Bailey v Moscardo [1994] QSC 239

/~~3~~~ _/If::; State Reporting se q4/;;)31 Bureau , C::nyri:;ht !n ;nb t:.ln~...:rin! is ~e~{ed in I he C:nwn. C [)pies thereor' :nthi :10( :Je :nude nr 'oid .\iLwt:t :ne ·vrilte!1 ·.:urhoriry ·Jr' :he Direeror....:ta:e ~eportin!! 3ure:w., SUPREME COURT 0~ QUEENLAND CIVIL JURISDICTION CULLINANE J No W110 of 199'3 MARK WILLIAM BAILEY and MARGARET THERESE MOSCARDO TOWNSVILLE .. DATE 08/09/94 JUDGMENT REVISED COF:i·_ ~UED State P.e::ortin~; ;:: :Jreau Plaintiff Defendant 1 4ti: Flow. fire Law Courts. George Street, Brisbane. Q. 4000 Telephone: :07) ::;7' ~;r.o. !::Jc.,imife: tti7) ~17 5532 -- 1 of 22 -- 080994 H~S HONOUR: In this matter there will be judgment for the plaintiff against the defendant in the sum of $1,750 with costs to be taxed. I order that such costs be taxed on the scale in the District Court applicable to the judgment sum. I publish my reasons. HIS HONOUR: I vacate the order as to costs in the judgment. I order that the defendant pay the plaintiff's costs on a party and party basis limited to the costs taxable on the appropriate scale, in the District Court, applicable to the judgment sum up until 22 April 1993. I order that from that date the plaintiff pay the defendant's costs of and incidental to the action to be taxed. 2 JUDGMENT 10 20 30 40 50 60 -- 2 of 22 -- IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE BETWEEN: MARK WILLIAM BAILEY AND: MARGARET THERESE MOSCARDO W. No. 110 of 1993 Plaintiff Defendant REASONS FOR JUDGMENT- CULLINANE J. DELIVERED THE EIGHTH DAY OF SEPTEMBER, 1994. This action arises out of an intersection collision which occurred at about 6.45 a.m. on the 17th March, 1989 at the intersection of Fulham Road and Armit Street, Townsville. The Plaintiff was riding his motorcycle inbound along Fulham Road and the Plaintiff was driving her Holden Commodore sedan along Armit Street to the intersection with Fulham Road. The Defendant, who lived nearby, was familiar with the intersection and as she drove to it was confronted with a scene which apparently was very familiar to her. Armit Street has a stop sign in it which was facing the Defendant. The Defendant was on the right of vehicles travelling inbound along Fulham Road and approaching the intersection. The stop sign was situated some distance back from the intersection and a person who stopped at the stop sign would not at that point be able to see along Fulham Road to the left. There is a shop on the intersection on the left in accordance with the Defendant's line of travel. Close to the -- 3 of 22 -- 2 intersection were a telephone box and a telegraph pole. On Fulham Road in front of the shop were parked two bakery vans, as according to the Defendant, was usually the case. These were double-parked on the bitumen surface but off the area where vehicles travelled along Fulham Road. The Defendant had some obstruction to her view once she commenced to drive off from the stop sign but was able to see along Fulham Road between the shop and the telephone box and telephone pole and then between the telephone box and telephone pole and the two bakery vans and then between the two bakery vans and then as she moved to the alignment of Fulham Road had an unimpeded view along Fulham Road. She did not at any time see the Plaintiff's motorcycle. She drove onto the intersection and had straightened her vehicle when she was aware of something striking it from behind. Whilst for reasons which will appear later, there is good reason to treat what the Plaintiff has said with some caution, I am satisfied that the Plaintiff did see the Defendant's vehicle shortly before the collision and that he applied the brakes of the motorcycle which pulled to the left, causing him to be thrown from it. He was apparently thrown onto the bitumen surface of the roadway and his motorcycle continued on for some distance and came into collision with the rear of the Defendant's vehicle. Notwithstanding the Plaintiff's denial, I am satisfied that he did tell the investigating police officer who gave evidence -- 4 of 22 -- 3 before me, that he thought he was travelling too fast and that he also said that he was travelling at about 70-80 km/hour. It seems to me that the Defendant must be held guilty of negligence for failing to yield right of way, failing to keep a proper lookout (I am satisfied that had she done so and notwithstanding the various obstructions I have referred to, she would have seen the motorcycle and that she ought to have seen the motorcycle once clear of the obstructions) and associated with this travelling at an excessive speed in the circumstances. · The Plaintiff also would have been faced with some obstructions to his view along Armit Street. He must be held guilty of contributory negligence in travelling at an