Schwenk v National Capital Homes Pty Limited & BHP Steel (Jla) Pty Limited [2003] ACTSC 92 (14 November 2003)

Last Updated: 24 November 2003

RICHARD SCHWENK v NATIONAL CAPITAL HOMES PTY LIMITED and BHP STEEL (JLA) PTY LIMITED

[2003] ACTSC 92 (14 November 2003)

DAMAGES - personal injury - L4 fracture - cervical and lumbar spine pain syndrome with psychological overlay - no issue of principle

No SC 344 of 1998

Coram: Master Harper

Supreme Court of the ACT

Date: 14 November 2003

IN THE SUPREME COURT OF THE )

) No SC 344 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: RICHARD SCHWENK

Plaintiff

AND: NATIONAL CAPITAL HOMES PTY LIMITED

First Defendant

AND BHP STEEL (JLA) PTY LIMITED

Second Defendant

ORDER

Coram: Master Harper

Date: 14 November 2003

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff against the first defendant in the sum of $1,221,600.21.

2. The plaintiff's costs be paid by the first defendant.

1. On 23 August 1994, the plaintiff was working as a roofing subcontractor on the construction of a new house at Dunlop. The first defendant was the builder. The second defendant appears to have been the manufacturer or distributor of the Colorbond sheets which formed the roofing material.

2. The plaintiff slipped and fell off the roof onto the ground, suffering injury.

3. The plaintiff and the second defendant have resolved their differences. On 5 February 2003, a consent order was made that the second defendant pay the plaintiff the sum of $100,000 "on account of his costs", and judgment was otherwise entered in the second defendant's favour.

4. On 25 July 2003, it was ordered that interlocutory judgment be entered against the first defendant. The action comes before the Court for the assessment of damages.

5. When the plaintiff slipped from the roof, he landed on his right knee and left elbow. He estimates that he fell about two and a half metres. He immediately felt pain in the lower back and legs. His right knee and left elbow were bleeding. He sat where he was for about fifteen or twenty minutes, and then went back to work. He told the builder, Mr Sayers, of the first defendant, what had happened, and asked him whether he would supply scaffolding for the roofing work. Mr Sayers refused. On the following day Mr Sayers told the plaintiff that if he did not come back to work and complete his obligations under the subcontract, he would be taken to court. The plaintiff continued to work for that day with difficulty. He worked for the next few days, after which he found that he could not get out of his car any more. He went to his general practitioner, Dr Jamison, who referred him for x-rays and a CT of his lumbar spine. His evidence was that he has not worked since then. He was in a lot of pain and could not stand on a roof. He had pain in his low back, across his shoulders and his neck, accompanied by daily headaches. He described the headaches as being like a migraine. They would not go away no matter what he took. He had constant dull pain in the low back. Sometimes the pain became intense and he could hardly move. He described episodes of spasm in the low back. There was also pain down the back of the right leg which varied in intensity. The pains were aggravated by prolonged sitting, walking or bending. The plaintiff explained that if he overdoes things, he pays for it the next day. His marriage broke down after the accident, and for the last seven or eight years he has been on a single parent pension. He has become moody and depressed, with sleeplessness and feelings of worthlessness. He had to give up his one-man roofing business, including a number of jobs on hand. His income for 1993-1994 was $53,747, less tax of $22,388. The accident happened less than two months into the following financial year, and the tax return for that year is of little assistance in assessing his pre-accident capacity. He has not filed returns since then, his only income being the sole parent benefit.

6. He uses a walking stick. Before the accident he was extremely fit but he is now limited to spending a little time floating in a swimming pool. He has lost his house and lives with his parents. His father looked after his garden and drove him to and from doctor's appointments. He also undertook odd jobs around the house. He estimates that he would have spent about two hours assistance per day during that time, attending to the plaintiff's needs. He still drives the plaintiff to and from appointments and assists in looking after the plaintiff's children, now aged eight and nine.

7. The plaintiff's mother provided minimal help, amounting to about an hour a week during the early period after the accident. From March 1997, when the plaintiff's wife left him, his mother went to his house once a week, cleaned the house, and took his washing and ironing back to her house. She also prepared dinner for the plaintiff and his children. He picked up the meals from his mother's house. Her estimate is that she spent two hours a day providing domestic assistance to the plaintiff during that period. She also looked after his children two or three times a week. Since he moved into his parents' house in October 1999, she cooks and cleans for him and the children, providing approximately twelve hours a week domestic assistance.

8. The plaintiff says that he is unable to do anything much, apart from looking after the children. He has been on morphine since 1996. He takes two to four Panadeine Forte tablets a day for pain relief. He sees his general practitioner once a month, to have his prescriptions renewed. He is charged a relatively nominal amount having regard to his status as a pensioner. He has been told that there is no real treatment available to him apart from medication and that his symptoms are likely to persist.

9. The following medical reports were tendered in evidence:

Dr G D Champion, rheumatologist 6 January 1997

24 May 1999

4 February 2002

Dr I Stewart, radiologist 9 October 1997

Dr G G Griffith, surgeon 26 January 2001

7 July 2003

Dr J M Matheson, neurosurgeon 20 April 2001

Dr R J Scott, occupational physician 24 April 2001

None of the doctors gave oral evidence.

