Elders v Woods & Ors [2000] QSC 352

State Reporting Bureau sc_ oo/'-s~Q_ 3'ft33 TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J Writ No 75 of 1998 JANET ELDERS and GLEN PATRICK WOODS and SUNCORP GENERAL INSURANCE LTD and NOMINAL DEFENDANT CAIRNS .. DATE 2 7 / 0 7 / 2 0 0 0 JUDGMENT 1 I h I fo11r 1 The I.aw Courts, George Sln.:d, llrish:111c, Q. 4110() ------...----·--···-·"·..., REVISED COfJ!E.S !~)SUED Plaintiff First Defendant Second Defendant Third Defendant Td1:phom·: (07) J247 -tJ60 Fax: (07) J2-t7 55.l! -- 1 of 14 -- 27072000 D.2 T14-15/JFG M/T CNS464/2000 (Jones J) HIS HONOUR: The plaintiff, who was born on 25 November 1943, was injured in a two vehicle collision on 30 August 1995. She was at the time 51 and a-half years old. She was in good health, apart from some osteoarthritis in her sacroiliac joint, of two years standing and in her lower back, which was injured in a skiing incident when she was 21 years old. These areas occasionally gave rise to minor symptoms of pain but did not interfere with her capacity to earn income. These injuries were referred to by Dr Catton in a Work Ability Information Report (Exhibit 21) which was relied upon by the plaintiff in seeking a disability pension. Immediately prior to the accident however, the plaintiff was working on a full time basis as a draftsperson under contract with the Cairns City Council. The journey to and from work involved a drive of one and a-half hours each way. She had engaged in this employment since early 1993. The plaintiff, since 1986, in conjunction with a friend Ms Richter, has owned a two and a-half acre property at East Palmerston. This property has been progressively developed by the construction of a house, by clearing heavy growth on the property and by the planting of trees and establishing lawns and gardens. Much of this development work was being physically performed by the plaintiff. This provides a measure of her physical capacity prior to the accident. Her intention was to use the one spare bedroom on the property upon her retirement from work, as a bed and breakfast 10 20 30 40 50 facility. However, she said in evidence she needed to 60 2 JUDGMENT -- 2 of 14 -- 27072000 D.2 Tl4-15/JFG M/T CNS464/2000 (Jones J) continue working as a draftsperson to pay off debts owing in relation to the property and her motor vehicle. She had no independent means of support and would not be eligible for an age pension until she attained 64 years of age. Despite the interpretation of a comment made by the plaintiff to Mr Walkley, consultant psychologist, about her retirement plans, I accept that the plaintiff intended to continue working as a draftsperson until the age of 64 years, had her health permitted her to do so. As a result of the collision, the plaintiff suffered injuries to her cervical and thoracic spines, both Achilles tendons and some minor bruisings and abrasions. She was treated initially at the Gordonvale Hospital from where she was transferred to the Cairns Base Hospital. At that hospital, x-rays were taken of her cervical and thoracic spines and she was discharged after basic treatment. Five days later she consulted her general practitioner Dr Catton. On this occasion, she complained particularly of tingling and numbness in the lower aspect of her left forearm which indicated to Dr Catton some untoward pathology in her cervical spine. A CT scan was undertaken but did not show any fracture. The radiological imagining done at that time, did disclose moderate spondylitic changes throughout the lower cervical spine, some narrowing of the spinal canal, particularly at the CS/6 level and some loss of disc height between C5/C6 and C6/C7. According to Dr Graham, consultant orthopaedic surgeon, changes of this kind are not unusual in a 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 14 -- 27072000 D.2 T14-15/JFG M/T CNS464/2000 (Jones J) person of the plaintiff's age, but it does render the person more vulnerable to the consequence of the trauma of an injury. The plaintiff took time off work following this incident to allow recovery from her injuries. The injury to her Achilles tendons resulted in her not being able to engage in very much activity. She returned to work full time on 6 November 1995 but was still quite limited. She was at that time, employed by the Cairns City Council on an annual contract basis which was due for renewal at about that time. She was also involved in a project which would have given rise to some difficulties had she not been able to continue the work. In the period of relative inactivity, the plaintiff noticed improvement in her neck symptoms. On resumption of activities, the