Field v Mutiarra Pty Ltd & Anor [1992] QSC 57

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crov.-'11. Copies thereof must not be made or sold without the wrinen authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION RYAN J No 2395 of 1987 MICHAEL PATRICK FIELD and MUTIARRA PTY LTD and THE NOMINAL DEFENDANT (Queensland) BRISBANE .. DATE 6/3/92 JUDGMENT 1 REVISED COP!!::s"1SsLj,Ef:;·l Court P.eportinr.J Bureau ! l ~~-=~~!}J_ 3 I 9'<... _j Plaintiff Fi:r;st Defendant Second Defendant -- 1 of 16 -- Ob0392 JUDGMENT HIS HONOUR: I give judgment for the plaintiff against the defendant Mutiarra Pty Ltd for $235,584.78, and I order the defendant to pay the plaintiff's costs including any reserved costs fixed on a solicitor and client basis to be taxed. I publish my reasons. 10 20 30 30 -10 -lCJ 50 50 60 60 Govt. Printer, Ql~ 2 -- 2 of 16 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: No. 2395 of 1987 MICHAEL PATRICK FIELD Plaintiff MUTIARRA PTY. LTD. First Defendant THE NOMINAL DEFENDANT (QUEENSLAND) Second Defendant JUDGMENT - RYAN J. Delivered the Sixth day of March, 1992. CATCHWORDS: Negligence - Personal injury - Aggravation of pre-existing injury - Assessment of Damages. Counsel: Mr. D.B. Frazer for Plaintiff Mr. J.A. Logan for Defendant Solicitors: Stephen Jones and Leach, Solicitors for Plaintiff Tobin & Co., Solicitors for Defendant Hearing Dates: 10, 11 February 1992. -- 3 of 16 -- IN THE SUPREME COURT OF QUEENSLAND No. 2395 of 1987 BETWEEN: AND: AND: MICHAEL PATRICK FIELD Plaintiff MUTIARRA PTY. LTD. First Defendant THE NOMINAL DEFENDANT (QUEENSLAND) Second Defendant JUDGMENT - RYAN J. Delivered the Sixth day of March, 1992. On 22 October 1985 the plaintiff was injured when he slipped and fell to the ground in the course of climbing from the back of a motor vehicle into the bucket of a cherry picker attachment to the vehicle. On 23 June 1987, he issued a writ claiming damages against Mutiarra Pty. Ltd., by which he was employed at the time of the accident, and against The Nominal Defendant (Queensland). On 11 April 1991 he discontinued the action against The Nominal Defendant (Queensland). Liability was admitted by the first defendant. The only issue before me was one as to the quantum of damages. The plaintiff was born in March 1950. He gave evidence that in 1972, when he was employed as a truck driver he hurt his spine while unloading sugar, and had a laminectomy and spinal fusion. -- 4 of 16 -- 2 He was off work for six months. In 1980, he broke his left leg in a motorcycle accident, and he had an accident to his knee while he was working at a meatworks. His cartilage was removed, and he was off work for six months. When he was injured on 22 October 1985, he fell about ten feet and landed on bitumen, at an angle almost parallel to the ground. He was unable to move and was taken by ambulance to the Royal Brisbane Hospital, where he was treated at the outpatient's department. A report by that hospital states that the plaintiff complained of pain in his lower back. On examination power and tone were normal in his lower legs; reflexes were normal; sensation was normal; he was tender over the lumber spine region at L2/L3. There was no evidence of sciatica. X-rays showed that there were no fractures or dislocation. He was treated with rest in bed and anti-inflammatory drugs. It was anticipated that he would have some disability for about a week that would prevent him from working. There might be some pain for a week or so after that. There was no evidence that any permanent disability would result from this. On 29 October 1 985 he consulted a medical practitioner, Dr. Wong. He reported in July 1986 that there was gross limitation of the forward flexion of the lumbar spine. He was treated by complete rest, anti-inflammatory tablets and muscle relaxants as well as physiotherapy. Physiotherapy did not help at all and he was put in a surgical corset which helped his lower backache considerably. In March 1986 he was referred to a neurosurgeon Dr. Yelland. He told Dr. Yelland that in 1972 he suffered a back injury which -- 5 of 16 -- 3 left him with chronic pain and some weakness in the legs and that ten months-after the accident he had an operation on his lower back. A bone graft had been inserted into the lower part of the spine. He had also had an operation on his left knee for a torn cartilage, and another operation for a fracture of the right ankle. Dr. Yelland reported that his spinal contours seemed to be within normal limits, but forward flexion of the lumbar spine was markedly restricted. Straight leg raising was somewhat restricted, being 60 degrees on the right side and 70 degrees on the left side. He did not have any muscle weakness or wasting in the lower limbs and the left ankle jerk was absent, but the other deep tendon reflexes in the legs were normal. X-rays of his lumbosacral spine taken in March 1986 showed a posterior spine graft from L4 to 51, and it looked fairly firmly united. There was some narrowing of the LSS1 disc space, but otherwise there were no significant abnormalities. A lumbar myelogram and CT scan of the lumbar spine was performed on 10 June 1986. Although there was some asymetry of the sheaths of the LSS1 nerve roots, there was no real evidence of intervertebral disc protrusion or of spinal canal stenosis. Dr. Yelland examined the plaintiff in