Berryman v Brown [1992] QSC 174

TRANSCRJPT OF PROCEEDINGS S t.a te Re p:xtin g Bureau , · 4th Floor, The Law Courts, George Street, BRJSBA;"lli. 0. 400Q Tel. (07) 227.4360 (Copyright in this transcript i.s vested in the Crmx.rn. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J ·"-.· No 166 of 1988 MELISSA MARY BERRYMAN and NATHANIEL BENJAMIN BROWN (an infant by his next friend Melissa Mary Berryman) and CRAI G BELAMY ROCKHAMPTON .. DATE 7/5/92 JUDGMENT 1 R-FV':·.-c;- '"'"p:cc.: ·;~~ucr l I - ' .....,. '- l-' \_, ...._./ I l..- ._, I ... ).._~ L L.i i Cocni Reportiilg =c::C:dU Date l I 5 ;9d.. .. First Plaintiff Second Plaintiff Defendant -- 1 of 13 -- (Demack J) JUDGMENT HIS HONOUR: Melissa Mary Berryman was born on 21 September 1962. On 11 April 1987 she was involved in a motor vehicle accident. Liabiliity is not in issue. She was travelling in 10 the front passenger seat. The accident occurred in suburban Rockhampton. She was taken to the Rockhampton Base Hospital. Six stitches were inserted in a wound in her left upper arm and seven stitches in a tear to her left ear. She had not been working for some time prior to the accident. She 20 returned to work in August 1987. That brief recitation of facts suggests the injuries may well have been minor and consequently it may appear surprising that she now contends 0 she is and has been unable to work. 30 In respect of this aspect of the case, the most compelling evidence is found in Exhibits 6 and 19. Exhibit 19 comprises photographs that were taken of the vehicle in which she was travelling. The collision occurred when a truck with a table tray on the back backed out of a driveway and into the side of 40 the car in which Mrs Berryman was travelling. The tray of the truck caught the pillar supporting the roof and windscreen on the passenger side of the car. That pillar was torn from the body in the vicinity of the dashboard and pushed back relatively close to the passenger seat. The tray of the truck appears to have struck Mrs Berryman on the left side of her head in the vicinity of the temporal bone. Exhibit 6 is a report from Dr Black who is an ear, nose and throat surgeon. He says that the temporal bone was fractured 2 -- 2 of 13 -- (Demack J) in the accident although this does not appear on x-rays. It appears to be the only explanation for Mrs Berryman's total loss of hearing in the left ear. It is, therefore, clear enough that in the impact she sustained a blow to the left side of her head of some considerable force. It is, therefore, not surprising that she sustained soft tissue injury to her neck as well as the fracture to her skull. Mrs Berryman's life history can be expressed quite briefly. She completed grade 12 in 1979. At the beginning of 1980 she commenced general nursing duties at the Princess Alexandra Hospital and at the end of the two year period became an enrolled nurse. In January 1984 she married and on 1 May 1984 her son Nathaniel was born. Shortly after that, her husband left her and sh~was left to support Nathaniel. She returned to Rockhampton and was greatly assisted by her parents. She obtained work at St Andrews Hospital in September 1984 and continued there until December 1984. On 23 September 1985 she commenced work as an enrolled nurse at the Mater Hospital, Rockhampton. She worked until 25 April 1986. She then took time off until 7 July 1986. She again ceased work on 4 January 1987. These breaks appear to have been necessary because of the need to spend time with Nathaniel; Mrs Berryman said that if she had not been injured in the accident she would have returned to work sometime in April or May 1987. Two members of the nursing staff of the Mater Hospital gave evidence and it is clear that prior to the accident Mrs Berryman was a competent and popular nurse and there is every reason to accept her statement that she would have returned to work in about April/May 1987. 3 10 20 30 5 -- 3 of 13 -- (Demack J) Following the accident, she suffered significant.headaches for some two months and regularly took Capadex which relieved the pain. She had left ear ache which seems initially to have been thought to be associated simply with the tear to the ear. It was sometime later that she was found to be completely deaf in the left ear and later still came Dr Black's diagnosis that this was caused by a fracture of the temporal bone. There has been tinnitus in the left ear since soon after the accident. Her principal concern centred on her neck and left shoulder and I am satisfied that Dr Bulwinkel, orthopaedic surgeon, has properly identified these as involving some soft tissue injury. He described this as motion se~nent instability. It is not clear from his evidence whether the particular segment is at C6/7 or at CS/6. Mrs Berryman returned to work at the Mater on 31 August 1987 and continued in full-time employment until 11 September 1989. Over that time she lost 22 and a half days through pain. She also endeavoured to arrange her annual holidays in such a way as to give her some time off when the pain in her neck and arm was becoming intolerable. She wore a soft collar at work. In the early months she would start her shift work not wearing the collar and would put the collar on later on in the shift. However, towards the end of the time she worked at the Mater she wore the soft collar constantly. On 12 September 1989 she commenced to work reduced hours and did so until the end of 1989 except for a period of ten days in October 1989. She suffered an incident of sharp neck pain and had ten days off work at that time. By the end of 1989 she felt that she could 4 10 20 30 40 -- 4 of 13 -- (Demack J) not continue working at the Mater. She married Mr Berryman on 8 July 1989. At that time he worked as a bridge carpenter with the Railways. He was retrenched and at the end of 1989 