Allen v State of Queensland & Ors [1991] QSC 299

071091 D.1 \A/0 1," TRANSCRIPT ' ' OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRJSl3_ANE. 0. 4000 Tel. (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.) ........•--···- .... ··· ··· ,.... · ----~--~-~--,, ~!;-·.:;:_;.:~:<~ :: :·~:>~1::: .. ·;·· SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 33 of 1990 STEVEN JAMES ALLEN and THE STATE OF QUEENSLAND and HARLEY ROBERTS CAREY and ARTHUR ERROL GANTER and JOHN RAYMOND MITCHELL and THE MINISTER FOR EDUCATION OF QUEENSLAND Plaintiff First Defendant Second Defendant Thi_rd Defendant Fourth Defendant Fifth Defendant ·.;-~.·-~ 1 -- 1 of 17 -- 10 20 30 40 50 071091 D.1 and THE GLADSTONE HOSPITALS BOARD and Sixth Defendant IAN DAVIES, JOHN POWER, MA FURTADO AND R J w BUICK Seventh Defendant ROCKHAMPTON .. DATE 7/10/91 JUDGMENT 3.30 P.M. HIS HONOUR: In this action I produce my reasons to writing, which I now publish. There will be judgment for the plaintiff against the First, Second and Fifth Defendants for $497,290 together with costs to be taxed. The action against the Third, Fourth, Sixth and Seventh Defendants is dismissed with no order as to costs. The various contribution proceedings between the defendants are dismissed with no order as to costs. 10 20 30 40 50 ______ [ 60 ~-214--Govt. Printer, Oid. 2 -- 2 of 17 -- IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON BETWEEN: AND: AND: AND: No. 33 of 1990. STEVEN JAMES ALLEN Plaintiff THE STATE OF QUEENSLAND First Defendant HARLEY ROBERTS CAREY Second Defendant ARTHUR ERROL GANTER Third Defendant JOHN RAYMOND MITCHELL Fourth Defendant THE MINISTER FOR EDUCATION OF QUEENSLAND Fifth Defendant THE GLADSTONE HOSPITALS BOARD Sixth,Defendant IAN DAVIES, JOHN POWER, M.A. FURTADO, AND R.J.W. BUICK Seventh Defendant JUDGMENT - DEMACK.J. DELIVERED. the 7th day of October 1991 . CATCHWORDS: Negligence - State of Queensland - Minister for Education (Old) - hospital. Damages - Personal Injury - fall in school yard - aged 10 years - compound fracture of left forearm - hospital treatment - developed gas gangrene - left arm and shoulder amputated - hyperbaric therapy - surgery on 5 occasions & prosthesis not successful - further surgery - 70% impairment of whole body - phantom pain - right wrist pain - back pain - emotional factors reflected in variation of school results and tertiary study undertaken - no significant employment - male aged 26 years. COUNSEL: SOLICITORS: HEARING DATES: Mr S JONES with MR D McMEEKIN Mr D TAIT REES R & SYDNEY JONES FLOWER & HART for Plaintiff for All Defendants for Plaintiff for All Defendants 9th and 10th October, 1991. -- 3 of 17 -- IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON BETWEEN: AND: AND: AND: AND: No. 33 of 1990. STEVEN JAMES ALLEN Plaintiff THE STATE OF QUEENSLAND First Defendant HARLEY ROBERTS CAREY Second Defendant ARTHUR ERROL GANTER Third Defendant JOHN RAYMOND MITCHELL Fourth Defendant THE MINISTER FOR EDUCATION OF QUEENSLAND Fifth Defendant THE GLADSTONE HOSPITALS BOARD Sixth Defendant IAN DAVIES, JOHN POWER, M.A. FURTADO, AND R.J.W. BUICK Seventh Defendant JUDGMENT - DEMACK J. DELIVERED this 7th day of October 1991 . -- 4 of 17 -- 2 Steven Allen was born on 19th August 1965. On 25th July 1975 he suffered a compound fracture of his left forearm when he fell from play equipment provided by school authorities at the Bororen State School. The ground under the equipment was very hard, and, sometime after the incident, sand was placed under the equipment to soften any impact if a child fell. I am satisfied that, on the evidence, the first and fifth defendants were guilty of negligence in respect of the plaintiff's injury. The plaintiff was taken to Gladstone by ambulance and was admitted to the Gladstone Hospital under the care of his doctor, Dr Carey. By 29th July 1975, gas gangrene had developed in his left arm, and he was transferred to the Rockhampton Base Hospital. I am satisfied, on the evidence, that this serious complication developed because of the negligence of the second defendant. On 30th July 1975, his left arm and shoulder were amputated, and he was flown to Sydney for further treatment in the Prince Henry Hospital, where he was admitted to the Hyperbaric Unit. In addition to hyperbaric therapy he underwent surgical procedures on five occasions, involving the removal of tissue and the application of skin grafts. Steven was naturally left handed, and, while in Sydney, he began rehabilitation to learn to use his right arm. He was discharged from the Prince Henry Hospital on 12th September 1975. He was transferred to Greenslopes Hospital for further rehabilitation because of home sickness in Sydney. He -- 5 of 17 -- 3 attended at Greenslopes Hospital over a period of six weeks, living at his grandparent's home at Mt Crosby. During this period, a protective cast was made and fitted, and measurements were taken for an artificial limb. The prosthesis was not successful, and Steven outgrew it. No further attempts to fit a prosthesis have been made. There are no suitable prostheses in Australia. In December 1975, further surgery was performed to trim the collar bone and to apply a further skin graft. Since then no surgery has been necessary. Dr Macfarlane, orthopaedic surgeon, describes his present condition as follows:- "The left arm has been amputated as a fore quarter amputation through the left shoulder and clavicle and some of the outer aspect of the left shoulder blade has also been excised. There was a well healed scar, somewhat inverted L- shaped, over the left shoulder region, the upper part measuring 10cm, the lower part 30cm. The remnant of the scapula is somewhat prominent and the lateral aspect of