Binns v Thomas Borthwick & Sons (Aust) Pty Ltd [2005] QSC 237

SUPREME COURT OF QUEENSLAND CITATION: Binns v Thomas Borthwick & Sons (Aust) Pty Ltd [2005] QSC 237 PARTIES: DAVID RUSSELL BINNS (plaintiff) v THOMAS BORTHWICK & SONS (AUSTRALIA) PTY LTD (ACN 120 065 535 104) (defendant) FILE NO/S: Mackay S44 of 2004 DIVISION: Trial Division PROCEEDING: Trial DELIVERED ON: 1 September 2005 DELIVERED AT: Brisbane HEARING DATE: 13, 14 and 18 April 2005 JUDGE: Mullins J ORDER: The defendant pay the plaintiff the sum of $333,680.20 CATCHWORDS: EMPLOYMENT LAW –LIABILITY FOR EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE PLACE OF WORK – where plaintiff required to work in cold storage room – where plaintiff exposed to carbon monoxide while working in cold storage room – where plaintiff collapsed after exposure to carbon monoxide but did not lose consciousness – where plaintiff suffered from consequent behavioural difficulties and psychiatric condition – whether the plaintiff suffered an organic brain injury from carbon monoxide exposure DAMAGES – MEASURE OF DAMAGES – LOSS OF EARNING AND EARNING CAPACITY – RE- EMPLOYMENT OF WORKER – where plaintiff returned to work for a short time after being exposed to carbon monoxide – where plaintiff ceased working after 9 months as a result of psychiatric condition – where plaintiff attempted workplace rehabilitation but was unsuccessful – whether plaintiff’s psychiatric condition is likely to prevent him from returning to paid employment – damages for loss of future earning capacity assessed on the basis that plaintiff is unemployable – discount of 40% applied to assessment to cover chance that plaintiff may engage in some paid employment and vicissitudes -- 1 of 20 -- 2 Gallagher v Queensland Corrective Services Commission (unreported, Sup Ct (Q), No 1302 of 1995, 30 July 1998) Hirst v Nominal Defendant [2004] QSC 272 COUNSEL: J J Clifford QC and G F Crow for the plaintiff W D P Campbell for the defendant SOLICITORS: Macrossan & Amiet for the plaintiff Bruce Thomas Lawyers for the defendant [1] MULLINS J: The plaintiff was employed at the defendant’s meatworks at Bakers Creek, Mackay when he was exposed to carbon monoxide between 4 and 12 June 2001 (“the incident”). The plaintiff claims to have suffered carbon monoxide poisoning, a chronic organic brain syndrome resulting in a 15% whole body permanent partial disability relating to ongoing cognition difficulties and a 15% whole body permanent partial disability relating to behavioural difficulties and a consequential psychiatric condition (a generalised anxiety disorder). He seeks damages for negligence and/or breach of contract of employment and/or breach of statutory duty. [2] The defendant admitted in its defence that the plaintiff was exposed to carbon monoxide between 4 and 12 June 2001 and that the exposure to carbon monoxide was caused by the negligence and/or breach of contract and/or breach of statutory duty of the defendant. What is disputed by the defendant is the allegation that the plaintiff was exposed to high levels of carbon monoxide and suffered carbon monoxide poisoning as a result. The defendant also disputes the nature and extent of the personal injury which the plaintiff claims to have suffered as a result of the incident. Witnesses [3] The plaintiff gave evidence. He called evidence from his wife and from Mr David Peulen, Ms Helen Tanner and Ms Pamela Mills who were fellow workers at the meatworks. Formal evidence explaining why there had not been earlier disclosure of an attendance to obtain legal advice on 15 June 2001 was given by the plaintiff’s solicitor Mr Gene Paterson. [4] The medical witnesses who gave oral evidence for the plaintiff were psychiatrist Professor Basil James, neuropsychologist Mr Louis Salzman, thoracic physician Dr Robert Edwards and neurosurgeon Dr Francis Tomlinson. [5] The defendant called neurologist Dr John Cameron, psychiatrist Professor Harvey Whiteford, psychologist Dervla Loughnane, job placement consultant Paul Gablonski and neurologist Dr Alison Reid. Plaintiff’s background [6] The plaintiff was born in 1959. He left school when he was 13 years old. He worked as a farmhand over the next 5 years with his parents who did seasonal work picking vegetables. From 1979 he worked for 2 years as a dairy supervisor at the Queensland Agricultural College. He then was employed as a potato picker and field hand in the Gatton area for another 2 years. The plaintiff and Mrs Binns moved to Bowen in late 1983 where they worked tomato picking and packing. In -- 2 of 20 -- 3 the latter part of 1984 they returned to the Gatton area for a period of about 12 months, before returning to Bowen. Both in Gatton and Bowen the plaintiff did farm work. He then obtained seasonal work at the defendant’s meatworks at Bowen. He worked as a slaughterman for a number of years. He also obtained work as a night cleaner at the meatworks. When not working at the meatworks, he worked as a farm labourer. [7] The plaintiff and Mrs Binns moved from Bowen to Sarina in December 1995. The plaintiff obtained work at the meatworks at Bakers Creek as a slaughterman and Mrs Binns obtained work there as a packer. The plaintiff worked continuously at the meatworks as a slaughterman until the meatworks closed down in October 1997. The plaintiff and Mrs Binns then commenced a cleaning business, but when the meatworks reopened in April 1998, they both returned to working at the meatworks. [8] In 1989 the plaintiff suffered an injury to his left wrist and left elbow as a result of repetitive work practices. He underwent carpel tunnel surgery and an ulnar nerve transplant. He did not work for a number of months. When he returned to work, he ceased working on the slaughter floor and commenced working as a labourer in the boning room. Prior to the incident, the plaintiff had a history of consistent employment. [9] In early 2001 the plaintiff had been complaining of giddiness, if he turned or stood too quickly. He underwent an MRI scan of his brain and pituitary gland on 14 February 2001 which revealed ectasia of the left vertebral artery. The plaintiff’s general medical practitioner, Dr Owczarek, referred him to a neurosurgeon, Dr Baker. The plaintiff had an appointment to see Dr Baker on 15 June 2001. The incident [10] Immediately prior to 4 June 2001 the plaintiff was working in the boning room when he was required to put the correct lids on cartons of meat packed in cryovac to correspond with what meat was in the carton. The plaintiff was competent in performing this role and got on well with his fellow employees. As of 4 June 2001, the place for performing the plaintiff’s task was changed to a cold storage chiller room that had been recently converted from its prior use as a cold storage freezer. The plaintiff was training two employees to do his job. [11] There was a door to the cold room that gave access to and egress from the cold room for the employees. It was usually closed while they were working. On the western side of the cold room there was another entrance to the load out area that had strips of plastic hung in the doorway to keep the cold air in. There was no window in the cold room. A forklift powered by LPG operated in the cold room. Through a fault in equipment on the forklift, the forklift emitted carbon monoxide. There was a build up of carbon monoxide in the cold room at the end of each day, but the employees including the plaintiff were unaware that this was happening. [12] After working in the cold room each day, the plaintiff found he developed headaches. He put it down to the extreme cold temperatures. He felt particularly unwell after he finished work on 11 June 2001. He had a bad headache, felt sick in the stomach and was lethargic. He did not eat dinner, but took some Panadol and went straight to bed. -- 3 of 20 -- 4 [13] He started work at around 6am