Bjelis v Mirage Operations Pty Ltd & Ors [1992] QSC 273

/ IN THE SUPREME COURT OF QUEENSLAND No. 2779 of 1989 BETWEEN: BERISLAV BJELIS Plaintiff AND: MIRAGE OPERATIONS PTY. LTD. First Defendant AND: SHERATON PACIFIC HOTELS PTY. LTD (trading as SHERATON MIRAGE GOLD COAST QUEENSLAND an unregistered business name) Second Defendant MIRAGE GOLD COAST HOTEL PTY. LTD. Third Defendant AND: PACIFIC MIRAGE LIMITED Fourth Defendant REASONS FOR JUDGMENT- DERRINGTON J. Delivered the 3rd day of August 1992. Counsel: M.A. Wilson for the Plaintiff. J.A. McDougall for the Defendant. Solicitors: Nicol Robinson and Kidd t/a for Wilson & Copley for the Plaintiff. Morris Fletcher and Cross for the Defendant. Hearing dates: 29th, 30th and 31st July 1992. -- 1 of 10 -- \_- /' IN THE SUPREME COURT OF QUEENSLAND No. 2779 of 1989 BETWEEN: AND: AND: AND: BERISLAV BJELIS Plaintiff MIRAGE OPERATIONS PTY. LTD. First Defendant SHERATON PACIFIC HOTELS PTY. LTD (trading as SHERATON MIRAGE GOLD COAST QUEENSLAND an unregistered business name) Second Defendant MIRAGE GOLD COAST HOTEL PTY. LTD. Third Defendant PACIFIC MIRAGE LIMITED Fourth Defendant REASONS FOR JUDGMENT - DERRINGTON J. Delivered the 3rd day of August 1992. This is an action for damages for personal injury caused by the negligence of the third defendant as the employer of the plaintiff. Liability is admitted. The accident happened on 31st October 1987 at the third defendant's restaurant when the plaintiff was standing near some heavy swing doors one of which was forcefully opened by another employee and struck him in the back, pushing him against a pillar and causing him to fall to the floor. -- 2 of 10 -- 2 He was employed by the third defendant as a chef de partie making him equal third in the hierarchy of chefs of that establishment and he was in charge of about six employees in the kitchen. In his work he frequently had to lift heavy pots, bend, twist and he was physically active. This heavy stress caused premature deterioration of his spine, making him vulnerable to injury and exacerbating the pain of any injury. Although he suffered some immediate pain in his back from the trauma of the relevant accident, he was able to complete his duties for that shift, most of the heavy work having been done. Because the next two days were free he spent most of them in bed and on the second day, 2nd November 1987, he saw his general practitioner, Dr. Rubis, about the matter. Although he now says that the pain which he was then suffering was in his lumbar region about the level of his belt, his complaint at the time clearly placed it about the region of the tenth thoracic vertebra, and this was confirmed by the location of a bruised welt which ran diagonally across his back from below the level of the left armpit towards the right hip. Dr. Rubis later arranged for x-rays of the thoracic region but not of the lumbar region and although his evidence upon the point appears to be diffuse, there is, inter alia from his report, strong evidence that the plaintiff's complaint in respect of his spine related to the thoracic region. Dr. Rubis exhibited a natural bias to the plaintiff in his evidence. Although the defendant reasonably challenged the claim that the present symptoms, which are attributable only to lumbar spine problems, are connected with the accident, however, the thoracic (J () 0 -- 3 of 10 -- 3 injury may well have been the focus of attention at the time while a simultaneous injury to the lumbar spine, less noticeable at that time but potentially more serious, may have been overlooked. It is likely that under the stress of his work such an injury would have become more manifest, and this is consistent with his experience and complaints of appropriate pain. On the acceptable evidence, this would appear to be what happened. Although he had a medical certificate excusing him, to his credit he chose to return to work as scheduled and performed his duties for over four months until early in the following March ( when he next saw Dr. Rubis again and by then he was complaining ' of lumbar-related pain which has been his consistent complaint since that time. In January he had received physiotherapy for pain in his lumbar region. It is very probable that by this time he had suffered serious pain from the stress of his work on his injured back. He was given a Workers' Compensation certificate and has not returned to work since, his complaints of pain becoming more extensive and variable, particular as his perception of it became exaggerated by his obsessive personality and his anxiety and perhaps the prescription for him of inappropriate drugs. His anxiety has thus fed on his pain and incapacity which in turn has led to a state of depression. This has left him a seriously disabled man who is obsessed by his pain and engages in relatively