Chandler v Bailey [1994] QSC 272

IN THE SUPREME COURT OF QUEENSLAND Townsville [Chandler v. Bailey] No. 0189 of 1990 BETWEEN: ALLAN KEITH CHANDLER Plaintiff AND JOHN PAUL BAILEY Defendant JUDGMENT - KIEFEL J JUDGMENT DELIVERED: 10/10/94. Delivered by Registrar in Townsville. CATCHWORDS: Personal injury - back - quantum. COUNSEL: Mr R.R. Douglas Q.C. and Mr R. Pack for the plaintiff Mr J. Webb for the defendant SOLICITORS: Dempseys for the plaintiff Suthers & Taylor for the defendant HEARING DATES: 15, 16, 17 and 23 August 1994. -- 1 of 10 -- IN THE SUPREME COURT OF QUEENSLAND Townsville [Chandler v. Bailey] No. 0189 of 1990 BETWEEN: ALLAN KEITH CHANDLER Plaintiff AND JOHN PAUL BAILEY Defendant JUDGMENT - KIEFEL J Delivered the 10th day of October 1994 The plaintiff was injured in a motor vehicle accident on 11 July 1988. He was then aged almost twenty-one and was shortly to complete his apprenticeship as a diesel-fitter. Negligence is admitted and the fact that he suffered injury consequent upon the accident is established. The question is the extent of his injury and its effects, past and future, particularly on his ability to work. The plaintiff had, prior to the accident, a pars intra-articularis defect of the lumbar spine at L5. This has some effect on the vertebra immediately above although, consistent with his evidence, this condition can remain asymptomatic. The plaintiff noticed pain in his neck and back almost immediately after the accident and sought medical attention. Although he received treatment over the following few years the exact cause remained unknown until a radiological investigation in November 1993 showed a disc degeneration at L4/5 and L5/S1 and medical opinion is that this is the source of the plaintiff's pain and that what has occurred is a major aggravation of the then symptomless degenerative condition at the two levels. Given that pre- existing condition Dr Low is of the view that he would likely have continued with heavy work, -- 2 of 10 -- 2 which his trade involves, only until age forty whereas Dr Douglas considered people with this condition can continue such work until age fifty-five. The plaintiff continued to work as a diesel-fitter almost continuously to March 1991 when he undertook work as a salesman for Suncorp. He finished his apprenticeship after returning to work in November 1988. The plaintiff says he could no longer cope with the pain he suffered consequent upon a working day despite his attempts to obtain assistance in the heavier lifting involved in it. Although he had a promising start in his position with Suncorp and indeed was cadet salesman of the year in his first year that did not continue and he was asked to leave in March 1993 as he was not sufficiently productive. During this period problems he had with literacy and, to an extent, the exercise of judgment in selling had been observed. He worked as a car salesman for a relatively short period after that and considered taking a position with another insurance company but that did not eventuate. He has not worked since the middle of last year. Over the last twelve to eighteen months his symptoms have noticeably escalated, although it may be that they were increasing for a time before this. His present situation is that of a virtual invalid spending most of his day lying down. The orthopaedic surgeons were of the view that his level of reaction and some of the additional symptoms which he has noted could not be related to the injury to his back and Dr James, psychiatrist, explained that the plaintiff has developed an anxiety state as a result of which these psychogenic symptoms have appeared and that the upsurge in anxiety is largely attributable to the prolonged period during which his injuries have been contested and, consequently, the attention focussed upon the symptoms and level of disability. He does however consider that the plaintiff is still likely to be responsive to psychiatric or psychological treatment and that treatment, over a period of ten to twenty weeks, would cost $1000. It is, he considers, highly likely to be successful. He considers that the -- 3 of 10 -- 3 plaintiff will probably return to the state he first observed in March 1992. At this time the plaintiff was an agent for Suncorp. He will however be somewhat more prone to psychological problems in the future although the treatment to be undertaken should diminish that. Dr Douglas considers that when these factors are removed logically he would be able to do the work of a diesel-fitter which he managed until March 1991, an opinion based on the fact that he was able to carry out the work. The question then is whether the plaintiff was only able to carry out that work with such pain that he could not realistically be regarded as able to continue. In this respect the defendant points to factors which are said to weigh against the plaintiff's account of the level of pain associated with his work and the extent it disabled him from other recreational activities. A difficulty in such an assessment lies in the fact that patterns of pain are unpredictable as are an individual's reaction to pain. The defendant points, amongst other things, to the fact that he could carry out the work for some time and that he made no complaint to his employers; that he made no mention of his back injury to a doctor when he undertook a medical examination prior to commencing work with Suncorp; that he was able to continue activities such as fishing and undertake long trips and to evidence as to statements where the plaintiff exaggerated his income, amongst