Bertini v Weller & Anor [2008] QDC 139

DISTRICT COURT OF QUEENSLAND CITATION: Bertini v Weller & Anor [2008] QDC 139 PARTIES: MICHELE BERTINI Plaintiff v ANNE MARIE WELLER First Defendant and AUSTRALIAN ASSOCIATED MOTOR INSURERS LTD (ACN 15 000 122 850) Second Defendant FILE NO/S: D63/2007 PROCEEDING: Personal Injury Claim ORIGINATING COURT: District Court Brisbane DELIVERED ON: 6 June 2008 (Judgment and Reasons for Judgment) 18 June 2008 (Decision on Costs) DELIVERED AT: Brisbane HEARING DATE: 7 November 2007 and 8 November 2007 JUDGE: Martin SC DCJ ORDER: Judgment for the plaintiff against the second defendant in the sum of $198,188.55. The second defendant pay the plaintiff’s costs of and incidental to the action on the standard basis up to and including 18 December 2006 and that thereafter the second defendant pay the plaintiff’s costs of and incidental to the action on an indemnity basis. CATCHWORDS: CIVIL – PERSONAL INJURY CLAIM – COSTS – Mandatory final offer pursuant to s 51C Motor Accident Insurance Act 1994 – standard costs or indemnity costs Civil Liability Act 2003 Civil Liability Regulation 2003 -- 1 of 31 -- 2 Motor Accident Insurance Act 1994 Kenny & Anor v Eyears & Anor [2004] QSC 59. Monement v Faux & Anor [2005] QSC 342. Nilon v Bezzina [1988] 2 Qd R 420. Purkess v Crittenden (1965-1966) 114 CLR 164. Quality Corp (Aust) P/L & Ors v Millford Builders (Vic) P/L & Ors [2003] QCA 550. COUNSEL: Richard Lynch for the Plaintiff Rick Green for the Second Defendant SOLICITORS: Trilby Misso Lawyers for the Plaintiff Jensen McConaghy Solicitors for the Defendants [1] The plaintiff’s claim is for damages for personal injuries, loss and damage suffered as a result of the first defendant’s negligence which caused a motor vehicle collision on 23 January 2004. Liability is not in issue. Background [2] The plaintiff was born in Italy on 23 April 1946. He was educated in Italy. He obtained a qualification which enabled him to work in Italy and a number of countries around the world as an engineer. He was first married in his late twenties and has two grown-up daughters from that marriage. He emigrated from Italy to Australia in early 1988 and lived in Sydney for a time. He there worked in a factory. He moved to Brisbane in the early 1990s and was self-employed for a time doing home-maintenance work. He commenced employment with Qantas in about 1993. For some time after commencing work with Qantas he held down a number of additional jobs. -- 2 of 31 -- 3 [3] The plaintiff’s first marriage ended in about 1994. It seems Mr Bertini then went through a dark period of his life culminating in an attempt to kill himself in 1998. He was treated with Prozac for many months. [4] The plaintiff married his second wife, Dora, in July 2000. The plaintiff’s evidence [5] The plaintiff spoke English with a heavy accent. The plaintiff’s evidence was to the effect that, prior to the collision, he had had some on-going back pain after eight to ten hour shifts at work. The plaintiff worked as an autoclave operator and it was very heavy work. 1 The plaintiff stated that prior to the motor vehicle collision he took Panadeine Forte for his back pain, but only when it was really necessary. Contrary to the evidence given by Dr Ong, the plaintiff stated that he had not required any time off work as a result of his back problem, prior to the motor vehicle collision.2 [6] The plaintiff stated that after the collision he noticed pain in his neck and that back pain developed over a period of a few days. However, I note from the Royal Brisbane Hospital records (exhibit 13) that both neck and back pain were noted by the hospital on the night shortly after the collision. The plaintiff made reference to suffering back pain for about a month prior to the collision and agreed with his counsel, Mr Lynch, that the accident made this pain “a lot worse”.3 He stated that after he went back to work he tried to work on the autoclave but, after some time, moved to what was to be less heavy work on a dishwasher. However, this job was also very difficult for him because it involved extending his arms for lengthy periods which placed a strain on his spine. 1 T16. 2 T17 L28. -- 3 of 31 -- 4 [7] The plaintiff gave evidence that he suffered severe haemolytic anaemia in August 2005. However, he stated that he had recovered from this illness. In response to being asked how long it took to get over this illness, the plaintiff replied: “Not much time. Just a couple of months, yeah”. [8] Mr Bertini also gave evidence about suffering emotional problems in early 2006. He stated that in February 2006 his employer had arranged for him to see Dr Edwards. Dr Edwards caused Mr Bertini to take six months off work. It is the plaintiff’s evidence that his emotional problems resulted from being forced to stop work at this time. When asked to explain the emotional symptoms, the plaintiff replied: “Because I work for all my life, I started to work when I was fourteen and never, never I had the one week off. I work all the time. So may be I am sick about the job, I found myself without job is – is no good. Still now after one year as patient, I can’t stay without job. For me is very frustrating. Yeah”.4 A little later, the plaintiff gave further evidence about his emotional problems and a suicide attempt. He stated that in February 2006 and April 2006 he was admitted to hospital because of depression. He was asked why he was depressed. The plaintiff replied: “I – I can’t see myself without job. I can’t – I can’t understand why the people is so – so rude, so without heart. Before everyone in the job, ‘Michele, you are the number one, you are a legend, you’re job is terrific, fantastic’, and then suddenly like this, like a number, just a number. My number is 921937. They stuck me like this, like a piece of paper and for me this is a very, very big offence, offence to myself, to my brain, to my – to my personality. I was for all my life, all my job was the number one on the side. I had under me even thousand four hundred people, you know what this mean? I made the job millions jobs like money, I make a bridge, I make a runway, I make them, school, and then I was like a piece of paper and I’d like to say something else but I can’t. So my personality was gone and I tried to be myself again other time but unfortunately this time, really unfortunately to young fellow, they saw me just in time, I was 3 T20. 