Crawford v Hoger & Hoger [1996] QSC 73

IN THE SUPREME COURT OF QUEENSLAND Brisbane Before Mr Justice Dowsett BETWEEN: AND: AND: IAN ROBERT CRAWFORD CELIA ELIZABETH HOGER DANIEL HOWARD HOGER REASONS FOR JUDGMENT - DOWSETT J. Judgment delivered: 07/05/1996 L 0 /u!-3_ No. 772 of 1994 Plaintiff First Defendant Second Defendant CATCHWORDS: CIVIL LAW - personal injuries - plaintiff hit by car whilst a pedestrian - liability admitted - quantum in issue - economic loss - injuries to brain and cervical spine - residual effect of previous accident. Counsel: Mr M K Conrick for the plaintiff Mr M Grant-Taylor for the defendants Solicitors: Bruce Simpson & Associates for the plaintiff Heiser Bayley & Mortensen for the defendants Hearing Dates: 19 February 1996 - 22 February 1996 -- 1 of 34 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane Before Mr Justice Dowsett BETWEEN: AND: AND: IAN ROBERT CRAWFORD CELIA ELIZABETH HOGER DANIEL HOWARD HOGER REASONS FOR JUDGMENT - DOWSETT J. Judgment delivered: 07/05/1996 Background No. 772 of 1994 Plaintiff First Defendant Second Defendant The plaintiff was born on 8 April, 1955 and injured on 7 December, 1989 while crossing a road. Liability has been admitted. He attended Noosa District High School, leaving at the end of 1973. He had repeated Grade 12 to acquire the necessary matriculation score. During 1973, he damaged his knee cap while playing football and lost time from school. After leaving school, he worked with a produce merchant at Cooroy for a couple of months and then sat for the Commonwealth Clerical Selection Test. He was subsequently appointed to a job in the Taxation Department where he worked for about 20 months before leaving to join Queensland Railways. -- 2 of 34 -- 2 The First Accident On 30 April, 1976 the plaintiff was struck by a motor vehicle, was unconscious for about two weeks and suffered fractures to his left arm and leg. He was in hospital for 17 weeks and off work for about 9 months. The accident left the plaintiff with significant continuing incapacity. His left leg was shortened by approximately three-quarters of an inch. Dr Maguire assessed his orthopaedic incapacities at 20 per cent of the left leg and 15 per cent of the left arm. There was also a likelihood of continuing lower back pain. Ira T. Smith, a clinical psychologist, examined him on 24 August 1977, about 16 months after the accident. The expert medical evidence suggests that following brain damage, any recovery of mental capacity is likely to be spread over a period of about two years, or possibly a little longer. Mr .Smith found that the plaintiff's memory processes were still significantly impaired, consistent with the presence of organic cerebral disturbance. He expected an associated reduction in the plaintiff's performance in his employment. Nonetheless, he subsequently returned to work at Queensland Railways, on light duties in the Banyo depot. He then transferred to Townsville where he worked in the office for two months, but left because he did not like clerical work. He worked on his parents' farm for a short time and then went to the Commonwealth Rehabilitation Centre at Taringa, presumably to address the difficulties caused by the accident. In 1981, he took work with the Cooroy RSL Club as a barman and worked there for about two and a half years. Exhibit 1 is a reference dated 24 October, 1980. It is generally complimentary of the plaintiff's performance. After leaving the RSL Club, he worked at Stewarts' Hotel at Alexandra Headlands for about -- 3 of 34 -- 3 2 months, then at the Palmwoods Hotel for 2 to 3 months, at Hayman Island for a week, and at the Arana Leagues Clubs in Brisbane for about 14 months. He then took employment as a trainee surveyor with the Main Roads Department. This involved him in measuring and pegging out roadways for survey purposes, including the clearing of vegetation for sightings. He took a TAFE course in acting and drama at this time and also studied surveying at the Darling Downs Institute of Advanced Education. He completed only one mathematics subject. He said that he did not enjoy surveying because it was too impersonal. He returned to bar work. In 1984, he undertook a part-time computer programming course with a commercial organisation which had awarded him a scholarship on the basis of a competitive examination. The course lasted six months and whilst undertaking it, he worked part-time at the Munich Steak House from 26 July to 7 December, 1984. He then went to the Woombye Hotel, at first on a casual basis, and later, on a permanent basis, for in excess of 12 months, probably in 1985-86. It is not clear whether this was full - or part-time work. In 1986, the hotel changed hands, but he allegedly continued in employment there until 1989, predominantly part- time. Again, it is said that he performed satisfactorily. He also worked at a nightclub in Alexandra Headlands, at the Club Hotel in Nambour and at the RSL Club in that city, the last mentioned employment commencing in April, 1988 and continuing until May, 1989. At some stage, his mother developed a gall bladder problem, and he returned to the farm to assist. Although the exact period of time is not clear, this was probably in 1987. In May, 1989 he took employment at the Canungra Hotel, where he worked for about six weeks. He left because of a disagreement with another employee -- 4 of 34 -- 4 and went to North Queensland, looking for work. He had arranged with the manager of the Canungra Hotel that when the other employee left, he would be re- employed. He was unable to find employment in North Queensland because of the airline strike. He was again offered employment at the Canungra Hotel, commencing in December, 1989, the other employee having left. Before he could recommence, he was injured in the accident which has given rise to these proceedings. There is some vagueness about this employment history. Although his tax records extend back only to 1986-87, they are instructive. In that tax year, his taxable income was nil, although he was said to have worked at the Woombye Hotel. This may have included the period when he was working on the farm during his mother's illness, but there is·no evidence as to how long that illness lasted. For 1987-88, his assessed taxable income was $7,312. Details of his gross earnings were as follows:- (Figures from group certificates) Employer Period No of Gross Arnt Weekly Arnt Weeks (a) Denrex 5.7 .87-3.4.88 39 $2,620.85 $ 67.20 (b) Matheson, Buckley 5.10.87-16.10.87 1½ $ 574.77 $383.18 (c) Goodtime Charlie' s 25.11.87-10.2.88 11 $ 990.00 $ 90.00 (d) Club Hotel 6.3.88-20.3.88 2 $ 639.33 $319.66 (e) RSL Nambour 6.4.88-30.6.88 12 $3,297.86 $274.82 (f) Caloundra CC 26.3.88-30.6.88 14 $ 41.19 $ 2.94 -- 5 of 34 -- 5 Employers (a), (c) and (f) probably employed him on a part-time basis. Employer (f) can have offered him only a very short period of employment, despite the dates on the group certificate. Employer (b) gave only 1 ½ weeks employment; employer (d) gave two weeks; employee (e) gave 12 weeks. These were probably full-time jobs. The best case for the plaintiff is that in 1987-8, he worked full-time for 15 ½ weeks and part-time for the rest of the year. The average weekly amounts earned with employers (a) and (c) suggest that he worked on average for one or two days a week, although that is little more than a guess. The figures for the 1988-89 tax year are:- (Figures from group certificates) Employer