Bauer v Brittan [2000] QSC 126

PLAINTIFF: DEFENDANT: FlL8 SUPREME COURT OF QUEENSLAND REGISTRY: ROCKHAMPTON NUMBER: 152 OF 1997 LEE EDWARD BAUER AND ROBERT H.P. BRITTAN JUDGMENT - DEMACK J. DELIVERED the 31 st day of March, 2000 CATCHWORDS: Negligence - Solicitor -Advice to settle action - Advice given negligently Damages - Personal Injuries - Laceration to face - Psychogenic pain disorder - Miner aged 52 years Counsel: Solicitors: Hearing Date: T Morgan P Hastie Taylors Quinlan Miller & Treston 8th 9th 10th March 2000 ' ' Plaintiff Defendant Plaintiff Defendant -- 1 of 22 -- PLAINTIFF: DEFENDANT: SUPREME COURT OF QUEENSLAND REGISTRY: ROCKHAMPTON NUMBER: 152 OF 1997 LEE EDWARD BAUER AND ROBERT H.P. BRITTAN JUDGMENT - DEMACK J. DELIVERED the 24 th day of March 2000 1. Mr Bauer was born on 27 May 1947. He did not complete his primary education and, even during his school years, he "used to go away droving and that a lot" (p. 10). In 1997, testing upon the Wechsler Adult Intelligence Scale showed a verbal I.Q. of 85, a performance I.Q. of 83 and full scale I.Q. of 84. These scores are in the low average range. 2. In addition to droving, he worked in mines and in other activities involving the use of heavy plant equipment. In 1990, he commenced working for Oaky Creek Coal Pty Ltd. At that time, he and his wife and three children lived in Tieri. On 3 July 1992, he was hit in the face with the metal fitting attached to the end of a pressurised hose line which detached from the air inlet. He went onto Workers' Compensation. He returned to work on 17 July 1992, but facial pain continued to trouble him. He saw various specialists over the next two and a half years. 3. In 1993, Mr Brittan was a solicitor carrying on his own practice at Spring Hill, Brisbane. He had been admitted to practice on 16 December 1983 and by 1993 his practice largely involved work for the Queensland Colliery -- 2 of 22 -- Employees' Union and its members. Mr Bauer, who was a member of that union, contacted him on 18 February 1993. 4. Proceedings against Oaky Creek Coal Pty Ltd were commenced in the District Court in Brisbane on 3 February 1994. The defendant admitted liability on 25 May 1994. After the usual steps in the action had been taken, a settlement conference was arranged for 29 July 1996. The action was settled for the sum of $80,000 clear of the refund to the Board (in the sum of $51,750.04), but inclusive of any other refunds, together with costs. Some of Mr Bauer's friends suggested this was not enough. He consulted another solicitor, Mr Taylor. He was examined by Dr Joan Lawrence who expressed the opinion that he was suffering from a psychogenic pain disorder or chronic pain disorder, that the condition was chronic and stable and that he was unlikely to work again (ex. 13). 5. So in this action, Mr Bauer alleges that he has suffered damage and loss because the advice he received from Mr Brittan, and upon which he acted in settling the District Court action, was negligently given. The particulars of such negligence are numerous but the core of the allegations is found in the second particular:- "{b) failing to advise the plaintiff that he should have undergone a psychiatric examination when a solicitor in the position of the defendant, properly discharging his duties, would have done so." Other particulars include wrongful advice to settle, failure properly to use and explain counsel's written advice and failure to give proper effect to matters known to him. 6. While it is not uncommon for a solicitor to be found negligent in failing to commence proceedings in time (Johnson v. Perez (1989) 166 C.L.R. 351 2 -- 3 of 22 -- and Nikolaou v. Papasavas, Phillips & Co (1989) 166 C.L.R. 394), cases alleging negligence in respect of settlement of an action are less common. In my opinion, in such an action the following observations of Henderson J in Karpenko v. Paroran (1981) 117 D.L.R. (3d) 383, at 397 must be kept in mind:- "ln my view, an important element of public policy is involved. It is in the interests of public policy to discourage suits and encourage settlements. The vast majority of suits are settled. It is the almost universal practice among responsible members of the legal profession to pursue settlement until some circumstance or combination of circumstances leads them to conclude that a particular dispute can only be resolved by a trial. I say nothing of the suits which are settled by reason of sloth, or inexperience, or lack of stomach for the fight. They have nothing to do with this case. What is relevant and material to the public interest is that an industrious and competent practitioner should not be unduly inhibited in making a decision to