Clayton v Fisher [1993] QSC 45

------------------------------------------------------------------ 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 CULLINANE J No 369 of 1986 D'ARCY CLAYTON Plaintiff and GWENDOLYNE FIS~HER Defendant TOWNSVILLE .. DATE 10/02/93 JUDGMENT 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 14 -- 10 20 30 40 so 60 HIS HONOUR: In this matter there will be judgment for the plaintiff against the defendant in the sum of $168,731.95 with costs to be taxed. Copies of the reasons are available and are published. -Govt. Printer, Old. 2 I I , I I I I 10 20 30 40 50 60 -- 2 of 14 -- IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE W. No. 369 of 1986 BETWEEN: D'ARCY CLAYTON Plaintiff AND: GWENDOLYN FISHER Defendant . REASONS FOR JUDGMENT - CULLINANE J. DELIVERED THE ~~~ DAY OF FEBRUARY, 1993. In this matter the plaintiff's cause of action is admitted. The plaintiff was born on the 11th January, 1942. He was involved in a motor vehicle accident on the Twentieth day of June, 1983, when a vehicle in which he was a passenger came into collision with the rear of another vehicle. There is a substantial amount of medical evidence before me. This consists in the main of reports. In addition I have heard evidence from Doctors Watson and Green and also Helen Coles, an occupational therapist. The plaintiff makes a myriad of complaints and the opinions expressed by the various witnesses differ as to the role that the accident th which I am concerned ays in these. pl ntiff's aints are outli in considerable il in the which are largely contained in exhibit 2. His aints are related in ibit 1 which is the intiff's statement and in bit 2(o) which is Mrs. Coles' report of the 14th December, 1992. -- 3 of 14 -- 2 The plaintiff complains of:- (a) pain in the lower back which is said to be constant but of variable intensity and which is aggravated by certain activity; (b) constant and severe pain in the hips which radiates into the groin; (c) pain in the legs, knees, ankles and feet which is said to be worse in the right than in the left and is aggravated by movement or by walking any distance or standing for any length of time; (d) pain in the upper back which is not constant like the other pain but is often more severe; (e) pain in the neck which is said to be constant with tenderness to the touch; (f) severe headaches which are described as being in the nature of a pressure type pain; (g) pain in the arms which is intermittent. In addition, he complains of other problems such as confusion, impairment of memory, lack of co-ordination, a sensation of burning skin on the top of his head, loss of concentration and a tendency to readily become upset and angry. Th aintiff it would appear, has two s of his ition. One is c the r is functional. It is no easy to if to ich the incident 1 subject of e ngs 1 is a i is a ome ems l s ne -- 4 of 14 -- 3 back prior to the accident and indeed had received treatment from Dr. Watson for these. The problems were of long standing but it appears at least so far as the lower back is concerned, he had not seen Dr. Watson in relation to this for some time prior to the accident. I proceed upon the basis that so far as his lower back is concerned, he was not at the time of this incident experiencing any symptoms of any significance in relation to this and had not for some time prior to the relevant date. On the other hand, on the very day of the accident he had attended Dr. Watson's surgery in relation tocomplaints concerning his cervical spine and headaches. He next attended Dr. Watson on the 8th July, 1983, having attended at the Townsville General Hospital on the day of the accident. According to the hospital, he complained of injury to theneck, shoulder, knee and foot and on examination there was found to be minimal tenderness in those areas. On the 8th July, he complained of generalised neck pain and stiffness with bilateral sub-occipital headache radiating to behind the eyes. It was some time later that he complained of lower back problems. However Dr. Watson manipulated his lumbar spine on the first occasion he saw him after the accident. For the next one and a half years accord to exhibit 2(b) plaintiff ined of a variety of ems ich are similar to t.hos l aJ. o incl erns s He has conti to ai of all of these al '"- lL. appear that in some cases thems of more recent times become more pronounced. -- 5 of 14 -- 4 The evidence establishes that he had at least two further incidents in which he may have sustained some aggravation of some of these problems and I take this into account in the assessment of damages. It is the view of Dr. Gavin Douglas, an orthopaedic surgeon whose reports were tendered by consent, that the plaintiff has a neck and back disability which existed prior to the accident in 1983 but which have