Ellen v Dredge Plant (Mining) Pty Ltd [1994] QSC 311

se_ CH-( 311 State 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.) (Issued subject to correction upon revision.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION .) WILLIAMS J No 326 of 1987 MAURICE JOHN ELLEN and DREDGE PLANT (MINING) PTY LTD BRISBANE .. DATE 25/11/94 .. DAY 2 Plaintiff Defendant 76 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 21 -- 241194 D.2 Turn 1 AEA (Williams J) THE COURT RESUMED AT 9.30 A.M. MR STEPHENS: I call Stephen J O'Keefe. STEPHEN JOHN O'KEEFE SWORN AND EXAMINED: MR STEPHENS: Can you tell the Court your full name and residential address?-- Stephen John O'Keefe. I live at 27 Mackay Close, Gold Coast. You are by occupation an accountant?-- Yes, I am a fully qualified accountant. 10 You work as a partner in the firm of BEO Nelson Parkhill?-- 20 That is correct. Have you taken instructions in these proceedings and prepared certain schedules for the assistance of the Court?-- Yes, I have. Have you got a copy of your report with you?-- In my brief case, yes. Have you also your file and notes in relation to that?-- Yes. 30 If the witness might be shown Exhibit A for identification? Is that the original of your report?-- Yes, it is. Check the schedule as well?-- Yes. HIS HONOUR: Are you tendering that? MR STEPHENS: Yes. ADMITTED AND MARKED "EXHIBIT 22 11 MR STEPHENS: When you were compiling this report, did you have full access to the tax returns and financial information of the defendant in relation to his income since the 40 accident?-- Yes, I did. so Were you given certain information in relation to his salary immediately prior to the accident?-- Yes, I was. You came to a conclusion about the prior accident salary being a total $34,889 and included therein a commission of $12,589?-- Yes, I did. How did you calculate that commission?-- The commission was XN: MR STEPHENS 77 WIT: O'KEEFE S J 60 -- 2 of 21 -- 241194 D.2 Turn 1 AEA (Williams J) based on ~ extrapolated from a letter provided from the employer of Mr Ellen for a 19 week period. Mr Ellen for that 19 week period, it was confirmed from his employer, received a commission of $4,900 which we extended over a full 12 month period. HIS HONOUR: Just looking then at the third paragraph on the second page of your report, it's not strictly accurate to say "in the previous 12 months he earned a total of $34, 889 11 ?-- In my assumptions ~dopting the report on number 5, 10 I make the assumption that the amount of $34,889 fairly represents the plaintiff's salary as at 15 February 1984. strictly speaking you are correct, yes. MR STEPHENS: You have set out your assumptions there. Dealing with them briefly, you have had the advantage at that stage of looking at the industrial awards for the various categories of occupations that you extrapolated in your report, have you?-- Yes, I have. Can you tell us why you selected shop assistant for a residual?-- Well, it was based on Mr Ellen's belief that he was at least capable of earning a salary of that level as based on the Shop Assistants Award and being able to undertake those duties. XN: MR STEPHENS 78 WIT: O'KEEFE S J 20 30 40 50 60 -- 3 of 21 -- 251194 D.2 Turn 2 LMS (Williams J) You have included in your calculations figures from the All Groups Consumer Price Index Brisbane. Where do you obtain those figures from?-- From the schedule of the CPI index available from the State Government. How did you estimate the value of the vehicle at 6,000?-- It was Mr Allan's suggestion that. the vehicle was - that the allowance payable for the vehicle was approximately worth a $6,000 figure, and from my experience, I believe that to be a reasonable assumption to make. That is included in 10 schedule L, assumption number 11. The income tax rates you have taken from the rates that you have available, where did you get those rates from?-- Directly from the published Government rates that we have available in our offices. You made certain assumptions about the Medicare levy, the dependent rebate, and you made an assumption based on expectation of life. Is that right?-- That's correct. 20 Where did you obtain that information from?-- The Medicare levy of 1.4 per cent is again available from our internal library published by the Government, the Australian Taxation Office. The dependent rebate information is again published by the Australian Taxation Office, and we have sourced that from our internal library. The plaintiff's expected life duration is, as it is sourced- as stated in item 16 of schedule L. The source was the Australian Life Tables 1980 to 1982. 30 You made the assumption about superannuation. Is that based on - what were those assumptions based on?