Jose Miranda v Skatebin Formwork Pty Ltd Acn 008 598 749 [2000] ACTSC 80 (6 October 2000)

Last Updated: 17 October 2000

Jose Miranda v Skatebin Formwork Pty Ltd ACN 008 598 749 [2000] ACTSC 80 (6 October 2000)

CATCHWORDS

DAMAGES - Assessment - Personal injury -Workplace accident - No issue of principle.

Malec v Hutton (1990) 95 ALR 545

Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49

Van Gervan v Fenton [1992] HCA 54; (1992) 109 ALR 283

Wilson v Piesly (1975) 7 ALR 571

No. SC 175 of 1999

Coram: Master T Connolly

Supreme Court of the ACT

Date: 6 October 2000

IN THE SUPREME COURT OF THE )

) No. SC 175 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JOSE MIRANDA

Plaintiff

AND: SKATEBIN FORMWORK PTY LTD

Defendant

ORDER

Coram: Master T Connolly

Where Made: Canberra

Date of Order: 6 October 2000

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $338,887.28.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from a workplace accident which occurred in Canberra on 14 May 1997. The plaintiff, who was employed by the defendant as a concreter, was standing on a ladder doing work to repair a horizontal concrete beam. The ladder was placed on plastic sheeting which was itself on a plastic or vinyl floor covering, and the base of the ladder slipped, causing the plaintiff to fall directly face down, hitting the floor on top of the ladder. As a result of the fall he sustained a fracture to his left elbow, damage to his dentures, an impact injury to his chest, and soft tissue injuries to his cervical spine, which he says aggravated a pre existing degenerative condition which had until then been broadly asymptomatic. The plaintiff now complains of quite significant restrictions of movement to his left arm and neck and shoulders, and has not worked again in his trade as a concreter. Liability was admitted, and the matter proceeded before me as an assessment of damages only.

2. The plaintiff was born in Portugal in 1939, and after completing school engaged in factory work. He lived for a time in France, where he worked as a truck driver. He first came to Australia with his wife in 1966, and then returned to France in 1970. He returned to live in Australia in 1985. He has worked in labouring duties as a concreter since then. He gave evidence that, since leaving school, he has never been without employment, and I accept that he is a man who has worked hard all of his life. Although the plaintiff has some English, he elected to give his evidence through an interpreter.

3. The plaintiff was taken to hospital by ambulance following the accident. He had his elbow immobilised in plaster to treat the fracture, and he also had considerable bruising to his chest. Although his fracture has healed, he continues to experience pain and restriction of movement in his elbow. There is agreement in the medical evidence that the fracture to the plaintiff's left elbow has left him with a restriction of movement, and also that the accident has aggravated a pre existing degenerative condition to his cervical spine. Dr Schultz, a consultant surgeon, examined the plaintiff for the defendant in July 1999 and reported that,

"The fracture (to the elbow) has healed but there is limitation to full extension. There were neck symptoms due to an aggravation of pre existing degeneration, but there has been no deterioration of neck due to the accident."

4. The real issue between the parties was the extent to which the plaintiff's present neck complaints are attributable to the accident or to an underlying degenerative condition. Dr Schultz expressed the view in 1999 that there was only a temporary aggravation due to the fall, and that he would have come to his present symptoms by now in any event. Extensive notes were tendered from the plaintiff's general practitioner, Dr Jamieson, who has been his family general practitioner for many years, and these show that the plaintiff had made only two isolated complaints of neck pain in June and July of 1992. He gave evidence that he had not taken time off work due to this, and evidence was also given from his wife, work mate and a social acquaintance, that he did not complain of neck pain before the accident, and was a vigorous and active man. He enjoyed fishing trips involving clambering over rocks to get to difficult spots, as well as gardening, and was involved in quite heavy physical work with no difficulties.

5. The plaintiff has had a series of treatments for a degenerative condition to his left knee, with an arthroscopy in 1992 and a number of consultations since. It is his uncontradicted evidence, however, that apart from some time off work around the time of the arthroscopy, this condition, while annoying, did not interfere with his work or leisure activities, and that this condition would not have prevented him from continuing in the workforce.

6. It is a notorious fact that degenerative changes to the cervical spine afflict most individuals of mature years, but that the degree of observable degenerative change on x ray is no clear guide to the level of symptoms. Apparently identical levels of degenerative change may cause ongoing pain and restriction of movement in one individual, and yet be asymptomatic in another. In this case I am satisfied, on all of the evidence, that the plaintiff was broadly asymptomatic prior to this accident, and is therefore to be assessed on the basis that the fall has rendered symptomatic a previously asymptomatic condition. The combination of the elbow and neck injury has also resulted in psychiatric sequelae, which has been diagnosed by Dr Canaris, a psychiatrist, as,

"A condition somewhere on the borderline between and Adjustment Disorder with Depressed and Angry Mood and an actual Major Depressive Disorder."

