Alderson v Schmidt [1997] QSC 128

~~& '----Stat~ tv/ox: ~-/ I'f/?'>I7/ . . ;5,:: 'f'jf'::P Reporting Bureau 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.) REVISED COPIES ISSUED .... State Reporting Bureau Date ;).;;2 I 7 I c:; 7 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No No 96 of 1992 ADRIAN KEITH ALDERSON Plaintiff and MAXWELL GEORGE SCHMIDT Respondent TOWNSVILLE .. DATE 18/07/97 JUDGMENT ~l t dgment is to be copied for th~ ..purpose""",.."',....> ',n" JU bp. 'asold or used fOl only. It is not to OJ I permission. 1 4th Floor, The Law Courts, George Street, Brisbane Q. 4000 Telephone: (07) 32474362. Facsimile: (07) 32475532 -- 1 of 17 -- 180697 D.5 T48/JPP M/T TSVSC4277 (Cullinane J) HIS HONOUR: The plaintiff was injured on 31 July 1989 when, at about 7.50 a.m. on that day, the vehicle driven by him which was travelling in a northerly direction along Anne Street, Aitkenvale, came into collision with the defendant's vehicle, which was being driven in an easterly direction on Alfred Street, Aitkenvale. The plaintiff was driving a Ford Capri sedan and the defendant a Toyota utility motor vehicle. I had evidence from both the plaintiff and the defendant on this issue, and there are photographs showing the intersection. As will be seen, there was a stop sign facing the defendant, and as the plaintiff proceeded in a northerly direction around somewhat of a curve, there was on the left of the intersection as he approached it a brick wall. The plaintiff was on the defendant's right. I infer from the evidence which the plaintiff has given that he did not see the defendant prior to the accident, and it would seem that the defendant did not see the plaintiff until 10 a very late stage. The defendant did not yield right of way, ~ nor did he stop. I am satisfied, indeed he said so himself in evidence here, that he entered upon the intersection at a fairly slow rate of speed. The primary obligation to yield right of way rested upon the defendant, who failed to do so, and of course he also failed to stop. So far as the plaintiff is concerned, I think it is a reasonable inference that he too, failed to keep a proper lookout. I recognise the difficulties associated with his view as he approached the intersection, but it seems to me ~ 2 JUDGMENT -- 2 of 17 -- 180697 D.5 T48/JPp MIT TSVSC4277 (Cullinane J) that had he kept a proper lookout, he would have seen the defendant's vehicle approaching the intersection, and would have seen that it did not stop at the sign, but instead was entering slowly upon the intersection. In these circumstances, I think that a finding of contributory negligence should be made against him. I apportion liability as between the plaintiff and the defendant as to 85 per cent to the defendant and 15 per cent to the plaintiff. 10 The plaintiff was born on 5 December 1958. His work history appears in Exhibit 1. He holds a degree from James Cook University in science, having majored in marine biology and zoology. He was on his way to work at the time he was injured. He was at the time, and had been for some seven years, an employee of the Department of Social Security. He was an administrative services officer level 5, and at the time was managing the unemployment benefits, sickness and special benefits section based in Townsville, with the ~ responsibility of supervising staff of 30 to 40 persons. I will have something to say about some aspects of the plaintiff's evidence a little later which give me some cause to be hesitant about accepting everything that he says. However, I accept his description of the accident and of what he says occurred in it. He says that following the accident he felt stiff and sore allover, and I am satisfied that he attended his general practitioner a little later that day, where he complained of low back pain. He attended on the ~ 3 JUDGMENT -- 3 of 17 -- 180697 D.S T48/JPp MIT TSVSC4277 (Cullinane J) following day and the day after that. He was given a certificate for about a week or so. The relevant documents are attached to Exhibit 1. He received some treatment from his general practitioner in the nature of ultrasound or similar type of treatment. The plaintiff had to attend a course in Brisbane, and went there, where he was for some weeks. He says, and I accept, that he had ongoing problems with his lower back from a time very shortly after the accident, and during the time he was in 10 Brisbane. It appears that during the third week he was in Brisbane, one day whilst he was sitting, he became aware of an increase in soreness and stiffness in his lower spine, and towards the end of the day when he got up after having been seated, he noted a significant increase in