Bedwell v Lloyd & Anor [1994] QSC 168

,o<:>:::>J l · se q4-jt&8n-./t~'~ ·r"r 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.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILLIAMS J No. 117 of 1991 GLENN FRANKLIN BEDWELL and DAVID WYNNE LLOYD and SUNCORP INSURANCE AND FINANCE CAIRNS .. DATE 27/05/94 .. JUDGMENT • 1 R:::\ ·;s~:-::• c>.:y::·.~s iS2UED · I f::.~~- .._ ;··.:_::.;. =·r~!ng 3u;-cau t j Date 30./ 5 ;9t!J.. ·--~.......-. Plaintiff Defendant Defendant by Election ! J 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 12 -- 270594 klj (Williams J) HIS HONOUR: The plaintiff was born on 10 May 1956 and received serious injuries when struck by a motor vehicle on 28 July 1991. He·was standing behind his stationary vehicle when he was struck by a vehicle being driven by the defendant. Parts of his body, particularly his right leg, were crushed between the two vehicles. Liability was admitted and the only 10 issue at the trial was as to the quantum of damages. Indeed there was agreement as to a number of components of-the damages award. -- ·The medical reports referred to the plaintiff sustaining a degloving injury to his right leg. That is, it was almost completely stripped of skin and flesh to the bone. There were also multiple fractures of bones in the leg. Despite valiant attempts by doctors the leg had to be amputated above the knee on 23 August 1991. So far as physical injuries and treatment are concerned there was no dispute. There is no need for me to detail such matters in these reasons for judgment. All relevant detail is to be found in the medical reports. The defence also conceded that the plaintiff had suffered some brain damage producing memory loss, but there was a dispute as to the extent of that and in particular as to the impact of that on the plaintiff's future employment prospects. The other major area of dispute was as to the amount which should be allowed for past and future care provided by the plaintiff's wife. These matters in dispute must be considered against the background of the following agreed components in the award of damages: JUDGMENT 2 20 30 40 50 60 -- 2 of 12 -- 270594 klj (Williams J) 1. Pain and suffering and loss of amenities $90,000 2. Interest on general damages 3. Past economic loss including interest 4. Cost of future surgery 5. Special damages and interest 2,750 75,000 10,500 53,840 It was agreed between counsel that the cost of maintaining and replacing the plaintiff's prosthesis calculated on the basis of the present value of a capital sum providing that cost by way of a weekly sum over the plaintiff's lifetime was the amount of $70,000. But within the next 18 months the plaintiff would need to expend a total of $11,570 on maintaining and replacing the prosthesis. It was agreea that such expenditure would erode the capital sum and that in consequence some additional amount should be allowed. There was no agreement on the figure to be allowed and that was left to me to determine. The plaintiff sought an extra $5,000 and the calculations put to me justify an award of that amount. I therefore allow $75,000 for the cost of maintaining and replacing the prosthesis in the future. As is not surprising given the nature of his injuries the plaintiff lost a lot of blood at the scene of the accident and before he received emergency transfusions at the Cairns hospital. On arrival at the hospital the doctors described him as being "disorientated" due to the significant blood loss. During an operation on 8 August a previously grafted artery ruptured and the plaintiff experienced a major exsanguinating haemorrhage. Whilst in his hospital bed on 23 August 1991 the popliteal artery repair broke down and as the report says he "virtually exsanguinated in his bed''. The blood loss was so severe that cardiac arrest ensued and he had to be resuscitated. There was a loss of consciousness for an JUDGMENT 3 10 20 30 40 50 60 -- 3 of 12 -- 270594 klj (Williams J) unspecified duration. Cardiac arrest and gross disturbance·in consciousness in such circumstance are likely to cause some permanent brain damage involving cognitive loss. So much seems to be accepted by all the doctors. Psychometric testing in October 1991 revealed short-term memory disturbance that was then said to be "obviously improving": Exhibit 5. Dr Garrone, in January 1992 noted his memory "shows subtle impairment" but she was "optimistic about continued improvement": Exhibit. 6. In about July 1993 he was assessed by Dr Westmore, a Sydney psychiatrist: Exhibits 10 and 11. In the first report there is reference to "frustration at the loss of his memory''. In the sebond report he said: "A report by a neuro-psychiatrist may be of some use in determining his current level of functioning. A degree of recovery in his intellectual functions would be anticipated at this time however the bracket of memory which was lost shortly after his cardiac arrest will never be regained. After a patient suffers a head injury, either internal as in this case of Mr Bedwell, or external, one anticipates a degree of recovery up to a period of two years. After this time further improvements in their cognitive processes are unlikely." Kerry Douglas, a psychologist, carried out some testing in February 1994: Exhibit 14. Inter alia she noted "a rapid deterioration in memory retention immediately after the material is presented". But she also noted that his presentation conceals difficulties with memory and his use of JUDGMENT 4 10 20 30 40 50 60 -- 4 of 12 -- 270594 klj (Williams J) strategies to overcome memory