shifted to Bundaberg with a promise of good employment. I am satisfied that this shift was not a substantial reason why Mrs Berryman left her employment with the Mater Hospital. She applied for work at the Bundaberg Hospital and was offered a job there. However, she did not start work there because of her constant neck pain. In June 1990 she returned to Rockhampton with her husband. At that stage she was pregnant and her second son, Thomas, was born on 20 November 1990 following a .difficult pregnancy. She now says she has headaches about twice a week. They begin in the neck and go up to the top of the neck, up over the top of the head and remain then above her ears. She has almost constant ringing in the left ear which is worse if she has the 'flu. She wears a soft collar for great part of the time. She takes about ten Panadeine Forte a week and for two weeks of the month she takes Orudis twice a day. She has a portable traction kit and uses that at home on her neck. She takes hot showers and uses a hot water bottle. Her husband applies Dencorub or Metsal to her neck and shoulders. Her deafness worried her at work because she felt that she could only hear satisfactorily from one side although Mrs Sheehan, who is the Deputy Director of Nursing at the Mater Hospital, did not become aware that Mrs Berryman had a hearing deficit. 5 10 20 30 40 -- 5 of 13 -- (Demack J) The conditions which were most explored at the trial were the orthopaedic disabilities arising from the neck injury and psychological problems. I accept the evidence of Dr Bulwinkel who was the only orthopaedic surgeon called to give evidence. He does not believe that any worthwhile result can be achieved from surgery. He says that there is no mechanical reason in the neck which demands surgery and that from the point of view of relief of pain, Mrs Berryman's demonstrated pain threshold and personality make him reluctant to recommend surgery. He says that he treated Mrs Berryman between 3 r.1ay 1989 and 14 December 1989. He said that she explored virtually every option that was open to her while he was involved with her. He thought that at the end of 1989 her disabilities had reached a plateau and that she was undertaking exercises and working on physical rehabilitation as much as she could. He expressed the view that improvement would continue so that with the passage of time Mrs Berryman's neck condition will stabilise. He said at page 79, "The period of time that it takes is open-ended, unpredictable, but in general people do grow through this stage and eventually either learn to cope physically or the physical events occurring in the area of injury stabilise to a point where they can cope." It seemed to me that Dr Bulwinkel's outlook was more hopeful than that of Dr Doughty who is an expert in occupational medicine and, overall, I prefer the view of Dr Bulwinkel. so far as the psychological aspects are concerned, I was left uncertain as to the exact effect of the testing Mr Salzman did. It seemed to me that his assertions based on that testing were not consistent with the appearance of 6 10 20 30 40 -- 6 of 13 -- (Demack J) Mrs Berryman or with the opinions expressed by Dr Alroe and Dr James. Both of these men saw value in counselling and it would seem to me that this makes a lot of sense. Dr Alroe was a little more pessimistic than Dr James who seemed to think that Mrs Berryman's native commonsense and exposure to medical 10 matters would enable her to become fully adjusted fairly quickly after the conclusion of the litigation. It seemed to me that was probably far too optimistic because of the length of time that has passed since the accident and because cf the considerable effort that Mrs Berryman has already put into her 20 rehabilitation. 30 40 ~(: 7 -- 7 of 13 -- 070592 se (Demack J) On all of the evidence I am satisfied that Mrs Berryman suffered a significant soft tissue injury to her neck, that she sustained a fracture to the left temporal bone and a significant cut 'lo her left upper arm and to her left ear. She has been left with a significant scar on her left arm and a loss of a portion of the ear. The cosmetic effect of the latter injury is masked by the way she wears her hair and, generally, she seems to dress to cover the scar on her left upper arm. She still has persistent headaches and pain in the neck and shoulders. She has the constant burden of tinnitus and has some diminished sensation in the left hand and arm. I am satisfied that she has done all that was required of her by the orthopaedic surgeon for her physical rehabilitation. I am satisfied that she has tried to rehabilitate herself through work and that since the beginning of 1990 she has been unfit for any form of work. It seems also that since the accident she has had the anxiety associated with her son's injury. Nathaniel was involved in the motor vehicle accident and his action is yet to be determined. She also went through the difficulty of having her husband retrenched and of having to shift from the town where she had grown up, away from her parents, to live in Bundaberg. She has also had the second pregnancy and birth in circumstances which were quite trying. It seems to me then that there is a good chance that with counselling, after the conclusion of this litigation, she should be able to return to part-time work in approximately two years. She should also be able to return to full time work in possibly five years time. However, there remains a possibility that these things will not happen and some 8 10 20 30 40 -- 8 of 13 -- 070592 SC (Demack J) allowance has to be made for that possibility. So far as past economic loss is concerned - this is calculated in Exhibit 4 - I am satisfied had there been no accident, she would have returned to work in about May 1987. I am satisfied also that work would have