been aggravated by this. He is of the view that some of the more recent deterioration in these areas is the result of degenerative changes which would have occurred in any case. Dr. Watson's opinion is that the plaintiff is significantly handicapped as a result of the trauma of this incident although he accepts that there is a significant psychological component in his present condition. This is also Dr. Douglas' view. As I understand the evidence Dr. Watson gave before me he accepts that the plaintiff had pre-existing problems with his upper and lower spine but says that these did not have the effect of disabling him in the way that he presently is nor would this position have been reached without this acci Dr. Green prov two repor whi are exhi its (1 and (m) and as I e said gave evidence before me. His view is that the intiff suffers a ps ic pai disorder being of a make-up which would pre-dispose him to -- 6 of 14 -- 5 significant functional disability greater than one would usually expect from the trauma of the incident and from radiological and clinical findings. He thinks that the plaintiff's emphasis on physical fitness and proficiency in sport plays a role in making it more difficult for him to accept any degree of disability and thus contributing to a functional increase in his overall condition. In addition he says that the plaintiff suffers from what is described as a conversion disorder, the nature of which is that the disturbance simulates a physical illness which is not under voluntary control. He says that the plaintiff's wife has a history of ill-health and that the plaintiff and his wife have a mutually dependent relationship in this regard. The prognosis in Dr. Green's view is poor and he says that persons such as the plaintiff are resistant to treatment and rehabilitation. He says there is a possibility that prolonged pyschotherapeutic support might result in an improvement but my assessment of his evidence is that he thinks this is remote although he thinks that it is worthwhile trying given the generally poor overall position of the plaintiff. The plaintiff has decreased libido and it appears that there are some problems developing in i ip be h elf his wife because of his current ems. in iff presented fore me as sad and ec figure. Dr. Green says the ai if - isposed -- 7 of 14 -- 6 developing problems of the kind which he presently has with any trauma or incident and that whilst he accepts that the subject incident is the primary cause in producing his present situation, a number of other factors have also played a role. The authorities establish that it is for the defendant in such a case to isolate the other factors and to demonstrate the extent to which they operate to produce the current condition. The same remarks apply in relation to the pre-existing problems of the plaintiff. I accept that the plaintiff has the problems of which he presently complains and I accept that they are by and large the result of the trauma sustained in this incident with the causes being both organic and functional. I however am satisfied that the plaintiff had the pre-disposition referred to and also that he suffered from some pre-existing although not great problems of the upper and lower spine. I am also satisfied that not all of the plaintiff's present problems can be ascribed to the accident and I make appropriate discounts in my assessment of damages under the various heads for these factors. I assess the plaintiff's general damages in the sum of $60,000. aintiff does n alific 1 i f for or the i a iness of c frame is he was ic ent and in i fie h earned income t classes and selling some equi f -- 8 of 14 -- 7 Exhibit 7 consists of certain of the plaintiff's tax returns. The first of these is for the year ending the 30th June, 1981 and the last is for the year ending 30th June, 1988. The income declared is summarised in a letter which is attached to exhibit 7. As will be seen the income prior to the accident was very modest indeed. For the year ended the 30th June, 1984, the plaintiff made a loss of some $258 and for the following two years earned a nett income of $7,226 and $7,711 respectively. This represents a significant increase on the income which the plaintiff was earning prior to the accident. He earned this income from the same activities as those in which he engaged prior to the accident as I understand matters. He says for about the last seven years he has not engaged in any picture framing. His income for the year ended the 30th June, 1987, was the sum of $3,927 nett and for the year ended the 30th June, 1988, some $1,485 nett. Since that time he has not lodged any tax returns and says that he has earned a minimal income from selling archery equipment although in cross-examination it emerges that he has been continuing to conduct classes