excessive speed and associated with this, failing to keep a proper lookout. I am not persuaded that there is any other basis on which he ought to be held in breach of his obligation to take care for his own safety. The Defendant breached a fundamental rule of the road and must be primarily responsible for what occurred. I do not think the fact that she straightened the vehicle prior to the motorcycle coming into collision with the rear of it is of significance in terms of the question of liability. As I have said the Plaintiff braked and came off the motorcycle and the motorcycle then continued for some distance before coming into contact with the rear of the Defendant's vehicle. I apportion liability as to 70% to the Defendant and 30% to -- 5 of 22 -- 4 the Plaintiff. The Plaintiff was born on the 14th May, 1964. He was thrown from his motorbike onto the bitumen surface of the roadway where he landed on his left shoulder, head and back and then on his buttocks and hands before sliding on the bitumen. He describes in Exhibit 1 the areas where he suffered pain immediately or shortly following the accident. This includes the lower back. In evidence he described himself as having "a complete body throb''. On admission to the Townsville General Hospital, he was found to have abrasions to the buttocks, hands and left elbow. He was discharged on the 20th March, 1989. Whilst in hospital he had treatment for the friction burn areas. On the 23rd March, he returned to the hospital and complained of pain in the sacrum travelling up his spine. X-rays of the lumbar sacral spine showed no abnormality. He presently complains of pain throughout his spine and in his head, and down the back of his legs into his feet. In addition to these complaints he makes complaints of a number of other serious and unusual symptoms which are outlined in medical reports. See for example Exhibit 13 and -- 6 of 22 -- 5 Dr. Richards' report. In Court he walked with a slow, stiff gait and presented in the witness box with a sad and defeated air. His evidence was given hesitantly and in a low monotone. Prior to the accident the Plaintiff had worked in various fields. These are set out in an attachment to Exhibit 1. Many of the jobs which the Plaintiff had were of a labouring nature and he had periods of unemployment. For some time he worked at the Victoria Mill in positions such as pointsman and laboratory assistant. At the time of the accident he was employed by C.B. Marine and Engineering Pty. Ltd. as a sandblaster. He returned to that work after two weeks. He says that when he returned he did no sandblasting or painting work or any work which might be described as heavy. He was retrenched approximately a month after his return to work. For some time he was on unemployment benefits but obtained work as a member of a cane harvesting gang and worked as a member of this gang driving a tractor until the end of the 1989 cane season. He worked, it would seem, virtually the whole of that season. He received unemployment benefits for about three months and then commenced work on a banana plantation where he remained until the 2nd November, 1990. During that time he worked as a member of a team. He says that his task was to chop away dead leaves from the trees and rake them away from around the stalk of the banana bushes. Occasionally he had to carry bunches of bananas. The Plaintiff has not worked since that time and says that he has -- 7 of 22 -- 6 not been capable of working. I will return to the work the Plaintiff performed following the accident a little later. There were various opinions expressed by medical witnesses who were called to give evidence or who had provided reports as to the cause of the Plaintiff's condition and its relationship to the accident. Dr. Parker, who is described as a psychologist and hypnotherapist, expresses the view that the Plaintiff's problems are essentially organically based. He says that the Plaintiff is free of anxiety and that he exhibits minimal hypochondriacal or hysterical features. Dr. Parker's view is that the Plaintiff has as a consequence of his physical disabilities, experienced adverse personality changes including episodes of reactive depression, lowered frustration tolerance, impairment of concentration, short-term memory and lowered self-esteem. It is in my view not possible to accept this opinion in the light of the substantial body of specialist evidence to the contrary and the evidence generally. Much of the time at trial was occupied by the evidence of Dr. Parker on the one hand and Dr. Bleus, a psychologist called by the Defendant on the other as to the results which each achieved in their respective applications of tests known as the Minnesota Multi-Phasic Personality Inventory (MMPI) and the interpretation of