his pain level. He carne horne to Townsville travelling in a Hercules aircraft. He consulted Dr Crawshaw. It would seem from the evidence that his first real complaint to him thereafter of back pain was some time in early October, when he had trouble sitting. He, at this time, took time off work. He was referred to Dr Monro and was taking painkilling analgesia in order to get through a work day. He was also referred early in 1990 to Dr Lewis, an orthopaedic surgeon, and then to Dr Rossato, a neurosurgeon. The plaintiff's work history following the accident is set out in Exhibit 1 and also in other evidence and I do not repeat it here. He returned to work on occasions and also was at one time placed on a work from horne trial. 4 JUDGMENT -- 4 of 17 -- 180797 D.S T49/DLDM/T TSVSC4277 (Cullinane J) He attended rehabilitation and subsequently went to the Belmont Clinic for rehabilitation purposes. In June 1990, Dr Rossato performed a laminectomy and a discectomy and there was some improvement in the plaintiff's symptoms following this, but the symptoms returned and he continued to suffer from increasing pain in the lower back with symptoms in both legs. He was referred, at the end of 1991, to Dr Low, orthopaedic surgeon, and Dr Low performed a lumbar fusion in early February 1992. His convalescence following this was quite extensive. For some time he thought that he had some improvement in his symptoms but these again returned. He underwent a further procedure in the latter part of 1992 for the removal of plates which had been inserted in an earlier procedure., He has, since that time, I think it is fair to say, complained of significant pain in the lower spine and in the legs with other symptoms as well. He complained from about the end of 1989 of symptoms in the thoracic spine and he has made other complaints, which are referred to in some of the medical reports. However, the primary complaints have been those in the lower back and the legs. As a result of these, he says that he is unable to sit for other than relatively short periods and if he stands for any significant period, this also causes him significant pain. These problems have prevented him performing his work and it is his case that he has been excluded from the workforce S JUDGMENT 10 -- 5 of 17 -- 180797 D.S T49/DLD M/T TSVSC4277 (Cullinane J) wholly. He remains a member of the Commonwealth Public Service but his income has been in the form of payments from Comcare for some significant time now. There is evidence of an attempted suicide in November 1993 as a result of the problems which beset him as a result of his inability to work, and also because of difficulties in his domestic situation. There has been a body of evidence from medical witnesses 10 before me with differing views expressed. The issue which I have to determine is the extent to which the plaintiff is disabled and the extent to which that relates to the accident that I am concerned with. There is not, I think, any real doubt but that the plaintiff has significant spinal disability. I do not propose to canvass all of the medical evidence which includes evidence from neurosurgeons and neurophysicians as well as orthopaedic surgeons and specialists in rehabilitative medicine. Some of ~ these were called on behalf of the plaintiff and some on behalf of the defendant. It is, I think, sufficient if I summarise the findings that I make. Before doing so, I should mention that X-rays taken in May 1990 revealed a central disc prolapse at LS-S1. 6 JUDGMENT -- 6 of 17 -- 180797 D.S TSO/LJB MIT TSVSC4277 (Cullinane J) I am satisfied that the plaintiff had, at the time of the accident, a spine which was already showing signs of degenerative change and that the disc, to which I have referred, was already partly degenerate. I am also satisfied that he sustained an injury to the disc in the motor vehicle accident and in this regard I accept the evidence of Dr Lewis, which I think is also supported by Dr Low, both of them orthopaedic surgeons, as to the relationship between the accident and what was subsequently seen on MRI. 10 That is I accept that in the accident the plaintiff suffered some damage to the disc which progressed to prolapse probably some short time afterwards whilst he was in Brisbane and in the ordinary course of his day-to-day life. In these circumstances I think that it is appropriate to ascribe the onset of the symptoms and the conditions from which he presently suffers in the lower spine, to the motor vehicle accident. I also find that the plaintiff was vulnerable to the 20 development of such problems in any event, having regard to the degeneration of his spine. I am not satisfied that the complaints