been available to her at the Mater Hospital. I also am of the opinion that the claim in Exhibit 4 for full time work sometime after Thomas's birth is over optimistic and that part-time work is more realistic. Making adjustments to that schedule, I am satisfied that her past economic loss should be assessed in the sum of $29,000. This sum should all bear interest, which I assess at $8,700, making the total payment for past economic loss $37,700. For future economic loss, I shall allow two years loss at $390 per week, followed by a further three years loss at the rate of $200 per week. This amounts to $65,200. As I have said, it is necessary to make some allowance for the possibility that counselling does not improve Mrs Berryman's condition, so that she may never return to work. I am satisfied that adequate allowance for that is made by rounding off the sum for future economic loss at $84,000. Special damages were agreed in the sum of $1,328.79. These matters related to medical expenses, physiotherapy expenses and taxi fares. $250 of that was incurred in 1989 and the balance in 1987-'88. 9 10 20 30 40 -- 9 of 13 -- 070592 SC (Demack J) I shall allow interest on the amount of $1,078 at 10 per cent for four years and on $250 at 10 per cent for three years, making a total of interest of $500. Mrs Berryman has spent a considerable amount of money on chemist expenses. She has used two soft collars at a time and they last about ·;12 months. There is no precise calculation possible for past chemists' and other associated expenses, but I shall allow approximately $8 per week for five years, which produces a sum of approximately $2,080. Allowing interest on that at the rate of 6 per cent for five years, I shall allow a total amount, including interest, of $2,700. There is a substantial claim made for services that were gratuitously rendered to Mrs Berryman by her mother and her husband. The defendant has urged that this claim which is set out in Exhibit 2 should be substantially rejected. It is argued that Mrs Berryman had been receiving considerable support from her mother looking after Nathaniel before any accident occurred. Consequently, support within the family was very much a part of the ordinary day-to-day family life. It is also urged that a great deal of the time that Mrs Berryman's mother spent was, in effect, spent caring for the injured Nathaniel. It seems to me that Nathaniel was primarily Mrs Berryman's responsibility. Because of her injuries she could not care for him as she should have and, therefore, depended on her mother to do things over and above what had previously been done. Also, it seems to me that a good deal of the help that 10 10 20 30 40 -- 10 of 13 -- 070592 SC (Demack J) was necessary was brought about by the fact that Mrs Berryman persisted in working for more than two years when she was suffering considerable pain and distress. This meant that to exercise her diminished economic capacity she needed assistance because of the disabilities inflicted on her. 10 overall, I am satisfied that both Mr Berryman and Mrs Berryman's mother, Mrs Brown, gave reliable evidence which was not overstated. I am satisfied that they have tried to state the additional things that they had to do, solely because of the persisting disabilities that Mrs Berryman 20 suffered. I will, therefore, allow the amount as claimed, rounding it off to $29,500. I shall allow interest on this sum in the amount of $8,850, making a total of $38,350. 30 It seems to me that in the future the need for assistance will diminish. I understand all of the opinions about counselling that were given encourage the idea that Mrs Berryman will grow to be more independent. I will allow one year's assistance at 40 $60 a week, followed by two years' assistance of $30 a week, making a total of $5,800. I have mentioned that Mrs Berryman will need counselling over quite a protracted period. The exact cost of this was not 50 agreed by the two psychiatrists, so I will allow $1,500. She will also have recurring expenses buying medicine and soft collars until such time as she becomes more independent. For these items I allow the sum of $1,500. The award for pain, suffering and loss of amenities has to be 11 -- 11 of 13 -- 070592 SC (Demack J) quite substantial. Mrs Berryman has lost all hearing in her left ear and has a 20 per cent binaural deficit. It seems to me that percentage figure should not be allowed to mask the fact that she now has hearing in only one ear. Any injury to that ear and any deterioration in that ear with aging will leave her quite seriously disabled. There is no suggestion that hearing in the left ear can be in any way improved, so she will always be deaf on that side. This seems to me to be a significant disability which must call for a significant award. So far as pain and discomfort from her neck are concerned, this has to be assessed in the expectation that things will settle down. Mrs Berryman's life seems to have been taken up very much with her work and family so that there is no suggestion of significant losses in the area of sport or other activities. Nonetheless, she has had a thoroughly miserable time for a great deal of the past five years and has had the frustration of pursuing rehabilitation without much success. For all these matters I shall allow $42,000, $18,000 of which shall bear interest. I understand that the appropriate interest rate now is 2 per cent on this and I shall allow $1,800 interest. 12 10 20 30 40 -- 12 of 13 -- 070592 SC (Demack J) The total award then is $217,178.79. There will be judgment for the first plaintiff against the defendant for $217,178.79, together with costs to be taxed. I order that the action of the second palintiff, Nathaniel Benjamin Brown, be remitted to the District Court for trial. 13 10 20 30 40 -- 13 of 13 --