Period No of weeks Gross Amt Nambour RSL 1.7.88-5.5.89 44 $16,940.74 Club Canungra Hotel 8.5.89-18.6.89 6 $ 2,236.00 Weekly Arnt $385.02 $372.67 The assessed taxable income for the year was $17,814, and he was credited with $4,248.90 for tax deductions, which is the total of deductions recorded on the group certificates. The figures, as far as they have been disclosed, for the 1986-87, 1987-88 and 1988-89 tax years justify a number of inferences:- (a) It is unlikely that the plaintiff worked for any significant period of time at "Good Time Charlie's". (b) He cannot have done much work at the Woombye Hotel in 1986-87, and his employment there in 1987-88 was probably only for a day or two per week, -- 6 of 34 -- 6 assuming Denrex was the employer. He seems not to have worked there at all in 1988-89. (c) His employment record during 1986-87 cannot have been very good, to say the least. (d) His employment record in 1987-88, prior to his employment at the Nambour RSL Club, was also limited. (e) From 6 April, 1988 he was in full-time employment at the Nambour RSL Club and then at the Canungra Hotel until he left that job on 18 June, 1989, having been there only six weeks. (f) There is no evidence from his major full-time employer during the period 1986-89, the Nambour RSL Club, concerning his performance of his duties. (g) He has not worked since leaving the Canungra Hotel. A number of witnesses, employers, friends and relatives, have given evidence as to his life and work between 1977 and 1989. His friends and relatives were at pains to stress that he had made a good recovery after the 1976 accident. A number of former employers and co-workers said that he had performed well in his employment. The plaintiff submitted that the defendant did not challenge much of this evidence in cross-examination and that I should therefore treat it as unchallenged. Implicit in this submission was the assertion that I should find that after Mr Smith's assessment, the plaintiff made quite substantial further recovery from the effects of the first accident, notwithstanding the evidence of a number of medical witnesses that the bulk of his recovery would probably have occurred by that time. I do not consider that I am bound to accept at face value evidence from lay witnesses as to the mental state of the plaintiff, nor am I obliged to accept general -- 7 of 34 -- 7 statements as to the performance by the plaintiff of his work. I must consider the opportunities of the various witnesses to make appropriate observations, the likelihood of their being perceptive enough to have made worthwhile observations for present purposes and whether it is likely that at the time, they would have been alive to the relevant indicia of his conduct. The lapse of time since relevant observations were made may also be significant in evaluating such evidence. In addition, one must keep in mind the problem of unconscious partisanship. No doubt, it would be inappropriate, in the absence of challenge from the defendant, to find that any of these witnesses was deliberately lying or even completely mistaken. That is, however, a different issue. A trial judge must always assess the weight of the evidence of a witness, especially when it conflicts with other evidence. Very often, this involves the judge in ascertaining the true meaning which the witness was trying to communicate. Much of this lay evidence was really of opinion based upon observations. In the end, my task involves a determination of whether these witnesses' observations of the plaintiff, made between 1977 and 1989, were so inconsistent with his present condition, as identified by lay and expert evidence, as to suggest a deterioration attributable to further brain damage. Obviously, such an exercise requires close scrutiny of all of the evidence. The plaintiff's own witnesses suggested some obvious continuing problems after 1977. His mother told Dr Hirschfeld (see Exhibit 19) that during this period, 11 ••• the family could pick up some of his forgetfulness as a result of this injury but in general terms he was functioning extremely well. 11 Similarly, Mr Hobbs, who was President of the Cooroy RSL Club, where the plaintiff worked from 1978 to 1980, thought that he had suffered brain damage and was, 11 a little bit forgetful 11 • -- 8 of 34 -- 8 See transcript p.123 II 15-20. The difficulty with evidence of this kind is also demonstrated by his father's evidence at p.140, where he is recorded as saying that it took about 12 months before the plaintiff, " ... got back to his old - more or less his old self ... ". Obviously, the plaintiff was still suffering diminished mental capacity some months later when Mr Smith tested him. As to his performance in employment, it is true that a number of people attested to his competence, but some were speaking of events many years in the past, and some had limited opportunities to observe him. Mr Hoare had worked with him at the Main Roads Department in the early 1980s. He thought the plaintiff performed his work well, although there was not much detail as to his duties. Mr Cobb owned "Good Time Charlie's", a night club in Mooloolaba where the plaintiff worked on a casual basis. He considered him to be a conscientious employee, but the evidence shows that he only worked there for a little over two months in 1987-88, earning a gross amount of $990, suggesting only a few days of casual work. Mr Werchon said that he employed him for a year or more at the Woombye Hotel before he sold it in 1986. We have no record of the plaintiff's earnings for 1985-86, but if his pattern of employment at that hotel was the same as it was in 1986-89 under the new owner, Mr Higgins, then it is likely he worked, at most, one or two days a week. Mr Currey saw him performing a stocktake at the Woombye Hotel and thought him competent. He later employed him for six weeks at the Canungra Hotel and had offered him further employment immediately before the second accident. His opportunities for observation of the plaintiff's performance were obviously limited. Mr Barnes worked with him for 18 months at the Arana Leagues Club and thought him competent. This was in 1981-2. Ms Screiber has known -- 9 of 34 -- 9 the plaintiff since 1962. She was often a patron at the Cooroy RSL Club while he was working there and considered that he worked very well. She saw him working at the Nambour RSL Club at a wedding in 1988 and thought he worked "wonderfully". She said that he is now hesitant, "very slow in what he does". Obviously, her evidence as to his pre-1989 work capacity is of limited value. Finally, Mr Higgins said that he employed him, predominantly on a part-time basis, at the Woombye Hotel from 1986 to 1989. He performed well. As previously mentioned, the plaintiff had a taxable income of nil in 1986-87. It is not clear which group certificate relates to his employment by Mr Higgins in 1987-88, but it must be either that in the name of Denrex Pty Ltd (gross wages of $2,620.85 from 5 July, 1984 to 3 April, 1988) or that in the name of Matheson Buckley and Associates Pty Ltd (gross wages of $574.77). It is likely that one or other of these two group certificates reflects virtually the totality of the plaintiff's work with Mr Higgins. At most, he would have worked a few weeks, full-time, or one or two days a week, part-time. In either case, Mr Higgins was not in a position to assess his performance over an extended period in full-time