symptoms returned. Those particularly noted were headaches, lack of concentration, irritability, fear of driving and anger. The symptom of altered sensation and clumsiness in her left arm returned some months later. This feature gives rise to some conflict in the medical opinion as to whether her present neck symptoms are the consequence of trauma or the result of the natural progression of degenerative disease in her cervical spine. I accept the opinion of Dr Graham which is to the effect that the incident caused a tearing of the anterior and posterior ligaments in the cervical spine which had been foreshortened by the degenerative disease. He said - 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 14 -- 27072000 D.2 Tl4-15/JFG M/T CNS464/2000 (Jones J) "They destabilised that level or maybe two levels of the cervical spine which is why she's got ongoing pain. If she hadn't had the accident, she wouldn't have torn those ligaments in between the vertebrae. They would have been stable. She wouldn't have had as many problems." (Transcript p.46 lines 35 to 40.) The settling of the neck symptoms and the neurological signs' emergence some months later, is simply a consequence of the dissipation of the acute inflammatory response to the initial injury and a subsequent increase in symptoms on resumption of increasing activity. Dr Coyne expressed this view and rejected 10 the suggestion that the re-emergence of the neurological signs 20 was due to natural progression. I find that the symptoms complained of by the plaintiff following the accident and up to the date of trial, are due to the injury as described by Dr Graham which is a direct result 30 of the collision. In addition to the physical injuries, the plaintiff developed a post-traumatic stress disorder of a chronic subtype described in the reports of Dr Walkley (Exhibit 13). One consequence of this condition is its impact on the plaintiff's capacity to drive a motor vehicle. At page 7 of his report, Mr Walkley expressed this view - "As can be seen from the criteria, she clearly has experienced an event which is outside the range of usual human experience. She re-experienced in a distressing manner, the accident, particularly on the road and when exposed to events which are in some way similar to those that she went through." 5 JUDGMENT 40 50 60 -- 5 of 14 -- 27072000 D.2 Tl4-15/JFG M/T CNS464/2000 (Jones J) This feature has had a serious consequence in reducing the plaintiff's capacity to drive long distances, a capacity which is necessary for her to find work as a draftsperson in the larger centre of Cairns. 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 14 -- 27072000 D.2 T16/CON M/T CNS464/2000 (Jones J) For the future, it is likely the plaintiff's symptoms will continue. Dr Graham and Dr Weidmann referred to the chronic effect of this type of injury on a person of the plaintiff's age. At page 98 of the transcript, lines 20-40, the following appears: 11 If, for example, we presume that an exact similar injury occurred in a young healthy person with a healthy normal cervical spine, they either would have suffered muscular injury, from which they would have made a fairly good recovery, or they would have suffered a fracture in the neck. It has now been well shown that with a normal neck, if it is subjected to trauma, it is more likely that bony injury will occur before disc injury or ligamentous injuries. So that a young person in a car accident would be more likely to suffer a fracture of the neck, which would then hopefully heal up, whereas a person who has degenerative changes in the neck is more likely to go on and develop chronic ongoing symptoms. 11 Dr Toft's opinion as to the cause of the plaintiff's post-accident symptoms was formed when he was unaware of the fact that the plaintiff, soon after the accident, did not manifest symptoms and neurological signs referable to her cervical spine. He was therefore somewhat at a disadvantage in seeing the relationship of the trauma and the continuing symptoms which the plaintiff complained about in her quantum statement (Exhibit 1). Though suggesting that the symptoms were due to the degenerative change, Dr Toft conceded that the trauma did cause an acceleration of the onset of symptoms. I accept the opinion of Dr Graham as being the most likely explanation for the plaintiff's symptoms. The incident was a high-speed collision, as a consequence of which the plaintiff's vehicle was written off. One assumes, therefore, that her body, and particularly her neck, was subjected to significant force. Within five days of the incident, she 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 14 -- 