Austin v Bromley & Ors [1994] QSC 289

IN THE SUPREME COURT OF QUEENSLAND No. 3064 of 1989 Brisbane Before Mr Justice G N Williams [Austin v. Bromley and Ors] BETWEEN: WILLIAM NORMAN AUSTIN Plaintiff AND: GEOFFREY DAVID BROMLEY First Defendant AND: LINDSAY G CHAMBERS Second Defendant AND: TRANSPORT ACCIDENT COMMISSION (VICTORIA) Defendant by Election JUDGMENT - WILLIAMS J Judgment delivered 09/11/1994 CATCHWORDSDAMAGES - whiplash injury - emotional and psychological problems - stevedore - age 46 at accident and 54 at trial - unemployability due to factors other than injuries in accident - total award $294,901.36 Counsel: Griffin QC and Mr McGregor for the plaintiff J Douglas QC and Mr Kent for the defendant by election Solicitors: Philippa Power and Associates for plaintiff Quinlan Miller and Treston for the defendant by election Hearing dates: 4, 6 and 7 October 1994 -- 1 of 16 -- IN THE SUPREME COURT OF QUEENSLAND No. 3064 of 1989 BETWEEN: WILLIAM NORMAN AUSTIN Plaintiff AND: GEOFFREY DAVID BROMLEY First Defendant AND: LINDSAY G CHAMBERS Second Defendant AND: TRANSPORT ACCIDENT COMMISSION (VICTORIA) Defendant by Election JUDGMENT - WILLIAMS J Judgment delivered 09/11/1994 The plaintiff, William Norman Austin, sustained personal injuries when the vehicle in which he was travelling on the South East Freeway, was struck from behind by a truck and forced into the vehicle in front. That accident happened on 10 October 1986. The defendant by election has admitted liability and judgment can be entered against that party. The plaintiff was born 5 January 1940, making him 46 years as at the date of the accident, and aged 54 years at trial. The plaintiff left school at aged 14 years and worked in various jobs until aged about 19 years, when he commenced work as a stevedore. From then until the date of the accident, he was in regular employment on the wharves. Initially he worked -- 2 of 16 -- 2 in Sydney and when an opportunity arose in 1968 he came to Brisbane to work for Consolidated Stevedores. Generally he was employed in an in-charge position. He worked for that company in Brisbane until 1975 and during the latter period his position was described as charge foreman. That meant he was in charge of a gang of up to 14 or 16 men. In 1975, he was approached to accept a position as foreman at the Glebe Island Container terminal in Sydney, and he accepted it because he wanted to gain experience with containerisation. He was a charge foreman at that terminal for about 9 years until in consequence of a company merger he lost that position. Over the next 12 to 18 months, he was in what was described as the casual pool in Sydney, but he was able to maintain regular employment. Then in 1984, he returned to Brisbane. He was hoping to get a position with Conaust but they had no vacancy at that time for a permanent foreman. In consequence, he worked out of the pool until such a job became available. Again, he had regular employment, usually at foreman level, until the date of the accident. Thus as at the date of the accident, he had worked for over 20 years on the wharves. He was well known to a number of the stevedoring companies, and generally his work was regarded as of a high standard. In the accident, he sustained a direct blow to his right knee which caused hemarthorsis, and also bruising to his left elbow. In addition, he sustained whiplash-type injury to his -- 3 of 16 -- 3 neck. One of the major issues litigated was the extent to which, if at all, he sustained an injury to his back in the lumbar region. The injuries to the knee and elbow were relatively minor and had completely resolved within a short period of time. The plaintiff has no ongoing problems with those joints. But he still complains of pain, discomfort and lack of mobility in his cervical and lumbar spine regions notwithstanding that medical investigations have not been able to determine any orthopaedic cause for such complaints. The plaintiff contends that his condition has not improved over the years. He has not worked since the accident and claims damages on the basis that the injuries he then sustained have rendered him totally and permanently unemployable. A number of doctors gave evidence at the trial and there was no unanimity in the opinions they expressed. In consequence, it is necessary to review the medical evidence and to make findings of fact with respect to the injuries initially sustained by the plaintiff, his present condition, and the extent to which his working capacity has been impaired. A few hours after the accident he consulted Dr McCawley, a general practitioner. On examination that doctor noted a tender, bruised swollen right knee, a stiff left elbow, and marked neck muscle tenderness with spasm and decreased ability to flex and rotate the neck. On that occasion the plaintiff made no complaint that his back was sore or had been in some way injured; specifically he made no complaint of pain or -- 4 of 16 -- 4 tenderness in the lumbar region. In evidence-in-chief the plaintiff conceded that he, at that time, "hadn't noticed anything really then" with respect to his lower back. On the following day he attended at the same medical practice, but on this occasion he was seen by Dr C M Hughes. She was called to give evidence, and referred specifically to her note of that examination which forms part of ex. 39. She explained, and I accept, that the note establishes that all complaints then made by the plaintiff related to the neck region. There was muscle spasm equally on either side. The notation "spine also slightly tender" is a reference to tenderness over the length of the cervical spine. I accept the evidence of Dr Hughes that if the plaintiff had made a complaint of lower back pain then there would have been a specific recording of that. The plaintiff said in his evidence-in-chief that on that following morning, 11 