-- Again published by the government. They have announced their intention to implement a mandatory superannuation scheme for employees and employers which increases by 9 per cent by the year - July 2002. That is an increasing scale that is in place now at 4 per cent, and that increases over the next nine years to that date. What we have done is taken a weighted average of the rate, the rate applicable. Does that help? 40 Yes, thanks. Could you tell us just briefly what each of the schedules to your report represent?-- Yes. Schedule A----- Would you like a spare copy?-- No, I have one, thank you. Schedule A shows the actual earnings from the date of the accident to the date of - to yesterday's date. You excluded from there the Workers' Compensation receipts and the unemployment receipts on the basis that they are so refundable?-- Yes. So, they shouldn't be taken into account when taken away from the expected earnings. Is that right?-- That is correct, yes. So, where you show unemployment benefits as zero, for example, there were, in fact, unemployment benefits received?-- Yes. XN: MR STEPHENS WIT: O'KEEFE S J 79 60 -- 4 of 21 -- 251194 D.2 Turn 2 LMS (Williams J) But you haven't brought them into the calculation on that basis?--" That's correct, yes. The riext schedble~ schedule B?-- It is an estimate of the earnings th~t Mr~Allan would have earned from Direct Plant Mining Proprietary Limited had he continued in that employment till yesterday's date. We "COmmenced with a base salary as stated before of $24,889. That is our assumption 5 on schedule L." That base salary has been indexed according to the consumer price index for the Brisbane - on the Brisbane 10 index from the date of the accident till yesterday's date. Have you also compared this with the schedules for the earnings-in that jndustry? You simply indexed that figure. You haven't looked at any indexes - sorry, you haven't looked at any industrial gazettes or awards relating to the dredging industry as such?-- We have at a latter part of our report, yes. They're simply" indexed figures?-- Yes. There is one matter which Das recentJy been brought to our attention, and that is that-the"directors of Dredge Plant M~ning Proprietary Limited swore an affidavit of insolvency and passed a resolution for the voluntary winding up of their company as at, I think, 1991. So, the assumption to the extent that it assumes continued employment, would be incorrect, would it not, past that date in 1991? Were you aware of that?-- No, I wasn't aware of that. The next schedule, schedule C?-- Schedule C represents our calculation of net past economic loss. That shows the differences between the two_ schedules A and schedule B to determine a net past economic loss. Schedule D is fairly self-explanatory?-- Schedule D shows the benefits that Mr Allan was receiving, and there is an explanation attaching to both motor vehicle and telephone allowances. We iricluded"the motor vehicle allowance as part of his salary package and excluded the telephone allowance as something extraordinary to reimburse him for expenses he had incurred. Schedule E?-- Schedule E represents the reimbursement for tax paid on the refundable Workers' Compensation case - on the refundable Workers' -compensation receipts, sorry. It is our understanding, based on the Fox v. Woods case, that although Mr AlUm has received Workers' Compensation direct from the Workers' Compensation Board, he still had to pay tax on those amounts. You don't need to dwell on that. Your Honour, my friend has indicated to me he agrees on the Fox v. Wood component. HIS HONOUR: I can be told that in due couise. MR STEPHENS: Schedule F?-- Represents our estimate of future XN: MR STEPHENS WIT: O'KEEFE S J 80 20 30 40 50 60 -- 5 of 21 -- 251194 D.2 Turn 2 LMS (Williams J} economic loss of wages. It shows the difference between what Mr Allan would have earned as a shop assistant as compared to what. Mr Allan would have earned, based on our assumptions, as a dredge operator retaining his old position, a chief dredge operator and a leading hand as a plumber or drainer, as he was qualified to do. What we tried to do is there provide a number of alternatives for consideration. So, these are different scenarios that might have occurred but for the accident?-- Likely. It is some of the career options. Schedule G?-- Schedule G shows our estimate of the net future economic loss. It shows the income projections for the various career scenarios projected forward and based on present values. It shows six career options, dredge operator, retaining opposition, chief operator under a fully operational dredge, chief operator under a laid-up dredge, a leading hand as a plumber or drainer and a shop assistant. What we have done is we have taken the award wages, based on the awards that - the awards that we have reviewed, and we have projected them forward based on the period from today's date till the suggested date of retirement, which would be in the year----- HIS HONOUR: 2010, I think?