4 T24. -- 4 of 31 -- 5 jumping and they took me by my shoulder and pulled me out on side of the bridge”. The plaintiff went on to state that the suicide attempt got to the stage of his putting a rope around his neck intending to hang himself from the Sandgate pier.5 [9] The plaintiff gave evidence that his relationship with his wife is poor. They sleep in separate bedrooms. The effect of his evidence was that it may be that he has become too hard to live with. He stated that he feels angry because he has lost everything and that he feels nothing. Mr Bertini gave evidence that his back condition has resulted in greatly reduced sexual relations with his wife. He stated that he can not do work around the house. He has tried to, but he must stop after a short period. Mr Bertini gave evidence that he continues to receive treatment for his back from Dr Harding whom he described as a specialist for the spine. [10] Mr Bertini gave evidence that he was an active person prior to the motor vehicle collision. He stated that he can no longer run. He stated that he used to play golf twice a week but, whilst he tried, he could not return to golf after the motor vehicle collision. He stated that even swimming caused him pain. [11] The plaintiff stated that in October 2006 he realised that he could not work as he had before and asked for a change of job within Qantas. He was told that there were no other jobs available and his employment was terminated. [12] In cross-examination, the plaintiff gave evidence that he was divorced from his first wife in about 1994 and in about 1998 he attempted suicide. Mr Bertini agreed that he had been treated for depression by Dr Ong but could not recall that it had been as recently as 2003. 5 T26/27. -- 5 of 31 -- 6 [13] In the course of cross-examination, the plaintiff stated to the effect that prior to the motor vehicle collision he could do everything: play golf, running, swimming and have sex frequently with his wife. He stated that after the motor vehicle collision everything was gone. [14] The plaintiff was referred to the additional information form (exhibit 16). The document is dated 10 November 2004. In response to question 33 the plaintiff has answered, or caused to be answered, that for six months after the accident he was unable to earn overtime pay and noted that that period was between February and July. [15] The plaintiff was cross-examined about the episode of haemolytic anaemia. He agreed that after he returned to work following upon the illness, he was unable to do his work. As a result, the plaintiff used up all of his sick leave, holidays and long service entitlement.6 Evidence of Mrs Bertini [16] Mrs Bertini gave evidence that after the motor vehicle collision, the plaintiff tried to keep playing golf but he could not. She said that prior to the accident her husband played golf two or three times a week. She also gave evidence that prior to the motor vehicle accident she and her husband enjoyed a very good sexual relationship. She stated that after the collision it was very difficult to have sexual relations with her husband, indicating that it was uncomfortable for him to get into an appropriate position. Mrs Bertini gave evidence that she and her husband have separate rooms within the home and she does not see a future with him. She stated that before the collision the plaintiff assisted with the household chores but since the 6 T56. -- 6 of 31 -- 7 accident she has to do everything because he complains of a sore back. In cross- examination, Mrs Bertini stated that the plaintiff had a problem with his back because of his job but that the car accident aggravated his back. Evidence of Dr Ong [17] Dr Ong was the plaintiff’s general practitioner for many years. Dr Ong stated in evidence that the plaintiff had been treated for low back pain for many years commencing as early as 1992/1993. Dr Ong treated this problem with advice as to how to cope with the pain together with non-steroid anti-inflammatories and pain killers. He stated that the treatment was virtually the same over the years. He stated that it was a chronic problem “and what happens is you get aggravation now and again, and with aggravation, I would give the same treatment”. [18] Mr Green, on behalf of the second defendant, took Dr Ong through his medical notes relevant to the plaintiff. In particular, Dr Ong referred to his notes of 30 July 2003 which related to the plaintiff’s back problem. The notes revealed that the plaintiff was suffering right low back pain at that time. It was noted that the pain was “worse after work on 27 July”.7 Dr Ong provided a medical certificate for 28 July 2003. Further, Dr Ong referred to his notes for December 2003. He noted that the plaintiff was at that time tender at lumbar 4 and 5 area and back movements were restricted. He noted it as mechanical low back pain and he provided a medical certificate for the period 15 to 17 December 2003. Dr Ong saw the plaintiff again on 18 December and he extended the medical certificate to cover 18 and 19 December 2003. The doctor again saw the plaintiff on 20 December 2003 and extended the medical certificate to cover the period 20 to 22 December 2003. On 15 January 2004, Dr Ong again saw the plaintiff at which time the plaintiff was still -- 7 of 31 -- 8 complaining of low back pain. A medical certificate for 12, 15 and 16 January 2004 was provided to the plaintiff by Dr Ong. [19] Dr Ong ordered a CAT scan of the lumbar spine. That scan was undertaken on 21 January 2004 (the report for this examination is exhibit 1). The collision then occurred on 23 January 2004. A further CAT scan of the lumbar spine was taken on 23 February 2004. (The report in respect of this examination is exhibit 2). [20] Dr Ong stated in evidence in chief that since the accident the plaintiff seemed to have the back pain “a bit more frequently”.8 [21] Cross-examination of Dr Ong revealed that in 2003, prior to the plaintiff’s problem with his back in December of that year, the plaintiff had been issued a medical certificate for work in relation to low back pain for one day only, namely 28 July 2003. Further, cross-examination revealed that for the calendar years 2001 and 2002, the plaintiff was not certified unfit for work in respect of low back pain at all. Dr Ong also stated that prior to the motor vehicle accident he had not referred the plaintiff to an orthopaedic surgeon, but that after the accident, he did so. Dr Ong also acknowledged that some time subsequent to the motor vehicle accident the plaintiff was being seen by Dr Harding for specialist back management. [22] Dr Ong stated that the plaintiff had a depressive illness for many years and that in March 2003 he prescribed an antidepressant, Prozac. The medical notes revealed that in 2004 the antidepressant was changed to Efexor. However, in cross- examination, Dr Ong agreed that the medical notes revealed that the plaintiff, in March 2003, discontinued taking Prozac after only one week and that he had not 7 T100. 