on 12 June 2001. By 9am he was suffering from a bad headache. At 10am when the “lap” break was taken to give those who worked in cold areas a break for about 5 minutes, the plaintiff told the foreman that he was feeling really sick and that he felt like he was about to pass out. Mr Peulen confirmed that at this time the plaintiff was complaining of headaches, not feeling well, sore eyes and feeling lethargic and like vomiting. The plaintiff recalled falling over a pallet of lids, getting up and staggering out through the exit door into the palletising room where the quality control officer, Ms Tanner, helped him outside. Mr Peulen was able to confirm that the plaintiff staggered out of the cold room. The plaintiff does not remember anything else until immediately before being attended to by ambulance officers. [14] Ms Tanner gave evidence that she saw the plaintiff slumped over a pallet of boxed frozen meat, she asked whether he was all right and he responded that he did not know what was wrong with him and that he had a splitting headache. Ms Tanner assisted the plaintiff outside and seated him on a chair. She tried to enlist the assistance of two male employees, but at the same time another employee who had been working in the cold room, Ms Clegg, collapsed onto the ground. Mr Peulen fixed this collapse as occurring 5 or 10 minutes after the lap break. The two male employees assisted Ms Clegg, leaving Ms Tanner to help the plaintiff to the office area where other workers then assisted her to take him to the first aid office. Throughout this time the plaintiff was conscious, as he was able to talk to Ms Tanner, although he was uncoordinated in his movements. Mrs Binns was summonsed to the first aid office. The ambulance was called at 10.41am and was on the scene by 10.53am. Mr Peulen had also felt unwell and had a splitting headache, but managed to get himself down to the first aid area. I find that the time at which the plaintiff left the cold room as a result of being affected by the carbon monoxide build up was between 10.15am and 10.30am. I also find that the plaintiff, though visibly affected by the carbon monoxide at the time he left the cold room, did not lose consciousness. [15] When Mrs Binns arrived at the first aid office, she described the plaintiff as “trance-like”. She said that he did not respond at first as she talked to him, but by the time the ambulance officers arrived, he had been able to tell her that he had a headache. [16] The carbon monoxide level inside the cold room where the plaintiff, Mr Peulen and Ms Clegg had been working was measured at around 288 parts per million (ppm) shortly after the incident. Treatment [17] The ambulance officers observed the plaintiff to be alert, lying supine on a stretcher and cherry red in colour. His Glasgow Coma Score was 15. His respiratory rate was described as normal and he was observed not to have shortness of breath or abnormal breath sounds. The ambulance officers administered oxygen from 10.56am. He was taken to Mackay Base Hospital where he was seen in the emergency department at 11.30am. On examination he was conscious and rational, but complaining of giddiness and headache and neurological examination revealed no neurological deficit. His COHb (carboxyhaemoglobin) level was 15.5%. (Mr Peulen’s COHb level measured at the same time was 17.8% and Ms Clegg’s was 19.3%.) The plaintiff was admitted to the medical unit for 100% -- 4 of 20 -- 5 oxygen to be administered over 24 hours. His COHb levels were monitored again that day at 2.15pm when they had reduced to 5.7% and at 9.19am on 13 June 2001 when they had reduced to 0.9%. The plaintiff was discharged from hospital on 13 June 2001 at around 11am. [18] The plaintiff completed an application for workers’ compensation on 13 June 2001 based on suffering carbon monoxide poisoning. [19] The plaintiff consulted Dr Owczarek on 15 June 2001 when he was complaining of headache and insomnia. [20] The plaintiff kept his appointment with Dr Baker on 15 June 2001. Dr Baker confirmed the diagnosis of an ectatic basilar artery fed by a dominant left vertebral artery which he assured the plaintiff did not require treatment and was unlikely to be the cause of the dizziness of which the plaintiff had been complaining earlier in the year. Dr Baker considered that the plaintiff should be treated for fluid in his sphenoid sinus. [21] On 15 June 2001 the plaintiff and Mrs Binns attended on a solicitor, Mr Naylor, of Macrossan & Amiet to enquire about whether it was worthwhile for the plaintiff to make a claim for damages arising out of the incident. On the basis that the plaintiff informed Mr Naylor that the doctors were suggesting that there would be no permanent consequences from the incident and that the only difficulty he had at the time was with sleeping, Mr Naylor advised that claim would cost him more than it was worth. [22] When the plaintiff consulted Dr Owczarek again on 18 June 2001 he was complaining of poor appetite and an inability to sleep. The plaintiff was waking at 1am or 2am in the morning. The plaintiff wanted to go back to work and Dr Owczarek provided him with a medical certificate allowing him to return to work on 19 June 2001. On that occasion Dr Owczarek diagnosed a very minor post traumatic stress disorder and expressed the opinion that it would settle. [23] The plaintiff returned to work as from 19 June 2001. He worked in the boning room. Over the ensuing period the plaintiff found that he no longer enjoyed his work and that things that happened at work upset him. He made mistakes in doing his job. He did not get on with his fellow employees. He found that he was also irritable at home. He continued to have difficulty sleeping. He was tired because of his restless sleeping and found that he started arguing with others. [24] Around Easter 2002 the plaintiff lost his temper with his wife and became loud and abusive which was out of character. At his wife’s insistence on 3 April 2002 he consulted Dr Owczarek and complained of being easily upset, irritable and suffering from anxiety/depression. Dr Owczarek referred the plaintiff for a CT scan of his brain and prescribed Temazepam to help him sleep and anti-depressant medication, Cipramil. [25] On the morning of 9 April 2002 when the plaintiff and his wife were travelling to work, the plaintiff stopped the car on the side of the road and burst into tears and refused to go to work. They returned home. The plaintiff consulted Dr Owczarek who gave the plaintiff a medical certificate until 23 April 2002 on the basis of a diagnosis of possible work related anxiety/post-traumatic stress disorder arising from the incident. The plaintiff described his symptom as headaches in the front -- 5 of 20 -- 6 left area of his head, sleeping problems, being scared of being in places with other people and getting upset if he went near the meatworks. He also found he had some memory problems. A couple of days after the plaintiff stopped going to work, Mrs Binns found him in the walk-in wardrobe in their bedroom curled up in a ball in the corner, crying and shaking. [26] The plaintiff applied for workers’ compensation in respect of the injury in the nature of existing/post traumatic stress disorder as from 9 April 2002. The plaintiff has not worked in paid employment since that date. [27] Dr Owczarek referred the plaintiff to Dr John Schneider, a specialist in occupational medicine who saw the plaintiff on 22 April and 2 May 2002. Dr Schneider diagnosed cognitive impairment secondary to neurophysiological effects of exposure to carbon monoxide and anxiety/depression/adjustment disorder secondary to both the cognitive effects of the exposure and the incident. Dr Schneider recommended that the plaintiff be assessed, counselled and treated by a clinical psychologist. Dr Schneider continued to see the plaintiff regularly and