little activity, far less than his organic state would justify. As his wife has returned to the workforce as a legal secretary for the financial benefit of the family, he helps her around the house and with the cooking, and he takes care of -- 4 of 10 -- 4 their schoolage child while she is a work. They both describe his serious disablement from many ordinary activities, and while there has been some natural hyperbole by anxious persons, their descriptions may be generally accepted. He has had a multiplicity of medical investigations and treatments, including the provision of drugs which would have been better withheld. If anything, his overall history is that his perception of pain has grown worse. Radiological examination has disclosed no relevant sign of nerve root compression in his discs although it revealed degeneration of his spine consistent with natural processes for his age and the stress of his activity. Moreover a number of the complaints of pain are inconsistent with any nerve root damage although it is possible that they are referred pain from injury to his spine which could be the result of trauma or natural deterioration or both. In the last two years, there has been some bulging of a lumbar disc on the right hand side and it was noted by medical witnesses that his chief or only complaint of pain in his legs was on the left side, which could not come from that cause. U Whether it is because the contents of medico-legal reports have been revealed to him or for some other reason, he has in more recent times commenced to complain of pain in the right leg also. The point is that the complaint of pain in the left leg was not consistent with its having been caused by the bulge to his disc on the right side. It is not essential that the bulge in the disc is causing any symptoms at all, and any pain that he may be feeling in the left leg may well be due to the same referred pain -- 5 of 10 -- ( \ 5 which causes his symptoms in his right leg. The conclusion is that there is no radiological evidence demonstrating a traumatic cause of his symptoms, but it is not necessary that there should be. The effect of his present permanent organic condition is quite small, being expressed as something in the order of ten per cent disability of his lumbar spine, even by those orthopaedic specialists who treated him or examined him for medico-legal purposes. The higher estimate of Dr. Yaksich should be rejected. His view stood alone and was very sympathetic to the plaintiff's cause. Whilst it is reasonabl~ to accept that there is some pain from an organic source, its nature, extent and distribution cannot adequately be explained by organic causes and there is common acceptance that there is a genuine functional overlay of a psychiatric nature caused by the combination of his obsessional i. disposition and the threat which his disability poses to his \_ capacity to provide for his family. He was forty-eight years of age at the time of the accident "'- _/ and is now approaching fifty-three years. He was born in Croatia and came to Australia in 1970. He has worked hard and relatively successfully, though there have been periods of unemployment and he has made attempts to set up in his own business which were not successful. At the time of the accident he was reasonably placed in a good job in accordance with his age and experience and he was supporting his second wife and their child. His depression is not so heavily ingrained that it is incapable of amelioration and he will profit by the termination -- 6 of 10 -- 6 of his anxiety over his litigation, his award of damages and immediate treatment in a pain clinic which will wean him off unsuitable medication and enable him better to handle such pain as he has. This treatment should reduce both the pain and its effect upon him and this in turn, associated with some financial security and his prospects of functioning better, should help to overcome his depression which in turn will further contribute to his general well-being and capacity. Because of the deterioration of his spine due to his age and (~) physical occupation, Lt was probably vulnerable to both injury and further natural deterioration under those continuing factors. c/·- .. If he had not been injured in this way, the probability is that () in the course of time those factors would have produced the same organic results as he has experienced and that the trauma accelerated this by about five to ten years. There is no evidence as to whether it would have produced the same psychiatric accompaniment, but it must be noted that the major cause of that condition, his anxiety and loss of self-esteem at losing his status as provider for his family, would have been present in those circumstances. However, it may have been more ~J slowly precipitated so that he may