Beveridge v F J Sexton & Son Pty Ltd [1992] QSC 361

---------------------------------------------------------------------------------- 7t,ihgt£W 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 KNEIPP J No 232 of 1989 MICHAEL DOUGLAS BEVER3DGE Plaintiff and F J SEXTON & SON PTY LIMITED Defendant TOWNSVILLE .. DATE 23/09/92 ORDER 1 M RI@ •& ,. "'* - QatJI ' l hi:st '7WP f & f*&Qi"#W gw 4th Floor, The Law Courts, George Street, Brisbane, Q. 4.000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 11! -- 1 of 10 -- 7.30992 HIS HONOUR: In this action, the plaintiff claims darnages for injuries alleged to have been caused to his lower spine in an accident at work in 1987. It is alleged that the injury occurred while he was lifting a keg of beer in the course of his employment. He had previously suffered significant 10 injuries to the same area of the back. In 1976, he sustained a serious injury while playing rugby football. In 1985, he sustained a further injury in a motor vehicle accident. Prior to his accident in 1987 on which he sues, he had been engaged in active work for some time, but, apart from other things, 20 there had been surgery to the relevant area of the spine, and there is no doubt whatever that he was at serious risk of further injury to the spine as a result of trauma. In fact, leaving aside a report from Doctor Bracken, an orthopaedic surgeon, to which I will refer shortly, it appears that the 30 effect of all the medical opinions would be that not only was the plaintiff at serious risk of the consequences of further trauma to the lower spine, but that there was at least a serious risk, and more likely a probability, that as a result of natural further degeneration he would become, in any event, 40 incapacitated for active work. Everybody agrees that since the accident in 1987 he has in fact been incapacitated so far as active work is concerned. It is obvious from what I have said that there will be a familiar contest as to what was the plaintiff's situation immediately before the accident of 1987 so far as risks of injury or deterioration to the back are concerned immediately before the accident of 1987 or, in other words, as to what ORDER 2 50 60 -- 2 of 10 -- 230992 proportion of the damages which would be awarded for his present condition on a total liability basis could be attributed to the accident of 1987. Each side has obtained reports from specialists on this subject. There has r~cently come to hand a report by Mr Bracken who is, as I have said, an orthopaedic surgeon. This, it appears, was not commissioned by anybody concerned with the conduct of this litigation. It was commissioned in relation to litigation concerning a previous incident. It came to the notice of the plaintiff's solicitors in this action, and they immediately gave a copy to the solicitors for the defendant. In the reports from other specialists, there are various estimates as to what proportion of responsibility could be attributed to each of the three significant accidents in which the plaintiff has been involved. Since they were all given by surgeons, I take it that these apportionments related to causes of present physical disabilities and not to what might be regarded as appropriate apportionments in relation to damages which might flow from those physical disabilities. Doctor Bracken says that he would apportion 20 per cent of the plaintiff's current situation to the accident of 1976, 20 per cent to the accident of 1987 on which the plaintiff sues, and 60 per cent to the vehicle accident in March 1985. So far as the actual figures are concerned, it is said that these proportions are more favourable to the defendant than those offered by the other specialists or by some of them. ORDER 3 10 20 30 40 50 60 -- 3 of 10 -- The action is set down for trial tomorrow. It will be, apparently, a substantial action (although lasting only two days according to the estimates) both on liability and quantum, and I would imagiile that the costs inevitably incurred already would be very substantial. Notwithstanding this, the defendant applies for an adjournment because, I am informed, its counsel, who is not counsel who appeared before me, considers that is it is important to the defendant's case that Doctor Bracken be called for the defendant. Apart from other matters, I should mention that the plaintiff has a certificate for a speedy trial, the basis on which this was granted being that psychiatric specialists fear that he might have suicidal tendencies connected with the prolongation of this litigation. Finally, it appears that Doctor Bracken, if he is to be called, would not be available until next year, and next year, for practical purposes, would mean some five or six months hence at least. It seems to me that the apportionment of responsibility in percentage terms as between the various accidents will probably, in the end result, be of little consequence except as providing an overall picture in the final assessment of damages. As I have pointed out, these are assessments of physical disability, as I read them, and not assessments relating to the ultimate economic consequences of any disability. ORDER 4 10 20 30 40 50 60 -- 4 of 10 -- 230992 In the end result, it seems t.o me that all the specialists to whose opinions I have been referred (j_ncluding Doctor Bracken inferentially and not directly) take the view that the plaintiff before this accident was at serious risk in relation to future degeneration. The precise degree of risk, whether you put it in percentage terms or otherwise, can not of course be a matter of calculation. It, and consequent discounts, will be matters for assessment on the whole of the evidence, and not merely on opinions as to degrees of responsibility as between the three accidents. It is for the applicant who seeks an adjournment of the trial at this stage to satisfy me that if it is not able to call Mr Bracken there is an appreciable risk of injustice to it in presenting its case. On the material I have, I am a long way from being satisfied that any such risk has been demonstrated. In these circumstances, the application for the adjournment is refused. I order that the defendant pay to the plaintiff his costs of the app~ication to be taxed. ORDER 5 iO 20 30 40 50 60 -- 5 of 10 -- 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.)