8 T94. -- 8 of 31 -- 9 been prescribed any further relevant medication until the Efexor on 27 March 2004 (post-collision). [23] Dr Ong had stated in evidence in chief that by 27 April 2004 the plaintiff had “initially recovered from his back saga”. In cross-examination, Dr Ong accepted that, as at that date, it was only “a very temporary recovery” because it was after that period that he commenced referring the plaintiff to orthopaedic specialists. Dr Ong stated that when he said “recover” he did not mean “cure” and that he did not expect the plaintiff’s back problem to be curable. Dr Ong stated that the plaintiff can have good days and bad days depending on what he does and Dr Ong agreed that the plaintiff’s pain is aggravated by activity. Orthopaedic and Spinal Specialists Dr Gregory Day [24] The plaintiff was seen by Dr Gregory Day, orthopaedic surgeon, on 20 April 2005. Dr Day diagnosed that the plaintiff, as a result of the motor vehicle collision, had suffered a soft tissue injury of the lumbar spine with an exacerbation of a pre- existing condition. Dr Day stated that the plaintiff had some significant degenerative change in the lumbar spine at the time of the accident. He believed that the plaintiff’s lumbar spine condition was then stable. He was of the opinion that the lumbar spine was symptomatic at that time and would remain so, intermittently, in the future. Dr Day was of the opinion that the plaintiff had suffered an exacerbation in his lower back pain. Using the American Medical Association guides to the evaluation of permanent impairment (5th Edition), Dr Day was of the opinion that the plaintiff had suffered an exacerbation of symptoms of a DRE category 2 soft tissue injury of the lumbar spine. He believed that as a result -- 9 of 31 -- 10 of the collision on 23 January 2004 that the plaintiff had suffered an increase in impairment of between one and two percent of whole person but stated that assessment may only be made on the date of examination and patients have good and bad days in their symptoms. [25] In cross-examination by Mr Lynch, Dr Day was asked to assume certain facts and he was then asked to agree that without the intervention of the motor vehicle accident the plaintiff may well have continued with his employment, albeit with continuing back symptoms which he was able to manage through intermittent medical treatment and some periods of leave, up to age 65 years. On the factual basis presented, Dr Day agreed that it was probably a reasonable hypothesis. Dr Day was not told about nor asked to assume as part of the factual matrix that the plaintiff had suffered haemolytic anaemia in August 2005. In re-examination, Mr Green asked Dr Day to add to the factual matrix this life threatening illness. Dr Day went on to give evidence that the illness described was a very unusual situation, noting that the plaintiff’s entire blood volume had had to be replaced. He went on to give evidence that the rest associated with the illness meant that the plaintiff’s muscles would have become weakened and that after returning to activity, it can result in an increase in back pain just from attempting to use muscles that have not been used for some time. He stated that all muscles would be affected by this, not just the back muscles. [26] In cross-examination Dr Day stated that he believed that the motor vehicle accident had caused the plaintiff a permanent increase in impairment (to his back).9 9 T84. -- 10 of 31 -- 11 Dr Bruce McPhee [27] Dr Bruce McPhee, spinal surgeon, examined the plaintiff on 11 July 2005. Dr McPhee noted that the radiological evidence disclosed long standing degeneration throughout the thoracic and lumbar spine and that those changes pre-dated the motor vehicle collision on 23 January 2004. Dr McPhee was under the impression that the plaintiff was previously asymptomatic except for the period about a month prior to the motor vehicle collision. Of course, Dr Ong’s evidence discloses that the plaintiff had been complaining of back pain over a number of years. Consistent with Dr Day’s opinion, Dr McPhee formed the view that the plaintiff had probably suffered a strain of his lower back resulting in aggravation of pre-existing lumbar spondylosis. His opinion was that the plaintiff’s condition was then stable, having reached maximum medical improvement. Dr McPhee stated: “…Based on these findings Mr Bertini has a DRE 2 impairment of the lumbar spine which is in part due to pre-existing degenerative spondylosis. While his current impairment is 5% to 8% in accordance with the AMA guides (5th edition), only 3% of this impairment can be attributed to the road traffic accident on 23 January 2004… surgery is not indicated. Physical therapies are unlikely to result in any substantial sustained improvement. Ongoing treatment depends on self-management of pain using appropriate medication. A regular exercise programme to improve lumbar spine mobility, trunk strength and aerobic fitness is advised. Mr Bertini has a partial incapacity for work. He has been and continues to work in the catering section of Qantas. He is currently required to clean and unload used food trolleys. Occasionally he has pain of such severity that he requires one or two days off work. Otherwise he seems to cope with his usual work. Were he required to undertake work of a heavy physical nature then his incapacity would be far more severe. I expect that his condition will remain much as he now presents and that Mr Bertini should be able to continue to work over the next few years in his present position. If at any stage he is unable to cope then he may have to consider finding alternative employment in a more sedentary capacity. Given his age and limited qualifications it is unlikely that he would find suitable employment were these circumstances to occur. Had Mr Bertini not suffered the road traffic accident in January 2004 he may have experienced increased back pain due to naturally occurring degeneration in the lumbar spine that it could have interfered with his work to the extent that he now experiences”. -- 11 of 31 -- 12 Dr McPhee’s first report was dated 12 July 2005 (exhibit 5). [28] Dr McPhee provided a further report dated 2 April 2007. He did so having been provided with numerous other reports, including the report of Dr Day, Dr Apel, Dr Lovell and reports by Dr Edwards. Dr McPhee noted in this report that there was a general opinion that the plaintiff had pre-existing degeneration which has been aggravated by the collision and that the aggravation attributable to the road traffic accident is relatively minor. He noted that there were confounding factors contributing to his illness, namely an adjustment disorder with depressive mood, as well as work and compensation dissatisfaction and marital disharmony. [29] It became apparent during the course of cross-examination that notwithstanding that the reports perused by Dr McPhee made reference to haemolytic anaemia in August 2005, at the time of reporting, Dr McPhee was unaware of it. In any event, Dr. McPhee’s only comment in relation to the illness was “…you add another major illness on top of back pain… I mean its hard to say… I would have said that he would have had – it would have been reinforced that there was no reason for him to be going back to work with two problems.” 