other things from which I am to draw an inference that he is now exaggerating. Prior to the accident the plaintiff was a fit and strong young man. He had had regular employment and as I have said was about to complete his apprenticeship. He was in a stable relationship. He was very good at his trade, a matter noted whilst he was an apprentice and in subsequent employment. He had a future as a diesel fitter, a trade which is in demand in Townsville and in more remote areas such as mines and overseas. He was ambitious, confident and highly motivated to earn money. Indeed, the importance he placed upon money I infer may -- 4 of 10 -- 4 explain in part the somewhat exaggerated statements made from time to time as does his desire to obtain employment. This background does not suggest a person who is likely to deliberately restrict or impair his ability to earn. He attempted to continue in his trade and whilst I accept, as Dr Douglas says, he was able to carry out the work I also accept that he did so with difficulty and at the cost of quite severe pain following a day's work, where it involved continuous bending or heavy lifting. I did not consider the plaintiff, as a witness, to be prone to exaggeration about his back injury although I was conscious of Dr James' evidence about his state of anxiety and the focus upon his injuries. I considered the observable discomfort of the plaintiff to be real. The fact that he continued to suffer back pain during the time that he worked as a diesel-fitter is confirmed by the continued treatment he sought and by statements he made to fellow employees. He did not complain of his back condition to his employers and is likely to have made efforts to ensure they did not observe any difficulty he had in work for, from his point of view, there was good reason to do so given his desire to continue in employment. Whilst his answer to Dr de Jersey was less than frank it does not show that he considered he did not have a back problem, given the treatment he had received, the people he worked with who had been told of his problem and his wife's observations of the effects upon him. The defendant pointed to a number of recreational activities which he continued to be engaged in but this did not persuade me that he was more able or that he suffered less pain than he said. It is to be recalled that he did not know the extent or nature of his injury for a long time. It was the case that his recreational activities were considerably reduced following the accident. Whilst he may have been able to play pool for a time no doctor said that this was impossible given his condition and he eventually ceased this activity in any event. He worked on engines and on go-karts but he did not drive the latter. He spent much less time fishing and whilst he may have attempted casting a bait net there are a number of methods of casting. Some -- 5 of 10 -- 5 witnesses in this period who did not know of his back injury did not observe him continuously or with this in mind. The long trip he undertook to Cape York was, as the evidence of his fellow-companion bears out, undertaken with difficulty and if anything confirms his perseverance. Although the video did not reveal the extent of stooping or the mode of walk which Mrs Chandler described I did not find it particularly revealing. He did talk of his ability to remove engines quickly but it is not clear if he was talking of activities he had recently undertaken. He did assist Mr Bowdidge to remove a very heavy gearbox but this was undertaken with the assistance of block and tackle. The incident concerning his dancing at the Suncorp function was on an occasion where he was in high spirits and where alcohol had been taken and I accept, as his wife said, that it was followed by his being bedridden. In all, I consider the evidence is consistent with a person who attempted to keep active to an extent but who often suffered pain as a result. His decision to move to Suncorp was, if not wholly caused by the difficulty he was having at work, significantly influenced by it, despite the statements he made about his reason being to make more money. That he experienced problems at work is also borne out to an extent by the evidence of employers such as Mr Payne, who said that he commenced as an excellent employee but later appeared to lose concentration or motivation. This may be consistent with a person suffering the difficulties the plaintiff spoke of. Given the problems that became apparent with his literacy he was unlikely to be able to continue in such work at least without training. When faced with this problem he did not however return to work as a diesel-fitter where he could have undertaken secure employment. The exacerbation of the symptoms occurred after a long period where his injuries had not been diagnosed, when he was failing at his work and suffering financial problems and as a result of that problems with accommodation and his action had not been heard. The combination of these psychogenic factors led to his perception of a greater degree of pain and -- 6 of 10 -- 6 the taking of narcotic drugs. Although he will probably return to his physical status of 1991, Dr Douglas says he could not undertake work which involved repeated bending, maintaining a stooped position or which required repeated heavy lifting which is the description of a diesel-fitters common tasks. He could do bench-work but there is no evidence that diesel-fitters can obtain such work. He obviously still has some skills and some ability as a salesman although in light of his problems