-- Yes, 18 May 2010. We have taken the estimated net weekly income and projected it forward in weeks and discounted that back using a present value of 5 per cent as required under the Common Law Practice Act to give what we expect to be future earnings for each of those 10 20 career options. ~ Then you deducted the assumed current earnings capacity as a shop assistant and that gives you the - they are gross figures you have got there, are they?-- They're net figures, Your Honour, estimated net weekly income, schedule H, and that refers to schedule H in schedule G. In the last column then the word 11 gross 11 should be net. Is that right?-- Sorry, I don't know where you are reading from. I am looking at - I have gone on a bit, sorry. I will just ieave it as that. You are still dealing with G, aren't you?-- That's correct. Schedule H you will see how we arrived at the net weekly income, as itemised in schedule G, the net weekly income as used for the purpose of calculating the net future economic loss in schedule G. We start off in schedule H with the gross weekly incomes as per the awards, less the applicable tax and Medicare levy to arrive our net weekly figure, and we use those figures in determining the net future economic loss as calculated in schedule G. MR STEPHENS: Schedule I?-- Schedule I represents the current wage rates for the various occupations that we have don~ our estimates on. It shows the gross wages plus allowances currently provided under the awards and used in schedule H. It is just a further detailing for purposes of calculating the weekly gross wages in schedule H. You also make reference to the various awards to which you XN: MR STEPHENS WIT: O'KEEFE S J 81 -- 6 of 21 -- 251194 D.2 Turn 2 LMS (Williams J} have had reference in formulating these calculations?-- Those are correct. They are listed in schedule I under the "Occupations and Relevant Awards". Schedule" J.?-- As stated previously, our taxation office or Australian Government have implemented a superannuation benefits scheme that all employees must participate in. We have taken the gross- schedule J -.the first schedule in schedule J is the lost wages as calculated from schedule K, which is the subsequent schedule, and they have to be read 10 concurrently. Perhaps we should deal with schedule K first?-- Schedule K is the current estimated weekly earnings from each of the awards, and they are listed down there in schedule K. We have extrapolated those using present values and discounted them forward till the projected retirement date of Mr Allan. In determining the total gross wages that would have been earned from today's date till his date of retirement, they are listed down as lost wages in schedule J and schedule K. We have then 20 taken the weighted average superannuation benefit that would have been received by Mr Allan from today's date till his date of retirement. As stated previously, that superannuation benefit is currently 4 per cent but is due to increase by 9 per cent by the year 2002. 7.17 per cent is the weighted average of those. When you say "weighted average", is it weighted by years or weighted by amount?-- It is weighted by years. In other words, over the period from now to then, the actual rate of interest or the rate of increase would be 7.17. Is that what you mean?-- Yes, that's correct. The superannuation benefits that Mr Allan would have received calculated as the benefits lost after taking into account the contributions tax that is payable on superannuation. The reason you used those gross figures is because that is the superannuation contribution based on a gross wage?-- That is 30 .correct, yes. 40 Thank you, Your Honour. CROSS-EXAMINATION: MR FORDE: If we look at the assumptions, schedule L, my so learned friend has referred you immediately to the first assumption which would then reflect, would it not, upon schedule C as from about 1 July 1991 in that the defendant company was in liquidation from August 1991?-- Yes. Then our assumption, I believe, would be that we could only calculate his net past economic loss up to the date of the liquidation of the company. Even prior to that, you assume for all those years the XXN: MR FORDE WIT: O'KEEFE S J 82 60 -- 7 of 21 -- 251194 D.2 Turn 2 LMS (Williams J) 'commission would have been at least $12,000-odd or something, approaching above 30 per cent of his gross wage?-- Yes, that's correct. So that if business fell off or he changed jobs within the industry, that particular assumption may not be valued necessarily?-- If business fell off, it is likely to suggest commissions would decrease, yes. XXN: MR FORDE WIT: O'KEEFE S J 83 10 20 30 50 60 -- 8 of 21 -- 241194 D.2 Turn 3 AEA (Williams J) And from your own experience, the fact that a company goes into liquidation might point towards not being particularly efficient in the industry or operating at a large profit. They don't usually go into liquidation voluntarily if things are rosy?