January 1992, and reported in substantially the same terms as in 1986. In November 1986, the plaintiff was examined by an orthopaedic surgeon, Dr. Watson. He reported that on examination he had a mid line and right iliac crest scars which were very tender. His movements were markedly restricted. Straight leg flexion was limited to 30 degrees to each side. The ankle jerks were present, he thought, but were very weak, and he had 51 -- 6 of 16 -- 4 sensory change on the left side. X-rays of his lumbar spine showed that he had had a lumbosacral posterior bone graft which he thought had taken. One apophyseal joint appeared to have been bridged. The other had not, but the graft, despite the fact that it must have been there for fifteen years was not very substantial and one expected grafts to hypertrophy once they had taken. Later reports by Dr. Watson stated that a Cat Scan done on the plaintiff showed no disc protrusion. He had an almost rigid lumbar spine. He said that he could elicit the right ankle jerk though it was feeble, but he could not elicit the left ankle jerk. He was numb in the first sacral dermatome on the right side. In a report dated 27 December 1991, Dr. Watson stated: "It is a fairly sound general rule following spinal fusion that the added stresses produced accelerated change in the disc immediately above it. This hasn't occurred although there is evidence of degenerative change in the disc above that. Again as a rough generalisation following successful lumbo sacral fusion one would expect something up to fifteen years of useful function. At the end of that time, one would expect to see changes in the disc above it accompanied by the appropriate symptoms. There is still no evidence of degeneration in the disc above the fused level twenty odd years after the graft. All one can say I think is that the cherry picker fall has brought on incapacitating symptoms at the very least five years earlier than would have occurred in the natural order of events, but allowing for the fact that the 4-5 disc is still normal, it would perhaps be more appropriate to say ten years earlier." In a report dated 3 February 1991, Dr. Watson stated: "It is now twenty years since the graft. That being the case I see no reason why he should not have been able to go out another five years from now had he not further injured his back. -- 7 of 16 -- 5 The only reason I place any limit on his working life is because there was evidence of degeneration in the disc, not immediately above the graft but the one above that and the fusion may be playing a part in the causation of that." In oral evidence, Dr. Watson said that the fall produced a very violent trauma. The previous laminectomy would have created a vulnerability. The spinal fusion was sufficient to keep the spine rigid, and he would expect about fifteen years work out of it. There was no indication of disc protrusion. In a normal person of the plaintiff's age, one would expect recovery from the sequelae of a musculo-ligamentous injury in a few months. There was greater exposure to stress after a fusion than with a flexible spine. Dr. Watson thought that the plaintiff could have worked from 1985 until 1997 if he had not had the fall. Dr. Anderson, an orthopaedic surgeon, reported his opinion as being that the plaintiff as a result of the accident suffered a musculo-ligamentous strain to his low back region that was the site of pre-existent abnormality which included the effects of a spine graft. There was clear evidence of degeneration above the graft. He described this as a common place occurrence that stems from the stiffness inflicted on the local area of the spine by the spine graft. Dr. Anderson thought it unlikely that he had in fact had a disc protrusion. He thought it unlikely that the accident of 1985 had contributed more than a loss of 15 per cent of his total body function. He revised that opinion in the light of a report by Dr. Rice to a figure closer to 5 per cent than to 10 per cent. In oral testimony, Dr. Anderson said that the plaintiff's complaints stemmed from a state of mind rather than a physical -- 8 of 16 -- 6 state. He described the plaintiff as having done well for 14 years after the spinal graft, but there was degeneration in the next two joints, and the following five years would have been uncertain. Dr. Mulholland, a psychiatrist, stated in a report that the plaintiff suffers from a chronic depressive neurosis of mild degree which is a result of the 1985 accident. This is due to his being in chronic pain and due to losses and changes in his life. He suffers from chronic mild depressive neurosis; chronic pain syndrome; chronic low back syndrome; and chronic semi-invalidism syndrome. Dr. Mulholland found nothing to support the idea that he might be malingering. He stated that while the plaintiff had a mild depressive neurosis, this of itself does not stop him from working. He considers that the basic reason why the plaintiff is not able to work is that he has physical disabilities and the psychological factors are essentially secondary. Dr. Rice, who is also a psychiatrist, made a diagnosis of "psychological factors affecting physical condition". The former consists in his subjective complaints of tension, irritability, loss of concentration and interest in response to the life changes that have been brought about by his