provided him with medical certificates until the end of January 2003. [28] WorkCover Queensland (“WorkCover”) referred the plaintiff to consulting psychologist, Mr Tonya Plumb, to conduct a psychological injuries claim investigation. The plaintiff was assessed by Ms Plumb on 1 May 2002. Ms Plumb noted that the plaintiff was concerned about a range of symptoms which he could not understand, including emotional lability. Ms Plumb was of the opinion that the plaintiff displayed a range of depression and anxiety symptoms, as well as mild confusion and memory impairments and made a provisional diagnosis of adjustment disorder with anxiety and depressed mood. She considered that his psychological injuries were a direct consequence of the incident. [29] WorkCover had the plaintiff assessed by psychiatrist, Dr Robert Athey, on 3 June 2002. Dr Athey diagnosed the plaintiff as suffering from post traumatic stress disorder due to the incident. Dr Athey considered that the plaintiff was frightened about the outcome of being gassed and, after he realised how sick he was, he became very frightened that this occurred and remains frightened of further injury. Dr Athey suggested that the plaintiff needed cognitive behavioural therapy and goal oriented therapy to try and overcome his symptoms of anxiety and return to work. At that stage Dr Athey considered his prognosis was variable and considered that full recovery was not likely, as the plaintiff would always retain some symptoms of anxiety. Although with treatment Dr Athey thought that the plaintiff’s condition was likely to improve, he noted that there was also a significant risk the plaintiff could deteriorate further. [30] On 4 July 2002 the plaintiff retained his current solicitors to act for him in a claim against the defendant for injuries as a result of the incident. [31] The plaintiff attended for counselling by psychologist, Ms Denise Orman, on six occasions in July and August 2002. Ms Orman taught the plaintiff some management techniques such as controlled breathing, progressive relaxation and visualisation to which the plaintiff responded positively. Attempts at desensitisation in respect of the meatworks site were unsuccessful. Ms Orman described the plaintiff’s self-esteem and confidence as low and that the plaintiff -- 6 of 20 -- 7 needed further psychological therapy to continue desensitisation to his workplace and continued cognitive behaviour therapy. [32] As Ms Orman closed her practice in Mackay, Dr Schneider referred the plaintiff to another psychologist, Mr Richard Jones. The plaintiff attended on Mr Jones for treatment on three occasions in September 2002. In late September 2002 Dr Schneider suggested to the plaintiff’s case manager at WorkCover that the plaintiff’s return to work could be facilitated by offering him workplace rehabilitation with a host employer in outdoor unskilled or semi-skilled type work. The medical certificate that Dr Schneider provided for the period 24 October to 31 November 2002 permitted a return to work on the basis of a suitable duties program with a host employer, as advised by Dr Schneider. [33] The plaintiff was advised by the case manager to commence work at Mackay Turf Farm on 24 October 2002. This was unsuccessful when the plaintiff was required to work with a forklift and became anxious. He was also required to work a full day, instead of the half day which he understood had been arranged. He developed a severe headache and did not return to work the next day. The plaintiff sought further treatment from Mr Jones. Dr Schneider then gave him a medical certificate stating that he was totally incapacitated for work from 24 October to 31 November 2002. [34] The plaintiff was required by WorkCover to be seen by psychiatrist Dr C Alroe which occurred on 12 November 2002. It appears that Dr Alroe did not find the plaintiff to be suffering from a post traumatic stress disorder. [35] An attempt was made to organise another host employer for the plaintiff at Mackay Golf Club. He was to commence there on 29 November 2002, but did not do so when WorkCover terminated his benefits on 28 November 2002. Dr Schneider therefore referred the plaintiff to the Commonwealth Rehabilitation Service (“CRS”). [36] The plaintiff commenced attending at CRS. Dr Owczarek resumed providing medical certificates for the plaintiff from January to May 2003. Dr Owczarek referred the plaintiff to a psychologist, Ms M Masiorski, on whom the plaintiff arranged to attend for counselling on 24 March 2003. [37] The plaintiff’s solicitors organised for him to be assessed by neuropsychologist, Mr Louis Salzman, on 15 January 2003. Mr Salzman diagnosed the plaintiff as suffering from a post traumatic stress disorder. By testing his reading ability, Mr Salzman was able to conclude that the plaintiff’s estimated intellectual level prior to the incident was in the low average range and that he did not appear to have suffered a loss of intellect as a result of the incident. Mr Salzman did find that the plaintiff’s recall of designs was significantly impaired, there were indications of impaired concentration and attention and impaired visual spatial organisation and he had difficulty with a test of executive functions. Mr Salzman therefore concluded the plaintiff had cognitive impairment, but could not identify the source of it – whether from exposure to the common carbon monoxide or as a result of his “low overall level of intellect, his depression and PTSD”. [38] The plaintiff attended on psychiatrist Professor Basil James in Townsville on 29 January 2003 for a psychiatric report requested by the plaintiff’s solicitors. Professor James reported that his clinical psychiatric findings suggested the same -- 7 of 20 -- 8 conclusions as those of Mr Salzman and the same dilemma with respect to the precise nature of the plaintiff’s symptoms, ie whether organic or psychological. Professor James stated that if the plaintiff had no demonstrable organic brain damage, his symptoms were attributable to a psychological reaction to the carbon monoxide and the threat to life that it posed. It was Professor James’ opinion that the plaintiff’s symptoms did not sufficiently fulfil the DSM IV criteria for post traumatic stress disorder, although they did overlap with them, and that the more appropriate diagnosis was chronic adjustment disorder with anxiety and depressed mood. [39] The CRS referred the plaintiff to psychologist Amanda Wakefield who considered the reports of Dr Schneider and the various psychologists and psychiatrists to whom the plaintiff had been referred for treatment or for assessment between April 2002 and January 2003. These reports were provided to Ms Wakefield by the plaintiff when he attended for assessment on 24 February 2003. Ms Wakefield’s report highlights the conflicting diagnoses. As the plaintiff could articulate the symptoms that he was currently experiencing for which he wished to obtain therapeutic intervention and assistance, Ms Wakefield recommended that he commence treatment as arranged with Ms Masiorski and that CRS monitor the effectiveness of the treatment. [40] The plaintiff attended on Ms Masiorski for treatment on five occasions in May and June 2003. [41] On 2 June 2003 the plaintiff commenced a suitable duties program with Porters Home & Building Centre arranged through CRS where his role was to work in the gardening section moving pots and plants. The plaintiff enjoyed working at the start of the first day, but found that he became anxious and upset with people being around him. He returned for 4 hours for each of the next 2 days, but at the end of each day he felt depressed and upset. When he went to work on the fourth day, he felt he could not stay there. The plaintiff attended on Dr Owczarek and was given a medical certificate for the period from 4 June to 10 July 2003. [42] The plaintiff was