10 However, in re-examination Dr McPhee acknowledged that some persons “need to work” notwithstanding significant back pain.11 Dr Paul Licina [30] The plaintiff was examined by Dr Paul Licina, orthopaedic surgeon, on 5 October 2004. The plaintiff at that time gave a history of back strain in December 2003 at 10 T113. -- 12 of 31 -- 13 work and that in May 2004 he had developed numbness in the right thigh. The plaintiff gave no history of the motor vehicle collision to Dr Licina and he was unaware of any motor vehicle related injury. Even so, Dr Licina noted at that time that the back pain from December 2003 had settled and that the numbness in the thigh was likely to improve over the next six months. He stated that he found the plaintiff to be asymptomatic apart from the thigh numbness. Psychiatric Specialists Dr Greg Apel [31] Dr Greg Apel, psychiatrist, examined Mr Bertini on 28 March 2006. Dr Apel had been provided with a number of doctors’ reports and other material. However, the material did not include the report of Dr Edwards dated 11 March 2006. It is clear that the history given to Dr Apel by the plaintiff is inconsistent with the preponderance of other evidence. In particular, the plaintiff related the development of back pain from approximately 2003 subsequent to a fall at work. He also told Dr Apel that he had commenced work as a dishwasher before this incident in December 2003. [32] The plaintiff told Dr Apel that subsequent to the motor vehicle accident he attempted to return to his normal life but indicated that his pain was somewhat worse and he was in constant distress. [33] The plaintiff told Dr Apel of his life threatening illness in August 2005. He stated that upon his return to work he found he could only cope with two days’ work and he needed to lie down as he would be incapacitated with more severe pain. Mr Bertini stated that he requested a different job but management refused this. Dr 11 T115. -- 13 of 31 -- 14 Apel described the plaintiff as quite angry about their inflexibility. Mr Bertini expressed a great deal of resentment towards his employer. [34] The plaintiff told Dr Apel that he became quite profoundly depressed over the latter part of 2005. He related having been sent by Qantas to a counsellor, Ms D Sunyta. Mr Bertini related that the counsellor was so concerned about his depressive symptoms that she arranged for the police to come around to his house and he was involuntarily taken to Royal Brisbane Hospital and there admitted for a period of seven days from 6 to 13 December 2006. The plaintiff related not being aware of any depressive symptoms before approximately November 2005. [35] The plaintiff told Dr Apel that he felt his issues were principally ones of problems at work. He stated that he felt that he was being perceived by management and some other workers as a “bludger”. He told Apel that he was sleeping poorly. He emphasised that mental turmoil rather than his back pain awoke him during the night. He told Dr Apel that until 2005 he would have sexual relations two or three times per day and that this had reduced to once or twice per week. [36] He expressed distress that his concentration had been significantly impaired. He stated that after the severity of his illness in August 2005 he felt that he needed to do his best to enjoy what was left of his life. Consequently he purchased a new motor vehicle, new furniture and a plasma screen TV. He told Dr Apel that despite obtaining these, he obtained little pleasure from them from approximately November 2005 onwards. [37] He indicated to Dr Apel that he had suicidal thoughts. He said they were continually present in February 2006. He said that he had made practical plans to hang himself but the intensity of these thoughts had settled somewhat and he had -- 14 of 31 -- 15 expressed hopes that he could regather himself. He stated that he had organised appointments with Dr Geoff Harding and that he had had a number of injections of local anaesthetic into his spine which he felt were of some help. [38] Mr Bertini indicated to Dr Apel that he could see little future for himself. He felt a broken man. At the end of the interview Mr Bertini stated that he may kill himself if matters could not be resolved by his 60 th birthday. [39] Dr Apel was of the opinion that Mr Bertini suffered from major depressive disorder of considerable severity. Dr Apel stated that his depressed mood coloured his current perceptions and attitudes and led him to apply a more negative bias to his perceptions of treatment than was objectively warranted. Dr Apel noted that there was a worsening of the plaintiff’s symptomotology after the accident. He went on to state: “As well there appeared to be exacerbation of back pain subsequent to the period of inactivity in his convalescence from his severe illness that he suffered in Sydney. His conditions of chronic back pain and depression mutually exacerbate each other. Whilst depressed he copes more poorly with pain and the presence of pain and disability worsens his state of depression. I note the significant incapacity to work from the period of onset of depressive symptoms in November 2005 until his departure from work in February 2006. His mood state and depression is significantly worsened by perception of poor and disrespectful treatment by management at Qantas”. [40] Dr Apel stated that it was impossible to estimate the psychiatric disability at that point as the plaintiff’s condition was neither stable nor stationary. However, he noted that the depressive illness was secondary to his back pain. He stated that this was multi-factorial and it was due to the suffering of pain, the functional disability and his perception of how his condition was being managed by his employer. Dr Apel was of the view that the plaintiff’s depression would recover with -- 15 of 31 -- 16 appropriate psychiatric treatment and medical treatment and pain relief for his back disease. Dr Derek Lovell – Report dated 8 November 2006 [41] Dr Derek Lovell, psychiatrist, examined the plaintiff on 8 November 2006. Mr Bertini told Dr Lovell that he strained his back in December 2003 doing a “heavy day” at work. He also erroneously told Dr Lovell that after this incident he moved to lighter duties in the dishwashing