-- Not if things are rosy, no, but anything is possible, yes. ' If then we apply the discounting facto~ that he may not have received that commission throughout, it certainly may be more relevant to post August 1991 when the defendant.no longer 10 could meet that commitment of paying a commission if it was in liquidation?-- Yes. Obviously you wouldn't have had time to do a calculation based on some other position?-- No, this morning was the first I heard of the ~iquidation. Because then you have worked on the assumption that he may have maintained that level of income right up to the present point .. That then is reflected in your future economic loss component in the ideal situation of retaining his old position. That's the largest quantum aspect of the future; is it not?-~ ~es, that is. You have also assumed that he would have, in assumption 17, worked to 65 years of age. Is it valid to discount that if you have allowed, say, 16 years and he were only to work to age 60? Is it valid to discount that by 5/16ths or does that give an untrue picture? That is on your total figures?-- Yes, I do understand the question. HIS HONOUR: You would be better off taking a different number and doing your calculation that way?-- Yes, it's a mathematical exercise. MR FORDE: In schedule F where you have stated the range of estimated future losses, you haven't set off any future earning at that point, have you?-- What do you mean by, "set off future earning?" · HIS HONOUR: You have assumed that he is totally unemployable for those purposes and you have worked out the total income loss for the position of dredge operator, old position, etcetera?-- Yes, that is correct. If, for example, the conclusion was that he had a current earning capacity as a shop assistant, when you went to schedule G you would deduct that figure of approximately $200,000 from the other position which was selected as the 20 30 40 appropriate one?-- That is correct, yes. so MR FORDE: In fact, schedule H sets out the differential of the two between the shop assistant. It's just under $100 a week for a plumber?-- Yes~ They are the only questions I have of the witness. XXN : MR FORDE WIT: O'KEEFE S J 60 -- 9 of 21 -- 241194 D.2 Turn 3 AEA (Williams J) RE-EXAMINATION: MR STEPHENS~ The conclusions you coma to in your report as to past economic loss and future economic loss, do they include a component for the residual earning capacity of Mr Ellen?-- Could you explain the question? Have you, in making your estimates - I am talking about the actual report - taken into account there may be a residual earning capacity as, say, a shop assistant, and you have taken that out of the calculation that forms a deduction in your ultimate calculation ---- MR FORDE: I object to the witness being led but apart from that point, the witness has given evidence. Can my learned friend be more specific as to .which schedule he is talking about when he says "that deduction being made" because in 10 answer to Your Honour's question, the schedule we are speaking 20 about is schedule G. HIS HONOUR: Yes. It clearly hasn't been made there. It's. obvious from looking at it. MR FORDE: And more specifically, F, which condenses it into. a form, he seems to answer he hadn't taken it out at that stage. If my learned friend is attempting to vary that, could he be more specific and not lead the witness? HIS HONOUR: Yes, Mr Stephens. MR STEPHENS: Could you explain succinctly how you come to your summary of your report by reference of the schedule and particularly schedule F and the column, "shop assistant, estimates wages from shop assistant"?-- In determining Mr Ellen's - in assessing Mr Ellen's future economic loss from today's date onwards until his expected date of retirement, we have taken, as a base salary, at the very least he would earn 30 an income equivalent to a shop assistant, and we have used the 40 relevant award in assessing that amount so we have, that is, we have assumed that is the base or minimum salary he would have earnt in that period. From that point we have then determined, using various awards as listed, what he would have earnt in at least four other career alternatives, and we have deducted one from the other in determining his future economic loss. In other words, our estimate of future economic loss represents his loss from the difference between a shop assistant and any future career, other career, options that he could take. ~ MR STEPHENS: So in schedule F when you ultimately come to a range of estimated future losses, can you tell us what is added and taken away from what is in the previous column?-~ In schedule F, the first line of schedule F refers to a dredge operator, career choice. If you go back to schedule G, the first listing in schedule G shows that his net projected future earning would be, as a dredge operator, $372,841.05. The likely wages that would have been received as a shop RXN: MR STEPHENS 85 WIT: O'KEEFE S J 60 -- 10 of 21 -- 241194 D.2 Turn 3 AEA (Williams J) assistant in schedule G is $199,470.47. Schedule F then shows the difference between those two as $173,370.58 and we have gone through each of his likely career options as a chief operator, as a leading hand, as a plumber or retaining his old position less the likely wages that would have been received if he was- Mr Ellen was to do or to undertake a shop assistant's role. So that the estimates, if I might summarise, the estimates of future loss are net of his residual earning capacity as a shop 10 assistant?