which the plaintiff makes about his thoracic spine are the result of the accident. It seems to me the evidence of Dr Monro precludes such a finding. The plaintiff, I am satisfied, had not prior to the accident had any symptoms in his lower spine, although he had earlier had some problems in his cervical spine. He had had treatment -- 7 of 17 -- 180797 D.S TSO/LJB M/T TSVSC4277 (Cullinane J) for stress prior to the accident and had also had Pethidine injections for some abdominal problems. So far as the plaintiff's legs are concerned, his symptoms have been the subject of some dispute between the doctors. I accept Dr Callanan's evidence that there is at least a component, although relatively small, of the symptoms in his legs which are sympathetically determined and am inclined also, to accept the evidence of Dr Lewis, that the symptoms of which he complains in his legs are probably a legacy of the 10 laminectomy which the fusion did not overcome. The plaintiff is described in some of the evidence as being someone who has had unsuccessful back surgery and even Dr Reid who generally expressed the view that the plaintiff had little wrong with him, acknowledged that given the ongo~ng complaints he makes and the unsuccessful surgery he had, he should be regarded as having a disability of the back. Whilst the plaintiff does not have any designable psychiatric ~ problem, he has, according to Dr Richards, some adverse personality change which he describes as chronic anxiety depression reactive to or secondary to his post-traumatic pain and disability. However, any limitations on the plaintiff's capacity to work are entirely organically determined. When the plaintiff first gave evidence in this Court, he presented in a way which suggested gross limitations upon his movements. He walked with very short steps holding himself rigid. His method of movement could be described as a shuffle ~ JUDGMENT -- 8 of 17 -- 180797 D.S TSO/LJB MIT TSVSC4277 (Cullinane J) and I saw videos which were tendered in which his movements were a great deal freer than what they were when he appeared in Court. In one of the videos, it can be seen that the plaintiff is limping, and in others, he adopts a method of movement which is consistent with his evidence as to what he had been told to do to maintain his spine in a fairly rigid state, so as to avoid pain. Otherwise his movements appeared free. Some of the medical witnesses were asked to comment on the video that they were shown which is I think a combination of at least relevant parts of the two videos which had earlier been tendered, and they pointed out the features that I have just referred to. None was prepared to change the opinion earlier expressed as a result of what was on the video. Nonetheless, it seems to me that the inference that the plaintiff, at least when he was first in this Court, exaggerated the limitations upon his movements is unavoidable. The other aspect of the evidence which I wish to refer to is that the plaintiff, when he saw Dr Richards, referred to an incapacity to have sexual intercourse because of pain. It is true he referred to this in the context of a relationship with his wife. However, Dr Richards made it clear that it was the act itself which the plaintiff was complaining was painful and which affected his activity in that regard. It emerged in evidence that the plaintiff had maintained a sexual 10 relationship with another woman for some years. An allegation which had appeared in the statement of claim relating to this ~ JUDGMENT -- 9 of 17 -- 180797 D.S TSO/LJB MIT TSVSC4277 (Cullinane J) general area, although again expressed in relation to his relationship with his wife was withdrawn before the commencement of evidence. Again this is an area where I am satisfied the plaintiff has not been frank in his discussions with Dr Richards. There is, I should say, some substantial evidence that supports the finding that the plaintiff, prior to the accident, was an active, fit man who engaged in sporting activities and who performed his work well. This comes from two former workmates in positions of authority, one of whom is now retired. She had been the plaintiff's superior for some time. And there is also evidence from the same source and also from other persons that the plaintiff's activities, both at work and elsewhere appeared to be significantly adversely affected and 'restricted after the accident. I had evidence from a man who performed some work on the plaintiff's car and who provides support for the complaints which the plaintiff makes about his restricted movements and his reduced capacities. This evidence I have found valuable, because of the reservations that I