with literacy and with judgment (on the evidence of his supervisor at Suncorp) this could not be put too highly. As a result of the pain he suffered and the limitation of his movement the plaintiff has been unable to assist in the household where formerly he undertook most of the housework, the cooking and gardening. His wife now attends to these tasks and assists him with his dressing. He now has a young child but is unable to assist in all aspects of the care and supervision of the child and is unable to enjoy playing with him. His relations with his wife have been affected from time to time. For the component of pain and suffering I allow the sum of $45,000 and interest on $20,000 thereof at two percent for six years ($2,400). In 1991 the plaintiff was earning approximately $22,500 net per annum which equates with award rates. A person in a similar trade working in more remote mines earns on average about $700 per week and a diesel-fitter working in New Guinea over $1000 net per week. The plaintiff says that he would have pursued remote work or overseas work because of the higher income they earn and I consider that he may have undertaken such work for a time but that the onset of a family is likely to have affected his continuation of it. With respect to past economic loss I have then allowed for his working at a higher rate (taking the mean between Mr Edmond's rate and that applicable to Papua New Guinea) and allowed it for one year ($44,200) and the -- 7 of 10 -- 7 balance of the period claimed (from August 1992, age 25) at the award rates of a diesel-fitter ($23,000). The plaintiff in fact earned $16,425.91. The sum allowed for past economic loss is then $50,774. Since the loss is recent I do not allow for interest on that sum. With respect to the calculation of future economic loss the plaintiff would have continued as a diesel-fitter. Given the limited explanation for either of the ages identified by Drs. Low and Douglas, which I infer are based upon their experience and observations, an appropriate course might be to adopt the mean (age 47). The plaintiff is now 27. A diesel-fitter on the award (and with tool allowance) earns $437.05 which I take to be a gross figure. Allowing for tax but also for the fact that tradesmen in similar fields can earn closer to $600 I have allowed for a net weekly loss of $450 per week which ought to be applied to the five percent tables. The plaintiff has some abilities as a salesman and has in the past presented as an adaptable and ambitious person, a position to which he may well return after treatment. These factors are in addition to the skills he has in respect of which there is some, but not shown to be high, prospect of employment or of enhancing his areas of employment. Logically though, these features also indicate that he may well have continued working in some capacity beyond age forty-seven. In these circumstances I have extended the period of economic loss to twenty- six years. I have then reduced that figure for the contingency that he may obtain work which I have allowed at thirty percent ($299,600). With respect to past and future loss of superannuation entitlements, taking a present gross annual income of $ 30,000 three percent would be applied to superannuation of which fifteen percent is to be deducted as paid in tax. Adding two years to the period of economic loss 28 years is to be allowed on the five percent tables at $ 15 per week ($11,790). With respect to future medication $1000 is agreed as representing psychiatric or psychological treatment. The plaintiff will continue to require some pain-killing medication but -- 8 of 10 -- 8 there is little evidence about its cost. I allow $3000 for this component. Special damages are agreed at $6847.43. Part of the plaintiff's loss is his ability to carry out household duties. With respect to the past I allow 3.5 hours per week, the rate set out in schedule C/1 to Mr Peterson's report ($8767). For the future ten hours of domestic work valued at $10 per hour and two hours per week at $20 per hour for gardening are claimed. The rate for gardening seems high to me and the claim for the hours he would have spent in home duties seems to me to be based upon his condition in late 1992 (reports of Ms Coles) when it seems to me his symptoms and his reactions to pain were increasing. They will be assisted by the treatment to be received. In these circumstances I consider allowing five hours per week at $10 per hour for both is reasonable. This will be allowed to age seventy. Whilst the plaintiff may at an earlier time have been disabled from heavy work in his trade this does not lead to an inference that he would be disabled from household tasks. Summary Pain and suffering $45,000 Interest on part thereof 2,400 Past economic loss 50,774 Future economic loss 299,600 Loss of superannuation benefits 11,790 Future medical expenses 3,000 Special damages 6,847 Griffith v. Kirkemeyer - past 8,767 future 46,000 $474,178 -- 9 of 10 -- 9 There will be judgment for the plaintiff in the sum of $474,178. There is presently nothing before me to suggest that the plaintiff ought not have his costs. I have not however heard submissions. If there is any matter affecting the question of the costs legal representatives ought to contact my Associate to have the matter listed on Friday next, 14 October, for further mention in Brisbane. If no further order is made on that date the order will be that the defendant pay the plaintiff's costs of and incidental to the action, to be taxed, including any reserved costs. -- 10 of 10 --