section. Evidence otherwise shows that the plaintiff did not move to the dishwashing section until after the motor vehicle accident. The plaintiff told Dr Lovell that he used to play golf on average three times a week, that sexual relations were not impeded by this incident (December 2003) and that on occasions he would jog. He told Dr Lovell that he believed that he was prescribed Nurofen for this back strain. [42] Mr Bertini told Dr Lovell that after the motor vehicle collision he stopped playing social tennis, scuba diving, jogging and golf. He stated that sexual relations became difficult with his wife as the activity aggravated back pain. He told Dr Lovell that back pain persisted and it became necessary for him to take sick days and recreational leave during aggravations of the pain. The plaintiff told Dr Lovell that the pain varied in intensity from between 1-2 out of 10 and 4-5 out of 10. He told Dr Lovell that he could not do anything and that attempts to mop, wash the car or play golf aggravated the pain. At pages 7 and 9 of the report, Dr Lovell notes that the plaintiff performs all home duties, cleaning, cooking and washing. This notation seems quite at odds with what Dr. Lovell had already noted as to what the plaintiff had told him. -- 16 of 31 -- 17 [43] Mr Bertini told Dr Lovell of his serious illness in August 2005 and of his lengthy convalescence. Dr Lovell noted that, upon return to work, due to a combination of pain, fatigue and post-illness depression, the plaintiff had difficulty managing at work. [44] At the time of examination (8 November 2006), Mr Bertini told Dr Lovell that he had “lost direction” with his loss of job and felt guilty that he was not working whilst his wife continued to work full-time. [45] The plaintiff also told Dr Lovell that he was enrolled in the University of the Third Age. He was there doing pencil drawing and sculpture four hours a week. He spent his time otherwise reading “intelligent literature”. At the time of examination the plaintiff was not suffering concentration problems. He stated that he maintained an interest in sexual relations but that such relations could only occur in the left lateral position because of low back pain. He stated that he had accompanied his wife to the United States in June 2006. [46] In Dr Lovell’s opinion, it was likely that following the serious medical illness in late August 2005, the plaintiff suffered symptoms of a major depressive disorder and the fatigue, as a result of this, in combination with low back pain, made it difficult for him to manage his usual work. Dr Lovell noted that the plaintiff described some suicidal ideation and noted his hospitalisations in respect of psychological problems from 6 February 2006 to 13 February 2006 and 1 April 2006 to 9 April 2006. [47] Dr Lovell diagnosed the plaintiff suffering adjustment disorder with depressive mood. Dr Lovell was of the view that appropriate treatment would involve instruction in pain management and some vocational assistance. Dr Lovell’s -- 17 of 31 -- 18 opinion was that physical, rather than psychological, factors interfered with the plaintiff’s capacity for work. Dr Greg Apel – Report dated 6 November 2007 [48] Dr Apel was asked to comment on Dr Lovell’s report. Dr Apel noted that when he examined the plaintiff, only seven months prior to Dr Lovell’s examination, the plaintiff’s psychological impairment had been far greater. It suggested to Dr Apel that there was general instability in the plaintiff. Dr Apel believed that the plaintiff became depressed secondary to chronic, severe back pain and disability. Dr Apel stated: “… His back pain has prevented him continuing in his job. He is a man for whom work is a very important part of his identity and not to be able to fulfil this role is extremely distressing for him. As he has become depressed he has become more irritable and difficult in his relationships with his employers, wife, doctors and others.” [49] Dr Apel was called by the plaintiff to enable the second defendant to cross-examine him. In cross-examination, Dr Apel maintained the opinions expressed in his reports. Dr Graeme Edwards [50] Dr Edwards is qualified as a general practitioner and studying to be an occupational physician. [51] Dr Edwards provided two reports dated 11 March 2006 and 21 September 2006 respectively. The plaintiff’s employer referred the plaintiff to Dr Edwards for assessment. At assessment, Dr Edwards noted that the plaintiff had poor functional capacity and conditioning of his core stabiliser muscles throughout his spine. He also formed the view that the plaintiff was suffering from an adjustment disorder. -- 18 of 31 -- 19 [52] It was apparent when Dr Edwards gave evidence that before he wrote his reports he had the benefit of the plaintiff’s work records. At page 4 of his first report, Dr Edwards stated as follows: “… The psychological injury and the incremental worsening of his back appeared to coincide with the motor vehicle accident and his work place behaviour suggests that the adjustment problems pre- dated the medical illness. The major medical illness has simply further compounded the situation.” At page 1 of that report Dr Edwards noted: “… This worker reports that the motor vehicle accident significantly aggravated his back. Your records show that he was absent from work from 24/01/04 until 23/02/04 and the various certificates indicate ‘lumbago’, ‘personal illness’, ‘back complaint’.” In the report dated 21 September 2006, Dr Edwards stated: “… Following a motor vehicle accident in January 2004 he significantly deteriorated resulting in his election to change his employment status. He continued to have problems and his condition was made worse by septicaemia and haemolytic anaemia and a major psychiatric disorder. …” [53] Dr Edwards advised Qantas that the plaintiff was not fit to safely perform duties and recommended that he be given time off work to gain functional capacity to safely perform the full range of his normal duties for a period of six to nine months. [54] Dr Edwards again saw the plaintiff on 21 September 2006. Dr Edwards found that the plaintiff had significantly improved but considered that he was a long way short of the functional requirements of his work. Dr Edwards stated that the plaintiff demonstrated symptomatic back pain limiting his function. Dr Edwards went on to state: “The demands of his work will readily exacerbate his pain experience and while it is unlikely that his normal duties will ‘cause’ an incremental worsening of his pathology, there is a continuing and predictable increased risk of intervertebral disc disruption that would be extremely difficult to distinguish between the natural progression of his pathology and any alleged work-related contribution