have had about accepting the plaintiff's evidence in view of the matters that I have earlier referred to. I think the evidence justifies the conclusion that the plaintiff is not now capable of performing his work as a 10 member of the Department of Social Security and that he is ~ JUDGMENT -- 10 of 17 -- 180797 T51-52/JAB M/T TSVSC4277 (Cullinane J) unlikely to be able to return to this work. On the other hand, I am not prepared to conclude that he is wholly unemployable. He has performed some work with computers which were provided by Comcare. This work generated income to him but on the evidence I have, the income did not exceed the expenses associated with it. Whilst I recognise that care has to be taken in not overestimating the extent to which any residual capacity might be productive of income, I think that the plaintiff has a 10 relatively modest residual earning capacity which could only be exercised, probably from his own home and at his own pace and on his own terms. Nonetheless, some allowance does have to be made for it. Discounts have to be applied to a number of heads of damage for the vulnerability which the plaintiff had to the development of such a condition as a result of the degenerative condition of the disc which subsequently prolapsed. It does not, of course, follow that the same course of events would have been followed, in particular, to the extent to which the problems in the plaintiff's legs are probably the result of the initial surgery. The matter should not be approached on the basis that this would necessarily have occurred in the ordinary course of events. I assess the plaintiff's spinal disability as the most serious of his problems, and the one which imposes the greatest restrictions upon him. II , ( JUDGMENT -- 11 of 17 -- 180797 T51-52/JAB M/T TSVSC4277 (Cullinane J) I now turn to the assessment of the various heads of damage. So far as general damages are concerned, I am satisfied the plaintiff has a very great restriction upon his activities generally. He does, however, undertake quite significant physical exercise at a gymnasium under supervision and in accordance with a program which was designed for him and which, on the evidence as it has been explained to me, imposes little strain upon his spine. He also rides a bicycle significant distances. These activities are undertaken to maintain a reasonable level of fitness in the light of the disabilities that he suffers from. Making due allowance for these matters, however, it is clear that the plaintiff's life has been substantially disrupted, and that he feels this keenly. I allow in respect of general damages the sum of $60,000. Of this, I ascribe some $25,000 to the past. I allow interest at the rate of two per cent on $25,000 for eight years producing 10 a figure of $4,000. ~ So far as past economic loss is concerned, there is a claim for $118,762. This claim, and the claim for future economic loss, are based upon certain assumptions as to the plaintiff's progress within the public service, and so far as future economic loss is concerned, the amount contended for was based upon an assumed retirement age of 60. I have figures showing what the claims would be on other assumptions as to progression within the department and other retirement ages. ~ (2 JUDGMENT 30 -- 12 of 17 -- 180797 T51-52/JAB MIT TSVSC4277 (Cullinane J) I think it is likely the plaintiff would have remained in the employment he was in up until the present so that there is little call for substantial discounts. I think, however, that some discounting should be applied for the two reasons that I have already referred to as well as the usual contingencies. I allow in respect of past economic loss the sum of $110,000. The plaintiff has received by way of income substitution payments a net figure of $102,249.54. I allow interest on the difference, namely, $7,750, at five per cent for eight years 10 producing a figure of $3,100. There is a very substantial claim for future economic loss, and also a substantial claim for loss of future retirement benefits. So far as the latter is concerned, the plaintiff, it is clear, whatever happens, will be entitled to some retirement benefits, whether in the form of a lump sum payment in the event of redundancy, or in the form of a pension in the event of termination for incapacity. The plaintiff currently remains a member of the department, and whilst it is unlikely, ~ it is not inconceivable that he could remain in that position even though not capable of working until he reached the earliest stage at which he could obtain his superannuation benefits. As I have said, discounts have to be applied for various reasons. A relatively modest