advised by Q-Comp on 12 June 2003 that his application for review of WorkCover’s decision to terminate his benefits had been set aside. [43] WorkCover required the plaintiff to be assessed by psychiatrist Dr Les Ding on whom the plaintiff attended on 17 June 2003. Dr Ding agreed with the diagnosis of chronic adjustment disorder with mixed anxiety and mood symptoms, but noted that there had been significant improvement with the progress of time and considered that the nature of the anxiety symptoms centred around the plaintiff’s overreaction to being close to the meatworks. Dr Ding described the plaintiff’s stressors as relating to the episode of carbon monoxide poisoning and the subsequent challenges in adjusting to his psychiatric symptoms and what he perceived as memory impairment and changes in his personality. Dr Ding recommended that a neuropsychological assessment be arranged. [44] WorkCover therefore required the plaintiff to be assessed by clinical neuropsychologist, Ms Donna Drew, who assessed the plaintiff on 23 July 2003. Ms Drew considered that there was neuropsychological evidence of mild cognitive impairment in the form of attentional and visuospatial perceptual dysfunction which she believed could be attributed to carbon monoxide toxicity. Ms Drew also -- 8 of 20 -- 9 diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood, but considered that the anxiety symptoms were significantly more prominent than mood symptoms. [45] Ms Drew administered similar tests to Mr Salzman. Ms Drew disagreed with Mr Salzman’s conclusion that the plaintiff had impairment in his ability to recall designs. Her conclusion was that the impairment related to the ability to copy the design in the first instance which is different to a memory deficit. Ms Drew agreed that the plaintiff showed impaired concentration and attention. Ms Drew considered that further rehabilitation was possible and recommended an intensive psychotherapy program of twice weekly sessions followed by a gradual return to labouring work at a different workplace with appropriate support. [46] WorkCover referred the plaintiff to Mr Jones for further counselling and treatment between July and October 2003. No report from Mr Jones was tendered. [47] The plaintiff attended before the General Medical Assessment Tribunal – Psychiatric in Brisbane on 26 November 2003, but the Tribunal requested that the plaintiff be referred to a neurologist. The plaintiff saw Dr Alison Reid on 13 and 29 January 2004. The Tribunal provided an assessment of permanent disability on 25 February 2004. On 3 March 2004 WorkCover terminated the plaintiff’s claim. The plaintiff was unable to pay for any further psychological treatment or counselling after WorkCover terminated his claim. Plaintiff’s activities [48] The plaintiff has continued taking anti-depressant tablets and visits a doctor about once every 3 months for a new prescription. That medication has been successful in addressing the plaintiff’s depression. The plaintiff and Mrs Binns have been living off Mrs Binns’ wages, since the plaintiff ceased receiving workers’ compensation benefits. [49] Prior to the incident it had been the plaintiff’s long term goal to acquire a small farm. That goal was achieved earlier than anticipated when the plaintiff and Mrs Binns purchased a house on 2.2 hectares on the outskirts of Sarina and relocated to that property on 5 June 2004. Mrs Binns made the decision to look for such a property. The property has a number of fruit trees. The plaintiff and Mrs Binns purchased 23 laying fowls, 11 turkeys, 2 cows and some pigs and sheep. Since moving to this property, the plaintiff occupies his day by tending to the fruit trees and the animals. The plaintiff is physically capable of doing the work required on his property to maintain the fruit trees and animals. Mrs Binns sells the eggs to her co-workers. They have sold fruit from their trees at the roadside. [50] Since the plaintiff ceased working, he has left most of the driving to Mrs Binns. He can drive, though, when it is necessary, although he describes as one of his symptoms that he has lost confidence in driving. Mrs Binns refuses to drive when their boat has to be towed. The plaintiff therefore drives when he takes his boat to go fishing. He stated that he had been fishing three times this year. [51] The plaintiff’s activities are affected by the fact that he does not like many people to be around him. He described how Mrs Binns makes him do things to try and overcome that phobia. Mrs Binns makes the plaintiff accompany her when she goes shopping, even though the plaintiff does not want to do so. -- 9 of 20 -- 10 [52] The plaintiff described how since the incident, he has suffered from headaches which come and go. He described that he might go three, four or five days without a headache and that he would then get a headache which might last two or three days. The plaintiff described his continuing symptoms at the time of the trial as headaches, sleep problems, loss of memory and that he still gets nervous around a lot of people. Mrs Binns’ observations of the plaintiff confirmed these symptoms. Whether plaintiff suffered an organic brain injury [53] Both parties relied on an article entitled “Carbon Monoxide” by Edouard Bastarache obtained from the website www.ceramic-materials.com. The article provides a detailed discussion of the toxicity of the carbon monoxide in ceramics. It contains some information that was accepted by witnesses for both parties. The article stated that, at rest, the elimination half-life of blood carbon monoxide for a subject inhaling oxygen is approximately 20 to 60 minutes. The article set out a table that showed the progressive effects following acute exposure to carbon monoxide by reference to the percentage concentration of COHb. For a concentration of 30% to 40%, the probable effects were described as “Severe headache, nausea, vomiting, muscular weakness, confusion, eye and judgement troubles”. For a concentration of 40% to 50%, the probable effects were described as “Convulsions, loss of consciousness”. The article also contained a table setting out the probable effects following an acute exposure to carbon monoxide by reference to the parts per million of carbon monoxide. For a concentration of 200ppm, the probable effects were described as “Headache 2 to 3 hours after exposure” and for a concentration of 400ppm were described as “Headache and nausea 1 to 3 hours after exposure”. [54] Although Dr Edwards did not see or examine the plaintiff, he was provided with the test results from the Mackay Base Hospital and estimated that the level of carbon monoxide present at the time the plaintiff collapsed would have been between 30% and 35%. Dr Edwards arrived at a similar result by reference to a graph that estimated the percentage of COHb in the blood by reference to the length of time of exposure to carbon monoxide (in ppm). Dr Edwards expressed the opinion that with that level of carbon monoxide, the plaintiff could have been “quite severely hypoxic”, even without losing consciousness. [55] Dr Tomlinson examined the plaintiff for the purpose of a medico-legal report at the request of the plaintiff’s solicitors on 6 April 2004. Dr Tomlinson expressed the opinion that it was “probable” that the plaintiff suffered neurological injury as a result of inhalation of carbon monoxide. [56] Dr Tomlinson’s opinion was strongly influenced by the plaintiff’s COHb reading of 15.5% at 12:03pm and his knowledge of the different ways carbon monoxide can selectively affect different types of cells which are vulnerable to intracellular changes caused by carbon monoxide. The following passage in cross-examination was one of many statements made by Dr Tomlinson to similar effect: “I believe that the effect of this – the level of his carbon monoxide would have interfered with both the