Williams v Brooks Marchant Industries (ACT) Pty Ltd [2004] ACTSC 21 (16 April 2004)

Last Updated: 23 April 2004

EMLYN RHYS WILLIAMS v BROOKS MARCHANT INDUSTRIES (ACT) PTY LIMITED

[2004] ACTSC 21 (16 April 2004)

DAMAGES - personal injury - electric shock - post-traumatic stress disorder - no issue of principle

No SC 225 of 2003

Coram: Master Harper

Supreme Court of the ACT

Date: 16 April 2004

IN THE SUPREME COURT OF THE )

) No SC 225 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: EMLYN RHYS WILLIAMS

Plaintiff

AND: BROOKS MARCHANT INDUSTRIES (ACT) PTY LIMITED

Defendant

ORDER

Coram: Master Harper

Date: 16 April 2004

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $79,734.49.

2. The defendant pay the plaintiff's costs.

1. This action comes before the Court for assessment of damages, interlocutory judgment having being entered in the plaintiff's favour.

2. The plaintiff is a research scientist with CSIRO. He was born on 8 February 1949 and is aged 55, married with two children at home. He also has two adult children by an earlier marriage.

3. He was in the habit of riding his bicycle from his home at Weston to his place of work, a laboratory in Banks Street, Yarralumla. Because of concerns about theft, his employer engaged the defendant to install an electric roller door on an existing bicycle shed. The door was installed on 22 February 2001. The plaintiff was issued with a key to the door. He went to the bicycle shed shortly after 5.30 pm, put his key in the lock and turned it to activate the roller door. He wheeled his bicycle out of the shed, and went back to close the door. It stopped about halfway down, and the plaintiff, holding the key in the lock with his right hand, reached to grasp the door with his left hand, in an endeavour to close it fully. Immediately he received an electric shock across his arms and the upper part of his body. He realised that an electric current was going through him. He was unable to break the circuit by removing either hand. He recalls being aware that there was nothing he could do, and thinking that he was about to die.

4. It appears that he was then thrown some distance from the door, landing on his head and back. Fortunately he was wearing his bicycle helmet. He regained consciousness some minutes later, and this relatively short period of amnesia is suggestive of concussion. There is no evidence that the head injury has caused any permanent damage.

5. The plaintiff lay on his back on the concrete for quite some time, with his arms and legs shaking, and a feeling of lack of control over them. He crawled to where he had placed his backpack and took out his mobile phone. There had been no witnesses to the incident and the plaintiff saw no one about. He telephoned a colleague's number, which was unanswered, and then rang another colleague who came to his assistance and called an ambulance. He was taken to the Canberra Hospital and kept overnight for observation. There was no active treatment and he was discharged the next day. He had at this stage significant pains across his chest, which he later learned were due to muscle tightness rather than heart damage as he initially feared. He was assessed by a cardiologist who thought that there might be some mild heart problem, but the plaintiff has not experienced any continuing symptoms.

6. The plaintiff had a painful back, which still produces symptoms intermittently. His sleep was interrupted and his concentration was much reduced. He had, and occasionally still has, flashbacks in which he relives his terrifying experience. He eventually resumed riding his bicycle to work sporadically but he has not been near the bike shed since. He was away from work for only a matter of days, and he has since coped with the demands of his employment, though, in his perception, at a considerably reduced level of effectiveness.

7. He saw his general practitioner, Dr Stevens, in the early days after his discharge from hospital, and was given tablets to help him sleep. He was also referred for physiotherapy for his back symptoms.

8. Dr Stevens sent him to Dr Stephen Dawson, clinical psychologist, who diagnosed post-traumatic stress disorder. In September 2001, Dr Stephen referred the plaintiff to Dr Patrick Cullen, psychiatrist. The plaintiff has an aversion to taking medication unless it is unavoidable, but was persuaded by Dr Cullen to accept a prescription of Luvox, an antidepressant, which improved his symptoms. He discontinued the Luvox when he felt able to do so, but found it necessary to recommence this medication, with some disappointment, a few months ago. Dr Cullen thinks that the plaintiff is making slow but steady progress towards psychological recovery from his traumatic experience. He is unable to predict when full recovery will be achieved, and says that it is possible, even likely, that the plaintiff will be left with some permanent anxiety, which might be experienced as a sense of unease, vulnerability, occasional flashbacks or interruption to sleep. The plaintiff continues to see Dr Cullen every two months or so for counselling and monitoring of his condition, and finds this quite beneficial.