October, he "couldn't move any part of my body". He complained over being "like a board, that stiff". Insofar as the plaintiff experienced such symptoms I find that they were in consequence of the whiplash injury to the cervical spine, and were not specifically referable to some injury to the lumbar area. On 13 October 1986, Dr McCawley referred the plaintiff to a physiotherapist, C M Young (nee Cummings) for treatment. His referral letter is ex. 38. There is reference in that letter to a whiplash type injury, but no reference to any injury to the lumbar region requiring treatment. A subsequent letter to -- 5 of 16 -- 5 the physiotherapist from Dr Broadbent, dated 30 October 1986, also refers only to a whiplash injury to the neck; there is no reference therein to the lumbar region. Mrs Young in evidence referred to her notes, and the first occasion on which she recorded any comment about the plaintiff's back (as distinct from the cervical area) was on 12 November 1986. When Dr McCawley saw the plaintiff on 3 February 1987 he recorded a complaint that the back pain had become more severe. The plaintiff then complained of severe pain radiating down his legs. It is significant, in my view, that Dr McCawley issued various certificates to the Workers' Compensation Board certifying that the plaintiff was unfit for work (ex. 37), but the first mention of any problem with the lumbar spine was in the certificate dated 11 February 1987; previously the certificates had referred to a whiplash injury and the injury to the knee. I accept the evidence of Dr J H Morris and Dr R L Atkinson to the effect that if the plaintiff's lumbar back had been injured in the accident and rendered painful then one would have expected a complaint of pain within a few days. The responses by each of those doctors to the proposition that the first complaint of pain in the lumbar region was some significant time after the accident were as follows. Dr Morris said: "Well, it is not so likely to be related to the accident. Normally pain comes on within 24 to 48 hours. That picture of the pain in the cervical spine not coming on till the next day is pretty consistent, but normally you expect to have pain within 24 to 48 hours. If you are talking about pain -- 6 of 16 -- 6 occurring 4 or 5 months later, really, it is not due to the accident it is due to underlying degenerative changes." "It wouldn't be very severe if he didn't mention it." Dr Atkinson's response was: "Well, if a person has injured the back in an accident, I would expect a complaint of pain, certainly within a week. You note, sometimes the first day or so they don't notice it and sometimes - I would give the latitude up to a week, but a month I find stretching things. Three months I'd say was completely unrelated, and so, if we are talking about the physiotherapist in November, pain just on sitting, well, lots of people get pain on sitting for a prolonged period of time, and, if you have got a neck injury, you start to get, you know, concerned about pains all over. I suppose the only - so I don't think the temporal relationship allows me to attribute the back pain to an injury a month or 3 months before if that's the - if that's the history." To similar effect was the opinion of Dr J C Downes, another orthopaedic surgeon: "Anybody who develops symptoms within 48 hours, therefore you have to consider whether their symptoms are related to a traumatic incident. If it's after that it probably isn't related, it is probably coincidental. So if this man had no symptoms when it happened and the next day he had symptoms, then you could still blame that on the accident because of the swelling of the joints." Dr Downes also expressed the opinion that if it took 12 to 24 hours for the spine to become "symptomatic" there could not have been "a severe force" applied to the spine. I accept the evidence, principally from Dr Morris, Dr Atkinson, and Dr Packer, that there is no orthopaedic reason for the plaintiff's present complaint of pain and disability in his lumbar region. I also accept the evidence of Dr Morris that the plaintiff manifested inconsistent responses to clinical testing. That caused that doctor to conclude that the -- 7 of 16 -- 7 plaintiff's condition was not as bad as he was saying it is; I accept that finding. It is significant that Dr Broadbent, who has examined the plaintiff on numerous occasions since 30 October 1986, has always accepted that he was "genuine", yet that doctor has had to concede that there is no evidence, radiological or otherwise, confirming any lesion to the lumbar region. There is no doubt that over the years since the accident the plaintiff has reached a stage where he believes that he is totally unemployable because of the condition of his neck and back. In June 1988 Dr Downes was called upon to prepare a report for The Stevedoring Employees Retirement Fund on the question whether or not the plaintiff was then totally and permanently disabled or only partially disabled for purposes of the Retirement Fund. As Dr Downes was at pains to point out in subsequent reports and in his oral evidence, he was not concerned with the extent to which, if at all, the plaintiff's then condition was attributable to injuries received in the incident of 10 October 1986. The question for him was whether or not, given the injuries sustained in October 1986, and given the plaintiff's then present overall medical condition, he was unfit for work. The doctor pointed out in his report that x- rays of his lumbar area were "remarkably good for a man of his age" but he went on to conclude that subjectively the plaintiff was experiencing pain possibly due to the normal degenerative condition of his spine. It was that which resulted in his conclusion that the plaintiff "would not be able to cope with -- 8 of 16 -- 8 his job in the Stevedoring industry which entails