delivery of oxygen to his cells and caused intracellular hypoxia which has – which is an ongoing process which has resulted in changes in his – his – reflected by his behaviour in his temporal lobes and amicula (sic) and hippocampus and is consistent with the injury he sustained.” -- 10 of 20 -- 11 [57] WorkCover requested an independent medical examination and report from Dr Reid. Dr Reid examined the CAT scan of the plaintiff’s head performed on 9 April 2002 and described it as normal. The EEG that was done on 13 January 2004 at Dr Reid’s request and the MRI scan of the brain done on 29 January 2004 also at Dr Reid’s request were also described as normal. Dr Reid’s clinical neurological examination of the plaintiff was entirely normal with no objective deficits. Dr Reid expressed the opinion that, based on the historical evidence, the clinical evidence and the results of investigations, there was no evidence that the plaintiff had sustained delayed organic brain damage. [58] Dr Reid recorded five articles relevant to neurological sequelae in carbon monoxide poisoning as references in her report. Many statements in those articles formed the basis of cross-examination of Dr Reid and Dr Cameron. It was apparent from their responses that each was familiar with the literature and the concept that carbon monoxide can have a direct toxic effect at the cellular level in addition to the effect of hypoxia. [59] Dr Reid emphasised during cross-examination that she had reached her opinion on the plaintiff by looking at the whole clinical picture and not by focusing on one aspect, such as the plaintiff’s COHb level. Dr Reid noted that there was no protracted coma and the plaintiff was alert and cooperative with a Glasgow Coma Scale of 15 before he even started treatment with oxygen, there was the treatment with oxygen. Dr Reid noted further that there was a very unusual clinical course of breakdown and deterioration outside the normal period for delayed problems with carbon monoxide poisoning and that clinical examination and all investigations were normal. [60] Dr Cameron examined the plaintiff at the request of the defendant on 30 November 2004. Dr Cameron estimated that the plaintiff’s percentage saturation level of COHb around the time the plaintiff became distressed was around 30%. On the basis that the half-life of carbon monoxide for a person inhaling oxygen was between 20 to 60 minutes, he conceded that the plaintiff’s saturation level of COHb may have been as high as 35%. On the basis of the Queensland Ambulance Service records, Dr Cameron expressed the opinion that it was unlikely the plaintiff had suffered any period of unconsciousness. Because a person who is significantly hypoxic increases the respiratory rate to get more air into his or her lungs, Dr Cameron would have expected the plaintiff to have a much greater rate of respiration than 16 (as found by the ambulance officers), if the plaintiff were significantly hypoxic. Dr Cameron noted that according to the record of observations made of the plaintiff at Mackay Base Hospital, there was no evidence that he had a central neurological disturbance and noted that the plaintiff recovered quickly on oxygen. [61] Dr Cameron’s examination of the plaintiff did not reveal any evidence that he had any neurological impairment. Dr Cameron considered that his higher functions appeared quite normal and that he was lucid and orientated, he gave a very good sequential history and performed simple tests accurately. Dr Cameron concluded that the plaintiff did suffer a mild hypoxia as a result of carbon monoxide exposure, but it was not of sufficient level to cause any structural brain impairment. Dr Cameron could not identify any evidence on his assessment and examination of the plaintiff that the plaintiff had any brain injury which could be attributed to exposure to carbon monoxide in the incident. Dr Cameron considered -- 11 of 20 -- 12 that the history given by the plaintiff did not support delayed effects of carbon monoxide poisoning. In particular, Dr Cameron stated that the headaches associated with exposure to carbon monoxide go as soon as the carbon monoxide is gone from the blood and that memory disturbance that is due to carbon monoxide poisoning gets better over time, not progressively worse as the plaintiff described his symptoms to Dr Cameron. [62] In support of a finding that the plaintiff has organic brain damage which is permanent, the plaintiff relies on the unchallenged diagnosis of Dr Schneider expressed in his report of 7 May 2002 that the plaintiff suffered cognitive impairment secondary to neuropsychological effects of exposure to carbon monoxide at work. That opinion was expressed soon after the breakdown on 9 April 2002 and without the hindsight benefit of the subsequent history of the plaintiff’s symptoms and the normal results from the neurological testing and examination of the plaintiff. Professor James referred to a list of scientific articles that he had considered, including those from Dr Reid’s report. Professor James expressed the opinion in his report dated 4 February 2005 “that the differential diagnoses between physical neurotoxicity on the one hand, and psychopathological reaction on the other hand cannot and will not be definitively settled in Mr Binns’ case”. Although Professor James accepted that the plaintiff’s psychological reaction to the incident could provide an explanation for his symptoms when he examined him on 13 January 2005, he stated that direct neurotoxicity could not be totally excluded. I found the evidence of both Dr Reid and Dr Cameron much more compelling than that adduced on behalf of the plaintiff in respect of this issue as to whether the plaintiff had sustained an organic brain injury in the incident. On this issue, Drs Edwards and Tomlinson and Professor James were more concerned with possibilities rather than probabilities, despite the fact that Dr Tomlinson endeavoured to express his opinion in terms of probabilities. In fact, there was a repetitiveness about the manner in which Dr Tomlinson conveyed his opinion that made him more akin to an advocate for a stated position than an expert explaining the basis of a professionally held opinion. Dr Tomlinson’s opinion was highly dependent on the plaintiff’s COHb level of 15.5% after he had been on oxygen for an hour and did not endeavour to reflect the information and other observations that were available and used by each of Drs Reid and Cameron. The plaintiff also relied on the link that Ms Drew made between the evidence she found of mild cognitive impairment and carbon monoxide toxicity. There is no explanation in Ms Drew’s report as to why she made that link (apart from the obvious relationship between the incident and the plaintiff’s psychological difficulties after the incident) and whether she considered that the cognitive impairment could also be attributable to the plaintiff’s adjustment disorder which developed in response to the incident. I do not consider that Ms Drew’s briefly expressed opinion displaces the evidence of Drs Reid and Cameron. [63] I accept the evidence of Drs Reid and Cameron that the plaintiff did not suffer any organic brain injury or structural brain damage in the incident. I am satisfied that any mild cognitive impairment that was detected in the course of the psychological testing of the plaintiff was more likely than not a consequence of the plaintiff’s psychiatric/psychological injury. Nature of the plaintiff’s psychiatric/psychological injury -- 12 of 20 -- 13 [64] Professor James reviewed the plaintiff on 13 January 2005 which was almost 2 years after his first examination of the plaintiff and prepared a report dated 4 February 2005. The plaintiff’s account of his major symptoms at that time was similar to that which he gave at the trial. The plaintiff described his mood as being good