Bowler v Waldeck [1991] QSC 340

TRANSCRIPT OF PROCEEDINGS • ~rt, ,a. . C.>:./~ State Reporting Bureau, 4th Floor, The Law Courts , George Street, BRISBANE, 0. 4000 'feL (07) 227.4360 (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 ROBIN AJ No 1151 of 1988 ANTHONY ROBERT BOWLER and L STEPHEN ANDREW WABDECK BRISBANE DATE 15/11/91 JUDGMENT 1 ! r:-;:;~~;-~·-·.::::;-,.;:•··;.~~:.~_~·:;ir t" , t ., C.. L, #'- I • • , - ... I -- .• ,....~ .. i' ...... .... _,.. t • 1.,., . ..,u~ .. . -.-: ,.... , •.• : ,.., ..:r:H.. l i D2,·•: (2-112-d 9/ I... .. ... . ... -.-..,..-.-..... ----'--~-------- .Plaintiff Defendant -- 1 of 17 -- 10 20 30 40 so 60 HIS HONOUR: I publish my reasons for concluding that the plaintiff's damages ought to be assessed in the sum of $245,707.85. I presume it follows from that that the plaintiff ought to have judgment in the action against the defendant for $245,707.85 with costs of the action ·td be taxed. As I customarily do, I will refrain from sending -anything irrevocable back to the Registry before, say, Monday morning, in case there is any arithmetical error or something of that kind. ~ ~---- Govt. Printer, Old. 2 10 20 30 40 50 60 -- 2 of 17 -- IN THE SUPREME COURT OF QUEENSLAND No. 1151 of 1988 Before Mr. Acting Justice Robin BETWEEN: ANTHONY ROBERT BOWLER STEPHEN ANDREW WALDECK JUDGMENT - ROBIN A.J. Plaintiff Defendant Delivered the I J7,L day of /Ve> Y'~, 1991. CATCHWORDS: Personal injuries - quantum of damages - schoolboy rendered physically unfit for chosen police career now an enrolled nurse - assessment of past and future economic loss - whether failure to pass registered nurse examination a failure to mitigate - whether failure an indication of organic brain deficit resulting from accident. Counsel: Solicitors: Mr. Griffin Q.C. and A.C. Smith for Plaintiff. Mr. Grant-Taylor for Defendant. Corney & Neumann for Plaintiff. O'Shea Corser & Wadley for Defendant. Hearing date: 30th September, 8th and 11th November, 1991 -- 3 of 17 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: ANTHONY ROBERT BOWLER STEPHEN ANDREW WALDECK JUDGMENT - ROBIN A.J. No. 1151 of 1988 Plaintiff Defendant Delivered the day of ,l\.hv.t~ , 1991. The plaintiff is a young man whose date of birth was 27th August, 1967. He was seriously injured on 24th July, 1982 when a back seat passenger in a motor vehicle being driven by the defendant. At the trial, the defendant admitted liability to the plaintiff, so that my task is simply assessment of damages. The plaintiff's injuries, which were life threatening, are particularised in the statement of claim as follows: "(a) fracture to left humerus; (b) fracture to left radius;(c) injury to brachia! plexus;(d) diastasis of pubic symphysis; (e) fracture of lower half of acetabulum; (f) diastasis of left sacro-iliac joint; (g) fracture of transverse process of L2; (h) multiple facial injuries; (i) rupture of left diaphragm; (j) a pericardia! tear; (k) three tears in the splenic capsule;(1) tears to the liver; (m) an injury to the oesophagus." Such injuries were sufficiently proved, and indeed the defendant offered little contest as to their occurrence. Treatment of -- 4 of 17 -- 2 those injuries had its dramatic aspects. The plaintiff was taken to theatre, following resuscitation, and at laparotomy, when the internal injuries listed above were identified, three litres of free blood was found in the peritoneum. Intercostal catheters were inserted to each side of the chest. Five or six days after the accident, the plaintiff suffered a burst abdomen which required resuturing on 30th July under general anaesthetic. The plaintiff's initial period in hospital lasted seven weeks. So far as the plaintiff's left arm is concerned, open reduction of the elbow was performed with Kirschner wires being used for fixation, and the ·fractured radius was reduced and plated. The plate is still there, and it is common ground between the parties that the plaintiff's damages ought to include $1,800.00 for the cost of removing it, and associated lost income. It is common ground that the plaintiff presently has a 20 per cent loss of function of his left arm, which will be permanent. This is, in fact, a remarkably favourable outcome. In the face of persisting disability in the arm, there having been no recovery of function in the radial nerve supplying the extensor muscles of the wrist, fingers and thumb, and because of other problems, on 3rd May, 1983 Dr. Millroy performed a tendon transfer operation described in his report of 23rd November, 1983. The hand was immobilised in splints for about a month post-operatively. The plaintiff has required skin grafting, and scarring of his left arm is a substantial cosmetic disability. Although assessments of the degree of loss of function became more optimistic for a couple of years, there has been no improvement in the prognosis for the last six years. The -- 5 of 17 -- 3 plaintiff was active in sports at school (he was in Grade 10 at Mt. Gravatt High School at the time of the accident); he played basketball and soccer with some success, and was also successful at high jumping and with the javelin. He has not been able to play sports involving