Davey v North Australian Cement Ltd [1993] QSC 46

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 QUEE~SLAND CIVIL JURISDICTION CULLINANE J No W177 of 1991 GAVIN ALAN DAVEY NORTH AUSTRALIAN CEMENT LTD TOWNSVILLE .. DATE 1 6 I 0 2 I 9 3 JUDGMENT 1 /' /' Plaintiff Defendant 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 15 -- I j' ' HIS HONOUR: I understand the parties have agreed that the judgment should be vacated and there substituted instead, in the total of the amount assessed, the sum of $458,808.75 instead of $440,846.00, and there will then be judgment in 10 the sum of $427,062.99 in lieu of $409,100.24 with costs to 10 be taxed. Copies of the reasons are published. 20 20 30 30 ·tO 40 so 50 60 ---···--- 60 .(;ovt. Printer, Old 2 -- 2 of 15 -- ' ;t..\0 dP ' IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE BETWEEN: AND: GA.VIN ALA.N DA.VEY NORTH AUSTRALIAN CEMENT LTD. No. 117 of 1991 Plaintiff Defendant REASONS FOR JUDGMENT - CULLINANE J. DELIVERED THE DAY OF FEBRUARY, 1993 The Plaintiff's cause of action is admitted. The Plaintiff's date of birth is the 13th September, 1961. He was injured on the 12th April, 1989. He struck his head on an overhead pipe at his place of work. He was wearing a safety helmet at the time. The force of the blow brought him to a halt. He says that he felt ed and had a pain in the back of his neck and on both sides of the neck. He says that he steadied himself and continued on and picked up an electrical handblower weighing approximately eight kilograms and whichwas situated only a few feet from where his head struck the pipe. He walked about thirty metres or so with the handblower before squatting down and placing it on the floor. As he released his on , he felt the onset of severe in the neck, t e:r arm. There i ter as tl1e 1 consequence la nt. ff s he Dr. Wa son says that it is latter I a i -- 3 of 15 -- 2 evidence and proceed in my assessment damages upon the basis that all of the symptoms which developed on that day were the consequence of the Plaintiff's striking his head on the overhead pipe. There are a large number of reports in evidence before me. Dr. Watson and Dr. Low, an Orthopaedic Surgeon gave evidence as did Mr. Quick, a Physiotherapist as did Dr. Callanan, an Anaethesist. All other reports were admitted without the maker of them being required. The expressions of opinions in the various reports differ as to the cause of the Plaintiff's current problems. The complaints which the Plaintiff currently makes are outlined in some detail in exhibit 5 which is a report from Helen Coles, an Occupational Therapist. The Plaintiff complains of constant pain in the neck predominantly on the left side but occasionally on the right. This pain is aggravated by sitting, standing or walking for any extended period. Leaning forward aggravates his neck pain and any attempt to extend his neck does so. It is aggravated by driving and changes in the weather. He also complains of a pain in left shoulder eh is intermittent. It is sneez worse a s He in lef arm areas. i a 1 and carry It weather -- 4 of 15 -- 3 conditioning. He occasionally has pain in the right arm and shoulder. He has intermittent pain in the upper and lower back which is aggravated by standing or sitting for any period. In addition he experiences intermittent pain from the knees to the ankles and occasionally from the buttocks down. This pain in aggravated by driving, walking or bending. He has aching of the knees which is aggravated by pivoting through the legs to avoid neck rotation and also by kneeling or squatting or putting pressure on his knees. He also makes complaint that his memory has been affected. Until he was admitted to the Pain Clinic at the Townsville General Hospital by Dr. Callanan, the Plaintiff was taking substantial quantities of Endone, Codral Forte, Panadeine Forte and other tablets. He has since the performance of an epidural block at the Pain Clinic been weaned off the pain killing medication and now takes virtually none. Until recently he says he has been taking six Mogadon tablets of an evening to obtain a good night's sleep. The Plaintiff says that there has been a reduction in his pain level of some significance following his attendance at the Pain Cl c in dence be me he says feels much t in hi out and in his self confidence. s al it is ant ess -- 5 of 15 -- 4 sees Dr. Watson on an ongoing basis. Following the accident, the Plaintiff says that he was suffering from pain in the right shoulder and arm. He continued working until the end of his shift but took things easy. He says the pain became worse and that evening he had considerable trouble undressing and found it difficult to sleep because of the pain. He saw a Doctor on the following day and was off work for approximately two and a half weeks. He returned to work for a short period before taking long service leave of approximately eleven weeks. During this time whilst he was relatively inactive his pain levels decreased. On his return to work he was given tasks which involved cleaning and sweeping. It was on his return to work that developed constant ft-sided pain rather than right-sided pain which he had initially experienced though this so continued from time to