employment. His wage history for the period from 1986 to the accident is not consistent with his being a competent, hard-working employee. Lengthy periods of unemployment or under-employment, coupled with unexplained departures from some jobs suggest a quite different picture, even allowing for a period on the farm during his mother's illness. It is for these reasons that I have difficulty in accepting at face value much of the evidence of family, friends, employers and fellow employees as to his recovery from the 1976 accident. I should say that there was no suggestion of undeclared income. -- 10 of 34 -- 10 The Second Accident Following the second accident on 7 December, 1989 the plaintiff was unconscious for a short time. He recalled regaining consciousness at the scene. He was taken to hospital and subjected to X-ray examination. No abnormalities were disclosed. The following day, he complained of severe neck pain. Examination and X-rays again revealed no abnormality. It was thought that he was suffering soft tissue injury. He consulted Dr Kirkman in December, 1989 complaining of laceration of the left forehead, abrasions to the lower limbs, a sore left knee and a sore neck. Dr Kirkman removed the sutures and diagnosed a moderate degree of limitation of movement in the neck consistent with a whiplash injury. He prescribed physiotherapy. Dr Kirkman saw him on a number of occasions thereafter and on 6 March, 1990 reported:- "Unfortunately, the headaches which Mr Crawford experiences subsequent to this whiplash injury are not abating and he does not feel his condition has improved significantly with physiotherapy." He offered the prognosis that:- "With this type of whiplash injury which can be directly attributed to the motor vehicle accident I usually find with the passage of time and general physiotherapy the symptoms generally abate but continue to trouble the patient until some sort of financial settlement occurs." Unfortunately, the solicitor for the plaintiff took it upon himself to complain about this suggestion, asking Dr Kirkman for another report, deleting the reference to the resolution of financial matters. The plaintiff saw Dr Toakley, a neuro-surgeon, in November, 1990 complaining of continuing neck pain, radiating into the right shoulder and at times, to the fingers of the right hand. He also had soreness in the left knee, was -- 11 of 34 -- 1 1 sleeping poorly and experiencing pain in bending. When asked, he complained that his memory was not as good as it had been and that he was depressed, but not weeping. Dr Toakley considered that he had suffered concussion from which he had recovered without brain damage, and a neck injury. A cervical scan was carried out at Dr Toakley's suggestion. This disclosed no evidence of a fracture. Concerning his orthopaedic injuries, Dr Maguire saw the plaintiff on 23 October, 1990. Dr Maguire concluded that he had suffered a musculo-ligamentous injury superimposed on mild pre-existing degenerative change. He thought it likely that the effect of the injury would last for several week or perhaps, several months, but that long term permanent effects were not likely. He could not detect any pathology in the left knee attributable to the second accident, although there may have been some mild contusion to the back of the knee cap. He did not expect that either incapacity would prevent him from doing an average job as a bottle shop manager. He would also be suitable for clerical work. Dr Maguire saw him again in May, 1995. His opinion remained unchanged. He considered that the plaintiff's complaint of very severe pain and disability continuing for 6 years after the accident was not consistent with the type of neck pathology which he found. He thought that the effects of the second accident had passed and would not have extended beyond some months. Dr Winstanley, an orthopaedic surgeon, saw the plaintiff in late 1990 or early 1991. He discovered some ongoing discomfort with the cervical spine and left knee. He considered that the plaintiff had sustained a soft tissue injury to the cervical spine which, at that time, was preventing him from working at bar duties. This was an aggravation of a pre-existing degenerative change, resulting in a permanent partial disability of about 7 per cent. He considered that the plaintiff -- 12 of 34 -- 12 would be fit for lighter activities including, in particular, clerical work. He did not think it appropriate for him to lift cartons of beer on a regular basis. Dr Winstanley saw him again in May, 1995. He found no significant permanent disability associated with the left knee and no permanent partial disability .associated with the lumbar spine. In relation to the cervical spine, he found symptoms consistent with aggravation of pre-existing degenerative change but said that the effects of the accident had probably long since ceased. He considered that the second accident may have accelerated the onset of symptoms associated with the cervical spine which would have occurred with the progression of time in any event. The period of acceleration may have been 5 to 7 years. He considered the plaintiff fit for lighter work notwithstanding such acceleration. The plaintiff also saw Dr Crawford in 1992. Dr Crawford's views concerning his neck and knee pain were consistent with those expressed by Dr Maguire and Dr Winstanley. The plaintiff saw Dr Bradfield, a neuro-physician, in early 1991, at which time his major complaint was of neck pain and headaches. He also complained that his memory of recent events had deteriorated since the accident in that he often misplaced things, forgot what he was talking about and forgot what he was about to do. Dr. Bradfield considered that the neck pain was of musculo-skeletal origin and that the headaches were associated with muscle contractions. He considered the memory problems to be most likely due to post-traumatic psychological symptomatology. He told the plaintiff that there was no evidence of organic neurological pathology. He expected his symptoms to resolve with time. Dr Bradfield saw him regularly thereafter. He continued to complain of neck pain, sometimes radiating· into the right shoulder. He also complained of -- 13 of 34 -- 13 headaches. On 10 July, 1991 he said that his memory had slightly improved. Dr Bradfield recommended a myelogram to ensure that there was no neurological pathology. Mr Crawford declined. As to his memory problems, Dr Hirschfeld suggested a neuro-psychological assessment. He considered that the continuing symptomatology may have been attributable to his being, "mentally, physically and emotionally run down". The plaintiff saw Dr Ray James, a psychiatrist, at about the same time, complaining of neck pain and of memory problems. He said that he tended to lose his train of thought, forgot the name of acquaintances, had poor concentration and forgot things from day to day. He also experienced depression. He complained that he had been very unlucky in being injured on two occasions. Dr James reported that clinical tests of cognitive function did not reveal any impairment of concentration or short term memory ability. He arranged a CT brain scan and said that X-rays, which were provided to him by the plaintiff, showed no significant abnormality in the skull or cervical spine. Dr James considered it probable that the first accident had resulted in organic brain damage, producing a mild degree of cognitive impairment, a defect