the risk of body contact or jarring of his arm since the accident. Essentially, the disability and weakness is in his left forearm. He is naturally right handed. The plaintiff }).ad from a very tender age determined to enter the police force. After the accident concern was felt that the condition of his left arm would preclude that. So it proved to be, notwithstanding Dr. Millroy's opinion of 22nd October, 1985, (which I suspect was written in part to help the plaintiff with the difficulties he was having with the police medical officer) that the patient "should be able to function satisfactorily as a policeman". The police medical officer was unmoved by Dr. Millroy' s opinion. The plaintiff was ruled "permanently unfit" for entry to the Queensland Police Force on account of his left elbow and "liability of future gut obstructions". As to this last matter, there was admitted by consent a report of Dr. Leggett as to problems the plaintiff might have in the future as a consequence of his internal injuries, such as episodes of small bowel obstruction, which may require surgery. The plaintiff has had some problems along these lines, but temporary in nature to date, fortunately. On 4th November, 1983 Dr. Lahz said it was possible that some back ache could develop from the sacro-iliac diastasis which the plaintiff suffered. The plaintiff gave evidence of missing some time from work as a nurse with back discomfort, but it is -- 6 of 17 -- 4 not at all clear that this represented a fulfilment of the possibility mentioned by Dr. Lahz. On the morning of the first day of the trial, leave was given for the plaintiff to add to the particulars of his injuries: "(n) head injury causing impairment of memory and concentration, personality change and risk ofepilepsy." A hospital report of 4th July, 1988 (-subsequent to the original statement of claim and the amended statement of claim) includes among the.plaintiff's injuries a "minor head injury". The original hospital report, dated 21st December, 1982, records that the plaintiff arrived at the hospital conscious, but with no memory of the accident; he was "irritable and disorientated". The report further states: "He was peripherally shut-down and hypotensive with a tachycardia." Whether the plaintiff suffered some organic brain damage and consequential intellectual impairment as a result of the accident came to be seen as important when, surprisingly, in light of his rather high IQ, which has been measured in successive tests since 1988 at 113, 115 and 118, he failed the external examinations required for registration as a nurse in August 1989 and when he sat again in March 1990. The "sudden death" conditions now applying to nursing apparently mean that the plaintiff is forever precluded from becoming a registered nurse, unless, perhaps, he embarks afresh on the appropriate educational programme. He passed the examinations conducted at his hospital in the first and second years of his course, but was regarded as below par in the third year. A nurse educator, Ms. Letizia offered assistance -- 7 of 17 -- 5 to attempt to ensure he passed the State examination. She quickly became dissatisfied with his performance and got him to agree with her assessment of him as "lazy". (Mr. Grant-Taylor, who appeared for the defendant, elicited from Mr. Robe, the plaintiff's English teacher for the six month period preceding the accident, that the plaintiff, then a 14 year old, lacked motivation to study hard and could be described by the same term. This was said while acknowledging the plaintiff's high level of abilities in English and reading.) Ms. Letizia disagreed with assessments of others involved in the plaintiff's training which were favourable to the plaintiff, such as the assessment for his last ward: "Potential to become an excellent registered nurse; conscientious and eager." She never learnt of the plaintiff's accident or his injuries and when asked to comment upon neurological opinion that the plaintiff was peripherally shut-down and hypotensi ve with tachycardia . . . that caused a cognitive deficit said: "It would probably explain to me that he always appeared to be spaced out when I saw him." With hindsight, it is possible to see how things could have been managed better for Mr. Bowler. As to his commitment to nursing, there is no real doubt. So far as his clinical work is concerned, he was assessed 19 times. On nine of them, he was rated 85 per cent or above, four times over 90 per cent. Only twice (his first and third assessments) did he achieve less than 69 per cent. It was on the academic side that weaknesses were revealed. Assessments in 1989 refer to his knowledge deficit, and his not being an organised worker and utilising time poorly; one states: "Knowledge and professional development not to third -- 8 of 17 -- 6 year standard. Extra study to improve knowledge skills would be of benefit". Ms. Letizia's situation report of 24th April, 1989 refers to "major knowledge deficits and poor exam technique - (to the plaintiff) struggling with study". She felt "his knowledge deficit originates from study technique". A piece of work he produced for her on 26th April did not