Ferry v Council of the Shire of Sarina [1994] QSC 350

".·:.'.: .. ·.·· · .. --:.·\·: . . ·... :· ·..... ~ .. : . . .. ·. v(J ~ c.tl./- stt.-~..f~e R''ep· o~Tf 4 tt1_Jl~J1nlg··- B'.TIT/7} 4 t,Dl~17Jl1l; u7/_· . -·· :~ . ·11._ ' ·· . .11. . 'U~ULti.l$. . . TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold 'tYithout the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 47 of 1991 STEWART JOHN FERRY Plaintiff and . THE COUNCIL OF THE SHIRE OF SARINA Defendant MACKAY .. DATE 20/09/94 JUDGMENT 1 -- 1 of 12 -- 200994 T 1/LJO M/T MKY 379/94 (Demack J) HIS HONOUR: Mr Steward John Ferry was born on 29 January - 1955. He was injured in the course of his employment wtth the defendant on 10 November 1988. The circumstances in which he sustained his injury was such that the defendant has accepted liability. The evidence discloses that Mr Ferry had both previous and subsequent injuries to the general area of his spine. This has contributed to a diversity of opinion among the doctors and it is really this issue, which has been left for me to decide. Particularly on 20 July 1989 again in the course of his employment, he, with another employee, was moving a drum and in the course of that he felt some pain to his lower back and neck. Later on 25 November 1989 he jumped from a boat and felt pain again in his neck. On 4 June 1990 at the request of Doctor Rossato an MRI was performed. This showed that there was a loss of signal in each of the discs from C2/3 down to C6/7. ·According to the report this indicates degenerative discs throughout that region. The MRI also showed that the discs between C3/4 and C5/6 showed protrusion with the greater protrusion at the upper level. The two specialists who gave evidence in relation to the cause of this condition were Doctor White and Doctor Toakley. Doctor White attributes the present condition to the accident in 1988, the subject of this action. Doctor Toakley says that the present condition is simply a degenerative condition and he can see no relationship between the-Tncident, the 2 JUDGMENT 10 20 30 50 60 -- 2 of 12 -- 200994 T 1/LJO M/T MKY 379/94 (Demack J) subject of this action and the present degenerative condition. The evidence in some ways is a little unsatisfactory because although Doctor White received Doctor Rossato's report which includes the MRI findings, he does not appear to refer to that report in his evidence. He said that he is unfamiliar with MRI as it is not a procedure available here in Mackay. Consequently in his 1993 report he has focused on the earlier CT report which showed posterior bulging of the CS/6 disc. There was some questioning of him in relation to a report from the Mackay Base Hospital which suggested that this bulging was detected in a plain x-ray but that does seem to me to be a matter where I accept Doctor White's explanation. That explanation is that disc bulging does not appear on a plain x-ray but requires a CT scan or a MRI. Consequently there has simply been some loose expressions, both in Doctor White's report of 21 June 1993 and the Mackay Hospital report. However, in Doctor White's latest report of 29 August 1994, he reviewed plain x-rays and these show a moderate reduction in the width of disc spaces C3/4, CS/6. When that is coupled with the earlier CT scan to which the doctor had reference it becomes apparent that what he is now aware of by reason of plain x-rays and CT scans is to the same effect as the material contained in the MRI that Doctor Rossato ordered. In other words, there is wide spread degeneration in Mr Ferry's neck. 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 12 -- 200994 T 1/LJO M/T MKY 379/94 (Demack J) What caused this then is the issue before me. Doctor Toakley held to the view that this was just degeneration. However, he recognised that the plaintiff was a young man to have such wide spread degeneration in his neck. I asked him aoout his understanding of the circumstances of the accident on 10 November 1988. He described·his understanding of that accident in the same way that the plaintiff described it in his evidence. Mr Ferry was working on the back of a truck trying to move a drum of emoleum. He lost his grip and fell backwards off the back of the truck on to the ground. He fell about a metre in doing so. He landed on his shoulders and his body rolled up over him so that his head was forced down on to his chest and·his legs went up in the air. Doctor Toakley agreed at page 34 and following that this was a different kind of incident from the usual flexion extension injury that is commonly called whip lash. It meant that substantially the whole weight of Mr Ferry's body was pressing down on his neck as his legs and trunk rose up above his shoulders. Doctor Toakley said that when it is. simply pressure caused by the movement of the head, that pressure is about 10 to 15 times the weight of the head. However, he said that here the weight of the body is something like 50 times the weight of the head so that pressure being exerted upon the disc spaces and the discs in the particular circumstances of this fall was much greater than that which would be experienced in any end on collision. Also, there was not the compensating extension injury but simply the pressure down of the body on top of the discs and ligaments of the neck. 4 JUDGMENT 10 c~l 20 