-- That is correct, yes. As far as your projection for future loss is concerned, you haven't simply relied on his retaining his old job, you have provided other options and those have been based on the Gazette?-- That is correct, yes. Thank you. MR FORDE: I should apologise to the witness, I misunderstood 20 one of his columns in schedule F as being he had already taken out the Shop Assistants Award, .but having said that, could I seek leave' ~to ask ~a ques·tion about whether, in fact, ·the assumption is that it may have been non-operational for 20 per cent of· the time for repairs or· whatever, if that has been transposed across to schedule G, as far as chief operator dredge laid-up is concerned? HIS HONOUR: The figure is the same there, $264,849. So one would think it's the same. 30 MR FORDE: In other words, when looking at that the meaning of "dredge laid-up," does that mean it's only out of commission for 20 per cent of the time? That is the assumption - his assumption has been transposed to that? Just so we don't have a misunderstanding as to what the term, "laid-up'' means. WITNESS: I·s· that a question directed to me? HIS HONOUR:· It is a question· to you, Mr 0' Keefe?-- Yes, the 40 term "laid-up" means it is laid-up 20 per cent of the time. HIS HONOUR: That is used consistently in schedules F and G?-- Yes, it· is. HIS HONOUR: You are excused. Thank you for your attendance. MR STEPHENS: I call Dr Dodd. RXN: MR STEPHENS 86 WIT: O'KEEFE S J 50 60 -- 11 of 21 -- 241194 D.2 Turn 3 AEA (Williams J) PETER ALLAN DODD, SWORN AND EXAMINED: MR STEPHENS: Is your full name Peter Dodd?-- . Peter Alan Dodd. You carry on a practise as an orthopedic surgeon at 16 Tweed Street, Southport?-- Yes. You are familiar with the plaintiff in these proceedings, Mr Ellen?-- Yes. In fact, you have been his treating doctor for some time?-- That is correct. Treating surgeon?-- Yes. You have given a number of reports to the Workers' 10 Compensation Board and a report to his solicitor, Steven J 20 Hockey?-- Yes, I have. Have you got copies of those with you?-- Yes r I have .. HIS HONOUR: You may refer to them. They have already been marked in evidence. MR STEPHENS: The first report that I have of yours is 31 October 1991 which was after the first laminectomy and prior to the second?-- Yes, I have that. ~ Are there any previous reports that you .have which are of an~ relevance to these proceedings?-- I do have a report to the Workers' Compensation Board dated 23 May 1990. Can you just tell us, in summary, what you said then?-- I will read my opinion section, "Morris Ellen is continuing to suffer back problems which can be directly attributed toa compression fracture of the vertebra body at L4 that occurred on 6 February 1984. He does have spinal canal stenosis 40 present on his present X-rays. At the present point .. of time he is at a physio therapist to endeavour to alleviate the lower back and leg symptoms. I am advising him strongly to consider a change of occupation and/or at least a change in aspect with respect to his present occupation as he should be doing lighter rather than heavier work. He should particularly avoid bending and lifting. There is a possibility he may come to further surgery in the future particularly to alleviate the stenosis that has occurred at L3-4 secondary to his previous surgery." so The accident date there that you mentioned was the 6th. Is that a typo? The accident was, in fact, on 16 February; was it not?-- Yes, that is a typing error. With your report of 31 October 1991, you came to a conclusion in relation to his condition as to his permanent functional disability. Your conclusion was that you believed then that his disability was in the order of 50 per cent of his spine XN: MR STEPHENS . 87 WIT: DODD S A 60 -- 12 of 21 -- 241194 D.2 Turn 3 AEA (Williams J) taken as a whole?-- Yes, I did. That figure took into account progressive degeneration that may occur in the future and necessitate early retirement. Has the ~Ubsequent laminectomy or anything else had any effect or caused you to change your view as to the disability at all?-- The second lamineqtomy relieved some symptoms, but he still has significant back problems and my opinion remains the same. You last had a conference with the plaintiff some time this year. When was the last time you ~aw him?-- The date of the last consultation was 18 April 1994. And you say your position really remains unchanged?