Blum v State of Qld [1996] QSC 146

. _~ .. i1rio 5L,,f/ 146 ..J/JYJ; Sta(e 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.) .J~ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No W64 of 1995 MICHAEL ANTHONY BLUM and THE STATE OF QUEENSLAND TOWNSVILLE .. DATE 18/07/96 JUDGMENT REVISED COPlES ISSUEJ Slate Reporting Bureau 1 Date ..J.2 / 7 / Cj ~ · ·,...... _,.,_ Plaintiff Defendant This judgment is to be: cc,pied for the purpose of research and private study only; It is not to be resold or used for republication in any other way without permission. 1 4th Floor, The Law Courts, Georee Street. Brisbane. O. 4000 Teleohone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 12 -- 180796 HIS HONOUR: The plaintiff's cause of action is admitted. He was injured in the course of his employment with the defendant on 8 June 1994: It appears that a bucket on an excavator came down and struck him around the thoracic spine region and also to some extent on the upper lumbar spine. I have a number of medical reports, including reports from some four orthopaedic surgeons. The plaintiff, I am satisfied, sustained some injury to the lumbar spine. It would appear more likely that this is of a soft tissue nature and this, I am satisfied, has generated symptoms from which he has complained since the time of the accident. Sometimes it appears the pain goes from his lumbar spine into his legs. He also complained of symptoms in the thoracic spine and it would appear that he has complained of symptoms in the cervical spine from a relatively short time after the accident and I accept that he has symptoms in this area as a consequence of the injuries he sustained in the accident; associated with these are headaches. The plaintiff has however, according to Dr Green, a psychiatrist, in addition to organically derived symptoms, psychogenic pain. That is, according to Dr Green: "A pain disorder associated with both psychological factors and general medical condition", which it seems to me I ought to attribute to the accident and its consequences. According to Dr Green there is a combination of both organically derived pain and psychogenically determined pain. He says that the prognosis is uncertain. He may become permanently impaired or 2 JUDGMENT 10 20 30 40 50 60 -- 2 of 12 -- ') 180796 develop other psychiatric disorders, but I infer it follows from what he says that his condition may improve. According to Dr Low the plaintiff's problems, in so far as they result to the accident, are the result of an aggravation of a pre-existing degenerative condition. He says that the plaintiff in any case would at some time in his life have become unable to perform heavy labouring work. I have references to X-rays in a number of the reports, but it seems to be the common view of the orthopaedic surgeons that whilst the X-rays show some degenerative condition in the spine, this condition is not itself the consequence of the accident. I assess damages upon the basis that the plaintiff has symptoms in his lumbar spine which are the consequence of the trauma superimposed upon an already somewhat degenerate spine and I also assess damages upon the basis that he has cervical symptoms which are the consequence of trauma and associated with these are headaches which he suffers from time to time. In addition, it will be apparent from what I have said, the plaintiff has pain which is psychogenically determined. S6 far as the lower back is concerned it is the plaintiff's evidence that his symptoms in this area become worse upon attempts at activity. The plaintiff left school in grade 10. His academic results appear in Exhibit 2, his statement. As will be seen, his achievements in that area were quite limited. His work 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 12 -- •-~ 180796 history also appears in that exhibit, as well as in the copies of the tax returns which are before the Court. The plaintiff was in the years prior to .the accident in employment fairly intermittently. He had a number of jobs and had been employed by the defendant since early in the year of the accident. However, in some years he was unable to obtain work for significant periods of time. None of this, I should add, I regard as reflecting upon the plaintiff. Rather the conclusion I draw is ·that the plaintiff is a man who wants to work and has always desired to work and who finds himself somewhat distressed-at his inability to perform heavy work. However, it seems to me that the plaintiff's earning capacity must largely be regarded as having been dependent upon his ability to obtain work towards the heavy, unskilled end of the employment spectrum and indeed, this is in fact the sort of work that he did obtain prior to the accident. 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 12 -- ) 180796 The periods that the plaintiff was out of work during this time are, I infer, a product of the difficulty in obtaining permanent employment in the area on the part of a person whose capacities are essentially limited to work at that end of the scale. The plaintiff has attempted to work since the accident. He has undergone a Commonwealth rehabilitation program. He says, and I accept that he found he was not able to perform the sort of work that he attempted. He has undertaken a TAFE course in the handling and operation of fork-lift tractors and successfully completed the course. He says that he has made attempts to obtain employment in a variety of fields but has been unsuccessful. These fields include the work of a fork- lift operator. He told Dr Gibberd that he thought that he wou.ld like to attempt to work doing heavy work. He explained to the Court that he said this because of his frustration at finding himself in the position where he has not been able to obtain work. Dr Gibberd expressed the view that he was happy with that approach and thought that the plaintiff ought to attempt to obtain work, and he thought that he would be 80 per cent confident that he would be able to resume work as a labourer, though with some pain and discomfort. He said that he thought that there was a risk of no more than 20 per cent that there would be a recurrence of his symptoms. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 12 -- ) 180796 The view of Dr Low and also Dr Douglas is that the plaintiff would not be capable of performing strenuous physical work. I proceed to assess damages upon the basis that he is not so capable. Nor do I think Dr Gibberd's view that there would be a one fifth risk of recurrence of his symptoms if he performed such work is inconsistent with the view expressed by the other orthopaedic surgeons, but if it be the case that it is, then I prefer to accept the opinions expressed by Dr Low and Dr Douglas in this regard. It is plain; on the evidence, that the plaintiff does have a residual earning capacity. However, given his lack of qualifications, apart from those I have just mentioned, his poor academic record and his lack of experience in fields other than relatively heavy strenuous work, care should be taken not to make too much, I think, of his prospects of converting this into income. However, nonetheless, the residual earning capacity is a significant one, and appropriate allowance should be made for it. In addition, it i~ impossible to disregard the plaintiff's pre-accident work history. He was, as I have said, out of employment for substantial periods and I do not think that it would be proper to assess damages upon the basis that there would have been a great change in that during the remainder of his working life, although no doubt as he grew older it might 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 12 -- 180796 be expected that the prospects of obtaining suitable work for extended periods may have increased. In addition, there is the fact that as I accept the evidence, the plaintiff was not likely to have remained in heavy labouring work during the remainder of his life, whether he sustained the accident or not. It may of course be that in the course of a working life the plaintiff may, through experience or through contacts made, have gradually obtained employment which he could perform within any developing limitation, but again it seems to me an appropriate discount has to be applied for this·. The discounts which have to be applied in any assessment of the plaintiff's economic loss in particular are, I think, significant and I will make appropriate allowance for them. I repeat, the relevant factors are the plaintiff's residual earning capacity, the somewhat intermittent nature of his employment before the accident, and the fact that the plaintiff would at some time in any case have become incapable of performing the sort of work, which I think it is likely he would have been engaged in whilst he was engaged in employment during a working life. 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 12 -- 180796 The plaintiff, at the time he was injured, was employed by the defendant as a labourer. There is some evidence that each side relied upon, as to what his likely future would have been. Although he was described as a permanent in one document, Mr Eames who gave evidence before me and who was the officer with most authority in relation to the question of employment, said that the plaintiff was a temporary employee. There is evidence which might suggest that the plaintiff would have been likely to retain his employment with the defendant for almost another year, travelling to a job south of Townsville and that by virtue of his previous employment with the defendant he may have received some preference in relation to this whether in relation to that position or others. On the other hand, there is evidence which might tend to throw some doubt upon whether the plaintiff would have been likely to obtain work on the job south of Townsville that I have just referred to. I think that in assessing damages for past economic loss, it is reasonable to assume that the plaintiff had at least reasonable prospects of retaining employment with the defendant at one or other of the defendant's contracts in this region, at least for some significant period of time. I recognise that it was the policy of the defendant to engage labourers who were resident proximate to the particular job if the needs could be satisfied in this way. However, the defendant engages in a good deal of activity in the region and I think it is not unreasonable to conclude that 8 JUDGMENT 10 20 30 40 50 60 -- 8 of 12 -- 180796 the plaintiff would have had reasonable prospects of obtaining work with the defendant at least for some significant period after the accident. There have. been substantial changes to the way in which the defendant conducts its operations and this has resulted in a reduction in its workforce, something which clearly would militate against the plaintiff having employment on any long term basis although the prospects of his working with the defendant for some periods, I think can be taken into account. I accept the plaintiff's complaints as to his problems and his symptoms. He struck me as being an honest witness who is, as I have said, unhappy about the position in which he has found himself. So far as general damages are concerned, I assess the plaintiff's damages in the sum of $45,000. Of this I ascribe $17,500 to the past. The plaintiff has received a lump sum payment from the Workers' Compensation Board. I allow, at the rate of two per cent for 2.1 years, interest on the difference between those two sums producing the sum of $658. When I spoke of the discounts which have to be applied in relation to some of the heads of damages, I omitted to also add the prospect that the plaintiff's psychogenically determined pain may improve but of course this has to be measured against the risk that it may worsen. I also take into account that there appear to be other factors also playing some role at least at the present in this condition. I have had placed before me, figures in relation to past economic loss, upon the basis that the plaintiff would have 9 JUDGMENT 10 20 30 40 50 60 -- 9 of 12 -- 180796 remained in employment with the defendant. I have also had placed before me, details of the plaintiff's earnings with the defendant including various allowances which he may have received. Discounts of the kind that I have referred to have to be applied to this head of damages also, although given the relatively limited period involved, some of these discounts will not be great. I assess in respect of past economic loss including loss of superannuation entitlement, the sum of $32,500. I have been t9ld that the plaintiff has received by way of income substitution, some $28,000. I assess interest on the difference, namely $4,500 at five per cent for 2.1 years, the amount of $472. So far as future economic loss is concerned, it will be apparent from what I have said that substantial discounting has to be applied to this. The plaintiff is only a young man and the award under this head, must of necessity be significant. However, the discounts to which I have referred are significant and full allowance has to be made for them. I allow in respect of future economic loss, including loss of superannuation entitlement, the sum of $130,000. Special damages are agreed upon in the sum of $14,092.16. There is a claim for future treatment. This refers to medication, attendance on doctors, including Dr Watson, for period manipulation of the cervical spine. 10 JUDGMENT 10 20 30 40 50 60 -- 10 of 12 -- 180796 It is I think, necessary for some discounting to take place to this figure for a number of reasons. One of course, is associated with the fact that the plaintiff may in any event, have developed symptoms associated with his deteriorating degenerative condition, which would have left him in a similar or somewhat similar position. 1 1 JUDGMENT 10 20 30 40 50 60 -- 11 of 12 -- 180796 The other is that his condition may improve and that his need for such treatment will reduce. Doing the best I can on the material, I allow in respect of this claim the sum of $15,000. HIS HONOUR: The total of these sums then, is $237,722.16. From this has to be deducted the sum of $30,238.52, which on my calculations produces the figure of $207,483.64. There will be judgment for the plaintiff against the defendant in the sum of $207,483.64, with costs to taxed. 12 JUDGMENT 10 20 30 40 50 -- 12 of 12 --