Cocup v John Holland Constructions Pty Ltd [1996] QSC 144

BUREAU cOPY144 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.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J STEPHEN MARK COCUP and JOHN HOLLAND CONSTRUCTIONS PTY LTD MACKAY .. DATE 24/07 /96 JUDGMENT This only. 1 ..--·-:----------REV1$ED COP!ES ISSUED State Report:ng BLlfeau Date-'<-'&/ 7; 7cf Plaintiff Defendant -- 1 of 15 -- 240796 (Demack J) HIS HONOUR: Mr Cocup was born on 12 May 1956. He left school at the age of 14 years and has followed various activities in the construction industry. On 27 October 1982 he was employed by the defendant in the construction of the Dumbleton Weir. On that day, the construction had reached the stage where the wall of the weir was being constructed and had reached a height of some metres above the bed of the river. With other workmen, Mr Cocup was involved in placing a vibrating screed against the weir wall so that a pour of concrete could take place. He was holding on to a catch rope which was fastened to rope handles at each end of the vibrating screed. He had previously complained that the rope handles were worn and damaged. As he was moving the screed into place, one of those handles broke and the catch rope became free. He then fell backwards down the convex slope of the front of the weir wall. The defendant's documents confirm that there was such an incident. Exhibit 11 records "Rope on vibrating screed broke, man fell on to rock." It seems to me that this confirms the plaintiff's evidence in its essentials. Clearly if the worn rope handles on the screed were used to support the catch rope, which a workman was using partly to support himself in a very exposed position on the face of the weir wall, then it was foreseeable that quite significant injury would occur. I 10 20 30 40 am satisfied that the rope handle broke because it was damaged 50 and had deteriorated but in the failure to maintain that piece of equipment properly, the defendant was guilty of negligence. There was no possibility of any plea of contributory negligence in ·the circumstances and none was raised. 2 JUDGMENT 60 -- 2 of 15 -- 240796 (Demack J) The description Mr Cocup gave of his fall is important to the medical evidence that I will consider in a moment. He said first of all, uI hit the concrete edge, but I couldn't stop myself going backwards. I tried to put my hands out but by that time the edge of the concrete had run out and I just slewed straight down into the rocks and hit and ran into the anchor pin." After some further questions he said, uwhen I hit the anchor pin I landed on the left-hand side, hit the anchor pin and slewed around to the right of the pin." The pin was a piece of reinforcement about two inches round that was drilled into the rock. It is obviously a very fixed and very solid projection into which to fall. What is important in the light of the subsequent medical opinion, is his evidence that he slewed around, that is twisted around, when he hit the pin. I have no reason to disbelieve him on that description because obviously it was a very frightening incident, which although it occurred a long time ago, is likely to be indelibly imprinted in his mind. He was taken later in the day to the Base Hospital after he had supervised the completion of the pour of concrete. The notes that were made at the time and which are part of the - report that the Mackay Base Hospital provided on 8 December 1988, record, uHe stated that a heavy weight had fallen on his buttock at work. He complained of pain over the left buttock and in the middle of his back on movement." In the light of the description of the incident contained in Exhibit 11, which is the defendant's document, I am satisfied that there is some misunderstanding about a heavy weight falling on his buttock. 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 15 -- 240796 (Demack J) It seems to me the person taking the notes must have misunderstood what was being described and that in fact he had fallen on his buttock at work. Again, what is significant is a complaint of pain in the middle of the back on movement. On examination, he was tender over the buttock, was able to walk and bear weight. A diagnosis of muscular bruising was made and he was treated with analgesics. He was given five days workers' compensation. Mr Cocup resumed work for a time with the defendant but then there was some dispute over one member of his gang and his work was terminated. He then continued over the next few years with work in generally the construction industry. He says that he suffered some pain and discomfort during that time. Specifically, he attended the Mackay Base Hospital on 24 May 1983. There he stated that since the accident in 1982, he had been off work and had difficulty bending. He was admitted to hospital for three days in May suffering from back pain. X-rays taken at that time were normal. He was treated with bed rest and phy~iotherapy. The pain settled and he was discharged. Thereafter his work continued, but being in the construction industry, the work was not continuous. He was able to work for a period and then have a period of rest so that generally his pattern of life was much the same as it had been before his injury on 27 October 1982. He next presented at the Mackay Hospital on 23 April 1987 stating that he had suffered from an·intermittent sore back since his accident. He had 10 20 30 40 50 been attending a chiropractor for three months and had pain in 60 4 JUDGMENT -- 4 of 15 -- 240796 (Demack J) the left hip, radiating to the left lateral toes. He complained of numbness in the left lateral toes. On examination, he had