and attributed it to the relative solitude of his small farm and the lack of pressure from the rural lifestyle. Professor James considered that the plaintiff’s symptoms were genuine, but noted the plaintiff seemed disinclined to accept that his symptoms of poor concentration and memory were attributable to anxiety. [65] In an addendum report dated 7 March 2005, Professor James expressed his opinion on the prognosis of the plaintiff’s condition should it be determined as primarily psychiatric in nature that the plaintiff’s symptoms should be considered “chronic, and largely indelible”. This was on the basis that they had been present for three years and that appropriate psychological intervention had been unsuccessful. Professor James therefore did not consider that further psychological intervention was likely to have a beneficial outcome for the plaintiff, despite expressing an opinion in his first report that there was a reasonable prognosis for the plaintiff to return to work with a carefully planned return to work program and a period of supportive psychotherapy. [66] At the request of the defendant’s solicitors, Professor Whiteford examined the plaintiff on 28 June 2004. Professor Whiteford considered that the plaintiff reported symptoms and displayed signs of clinically significant anxiety that were consistent with a diagnosis of generalised anxiety disorder. Professor Whiteford expressed the opinion that the plaintiff did not have post traumatic stress disorder. Professor Whiteford also considered that the plaintiff could not be diagnosed as having a chronic adjustment disorder as, by definition, such a disorder could not be diagnosed if the symptoms persisted for more than 6 months after the stressor (in this case the exposure to the carbon monoxide) had terminated. Professor Whiteford conceded in oral evidence that his diagnosis of a generalised anxiety disorder was much the same diagnosis as a chronic adjustment disorder with anxiety. Professor Whiteford expressed in his report dated 30 June 2004 the belief that the plaintiff’s current symptoms had risen in response to the expectation and perception that he had cognitive impairment or brain damage from the carbon monoxide which had developed as a result of the first specialist he saw, Dr Schneider, telling him that he had cognitive deficits from the carbon monoxide and that had been reinforced over time in other consultations. Professor Whiteford therefore was suggesting that the plaintiff’s anxiety had developed in response to the belief that he had carbon monoxide induced brain damage. Professor Whiteford moderated these views when giving oral evidence. It was pointed out to him that the plaintiff was referred to Dr Schneider only after he had suffered the breakdown in early April 2002. Professor Whiteford accepted that the plaintiff’s adjustment disorder developed as a result of the incident, but considered it was maintained and exacerbated by the information the plaintiff was given by the various medical personnel on whom he attended and the stress of being involved in this litigation. [67] The prognosis expressed by Professor Whiteford in his written report was that the anxiety disorder was not permanent and that it would resolve after the legal action had been completed. Professor Whiteford clarified in his oral evidence that, with the stress of the litigation removed, the plaintiff’s current level of disability should be able to be improved significantly, if he had the opportunity to avail himself of treatment for his symptoms of anxiety. Professor Whiteford spoke in terms of “a -- 13 of 20 -- 14 good chance of significant improvement and recovery”. Professor Whiteford recommended a treatment program at Toowong Private Hospital that runs for three days each week for a period of four weeks and which involves follow up consultation three, six and twelve months later for one day on each occasion. An alternative suggested by Professor Whiteford was an intensive course of treatment with a psychologist in Mackay daily over a period of six weeks. Professor Whiteford stated that in his experience programs of either type would result in 70% of those who undertook them responding positively to the treatment. Professor Whiteford also expressed concern that the plaintiff was comfortable and content in living and working on his small farm which would make it harder for the plaintiff to return to making the effort of working outside his own property. Professor Whiteford acknowledged in cross-examination that it would be hard for the plaintiff to respond positively to further treatment in that the plaintiff appeared to find it difficult to accept explanations of symptoms in psychological terms and understand those concepts. [68] Professor James provided a report dated 8 March 2005 in which he differed from Professor Whiteford on whether the plaintiff’s incapacity would resolve, when the legal action was completed. Professor James relied on the “longitudinal course” of the plaintiff’s symptoms as being consistent with being caused by and attributable to the incident rather than to the medico-legal process. Professor James therefore considered that it was most unlikely that the symptoms would resolve after the legal process was completed. [69] In considering the opinions expressed by Professors James and Whiteford and the written reports of the other psychiatrists and many psychologists who had examined or assessed the plaintiff, it was helpful to have had the opportunity of observing the plaintiff during the course of his giving evidence. The plaintiff was clearly anxious whilst giving evidence. During cross-examination, when Mr Campbell of counsel was asking him about specific attendances on his lawyers and some of the doctors, the plaintiff started responding “I can’t remember” to a number of questions. When he was being asked about the difference in detail between the draft of his quantum statement and that which he signed, the following exchange took place: “Why didn’t you?-- I don’t know? I’m afraid the questions you’re asking me I don’t remember. I mean, I don’t even remember what I had for breakfast this morning. Yes. Now, are you going to be able to answer any further questions from me?-- No, probably not. You’re going to refuse, or-----?-- No----- -----you’re just going to say, “You don’t remember”?-- No. No, I don’t remember. I see?-- I’m trying to be as helpful as I can but I just don’t remember.” [70] The plaintiff became tearful and was unable to continue at that stage. Other witnesses were interposed, before the plaintiff was able to return and complete his evidence. In re-examination he described that at the time that he took a break from -- 14 of 20 -- 15 giving evidence he felt “Just terrible, just felt really nervous” and that he “was emotional and very upset”. [71] Throughout the course of giving his evidence the plaintiff showed that he was frustrated by the changes in him and how that had affected his life since the incident. The plaintiff acknowledged that he had read every medico-legal report that had been produced in respect of him and was confused about what was causing his symptoms. It is consistent with the plaintiff’s endeavour to understand what is wrong with him that he has read all the reports about himself. The plaintiff was pessimistic about his prognosis. When the plaintiff was cross-examined about his anti-social behaviour in the sense that he wished to avoid people, the following exchange took place: “You see, I suggest if you told the doctors about that condition or phobia, it’s easily treated. They would recommend that you be treated for it?-- But that’s not the only problem. Right. Your memory problems?