the left clavicle or collar bone is also prominent. There was quite a tender spot over one of the bony areas, part of the scapula or shoulder blade. He is able to shrug his left shoulder. Part of the left shoulder muscles, the deltoid, had been excised. sensory changes around the scar. particularly of There are some The left pectoralis major muscle is relatively flaccid and the muscles, both of the front and the back of the left shoulder are relatively undeveloped compared to those of the right arm and shoulder. On examination of the abnormality detected and power, tone, reflexes and noted in the right wrist. right arm, there is no he has got good grip, sensation. No click was He has effective hemi-hypertrophy of the right shoulder and scapular muscles. -- 6 of 17 -- 4 There is a full range of movement of his thoraco- lumbar spine and he is able to forward flex and touch his fingertips to the floor. He does however have a curvature of the spine evident. XRAYS Xrays were taken, reported as follows: 16 August 1991 THORACO-LUMBAR SPINE: Some thoraco-lumbar scoliosis is noted but there is no underlying structural abnormality shown. The disc spaces appear well preserved. No spondylolisthesis ~ The SIJs appear normal. RIGHT HAND & WRIST: No bony or joint abnormality shown. LEFT SHOULDER REGION: Left fore quarter amputationnoted. The ribs appear satisfactory. The left clavicle has been excised. No evidence of any acute abnormality. In commenting on the xray report myself, approximately the medial two-thirds of the left clavicle is still present and has not been excised, but it appears appreciably smaller than normal and has presumably not grown as there has not been normal stimulation present, but otherwise I agree with the report." Mr Allen suffers from intermittent, sharp phantom pains. They do not last long enough to require analgesics. Their frequency is irregular, but persistent. He also suffers from right wrist pains because he is trying to overcompensate for the loss of his left arm. More significantly he suffers back pain. Dr Macfarlane comments:- "There has been relative overgrowth of the muscles of the upper right side of his body and clinically and on xray he has a curvature of the thoraco-lumbarspine due to the muscular hypertrophy. There is no doubt that this problem will give him back pain which will persist in the future." This will require medication in his fifties. Steven returned to the Benaraby State School in November 1975. He completed his grade 5 year and commenced grade 6 in -- 7 of 17 -- 5 1976. He completed his primary education at the end of 1977, and then attended the Catholic High School in Gladstone for grades 8 and 9. In 1980, he commenced grade 10 at the Rockhampton Grammar School. He completed grade 12 in 1982. In 1983 he endeavoured to improve his year 12 results through a correspondence course. During 1984 and 1985, he completed a part time T.A.F.E. course in Real Estate salesmanship. In 1985, and again in 1986, he was employed for about three months by two real estate firms. In 1987, he commenced a three year course at the Capricornia Institute of Advanced Education to gain the degree of Bachelor of Business Studies. He deferred studies in 1989 when his mother was diagnosed as having breast cancer. He completed his degree at the end of 1990. Mr Allen's examination results fluctuate across a surprising range. Some ·of these may relate to aptitude, because his tertiary results in accounting were not as good as those in computer subjects. However, the variations in his results at Rockhampton Grammar School seem to be directly related to emotional factors. In this respect I accept the evidence of Mr Cotterell, who is a very experienced teacher. Dr Alroe's opinion seemed to be that the results were influenced by the question whether Mr Allen was at home or not. Cross-examination demonstrated that this was not a sustainable thesis. It seemed to me that helpful evidence about Mr rehabilitation counsellor the witness was who gave Mr Nigel the most Allen with training in Clarke, a psychology. -- 8 of 17 -- 6 However even his analysis does not fit all the facts. One of the most puzzling things is the excellent first year Stephen had at Rockhampton Grammar School. He won a physical education prize, a general proficiency prize and was a member of the school cadet corps. His exam results in first semester were above the class average in every subject except typewriting. In second semester, he was below class average in both physical education and typewriting. By his last semester in 1982, he was below class average in every subject and way below average in half his subjects. It seems to me that the following passage from Mr Clarke's evidence, at p. 114, offers the best explanation for this:- "Well, following the injury and the radical surgery which he experienced it seemed to me, having spoken to his mother, and I think from the record of what's gone on since, that his mother emotionally became quite charged with a drive to help, to compensate and to do what she could, and it became the dominant thing in her life. I think that - I think she's an emotional person and a passionate person in fighting for her son's cause, and I think this really created an unusual environment in the home. Steven's brother began to behave unusually. Steven himself I think was probably moved along by his mother's inertia, and the father coped by continuing to do his work and to maintain emotional stability by almost controlling - I think Steven has actually developed, almost, some of those behaviours of control, self-control, yet underneath I believe he is quite a very emotional person so it was an unusual childhood environment in