27072000 D.2 T16/CON M/T CNS464/2000 (Jones J) complained of neurological signs consistent with the change to the lower cervical levels of her spine. When her symptoms settled and she returned to work, she noted an improvement, but she always had symptoms. When she returned to work and increased her activities, the symptoms IO returned. The plaintiff reported to Dr Graham on 4 March 1996 that the neck was coming good. In August of 1996, she said she 11 recently had an exacerbation of neck pain with clumsiness in her left arm" (Exhibit 9). That remark is consistent with the complaints that she made in her quantum statement. I did not interpret that comment to Dr Graham as identifying a new symptom, rather it was an increase in the severity of the symptoms she had experienced generally. The plaintiff's quantum statement records continuing head, neck and back pain throughout this period, but also refers to a concentration in tlie treatment of her ankle problems. In July 1996, I accept that the plaintiff developed altered sensation and numbness in her left arm. The consequent abating of the symptoms is explained by the dissipation of the acute inflammatory effect of the injury, and the fact that she remained relatively inactive for some months. It is also explained by the chronic nature of the condition which will vary in the way in which the symptoms are felt at different times. 8 JUDGMENT 20 30 40 50 60 -- 8 of 14 -- ., 27072000 D.2 T17/MFK M/T CNS464/2000 (Jones J) The plaintiff's symptoms are likely to continue in the future. They will be exacerbated by activity and generally will vary in intensity, consistent with the chronic nature of the condition. With time one expects that her activities will be reduced. With time and with treatment the post-traumatic stress disorder is likely to abate . In assessing allowance for pain and suffering I also take into account the likelihood that the plaintiff, in any event, faced a future of increasing symptoms in her lower back and sacroiliac joint and the development of some symptoms in her neck. But it is significant that despite her engaging in heavy physical activity and engaging in full-time work, which required prolonged driving, her neck was symptom free prior to t.his incident. Weighing all these matters, I would allow for general damages t.he sum of $50,000 of which $20,000 will be applied to the past period. This sum should attract interest at two per cent for 4.9 years resulting in a further component of $1,960 economical loss. In my assessment, the plaintiff showed considerable stoicism in continuing to work with his disabilities until October 1997. Since that date she has worked when work has been available and when she had the capacity to do so. This included not only working as a draftsperson, the area in which she was trained, but also working as a kitchen hand. 9 JUDGMENT 10 20 30 40 50 60 -- 9 of 14 -- 27072000 D.2 T17/MFK M/T CNS464/2000 (Jones J) She enjoys a very good reputation as a draftsperson, both in the local authority areas where she has spent most of her working life, but also amongst other persons who hav~ called on her from time to time to engage her services. These include Mr Thoroughgood who employed the plaintiff for a while, Mr Perrson who worked with her periodically when she was engaged by Cairns City Council. The plaintiff is physically capable of continuing to work as a draftsperson. The difficulty that she has is the lack of capacity to drive a motor vehicle for long distances so that she is able to work in the larger centre of Cairns. It cannot be suggested that her failure to move to Cairns constituted a failure to mitigate her loss. Any moving to Cairns, in order to gain work, would probably result in considerably more financial loss than would be the outcome of her loss of earning capacity at present. For the past period, the loss of earnings had she continued working as a draftsperson in employment, less the amounts that she has actually received, calculates to a sum of approximately $68,000. The work, however, that she was undertaking must be regarded as only intermittently available. Her engagement with the Cairns City Council was on annual contracts which were renewed to cover a three year period. Whilst there was no guarantee that she would have annual contracts in the future there is a likelihood that she would have gained employment, either with a local authority or with other persons requiring her service on a more or less full- time basis. 