settle a case by the apprehension that some judge, viewing the matter subsequently, with all the acuity of vision given by hindsight, and from the calm security of the Bench, may tell him he should have done otherwise. To the decision to settle a lawyer brings all his talents and experience both recollected and existing somewhere below the level of the conscious mind, all his knowledge of the law and its processes. Not least he brings to it his hard-earned knowledge that the trial of a lawsuit is costly, time-consuming and taxing for everyone involved and attended by a host of contingencies, foreseen and unforeseen. Upon all of this he must decide whether he should take what is available by way of settlement, or press on. I can think of few areas where the difficult question of what constitutes negligence, which gives rise to liability, and what constitutes at worst an error in judgment, which does not, is harder to answer. In my view it would be only in the case of some egregious error, to use the phrase adopted by my brother Kraver in Demarco, that negligence would be found." See also Campbell v Gibson and Gibson (1992) 8 S.R. (WA) 263. 7. Nonetheless, in every case a solicitor must bring to the task to which the retainer relates the exercise of that reasonable degree of care and skill 3 -- 4 of 22 -- possessed by an ordinary skilled solicitor (Hanf/ex Pty Ltd v. N.S. Hope & Associates [1990] 2 Qd R. 218). Dr Ross (Ethics in Law, 2 nd ed) discusses whether there should be a higher standard of care if a practitioner professes specialised skills (paras 10.5 and following). Without discussing the cases there referred to, it does not seem to me that this question raises any issues not covered by the general proposition I have referred. It depends upon the terms of the retainer between solicitor and client. 8. Here Mr Bauer consulted his union's solicitor about his work-related injuries. In one sense, this meant that Mr Brittan had an advantage over other solicitors who might have been retained. He had regular contact with union officials who could introduce him Mr Bauer's co-workers. I\ However, obtaining information from co-workers, not only about comparable levels of income, but also about the effect the alleged injury had on the plaintiff's capacity to work is part of the preparation of any employer's liability action. 9. This means that the information Mr Brittan obtained from Mr Sheehy, who worked with Mr Bauer, should have formed a significant part of the material he considered in preparing to negotiate a settlement. 10. Before referring to this material it is necessary to outline the medical treatment Mr Bauer received. • 3 July 1992 - attended Dr Foley - deep laceration to left cheek near border of nose was sutured. X rays and CT scan show no fractures. • 13 July 1992 - sutures removed - complaint of pain - referred to Dr Rabie, ear nose and throat surgeon. 4 -- 5 of 22 -- • 15 July 1992 - Dr Rabie postulates some nerve entrapment in scar tissue - treated conservatively. • 23 April 1993 - Dr Bauer is still complaining of pain so referred to Dr Baker, neurosurgeon who finds no sensory change in the distribution area of the infra orbital nerve on the left hand side. This is the region in which Mr Bauer is experiencing pain. • 11 June 1993 - Mr Bauer is seen by Dr Agar Wilson, pain management specialist. Over the past next six months the Doctor prescribes medication and performs three nerve blocks without providing more than short term relief. He diagnosed neuropathic pain of the intra-orbital branch of the trigeminal nerve related to a fractured maxilla. He referred Mr Bauer to Dr Djamshidi, faco-maxillary surgeon. • 24 February 1994 - Dr Djamshidi explored the left orbit and zygoma. He found left infra orbital nerve scarring and also managed to separate the nerve from the surrounding bony area. Subsequent reviews showed very little evidence of improvement. He referred Mr Bauer to Dr Denman, eye specialist. • 20 December 1994 - Dr Denman reported that he had been unable to examine Mr Bauer sufficiently to form an opinion. • 16 January 1995 - Mr Bauer was seen by Dr O'Callaghan, pain clinic consultant, Royal Brisbane Hospital. His relevant option for treatment was the pain management program at the Holy Spirit Hospital. 