impress her. It showed "no evidence of any health teaching, nursing actions and rationales or outcome criteria". He performed badly in a "short answers" test she administered on 28th April. I am sure Ms. Letizia and the other nurse educators at the hospital would have handled the plaintiff (who seems to have resisted the idea of obtaining extra tuition from them, although he was apparently undergoing private coaching he had arranged for himself elsewhere) more sensitively had they known of any such neurological assessment, or of the comments made by Dorothy Hallam, a clinical psychologist, who examined the plaintiff in 1988 and reported on the plaintiff's suitability, from a psychological point of view, to engage in his chosen vocation as a policeman, and in his alternative vocation as a nurse (which he had by then been pursuing for two years). She noted: "Mr Bowler displayed 'patchy' recall from long term memory. For example, basic items such as 'name the capital of Italy', 'the number of weeks in a year', 'the boiling point of water', were answered incorrectly. This is not expected from a respondent with a Senior Certificate and suggests either a memory deficit or a retrieval of information problem. WECHSLER MEMORY SCALE A memory quotient of 95 points was achieved. This is slightly lower than his WAIS Full Scale Results and the score was reduced by Mr Bowlers' confusion in a learning task (paired words). Here he showed a learning curve on -- 9 of 17 -- 7 'easy' pairs but failed to assimilate adequatelearning' on the difficult pairs. This may implications for his course of study. REY AUDITORY VERBAL LEARNING TEST This test looks at learning patterns on recall andrecognition of words. On the first four trials a slowcurve was shown, a distractor list is then given and finally recall of the original list is requested to see what material is retained. Mr. Bowler's score was below expected limits. Howeveron a recognition trial of the material he improved the score. This suggests Mr Bowler may have problems with spontaneous retrieval of information from memory storage." The conclusions included the following: "CONCLUSIONS He does have some memory impairment, which could impede acquisition and retrieval of knowledge, but this would probably not be a cause for difficulty in everyday life unless he decided to pursue a particularly demanding study course. His concentration is good as is his abstract thinking and conceptualisation. With regard to referral question ( f), there are no indications that Mr Bowler is experiencing difficulty in his nursing training course, either academic or physical, and his social life is adequate." 'new have Unfortunately, in the year following such difficulty was experienced. It has been a matter of surprise to all who have had dealings with the plaintiff that he failed the registration examinations. Among them was Dr. Landy, consultant neurologist, who concluded on 10th September, 1990 from the history given by the plaintiff and the hospital notes that the plaintiff "suffered a significant head injury and a period of post-traumatic amnesia of possibly 24 hours." He noted the plaintiff's complaints of some impairment of memory. Such impairment is attested to by the plaintiff himself, his former teacher, Mr. James and his father. In a supplementary report dated 8th October, 1991, Dr. Landy (who -- 10 of 17 -- 8 had not been able to establish impairment on cognitive testing) put forward an alternative explanation of "a diffuse organic deficit" (identified by Dorothy Hallam as affecting the plaintiff's ability to store new information and depressing his conceptual motor skills) other than significant head injury. This was Hypoxia, resulting from the "peripheral shut-down, Hypotension with tachycardia" already noted. Dr. Landy's supplementary report (ex. 31) explained the relevant mechanism by reference to established texts in neurology. He concluded it was more probable than not that the plaintiff's intellectual performance, particularly with reference to his failing the nursing exams, was contributed to by the accident. During an adjournment of the trial, the defendant had Mr. Bowler examined by Dr. John Cameron, consultant neurologist, and his report (ex. 40) was tendered without the doctor's being required for cross-examination. Dr. Cameron concluded: "He has related to poor concentration and some mild disturbance of memory since the incident. Overall these seem to have improved. He has noticed some slight change in personality also. It is possible these symptoms may reflect some mild underlying brain injury although other factors could be significant such as the emotional problems associated with his injuries. I was unable to demonstrate any significant disturbance on specific testing today to suggest any memory disturbance. I believe if he did suffer some underlying brain injury which has produced longstanding effects, this injury would have been very mild and the disability associated with it was quite mild also." It can be seen that Dr. Cameron speaks of a mild head injury, whereas Dr. Landy mentioned a "significant" one, as an alternative to the Hypoxia scenario. Dr. Cameron