these results. I will return to this. -- 8 of 22 -- 7 Dr. Lewis, an orthopaedic surgeon saw the Plaintiff on the 20th May, 1991. He at that time expressed the view that the Plaintiff's range of cervical movement was decreased by about 30% and that there was tenderness over the anterior and posterior cervical spine. X-rays which he saw at that time showed a diminution in the CS-6 disc space with dysfunction at that segment in the cervical spine. Lumbar x-rays were normal except for the possibility of a slight decrease in the lumbar lordosis. It was Dr. Lewis' view that the Plaintiff was suffering from soft tissue injuries to the lumbar and cervical spine as a result of the motor vehicle accident and had a disability of some 7% to 10% which would be permanent. In cross-examination Dr. Lewis accepted that there were no objective signs which supported his opinion and that with the possible exception of the lumbar lordosis the evidence was subjective. I take him to mean by this that the x-rays he saw, which are at odds with some earlier x-rays, do not of themselves provide evidence of a disability. Dr. Laister, an orthopaedic surgeon, had seen the Plaintiff in March 1991. His view was that the Plaintiff had no organically based problems and he recommended that he should be seen by a psychiatrist. He says he observed the Plaintiff get into a car at the conclusion of the examination and that he moved quite normally. Dr. Gavin Douglas, an orthopaedic surgeon, saw the Plaintiff -- 9 of 22 -- 8 in March 1991. I have already referred to the various complaints which he records the Plaintiff as having made. He said that the Plaintiff moved carefully but noted that he sat without any sign of discomfort and was able to get onto and off the examination couch without any difficulty. When asked to bend forward, the Plaintiff managed only a few degrees of back flexion but it was noted that as he sat down, he bent his back without any trouble and he tied his shoelaces without any difficulty. Dr. Douglas expressed the same view as Dr. Laister, namely that the Plaintiff had no physical disability and his symptoms were likely to be psychiatrically determined. He conceded that, because of the Plaintiff's failure to co-operate, he could not totally exclude some organic component. The Plaintiff says he has no recollection of having seen Dr. Douglas. There is evidence in the form of two hospital reports from and the medical records of the Ingham Hospital that the Plaintiff had attended at that hospital on the 10th October, 1988 with a history of back pain extending over some eighteen months and dating from a fall over an esky. The report of the hospital, which is Exhibit 12B, relates that the Plaintiff complained of having immediately suffered pain which was made worse by walking, sitting or lying on a soft bed. He had undergone physiotherapy and when no improvement was reported in his symptoms, he was referred to the -- 10 of 22 -- 9 Orthopaedic Clinic at the Townsville General Hospital on the 21st November, 1988. The report relates that at the time he was seen there, no abnormality was found in his back. It seems from the records of the hospital and from Exhibit 12A, that the Plaintiff presented at the hospital in April 1989 and received a certificate in respect of the injuries sustained when he fell over an esky. At that time he made no reference to a motor vehicle accident in March 1989. The records show that in March 1991 he, for the first time, complained about the consequences of a motor vehicle accident which occurred in 1989. When cross-examined about the complaints of back pain prior to March 1989, he said that he had had some pain between his shoulders but that he would not describe it as back pain. He denied that he had had pain immediately after the fall or that it was exacerbated by walking, sitting or lying on a soft bed. He did not recall any physiotherapy or other treatment in respect of that nor did he recall being referred to the Orthopaedic Clinic at the Townsville General Hospital on seeking a certificate at the Ingham Hospital in respect of this matter. Dr. Richards examined the Plaintiff at the request of his solicitors on the 20th May, 1991. His report (Exhibit 15A) outlines the various complaints which the Plaintiff made to him. His conclusions at that time were as follows: -- 11 of 22 -- 1 0 "Bailey has a vulnerable personality, an expectation of gain from litigation, and high dependency needs. In the absence of manifest psychosis, his multiple exuberant and bizarre symptoms can only be regarded as the manifestations of a conversion disorder, whose unconscious roots lie in his pre existing personality, his dependency needs, and the possible rewards of the Workers' Compensation and Third Party accident systems. I found