constantly climbing ladders on ships etc." In all the circumstances I am satisfied on the evidence that the plaintiff did not sustain any injury to his back in the accident apart from the whiplash injury to his cervical spine. Any pain he experienced in the weeks immediately following the accident was referable to that injury. It is not necessary for me to make any finding as to whether or not the plaintiff presently experiences pain in his lumbar region; nor is it necessary to decide what is the cause of any such pain which the plaintiff may experience. Whether such pain be the consequence of degenerative change, or whether it be the result of some trauma subsequent to 10 October 1986, that pain is not compensible in these proceedings. I am not satisfied on the evidence that any such pain was caused directly or indirectly by the accident of 10 October such as to entitle the plaintiff to recover damages with respect thereto. It also follows from that, that the opinion of witnesses such as Ms Forster, the occupational therapist, are of little or no relevance for present purposes. It is not to the point to say that presently the plaintiff is unemployable; the only matter of concern to the Court is the extent to which, if at all, the plaintiff's present condition is attributable to injuries sustained in the relevant accident. Having considered all the evidence, having had the opportunity of seeing the plaintiff in the witness box, and having regard to the video and other evidence as to the -- 9 of 16 -- 9 plaintiff's present physical capabilities, I have come to the conclusion that he is not as physically disabled as he would have the Court believe. There is material before the Court which strongly suggests that when motivated the plaintiff is able to do much more than he freely admits being able to do. Much of the evidence before the Court tends to suggest that there is some psychological or emotional factor involved in the plaintiff's present position; but unfortunately the experts are not able to agree as to the nature thereof. In his report of 22 October 1990 Dr Atkinson expressed this opinion: "Mr William Austin appears to have an anxiety depressive state which has developed as a reaction to his experiences in the accident. This might be called, in his case, a post-traumatic stress disorder. Certainly it has resulted in a personality change with depression, irritability and a withdrawal from social interchange. There has been a deterioration in his domestic life and happiness and a loss of sexual interest. I consider this psychological change is reversible and it could well respond to psychiatric treatment. However, I consider that the litigation action is probably also influencing and causing some further situational stress. I consider that the depressive disorder is colouring and amplifying this man's chronic pain syndrome and I believe that if his psychological state could be reversed there would be a significant improvement in his pain syndrome, his exercise tolerance, his social interests and his domestic involvement." In his later report of 3 October 1994 Dr Atkinson confirmed that opinion. He said: "I do consider that he suffered a degree of anxiety and depression resulting from the accident. He had a post-traumatic stress disorder which contributed to his disability and his pain syndrome." In his oral evidence Dr Atkinson said that the plaintiff has now "become more positive" in his outlook but he is still -- 10 of 16 -- 10 of the view that there is "a degree of anxiety and depression in the whole pattern". He thinks there will be some further improvement when the litigation is concluded. He also expressed the view that at the present time there was "nothing psychiatric about this man". He went on: "This man has some stress problems, he had some degree of mild depression, but I don't think we should take it out of proportion. He is a competent, sensible, relatively intelligent man who, you know, I think, could work if he had to in some lighter jobs . . . if he had to." Mr M J Weston, a clinical psychologist, in his report dated 12 December 1990, said: "My opinion is that Mr Austin is suffering from a post-accident adjustment disorder which is being maintained by the presence of continuing pain and difficulties on his part, to emotionally readjust to change to post-accident life circumstances. I do not consider that he suffers from a post-traumatic stress disorder." Another clinical psychologist, E B Wiltshire, in his report of 28 September 1994 expressed the view that the plaintiff "still remains psychologically impaired". He says of the plaintiff: "Psychologically he feels depressed, broods on his misfortune, and is hyper vigilant when driving or being driven." In his view there was "clear evidence of continuing traumatic stress, but not at the level of a formal diagnosis of post-traumatic stress disorder". He considers that the disability is likely to be permanent. Dr D C Hamilton, a psychiatrist, in a report dated 5 September 1994 also does not consider that the plaintiff suffers from post-traumatic stress disorder. In her view he is -- 11 of 16 -- 11 suffering a chronic depressive disorder, also known as dysthymic disorder. That is essentially a reactive type of disorder which occurs in response to perceived stressors. The stressors that Dr Hamilton referred to were the "permanent injury to his neck and back". One of the problems I must deal with is that each of those doctors in expressing an opinion on the plaintiff's present psychological or emotional condition and its consequences apparently did so on the basis that his overall present condition, including his perceived back pain, was the result of the accident in October 1986. As on the evidence I have found that there was no injury sustained to the lumbar back in that accident, those opinions must be modified to make them