-- That is correct. I noticed that by 3 March 1992, you were reporting to the Workers' Compensation Board that you believed his condition 10 had stabilised; is that right?-- Yes. 20 However, by May of 1992 his condition had deteriorate so rapidly that you were asking for permission to do a further laminectomy; is that right?-- Not necessarily. I believe his condition had stabilised at that level and I thought a further laminectomy may help him. HIS HONOUR: 3 May, that buttocks?-- getting any When you say " stabilised" in that report of is stabilised with severe pain radiating into his By stabilised, it wasn't getting better or worse. We had reached a plateau. MR STEPHENS: In your report of 31 October 1991 you refer to an accident at work on 15 February 1984. Again, that is the accident of 16 February 1984 you are referring to?-- Yes. For the future it's true to say, isn't it, it is unlikely that his condition~will improve?-- That is true. 30 And there is; is there not, some likelihood his condition will 40 deteriorate?-- Yes. Both through natural causes and through the circumstances that there tends to be, does there not, ----- MR FORDE: Perhaps the doctor could give the evidence this morning. MR STEPHENS: Yes, thank you. HIS HONOUR: You are dealing with an expert witness. Bear in mind what Mr Forde has said. MR STEPHENS: Yes. Could you tell us whether or not you expect - what your expectations are as to the future degeneration of Mr Ellen's condition and the likelihood of further surgery?-- His condition is likely to deteriorate. The rate of deterioration is unpredictable depending on how he looks after his back and how he is managed. It is unlikely XN: MR STEPHENS 88 WIT: DODD S A 50 60 -- 13 of 21 -- 241194 D.2 Turn 3 AEA (Williams J) that he will come to further surgery unless instability of his spine becomes a problem. At the moment he does have some early symptoms suggestive of instability and he has been fitted with a lumbar brace but at his age one would like to think we would avoid future surgery by changing in his lifestyle and in his occupation. HIS HONOUR: If he did come to future surgery, would that be fusion?-- That would be a spinal fusion, yes. MR STEPHENS: What is the likelihood of that? Can you give a percentage likelihood? Is there a 50/SO chance?-- I think it would be less than that. Probably a 25 per cent chance. What would be the cost of that sort of surgery?-- That is quite expensive surgery. I can give you a rough estimate. It usually requires about ten days in hospital at approximately $400 a day; operating theatre fee of approximately $1,500; surgeons' and anesthetist's fees would probably come to the order of $2,500 and he would also have to pay for instrumentations used, that is, the rods and wires to fuse his spine and that would be in the order of $1,500. That is a rough estimate of what a spinal fusion would cost. Your cost would be included in that $2,500?-- Yes. Have you seen the report of Dr Morris at all?-- No. Dr Morris comes to a conclusion that or came to a conclusion 10 20 on 21 April 1994 that he would put overall disability to the 30 back at about 15 per cent to the total body. Would you agree with that conclusion or disagree?-- Well, that is one way of looking at it. I regarded it at 50 per cent of the spine. Now, I guess 50 per cent of the spine does approximate to 15 to 20 per cent of the total body to be quite honest. And he says when he saw him which was somewhere around about the 19th of the 4th 1994, he said, "When I saw him this would have been slightly higher due to the aggravation and probably would have been about 18 per cent, but:.I expect this will 40 decrease back to 15 per cent. With this type of disabili£y he would be able to do moderate type activities but not heavy lifting or bending." Would you agree with that conclusion?-- The last part of that sentence, I would, yes. What wouldn't you agree with?-- I think he is splitting hairs a bit mentioning 15 to 18 per cent going back to 15. Either it's 15 per cent or 20 per cent and I would probably think more the higher. Thank you. XN: MR STEPHENS 89 WIT: DODD S A 50 60 -- 14 of 21 -- 241194 D.2 Turn 3 AEA (Williams J) CROSS~EXAMINATION: MR FORDE: You have expressed the view that the plaintiff has a 50 per cent disability to the spine. Did you use any of the recognised tables of the American Medical Association Guides or just your own experience?-- My own experience. When you assess disability do you distinguish disability from 10 impairment of the person or not?-- I do a combination and I take into account not only their clinical radiological features, but their life status, their occupation, recreational activities, etcetera. In this instance you were aware that the plaintiff, after this particular accident went, back to work with the defendant and suffered some problems to his back. Were you aware of that?-- Yes. And you were also aware, are you, that heavy work prior to the first operation was undesirable?