no neurological deficit. He had slightly reduced straight leg raising on the left side and pain in the left hip, which increased on foot dorsi flexion. He was tender over the sciatic nerve in the hip. X-rays were reported as normal. Hips, lumbo-sacral spine disc space is normal. No bony disease. He was treated with NSAIDS and physiotherapy. He was reviewed in April 1987 and in May and June 1987 and again in April and September 1988. He says that during this time he suffered severe pain and that would seem to be correct. He was admitted on 12 September for investigation. He was tender over the left buttock, had reduced straight leg raising. The X-rays showed L5/Sl spondylolisthesis and loss of lumbar lordosis. There was decrease sensation to fine touch over the S2 dermatome. He was treated with skin traction NSAIDS and muscle relaxants. A myelogram performed on 20 September showed mild disc protrusion at L4/5 with a very large disc lesion over the L5/Sl level with almost complete obstruction. The left Sl nerve root was obliterated completely and the left LS nerve root was swollen and somewhat flattened. He was again admitted from 8 November to 21 November 1988. Doctor Allan Cook performed a decompression laminectomy to LS and a dissectomy to L5/Sl and fusion of L5/Sl was performed all on 10 November. The issue in the trial is whether the incident on 27 October 1982 set in train the events which led 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 15 -- 240796 (Demack J) to the very large prolapse that was found on surgery on 10 November 1988. Doctor Cook says there is a connection. Doctor Martin says there is no connection. Doctor Lewis, while appearing to accept generally the kind of theories that Doctor Cook expressed, said it was not possible to say whether there was a connection or there was not. I do not propose to refer at length to the evidence of Doctor Cook but simply to point out very broadly the way in which I understood his thesis. He spoke of the onset of disc prolapses. He described the difference between an acute onset and a chronic onset. In the chronic onset, the wall of the disc is damaged to some degree by trauma and the weakened part of the disc wall gradually bulges, so that a prolapse can occur. That theory seemed to me to be accepted also by Doctor Lewis, although it did not seem to be accepted by Doctor Martin. Doctor Cook said that the kind of incident that can produce that sort of damage to the wall of the disc was either through a twisting rotation type of injury or by a compression to the disc. Where there is lifting with twisting, the two mechanisms may be combined. Consequently, it was important to know if there was some twisting of Mr Cocup's spine in the incident on 27 October 1982. Doctor Cook who had treated Mr Cocup in 1987 and 1988 understood at that time, that there had been a twisting or slewing of Mr Cocup's body and as I have said, I accept Mr Cocup's evidence that this is so. Consequently, ·Doctor Cook took the view that the fall that involved twisting, caused damage to the wall of the disc, 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 15 -- 240796 (Demack J) which set in train the slow deterioration of that disc until a prolapse occurred. Doctor Martin on the other hand spoke of degeneration as a natural occurrence and expressed the view that only degenerate disc prolapse. In the course of cross-examination, Doctor Cook rejected the idea that the disc at the LS/81 on Mr Cocup's spine was in fact degenerate. He said in answer to a question about this, "No, he had a huge prolapse." In other words, Doctor Cook clearly distinguished between the kind of degeneration which occurs over a period of time in the ordinary course of life and what he saw when he performed the dissectomy. He described his understanding of the degenerating processes that occur through normal aging and through the daily activities of life and said that what he saw on surgery in the back of a man who was then only 26 years old, was not consistent with natural degeneration. Doctor Martin said it was all consistent with natural degeneration and did not allow any possibility that the incident in October 1982 was a cause. I accept the evidence of Doctor Cook. His general thesis does not cause any surprise to someone who hears many such case~. It does in itself, sound consistent and coherent. There is difficulty in accepting the idea that there is some kind of condition that is called simply natural degeneration, when that condition is said to occur so rapidly in one who is relatively young. Rather Doctor Cook's view that natural degeneration is something which takes place over a much longer 10 20 30 40 50 part of a life span, seems to accord more with common so 7 JUDGMENT -- 7 of 15 -- 240796 (Demack J) observation. So, I accept Doctor Cook's opinion that there is this direct connection between the injury sustain on 27 October 1982 and the consequential damage to the LS/81 disc, which was detected in the myelogram on 20 October 1988 and corrected at surgery on 10 November 1988. Following that surgery, Mr Cocup has not had a complete recovery. There was considerable debate also about whether the things that Doctor Cook to achieve some kind of fusion were adequate. Certainly it appears there is still some movement in the spine at the LS/Sl level. However, I was very impressed with the evidence of Doctor O'Callaghan who pointed to the fact that there was probably damage to the sciatic nerve before surgery was performed and this would explain the persisting pain and loss of sensation down the left leg and indeed across the left scrotum of which Mr Cocup still