· --, REVISED COPIE:S lS3t :::.:o Date .,;et' I 01 I 1 ~~. SUPREME COURT OF QUEENSLAND ·-----2 CIVIL JURISDICTION KNEIPP J No 232 of 1989 MICHAEL DOUGLAS BEVERIDGE Plaintiff and F J SEXTON & SON PTY LIMITED Defendant TOWNSVILLE .. DATE 24/09/92 ORDER 1 . :·- 4th Floor. The Law Courts. Geonre Street. Brisbr..ne. n. 4000 Tl'll'"nhm11': {IJ7) 'J/7 4ifin T=nrci-mil,,. tn7\ ??7 c:c:~., -- 6 of 10 -- 240992 HIS HONOUR: This is an action for damages for personal injuries in which the plaintiff has plainly ended up (I do not speak about causation, having regard to the pleadings) in a very parlous situation, and if he succeeds in establishing the cause of action, the damages on a total liability basis would be very large, indeed. The defendant applies for an order adj ournins:c the trial, which is set down for today, because of late receipt of particulars of the claims for damages. Recently, the plaintiff has supplied to the defendant a schedule of damages for future costs for medical treatment, physiotherapy treatments, pharmaceutical expenses, travel expenses and hospitalisation expenses. These are damages for the future based on a life expectancy of 34 years. Without going into the details, it is perfectly plain that the plaintiff has never complied with Order 39 rule 29C(e) which requires the giving of particulars of any other amount sought as damages not otherwise mentioned. The items contained in the schedule now before me relate to future osteopath's services, the claim being $49,000-odd; for future psychiatric counselling, the claim being for around $26,000; for treatment by Doctor Low, an orthopaedic surgeon, the figure around $17,000; for pharmaceutical expenses, around $24,000; for general practitioner, $34,000; for private hospital charges for intermittent bed rest and other treatment in hospital, $249,000; for taxi fares, $140,000; and for the cost of gardening and other household maintenance expenses, around $13,000. The total is $574,000. I think I am correct in ORDER 2 10 20 30 40 50 60 -- 7 of 10 -- 240992 saying that none of those amounts has ever previously been quantified. Order 39 rule 29C(e) requires the giving not only of amounts sought as damages in relation to various items, but also of particulars of the amount, and those particulars would, in my 10 view, include the reasons for allowing the treatment and the calculations by which the eventual sum is reached. It is argued for the plaintiff that if one reads the medical reports, a previous document supplied pursuant to Order 39 20 rule 29C, and the plaintiff's answers to interrogatories, one would plainly foresee that th~ plaintiff would be-making charges for ongoing future treatment of various kinds, but, as I have said, none of the items in my view has ever previously been properly particularised, and the defendant has not had 30 any opportunity to investigate them as they are now put forward. The effect of the provision is that the failure to comply with it means that the plaintiff requires leave to lead the relevant evidence, and the burden therefore is on the plaintiff to satisfy me that to allow the trial to go on in 40 its present situation is not likely to result in any injustice to the defendant. In my view, it is quite impossible for me to take the view that the defendant might not be prejudiced, and perhaps seriously prejudiced, having regard to the amounts concerned. 50 It was argued that the defendant has been inactive in that it should have foreseen the claims, or some of them, and required appropriate particulars. However, the obligations under the ORDER 60 3 -- 8 of 10 -- ·240992 rules are cast on the plaintiff, and it seems to me that it is not for the defendant, by seeking particulars or otherwise, to prod the plaintiff into putting his case properly by the time the trial comes on. 10 The plaintiff has a certificate for a speedy trial. From r everything I have heard, I have the greatest sympathy for his wish to have the trial concluded as soon as possible, but that should not be achieved at the risk of injustice to the defendant. Therefore, reluctantly, I have come to the clear 20 conclusion that the defendant's application must be acceded to. There is nothing I can do, given my present situation, in relation to the resumption of the trial. It would plainly 30 take place before another judge. There will be another sittings before the vacation, but of course at this stage, at any rate, nothing can be done sensibly about the arrangement of work for that sittings. In these circumstances, I order that the matter be restored to the callover list in the same 40 situation as nearly as may be as it previously occupied. So far as the matter of costs of the adjournment are concerned, I think that whoever finally deals with the matter will be in a much better position than I am to decide on 50 whether or not in the ultimate result the adjournment turns out to be justified. I therefore reserve the costs occasioned by the adjournment to the trial judge. ORDER 60 4 -- 9 of 10 -- 240992 HIS HONOUR: I order that the plaintiff comply with the provisions of Order 39 rule 29C to the extent that it has not already complied with them within 14 days from today. ORDER 5 10 20 30 40 50 60 -- 10 of 10 --