to his -- 19 of 31 -- 20 deterioration. Even a minor incident in the work place could be associated with a profound change in his health and well being. Unfortunately this worker continues to have a distorted perception of his pathophysiology of his lumbosacral spine pain, blaming work for his predicament. In such circumstances any experience of pain in the work place will only reinforce his perceptions of a causal connection with his work.” Ultimately, Dr Edwards stated: “I consider this worker incapacitated to such an extent that he is very unlikely ever to be able to safely resume work or to attend any gainful occupation for which he is qualified by education, training and experience.” [55] In evidence, Dr Edwards described the results of his examinations of the plaintiff and was then asked whether the collision had any role in contributing to the plaintiff’s condition. Dr Edwards replied: “It has contributed a transient worsening of his – so it has made no difference to the structural components of his back. It contributed a transient worsening of his muscle component of the back and it has contributed to a psychological reaction, which I don’t feel fully qualified to comment more than that.”12 [56] Later in evidence-in-chief, Dr Edwards expressed the opinion that the plaintiff’s current situation in respect of his work would not be any different had the motor vehicle accident not occurred. [57] In cross-examination, Dr Edwards agreed that the motor vehicle accident was a cause of the plaintiff’s back pain when Dr Edwards examined the plaintiff in February 2006. [58] In re-examination, Dr Edwards was invited to apportion causation. He stated as follows: “DR EDWARDS: The physical problems have clearly improved from February to September. There have been the natural 12 T121-122. -- 20 of 31 -- 21 incremental advancement of the structural components. And the psyche was unchanged between those two examinations. So I would attribute the vast majority of his disability to the psychological state. There is an underlying consistent part of his functionality due to the structural component, but his muscular component had clearly improved. MR GREEN: In terms of the motor vehicle accident, what was the extent to which that contributed to the structural component? DR EDWARDS: Probably no more than one percent. MR GREEN: And in terms of the muscular component? DR EDWARDS: Well, there was no residual.” Primary Issues [59] (a) On behalf of the plaintiff, it was argued that there was no satisfactory evidence that “the plaintiff’s time off work whilst recuperating from his illness was pivotal or that he suffered substantial de-conditioning which led to his being pensioned off from his employment”. Rather, it was argued that the plaintiff’s loss of employment was caused solely by the motor vehicle collision. (b) If the plaintiff’s illness did contribute to the plaintiff’s loss of employment, the loss of employment was caused by a combination of the plaintiff’s back condition, post-collision, and the consequences of the illness. It was argued that the plaintiff is therefore entitled to be compensated for the economic loss suffered by reason of his being forced out of the workforce, which event was materially contributed to by the post-collision injury. [60] On behalf of the second defendant, it was argued that “the onset of haemolytic anaemia… is an independent intervening event that breaks any legal causative relationship between Mr. Bertini’s current status and the motor vehicle accident”. -- 21 of 31 -- 22 Findings [61] The plaintiff’s recollection of events and the sequence of happenings was not always accurate. However, he was a patently honest witness. [62] It is uncontroversial that the plaintiff was suffering symptoms relating to lumber- spondylosis, pre-dating the motor vehicle collision. It also seems uncontroversial that the plaintiff had attempted suicide in 1998 and that Dr Ong had treated him for symptoms of depression prior to the collision. I accept that the motor vehicle collision resulted in the plaintiff’s back pain being “a lot worse”. The defendant’s argument that the plaintiff’s self-reporting in relation to the aggravation of his back pain post-collision was unreliable and overly-generous, is unsustainable and rejected. Whilst he attempted to play golf after the collision, he could not do so and he was forced to give the game away. Sexual relations with his wife, post-accident, became difficult and painful. Significantly, the plaintiff’s work caused him greater pain than that experienced prior to the collision. The post-accident pain was so significant that, within a couple of months of returning to work after the collision, the plaintiff sought a change of job within the catering section at Qantas, involving a down-grading of his employment, in an attempt to accommodate his disability.13 In an attempt to manage the pain, the plaintiff took significantly more sick leave than he had prior to the collision.14 Post-accident, the back pain was generally unremitting but with the plaintiff having some better days than others. I accept the evidence of Mrs Bertini. The Plaintiff’s evidence is generally supported by the evidence of Mrs Bertini. 13 T123. 14 See the plaintiff’s leave records (Exh 9). -- 22 of 31 -- 23 [63] Where there is conflict in respect of orthopaedic opinion, I prefer the evidence of Dr Day and Dr McPhee to that of Dr Edwards. Doctors Day and McPhee are orthopaedic spine surgeons. Dr Edwards holds no specialist orthopaedic training.15 I accept that as a result of the motor vehicle collision the plaintiff suffered a soft tissue injury of the lumbar spine with an exacerbation of the pre-existing condition and that the plaintiff thereby sustained a degree of permanent impairment from the collision of between one percent and three percent of the individual as a whole.16 Both specialists concluded that, using the American Medical Association Guides to the Evaluation of Permanent Impairment (5th edition), the plaintiff suffered an exacerbation of symptoms of a DRE category 2 soft tissue injury of the lumber spine. The percentage impairment for someone assessed under DRE category 2 is a band of five to eight percent. I am satisfied on the evidence of the plaintiff, Mrs. Bertini and the orthopaedic specialists that the motor vehicle collision caused a substantial and permanent exacerbation of the plaintiff’s pre-existing back condition. [64] That the plaintiff was suffering chronic back pain in 2004 is not in issue. Doctor Licina, when he examined the plaintiff, knew nothing of the motor vehicle accident and examined the plaintiff in relation to numbness in the right thigh. Doctor Licina’s report stated that as at 5 October 2004 the plaintiff was asymptomatic apart from the thigh numbness. In light of the overwhelming evidence of chronic back pain during the relevant period, I place no reliance on Doctor Licina’s report. 