5 -- 6 of 22 -- I t j;,,1,~ • 30 May 1995 - Mr Bauer consulted Dr Bentivoglio, a neurosurgeon )/\ ,, • -3o~:995 - at St. Vincent's Clinic in Sydney. ~ μ / f • :J,:~ -1',The doctor presented Mr Bauer to the combined neurology/neurosurgery conference at St. Vincent's General Hospital. The opinion was that Mr Bauer had suffered an infra orbital nerve injury, that no further surgery was warranted and that he be treated medically. Dr Bentivoglio also recommended that Mr Bauer stop working night shifts. • January 1996 - Mr Bauer attended the Holy Spirit Hospital Pain Clinic. Dr Rice diagnosed pain disorder associated with psychological factors (previously encompassed by psychogenic pain disorder). He expressed the opinion that the condition was untreatable and that Mr Bauer should remain active. • February 1996 - Mr Bauer was seen by Dr Geraghty, ear nose and throat specialist, who could not suggest any treatment other than the medication he was taking. • 19 April 1996 - Mr Bauer was seen by Dr Cameron, neurologist, who diagnosed contusion to the trigeminal nerve and assessed a partial permanent disability amounting to around 5%. 11. Mr Brittan sought advice on the quantum of Mr Bauer's claim from Mr W.A. Martin of Counsel. Mr Martin's advice included a detailed analysis of the medical reports. He pointed to the apparent conflict about whether Mr Bauer had sustained any fracture to any bones. He noted that Dr Baker's testing found no sensory changes, although later examinations by Dr 6 -- 7 of 22 -- Bentivoglio and Dr Cameron found some sensory changes, but not the same precise ones. He referred to the fact that, although Mr Bauer's claim for workers' compensation had been reopened many times, he had effectively continued working until November 1995. 12. Mr Martin referred to Dr Rice's diagnosis of a psychogenic pain disorder and said: "That could be the nub of this matter in view of the totality of the medical reports. Obviously, Dr Rice considers that to be so. Some of the doctors have tacitly expressed reserved scepticism of a physical or organic basis for some of Querist's complaints." 13. He also noted that Dr Cameron had said that the injury produced minimal impairment and that Mr Bauer was capable of full-time employment although he should avoid heavy exertional type work. He said:- "Out of caution, I think Querist should consider being examined by a psychiatrist - say, Martin Nothling or Joan Lawrence, to determine the extent to which, if at all, there is a psychological or psychiatric component to the problem the Plaintiff relates. If he does not have a psychogenic pain disorder, even then, on the balance of medical evidence, he is only disabled to a fairly minor extent. Furthermore, he has demonstrated a most significant work capacity since this accident which is a contra-indication to any serious disability." 14. Mr Martin's opinion concluded:- "On the material presently available, I think Querist would be lucky to achieve an award of general damages in the sum of $20,000.00 but this may require review if a psychiatric examination is conducted. I am prepared to say at this stage, however, that Querist is going to be very hard pressed indeed to convince a Court that the most significant component of a claim for damages, i.e. past and future economic loss, has a significant part to play in Querist's claim. However, the matter may require review if a psychiatrist's report is obtained. 7 -- 8 of 22 -- If a Court takes the view that Querist has been and is able to continue coal mining activities since early times (as Querist in fact did) then the ultimate award will be disastrous for him. May I say that I think Querist's best interests are served if the matter can be settled and I note that the Defendant is interested in a settlement conference." 15. Mr Brittan had been told by Mr Bauer that he was thinking of leaving the coal-mining industry because of the pain he was suffering. However he thought this was an exaggeration. Dr Rice's report confirmed him in this view. The relevant parts of this report read:- "Pain: He complained of pain under his left orbit into his forehead and in his right lower chin. It was variable in duration, and was described as dull. It was made worse by sunshine, activity and being anxious. He was improved by lying down. Current Symptoms: He said he sleeps better with Tryptonal, he denied dreams or flashbacks. He said that when he thought of the incident he felt tense and his face ached. He said that he does not go out a great deal now because of activities and being outside makes his eyes ache. He feels "not too bad" in mood and overall feels better since he has stopped working. Relationships at home have also improved since he stopped work. Current Attitudes: Of work: He said he would rather be if he could. To going on a pension: He said "I'd be happy, so would my wife be". To life: He said "got a good life, the job, the wife, the kids, the money. Everything's going well except this pain." Premorbid Personality: He is a man of limited education, low psychological mindedness, and he has Alexithymia (no words for