in shortterm memory function and some personality change. The second accident involved only a minor head injury which may have aggravated a pre-existing memory difficulty. He thought it also possible that stress, associated with his physical symptoms, including the neck pain, had impaired his ability to concentrate, producing some further memory difficulties. He anticipated a gradual recovery from the concussion and that the memory function and personality adjustment should return to the pre-December 1989, level. He considered that the 1989 accident had not caused any significant organic brain damage as the injury -- 14 of 34 -- 14 was minor. Dr James thought that his recovery may have been impeded by, "some mild mood depression". The plaintiff saw Dr Klug, another psychiatrist, in 1991. He told him that he had been unconscious for 10 to 15 minutes after the second accident and may have lapsed back into unconsciousness during the ambulance trip. This was a little different from what he had told Dr James. He also complained of a "shocking" memory, mainly in relation to recent events, disturbed sleep, a constant headache, pins and needles in his hands and feet, and an inability to work because of the neck pain. Dr Klug reported that the plaintiff conversed normally and had no difficulty in providing an extensive, informative, well-structured history, including specific dates and coherent sequences of events. His mood was perfectly normal, with no sign of emotional distress or affective disorder. Thought content was rational with no evidence of delusions, obsessions, pre-occupations or any other abnormal ideas. His thought processes were normal, and he gave no indication of suffering from hallucinations or any other abnormal mental experiences. He displayed normal concentration with excellent capacity for focusing and sustaining mental activity on a task and very good immediate recall of newly learned material. Delayed recall was impaired, but he was well informed about recent events. Dr Klug concluded that clinical examination revealed no evidence of any psychiatric disorder. Examination of his cognitive state revealed a man of above-average intelligence with excellent attention and concentration and only mild, probably insignificant, impairment of some areas of memory functions. A CT brain scan, performed in May, 1991 disclosed generalised atrophy in one part of the brain. -- 15 of 34 -- 15 Dr Klug concluded that the plaintiff had suffered an aggravation of pre-existing memory problems from which he had suffered since the 1976 accident. He considered that his general performance in the clinical testing did not support his complaints of significant deterioration of his memory as a result of the second accident. Dr Klug considered that the EEG and CT scan showed some abnormalities consistent with generalised atrophy of the brain, probably attributable to the earlier accident. He thought it unlikely that the second accident had aggravated this. The plaintiff told Dr Klug that his neck pain was the main cause of his incapacity for work. Dr Klug accepted that his memory problems would probably make it difficult for him to work as a bar and bottle shop manager if his subjective perceptions of his memory impairment were correct. However, he was unwilling to accept that they were so, in light of the objective clinical evidence. Dr Klug concluded that the examination revealed mild to moderate impairment of his short term memory and mild to moderate impairment of spontaneous speech, "the nature of which is uncertain". His memory for recent events had not been significantly impaired. Dr Klug attributed the memory impairment mainly to the 1976 accident, concluding that the second accident had little, if any, effect on his memory and intellectual functions. Both Dr James and Dr Klug were familiar with the plaintiff's work history during the 1977-89 period. Dr Klug saw the plaintiff again on 22 February, 1994. He found a slightly increased impairment of immediate recall from that disclosed in his previous testing but considered it unlikely to be clinically significant. He opined that the test results suggested a less severe memory impairment than that suggested by Mr Crawford' s subjective perceptions. He was not psychiatrically incapacitated in any way. -- 16 of 34 -- 16 Dr Klug thought that although his memory problems might cause some incapacity, it was likely that he was being discouraged from work by his anticipation of difficulty in finding a job after 4 years out of the workforce and by the fact that he was receiving an invalid pension. In his final report, dated 18 September, 1995 (Exhibit) 40 Dr Klug considered the results of tests carried out by Dr Wiltshire and Ms Field in 1993 and 1995 respectively. He concluded:- " Although both Doctor Wiltshire and Ms Field detected memory problems, the consistency of his 1.0. and M.Q. would seem to be inconsistent with the view that Mr Crawford' s 1989 head injury has had a major effect on his intellectual function." He thought, however, that the plaintiff was probably suffering increased impairment as a result of the second accident as compared with the situation prior to the second accident, but that the extent of the contribution of this second accident was "small". In more recent time, he has also seen Dr Ohlrich, a neurologist. Dr Ohlrich considered that there was some impairment of higher mental function but doubted whether the plaintiff was performing to his best ability on all of the tests. He considered the 1989 accident to have caused only a relatively minor injury, unlikely to have produced the memory impairment of which the plaintiff complains. He also considered it unlikely that any impairment of cognitive function or the atrophy revealed by the CT scan was attributable to the 1989 injury. He did not consider the headaches to be related to the 1989 accident. Dr Ohlrich said that the plaintiff was capable of employment in the hotel and bar trade. The plaintiff saw Dr Wiltshire in May, 1993 for the purposes of an assessment. See Exhibit 13. He opined that:- "ln my opinion, based on both Mr Crawford's own account of his duties and his confidence in carrying them out between 1980 and the -- 17 of 34 -- 17 second accident in 1989, and also on the material in the references, particularly of Mr Currey, dated 26 February 1993, that Mr Crawford had to a considerable degree recovered a number of memory functions. It is quite possible, and indeed is often the case that such functions can improve up to two years or more after an accident, and while Mr Smith was of the opinion 1 6 months after the accident that memory deficits were strongly in evidence, it is also apparent that improvement had occurred subsequently. 11 Dr Wiltshire considered that testing carried out in 1991 and 1993 indicated that the plaintiff could not now hold jobs where any new learning or memory component was necessary, and that although the major damage to Mr Crawford' s brain had occurred as a result of the first accident, there had been a certain degree of recovery after Mr Smith's assessment in August, 1977 and that the second accident had reactivated the deficit. When faced with Dr Klug' s report dated 25 February, 1994 (Exhibit 34}, Dr Wiltshire said:- "lt is true that psychometric measures show only minor deficits which might be ascribed to the second accident. Cumulative effects include not only neurological deficits but the psychological interpretation of events, both conscious and unconscious, in the mind of the first injured. Thus Mr Crawford's lack of motivation to return to work can be ascribed in good measure to the factors described by Dr Klug, and it can be said equally well that these would not have occurred if the second accident had not happened, and therefore that event contributed substantially in an interactive and cumulative way to his present unemployability. 