complains. Doctor O'Callaghan says that this kind of injury cannot be treated because the nerve is permanently damaged. It means that whenever the nerve is stretched, which can occur in walking up steps, there will be some pain and discomfort. There is considerable debate among the professionals who have examined Mr Cocup as to his residual capacity. To some degree, this was resolved by a video which was taken of him, 10 20 30 40 when he went down to Brisbane to see Doctor Martin. The video ~ of his movements on the day that he arrived in Brisbane to see Doctor Martin, shows him walking down Wickham Terrace and down what is known as Jacobs Ladder and along Ann Street and then back over that same route. He seems to move with reasonable ease up the long flight of steps and indeed down the long so 8 JUDGMENT -- 8 of 15 -- 240796 (Demack J) flight of steps. There is no obvious sign of any catching of his leg or any response to pain because the sciatic nerve was being stretched. The following day, with two women he attended Drearnworld and rode on a number of the rides, which Mr Lott tested out to determine the forces that were involved and the impact they would have on the human body. I accept that Doctor O'Callaghan expressed the view that because a person would be strapped in, there would be little likelihood of pressure on the spine. However, that view seems to me to be one which is not aided by the practical observation that Mr Lott carried out. It seems to me that there would be considerable pressure on the parts of Mr Cocup's spine 1 which when moved, produce pain. Consequently, I formed the view that in the light of that exertion to Dreamworld, he had been greatly exaggerating the symptoms which he presently has. This opinion was also reinforced by the claim that he makes of being unable to perform most d.omestic tasks. He had in 1992, told an occupational therapist, Lisa Holly, that he was able to take care of himself. However, for the purpose of the action, he made a substantial claim for services gratuitously rendered to him by three women. The last of these was called to give evidence and was a very unimpressive witness. She certainly was most vocal, but it did not seem to me that• she was particularly reliable witness. I found it extraordinary that she should claim still to be caring for some of Mr Cocup's·physical requirements, even though her relationship 10 20 30 40 50 with him had long ceased, even though he was living with a so 9 JUDGMENT -- 9 of 15 -- 240796 (Demack J) group of men and might, as she said, have formed a new relationship with some other woman, something that she would not inquire into. It seemed to me that that kind of evidence stretched ones ability to believe it beyond a reasonable point. Consequently, I accept the evidence of Mr Lott about the residual capacity that Mr Cocup has in preference to that of Miss Byrne. The evidence produce by Mr Lott shows that there are occupations in respect of which there are job vacancies, both in Bundaberg and Mackay, which should be within the capacity of Mr Cocup to perform. One of the things that Mr Lott did not know, .was the fact that Mr Cocup, in his quantum statement disclosed a conviction for dishonesty when he was only about 17 in which he was required to serve some months imprisonment. Also, he had two convictions for driving whilst under the influence in 1980 and 1984, both of which resulted in him having to serve terms of imprisonment. No other convictions of that offence were disclosed, but they do show both something of his personality and of his difficulties in maintaining employment. Particularly in the sort of work that he did, having a driving licence and being able to move around to seek work is fairly basic. If that licence is taken away because of drink driving offences, then the capacity to earn is significantly affected. This is a disability he had before he suffered the injury in 1982. Consequently, although I am satisfied he is fit to carry out work as a console operator or to work as a shop attendant in a hardware store or to perform some role in a hotel, his disabilities arising from drink 10 20 30 40 50 driving and personality will impact upon that employment. so 10 JUDGMENT -- 10 of 15 -- 240796 (Demack J) Turning then to the assessment of damages, the past economic loss has been calculated by accountants, Taits, at a net figure of $132,000. This is a figure based on the award and does not take account of various overtime amounts and allowances. Consequently for the purpose of calculation, I would assess that figure at probably $160,000. As I have indicated, Mr Cocup was not in constant employment in the construction industry. The figure is calculated on construction industry rates. Over a period before the accident, he worked for about half of the available time. This is not out of keeping with the evidence of Mr Hazelwood who said that in the construction industry an employee would be lucky to work half of the available time. Consequently, having made that adjustment to his possible earnings, I find that he has lost $80,000 income since the date of the accident. I am satisfied that he probably had some capacity to work prior to this trial, but I am not satisfied that it is identifiable enough to call for any further deductions. He has received a figure of $75,591 in Social Security payments. So I will allow interest only on the difference over a period of eight years at six per cent. I allow interest at $2,11&. I am satisfied he can now work, given the fact that he will have some pain and discomfort while working and given that he may, because of his personality, have difficulty maintaining