15 T123. 16 Dr Day estimated that the increased impairment was between one percent and two percent. The evidence disclosed that patients can have good days and bad days and that impairment estimates may depend upon the condition of a patient on the day of examination. Dr McPhee estimated that the increase in impairment as a result of the collision was three percent. -- 23 of 31 -- 24 [65] I accept that the plaintiff suffered de-conditioning of his muscles consequent upon his illness and convalescence. This finding is based upon Doctor Edwards’ examination of the plaintiff in 2006, Doctor Day’s evidence to the effect that rest associated with the illness would have weakened the plaintiff’s muscles resulting in an increase in back pain when attempting to use the muscles, and the plaintiff’s information to Dr Apel that upon his return to work after the illness there was an exacerbation of his back pain. [66] In providing his opinions, Dr Edwards had the advantage of perusing the work records kept by Qantas pertaining to the plaintiff. 17 I accept Dr Edwards’ opinion that the plaintiff’s “psychological injury and the incremental worsening of his back appeared to coincide with the motor vehicle accident and his work place behaviour suggests that the adjustment problems predated the medical illness.” Whilst the plaintiff suffered from depression at times prior to the collision, I accept that adjustment problems coincided with and resulted from the increased back pain caused by the motor vehicle collision. Where there is conflict, I prefer the evidence of Dr. Apel to the opinions expressed by Dr. Lovell. Dr Apel’s opinions are supported in large measure by Dr. Edwards. In particular, I accept that upon return to work after the illness, the plaintiff’s increased back pain exacerbated depressive symptoms and that this back pain and depression mutually exacerbated each other. In the result, despite persistently attempting to work, and using up all leave in the process, the plaintiff was unable to continue to work. I accept that the plaintiff became profoundly depressed as a result of his inability to work, together with a perception that his employer and co-workers were unsupportive and disrespectful of him. 17 Work records are referred to in Exhibit 26(ii). -- 24 of 31 -- 25 [67] On Doctor Edwards’ advice, in February 2006 the plaintiff was given time to improve his functional capacity. Doctor Edwards reviewed the plaintiff in September 2006. Doctor Edwards formed the view that the Plaintiff’s physical problems had improved and he attributed the “vast majority of his disability to the psychological state”. It is clear from the contents of Doctor Edwards’ letter to Qantas dated 21 September 200618 that Qantas was informed that given the plaintiff’s “distorted perception of the pathophysiology of his lumbosacral spine pain, blaming work for his predicament… any experience of pain in the workplace will only reinforce his perceptions of a causal connection with his work”, the plaintiff was not fit to be employed with Qantas. Doctor Edwards effectively informed Qantas that the plaintiff, as an employee, was a litigation risk to Qantas. In the event, the plaintiff’s employment with Qantas was terminated.19 [68] In supplementary submissions, the second defendant argued that “regardless if the motor vehicle accident had not aggravated his back condition”, the plaintiff would have been totally incapacitated from working by the illness and that any incapacity of the plaintiff post-accident was completely subsumed by the illness. I reject this argument. The plaintiff has established that the motor vehicle collision caused a substantial and permanent exacerbation of the plaintiff’s pre-existing back condition resulting in his suffering very significant back pain at work and, associated with this, adjustment problems. In my view, it is likely that the pain associated with the illness and convalescence added to the injury caused by the motor vehicle collision. I am satisfied, on the balance of probabilities, that the plaintiff’s descent into unemployment resulted from the superimposition of the back pain associated with the de-conditioning of his muscles post-illness, upon the plaintiff’s post-collision 18 Exhibit 26(i). 19 See the defendant’s argument to this effect – T158 L20-35. -- 25 of 31 -- 26 back pain. This, in turn, caused the plaintiff’s inability to continue to work resulting in his profound depression and the “psychological state”, referred to by Dr. Edwards, which brought about his loss of employment at Qantas. There is no acceptable evidence that had the plaintiff not suffered the injury in the motor vehicle collision, the illness and its consequences would have nonetheless incapacitated the plaintiff as described.20 [69] It seems uncontroversial that the plaintiff is commercially unemployable. In any event, I am satisfied that, given his condition, age, background and language difficulties, the plaintiff is commercially unemployable. [70] The plaintiff has shown on the balance of probabilities that the defendant’s negligence has materially contributed to the plaintiff’s unemployment and his incapacity for employment. [71] The plaintiff is a man with a highly developed work ethic and a person who has taken great pride in whatever work he has performed. The plaintiff’s need to work was not merely financially driven. His sense of self-worth was dependant on his being in the workforce. I am satisfied that, but for his descent into unemployment as described, the plaintiff intended working until at least 65 years of age. [72] Having found that the motor vehicle collision substantially exacerbated the plaintiff’s pre-existing back condition, there is no acceptable evidence that the plaintiff’s incapacity for employment resulted, or would have resulted in any event prior to the plaintiff turning 65 years, from his pre-existing condition.21 20 The second defendant rightly acknowledged that it bears the onus of disentangling any causal web that may be regarded as in some fashion involved with the plaintiff’s status: see Nilon v Bezzina [1988] 2 Qd R 420. See the defendant’s Outline of Argument p. 2. -- 26 of 31 -- 27 Damages General Damages [73] In my view the plaintiff’s injuries attract the following injury scale value ranges: - Item 93 – moderate thoracic or lumbar spine injury—soft tissue injury – 5 to 10 Item 12 – moderate mental disorder – 2 to 10 The dominant injury is the moderate thoracic or lumbar spine injury. The adjustment disorder consequent on the collision must be the subject of compensation. This condition also played a role in the plaintiff developing profound depression. Quite apart from the unremitting and substantial pain suffered as a result of the collision, the plaintiff has suffered a significant loss of amenities. In particular, he has been deprived of the enjoyment of playing golf in his later years, a recreation which he engaged in frequently prior to the collision. In my view, in all the circumstances and to reflect the impact of the multiple injuries, the injury scale value of 10 should be uplifted to 15. General damages are assessed at $18,000.00. Past Economic Loss [74] The plaintiff’s past economic loss is $78,154.20 calculated at the nett weekly rate of $723.65 for a period of 108 weeks (rounded down) for the period 6 May 2006 to 6 June 2008. Interest on this sum calculated at 3.1% p.a. is $5,057.97. 