DISTRICT COURT OF QUEENSLAND
CITATION:
Swane v Cameron [2016] QDC 318
PARTIES:
MURRAY GRANT SWANE
(plaintiff)
v
GRAEME BRUCE CAMERON(defendant)
FILE NO/S:
159/15
DIVISION:
Civil
PROCEEDING:
Assessment of damages
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
9 December 2016
DELIVERED AT:
Southport
HEARING DATE:
7 October 2016
JUDGE:
Kent QC DCJ
ORDERS:
1. Judgment for the plaintiff against the defendant in the sum of $280,269.35.
2. I will hear the parties as to costs.
CATCHWORDS:
DAMAGES – GENERAL PRINCIPLES – OTHER MATTERS – where the plaintiff was injured whilst working as a self-employed, contracted carpenter – where the injury was to the plaintiff’s right index finger – where the plaintiff was unable to return to his career as a carpenter – where the plaintiff had intended to work as a carpenter until the age of between 65 and 70 – where, post injury, the plaintiff commenced working as a building inspector – where the Court was asked to conduct an assessment of damages – whether the plaintiff was entitled to damages for future economic loss and, if so, to what amount
DAMAGES – GENERAL PRINCIPLES – GENERAL AND SPECIAL DAMAGES – where the plaintiff was injured whilst working as a self-employed, contracted carpenter – where the plaintiff was taken, by ambulance, to hospital – where the injury required emergency surgery and subsequent physiotherapy and occupational therapy – where the plaintiff was twice admitted to hospital as a result of the injury – where the plaintiff claimed, amongst other heads of damage, past special damages – where the defendant did not dispute the plaintiff’s remedy in past special damages – whether the plaintiff was entitled to the quantity of past special damages, as submitted
DAMAGES – GENERAL PRINCIPLES – GENERAL AND SPECIAL DAMAGES – where the plaintiff was injured whilst working as a self-employed, contracted carpenter – where, as a result of the injury, the plaintiff suffered sensitivity and a reduced range of motion in his right index finger – where, as a result of the injury, the plaintiff had reduced grip strength in his right hand and suffered pain and irritation in his injured finger when performing domestic tasks – where there was significant, permanent impairment to the function of the injured finger – where the plaintiff was unable to return to his career as a carpenter – where there were cosmetic consequences post-surgery – where the Court was asked to conduct an assessment of damages – where the plaintiff claimed, amongst other heads of damage, general damages – where the defendant did not dispute the plaintiff’s remedy in general damages – whether the plaintiff was entitled to the quantity of general damages, as submitted
DAMAGES – GENERAL PRINCIPLES – OTHER MATTERS – where the plaintiff was injured whilst working as a self-employed, contracted carpenter – where, as a result of the injury, the plaintiff was unable to work, in any capacity, for six months – where the Court was asked to conduct an assessment of damages – where the defendant did not dispute the plaintiff’s remedy in damages for past economic loss – whether the plaintiff was entitled to the submitted quantity of damages for past economic loss
DAMAGES – GENERAL PRINCIPLES – GENERAL AND SPECIAL DAMAGES – where the plaintiff was injured whilst working as a self-employed, contracted carpenter – where there was a claim for future special damages on a global basis, which was not supported by evidence before the Court – whether the plaintiff was entitled to future special damages
Civil Liability Act 2003 (Qld), s 60
Civil Liability Regulation 2003 (Qld), item 118 of Sch 4COUNSEL:
M Smith for the plaintiff
The defendant appeared on his own behalf
SOLICITORS:
Turner Freeman Lawyers for the plaintiff
The defendant appeared on his own behalf
This is an assessment of the plaintiff’s damages, as a result of default judgment entered on 18 December 2015.
Background
The plaintiff was born on 9 November 1972 and was 41 years of age at the time of his injury and is now 44. On 20 November 2013, he was a self-employed carpenter/contractor. He operated a partnership with his wife trading under the name of MG & KR Swane. On that day, he entered into a contract of engagement with the defendant to perform carpentry work at a property at 18 Rudder Street, Mermaid Beach (the “Property”). The defendant was the building contractor for works being performed at the Property.