mood). [e.g. When asked what it felt like to lie down inside rather than go out he said "it just aches".] Progress: When challenged that there was nothing structurally wrong, and that it was a question of coping with the ongoing symptoms and working through them but that it appeared that he was not prepared to do so 8 -- 9 of 22 -- because he was happy being on the pension, his reply was "it just aches". At the Pain Clinic, he took part in the exercise programme which left him a little bit fitter but he complained that his face ached after the exercise. Despite his recognising that his pain was worse, he is, by his very nature, unable to link the increasing of symptoms with a psychological phenomenon. This therefore renders him inaccessible to psychological therapy. Diagnosis: DSM IV : Pain Disorder Associated with Psychological Factors. (Previously encompassed by Psychogenic Pain Disorder) Recommendations: 1. In view of his inaccessibility to treatment, his having worked for 35 years in manual and semi-skilled positions, his desire to move to his home in Rockhampton, his contentedness to be on the invalid pension - it would seem reasonable that the Board consider its role in maintaining his claim, and early finalisation of his claim is warranted. 2. He needs to remain as active as he can despite his symptoms and to focus on activity at all times. He has a house which is currently vacant, which he wishes to move to, and it would therefore make sense that he move forthwith so that his children can commence the school year from this new home rather than being disrupted during the year." 16. This report does not suggest there is any exaggeration of symptoms. The difficulty arises from "low psychological mindedness". In my opinion, it was at this point that things Mr Sheehy had said, which were recorded in Mr Brittan's file notes, became significant. The first relevant note is of a conversation on 18 July 1994. It says that the crew have had to cover for Mr Bauer, that is OK in the short term but can jeopardise his ability to earn income in the longer term. The note also refers to the seven day roster which Mr Bauer then worked. 9 -- 10 of 22 -- 17. Over the following 12 months there are notes and letters about the need for Mr Bauer to stop working night shifts. On 22 June 1995, Mr Sheehy advised that Mr Bauer was going onto day shift and would lose about $20,000 a year. On 6 September 1995, Mr Sheehy had a lengthy telephone conversation with Mr Alsop, a solicitor employed by Mr Brittan. This note reads (the "Bob" is Mr Brittan):- "He was calling on behalf of client. Lee is having some difficulty adjusting to working on the loaders even on day shift. He is using medication extensively in order to keep going. His condition is deteriorating. Kevin said that a number of the doctors reports refer to the further deterioration of the condition that the pain will spread across his forehead. I said that I thought the condition was reasonably stable and that there was no question that client could continue at work, however I took on board what Kevin was saying to me. Kevin said that if matter settles on the basis that client can continue to work and he in fact can't then he may lose out. He feels that while the company are being co- operative at present to find him.-. a position this co- operation may not last once .,~1:r/~ his common law claim is settled. I said that we would not have rushed into a settlement anyway and it may be appropriate to allow some time to see how Lee goes. I said that all the medical treatment had been exhausted. The only other option was Lee doing the pain management program. Kevin said that he did not think that client would have the intellectual capacity to cope with anything too sophisticated. I said that all he could do would be to give it a go and see if he could use any techniques which would help him. It would be up the Defendant to pay for such a program and I said I would discuss with Bob the option of asking the Defendant to make an advanced payment of $4,000.00 for client to do the pain management program. After all if he benefits from it the Defendant will ultimately benefit if he can continue in his employment. I will discuss this with Bob. Kevin said that he thought Lee would lose about $25,000.00 gross per year as a consequence of going onto day shift. He said that Lee was having difficulty concentrating at work. He also made the point that Lee is not a bright man, perhaps doesn't fully understand what's going on. He has the full support of the other men on shift. 10 -- 11 of 22 -- Kevin said he would confirm these things in a letter." 