7. Where the action of a tortfeasor renders symptomatic a latent or degenerative condition that was previously asymptomatic, or aggravates a previously symptomatic condition, the tortfeasor will be held liable for that condition, but the fact that the condition was present and would have come to symptoms at some time must be taken into account. In Wilson v Piesly (1975) 7 ALR 571 Barwick CJ said at 575;

"The trauma of the accident for which the appellant was responsible no doubt made a present reality of that which was ever a real possibility. Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellants negligence intervened."

8. In this case, I assess the plaintiff on the basis of his directly accident related elbow condition, and the aggravation of his previously broadly asymptomatic degenerative cervical osteosponylosis, and the resultant psychological sequelae.

9. There is agreement between Dr Schultz, who saw the plaintiff for the defendant, and various doctors who have reported in the plaintiff's case, that his condition precludes him from a return to work as a concreter. While Dr Schultz suggested he may be fit for other light work, I must take into account that the plaintiff has limited English language skills and limited education, and is presently 61 years of age, and I am satisfied that he is, due to a combination of the physical and psychological conditions, unfit for any further work. Dr Champion, who has examined the plaintiff and provided a series of reports in his case, stated in July 2000 that the plaintiff is unfit to work as a concreter, and that,

"This unfitness for work is largely attributable to the effects of the accident on 14.5.97 while employed by Skatebin Formwork, but his underlying osteospondylotic and osteoarthritic state as well as his age would contribute to difficulty in achieving and sustaining employment."

10. The principles to be applied in determining compensation in personal injuries cases have been summarised by McHugh J In Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 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'."

11. In relation to general damages, I assess the plaintiff on the basis that, while he had pre accident degenerative conditions to his cervical spine these were largely asymptomatic, and had not caused him difficulties in engaging in heavy work and relatively vigorous physical activities. I am satisfied that the accident has aggravated and rendered symptomatic his neck problems, but I accept that there was a marked degree of degeneration present and observable on x ray, and that I must take into account the chances of this coming to symptoms in any event. In relation to his elbow, I am satisfied that the accident caused a fracture which has resolved but has left the plaintiff with significant restriction of movement. I am satisfied that these accident related physical disabilities have significantly restricted the plaintiff to the point that he cannot engage in the type of heavy labouring work that he has done all of his life, and have also restricted his leisure activities, and that he has developed a psychological sequelae to these injuries as described by Dr Canaris.

12. The plaintiff still does some gardening, but not the heavier work, and he still enjoys taking regular walks of about an hour three times a week. He acknowledged that he still can do some housework, but not as much as he did before the accident, when his wife worked long hours and he would prepare meals and do housework when he returned from work in the mid afternoon.

13. In respect of general damages, taking into account all of the evidence, I award the plaintiff the sum of $75,000 with $ 50,000 attributable to past loss, generating interest of $3,397.

14. Out of pocket medical and other expenses were agreed in the sum of $6,731.74, which I award.

15. In respect of economic loss, I am satisfied that the accident related disabilities have alone precluded the plaintiff from working to the date of trial, and I award the plaintiff his full loss to date, which amounts to an award of the agreed net wage loss of $628 per week. The evidence of a former work colleague of the plaintiff's was that the firm Skatebin Formwork went under in late 1997, with all employees losing their job, but Mr Guerreiro gave evidence that he found work quickly after this in another firm, and has since rejoined the former principals of Skatebin Formwork in another venture. He agreed that most of the men who lost their job at Skatebin Formwork and found other work were younger, but was able to identify one person of about Mr Miranda's age. As I am satisfied that the plaintiff was a good worker, I can be satisfied that, but for the accident, he would have lost his job as Skatebin Formwork, but would have been able to find another position, after some period of break between jobs. It seems to me that to award him the weekly sum from 14 May 1997 for a period of 168 weeks to the date of judgment is an appropriate award, which takes into account some likely weeks only out of the workforce between jobs. This amounts to an award of $105,504. In calculating interest on this I must take into account that he has received workers compensation payments of $54,685.15. Taking this into account I award interest of $8,647, making a total award of $ 114,151 for past economic loss.

16. It was agreed that the appropriate sum for the Fox v Wood component to recognise tax paid on the compensation payments is $5,472.54, which I award.