time. The left-sided pain extended into the shoulder arm and the sweeping act ties provoked this pain. He says that he may have had such pain at different times prior to this following the accident but I think the ultimate effect of the cross-examination was that he no ion n ier. l s ~ ~ J a i ter thi peri i his view a consequence of eh s -- 6 of 15 -- 5 the time. I accept this evi and assess the Plaintiff's damages upon the basis that his complaints in this regard are a consequence of the accident. The Plaintiff had prior to the accident had occasional problems with his neck and back, these incidents were canvassed in evidence and are dealt with in exhibit 2. I accept the Plaintiff's evidence that he had no continuing symptoms from these and in particular at the time of this accident was not suffering from any symptoms in the cervical or lower spine or in the arms. Dr. Watson says that the radiological evidence available (x-rays and M.R.I.) establish that the Plaintiff has bulging at the level of the rd and fourth cervi vertebra and shows possible evidence of multi-level degenerative change of the discs a picture which overall is consistent in Dr. Watson's view with the complaints which Plaintiff makes. Dr. D-::mglas, an Orthopaedic Surgeon, who examined the Plaintiff on behalf of the Defendant on the other hand says that whilst the Pla iff has a severe disability of the neck which sti c is satisfied was initi ai s i e a +- inci in s are not ue some se recurren i Ho1,;ever he -- 7 of 15 -- 6 not think that the incapacitating pain of which the Plaintiff compl that. ns and which has been so persistent, is consistent wi He believes that the Plaintiff has developed a psychological problem which is the major cause of the continuing neck disability. Dr. Lewis, an Orthopaedic Surgeon, in his report of the 29th January, 1992, says that the Plaintiff presents difficulties in diagnosis because of the absence of any definite objective pathology in his spine. He however referred to a report of Dr. James, a Psychiatrist, whose report is attached to a report of Dr. Watson and which suggested that the Plaintiff is suffering from a genuine organic illness and does not have any psychiatric condition. Dr. Lewis says:- 1 in all he seems to fallen into a of neck pain, excessive narcotic intake, further neck increasing narcotic intake. Because of this it could be said that he is substantially disabled." It will be appreciated that this report pre-dates the Plaintiff's admission to the Pain Clinic and the improvement that i s la.i t s s ve t psy ic pain. However -- 8 of 15 -- 7 refers to the evidence of Dr. Callanan whose report is also attached to Dr. Watson's and who gave evidence before me. Dr. Callanan says that the Plaintiff has the signs of a condition known as Horner's Syndrome and that the symptoms of this are not capable of being simulated and that they indicate some impairment of the sympathetic node system which in turn is referable to some pathology of the cervical spine. Dr. Green concludes that it is probable that both psychological factors and organic factors are contributing to the Plaintiff's current pain and disability. In his view the Plaintiff is unlikely to ever be free of pain or reach his former level of capability and remains at risk of chronic drug dependency. Dr. Parker who is a Psychologist has provided a report. It would appear that Dr. Parker (to whom the Plaintiff was referred by Dr. watson) saw the Plaintiff over a significant period of time during which psychological assessment and pain management sessions were conducted. The material before me suggests that it is these, together with the attendance as an in- ient at the Pain Clinic at Towns vi , which in his l t r referred are ec ese ings with fi ion that e i -- 9 of 15 -- 8 evidence would not seem to be sufficient to justify a finding that the intermittent problems in the lower back and legs are related. As I understand matters, these are not of any great significance. I am satisfied that the Plaintiff will continue to suffer from these complaints although there will be some reduction in his need for physiotherapy as time goes by. There is some prospect of surgery as described by Dr. Low but the most the Plaintiff can hope for is some reduction in his pain without any significant increase in his capacity to work. There is other evidence before me which would suggest that the likely benefits of such surgery would not be sufficiently great to warrant the risks associated therewith. (See exhibit 15A}. I take into account prospect t the Plaintiff may undergo surgery from eh he may ve some benefit but I do not regard this as warrant any signifi reduction in his damages on this account. I assess the Plaintiff's general damages in the sum of $70,000-00. In past pain, su s amenities, I allow in t ra of % for a l is s a i ce i 1 + e L s a fin 1 as an -- 10 of 15 -- P~GE 21 3 '•·! ~~ o' , 9 had been working for about eight months at the time of his accident. His ~ork history since leaving school is set out in exhibit 2. There are calculations before me showing what the Plaintiff would have received had he remained in employment on the Electrical Trade Assistant's award rate applicable to the Defendant's