11 I should record that in the course of the trial, the conduct of the plaintiff's case occasionally suggested that he was relying, not upon organic brain damage as the cause of his asserted incapacity, but upon something else. I questioned counsel on a number of occasions concerning the nature of his case, particularly as towhetherJtwas,be.ingallegedthat there may be some non-organic;·psychiatri<:i,;~,.,..s~,,"', basis for his present alleged condition. Counsel expressly disavowed reliance upon anything other than organic brain damage. It is doubtful whether the effects of the plaintiff's, "psychological interpretation of events" could be properly the subject -- 18 of 34 -- 18 of a damages award unless it amounted to psychiatric illness, but the question does. not arise. The case is limited to a claim for damages as a result of brain damage. Of critical. importance to the plaintiff's case are the opinions of Ms Field, a neuro-psychologist, and Dr Hirschfeld, a general physician with extensive experience in the assessment and rehabilitation of persons suffering from head injury. Ms Field saw the plaintiff for the first time in May, 1995. The plaintiff gave a history concerning his accident which suggested to her that he had been unconscious for a period of some hours after the second accident. This is inconsistent with the versions given at times closer to the accident, for example to Dr Toakley (that he regained consciousness on the road), to Dr James (that he was probably knocked out for a few minutes and that he remembered being helped at the scene and taken by ambulance to the hospital), and to Dr Klug (that he regained consciousness whilst being loaded into the ambulance, although he may have lapsed back into unconsciousness during the ambulance trip). He also told Dr Maguire in 1990 that he had been unconscious for a few minutes and that he remembered the ambulance being at the scene of the accident. He told Dr Winstanley that he was knocked out for a short period following the accident and was subsequently taken to hospital. He told Dr Crawford he was unconscious for about 10 minutes and Dr Bradfield that he remembered regaining consciousness at the scene of the accident, being attended to by ambulance bearers and then being taken to hospital •. The generally received medical opinion is that the length of time during which a patient is unconscious following head injury is indicative of the seriousness of the injury and therefore, of the likelihood of subsequent continuing brain -- 19 of 34 -- 19 damage. As I understand it, a period of unconsciousness of a few minutes is unlikely to be indicative of an injury which will cause permanent brain damage, while a period of unconsciousness measured in hours may do so. I understand this to be the general expectation, although short periods of consciousness have, on occasions, followed injuries which have caused permanent brain damage. Clearly, almost all of the practitioners who have spoken to the plaintiff about this have derived the impression that he was unconscious for only a very short period of time. However, at a later stage, he led Ms Field to believe that he had suffered what she described as, "anteriograde amnesia of several hours". Of course, a patient may reconstruct his own recollection of events, and a medical practitioner must be careful to distinguish between what a patient actually· remembers and what he has reconstructed. Ms Field suggested that some of the plaintiff's "recollections" may have been reconstructions which masked an extended period of amnesia. I find it difficult to believe that the expert witnesses who saw him in the years immediately after the accident failed to examine him with sufficient discrimination to elucidate this most important information. Another problem with Ms Field's report is that she chose not to incorporate into it any reference to Mr Smith's report of his assessment carried out in 1977. She gave no really satisfactory explanation for failing to do so. She suggested that his testing was not comprehensive and that his results were not in a form from which she was able to draw inferences. However, his report certainly gives a clear assessment of the plaintiff as he then found him. I would have expected a person in Ms Field's position to have at least sought to draw some assistance from such a report, whatever its shortcomings. After all, Ms Field was faced with the same problem as am I, namely to assess the extent to which the second accident has -- 20 of 34 -- 20 affected his intellectual capacity. I cannot see how I can ignore an expert's opinion formed after the first accident and before the second. It may be, as is suggested by the plaintiff, that he improved substantially after Mr Smith tested him and that this is evidenced by his capacity to hold down employment after that time. That there may be a way of discounting Mr Smith's report by reference to the plaintiff's subsequent work history does not lead to the conclusion that the report should be simply ignored for present purposes. Dr Hirschfeld first saw the plaintiff in June, 1995. He appears to have placed some reliance upon reports from Mr Payes, Ms Muir and Dr Ross. They were psychologists who saw the plaintiff at various times at the instigation of the Commonwealth Rehabilitation Service. Dr Ross counselled him in an attempt to improve his memory but did not investigate the cause of his alleged memory deficit. She rather accepted his assertion that his memory before the second accident had been excellent. Mr Payes also did not go into the cause of his memory deficit. Ms Muir concluded that his memory deficit was a serious incapacity, and she seems to have inferred that it was a result of the second accident, but the reasoning behind the opinion does not appear from the report. Dr Hirschfeld also had access to most of the other expert evidence and relied particularly upon Ms Field's report. Dr Hirschfeld concluded that the injury in 1989, "has precipitated decompensation of his cognitive state to the extent that it is now apparent." He considered that the effect of the second injury compounded the effects of the first and that the subsequent head injury, "although physically mild has resulted in considerable loss of his previous adaptation to the deficits caused by the head injury in 1976". This opinion seems to be based substantially upon acceptance -- 21 of 34 -- 21 of the plaintiff and his mother's opinions as to his recovery from the first accident. I should say at this point that it is generally accepted in the medical profession that a second brain injury may produce a cumulative effect which exceeds the totality of the expected effects of the two injuries. There is evidence that the plaintiff has undergone a personality change since the second accident. Drs James, Klug, Bradfield and Kirkman have all found cause to suspect that circumstances other than his injuries may have caused many of his post-1989 problems. It is possible that the perceived