9. The plaintiff was injured in circumstances entitling him to Comcare benefits. Up to 4 April 2004, Comcare had paid him incapacity payments of $2,250.04 and had met his ambulance, hospital and medical expenses in the sum of $3,544.45. At the request of Comcare, the plaintiff was seen by Dr John Saboiski, psychiatrist, in November 2002. Dr Saboiski agreed with the diagnosis of post-traumatic stress disorder. He thought it reasonable that the plaintiff continue to see Dr Cullen, and also thought that he might benefit from additional psychological treatment, although he noted that the plaintiff was a most reluctant patient in respect of both psychological treatment and pharmaco-therapy.

10. Before the accident, the plaintiff was physically very fit. He ran daily and played competition squash regularly. For a long time, he was unable to return to these activities at all. His energy has never recovered to its pre-injury level. In mid 2003, the plaintiff returned to squash, though he found that he could not cope as before and was being beaten regularly. Unfortunately he ruptured an Achilles tendon and had to give up running and squash.

11. The effects of the injury have had an impact on his personal relationships, including those with his wife and family. He is less decisive than before and his confidence has been affected.

12. The expenses paid by Comcare did not include his physiotherapy charges of $1,190.00, or the expense he has incurred in attending, at the suggestion of his general practitioner, a gymnasium for exercises aimed at resolving his low back symptoms and restoring his general fitness. He has paid about $600.00 in gymnasium fees to date. The amounts paid by the plaintiff attract interest at 9% per annum, the rate fixed by Practice Direction 2 of 2002.

13. The plaintiff has suffered no loss of earnings beyond the total of the Comcare incapacity payments, and there is no claim for impairment of earning capacity for the future. The plaintiff intended, and still intends, to work until he is 65, and there is no evidence that his capacity to continue in employment for the next ten years has been damaged.

14. An allowance is justified on the evidence for future medication, gymnasium expenses and psychiatric consultations. It is reasonable to assume that the plaintiff will need to see Dr Cullen about six times a year for another three years, and that he will need to continue with his gymnasium exercise programme for about the same period. He may also need antidepressant and hypnotic medication from time to time. The gymnasium fees are about $300.00 per year and Dr Cullen presently charges $115 for a consultation. The present pharmacy charge for medication is $23.65 per prescription. The allowance is not a matter of mathematical calculation, but using these figures as a guide, I allow $3,000.00 representing the present value of the amount the plaintiff is likely to spend on these items.

15. I am satisfied that the plaintiff had a need, filled by his wife, for assistance in the early period after the injury, and I am satisfied that the claimed rate of $15.00 per hour is reasonable. Again, this is not an item capable of mathematical calculation. I make a generalised allowance of $1,000.00 including interest.

16. A substantial award of general damages for pain and suffering and loss of amenities is justified. Notwithstanding that the plaintiff has, laudably, attended to the responsibilities of his employment almost without interruption, the injury has had a significant effect on his quality of life, and will continue to do so, perhaps indefinitely. It seems to me that an amount appropriate to compensate the plaintiff for the effect of the injury on him is $65,000.00, which I apportion as to $40,000.00 for the past and $25,000.00 for the future. The past component is more heavily weighted to the period immediately after the accident, and I allow $3,000.00 by way of interest on that component.

17. The individual components of the award are as follows:

General damages $65,000.00

Interest on past proportion $3,000.00

Past loss of earnings $2,250.04

Out-of-pocket expenses - paid by Comcare $3,544.45

Out-of-pocket expenses - paid by plaintiff $1,790.00

Allowance for interest on expenses paid

by plaintiff $150.00

Griffiths v Kerkemeyer $1,000.00

Future expenses $3,000.00

$79,734.49

18. It appears to me that the total of the individual components is reasonably proportionate to the losses suffered by the plaintiff as a result of his injury. There will be judgment for the plaintiff in the sum of $79,734.49 with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Decision herein of Master Harper.

Associate:

Date: 16 April 2004

Counsel for the plaintiff Mr F M G Parker

Solicitor for the plaintiff Ken Cush and Associates

Date of hearing 6 April 2004

Date of decision 16 April 2004