21 See Purkess v Crittenden (1965-1966) 114 CLR 164 at 168. -- 27 of 31 -- 28 Past Superannuation Benefits [75] The loss of employer funded superannuation calculated at 9% of $78,154.20 is $7,033.88. Future Economic Loss [76] The plaintiff is 62 years of age. The 5% multiplier for 3 years to age 65 years is 145.6. The amount of $723.65 projected for 3 years on the 5% tables comes to $105,363.44. I discount this amount by 30% ($31,609.03) for contingencies including the possibility that the plaintiff’s pre-existing condition may have rendered him incapable of working prior to his attaining 65 years of age. I calculate future economic loss in the amount $73,754.41. Future Superannuation Benefits [77] The loss of employer funded superannuation for the future calculated at 9% of $73,754.41 is $6,637.90 Future Paid Cleaning [78] The plaintiff is at risk of he and his wife separating. In the circumstances I give a global figure under this head of $2,500.00. Medicare Refund [79] It seems uncontroversial that the amount allowable under this head is $3,112.65. 22 22 See exhibit 20. -- 28 of 31 -- 29 Out of Pocket Expenses [80] It seems uncontroversial that the amount allowable under this head is $1,742.79. 23 Interest on this amount at the rate of 2.98% p.a. is $194.75. Future Treatment [81] The plaintiff is regularly seeing Dr. Harding for injections to relieve pain. Each appointment costs him approximately $50.00 after Medicare rebate. I allow a global figure of $2,000.00 under this head. Judgment Amount [82] I award the plaintiff total damages in the sum of $198,188.55. Costs [83] On 6 June 2008 judgment was given for the plaintiff against the second defendant in the sum of $198,188.55. At that time, I proposed ordering costs on the standard basis. Mr Lynch, on behalf of the plaintiff, made application for indemnity costs. The application was opposed and the parties have since forwarded written submissions. [84] On 18 December 2006 the plaintiff made a mandatory final offer pursuant to s 51C of the Motor Accident Insurance Act 1994 (the Act) to settle this action for $150,000 plus costs on the standard basis. [85] Counsel have referred to a divergence of judicial opinion in Kenny & Anor v Eyears & Anor [2004] QSC 59 (Philippides J) and Monement v Faux & Anor [2005] QSC 342 (Douglas J) as to the interpretation of s 51C(10) of the Act. I, respectfully, 23 See exhibit 20. -- 29 of 31 -- 30 agree with the reasoning of Douglas J. In my view, the legislation compels a court to have regard to a mandatory final offer, whatever the judgment sum, in making a decision about costs. However, the Act does not provide to the plaintiff statutory entitlement to indemnity costs merely because the judgment amount exceeded the plaintiff’s mandatory final offer. As is clear from the decision in Quality Corp (Aust) P/L & Ors v Millford Builders (Vic) P/L & Ors [2003] QCA 550, s 51C(10) aside, on general principles the court must have regard to the mandatory final offer in making a decision about costs in light of the award being greater than the amount that the plaintiff was prepared to accept in December 2006.24 [86] Mr Lynch has pointed out that one of the stated objects of the Act is “to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents”.25 In this case the plaintiff’s mandatory final offer was consistent with the stated object of the act. It was an offer substantially less than the claim sought by the plaintiff and substantially less than the judgment sum. [87] The bulk of the judgment amount is in relation to economic loss resulting from the plaintiff’s termination from employment with Qantas and his consequent unemployability. Mr. Green, on behalf of the second defendant, has argued that this case “was not a straightforward assessment of damages” and involved “some complexities, namely with respect to the relevance and importance of the plaintiff’s condition of haemolytic anaemia…”. However, the disentangling of causes in relation to a plaintiff’s condition is not a novel, let alone an uncommon, burden carried by defendants in cases of this type. In the event, the second defendant failed to adduce any acceptable evidence to discharge this burden. There is no suggestion that the plaintiff’s case was enhanced by evidence brought to light only after the 24 See also Philippides J in Kenny & Anor v Eyears & Anor [2004] QSC 59, at paragraph [12]. -- 30 of 31 -- 31 mandatory final offer. Whilst the judgment amount is significantly greater than the plaintiff was prepared to accept, it is inevitable that the plaintiff has incurred substantial costs subsequent to making the offer in litigating this matter through trial to judgment. [88] By the offer of $150,000.00 plus costs on the standard basis, the plaintiff did what was reasonable to expeditiously resolve his claim. In making a decision about costs, one must give proper weight to an offer such as this. As Douglas J said in Monement: “…It is important… to take into account the role of the statutory regime requiring full disclosure under s. 51B before the making of mandatory final offers in encouraging speedy resolution of claims. The significance of those offers is emphasised by the requirement of s. 51C(7) and s. 51C(8) that they be filed in the Court.”26 [89] Whilst the plaintiff has sought an order that the second defendant pay the plaintiff’s costs of the action to be assessed on an indemnity basis, no justification for indemnity costs prior to the making of the offer has been advanced. [90] In the circumstances, it is my view that the appropriate order is that the second defendant pay the plaintiff’s costs of and incidental to the action on the standard basis up to and including 18 December 2006 and that thereafter the second defendant pay the plaintiff’s costs of and incidental to the action on an indemnity basis. 25 See s 3(c) of the Act. 26 Monement v Faux & Anor [2005] QSC 342, paragraph [27]. -- 31 of 31 --