have had more time to accommodate to it; but his obsessive nature was against this. He should therefore be compensated for the loss caused over a period of about seven and a half years from the accident which should be long enough to enable his rehabilitation and recovery from his depressed condition. In addition there should be an allowance for the chance that he may never have had such symptoms from non-compensible causes, and for the chance that he will not -- 7 of 10 -- 7 recover satisfactorily from his exacerbated state caused by his depression to the extent that it may not have accompanied any hypothetical incidence of non-compensible back problems. The latter is not a large factor and is mitigated by the possibility that, had he had symptoms from natural degeneration, he may have responded in a like manner because of his vulnerable personality. If he had not been disabled in this way, he would probably have remained in the employment which he had at the time or in some similar post until natural deterioration prevented it. He was a senior, experienced and competent chef and while some allowance must be made for the contingencies of life, including the possibility of unemployment because of the unhealthy state of the job market in that field, in his case and his situation, the factor for this set of contingencies should be relatively modest. However, his work history shows a series of job changes, and his position was not totally secure. There was also a danger of some back injury which would bring no or incomplete compensation. For these various reasons his loss of earning capacity to the date of trial should be assessed at $90,000.00. Interest thereon after allowance for the sums which he received by way of weekly benefits and disabilities settlement from the Workers' Compensation Board amounting to $33,764.04 should be $12,000.00. For future loss of earning capacity for the next three years and the loss of the chances referred to above, there should be an award of $100,000.00. His loss of superannuation benefits for the relevant period adopted above and commencing in 1990 is not easy to assess -- 8 of 10 -- 8 because of the variety of contingencies. However a figure of $5, 000. 00 would seem to be appropriate upon' the basis of Mr. Vincent's estimate after sui table adjustments and this figure is agreed by the parties. In respect of general damages the plaintiff's main recreation, apart from being a football spectator, was fishing and he should be able to return to both of these. He has lost some of the joy of a more active association with his young son although this has been compensated for by his chance of a closer association with the child while his wife is at work. The major component of his loss is his pain, suffering and his loss of enjoyment of life through his depression. Whilst his initial injury was not grossly traumatic and he has had no surgical operations he has undertaken a large number of procedures for pain relief and his depression is a serious factor. While the benefit of the further treatment proposed in the pain clinic and psychotherapy should largely restore him to the position which would have been reached in the course of time but for his injury, this component also must include an allowance for (_ __ )' the chances discussed earlier. Conversely his vulnerability, both physical and psychological, must also be taken into account in the sum of contingencies provided for. Accordingly an award of $40,000.00 should be made for this component and interest at two per cent allowed upon two-thirds of that as representing the past loss. This produces a figure of $2,400.00. Special damages are agreed at $20,997.09, and no interest on it is claimed. A sum of $6,100.00 should be allowed to him -- 9 of 10 -- 9 for treatment at a pain clinic and $5,330.49 represents the amount to be allowed under the Fox v. Wood principle. For recurrent future expenses he should be allowed $3,600.00. After his treatment at the pain clinic, his costs of medical treatment and medicines should be considerably reduced for the balance of the relevant period. In summary the award is as follows: Past economic loss Interest thereon Future economic loss Agreed Loss of superannuation benefits General damages Interest Special damages No Interest Cost of pain clinic Fox v. Wood factor Recurring expenses Sub-total Less Workers' Compensation TOTAL $ 90,000.00 $ 12,000.00 $100,000.00 $ 5,000.00 $ 40,000.00 $ 2,400.00 $ 20,997.09 $ 6,100.00 $ 5,330.49 $ 3,600.00 $285,427.58 $45,511.13 $239,916.45 There is judgment for the plaintiff against the third defendant in the sum of $239,916.45 and costs including reserve costs, if any, and costs of bringing proceedings against the other defendants, to be taxed. The action against the other defendants is dismissed. -- 10 of 10 --