18. While Mr Sheehy is not a psychiatrist there is some similarity between his appreciation of Mr Bauer's capacity to cope with anything too sophisticated, and Dr Rice's description of "low psychological mindedness". "The hesitation he showed about the possible success of the pain management clinic was found to be justified. 19. So the question is whether, in the light of these notes on the file from a co- worker, should Mr Brittan have recommended that Mr Bauer undergo a psychiatric assessment? In answering this question I must be careful not to be influenced by Dr Lawrence's opinion, or by the thought that if this opinion had been available the settlement would never have occurred. Before answering the question, reference should be made to three earlier letters which passed between the parties. First, a letter from Mr Alsop to Mr Bauer dated 12 October 1995, which reads:- "We have received further material from the Workers' Compensation Board including a Clinical Card a copy of which we have enclosed, for your records. We note that you were prescribed Lithium by Dr. Foley and that this is commonly associated with psychiatric or depressive disorders. Dr. Foley's report indicates that he prescribed Lithium to you for pain relief. We note also that Dr. O'Callaghan mentions that you have been prescribed a anti-depressant medication for your condition. We advise that the psychological and/or emotional effects of your injuries are considered to be part of your pain and suffering, and therefore such symptoms are compensable to some degree. Could you please indicate what psychological and/or emotional symptoms you have suffered since the accident and how the injury has effected your sense of well being in these terms. We would also like to know specifically what treatment you have sought for such symptoms. Please indicate what anti-depressant medication you have sought for such symptoms. Please indicate what anti-depressant medication you have received, and whether you are still 11 -- 12 of 22 -- using such medication. We would also like to know if you have consulted any other Doctors or Specialists in relation to these types of symptoms and whether you are still affected by such symptoms. Depending on your further instructions, it maybe appropriate to have you referred to a Psychiatrist for the purpose of obtaining a medico-legal report. We therefore look forward to hearing from you." 20. Mr Bauer's reply dated 20 October 1995, which was written by his wife, reads:- "In reply to your letter dated on 12 October 1995. With my constant facial pain it has affect me a lot in Psychological as well as emotional. At times the pain is unbearable which stopped me from doing things like going out, doing activities with my children and cutting opal (which is my hobby). I lost interest of my work, because of my poor concentration, and these frustrates me. My transfer from 7 day roster to 5 day permanent which means we are facing financial difficulties with our commitments. My family suffer a great deal because of my accident. It worries me so much. I find it difficult to carry out every day tasks, on to get along with people. I felt hopeless. I have not seen any doctors or Specialists in relation to these symptoms. Dr Foley prescribed me these medication 1. Lithium 2. Epilim 3. Tegnetol 4. Endone 5. Panadeine forte 6. Trypfanol 7. Digesic At the moment, I am taking Tegnetol associated with tryptanol. I have not been to work for couple of weeks due to my severe facial pain." 21. Mr Alsop's reply was dated 30 October 1995, and reads:- "We refer to the above matter and note your comments in your letter of the 20 th instant. At this stage we do not consider that it is warranted nor that it would be cost effective to obtain a medical report in relation to any depressive symptoms you might have experienced. It would appear that you have suffered 12 -- 13 of 22 -- some psychological/emotional symptomology by virtue of the effect of your injuries on your working life and recreational activities,. which is only to be expected. Importantly you have not consulted any Doctors or Specialists specifically in relation to such symptoms and we therefore consider it more appropriate to categorise any depressive/emotional impact as part of your general pain and suffering. Please advise if you do not agree with our view." 22. Throughout the notes that are in file there is reference to Mr Bauer's duty to mitigate his damage. This arose early in discussion about possible surgery. It was discussed again by Mr Brittan when Mr Bauer called on him on 18 January 1996, apparently after he attended the pain clinic at the Holy Spirit Hospital. It is apparent from this that there was always a concern on Mr Brittan's part that Mr Bauer's injury was