At approximately 2.30 pm on 20 November 2013, the plaintiff, whilst working at the Property, was directed by the defendant to urgently clear off and mark out the kitchen area on the concrete slab, prior to the homeowner arriving at the Property. Thus, the plaintiff was required to lift and move four heavy steel beams and was required to work under time pressures to achieve the deadline.
The plaintiff was not provided with mechanical aids to assist him moving the four heavy steel beams. Thus, a sliding system was created whereby the plaintiff had two other workers at one end of the beam and lifted it 10 – 15 cm off the ground. A timber offcut was then placed under the beam, which was then pivoted to place an offcut under the other end. The beams would then be slid along the lengths of timber.
The final of the four steel beams was lighter than the others and was placed on top of a previously moved beam. The defendant’s apprentice began to place his end of the beam on top of the previously moved beam and, in doing so, the plaintiff had to bear the entire weight of the steel beam. He was unable to hold it and thus his right index finger was trapped and crushed between the two beams.
The plaintiff ceased work immediately and an ambulance was called. He was taken to the Pindara Private Hospital for treatment. Surgery was performed urgently on his right index finger. His hospital admission was until 25 November 2013.
The plaintiff was readmitted to the Allamanda Private Hospital on 3 December 2013 for further surgery. This was an admission for two days. Subsequently, he underwent physiotherapy and occupational therapy. The physiotherapy treatment continued until January 2014.
Dr Stabler
Dr Stabler is an orthopaedic surgeon practising at Allamanda Private Hospital. In his report of 10 April 2014, he notes the plaintiff’s initial surgery was a debridement of the wound and a cross-finger flap was utilised. In the second procedure, the flap was divided from the right middle finger and sutured onto the right index finger. A full-thickness skin graft was applied to the right middle finger donor site.
The complaints of the plaintiff included right index finger sensitivity. He could do domestic tasks, but they caused pain and irritation. Apart from sensitivity and cosmetic impairment, there is reduced range of motion in the distal interphalangeal joint of the right index finger as well as reduced grip strength in the right hand. Dr Stabler felt the plaintiff would have difficulty with his work activities when he returns to work, including use of power tools with his right hand. There will be significant, permanent impairment of function. His assessment of the combined values of the impairments was a whole person impairment of 12 per cent.
The plaintiff’s evidence
The plaintiff swore an affidavit, which was filed on 15 September 2016. His evidence is unchallenged and I accept it. He deposes to the factual background set out above and his affidavit addresses various heads of damage as follows.
Past special damages
The plaintiff claims the refund to Medicare in the sum of $1,539.90. He also claims the refund to his private health fund in the sum of $6,982.35. He also claims a global sum for medical, travel and pharmaceutical expenses in the sum of $5,000. The claim for past special damages amounts to $13,522.25.
General damages
In relation to general damages, the plaintiff deposes as to the various difficulties outlined above from his injury. He has pain and numbness in the right index finger; inability to properly clench his fist; sensitivity, including to temperature; difficulties with tasks such as housework, cooking and generally applying downward pressure; and decreased fine motor skills such as buttoning a shirt. His fingertip is disfigured, has altered sensation and he generally avoids using it.
The Civil Liability Regulation 2003 (Qld) provided at the time in item 118 of Schedule 4 for Serious Hand Injury, with an ISV range of 16 to 30. An ISV of 20 is appropriate having regard to the degree of permanent impairment and other matters outlined above. This equates to an award of $35,100. Pursuant to s 60 of the Civil Liability Act 2003 (Qld), no interest is payable thereon.