also thought -- 11 of 17 -- 9 that since the plaintiff had gone nine years since his injury without epileptic disturbance, there was not the increased risk of later onset epilepsy of between 3 per cent and 4 per cent mentioned by Dr. Landy. The epilepsy rate in the community at large, I was told, was 1.5 per cent. I doubt there is any single explanation for the plaintiff's failure in the State nursing examinations. Dorothy Hallam, who linked the failures with the plaintiff's injuries in the accident, accepted that if the plaintiff was or admitted he was lazy that would assist her to arrive at a diagnosis, because there would perhaps be implications that he did not want to learn. She said personality factors affect the results. She agreed that a motivated student could probably learn enough to pass the examinations, even given the results of her tests which, when she repeated them in 1991, showed a troubling degree of "scatter" in Wechsler Adult Intelligence Scale - Revised tests. She also saw great significance in the discrepancy between the plaintiff's verbal IQ of 122 and his performance IQ of 102 (as measured in 1991) which she said could not have occurred by chance. (A similar discrepancy measured in 1988 was not so gross as to be necessarily significant.) The plaintiff has succeeded in passing examinations at a simpler level in order to become an enrolled nurse, and he is, indeed, working in such a capacity now, while taking some further training which would equip him to become an ambulance bearer (the change would be to his disadvantage economically, on the evidence before me) . Assuming that the plaintiff after the accident retained the intellectual capacity to pass the registration exams, his failure may be -- 12 of 17 -- 10 attributable to other causes. There are hints in the evidence that the teaching at his hospital was deficient and that many of its candidates were unsuccessful. I have already suggested that the plaintiff might have been prepared differently had the implications of Dorothy Hallam's 1988 report been recognised in time. Even if the plaintiff was justly criticised by Ms. Letizia as lazy, such a failing may be understandable in a young man of 21 or 22 without dependants just as laziness on the part of a sport-loving boy of 14 is understandable enough, for all the disappointment it caused the English teacher to feel. I have dwelt on the matter of the nursing exams at some length, because it bears on two issues. The first is whether the plaintiff has proved that his general damages (economic loss aside) should be assessed on the basis of his having an intellectual impairment or personality change awareness of which distresses him. The second is whether the defendant has proved that the plaintiff failed to mitigate his past and future economic loss by getting himself into the favourable earning position of a registered nurse. As to the issue in respect of which the plaintiff bears the onus, Mr. Grant-Taylor fairly conceded that the preponderance of the evidence favoured the view that the plaintiff had sustained some mild degree of organic brain deficit. The plaintiff has become forgetful and been placed at a disadvantage in academic matters where acquisition and retention of knowledge, particularly where its retrieval in examination conditions is required, is concerned. It seems to me that this disadvantage was not revealed in the continuous assessment which the plaintiff -- 13 of 17 -- 1 1 was subject to in his high school years; it was revealed under the conditions of a rigorous external examination conducted on a State basis. It is tragic for the plaintiff that, for practical purposes, he is precluded from becoming a registered nurse, since the evidence suggests that with appropriate motivation (which I think he has) and assistance, he might well succeed in passing the examination. The plaintiff has suffered the double disappointments of being refused entry to his preferred occupation in the police force and being excluded from the better remunerated stream in his second choice occupation, of nursing. In both cases, the accident for which the defendant admits responsibility was causative, in the first case, decisively and exclusively. On the other hand, the plaintiff has adjusted well to" these disappointments. There is no reason demonstrated on the evidence why he should feel that he is shut out from the opportunities generally on offer from life as a result of organic brain deficit. He has natural ability substantially above the average, as measured, for example:,in the "Tola" test which he took in 1979, when he was placed at level 12 (out of 15), placing him in the top 12.2 per cent of the population. The defendant is very far indeed from persuading me that the plaintiff failed to mitigate his damages when he failed his State nursing examinations twice. I agree with Mr. Grant-Taylor that one can postulate a case in which a plaintiff in an action such as this might be guilty of a failure to mitigate going to reduce his damages if he deliberately failed his examination with a view to placing himself at trial in a lower income earning stream than -- 14 of 17 -- 12 he would otherwise