injury, compensation, pension and legal situation. The latter is "lack of fitness that he has exhibited for the past 5 years against the background of a lumbar spinal fusion from which he has made a good recovery which left no residual problems in terms of work function". He expressed the opinion that "should he engage in a serious attempt at rehabilitation with the focus on changing his -- 9 of 16 -- 7 attitudes to and thoughts about pain, there is no reason why he could not·get back to full time employment". He thought that "there is undoubtedly a degree of conscious exaggeration of his symptomatology". In oral testimony, Dr. Rice said that the plaintiff was exaggerating the pain he suffered, because of social factors, including the present litigation. His pain was being reinforced by several psychological and social factors, which made him "give up". The plaintiff left school at age 16, and was educated to Grade 10 standard. He did well in his studies, but preferred work involving physical activity. He joined the Navy, and worked as a clearance diver. He left after three years, and worked as a truck driver. It was while so working that he hurt his spine and had the laminectomy and spinal fusion. He then worked at Marineland in Manly, New South Wales as a diver. In July 1973 he purchased a half interest in a business which involved promotional drag bike racing. He sold this business in mid-1974. At the same time he operated a business called "Sub-Aqua Diving Services". He sold this business in November 1975. From 1976 until 1978 he worked for the Prisons Department as a member of a dog squad and as a member of a special squad teaching recruits the use of firearms and unarmed combat. The plaintiff was married in 1975. He had previously been married and divorced. He and his wife separated in 1978. They were divorced in 1979. In 1979 and 1980 he was in Europe on a working holiday. He worked as an electrician trades-assistant in 1980-81. From 1982 to 1984 he was employed as a labourer and -- 10 of 16 -- 8 subsequently a slicer at a meat works. In 1984, he did some part-time fencing contracting, and worked at a hotel at Glamorganvale as manager's assistant. He worked as a bar manager at a hotel at Yellarton from October 1984 until May 1985. He said that he resolved to buy the lease of a hotel at Kalbar. A friend offered to finance him and he signed a contract to purchase the lease, but his friend was unable to assist him. He said that he decided to get a job to get finance, as he wanted to go back into the hotel business. If he could not own a lease, he wanted to work as a hotel manager. He started work with the defendant in June 1985, first as a tip-truck driver and then as a cherry picker driver. He said that he thought of the position with the defendant as temporary. Mr. Gollan, who employed the plaintiff in his hotels at Glamorganvale and Yellarton described him as a person who did his work efficiently. He had the ability to carry out the duties of bar manager. He referred to him as being a very carefree person when he first met him, but that he changed dramatically after he employed him. The plaintiff gave evidence that since the accident he had had pain in his lower back and right buttock and upper leg, left shoulder and neck and in his testicles. He has severe headaches. The neck pain is present when he drives, but is not there all the time. He has taken and still takes a large number of drugs daily, including tranquillisers, muscle relaxants, antidepressants, analgesics, anti-inflammatory agents, and preparations for skin disorders. He visits Dr. Wong monthly and a chiropractor fortnightly. -- 11 of 16 -- 9 The plaintiff met again in May 1986 the woman from whom he had been divorced in 1979 and they resumed cohabitation. They remarried in 1987. She is a registered nurse. There are three children of that marriage, and a child of a previous marriage aged 8 resides with them. She provides assistance by rubbing his back with creams for a quarter of an hour every day. She also mows the law and does the gardening. They have lived since 1989 in an old house on an 1~ acre property outside Gatton. Prior to the accident the plaintiff engaged in a number of sports and hobbies, including judo, swimming and water sports, and motor cycle riding. He is unable now to participate in these activities, except that he does some swimming. There has been a great decrease in his sexual activity which he finds painful. It is now almost non-existent. He is unable to remain standing or sitting without moving after a period of about half an hour. The plaintiff said that he went to the Commonwealth Rehabilitation Service at Milton in 1988. An occupational therapist at that office said that interviews were arranged for him with a physiotherapist and to discuss work options. She felt that the most realistic option was self-employment, because of his variable physical condition and inability to commit himself to work for regular hours. The plaintiff said that he had tried to train part-time as a lock-smith, but he could not afford to pursue the course. He has been on an invalid pension since 1987. He worked as a magician in a restaurant from July 1990 until September 1991 but he had to give this up as it became too painful. -- 12 of 16 -- 10 Mrs. Coles, an occupational therapist, said that in any occupation the plaintiff