supported by his own treating doctor, and I am not satisfied that this was a restriction in the period of some 10 years in which he has worked in this field. I note that he is not now working, but this seems due to a combination of factors not the responsibility of the present defendant, being a fall from a ladder at work in 1996 causing a back injury, and the loss of a contract by his former security firm.

23. I accept the description of restrictions contained in Dr Caspary's report, which is that he is unsuited to heavy work involving the use of his left wrist, including work as a panel beater and manual labouring jobs. I note however that he is certified by his treating doctor as fit for the type of well paying duties which he has undertaken over the past 10 years.

24. I accept that he was unfit for any duties during the period in which compensation was paid from the date of diagnosis until he commenced work as a security guard. The amount of $10,712.36 paid as compensation is thus properly recoverable as past wage loss. As this was in fact received no interest is appropriate. In relation to his loss since he commenced work as a security guard, and into the future, I would award a modest buffer of $25,000 inclusive of interest to cover both past and future loss.

25. There is a Fox v Wood component of the claim which was agreed at $1,933.48.

26. Past medical expenses were claimed in the sum of $3,212.80, which I award.

27. This amounts to an overall award of $65,358.64 which I consider to be appropriate in all the circumstances, and which I award, with costs.

I certify that this and the seven (7) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 18 September 1998

Counsel for the Plaintiff: Mr G Lunney

Instructing Solicitors: Pamela Coward & Associates

Counsel for the Defendant: Mr S Pilkinton

Instructing Solicitors: Barker Gosling

Dates of hearing: 7 September 1998

Date of judgment: 18 September 1998