relevant for present purposes. Insofar as a perceived lumbar injury, and ongoing pain in the lumbar region perceived to be due to the October 1986 accident, are involved in creating the present emotional and psychological condition, such factors cannot be reflected in the award of damages. The position appears to be that the plaintiff developed some depressive disorder as a result of the whiplash injury sustained in October 1986, and that has persisted. Whether the complaint of pain in the lumbar region is a manifestation of that disorder, or whether the pain in the lumbar region has been separately caused (degeneration or other trauma) it is impossible to say; the plaintiff has not established on the balance of probability that the totality of his present emotional and psychological condition is a consequence of the October 1986 accident. -- 12 of 16 -- 12 All that I can find on the evidence is that the plaintiff has, in consequence of the physical injuries in fact sustained in October 1986, developed a depressive disorder which is still persisting and which is to some extent affecting his present employability. There will be an improvement in that condition with the passage of time and the resolution of this litigation. Given the plaintiff's perceived back condition subsequent to February 1987, I find on the balance of probability that, disregarding the accident of October 1986 and its consequences, the plaintiff would have been unable to continue working as a stevedore beyond the end of 1989 at the very latest. Dr Downes certified that, because of his overall physical condition, he was totally unemployable on the wharves from August 1988, and in consequence the plaintiff received a payout from the Superannuation Fund in the sum of $67,278. In this action the plaintiff has claimed loss of superannuation and long service benefits on the basis that he would have continued working on the wharves until about 60 years. On my findings such a claim is not established. At absolute best for the plaintiff, given my findings, he would be entitled to recover something for possible loss of superannuation and long service benefits which may have accrued during the period August 1988 to the end of 1989. I will make some allowance for that in my assessment. In all the circumstances, on the evidence, I find that as a result of the October 1986 accident the plaintiff was rendered unemployable on the wharves for a maximum period of about three years, that is until the end of 1989. That -- 13 of 16 -- 13 unemployability was due to a combination of physical injuries and the emotional or psychological factors precipitated thereby. By the end of 1989 the physical injuries would have resolved to such stage where the plaintiff was physically capable of returning to work, but the ongoing emotional and psychological factors would have significantly affected his earning capacity during the next two years. By 1990, on my findings, he would virtually be in the same position whether or not he had sustained the injuries in the 1986 accident. But because the 1986 accident had triggered the emotional and psychological problems they would still have some slight effect on his employability over about the next 10 years to age 60. I have approached the calculation of economic loss in that way because the probability is that the perceived pain due to degenerative changes in the whole spine would have, by about 1989-1990, taken over from the October 1986 injuries as the factor primarily supporting and maintaining the emotional and psychological problems. On that basis the plaintiff is entitled to loss of wages as a stevedore from October 1986 to the end of 1989; that can be assessed by considering the report of Gates (ex. 41). Thereafter for the next two years I would allow an economic loss of $300 per week; I do so on the basis that the plaintiff could then have worked in a variety of jobs requiring only light physical exertion but which would have resulted in a lower wage than he could have earned on the wharf as a stevedore. On that basis I calculate economic loss to the end -- 14 of 16 -- 14 of 1991 in the sum of $143,500. For purposes of calculating interest on that component of the award the payment of $34,300 from the Workers' Compensation Board must be brought into account. I allow interest on past economic loss in the sum of $33,000. As I have said from about the year 1991 onwards the plaintiff would have been unemployable on the wharves whether he had the accident in 1986 or not. The only ongoing factor attributable to the October 1986 accident affecting his income earning capacity is his present emotional and psychological state, which is to some small extent still referable to that accident. Doing the best I can on the evidence I conclude that his onging economic loss attributable to the 1986 accident would be of the order of $150 per week for 10 years. In addition I would make some allowance for the possible loss of superannuation and long service benefits as indicated previously. I allow $75,000 for future economic loss. Special damages were agreed in the sum of $9,901.36. Taking everything I have referred to in these reasons into account I assess damages for pain and suffering and loss of amenities in the sum of $30,000. A substantial part of that would be attributable to the 8 years which have elapsed since the accident, and I allow interest thereon in the sum of $3,500. My assessment can therefore be summarised as follows: Pain and suffering and loss of amenities $30,000.00 Interest on pain and suffering and loss of -- 15 of 16 -- 15 amenities $3,500.00 Agreed special damages $9,901.36 Past economic loss $143,500.00 Interest on past economic loss $33,000.00 Future economic loss $75,000.00 $294,901.36 There will therefore be judgment for the plaintiff against the defendant by election for $294,901,36. -- 16 of 16 --