-- Yes. And after the first operation you counselled him against heavy work?-- I had. You are aware he continued working in the landscaping business?-- Yes. Did you counsel him against that?-- Yes. And what you recommend now is that he should take more care of his life and lifestyle and that. Would it have made any difference to his likelihood of the second operation if he had accepted your advice?-- It may have done. When you looked initially at his back - could I refer you to certain X-rays which were taken initially; 2 October '87?-- No, I don't go back that early in mine. Could I just show you this report from Dr Ryan who is a collegue of Dr Cervenak?-- Yes. Is there anything in that report to indicate that at that point in time there was any degenerative change to the plaintiff's spine either by way of stenosis or otherwise?-- No. The next report that you have, that is an ordinary X-ray?-- 20 30 40 That is correct. ~ The next report is the CAT scan, is that correct, of 4 August '88?-- Yes, I have a copy of that. Does the thickening of the ligamentaflava indicate degenerative change in some instances?-- Yes, it can .. It is also noted there were mild degenerative changes in the apophyseal joints. Did you form a view as to how significant XXN: MR FORDE WIT: DODD S A 60 -- 15 of 21 -- 241194 D.2 Turn 3 AEA (Williams J) those two aspects of the report were as to whether they were caused by the accident or not?-- No, I cannot recall his films exactly but reading that report, at the L4-5 level he has mild degenerative changes in the apophyseal joints and ligamentaflava. That is a normal finding of a man in his 40's so I place no significance to those. XXN: MR FORDE 91 WIT: DODD S A 10 20 30 40 50 60 -- 16 of 21 -- 251194 D.2 Turn 4 LMS (Williams J) In L3-L4 is calcification in the left ligamentaflava?-- Yes. The calcification, is that related or not to any earlier problem suffered prior to the accident?-- I don't think so. This report is taken four years after the accident, and I think that calcification can be put down to a post-traumatic effect rather than a degenerative effect. HIS HONOUR: In other words, it is sequeli of the injury he sustained in the accident?-- Yes. 1 o MR FORDE: Do you have the myelogram of 29 August 1988?-- Yes. The narrowing of the spinal canal at the L3-L4 and L4-L5, it says there that it was due to posterior disc protrusion at these levels. Can you say whether or not that the accident actually caused those particular - that narrowing?-- First of all, I don't believe that report because it is so much out of keeping with the CT scan done about two weeks beforehand. I 20 think that is an incorrect reading of the report by the radiologist. I don't think at any time when I consulted Mr Allan did I consider that he had disc protrusions at L3-4, L4-5. ~ That has never been an issue. Was there any condition that you noted to his spine, any inherent narrowing of his spinal canal?-- That is impossible to state. I would have thought - again I am talking in hindsight - that if he did have - what we are talking about here is congenital spinal canal stenosis. In other words, was 30 it predisposed to problems because it was narrow, that would have come up in one of the reports, but it hasn't been mentioned. HIS HONOUR: Doctor, I will also show you the X-ray report which.is contained in the Tweed Hospital reports. It seems to be an X~ray taken on 19 February, three days after the accident?-- Yes. Is there 4ny comment ~hat you wish to make in the light of the ~ questions that are being directed to you, having read that?-- A significant factor pointed out is that, apart from the compression f~ctor of L4, there is slight subluxation of L3-4. What that indicates is the epiphyseal joints at that level were damaged at the time of the injury as well as the vertebral body. MR FORDE: Any slgn of the facet joint being affected at that level, do yoti say that is related to the accident?-- Yes. Was there any ~ was that at the L5~S1 or not?-- No. I have never considered there to be any pathology to L5-S1 . The radiologist does point out in that report - I think the original one- that there is slight disc narrowing at L5-S1, which is probably anatomical, and I think that would be the case. That is the report dated 2 October 1987. What do you mean by that?-- • That is the way he is made, basically. He has a narrow dis9 oase and it has always been XXN: MR FORDE WIT: DODD P A 92 50 60 -- 17 of 21 -- 251194 D.2 Turn 4 LMS (Williams J) the case. Would that leave him vulnerable long-term to having back problems if he did heavy work throughout his life?-- No. What is the significance of that?-- Radiologically only. If I could just take you back shortly to the CT scan of 4 August?-- Yes. There is mention of a mild bulge-----?-- Yes. -----of the anulus with some early degeneration of the facet joint. Can you comment upon what may have caused a mild bulge of the anulus?-- We are talking about a L5-S1 level, are we? Yes?