difficulties. In her view he· would not return to his pre-accident levels of memory function. The final report relevant to this issue is that from Dr Richards: Exhibit 16. He referred in some detail to the plaintiff's "memory problems". The following extracts from his report are relevant in my view: "Forensic psychiatrist Dr Bruce Westmore did not commission full neuro-psychiatric assessment and was not of course aware of Miss Kerry Douglas' subsequent findings. Both psychologists, Alan Kearns and Kerry Douglas, have concentrated on elucidating the plaintiff's more obvious memory problems and although I am sure their test results were all quantified neither has included sub test or overall scores. Nevertheless, from their general conclusions and from the plaintiff's own self report it is possible to form a valid opinion". "Further information is required concerning the nature and degree of Bedwell's cognitive loss and personality damage. It would be helpful if the plaintiff's solicitors arranged for Miss Kerry Douglas to complete and quantify a full neuro-psychiatric assesqment including the WAIS Adult Intelligence Scale. It is likely that a global cognitive loss of measurable degree would be found. You might think it wise to commission an independent neuro-psychiatric assessment." No such further testing was carried out prior to trial. Evidence was given by the plaintiff and his wife as to the nature and extent of his memory loss. Whilst I accept each of them as generally honest witnesses I am by no means certain 10 20 30 40 that their evidence accurately indicates the extent of the so plaintiff's memory problems. He spoke of incidents at work which, if true, would be of some concern given his position as Qantas duty manager at Cairns airport. No independent evidence, such as from fellow workers, was called to JUDGMENT 5 60 -- 5 of 12 -- 270594 klj (Williams J) substantiate his claims. His superiors do not seem to be aware of any problems. The Qantas officials who gave evidence are not aware of inability on the part of the plaintiff to meet the standards required by his position, but there was general agreement that if some of the assessments by psychiatrists and psychologists turned out to be true his career path would be significantly different to that which would have applied pre-accident. Since returning to work with Qantas the plaintiff has undertaken courses, given lectures and resumed his old position. On the evidence I find that he is capable of maintaining his pre-accident job. The disputed question is whether or not he will attain the promotions which were open to him on his pre-accident career path. The evidence establishes that the policy of Qantas is not only to protect the position of its employees who become incapacitated in some way, but it also has a positive policy of employing disabled persons. The plaintiff's future with Qantas is secure. He will always be able to earn in that organisation a salary commensurate with that which he was earning before the accident. Further, his physical disability will not constitute any barrier to promotion on his pre-accident career path. The plaintiff's case is that he has suffered future economic loss because he will not follow his pre-accident career path - Exhibit 18 - because of his memory defects, and that his post-accident career path will be as set out in Exhibit 1. The relevant income figures are set out in Exhibit 19. JUDGMENT 6 r---•·.. -.._....... , __. ...., ... ._~.··-·- ·-·--~ 10 20 30 40 50 60 -- 6 of 12 -- 270594 klj (Williams J} The difficulty with the plaintiff's argument is that it presumes that everything in the future would have proceeded as if the career path detailed in Exhibit 18 was set in stone. There seems no doubt that as at the date of the accident the plaintiff was under serious consideration for promotion and transfer to airport manager Adelaide, but there was no certainty he would have got that position in 1992 or even at all4 If he did not get the position in 1992 his career path may well have changed significantly. Further, there are other contingency factors which must be taken into account. Sickness or accident could have prevented the plaintiff from following the exact path set out in the Exhibit. Unfortunately, the plaintiff and his wife have a child with a serious congenital disorder; that could have prevented the plaintiff from accepting a transfer particularly to an overseas country. JUDGMENT 7 10 20 30 40 50 60 -- 7 of 12 -- ------------ ---------- In the absence of the definitive testing referred to by Dr Richards, and in the absence of any specific evidence from his employer as to the significance of memory loss currently manifest, I find it difficult to evaluate the impact of the plaintiff's memory deficit on his promotional prospects. He will still be promoted in all probability as his case 10 acknowledges. For the reasons I have given, I ·do not accept the arguments advanced by counsel for the plaintiff as to the extent of the plaintiff's future economic loss. I find on the balance of 20 probability that his future career path in Qantas will be affected to some extent by his memory deficit and that in consequence he will incur some future economic loss because some promotions will be denied him. Doing the best I can on the evidence, including all the calculations in Exhibit 19, I 30 conclude that the measure of his future economic loss is $175 net per week over the next 25 years. I assess future economic loss in the sum of $130,000. I turn now to the questions raised with respect to the provision of services gratuitously by the plaintiff's wife. His wife was at the hospital every day during the plaintiff's hospitalisation. Undoubtedly that was a matter of comfort to him, but I am not satisfied on the evidence that it promoted his recovery, or was necessary from a medical point of view. A claim is made for eight hours a day for eight weeks at $12 per hour, but I am not satisfied that the evidence establishes 8 40 50 60 .. ···-··- .................,......, .