not serious enough to interfere significantly with his capacity to work. Yet he did not have Mr Bauer's word alone. There was the information he had received from Mr Sheehy. There was also the following opinion expressed by Dr Agar- Wilson, pain management specialist, in his report dated 25 November 1994:- "At the time of my last consultation I would consider Mr Bauer's impairment to have been in the order of 20% as based on the "Guide to the assessment of the degree of permanent impairment" as set down by the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees" 23. While this opinion was in contrast to the opinion Dr Cameron subsequently gave of a five per cent permanent partial disability, it did indicate a serious impairment and lent support to Mr Bauer's claim of a significant interference with his earning capacity. As the other reports indicated that the complaints of pain were in excess of what might be expected from the physical injury alone, some elaboration of Dr Rice's diagnosis, or an 13 -- 14 of 22 -- opinion from another psychiatrist, should have been recommended to Mr Bauer. The exercise of the reasonable degree of care and skill possessed by an ordinary skilled solicitor required such a recommendation. 24. Of course there had been the exchange of letters in October 1995, in which Mr Bauer had been asked about his psychological symptoms and, after describing them, had been told that a medical report about that was not required. If the matter were to be raised again following Dr Rice's report, it would need to be done carefully and clearly. One of the complications in this case arises because the initial retainer was made by telephone. Thereafter, all instructions were taken and advice was given, either by letter or telephone, with one exception. Having watched Mr Bauer give evidence and sit in court I found it very difficult to be certain he was really understanding what was happening and responding appropriately. His IQ is adequate and he answered questions without significant hesitation. As Dr Lawrence said, "there was an absence of the emotional or psychological responsiveness in his answers" (ex. 13). None of this would be apparent in letters written by his wife or in telephonic conversation. 25. However, in my opinion, if a client chooses to engage a solicitor by telephone and to deal with the solicitor by letter and telephone, the client must accept the limitations inherent in such means of communication. It is true that, on 19 May 1993, Mr Bauer is noted as saying he "would appreciate discussing the matter with you in person when he does have to come to Brisbane for a medical examination". However, that statement clearly accepts what seems to me to be correct, namely, that it is up to Mr 14 -- 15 of 22 -- Bauer to attend at Mr Brittan's office in Brisbane if he wishes to have the advantage of a face to face conference. 26. Mr Bauer's evidence in chief included (p. 23):- "When was the first time that you were ever told by anyone from Mr Brittan's o~ice how much you,f might get?-- On 26 July 1996, Mr Brittan rang up, yeah. And where were you when he rang?-- I was at home there at Tieri. And you can remember that conversation?-- Yeah. Tell us about it?-- Well Mr Brittan, on the 26 th rang up and said that Mr Martin has advised that we get 40 to 50 thousand and he was going to see - I had - had a meeting with the Company's solicitors on the 29 th and this was on the 26 th and we get 40 to 50 thousand, but if it went to court, we might only get 20 thousand or something. Did you make - sorry-----?-- At that time I also told him that I was still on compensation. When you heard him mention 40 to $50,000 did you say anything to him about that?-- Yeah, I said it's not very much, you know, yeah. And what did he say?-- He said, well if you took it to court or if you want more money, the Company will want you to see a Psychiatrist and he said to me, he said, but you wouldn't want that, would you and I said, no, but I thought that he meant that he didn't want me to see one. If in fact it had been suggested that you should go an see a Psychiatrist, what would you have done?-- I would have went, yeah. Now did Mr Brittan at any stage tell you how that 40 or $50,000 might be made up?-No. Was there any other part of the conversation that you had that you haven't told me me about?-- About the 20,000, could be only 20,000. Did he explain to you anything else about Mr Martin's advice?-- If we took it to Court we'd probably only - might get 20,000 or something, yeah. Did he make any suggestion to you that it might be too early to wrap it up and you needed to make some further inquiries? Do you remember him suggesting that you shouldn't go ahead with the settlement?