during those years although he says that he does this in a way which does not involve any ef on his part. He est his pres income from sale is $60 per week average. ai i i ~ bene s t L 3 to the 1 a to Oc It since the atter date ficant -- 9 of 14 -- 8 total amount paid is some $69,532-18. So far as past economic loss is concerned it is not easy to identify what the plaintiff has lost. I accept that during the periods from the 19th July, 1983 to the 10th April, 1984, the plaintiff was unable to work as a consequence of the injuries and I am prepared to accept that in respect of the period from the 10th March, 1987 to the 20th October, 1987, during which he also received sickness benefits, this should be regarded as ascribable to the incident also. The plaintiff's income prior to the accident was as I have mentioned very modest indeed. After his return to work following the accident, he earned greater sums from the same activities even though these amounts were also modest. He has not now for some considerable time engaged in the activity of picture framing. There is evidence from Dr. Douglas that whilst plaintiff would not be able to engage in the heavier aspects of this work, he ought to be to engage in some of the activities which be carried out at a for of a L l e over a operate a and to s tre -- 10 of 14 -- 9 correctly, things are clamped together using one's hands and feet. He also says that part of the work involves the cutting of glass to fit into a frame and he says that these are activities which he cannot now do. He says that in the past he has hired people to do some of the work for him but that it was not really practicable to obtain people with the appropriate skill at levels that he could afford to pay. There is some evidence that the quality of his work was good (see exhibit 10). There is some evidence of the level of charges. One cannot avoid however the fact that the plaintiff's earnings from this source prior to the accident were very limited. I should also mention that the taxation returns do not appear to include any income from his activities teaching archery either before or after the accident. He says that he engaged in this prior to the accident and still does although now he adopts practices when teaching classes that do not subject him to any real physical stress. I am not prepared to conclude that he has suffered any economic loss the I not ink evi i l I s sf ai if i capac i a acci ec il 0 f this es 2es e on that t -- 11 of 14 -- 1 0 already mentioned. In relation to the loss of earnings ov ; 20th June, 1983 until the present, I al J u\!t th This figure takes into account the fac tli throughout that time HOuld in accordan f' value of money have increased signific nl ought to be reflected in the plaintiff' capacity but I do not proceed upon the would have been earning income at the 1 awards which were placed before me in The plaintiff has received by way of s which exceed this sum and accordingly th allowance for interest in respect of pa t. So far as future economic loss is concern with similar if not greater difficulti I have already canvassed. The ainti satisfied that his capacity to earn an substantially impaired although I am sa res capaci I some just readi be acti fie i I i h jod from the urn of $50,000. tl n.ings mcJvements in the nd that this () earning }l plaintiff u sted in the nefits amounts be no ic loss. is attendant :r.·easons that 1 . I am s been is a ons as to earning of t pre- -- 12 of 14 -- 11 to and the fact that other factors play a role in his current overall condition. I adopt a figure of $150 per week for eight years which produces a figure of $51,582 discounted to present values by reference to the 5% tables. So far as special damages are concerned, the plaintiff has given relatively brief evidence as to the following items: (a) taxi fares - (b) massage - (c) medical expenses - (d) medication - $500 $270 $300 $260. There was some argument that these should not be allowed but some of the evidence would suggest that in respect of some of these items the claim may have been a little understated and I propose to allow special damages in these sums together with the amount referred to in exhibit 11 for rehabilitation expenses namely the sum of $1,761-95. The total in respect of special s will be 3,09 -95. s 0 four items. I 0 r 3 s ears. s I allow interest on an er s i -- 13 of 14 -- 1 2 amenities at the rate of 2% for seven years. This produces an amount of $3,500. The total of the damages assessed is as follows: (a) General damages - $ 60,000-00 (b) Past loss of earnings - $ 50,000-00 (c) Future loss of earnings - $ 51 f 582-00 (d) Special damages - $ 3,091-95 (e) Interest - $ 4,058-00 I give judgment for the plaintiff against the defendant for the sum of $168,731-95 together with costs to be taxed. -- 14 of 14 --