Bailey to be vague and inconsistent as to the time of appearance and progression of each of his many symptoms. If they arose and flowered in the early post accident period, it is hard to see how he could have hauled out cane for one season, and worked bananas for seven months. If they reached full force, as I suspect, about the time he left the banana farm and commenced Workers' Compensation - it is difficult to relate them to his en route to work motor cycle accident of March '89." Following the receipt of this report the Plaintiff's solicitors wrote to Dr. Richards and it is a result of this a further report was provided. In that Dr. Richards reiterated his conclusion that the Plaintiff suffered a conversion disorder responsible for much of his incapacity and a somatoform pain disorder responsible for most of his perceived discomfort. Dr. Richards explained in evidence that a person suffering from a conversion disorder converts anxiety into symptoms. -- 12 of 22 -- 1 1 Dr. Richards' last report (Exhibit 15C) was provided to the solicitors for the Defendant. In this he commented upon certain reports which had been provided to him. He expressed some concern as to the level of consumption by the Plaintiff of narcotic drugs. His conclusion at that time was that there was nothing in the reports provided to him which would lead to a different conclusion to that he had already expressed. Dr. Richards in cross-examination said that he did not exclude the possibility of some organic component and he postulated that a person used to performing manual labour might develop the psychiatric conditions which the Plaintiff suffers from as the result of an impact of an injury upon his capacity to engage in such work. He said that it was not necessarily the case that the various observations of the orthopaedic surgeons referred to which suggested that the Plaintiff acted differently when he knew he was under observation compared to his activities when he was not so aware, meant that he was a malingerer. He suggested that such actions might be consistent with his psychiatric condition. However it is plain that he thought it would be difficult to explain some of the observations of Dr. Bleus, to which I will refer shortly, on this basis. Evidence from some other sources to a similar effect was led later in the trial and was not apparently known at the time Dr. Richards gave evidence. Professor James saw the Plaintiff and he also had been provided with a number of medical reports listed in his -- 13 of 22 -- 12 report. He saw the Plaintiff at the request of his solicitors. Much of his report is devoted to comment upon a report of Dr. Bleus. Professor James was not called to give evidence, his report being tendered by consent. In it he says that he came to the conclusion that the anatomical diversity of the various complaints the Plaintiff makes did not conform to any physical diagnosis that he could think of and that it was difficult to understand the symptoms in terms of the direct result of the motorcycle accident. He went on:- "It seemed to me that the overall picture fell into the category of 'hyperchondriasas' or 'somatoform pain disorder' rather than that of a typically organically determined pain syndrome." He largely agreed with the conclusions reached by Dr. Bleus but expressed some reservations as to the conclusion that he was malingering and that there was no organic component of his condition. His report, it can be said, was a guarded one and he made it clear that the Plaintiff's complaints could not be accepted at face value. Professor James' view was that the question of any organically determined component of the Plaintiff's condition had to be resolved by reference to the evidence of the orthopaedic surgeons. Dr. Bleus' conclusions following the application of the various test to which she refers in her report including the MMPI was that the Plaintiff was hypochondriacal and that he exaggerates both his distress and personal virtues and -- 14 of 22 -- 13 attributes. The hyperchondriacism comes according to her from his "pre-existing psychopathology" perpetuated by his responses to personally significant life events and by both the primary and the secondary gain provided by the sick role. Dr. Bleus says that she observed the Plaintiff in circumstances where he would not have been aware of this whilst he was undergoing the MMPI test. She says that during that time he sat apparently comfortably on a hard chair with no sign of any discomfort or of what she described as "the very exaggerated physical features" that he displayed when he first presented to her and which she said she had observed him presenting in the Court. She says that she observed him on one occasion where he walked to the toilet and that he walked normally all of