establishment (see exhibit 17 and 20) and these show that the ~laintiff's nett earnings would have been some $69,341-57. Exhibit 22 shows the Plaintiff's earnings in the years prior to the accident and the year of the accident. The purpose of this is to demonstrate that the Plaintiff had received significant amounts in excess of the award rates. This evidence was not elaborated upon but I assume the differences result from overtime and similar payments. Given this and given the relatively short period that has elapsed between the time of the accident and the date of trial and the Plaintiff's length of ser~ice with the Defendant, I think that a figure of $67,500-00 would be a reasonable allowance in respect of past loss. It is conceded that no interest should be allowed on this sum in view of the amounts received by the Plaintiff by ~ay of Workers' Compensation payments and Invalid Pension payments. !n relation to future economic loss, I accept that the Plaintiff is substantially disabled from earning an income although the evidence which I accept would suggest that there is a relatively minor residual earning capacity one which I think the Plaintiff would have difficulty in translating into -- 11 of 15 -- - . " P~GE 3/ 3 I ,I :, ' • 'I 1 0 income but which I take into account. I also take into account the vulnerable personality which Dr. Green describes and the fact that the Plaintiff had prior to the accident in question some problems with his neck and lower back although I do not regard these as significant. I think it would be a reasonable basi$ upon which to assess future economic loss to allow the Plaintiff's loss of earnings until age 55 and to adopt a figure of $325-00 per week. The evidence before me establishes that the current award rate is $377-35 per week nett. The present value of such a loss applying the 5% tables is $226,190-00. I allow this sum under this head. The special damages claimed are set out in exhibit 21. There is agreement in respect of all of these except for the travelling expenses for attending medical treatment and physiotherapy. I accept the evidence of the Plaintiff in this regard and allow the amount claimed. The Plaintiff's special damages will therefore be allowed in the sum of $17,962-75. There is a claim for care and assistance both past and future. This is based upon the contents of Exhibits 2 and 3. It was agreed that in respect of any care and assistance an appropriate rate would be $8-50 per hour. I'; ', '1 -- 12 of 15 -- 1 1 The Plaintiff says that his wife provides approximately five hours of assistance per week. She does all of the work associated with the yard, including the mowing thereof, because of the Plaintiff's inability to do so. The Plaintiff says that he now provides some help to his wife with some domestic tasks. For some period now the Plaintiff's father has been mowing the yard but the Plaintiff's wife intends to do so again shortly. This is dealt with in exhibit 3. I think that the Plaintiff makes out a claim which is compensable under this head although the evidence in relationto it is relatively sparse. I propose to allow in respect of past care and assistance the sum of $5,000-00. I allow interest thereon at 6% per annum for three years and nine months which results in a sum of $1,125-00. The future claim for care and assistance cannot be the subject of any precise calculations. I am satisfied that the Plaintiff's wife will have to continue to perform these tasksbecause of the Plaintiff's inability to do so and that this will continue indefinitely. I think an appropriate allowance for the future 20,000-00. i c ~ure This proposition that Pla f ll i at e s week 4- per sess for of his life. I do not think the evidence bears lS -- 13 of 15 -- 1 2 out. It is obvious from what Mr. Plush says that at some time in the future he anticipates the Plaintiff's requirements for physiotherapy will be significantly reduced although he does not believe that they will ever completely cease. Doing the best I can on the material, I allow a sum of $40,000-00 under this head. In making this allowance I am satisfied that it is the view of the Plaintiff's advisers such as Dr. watson that this is of assistance to the Plaintiff. I allow the claim in respect of future medication in the sum of $9,156-00. There is no convincing reason on the materialbefore me why the Plaintiff's needs in this regard will be reduced in the future. They have as I have already indicated been substantially reduced and I assume that he is presently taking the minimum quantity of medication which he requires and that this position will continue in the future. Although a claim for future medical expenses was advanced, it was ultimately conceded that the evidence did not support any assessment under this head. The various items which I have assessed then are as fol A. $ 0/0 0-00 B. ast Loss Futu:r.-e othe -- 14 of 15 -- G. H. TOTAL Future Medication - Interest - 1 3 $ 9,156-00 $ 3,000-00 $440,846-00 From the above amount has to be deducted the sum of $31,745-76 being the amount received by way of Workers' Compensation payments. I give judgment for the Plaintiff against the Defendant in the sum of $409,100-24 with costs to be taxed. -- 15 of 15 --