·····~··•·•-"' ···~··· .................. - -·--·- ---------------------- -- 8 of 12 -- a proper basis for that claim. However, there is no doubt that immediately after the plaintiff's return home, his wife provided services which bring into play the principle derived from Griffiths v. Kerkemeyer. The claim is made for those services at the rate of $12 per hour, but Exhibit 10 makes it clear that at the time the appropriate rate was $10 per hour. 10 During a period of about six weeks the plaintiff required assistance showering, washing, and dressing. In addition, at least twice a day his stump had to be cleaned, disinfected, dead skin removed, and rebandaged. Further, the plaintiff's wife had to transport him to medical appointments about three 20 times a week during that period. I also allow for time spent by the wife at the hospital learning how to apply the compression bandage to the stump. I assess that during the first six week period the wife spent 30 175 hours providing such services to the plaintiff. The reasonable cost thereof is $10 per hour. In addition, a claim is made with respect to the following services to date of trial:- 40 (1) Lawn mowing and gardening - 3 hours every 2 weeks; (2) General household tasks, carrying children, carrying heavy objects, moving furniture, all washing up, changing light bulbs, putting out the garbage - 4.5 hours per week. 9 ~--··---.--·~ ..,.. _... -=---,.._...,...._._,_-~---·-----·-----·-·--· ------- 50 60 -- 9 of 12 -- I am satisfied that because of his physical disabilities there are some household tasks which the plaintiff performed before the accident and which are no longer within his capability. But I am not satisfied that the wife has performed all of the tasks particularised in the claim. Also, many of the matters so particularised, for example, carrying children, are of 10 doubtful relevance to such a claim. For the period to date of trial, I am prepared, however~ to find that in addition to the specific caring for the plaintiff the wife has spent six hours per week performing tasks which 20 previously would have been done by the plaintiff. His inability to perform heavy gardening work would incur cost in hiring outside labour if such tasks were not performed by the wife. As the current rate is $12 per hour, I will allow an average of $11 per hour over the whole period. Including interest, I allow $12,000 for the provision of services on the Griffiths v. Kerkemeyer principle to date of trial. A claim is made for the future provision of services by the wife, being those services particularised in paragraphs (1) and (2) above. The claim is for six hours per week for the 30 40 next 40 years at $12.50 per hour. Such a claim is not maintainable to that extent. For example, the plaintiff would 50 not in any event have been required to carry children or move heavy furniture at age 78. Over the next 10 to 15 years the plaintiff's wife will continue to perform services which ordinarily would have been done by the plaintiff. If she does 60 10 ~··-------·- ---- --~--~---------~---- -- 10 of 12 -- not do so, the plaintiff will incur expense in having some of them, for example, heavy gardening, performed. Doing the best I can on the evidence, I conclude that it is appropriate to allow four hours per week at $12.50 per hour for such services over that period. I assess the future Griffiths v. Kerkemeyer claim in the sum of $25,000. There will therefore be judgment for the plaintiff for $474,090. 11 10 20 30 40 50 60 -- 11 of 12 -- 270594 klj (Williams J) It appears that this matter was listed for trial before Mr Justice Cullinane during his sittings in Cairns in March of 1994. The matter came before him on 2 March. The defendant by election applied for an adjournment primarily because of the late receipt of material from the plaintiff. It is not entirely clear as to the details of all material which had 10 been provided late, but having heard from the solicitors on either side it appears to me that the true position is that the matter was not ready for trial on 2 March. The pla"intiff had delivered material late. The defendant was aware, or at least should have been aware, that further material would need 20 to be forthcoming from the plaintiff's side before the matter could be properly determined by the Court. In that situation the defendant by election could have made an earlier application for an adjournment of the trial. On granting the adjournment Mr Justice Cullinane ordered that the costs of the adjournment be reserved. Having considered the submissions that have been put to me and in the light of what I have just said I have come to the conclusion that I should make no order with respect to the costs reserved on that date and that each party should bear its on costs of that adjournment. There will therefore be judgment for the plaintiff for $474,090 with costs to be taxed. I further order that there be no order with respect to the costs reserved on 2 March 1994 and that each party bear its own costs of the adjournment on that date. JUDGMENT 12 30 40 50 -- 12 of 12 --