the way down and most of the way back until he saw her watching him and he immediately adopted the exaggerated stiff gait she describes. In evidence the Plaintiff had stated that he had to lie on the floor on a few occasions during the period that he was performing the test because of the pain he was suffering. Dr. Bleus said she had him under observation the whole time and that he at no time lay down. She says that when he came out of the room where he had performed the tests he told her in a somewhat aggressive fashion that he had had to lie down a number of times for about ten minutes at a time. He expressed the view in evidence that Dr. Bleus did not like him and became arrogant towards him. -- 15 of 22 -- 14 Dr. Bleus also gave evidence that she saw the accused walking in a normal fashion as he approached the Court complex on the second day of the trial. She says that as he was about to enter the building he saw her sitting on some steps nearby and then adopted the manner of walking already described. There is evidence from Mr. Hooper, the Bailiff (whose statement was admitted by consent) that he observed the Plaintiff apparently during an adjournment of the trial walking normally when moving across the Courtroom and then adopting as he returned the method that the Bailiff says he had seen the Plaintiff adopt when he walked to the witness box. Sergeant Bampton who is a Police Officer at Halifax, a town of approximately 500 people where the Plaintiff lives, says that he has known the Plaintiff for some eighteen months. He says that he sees him regularly and that he has seen him riding a bike and that when he walks, he walks normally. He says that he observed the Plaintiff at the Court on the 16th August, 1994 and that his walk was completely different to the gait which the Plaintiff usually adopts when he sees him about the town. I have already indicated that I do not accept Dr. Parker's conclusions as to the cause of the Plaintiff's current condition. There are a number of reports provided by Dr. Watson. I think it fair to say that Dr. watson's original view was that the Plaintiff had some internal disc disruption of the lower lumbar spine and thought that the Plaintiff would probably require some sort of surgical intervention. Subsequently (see Exhibit 3E) Dr. Watson's view appears to -- 16 of 22 -- 15 have been that whilst there may be some underlying organic basis, his problems were essentially psychiatric in nature. Extensive investigation by x-ray, MRI, CT and myography have not revealed anything which would explain the Plaintiff's symptoms. As I have said a great deal of the time of the trial was occupied by the evidence of Drs. Parker and Bleus and especially the application by each of the tests to which I have referred and their interpretation of the results which each obtained. I do not think it necessary for me to refer to this in any great detail. Dr. Bleus' conclusions are more consistent with the psychiatric evidence and the orthopaedic evidence and I prefer it to that of Dr. Parker. Having heard the evidence of both I might add that I think her evidence as to the interpretation of the MMPI tests and the conclusions to be drawn from them are more acceptable than those of Dr. Parker. The Plaintiff as I have said worked as a member of a haul-out gang for the whole of the 1989 season and on a banana plantation for most of 1990. There is evidence from a cane-harvester operator with whom the Plaintiff had worked prior to the accident that the Plaintiff chose to work with another employer during the 1989 crushing season giving as his reason for doing so that he thought that it would be lighter work and referring to problems with his back. The witness, a Mr. Toigo, described the difference -- 17 of 22 -- 16 between the two operations. Essentially the contractor for whom the Plaintiff worked had somewhat larger and more advanced machinery which made the task less arduous. There was no evidence from the Plaintiff's employer during this time. At the time the Plaintiff spoke to Mr. Toigo, the Plaintiff was wearing a support for his back and told Mr. Toigo that he couldn't perform the work that had been performed in the previous year. There is also evidence from a member of the gang who worked on the banana plantation with the Plaintiff that the Plaintiff tended to rest somewhat more than others in the gang did and did not work as well as the other members. She also referred to him wearing the support. Members of the Plaintiff's family, as well as Mr. Toigo and a former workmate who had worked with the Plaintiff some years prior to the accident, spoke of the changes which they had noticed in the Plaintiff. Taking this evidence at its best for the Plaintiff, it is difficult to conceive that the Plaintiff could have