discount has to be applied, it seems to me, for a residual earning capacity, and a somewhat larger discount has to be applied for the vulnerability which JUDGMENT -- 13 of 17 -- 180797 T51-52/JAB M/T TSVSC4277 (Cullinane J) the plaintiff had to the development of a spinal condition in the ordinary course of events. Doing the best I can, I allow in respect of future economic loss, and a loss of retirement benefits, the sum of $350,000. There are various claims for special damages. I allow the claim in respect to Dr Watson's fees for $1,234. There is a substantial claim for Comcare medical expenses in the sum of $68,400. Of this, almost $20,000 relates to computer 10 equipment provided by Comcare. I have difficulty in seeing how this can be recovered. No doubt, it may be the case that some of this equipment is now less valuable than it was, and that it does not represent full value in any case to the plaintiff who occasionally uses it. However, I have no evidence as to just what its value might be if disposed of, and in these circumstances, I do not see how I can ascribe any particular sum to this claim for special damage. There are other claims of about $1,867 in dispute. These ~ relate to home help provided by Comcare, however, I intend to include these in the amount which I will award as I am satisfied they were reasonably incurred on his behalf. There will therefore be allowed in respect of the medical expenses which are described as the Comcare medical expenses the sum of $49,104. I allow the Comcare rehabilitation expenses of $852 and the Comcare travel and airfare expenses of $1,192.60. JUDGMENT 30 -- 14 of 17 -- 180797 T51-52/JAB M/T TSVSC4277 (Cullinane J) The evidence supports an entitlement to a claim of personal travel expenses to and from treatment and from the gymnasium in the sum of $4,224. The other two items claimed relate to computer expenses incurred by the plaintiff which, for the reasons I have already mentioned, I do not think should be recoverable against the defendant. There is a claim for the Fox and Wood component of the Comcare 10 compensation payments. On the undertaking which has been given by counsel for the plaintiff, I will allow this sum in the amount of $26,528.79. There is a claim for past Griffiths and Kerkemeyer in the sum of $30,000, although it was suggested that an allowance of about $20,000 would be appropriate. No doubt the plaintiff did require considerable care and assistance in the periods following the various surgical procedures, and I am also satisfied that he has had to have assistance with various ~ matters and that there are tasks which have fallen to his wife and continue to do so. I do not think that the figure of $20,000 requires heavy discount. Such a claim can only be approached very broadly, and I think that an appropriate figure would be $15,000. I allow interest at the rate of two per cent per annum for eight years producing an amount of $2,400. JUDGMENT -- 15 of 17 -- 180797 T51-52/JAB M/T TSVSC4277 (Cullinane J) So far as the future is concerned, again the evidence, I think, does justify a finding that there are various tasks which the plaintiff cannot perform and which are performed by his wife or would have to be performed by somebody else. These are dealt with in Miss Purse's report, and to some extent, in Exhibit 1 and in the evidence of the plaintiff's wife. I again think the matter can only be approached on a broad basis, and I allow in respect of future Griffiths and Kerkemeyer, the sum of $10,000. There are various claims for future costs. These include medication, future gym membership, future physiotherapy costs, future medical and specialist consultations, future psychotherapy, the cost of travelling in his vehicle to various places, and future gardening expenses. There is no doubt that he will incur expenditure in relation 10 to most, if not all, of these. There is little in the way of ~ evidence on which to support a finding in any specific sum. I think that it can be accepted that to the extent that his current condition is permanent as I have found it to be, his present needs in relation to physiotherapy, consultations, medication and the like will continue. The total claim is around about $40,000. I think that, doing the best I can on the material, an allowance of a sum of $20,000 for these future costs looked at globally is a not unreasonable allowance. JUDGMENT 30 -- 16 of 17 -- 180797 T52/JAB M/T TSVSC4277-4278/JAB (Cullinane J) The total of these sums is $657,635.39. Eight-five per cent of this is $558,990.04. There will be judgment for the plaintiff against the defendant in the sum of $558,990.04 with costs to be taxed. 1"e (1 JUDGMENT -- 17 of 17 --