personality changes are also attributable to such circumstances. As·to his post-1989 capacity for work, he has not tried to find a job in this period. He asserted that he had received medical advice that he should not return to work, but he could not identify the source. I doubt that he received such advice, although it seems he may have been told by somebody at the Rehabilitation Service that he should not go back to work until this case is resolved. He told Dr Kirkman as much. In summary, then, the position is as follows:- (a) The plaintiff suffered serious head injury on 30 April, 1976 and was unconscious for about 2 weeks. (b) On 24 August, 1977 he was assessed by Ira T Smith, who diagnosed organic cerebral disturbance giving rise to impairment to those areas of intellectual processes affecting processes of recent recall, associate learning ability and visual recall. Mr Smith anticipated that his intellectual impairment would reduce the level which he could attain in his occupational endeavours. {c) The plaintiff thereafter returned to work and underwent rehabilitation, although his subsequent worl< history was somewhat unstable. He also completed some further study. -- 22 of 34 -- 22 (d) · On 7 December, 1989 he was again injured and was unconscious for a very short time. He also suffered aggravation of a neck injury and a minor leg injury. He has not worked since. (e) The overwhelming body of medical evidence favours the view that such a short period of unconsciousness was unlikely to be associated with significant brain damage. (f) Brain damage was not detected by the hospital whilst the plaintiff was under treatment there, nor was it detected by Ors Kirkman, James, Toakley, Bradfield or Ohlrich who saw him betwe·en 1989 and 1995. Dr Klug initially formed a similar view, but now concedes the possibility of minor damage attributable to the second accident. (g) Dr Wiltshire, in 1993 and Ms Field and Dr Hirschfeld, in 1995 considered that the second injury caused significant impairment to his intellectual capacity, although Dr Wiltshire may have relied upon a chain of causation upon which the plaintiff does not seek to rely, namely non-organic causation . . There are two bodies of evidence leading to different results. A substantial body of opinion is that it is unlikely that the second accident caused any, or any substantial, additional intellectual incapacity. This view has regard to Mr Smith's test results in 1977, the work history of the plaintiff between the two accidents, examinations and clinical testing after the second accident and an evaluation of the seriousness of the second accident, based upon the plaintiff's account of only a very short period of unconsciousness. The second body of opinion concludes that there has been a significant increase in his incapacity following the second accident. This opinion depends substantially upon acceptance of the plaintiff's -- 23 of 34 -- 23 account of his own performance after the first accident, supported by other witnesses, leading to an inference that his condition ,must have improved after Mr Smith tested him, notwithstanding the fact that those tests were conducted at a time at which the bulk of any likely recovery would probably have occurred. This opinion also depends upon the assumption that the injury incurred in the second accident, however slight, was sufficient to cause permanent brain damage. Assessment of the seriousness of the injury in the second accident depends upon the plaintiff's own description and the effects observed at the hospital. Reliance upon his own recollection is, obviously, a little precarious. On the other hand, the hospital, it may be assumed, was aware of the possible consequences of head injury, and the hospital report certainly suggests that the injury was considered to be slight. Further, the plaintiff was consistent, at least in the early years, in describing a quite short period of unconsciousness. The opinions of the plaintiff and those around him as to the way in which he coped with life and work after the first accident and before the second also deserve close consideration. His family and friends, no doubt, wished to see the plaintiff make a complete recovery, and this may have affected their perceptions. There are some indications of continuing problems. The witness, Hobbs said that the plaintiff displayed signs of brain damage such as forgetfulness. He identified the signs because he had also suffered such injury. The plaintiff's mother said that only those in the family would have been able to detect his continuing intellectual handicap. His employment history, as previously recorded, also raises doubts as to his performance after the first accident. The plaintiff did not impress me as a witness. Making allowance for his alleged memory impairment, he displayed a willingness to resort to the answer, "I -- 24 of 34 -- 24 don't know", with disturbing frequency. He tried to justify his failure to seek work by reference to advice from doctors but was unable to identify the source of such advice. The bulk of medical advice, at least prior to 1995, was that he could work. It is most unlikely that he received advice to the contrary, other than that received from Rehabilitation Service personnel that he should not return to work until the litigation was settled. I find myself with the same nagging suspicion that prompted Dr Ohlrich to doubt whether the plaintiff was trying to achieve his best in the doctor's tests. His failure to remain in employment at the Canungra Hotel in early 1989 is also relevant. He attributes this to incompatibility with another employee, but it is a little difficult to accept that he chose unemployment rather than some other solution. It is also difficult to accept that he continued to seek work in North Queensland for so long in face of the pilots' strike. As I have said, the plaintiff told Dr Kirkman that he had been advised against returning to work until his case had been settled. Dr Klug considered that such advice could have affected his attitude towards returning to work, and as a matter of common sense, I agree. That matter and the fact that, despite the preponderance of medical opinion, he has not sought work lead me to doubt the plaintiff's account of his capacity to work before and after the second accident. As to his various supporting witnesses, I do not doubt their honesty, but I suspect that they have taken optimistic and superficial views of his performance. The various expert witnesses who have excluded significant brain damage have been aware of his work history, at least in a general way, and have not been persuaded to change their views on account of that knowledge. -- 25 of 34 -- 25 In the end, I prefer Dr Ohlrich's view to those of Ms Field and Dr Hirschfeld, largely because Dr Ohlrich gave appropriate balance to all factors. Ms Field and Dr Hirschfeld, in my view, were too much influenced by the assertion that he had performed well between 1977 and 1989. They failed to question the precision and reliability of that evidence in light of the objective evidence of Mr Smith's findings. This led them to infer a somewhat unlikely recovery, having regard to those findings. From this, they inferred that the relatively slight injury in 1989 must have had disproportionately grave results. To support their view it was necessary to accept two doubtful contingencies - further significant recovery after Mr Smith's tests and permanent