-- He doesn't comment there about the facet joints on that report but it does say, ''mild posterior bulge of the anulus", which is a normal finding. For someone of that age?-- For anyone. What about if I suggested to you there was early degeneration of the facet joint, would that be significant of someone of that age?-- Probably not. If you look at the history of the plaintiff, he had a job at Dreamworld, which-I believe you are aware of, and he commented to Dr Morris his back seemed to settle down there and didn't 10 20 seem to have any problems in that occupation?-- Yes. 30 Is that the sort of career pattern that you would recommend to minimise effects upon his back in the future?-- Sorry, I am not exactly sure what his duties were. He gave evidence yesterday that he could walk around when he~: wished. He could sit down when he wished, and tbe type of job suited his---- HIS HONOUR: I don't think there was any heavy exertion involved in the work. MR FORDE: Yes, that's correct, Your Honour. There was no heavy work involved, and he told Dr Morris at that time when he was working there he didn't have any back problem~. This is before he went and did landscaping, of coprse, would that type of work be the sort of thing you. would recommend to him?-- Yes. I think if he had a AO semi-sedentary sort of occupation where he had time when he so could rest and sit down and walk around, that would be fine. You are aware that is what. he does with his taxi driving now. If he travels distances 15 minutes, half an hour, if he wants to rest, he can get out and. do that. Is that the sort of job also that may be suitable to him?-- I know he has been having trouble with his back recently. I guess yes and no. He has been fitted with a back brace, .He may have to modify his workplace to get around his back, but I think he could XXN: MR FORDE WIT: DODD P A 93 60 -- 18 of 21 -- 251194 D.2 Turn 4 LMS (Williams J) probably cope with that sort of work. What do you say about being a shop assistant that might be selling mechanical parts or basically dealing with people in a selling situation where you can sit down if you wish and get up and serve people? Is that something you would see as a problem for him or not?-- With some limitations I think he could cope with that. sort of occupation, yes. Thank you. 10 MR STEPHENS: Nothing arising, thank you, Your Honour. WITNESS EXCUSED MR STEPHENS: That is my case~ Your Honour. HIS HONOUR: Yes, Mr Forde? MR FORDE: Your Honour, I don't intend to call any further evidence. It is perhaps proper I tender two letters from the Workers' Compensation Board. The first is 23 November 1994, and .the second is of 24 November 1994, which sets out some special damages and payments made to the plaintiff, and the Fox v. Wood component. HIS HONOUR: Exhibit 23 will be the letter from the Workers' Compensation Board of 23 November 1994, and Exhibit 24 will be the letter of 24 November. ADMITTED AND MARKED "EXHIBIT 23 11 ADMITTED AND MARKED "EXHIBIT 24" MR STEPHENS: Your Honour, I haven't actually mentioned this to my f~iend, but he might put in the radiologist's reports which were discussed in evidence. I haven't had the benefit of copies of those. MR FORDE: I have marked copies, Your Honour. MR STEPHENS: I have no objection to markings, if Your Honour doesn't. MR FORDE: Your Honour, there is a - the witness may have taken the earlier one of July 1988. HIS HONOUR: I think really he read most of the critical parts in the· course of giving his evidence, didn't he? XXN: MR FORDE WIT: DODD P A 94 20 30 40 50 60 -- 19 of 21 -- 251194 D.2 Turn 4 LMS (Williams J) MR FORDE: Yes. It is not something in retrospect that is of significance now, but it is on the record. MR STEPHENS: It might affect addresses. MR FORDE: I am happy to hand up three reports, Your Honour. They are dated 2 October 1987, 4 .August 1988, 29 August 1988, 19 November 1992. I tender those, Your Honour. HIS HONOUR: Those four reports will be Exhibit 25. ADMITTED AND MARKED "EXHIBIT 25" HIS HONOUR: Just going back to Exhibit 23 and Exhibit 24, 10 really they have to be added together, haven't they? 20 MR FORDE: Yes, Your Honour. HIS HONOUR: I suppose the real point I am saying is there is no duplication. It is just simply a matter of adding the----- MR FORDE: My instructions are, and they speak for themselves, that they refer to two different periods. HIS HONOUR: I think you go first, Mr Forde. MR FORDE: Yes. Your Honour, I will tender a report of Dr Morris dated 21 April 1994. ADMITTED AND MARKED "EXHIBIT 26" MR FORDE ADDRESSED TO HIS HONOUR FROM 10.45 A.M. TO XXN: MR FORDE WIT: DODD P A 95 30 40 50 60 -- 20 of 21 -- 10 LIST OF WITNESSES JUDGE: WILLIAMS J DATE: 25/11/94 20 MATTER: ELLEN v. DREDGE PLANT MINING PTY LTD WITNESS STATUS COUNSEL PAGE S J O'KEEFE XN MR STEPHENS 77 (Accountant) XXN MR FORDE 82 RXN MR STEPHENS 85 30 P A DODD XN MR STEPHENS 87 (Doctor) XXN MR FORDE 90 ----- 40 50 60 -- 21 of 21 --