should not be tied to a process, and had to have flexibility. It was desirable that he should be in control of what he did. He had a residual capacity for some work. Mr. Smith, a clinical psychologist, said that he was above the average level in intelligence. He should be able to do clerical type work, and return to work would improve his emotional condition. I accept that the plaintiff has suffered and will continue to suffer pain as a consequence of the accident in 1985. I do not however think that it is all attributable to the accident. It is clear from the medical evidence that he had a spinal fusion in 1972, and that there had been degeneration above the graft. There was no evidence that he had a disc prob"usion. I accept that he. suffered in the accident a musculo-L .. gamentous strain to his low back region but I consider that tais had a severe impact on an already damaged spine. On the balance of probabilities, having regard to the medical evidence and also to the ability of the plaintiff to carry out without pain heavy physical tasks before the accident and his inability to do so after the accident, I am satisfied that the accident c~used or materially contributed to the occurrence of the injuries of which he complains. I am satisfied from the report by Dr. Mu.!.holland that he suffers from a mild depressive neurosis, and )n that basis, I do not accept the revision by Dr. Anderson of his opinion in the light of the report by Dr. Rice. I am sa:isfied that the accident contributed a loss of 10 to 15 per cent of his -- 13 of 16 -- 11 total body function. It both accelerated a pre~existing condition and aggravated that condition. I consider that if the plaintiff had not suffered the accident in 1985, it is probable that he would have been able to continue in employment of a physical kind such as he had been performing prior to his injury until 1996. I consider also that it is probable that he would have done so. His pre-accident pattern of work shows that he moved frequently from one job to another. I accept his evidence that he wished to take up a position as an hotel lessee or manager, but I am not satisfied that he would have done this. I consider it probable that he would have continued to work at jobs of the kind he had done before the accident, including working at an hotel if this became available to him. The plaintiff has some residual capacity for light work, particularly of a clerical kind. I assess his damages as follows: (a) Special damages. These are agreed in the sum of $10,325. Interest on $6,200 of this amount for 6. 3 years at 6 per cent amounts to $2,343. (b) Pain, suffering and loss of enjoyment of the amenities of life $30, 000. I attribute 60 per cent of this to the pre-trial period, and award interest at 2 per cent for 6.3 years. That amounts to $1,348. (c) Past economic loss. The net amount the plaintiff would have received if he had been employed as a casual bar attendant from the date of the accident until date of trial would have been $106,470. If he had been employed as an -- 14 of 16 -- 12 electricity supply industry driver, he would have received a net amount of $101,580. I consider it probable, having regard to his pre-accident work history, that he would have continued in work, with some breaks, for substantially the whole of the period. Discounting for the usual contingencies, I assess his past economic loss in the sum of $85,000. I allow interest on $40,000 for 6.3 years at 6 per cent. That amounts to $15,120. (d) Future economic loss. I assess this on the basis that he has lost the chance of being employed in physical labour for 5 years. Assuming a net salary of $375 per week, this would amount to $87,000. I discount this to take account of the usual contingences, and his residual working capacity, and assess his loss at $65,000. (e) Fox v. Wood component. This amounts to $3, 41 0. 78. Interest for 4. 4 years at 12 per cent on this sum amounts to $1,800. (f) Griffith v. Kirkemeyer allowance. Some gratuitous assistance as provided by a neighbour for a period of two years. I am not satisfied that the plaintiff's wife performs gratuitous acts of assistance for 15 to 20 hours per week, as she claimed, but I am satisfied that she provides assistance of approximately 5 hours per week for which he should be compensated. I allow this amount for 69 months at $6 per hour and assess damages for the assistance prior to trial at $8,970. -- 15 of 16 -- 13 I allow interest on this at 6 percent. This amounts to $3,084. For the future, I allow a sum calculated at 5 hours per week and $8 per hour for a period of five years. That amounts to $6,400. (g) For future travel, treatment and medication, I disallow his claims so far as they involve travel to Brisbane for medical and chiropractor treatment which can be adequately provided at Gatton. I allow him $12 per week for these items for a period of 5 years. That amounts to $2,784. In this case I was informed by both counsel that as a consequence of s.10.1(2) of the Workers' Compensation Act 1990, it was not necessary to reduce the amount of damages by the amount paid or payable from the Workers' Compensation Fund. Accordingly, I give judgment for the plaintiff against the defendant Mutiarra Pty. Ltd. for $235, 584. 78 and I order the defendant to pay the plaintiff's costs including any reserved costs to be taxed. -- 16 of 16 --