brain damage from an injury which produced only a short period of unconsciousness. Dr Ohlrich's view is consistent with general medical opinion concerning these matters, and requires only some caution in evaluating the evidence as to the plaintiff's work history in the 1977-89 period, a caution which is also indicated by such records as we have of his earnings in· that period. As to changes in his personality and demeanour, there is much in the expert evidence to suggest that circumstances other than brain damage may have been the cause of any such changes. In the circumstances, I make the following findings of fact:- 1. The plaintiff's intellectual capacity, as found by Mr Smith in August, 1977, was such that he would have had difficulty in coping with work as a barman; 2. Notwithstanding this, he was able to so function, although his employment history was somewhat unstable. I am not satisfied that full details of ifs extent are before the Court. He explored other possible areas of employment, although he did not pursue them. -- 26 of 34 -- 26 3. The ,head injury suffered in 1989 was slight and was followed by unconsciousness which lasted only a few minutes. 4. It is unlikely that he suffered permanent brain damage as a result thereof. 5. In the 1989 accident, he also suffered a soft tissue injury to the cervical spine,. which aggravated pre-existing degenerative changes. 6. The condition of his cervical spine is now such that it is unlikely that he will return to bar work. The above findings leave for determination the extent to which the soft tissue injury to his neck has .continued to cause pain, suffering and incapacity for work and whether those consequences will continue for the future. Primarily, the I relevant evidence comes from Dr Maguire and Dr Winstanley. In most respects, their evidence is in substantial agreement. In 1990, Dr Maguire considered that the musculo-ligamentous injury to his neck was superimposed on some mild pre-existing degenerative change. He expected the injury would cause some significant symptoms over several weeks or, perhaps, several months but that long-term permanent effects were not likely. He thought that pre-existing osteoarthritis might cause a prolonged recovery period and that, "some grumbling symptoms may still be persisting here but they should gradually pass off." Dr Maguir~ did not expect the, "grumbling physical problems", to be of sufficient severity to prevent him doing, "an average type job," as a bottle shop manager. He thought that he may be able to do bar and clerical work without significant problems. In 1995, Dr Maguire opined that it was unlikely that the musculo-Jigamentous injury was still causing very severe pain and disability six years after the injury. He considered that, "the effects of this accident on his neck -- 27 of 34 -- 27 ... have long since passed but it may have had effects for some months." He did not consider that the injury was likely to affect permanently his ca·pacity for work or sport. In 1991, Dr Winstanley considered that the· plaintiff had a suffered a soft tissue injury to his cervical spine which was preventing him from returning to his occupation as a bar manager. He considered that there had been an aggravation of a pre-existing degenerative change in his cervical spine and that, "due to this situation, he has a permanent partial disability relating to his cervical spine of seven per cent". He thought the plaintiff fit to resume lighter duties, including clerical work, although he would not be able to perform heavy type activities, "such as lifting cartons of beer, on a regular basis". He considered that if the plaintiff found suitable employment, his situation would improve. The degenerative change would continue to produce symptoms, but Dr Winstanley did not consider that they were associated with the accident. In 1995, Dr Winstanley said that: "One would expect that the effects of this injury have long since ceased." He also observed that: "Due to this accident he has had, has brought on the onset of symptoms associated with his cervical spine which would have occurred with the progression of time in the normal population. In my opinion, with his normal work activity associated with a period of time, he would have experienced symptoms in a period of five to seven years associated with his cervical spine. " Dr Winstanley means, I think, that although the disabling effects of the second accident ceased to have effect at a relatively early stage, there has been a permanent acceleration of a pre-existing degenerative change. This does not mean that he would have been symptom-free at the present time had he not been -- 28 of 34 -- 28 injured in 1989, but rather that the degenerative process has been accelerated. That this is so appears from .his· cross-examination, which although a little "·: .-.,.. equivocal in some respects, concludes with the assertion that the 1989 accident brought forward by some five to seven years, the plaintiff's current state of disability. Dr Winstanley considered that after the immediate consequences of the accident of the 1989 accident had settled, the plaintiff's symptoms were probably no worse than they had been prior to it, although his condition was likely to decline more quickly than it would otherwise have done. As he considered that he was then unfit for repeated lifting, it follows that he also considered that the plaintiff was only fit for lighter work even before the 1989 accident. Obviously, the acceleration of his. condition has produced only a small amount of increased pain and incapacity in absolute terms. There is a further complication in that the plaintiff has said that either his memory difficulty or his neck problem would, without the other, have rendered him unfit for work. This opinion was, in my view, offered in a somewhat glib way, and I do not necessarily accept it at face value. The defendant submits that if it is the case, then even if I am satisfied that one of these two complaints is attributable to the accident, the plaintiff cannot be compensated for lost income unless he also satisfies me that the other complaint was so attributable. In a strictly causal sense there is something in this argument, but it does not reflect the view which I have formed of the plaintiff and his complaints. Although heroic attempts have been made to prove that he made a substantial and indeed, a surprising, recovery from the injuries suffered in 1976, I am not so satisfied. The vagueness of some aspects of his work history and his wage records for 1986- 7 and 1987-8 lead me to doubt the broad assertions made -- 29 of 34 -- 29 as to his competence. Further, although he had regular employment for most of the 1988-9 tax year, the principal employer was the Nambour RSL Club, and I have not heard from that employer as to his capacity. It is true that his employer at the Canungra Hotel said that he was satisfied with him, but he had only worked there for six weeks. In the end, I conclude that his head injury, neck injury and the slight leg injury caused him significant pain and incapacity for some months after the accident. During that period, he would have been incapacitated for work. Dr Winstanley thought that by January, 1991, his condition had stabilised and that had he been able to find work at that time, his situation would have improved dramatically. Dr Maguire considered that the effects of the accident would have lasted only