10 JUDGMENT 10 20 30 40 50 60 -- 10 of 14 -- 27072000 D.2 Tl7/MFK M/T CNS464/2000 (Jones J) Also, the evidence discloses that the rate of remuneration has varied over this time such that her prospects of earning now were probably greater than at the time of this incident. To take account of the lack of permanency in her employment I propose to discount a little the amount of past loss of earnings, notwithstanding her very good pre-accident work record. I will allow for the whole of the pre-accident period the sum of $60,000. She has during this period of time received Workers' Compensation benefits and some social security benefits. I will allow interest on $40,000 of that sum at four per cent for 4.9 years, which adds a further component of $7,800. For the future, the plaintiff, had she not been injured, would have continued to work as a draftsperson and in my view would have been able to access work in Cairns which would have been, if not of a permanent full-time nature, certainly of a frequency which was not much less than that. 11 JUDGMENT 10 20 30 40 50 60 -- 11 of 14 -- 27072000 D.2 T18/LVT M/T CNS464/2000 (Jones J) With the advancing years, and with perhaps the increasing effects of symptoms from her lower back, she may well have chosen to reduce the amount of time she spent driving. Rather than attempt to fix a period of time when she would not have been able to engage in work of this kind, I have chosen to assess a loss of earning capacity by reason of her present disability measured at $200 pe.r week, which I would then extend for a period of six years from the present time. On the five per cent table, that suggests a figure of $54,280 which I would further reduce for discounting purposes, notwithstanding some discounting already having taken place by reason of that period of years. $50,000. I assess this allowance at The plaintiff makes a claim under the Griffiths v. Kerkemeyer principle for the reimbursement for gratuitous services provided by her companion, Ms Richter, and by relatives who came to assist her when Ms Richter was absent. Details of the services rendered have been set out in the quantum statement (Exhibit 1). In the main, they involve a shift of 10 20 30 responsibilities for house maintenance and maintenance of the 40 two and a-half acre property from the plaintiff to Ms Richter. What is not specifically disclosed in the material is the adoption of some of the responsibilities formally undertaken by Ms Richter in relation to the domestic work inside the house. In respect of this matter the plaintiff's claim calculates to a sum of $6,515. To make some discount of that for the reasons that I have mentioned, I would allow $5,000 under this heading. That sum should bear interest at two per cent for 4.9 years, resulting in a further component of $490. 12 JUDGMENT 50 60 -- 12 of 14 -- 270J2000 D.2 Tl8/LVT M/T CNS464/2000 (Jones J) For the future, there is really no guide as to the type of work which the plaintiff will have to seek assistance for. The property has progressively been developed. One would expect, therefore, a decline in the amount of gratuitous services that the plaintiff would have to rely upon. A calculation was presented on behalf of the plaintiff for a sum of $11,310. This, in my view, is excessive in the circumstances. I would allow·the sum of $8,000 under this heading. This particularly has regard to the plaintiff's dependence on others also for such matters as disposition of garbage and some assistance in meeting appointments and medical treatment. The future medical expenses take the form of the prospect of an operation sometime in the future, some treatment in the form of psychological counselling, and some massage to relieve symptoms. I would allow $5,000 to take account of all of these matters. Future pharmaceutical expenses and medical expenses, mainly in 10 20 30 the form of pain killing tablets et cetera, have been 40 calculated. I would allow the sum of $2,500 on this account. Loss of superannuation benefits I will evaluate at six per cent of the combined total of past and future economic loss, namely $110,000. This calculates to an allowance of $6,600. Special damages have been detailed. I allow special damages in the sum of $9,847.67 upon which interest should be payable at eight per cent for four years, yielding a further component of $1,790. The Fox v. Wood component of $1,657.05 also forms part of the damages. 13 JUDGMENT 50 60 -- 13 of 14 -- 27072000 D.2 T18/LVT M/T CNS464/2000 (Jones J) HIS HONOUR: I give judgment for the plaintiff in the sum of $210,664.73. Costs? MR JENSEN: I ask for costs, your Honour. HIS HONOUR: I order that the plaintiff's costs, if not agreed, be assessed on the appropriate scale under the District Court Rules and be paid by the defendants. 14 JUDGMENT 10 20 30 40 50 60 -- 14 of 14 --