10. Dr Champion notes that it was not for several months after the accident that it was recognised that the plaintiff might have sustained a superior endplate fracture of the L4 vertebral body, accompanied by a posterior disc bulge at L4-5. There was also mild disc bulging at L3-4. These have caused a lumbar spine pain syndrome with deep referred pain to the right leg. He also has a cervical spinal pain syndrome with deep somatic referred pain to both shoulders, and cervicogenic headaches. As a result, he suffers from a high level pain related disability, with psychosocial consequences including adjustment disorder with anxiety and depressed mood, and interference with social activities. The pain and stress lead to some impairment of cognitive functioning. It is unrealistic to expect that he will be able to return to the workforce in the foreseeable future, or probably at all. The plaintiff is now and is likely to remain a chronic invalid. He is permanently unfit for his pre-accident work, and is unqualified for anything else. He is probably physically fit for clerical work, but has no relevant training or experience, and his pain syndrome and related moodiness would make him an unattractive candidate to an employer. It seems to me unlikely that he will rejoin the workforce in any capacity in the future. To all intents and purposes he has entirely lost his earning capacity.

11. His past treatment expenses are listed in the statement of particulars at $26,600.21 and I am satisfied that this is a reasonable amount and is a direct consequence of his injuries.

12. I am satisfied that he had the capacity to earn $600 net per week, or a little over $30,000 annually after tax. He worked in the building industry which is notoriously cyclical, although there is no specific evidence of the ups and downs over the period since the accident. I am satisfied that a proper amount to compensate the plaintiff for his lost earning capacity since the injury is $270,000. Interest is recoverable on that component, at 10% up to 30 April 2001 and 9% thereafter - see Practice Direction No 2 of 2001. The amount arrived at by the simple application of those percentages must be halved to reflect the fact that the loss is spread evenly over the period. I allow $125,000 for interest on past loss of earnings.

13. The plaintiff was born on 19 March 1964 and is 39 years old. By reference to Table 3A in the appendix to Luntz, Assessment of Damages for Personal Injury and Death, 4^th edition, the present value of a continuing loss of $1 per week to a male aged 39, assuming compound interest at 3% per annum and mortality according to the Australian Life Table 1997-99, is $797.00 to age 60 and $914.20 to age 65. Using those figures as a guide, and assessing the plaintiff's earning capacity at $600 net per week, I arrive at a figure of $430,000 for loss of earning capacity for the future, after applying the conventional discount of 15% to take account of the vicissitudes of life.

14. A claim is made for future treatment expenses, which I allow at $10 per week for the rest of the plaintiff's life. I apply a multiplier of 1170, and a discount of 15% for vicissitudes, and arrive at an allowance of $10,000.

15. The injury has been an extremely serious one, and as I have found, it has entirely destroyed the plaintiff's capacity to earn income. He remains in pain and the quality of his life has been reduced to a vast extent. It seems to me that an appropriate figure by way of general damages to compensate the plaintiff for his pain and suffering and loss of enjoyment of life is $100,000, which I apportion equally between the past and the future. I allow $10,000 by way of interest on the past component.

16. In respect of the commercial value of services provided to the plaintiff and on his behalf by his parents and other family members over the years, I am satisfied that whilst there may have been some element of rearrangement of family responsibilities, and some services provided by the parents to their grandchildren which would have been provided whether or not the plaintiff had been injured, a need has been demonstrated, which I assess at 3 hours per day for the period of five years after the accident, that is until 1999, and one hour per day thereafter. I am satisfied that the present need will continue for the rest of the plaintiff's life. In the absence of any evidence as to a commercial hourly rate, I propose to base the assessment on an amount of $15 per hour over the entire period.

17. Using these figures as a basis, I allow $80,000 for the first five years, $20,000 for the rest of the period to date, and $100,000 for the future. The past component of $100,000 attracts interest at the practice direction rates, which I round to $50,000.

18. The total of the individual components is:

General damages $100,000.00

Interest on past component - general damages $10,000.00

Treatment expenses - past $26,600.21

Treatment expenses - future $10,000.00

Past loss of earnings $270,000.00

Interest on past loss of earnings $125,000.00

Loss of earning capacity $430,000.00

Griffiths v Kerkemeyer - past $100,000.00

Interest on Griffiths v Kerkemeyer $50,000.00

Griffiths v Kerkemeyer - future $100,000.00

Total $1,221,600.21

19. The total may at first blush appear a high figure, but it is in my view appropriate having regard to the evidence, upon which I am obliged to make my factual findings. Where a defendant does not exercise its right to test the plaintiff's case by cross-examination and calling its own evidence, it is to be expected that the amount awarded may well be higher than would otherwise be the case. There will be judgment for the plaintiff against the first defendant in the sum of $1,221,600.21. The first defendant is ordered to pay the plaintiff's costs of the action, subject to any issue as to double recovery which may result from the consent order against the second defendant.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Decision herein of Master Harper.

Associate:

Date: 14 November 2003

Counsel for the plaintiff Mr S H Pilkinton

Solicitor for the plaintiff Slater and Gordon

Counsel for the defendant

Solicitor for the defendant

Date of hearing 9 October 2003

Date of decision 14 November 2003