Past economic loss
In relation to past economic loss, the plaintiff was a self-employed subcontractor/carpenter. He could not continue with this occupation post injury. From 20 November 2013 until April 2014, he was unable to work in any capacity. In February 2014, he undertook training to become a qualified building inspector. In April 2014, he and his wife, in partnership, purchased a Jim’s Building Inspections Franchise. The business was purchased for $65,000 and the monthly franchise fee was between $1,350 and approximately $1,650. He also incurred a number of other costs in relation to commencement of the business. The business, although commenced in mid-April, was initially making a loss, and thus the past economic loss has been calculated to 31 May 2014.[1] His past economic loss has been calculated by Vincents Chartered Accountants as a net working loss of $1,188.42 for the period from 21 November 2013 and 31 May 2014 – 27.4 weeks – together with the ongoing loss thereafter associated with the commencement of the alternative employment. I accept these calculations as a proper assessment of the loss.
[1] See Vincents Report, part of exhibit 1, paragraph 8 and Appendix 10.
The plaintiff claims interest on his past economic loss at 0.98 per cent (being one half of the rates at the beginning of July 2016 quarter of 1.96 per cent) for 130 weeks totalling $1,463.16.
Future economic loss
The plaintiff has been unable to return to his usual trade as a carpenter. He deposes that he had previously intended to work in his trade until the age of between 65 and 70. When previously working as a self-employed carpenter, he was paid an hourly rate of $45 plus GST and worked between 38 and 45 hours per week. Although his new employment permits him to remain in the workforce, he continues to experience economic loss.
For the financial year ended 30 June 2013, the partnership had a net income (prior to tax and distributions) of $90,991 according to the partnership tax return. For the financial year ended 30 June 2016, the partnership net income was $39,642 according to the relevant tax return. However, that net figure includes provision for:
(a) Depreciation - $7,401;
(b) Instant asset right-off - $11,795; and
(c) Motor vehicle expenses - $8,430.
If those figures are added back in, the net profit for the financial year, ended 30 June 2016, is $67,268.
The plaintiff’s wife deposed to the work she performed in the carpentry business as opposed to the building inspection business. On her evidence, the taxable income for the carpentry business would be around $80,000 to $85,000 per year whereas in the franchise building inspection business the taxable income is in the range of $60,000 to $65,000 per year, which seems to be supported by the tax return.
On behalf of the plaintiff, it is submitted that the net taxable income for the 2013 financial year as derived by the plaintiff was $66,173 or $1,272.55 per week. The net figures for the income derived from the building inspection business equate to $49,773 or a net weekly figure of $957.17. Thus, it is submitted on the plaintiff’s evidence, there is a weekly loss attributable to the accident of $315.38. If the plaintiff is calculated to have 22 years of his working life remaining (to the age of 67), the plaintiff’s submission is that the weekly loss of $315.38 for such a period on 5 per cent equates to a loss with a present value of $222,027.52.
It is contended this should be discounted for the vicissitudes of life by 20 per cent.
However, in my view:
(a) the claim should be discounted by 25 per cent for the vicissitudes of life, having regard to the period of time remaining in the plaintiff’s working life, his obviously industrious nature and relative success with the support of his wife, and the contingency that, had he remained as a carpenter “on the tools”, eventually his physical circumstances would have driven him into a less physical occupation in any case;
(b) allowing the claim to age 67, which is appropriate, is a claim for 23 years, not 22.
The gross figure should thus be $227,452.06.
When the gross figure of $227,452.06 is discounted by 25 per cent for contingencies, the award for future economic loss becomes $170,589.04. There is no claim for future superannuation.
Future special damages
There is a claim for future special damages on a global basis, however this is not supported by Dr Stabler’s report. Thus, I do not allow this part of the claim.
Defendant’s submissions
The unrepresented defendant only disputes these matters in any substantial way in relation to future economic loss, saying that he does ‘not recognise’ a loss of future income. I consider such a claim is supported on the evidence, and I reject the defendant’s submission on this point.
Conclusion
In conclusion I award damages under the various headings as follows:
1. General damages $35,100
2. Interest thereon nil
3. Past economic loss $59,721
4. Interest thereon $1,463.16
5. Future economic loss $170,589.04
6. Past special damages $13,396.15
7. Interest thereon nil
8. Future special damages nil
Total$280,269.35
I will hear the parties as to costs.