have achieved, so as to maximise the damages the defendant might have to pay. This was not suggested against the plaintiff, but Mr. Grant-Taylor still insisted upon the point, claiming that Mr. Bowler fell on the wrong side of the line. Accepting for the purposes of argument that a plea of failure to mitigate can be raised, although not pleaded, I am quite unable to find that the defendant has satisfied the onus which would lie upon him to show that the plaintiff's failure in the examinations was attributable to any unreasonable conduct or attitude on the plaintiff's part, whether characterised as lack of motivation, or laziness, or otherwise. Special damages have been agreed at $7,796.85, and it is agreed between the parties that interest ought not to be awarded on that sum. So far as the plaintiff's past economid loss is concerned, I have the benefit of workings by Mr. Watson, which (as to the figures) Mr. Grant-Taylor accepted. Between the time of the accident and trial, the plaintiff's net income was $67,762.00. Following the conventional career path of a person entering the police force upon leaving school, the plaintiff would, it seems, have had net income of $117,802.00. Mr. Griffin Q.C., appearing for Mr. Bowler, contended there should be no discounting, because Mr. Watson had not taken into \ account the substantial earnings available to police through performance of "special duties", of which Mr. May gave evidence. Mr. Grant-Taylor, relying on Malec v. J.C. Hutton Pty. Ltd. (1990) 64 A.L.J.R. 316, 318 submitted that in respect of the past and of the future, there ought to be discounting, since the plaintiff's entry into the police force was not a certainty. He -- 15 of 17 -- 13 expressly disavowed reliance upon Dorothy Hallam' s view expressed in her report of 2nd June, 1988 that Mr. Bowler's personality would exclude the risk taking which plays a large part in police work, he being regarded as having adopted an "automatic reflex of self-protection". Mr. Grant-Taylor said he regarded the report as attributing any such feature of the plaintiff's personality to the accident and its consequences; (Mr. Weston, the defendant's clinical psychologist, thought there were no significant long-term personality changes). He contended, however, that the plaintiff's actions in 1985 during his Grade 12 year at school indicated no determination to enter the police force, but rather one of preserving his options. This was related to communications between Mr. Bowler and Prince Alexandra Hospital with a view to his entering nursing training there. In my view, Mr. Bowler was doing no more than take the sensible precaution of having some useful employment to go to if, as seemed likely after the accident at all times, the police rejected him on medical grounds. That rejection occurred on 19th November, 1985. His training at the hospital did not commence until well into 1986. I am satisfied that, but for the accident, the plaintiff would have entered the police force, and, subject to the ordinary contingencies of life, enjoyed a career path of the kind described in the evidence presented by Mr. Brummell and the police union. I accordingly allow the plaintiff $50,000.00 for past economic loss. I would allow interest at $8,000.00. As for future economic loss, Mr. Griffin urged me to take Mr. Watson's figures calculated on the basis of retirement at age 55 for a policeman ($494,000.00) as against $336,000.00 for an -- 16 of 17 -- 14 enrolled nurse. He said there ought to be no discounting, for the reason I mentioned before, because a retirement age of 55 was taken, rather than 60 or 65, (which the plaintiff would more likely work to) and because the plaintiff may prefer to become an ambulance officer in the future, rather than remain an enrolled nurse. What police may earn from "special duties" (again not included in Mr. Watson's figures) is indeed substantial, as Mr. May's evidence showed. Mr. Griffin reminded me that the plaintiff's future even as an enrolled nurse is at some risk. I have declined to link the plaintiff's back problem with his accident, but one never knows what the future will hold so far as the plaintiff's left arm is concerned. I do not think that I ought to take into account that the plaintiff might switch to a career in the ambulance service, to his financial detriment. I assess the plaintiff's future economic loss at $125,000.00. I will also allow $1,800.00 in respect of removal of the plate in his arm. So far as general damages otherwise are concerned, I assess the plaintiff's damages at $50,000.00, the point at which figures suggested by the parties happened to coincide. Mr. Grant-Taylor offered no objection to the proposition that one-third of general damages be allocated to the past so as to attract interest in accordance with the new regime introduced by Gogic's case (1991) 65 A.L.J.R. 203. See the Full Court decisions in Camm v. Salter (2033/87) and Jackson v. Bagwell (4484/87) both handed down on 4th October, 1991. I allow interest of $3,111.00. The plaintiff is entitled to damages against the defendant in the total sum of $245,707.85, with costs of the action to be taxed. -- 17 of 17 --