17. In respect of future economic loss, it is the defendant's case that the plaintiff would by now have been rendered unfit for work due to his underlying degenerative condition, and a range of other health complaints acknowledged by the latest report of his treating general practitioner. I have previously found that I am not satisfied that his degenerative condition would have rendered him unfit for work, contrary to the view of Dr Schultz. While Dr Jamieson has quite properly listed all the conditions for which he is treating Mr Miranda, which includes hypertension and prostate hypertrophy, there is no evidence that persuades me that these conditions would render him unfit for work. While his case is particularised as a claim for economic loss to age 65, which the plaintiff said was his likely retirement date, his counsel did acknowledge, quite properly it seems to me, that in assessing the future for this man it would be appropriate to apply some discount in respect of his general health position against the likelihood of him working to full retirement age, and submitted that a discount of 20% would be an appropriate approach.

18. The plaintiff will turn 61 on 6 November 2000. The full award at the agreed present net rate of pay of $648.10 over 212 weeks amounts to $137,397.20. I am not satisfied that the plaintiff would have been able to work through to full retirement age, and it seems to me, taking into account all of the evidence, that to discount this amount by a factor of 25%, resulting in an award for future economic loss of $103,048 is appropriate in all of the circumstances applying the principles in Malec v Hutton (1990) 95 ALR 545, and I so award.

19. The plaintiff would also have been entitled, had he continued in employment but for the accident, to superannuation and other benefits. It was agreed that under the Australian Construction Industry Redundancy Trust, as it operates in the ACT, he would have been entitled to an amount of $45 per week from 19 December 1997, being the date his employment was terminated, to his retirement. As I have found that I should discount his likely future economic loss by 25%, in effect giving him just over three years rather than just over 4 years to full retirement, I should apply a similar approach to this calculation. This amounts to an award which I will base on 6 years entitlement, taking him from 19 December 1997 to the end of 2003, being an award of $14,040. As this is an amount which he would receive in the future however, it is appropriate to calculate the present value of this weekly loss, which I find to be $12,906. It was agreed that under present arrangements this would be taxed at 16.5%, so the net value of this amount which I find he would have received at the end of 2003 would be $10,777 which I award.

20. In relation to superannuation loss, the plaintiff has lost his entitlement to the statutory 9% contribution of his gross salary. His gross wage as at 14 May 1997 was, it was agreed $856.66, making a weekly loss of $77.10. This amounts to a loss of superannuation to judgment in the order of $13,540. This would be taxed at 15%, giving a loss to date of $11,509, which I award. His present gross wage was agreed at $901, so the future loss should be calculated at 9% of this, being $81.06 per week, which I will take out for three years, in accordance with the approach taken above. The present value of this loss is $12,130, and awarding him 85% of this to take into account the taxation would result in an award for loss of future superannuation in the sum of $10,310, which I award.

21. Future medical expenses were particularised on the basis of relatively high levels of medications, and visits to his general practitioner on the basis of ten visits per year. His counsel acknowledged that his other conditions would involve regular general practitioner visits, and that his medication regime does vary. A claim for regular massage was not supported by the evidence and not pursued. Counsel proposed a buffer approach in respect of future out of pocket expenses, which seems appropriate in all of the circumstances of this case, and taking into account the evidence of ongoing treatment, and the pattern of past treatment, the submission of counsel that a buffer of $10,000 in respect of future out of pocket expenses seems appropriate.

22. The plaintiff has particularised a claim for an accident created need for domestic assistance and care pursuant to the principles of Griffiths v Kerkemeyer on the basis of a lifelong need for 8 hours domestic assistance. Dr Champion, his specialist, has expressed the view that 8 hours of assistance would be optimal, but has acknowledged that the plaintiff's present incapacities are caused both by the accident and by underlying conditions. In this regard I prefer the evidence of Dr Schultz who said that,

"I consider that there is no pathological problem relating to the injury sufficient to warrant assistance nor any indication on the findings of my examination that he would require assistance."

23. The plaintiff and his wife gave evidence that they have rearranged domestic arrangements since the accident, but the plaintiff acknowledged that he still did work in the garden, and still does some housework. He remains active, taking regular long walks. I am not satisfied that his accident related aggravation to his degenerative cervical spine, and his accident related elbow condition, while they do preclude him from engaging in his former demanding labouring employment, are such as to preclude him from ordinary household activities and require domestic assistance. It seems to me that the evidence in this case establishes a re arrangement of household tasks which amount to the normal give and take of domestic arrangements, as referred to in Van Gervan v Fenton [1992] HCA 54; (1992) 109 ALR 283, and does not sound in an award of monetary damages.

24. This amounts to a total award of $338,887.28 which I consider to be appropriate in all of the circumstances of this case and award, with costs.

I certify that this and the twenty-four (24) preceding numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 6 October 2000

Counsel for the Plaintiff: Mr Twoomey QC with Mr Pappas

Instructing Solicitors: Peter R. Glover

Counsel for the Defendant: P.J O'Connor

Instructing Solicitors: Ken Cush & Associates as agents for AO Ellison & Co

Dates of hearing: 6 September 2000

Date of judgment: 6 October 2000