-- No, no. Did he ever recommend that you should get - be seen by anybody else?-- No. Did he ever suggest to you that if you saw anybody else that you might get more money?-- No." 27. In cross examination he added:- 15 -- 16 of 22 -- "You see what I want to suggest to you is that you told Mr Brittan that you didn't want to see a psychiatrist?-- Not in that many words. He - the way he worded it I thought no, he didn't want me to see one so I didn't - but if he would have just said, "Lee you're - you're booked into go to a psychiatrist anywhere", I would have been there. So in other words if he'd told you you had to go to a psychiatrist-----?-- I would have----- ----- and pressed the point, you say you would have gone?-- I would have went." 28. Mr Brittan's diary note to the conversation on 26 July 1996 reads:- "Attending Lee Bauer 26/7/96 1. He rang in relation to proposed Conference. discussed with him counsels advices in the matter and said that if things go alright should try and get $40 to $50,000 - duty to mitigate etc - counsels advice $20,000, further Psychiatrist rpt no - he doesn't want to. Be by phone Monday - Open instructions -" 29. It is not a note which contains much detail. It certainly does nothing to contradict Mr Bauer's evidence that the issue of seeing a psychiatrist was raised in such a way as to suggest to him that he should say he did not want to see a psychiatrist. I am satisfied that that reflects the tone of the conversation. After all, Mr Martin did not make a strong recommendation in favour of such a step. It is not clear that he knew of Mr Sheehy's opinions and concerns. As I have indicated they constituted a significant piece of evidence on Mr Brittan's file, particularly the note of the conversation of 6 September 1995 quoted in para 16. Particularly, Mr Sheehy's comment, "that if matter settles on the basis that client can continue to work and he in fact can't then he may lose out", raises the central issue in this action. If Mr Sheehy were only an officious bystander this could have been ignored, but he was a co-worker, well aware of the limitations which Mr Bauer's pain placed upon his capacity to work. Mr 16 -- 17 of 22 -- Bauer had often told Mr Alsop and Mr Brittan that he had lost a significant part of his income because of facial pain. 30.1 am satisfied that Mr Brittan should have recommended to Mr Bauer that he undergo a psychiatric assessment, and that he should have told Mr Bauer the reasons for this, namely its bearing on his capacity to work and its effect on his damages. I am satisfied that if he had done so, Mr Bauer would have agreed to that course. I accept Dr Lawrence's opinion that if that examination had occurred in July 1996, Mr Bauer would have been diagnosed as suffering from a psychogenic pain disorder. If that were so the claim would not then have settled. 31. This means that Mr Bauer has lost the chance of suing his employer upon the basis that his injury had caused the development of a psychogenic pain disorder which meant he was unlikely to work again. 32. Mr Morgan, who appeared for Mr Bauer, prepared a quantum schedule. In cross examination, he took Mr Brittan through this schedule and received his agreement with many of the items on it. The contentious items are general damages for pain suffering and loss of amenities, future economic loss and gratuitous services. 33. One question needs to be resolved before these items can be considered, that is the date at which damages should be assessed. In Johnson v. Perez (1989) 166 C.L.R. 351, the majority of the High Court held that the proper date was at the time the cause of action arose. Another view was that it was at the date when Mr Bauer's action against Oaky Creek Coal Pty Ltd would have been heard. In respect of that latter date, if a psychiatrist's report had been sought in July 1996, it commonly takes up 17 -- 18 of 22 -- to three months for such a report to be available. A further three months would need to be allowed for the company to consider its position. The action would have been transferred to the Supreme Court, and should have been heard in August or September 1997. I shall assess damages as at July 1996. 