-- Yes. My headaches, my lack of sleep. Not just one problem. And I think you know that. You’ve asked me these questions over and over. I’m sorry, but I’m just getting sick to death of hearing the same things over and over. I’m sorry, but if I can’t remember anything-----.” [72] Since the plaintiff’s breakdown in early April 2002, there has been a consistency in his reporting the symptoms from which he felt he was suffering to the various medical personnel, whether in connection with this litigation or otherwise. There was independent verification of his suffering from Mrs Binns who impressed as a person who has been most supportive of the plaintiff, but frustrated at the same time about the effects of the plaintiff’s suffering on both the plaintiff and herself. After evaluating the evidence, I have no hesitation in accepting that the plaintiff suffered and continues to suffer from the symptoms that he has described from time to time. In this context, Professor Whiteford’s optimism for the plaintiff being able to make a full recovery is not borne out by the course of suffering that was revealed by the evidence and the lack of success of the psychological treatment undertaken by the plaintiff. I accept Professor James’ prognosis that the plaintiff’s anxiety disorder will be permanent and will not resolve on the completion of this litigation. I therefore find that the plaintiff suffered a generalised anxiety disorder as a result of the incident which is permanent. I also find that he suffered from depression as a result of the incident, but that has been successfully controlled by the anti- depressant medication and the relocation to the small farm. Capacity for future employment [73] In his oral evidence Professor James expressed the opinion that it was very unlikely that the plaintiff would get back to any sort of employment to which the usual expectations apply. This was because it was beyond the plaintiff to fulfil tasks according to set timetables. Professor James stated that the plaintiff would need to work at his own pace, in his own way and have breaks and days off when he needed them. Professor James considered that the work he did on his small farm was “operating like very good occupational therapy”. -- 15 of 20 -- 16 [74] Professor Whiteford’s opinion expressed in his written report that he believed there would not be any long-term restrictions on the plaintiff’s employability was clearly dependent upon the plaintiff’s responding positively to further treatment. [75] The defendant required the plaintiff to undergo a vocational assessment on 18 March 2005. The plaintiff was assessed by Ms Loughnane who was assisted by Mr Gablonski for the labour market analysis included in the vocational assessment report (exhibit 14). The report suggested employment options of sailor and park ranger, because of the interest shown by the plaintiff in those occupations, and also suggested other options consistent with his training, education, interests and experience of farm hand, fruit and vegetable picker, meat worker and butcher. The option of a butcher was on the basis that the plaintiff would require further training and, in all the circumstances, is not a realistic suggestion. [76] Ms Loughnane had noted in the course of administering the psychological tests to the plaintiff that he was enjoying the current work that he was undertaking on his own farm and he did not seem to have any desire to actually return to the outside workforce, raising the obstacles of his depression and anxiety, memory and concentration problems and his phobia of being around people. Professor Whiteford expressed a similar view. [77] The plaintiff’s anxiety disorder restricts his capacity to engage in paid employment. On the basis of the symptoms that the plaintiff was still suffering at the time of the trial, the plaintiff has no capacity to engage in employment outside his small farm. The plaintiff has a need for further psychological treatment for his anxiety and associated phobias. There is only a chance that such further treatment may improve the plaintiff’s capacity for employment. [78] The defendant calculated the plaintiff’s damages for loss of future earning capacity on the basis of three alternative scenarios. The first was that the plaintiff presently had a nil residual earning capacity but would recover his earning capacity in full within 12 months. The second scenario was that the plaintiff’s current residual earning capacity enabled him to earn $350 net per week (approximately two-thirds of what he would be able to earn if still employed at the meatworks) and that it would take 3 years for full recovery. The third scenario was that his current residual earning capacity enabled him to earn $250 net per week (under half of what he would be able to earn if still employed at the meatworks) and that it would take 5 years for him to recover. The difficulty with these scenarios is that there was no evidence to support either estimated existing partial residual earning capacity or any of the timeframes for full recovery. At best the scenarios are based on Professor Whiteford’s generally optimistic outlook for the plaintiff, if he were to respond positively to further treatment, but even Professor Whiteford did not suggest that the plaintiff retained a presently existing capacity to earn income. Realistically, these scenarios represent what the defendant hopes will happen over time rather than a reflection of the evidence. [79] To the extent that the defendant’s witnesses treated the plaintiff’s relocation to the farm as demotivation for him to return to paid work, that disregards the fact that the relocation was undertaken by the plaintiff and Mrs Binns to address the plaintiff’s symptoms and has been successful in assisting in the control of his depression. -- 16 of 20 -- 17 [80] I find that Professor James’ opinion on the future employability of the plaintiff is consistent with the plaintiff’s history since the breakdown in early April 2002 and his symptoms at the trial. On analysis, Professor Whiteford’s opinion is concerned with the possibility that the present restrictions on the plaintiff’s capacity to work in paid employment may change in the future. I therefore consider that I should accept Professor James’ opinion on this issue. [81] Loss of earning capacity should therefore be assessed on the basis that the plaintiff is unemployable in the future, but that calculation should be discounted to reflect the chance that future psychological intervention (or even the effluxion of time) may improve the plaintiff’s symptoms to such an extent that he may be able to engage in some paid employment. The discount also needs to take account of the possibility that, irrespective of the incident, the plaintiff may have elected to retire earlier than the usual 65 years of age, in order to pursue the dream of having the small farm. When these additional matters are taken into account with the usual vicissitudes, the discount applied to the calculation of the loss of future earning capacity must be significant. I have decided that a discount of 40% is appropriate in the circumstances. Pain suffering and loss of amenities [82] It was contended on behalf of the plaintiff that an appropriate award for pain, suffering and loss of amenities, if the finding were that there were no organic brain injury, would be the sum of $65,000. Reliance was placed on an assessment by Jones J in Gallagher v Queensland Corrective Services Commission (unreported, Sup Ct (Q), No 1302 of 1995, 30 July 1998) of $60,000 when the plaintiff had developed a stress related condition, as a result of alleged mismanagement at the defendant’s prison. The appeal on liability in that matter was successful, so that there was not an actual award for that amount. It was contended on behalf of the defendant that an appropriate award for this head of damages would be the sum of $30,000. [83] A recent award for a psychiatric condition is found in Hirst v Nominal Defendant [2004] QSC 272. The plaintiff in that case