cl- iI 30 40 50 60 -- 4 of 12 -- 200994 T 1/LJO M/T MKY 379/94 (Demack J) It seems to me that this is a circumstance ··which is likely to produce·the wide spread damage that has now appeared. J;'t is of course common place that disc injuries do not always immediately appear but these have now developed over the period up to the time when Doctor Rossato had his MRI performed. That was done in June 1990, a period of a little over 18 months after the date of the injury. Consequently, I am satisfied that Doctor White's opinion is correct and that the present disability is something that has arisen because of the extreme stress to which the bones, discs and soft tissues of Mr Ferry's neck were subjected in this incident. The other incidents to which reference has been made do not seem to me to involve the same kind of neck pressures. This was substantially conceded by Doctor Toakley although he did deal with the issue somewhat differently in cross-examination and in evidence-in-chief. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 12 -- 200994 T 2/DC M/T MKY379/94 (Demack J) It would seem to me that the issue with the drum in 1989 could involve some tensing of the neck muscles as a ge~al emergency arose and Mr Ferry grabbed at the drum. However, it does· not seem to me that that is the kind of injur-y that could put pressure across the wide span of his cervical discs. Similarly, the jumping incident in November 1989 may well have produced some jarring but, in itself, it involves nothing like the pressures that were involved in November 1988. It seems to me what has happened here is that in the course of this fall, for which the defendant has accepted liability, Mr Ferry has suffered widespread diffuse damage both to discs and to the other soft tissues in his neck. The disc damage has now deteriorated and arthritic conditions have developed. The pain has been constant, not in its intensity but in its location in his neck since 10 November 1988. It is a .. ~ I 10 20 ci 30 continual source of difficulty to him. (' There does not seem to be any doubt that he is not fit for heavy labouring work which was essentially the kind of work that he was doing at the time of his injury. He does not have a skill which is readily marketable in the workplace. He was hoping to gain a ticket in some plant operation work with the defendant, but that did not eventuate because of his injury. Mr Ferry also has a significant physical condition which in no way relates to the accident. When he was a baby it was found that he had a heart defect and in 197T surgery was 6 JUDGMENT 40c 50 60 -- 6 of 12 -- 200994 T 2/DC M/T MKY379/94 (Demack J) performed to his aortic valve. In 1979 a ~rosthesis was inserted in the aorta and as a result of this he does require constant supervision of medication which is designed to prevent clotting of the blood in the prosthesis. Thts means that he sees his general practitioner, Doctor Godsall, on a very regular basis. The regime that has been prescribed for him involves his regular taking of warfarin and this is a drug that interacts in an unpredictable way with various anti-inflammatory drugs that may be prescribed for him to deal with the pain that he suffers in his neck. Consequently, there has had to be constant monitoring. Doctor Godsall says that he has a number of patients who are on Warfarin and if they have no other problems then they simply attend surgery each month for blood tests and see their doctor about quarterly. However, Mr Ferry has had to attend on Doctor Godsall far more frequently than this. The extent of this is not precisely before me, but when Doctor Godsall appeared he had with him his clinical notes which were in the form of cards and other pieces of paper. The bundle of them, which he referred to from time to time, seemed to me to be something of the order of 60 to 70 millimetres thick, which is indicative of the degree of contact that has been had. Dealing then with the questions of assessment of damage, Mr Ferry had commenced work with the defendant under an employment scheme and had subsequently gained permanent employment. This was manual work which he performed satisfactorily. However, his past experience with work has not been continuous and it seems to me thaf-it canriot be 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 12 -- 200994 T 2/DC M/T MKY379/94 (Demack J) reasonably assumed that but for the accident he would have remained in constant employment from that time or, inde~d, into the future. He was willing to work but with no particuiar skills he was very much at the bottom of the job market. His past economic loss has been calculated by Taits in a net figure of approximately $80,000. Taking into account the matters that I have just mentioned, I assess his past economic loss at $70,000. He has received workers' compensation payments and social security payments to the value of $48,000, so I will allow interest on $22,000, which I fix at $4,500. It seems that it cannot be said that Mr Ferry has no residual economic capacity. The difficulty for him is to find some work that he can do, which can be done economically. He says that he suffers pain in his neck through a whole range of movements that he may have to do in any sort of work situation. He is, it would seem, learning to be protective of his neck and as his