for some months. In those circumstances, it is probable that any substantial impairment in his capacity to work caused by the second accident had resolved by the time of Dr Winstanley' s report, 24 January, 1991, that is about 14 months after the accident, other than for that attributable to some slight acceleration in his degenerative condition. Probably, it would have taken him some time to find another job had he sought one, keeping in mind that his work experience was largely as a barman and that it was not appropriate that he continue in that calling. Such delay would not have been attributable to any aggravation in his physical or mental condition caused by the accident, but to the disruption of his working life caused by it. He had been about to commence a job at the Canungra Hotel at the time at which he was injured, although it may be that his future in bar work would have been very short. It would have taken some months to find employment other than bar work once he was fit to return to work. I propose to proceed upon the basis that his -- 30 of 34 -- 30 symptoms had largely resolved by January, 1991, subject to some small allowance for the continuing acceleration of the degenerative condition, and to allow him a period of 18 months from the accident as the period during which he was either incapacitated for work or not in employment as a result of the accident, together with a small allowance for possible additional economic loss as a result of the acceleration. On this basis, for pain, suffering and loss of amenity I allow him the sum of $20,000. Most of that pain and associated incapacity was incurred prior to January, 1991. I allow interest on $15,0oo· at four per cent per annum for 5 ¼ years, showing $3, 150. Pain, suffering and loss of amenity since that date has been limited. I have allowed an amount in the award for interest on that part which is attributable to the period between January, 1991 and the present time. I have also made a small allowance for future pain and suffering. As to economic loss, the arrangement with the Canungra Hotel was that he commence on 11 December, 1989 at a gross weekly wage of $450.00, with a review in six months. There was also some potential benefit to him in terms of board and lodgings, annual leave loading and wage increases. It is also necessary to make a small allowance for accelerated interference in his capacity to work as a result of the acceleration of the degenerative changes. Some time was spent in discussing.superannuation benefits, but as I understand it from that part of ex.23 which was received in evidence, such benefits were only available as a matter of law after 1 July, 1992. As the plaintiff has not been significantly incapacitated for work.as a result of the second accident since that time, he has not suffered any appreciable loss in this regard. -- 31 of 34 -- 31 It is necessary to calculate a net figure for after-tax wages. The plaintiff worked for 44 weeks at Nambour RSL Club, deriving gross wages of $16,940.79, ,·. ;r'· .. from which tax deductions were made in the amount of $3,799.90. This shows a net weekly wage of $299.00 and a tax rate of about 22.5%. This rate is calculated only by reference to the amount of the deductions made for the purposes of the PA YE Scheme and his gross wages. His tax assessments suggest that he may have had some allowable deductions. On the other hand, the tax rate on a gross wage of $450 per week would be higher than on a gross wage of $385 per week, the weekly figure at the Nambour RSL Club. Taking account of these factors, a tax rate of 20 per cent would be more than fair to the plaintiff. At that rate, a gross weekly wage of $450 represents a net wage of $360 for 18 months or 78 weeks, showing $28,080. Having regard to his work history from 1986 to 1989 and the medical evidence as to the state of his neck, it is quite likely that he would not have worked for the whole of this period had he not been injured. However, it is also necessary to allow him something for lost payments of holiday leave loading, possible wage increases and a small amount for lost capacity to earn income in the future. Allowing for these contingencies I award the sum of $35,000 for past and future economic loss, of which $28,000 is for past loss, most of which was incurred prior to January, 1991. He has received social security payment of $8,750. He should receive interest at 10 per cent per annum on $18,250 for 5 years, showing $9,125. Unfortunately, the parties have not agreed as to special damages. The plaintiff's claim is set out in ex.49. Items 1 .1, 1.2 , 1.3, 1 .4 and 1.5 are not in dispute. I allow those items. Items 1.6, 1.7 and 1.8 are in dispute. They relate -- 32 of 34 -- 32 to consultations with specialists on referral by Dr Kirkman in August, 1991, December, 1991 and February, 1992. As I consider that the injuries attributable to the second accident had settled by January, 1991, it would be inappropriate to allow these items. Item 1.9 is not disputed. Items 1. 10 and 1 .11 are in dispute. For reasons similar to those already given I disallow them. Items 1. 12 and 1. 13 are not disputed. For reasons similar to those already given, I disallow Item 1.14. Items 1 . 15 and 1 . 1 6 are travelling expenses incidental to attendance at the hospital and upon the physiotherapist and Dr Kirkman. In the latter case, the trips continued until March, 1991 which is slightly after the date by which the consequences of the second accident had ceased to have effect. However the amount per trip is very small, and it is not clear when the last trip was. In the circumstances, I will allow Items 1 . 15 and 1 . 16 in full. I will similarly allow the so-called gap fees, Item 1. 17 in full. For reasons similar to those previously advanced, I allow Item 1.18. Items 1.19, 1.20 and 1.21 are not disputed, although for reasons already given, I would probably have disallowed them had they been in dispute. Item 1.22 relates to hospital fees in August and September, 1991. For reasons already given, that item will be disallowed. There is a further claim for travelling expenses in December, 1990 and January, 1991, associated with visits to a physiotherapist, Ms Shaw. I allow that item. There is a claim for consultation fees paid to Dr Ross in June, 1992 and thereafter. For reasons already given, I will disallow those items. There are physiotherapy fees paid to Ms Shaw totalling $239. These relate to the period December, 1990-January, 1991. allow those items. There is a claim of $4,644.66 for rehabilitation services. This appears to have related to his memory problems. It is not clear when the treatment was undertaken, but as I have found -- 33 of 34 -- 33 that his memory was not affected by the second accident, the amount is not recoverable. Special damages therefore total $5,010.57. Items 1.2 and 1.21 should not bear interest as they have not been paid. The other items, totalling $3104.07, should bear interest at 10 per cent per annum for 5 ¼ years, showing $1,629.63. The award is therefore as follows:- Pain, suffering and loss of amenity Interest at 4% p.a. for 5 ¼ years on $15,000 Past and future economic loss Interest on $18,250 at 10% p.a. for 5 years Special damages Interest on $3,104.07 at 10% p.a. for 5 ¼ years $20,000.00 $3,150.00 $35,000 $9, 125.00 $5,010.57 $1,629.63 $73,915.21 There will be judgment for the plaintiff against the defendants in the amount of $73,915.21. -- 34 of 34 --