was a police officer who was involved in a motor vehicle accident. He sustained a whiplash injury to his neck which resolved in a few months, but developed a post traumatic stress disorder that resulted in his retiring from the police force 16 years earlier than he would have otherwise been obliged to. The psychiatric condition, though triggered by the accident, was contributed to by a number of experiences prior to the accident. The assessment for damages for pain, suffering and loss of amenities was $40,000. [84] In view of my conclusion that the plaintiff has suffered a permanent injury in the nature of a generalised anxiety disorder and has suffered from depression which is controlled, I assess damages for pain, suffering and loss of amenities at $40,000. Past economic loss [85] There was little difference between the parties in the calculation of past economic loss to the date of trial. The plaintiff’s calculation was $77,122.32. The defendant’s calculation was $76,649.91. The defendant tendered a calculation of putative earnings to the date of trial (exhibit 20) on which there were handwritten additions made on behalf of the plaintiff to show the plaintiff’s calculation. These indicate that the difference between the parties on the calculation of earnings was confined -- 17 of 20 -- 18 to the calculation of leave paid for the entire pre-trial period. In bringing the calculations that are shown in exhibit 20 up to date, I have redone the calculation for the period shown as 7 September 2004 to 13 April 2005, so that it applies from 7 September 2004 to 1 September 2005. That is a total period of 50 weeks, with an 8 week shutdown period, making a total of 42 weeks’ production. On the basis of a total net weekly earnings of $535.70 per week, the total net loss of earnings for 42 weeks is $22,499.40. That makes a total net earnings for the pre-trial period, before leave pay, of $79,742.40. The method of calculation of leave pay by each party results in an estimate only. There is little difference between them. I will use the plaintiff’s method of calculation. That results in the putative earnings of the plaintiff from 9 April 2002 to the date of judgment being $88,389.45. [86] The significant difference between the parties is on whether a discount should be applied to the calculation of past economic loss to reflect contingencies such as domestic accidents/unrelated illnesses etc. The defendant also brings into account under this heading the sum of $1,200 which the plaintiff has estimated as income earned by his wife and him in the period of 6 months prior to the trial from produce sales from his property. As this amount was included in the plaintiff’s quantum statement (exhibit 6), it is appropriate to make an allowance for the plaintiff’s half of that income. [87] During submissions Mr Clifford of Queen’s Counsel who appeared with Mr Crow of Counsel for the plaintiff conceded that, in the circumstances, it would be appropriate to discount past economic loss for contingencies that could have otherwise affected the plaintiff’s income, but for the incident, in the pre-trial period. I accept that a discount of 10% should be applied. I therefore calculate past economic loss as $79,000. The calculation of interest on past economic loss has to take into account that the plaintiff received the sum of $41,166.61 net by way of compensation payments until 3 March 2004. The interest should therefore be calculated at 5% per annum for 1.5 years on the sum of $37,833.39 which is the sum of $2,837.50. The parties submitted slightly different figures for the Fox v Wood factor. I will use the defendant’s figure of $9,120. Loss of past superannuation benefits [88] This was calculated by the plaintiff at 9% and by the defendant at 8%. As the relevant figure for most of that period was 9%, that is the percentage that should be applied for this calculation. Loss of future earning capacity [89] The parties differed as to what net weekly sum should be used for the calculation of loss of future earning capacity. The plaintiff had stated in his quantum statement (exhibit 6) that if he were presently working as a labourer in the meatworks, he believed that his income would be not less than $550 net per week. He was not challenged on that calculation. It appears that estimate took into account overtime, but did not take into account that for at least 2 weeks of the year, the plaintiff would not have received any income due to the shutdown. Allowing for ¾ hour for overtime each day, applying the current tax scales and allowing for 2 weeks per year without pay still makes $550 net per week an appropriate figure to use for calculating future economic loss. Loss of future superannuation benefits -- 18 of 20 -- 19 [90] This should be calculated at 9%. Special damages [91] It was common ground that the special damages that had been paid by WorkCover were $17,558.36. It was also agreed that the refund to CRS was $3,301.20. There was agreement that the special damages paid by the plaintiff were $1,294.08. The plaintiff is entitled to interest on the special damages paid by him. I have used the method of calculation for that interest that was used by the defendant, as that takes into account that some of the medical expenses that were paid by the plaintiff have to be the subject of a refund to the Health Insurance Commission. Future medical expenses [92] An allowance needs to be made for the cost of future psychological treatment to assist the plaintiff in dealing with his anxiety and his phobias. The estimated number of sessions that the plaintiff would require for such treatment is not clear. The estimates range from 30 treatments to 100 treatments. As the latter estimate is related to a concerted program to assist the plaintiff in returning to work which is not required on the basis of the findings that I have made, it makes sense to adopt the defendant’s suggested allowance of $12,500 for future psychological treatment that allows for treatment in the range between 30 and 100 treatments at $176 per treatment. [93] Future visits to the doctor should be calculated on the basis of one visit for every three months at an average cost of $50 per visit. That averages to $3.85 per week. On the basis of the plaintiff’s current age, he has a life expectancy of approximately 32 years. The cost of those anticipated visits to his doctor should therefore be calculated for the rest of his life, but discounted by 20% for vicissitudes. [94] The future cost of anti-depressant medication should be calculated on the basis of the anticipated expenditure of $28.60 per month for the remainder of the plaintiff’s life. An allowance for vicissitudes should also be made in respect of this calculation. Conclusion [95] It was common ground between the parties that the amount of the refund to WorkCover is $67,844.97. The assessment of damages can be summarised as follows: Pain, suffering and loss of amenities $40,000.00 Past economic loss 79,000.00 Interest on past economic loss 2,837.50 Loss of past superannuation benefits 7,110.00 Fox v Wood Loss of future earning capacity ($550 net per week for 18 years (625) less 40%) 9,120.00 206,250.00 Loss of future superannuation benefits 18,562.50 Special damages (paid by WorkCover) 17,558.36 Special damages (paid by plaintiff) 1,294.08 Interest on special damages paid by plaintiff ($1,083.08 @ 5%pa for 4.22 years) 228.53 Future psychological treatment 12,500.00 -- 19 of 20 -- 20 Future visits to doctor ($3.85 per week for 32 years (845) less 20%) 2,602.60 Future costs of anti-depressant medication ($6.60 per week for 32 years (845) less 20%) 4,461.60 401,525.17 Less refund to WorkCover 67,844.97 $333,680.20 [96] It follows that the defendant should be ordered to pay the plaintiff the sum of $333,680.20. I will hear submissions from the parties on the question of costs. -- 20 of 20 --