capacity to cope with this improves it would seem to me he will find some tasks that he can manage, perhaps not on a constant basis. Also, it seems that for quite a long time, Mr Ferry had a rather depressed view about his future because of his heart condition. It appears that he has been considerably reassured by Doctor R A Douglas' opinion that with the successful functioning of the prosthetic aorta valve, he has a normal life expectation. This information comes from the report of Mr Nigel Clarke. Consequently, there are still adjustments that Mr Ferry is 8 JUDGMENT 10 cl 20 (' 30 C ~' __ ., 50 60 -- 8 of 12 -- 200994 D.2 T 3/SW M/T MKY379/94 (Demack J) making to his life. He does take a variety of prescribed drugs to assist with his pain, but he also relies to some degree on meditation which he finds helpful for some of the time. It seems to me that all that can be said at this stage is that he does have a significant future economic loss, but that he certainly has some residual capacity to work. Also, as I mentioned earlier, his pre-accident work history was such that one could not assume that for the rest of his natural working life, he would have been in constant employment. Doing the best I can, I assess his weekly loss at $200 and allow that for a period of 20 years. I am satisfied that 20 years is a reasonable span at this point, because with his situation in the work force, it seems to me unlikely that he would have been in regular employment beyond 60. This produces a sum which I will round off at $133,000. There is a claim for loss of superannuation which of course is fully sustainable, but very hard to quantify. Various figures have been prepared by Taits and doing the best I can with those, I shall allow the sum of $10,000 for loss of superannuation. In the Workers' Compensation Board letter, the various items have been paid by that Board which are recoverable, and then returned back to the Board at the end. These amount to $4,629.89 under the headings of Medical, Other, and 9 JUDGMENT 10 20 30 40 50 60 -- 9 of 12 -- 200994 D.2 T 3/SW M/T MKY379/94 (Demack J) -.. Rehabilitation. There is also an amount of $2,867.67 being the amount of tax deducted from the periodic payments of workers' compensation. That amount also is recoverable in this action. In addition to the medical expenses paid by the Workers' Compensation Board, Mr Ferry says that he has had other expenses, both medical and pharmaceutical. He has attempted to itemise these. As I have indicated, he has attended Dr Godsell very, very regularly, but much of this is because he has to go to have his Warfarin regime kept under supervision. Doing the best I 10 20 can with his figures, it seems to me that an amount of $8.00 ( , per week for the past 180 weeks is reasonable in all the circumstances. 30 I will allow an amount of $1,440 to cover past medical and pharmaceutical expenses and will allow interest in the amount of $300 on that sum. For the future I shall allow $10 a week (', over the life expectation of 34 years, which is an amount of $8,660. So far as pain, suffering and loss of amenities are concerned, this is a very difficult item here because of the complex interaction of Mr Ferry's pre-existing condition and the t.reatment that he has to receive to deal with the pain that he suffers because of his neck disability. He has had to give up the kind of physical activities, such as karate, that he enjoyed prior to his disability. He is trying to deal with his pain through meditation, and generally, he seems to be accommodating to the pain by reducing the areas in which he is active. However, he does 10 JUDGMENT 50 60 -- 10 of 12 -- 200994 D.2 T 3/SW M/T MKY379/94 (Demack J) '•• have now, widespread degeneration in his neck and this is a constant and debilitating circumstance. I should add, of course, that the defendant must take the plaintiff as it finds him with his pre-existing disability, so that in his case, taking the normal anti-inflammatory drugs presents significant medical problems to him. No doubt as he becomes familiar with this, and as he settles down to his life style after the action is determined, he will find it easier to live with this than he has done in the past, but nonetheless it is a circumstance that makes the assessment of general damages in this case very different from those that might apply in what is commonly called a whiplash. For pain, suffering and loss of amenities, I shall allow the sum of $35,000. I attribute $10,000 of this to the period up to trial. There has been a payment of permanent partial disability by the Workers' Compensation Board in the amount of $1,696.75. I will allow interest on the amount I have indicated, less that sum, and assess that interest at $950. The total of the assessment then is $271,347.56. There is a Worke~s' Compensation Board refund of $26,334.36, so there will be judgment for the plaintiff against the defendant for $245,013.20. 11 JUDGMENT 10 20 30 40 50 60 -- 11 of 12 -- 200994 D.2 T 3/SW M/T MKY379/94 (Demack J) HIS HONOUR: Judgment for the plaintiff against the defendant for $245,013.20, together with costs, excluding the costs associated with the application filed on the 26 November 1992, and the order made on the 7 December 1992, such costs to be taxed. 12 JUDGMENT 10 20 cl--I 30 ' cl 40(_ 1 50 60 -- 12 of 12 --