34. Dealing first with general damages, it is clear that while Mr Bauer was working, he suffered considerable pain. However, when he is not exposed to that physical stress, it is not so clear that he has constant pain. Dr Lawrence's opinion in 1996 was that he should be weaned off the medication he was then using. His appearance is not of some one in constant pain. He has none of the joint pain so often seen. He sat impassively in court, with no grimaces or movements. His actual injury involved a laceration which was sutured. It is not clear that any bones were broken, although it seems probable that there was some bony damage. There is no scar and no noticeable distortion of his nose. Even if he exercises the residual capacity he has for light work, it is not likely that his pain and suffering will be severe. He has lost much of the enjoyment he had playing with his children. He cannot pursue his only hobby of gem-cutting. He was not a gregarious man. I would allow $35,000 for general damages, and interest on $15,000 for three years, an amount of $900. 35. In relation to Mr Bauer's need to receive services which are rendered gratuitously, there is no factual basis for making any allowance. Since the end of 1995 he has not been in the work force and it appears that he does 18 -- 19 of 22 -- various tasks around the home. He has no physical disabilities and should be able to pace himself to keep his pain to a minimum. 36. In July 1996, Mr Bauer could earn $934 nett per week and also receive the benefit of low cost housing to the value of $85. He was then aged 49 years. The full value of that loss to age 60 as at July 1996 would be $452,436. However, at around that time, redundancies were occurring at Oaky Creek. Mr Lambley, a union official, expressed the opinion that Mr Bauer would have been able to continue working as a miner. In 1996, there was a move away from open cut mining, in which Mr Bauer was employed, towards underground mining. Mr Bauer had previous underground mining experience, both at Blackwater and Oaky Creek. Nonetheless, it cannot be said that there are any certainties in the coal mining industry either in 1996 or in 2000. There must be some discounting to take account of that. 37.Also Mr Bauer presents with his own particular personality. He is likely to somatise emotional and psychological responses (Dr Lawrence's report, ex. 13, p. 7). Underground mining is a hazardous industry. The actual injury Mr Bauer suffered cannot be said to be other than minor, yet it has had major consequences because of his tendency to somatise responses. This would make it unlikely he would keep working as a miner to age 60. Not all of the events which might stimulate such a reaction would necessarily occur because of the employer's negligence. This also calls for some discounting. 38. However, the major factor calling for discounting is Mr Bauer's residual capacity to earn income. All the doctors accept that he is physically 19 -- 20 of 22 -- capable of working. Mr Salzman, whose psychological testing led him to diagnose a somatoform pain disorder with secondary depression which is masked, also said he is capable of working. Only Dr Lawrence holds the opinion that it is unlikely he will work again, while recognising that he has the physical capacity to work. All agree that heavy work is out, so that he cannot return to mining. He is ill equipped for retraining, and any work he obtains will be far less remunerative than coal mining. 39. Taking these factors into account, in my opinion the raw figure of $452,436 should be reduced by 40 per cent to $272,616. The full schedule of damages assessed as at July 1996 reads: General Damages ................................................. $ 35,000.00 Interest to July 1996 ............................................... $ 900.00 Special Damages .................................................... $ 18,769.32 Interest on $200 for 3 years at 5% .......................... $ 30.00 Fox v. Wood ............................................................ $ 7,802.70 Past economic loss ................................................. $ 48,087.00 Interest on $21,770 at 5% for 3 years ..................... $ 3,265.50 Superannuation on past loss .................................. $ 2,885.00 Future economic loss .............................................. $272,616.00 . 0V" Superannuat1on,0rfuture loss ................................. $ 16,357.00 Future medical/pharmaceutical ............................... $ 3,500.00 $409,212.52 less total refunds to Workcover and amount of of settlement 20 $132,966.56 $276,245.96 -- 21 of 22 -- 40. The plaintiff claims interest on this sum from July 1996 to March 2000 at the rate of 10% to 1 July 1998 and at 9% thereafter. This should be allowed on the basis that $276, 245.96 is the amount Mr Bauer should have recovered in July 1996. All the interest-allowed in the assessment has been allowed to July 1996. I shall allow interest from July 1996 as follows:- to 1 July 1998 from 1 July 1998 to judgment $ 52,763.00 $ 42,266.00 $ 95,029.00 41. There will be judgment for the plaintiff against the defendant for $371,274.96. 21 -- 22 of 22 --