carried out the work as a member of a haul-out gang over the period that he did and worked for the best part of a year on a banana plantation in the condition in which he presented in Court or with the symptoms described in the various medical reports. Dr. Richards' view was that his capacity to perform these -- 18 of 22 -- 17 tasks and his inability to identify to Dr. Richards when the symptoms of which he complained arose, made it impossible for him (Dr. Richards) to relate his psychiatric condition to the accident. There is a substantial body of evidence that the Plaintiff consciously exaggerates his symptoms and consciously adopts the gait he presented in Court with when he thinks he is under observation. As I have said Dr. Richards suggested that an hysteric might, when being examined by a Doctor, especially by a Doctor he does not know or a Doctor who is sceptical about him, increase the level of symptoms during an examination and diminish them during unobserved periods. However it is plain that Dr. Richards thought it would be difficult to explain the observations of Dr. Bleus when she conducted her examination on this basis. It is for obvious reasons difficult to accept anything that the Plaintiff has said about the onset of symptoms, their history, their level or their effect upon him. I think the evidence clearly shows that there has been a significant change in the Plaintiff. His present condition is a far cry from what witnesses say about him prior to the accident and indeed his work history prior to that time would be inconsistent with it. The matter is complicated by evidence that he complained of having had pain in his back for some significant period prior to March 1989. -- 19 of 22 -- 18 In this accident he must have suffered a significant impact with the bitumen when he fell on it and he suffered extensive abrasions. Shortly after the accident, he complained of some pain in his back and it would appear he commenced using a support which is described as a kidney belt at some time after the accident and he continues to use it. He returned to his employment although he said he performed light work and then was retrenched. I have already described his employment in the cane and banana industries in 1989 and 1990. The Plaintiff's counsel contended that the Court ought to find that the Plaintiff's present condition is causally related to the accident in that he suffered an injury of some kind in the accident which has persisted but been overtaken by the psychiatric conditions which have developed from that injury. It is said that Dr. Richards' evidence {particularly at page 134) supports such a conclusion. Dr. Richards, in his reports, expressed the view that it was not possible to ascribe the Plaintiff's present condition to the accident for reasons which I have already referred to. When Dr. Richards' evidence including his evidence in re- examination is viewed as a whole, I do not think that the passages relied upon at the commencement of cross-examination amount to an abandonment by Dr. Richards of the opinion expressed in the report. I think Dr. Richards was talking about the way in which persons including the Plaintiff, may develop such psychiatric conditions consequent upon an injury -- 20 of 22 -- 19 rather than expressing the view that the Plaintiff's conditions are ascribable to an injury sustained in the accident of March 1989. When one looks at all of the evidence whilst the possibility that the Plaintiff has developed his current condition (which includes an element of conscious exaggeration of symptoms) as a result of the accident cannot be wholly excluded, the Plaintiff's claim that he is to be compensated for his current conditions as a consequence of the accident cannot be sustained. The most that can be concluded from the evidence is that the Plaintiff has developed a serious psychiatric condition since March 1989. The evidence, in my view, does not enable a finding as to the cause or the time at which the condition developed. Specifically, for present purposes, it does not permit a finding favourable to the Plaintiff in this action on the question of causation. Accordingly, I find that the Plaintiff's damages are to be confined to his pain and suffering in consequence of the abrasions and his recovery from these. Taking the most generous view of matters, I think the Plaintiff's general damages should be assessed at $2,500-00. It follows from my findings that none of the special damages claimed are recoverable. Seventy percent of $2,500-00 is $1,750-00. I give judgment for the Plaintiff against the Defendant in the sum of -- 21 of 22 -- 20 $1,750-00 with costs limited to be taxed. I order that such costs be taxed on the scale in the District Court applicable to the judgment sum. -- 22 of 22 --