regular employment. Mr Gaffney put up two possible basis for calculating future loss of earnings. One of ·those was the 10 20 30 40 50 base of regular employment as a console operator. I am not so 11 JUDGMENT -- 11 of 15 -- 240796 (Demack J) satisfied that that is realistic, although there probably is a capacity to do something like that. It seems to me Mr Gaffney's second approach, that is of finding that he has half of his earning capacity is much more realistic. I doubt that he would have worked beyond the age of 60. Consequently, I adopt the figures Mr Gaffney has proposed in his second scenario and allow $60,000 for future economic loss and $2,400 for future loss of superannuation benefits. As I indicated, I was not impressed by Mr Cocup and Miss Hunter about his need for domestic assistance. He has not worked since he had surgery and has sufficient mobility to care for himself once the period of post-hospital recuperation was past. I will allow $5,200 to cover that and $730 interest on that amount. I am not satisfied he has any need now or in the future for domestic assistance. The defendant challenged part of the claim for special damages that relates to quite heavy doses of medication. The basis for the challenge is that in talking to various doctors and other professional witnesses, Mr Cocup has given widely differing accounts of how many tablets he takes. However, the .bulk of the. claim in special damages relates to the period in 1987 to 1988 and I am satisfied at that time Mr Cocup was under severe pain and taking inordinate quantities of analgesics. So, I will allow the special damages as claimed in the sum of $4,445.45 and interest on that in the sum of $2,000. 12 JUDGMENT 10 20 30 40 50 60 -- 12 of 15 -- 240796 (Demack J) However, for future medication and doctors' attendances; the widely varying accounts that Mr Cocup has given to the professionals are most relevant. For example, he claims to need Voltarin, but has not mentioned that in his accounts to doctors of the medication he presently takes. I would allow his claim there in a third of the amount that he has sought, namely $2.30 per week. I am satisfied that 37 years should be permitted and the figure is $2,000. In the schedule that was tendered as Exhibit 22, there does seem to be an extra nought on the end of the figure that is claimed under item 10, which should not be there. .That explains the very large difference between what was sought on the plaintiff's behalf and what I am allowing. There is a need for some future treatment. Doctor Cook has recommended further surgery, but I doubt that that is desirable in Mr Cocup's case. Rather attendance at a pain clinic, which will help him to live with his .disability, is much more realistic. Two figures were put in evidence. One from the Holy Spirit Hospital and the other one from the Belmont Hospital. The Belmont figure is a gross sum of $6,700. The Holy Spirit is given only in respect of actual hospital costs and the person has to find other accommodation. It seemed to me that they probably both ended up roughly the same and I will allow $6,500. During the period from 1982 to 1987, Mr Cocup suffered recurring pain and discomfort. In the period 1987 and 1988, he suffered severe pain and this led him to take rather 10 20 30 40 50 ridiculous quantities of analgesics, no doubt causing 60 13 JUDGMENT -- 13 of 15 -- 240796 (Demack J) considerable discomfort to himself in that way. He had surgery, which must have been very painful and he has certainly not had a full recovery from that surgery. He now has pain into his left leg and pain in his back. This is made worse by movement. I am satisfied that in his account of this, he has shown some exaggeration. His lifestyle I have already referred to with its convictions for drink driving which attracted gaol sentences. He also at one stage in recent years has performed some ill-defined tasks at a hotel and .there is a suggestion in at least one of the reports of a period of excessive drinking. Just how much he makes his own situation worse cannot be ascertained. But certainly, if he were to return to work, I accept that he would have daily discomfort and would no doubt from time to time need to take analgesics and would need to rest. For all of these matters and for the disruption generally of his lifestyle, I would allow $50,000. I am satisfied that half of that relates to the past and should attract interest, which I will allow in the amount of $4,000. 10 20 30 40 50 The individual items then are - Past economic loss Interest on past economic loss Future economic loss $80,000.00 $2,116.00 $60,000.00 w 14 JUDGMENT -- 14 of 15 -- 240796 (Demack J) Future loss of superannuation Past gratuitous services Interest on past gratuitous services Special damages Interest on special damages Future recurring medical and pharmaceutical expenses Future treatment Pain and suffering and loss of amenities Interest on pain and suffering and loss of amenities $2,400.00 $5,200.00 $730.00 $4,445.45 $2,000.00 $2,000.00 $6,500.00 $50,000.00 $4,000.00 TOTAL $219,391.45 There will be judgment for the plaintiff against the defendant for $219,391.45 together with costs. costs, Miss King? Are there any reserved MISS KING: I do not believe so, Your Honour. No. HIS HONOUR: Together with costs to be taxed. There are reserved costs? MISS KING: Yes. HIS HONOUR: Sorry. Yes, way back in 1989 on----- MISS KING: That's correct, Your Honour. My apologies. I had overlooked that. HIS HONOUR: Costs including reserved costs to be taxed. that figure approximate to your addition. MISS KING: It does, Your Honour. 15 Does JUDGMENT 10 20 30 40 50 60 -- 15 of 15 --