the home for certain." The result of his years of education is that at 26 he has had no significant employment. difficulty, at p. 115~- Mr Clarke describes this "In terms of his experience in employment he's never had the corners rubbed off him. He doesn't pick up on the subtleties of communication skills, I don't -- 9 of 17 -- 7 think, and I think at the interview he would be at risk of blowing it early on - of failing early on because he has no - he doesn' t seem to have much knowledge of the sensitivity of what is going on in an exchange. So I think that an employer would pick up that, here we have got an unusual chap, quite able in lots of ways but is he compliant, and a lot of employers and personnel manager are looking for non-risk when they are recruiting, they are looking for people who provide no risk in terms of stability, and I don't think he presents as that person." Mr Allen has been actively seeking work for years, both during his course of studies and since completing them, but his physical disability and these idiosyncratic traits are serious obstacles to this gaining employment. he has had no employment since 1986. I am satisfied that these traits have developed as a consequence of the defendants' negligence. Quoting Mr Clarke again, at p. 121 and p. 122:- "Some of the research suggests that the emotion set or psychological set to employment starts at about seven and goes through to adolescence. He has missed out on all that. I do think there may well be an area where his whole attitude and set towards work may have been altered." "In this case, it's very difficult because it is almost as if he has a congenital disability because it happened early on. Therefore, he almost doesn't know what it's like to be without the injury - without the loss - which makes him really quite unusual. Yet, he's had a lot of emotional consequences of the injury because of the disfigurement and the effect on the family and his mother's responses." It may be argued that, from these opinions, Mrs Allen has contributed to her son's present condition, and that is is not a foreseeable consequence of the actions of the tortfeasors. I do not think that is so. Mrs Allen was present at Bororen when her son was injured. It was foreseeable that she would be very angry that the climbing equipment was so badly -- 10 of 17 -- 8 maintained that her young son sustained a bad fracture of his arm. She visited him in hospital as often as she was allowed, and became increasingly alarmed at the pain he appeared to be suffering, at the colour of his skin outside the plaster and at the smell. It seems to me that, in those circumstances, it was foreseeable that her anger at the careless treatment he was receiving would cause her to take this overprotective attitude to Steven. I am satisfied that all of Steven's present disabilities and attitudes or idiosyncrasies are a foreseeable consequence of his injuries which the defendants tortiously caused. What then does the future hold for Steven Allen? Here, Mr Clarke said there would be a lot of luck involved (p. 122). He thought Steven could do further study, update his computer skills and become "more marketable" (p. 123). A "specialised placement agency" might help ( p. 124) . Miss Lesley Stephenson, occupational networks through perhaps therapist, suggests "developing some part-time voluntary work in corporations he identified he might like to work for", p. 128. In ten or fifteen years "down the line when he does mature and gain more experience with what's happening out in the business world" (p. 131) he might be able to run a business growing organic produce. So two respected experts are forced to make fairly wild guesses to meet a quite exceptional case. Dr Macfarlane said he had not performed a through the shoulder amputation. He had consulted Dr Champion, the very experienced orthopaedic surgeon who performed this amputation. Dr Champion, who is -- 11 of 17 -- 9 now retired, told him this was the only such amputation he had performed. Dr Macfarlane had made inquiries at the Royal Brisbane Hospital and had been referred to an article published by Mr Peter London who was for 30 years a consultant at the Birmingham Accident Hospital. Mr London did not record performing such an amputation. I have not spelt out the extent of Mr Allen's physical disabilities because they are obvious enough on reflection. He does not even have a stump that can be used as a kind of paper weight whilst reading. Everything has to be done with his non-dominant hand. Dr Macfarlane said that on the American Medical Association tables this amputation constituted a 70 per cent impairment of the whole patient. At the time when he was injured Steven was too young to have given any indications of a career path. His father is a marine engineer working on tug boats at Gladstone, operated by Howard Smith Industries. He has been so employed since 1964. While Steven was at the Rockhampton Grammar School, he expressed interest in a naval career. cadet and is interested in military therefore indications that he might He was a successful history. There are have pursued a naval career. However, that is no more than a possibility. He has followed an interest in computers and has a degree in business studies within the information systems stream. At this point it seems to me far more likely that that is the area in which he is going to need to develop an economic capacity. There are still vacancies for people with his qualifications. -- 12 of 17 -- 10 For the purpose of the trial, an accountant, Mr Maynes, did a series of exercises designed to calculate past and future economic loss, in certain circumstances (ex. 16). Of the scenarios he used, the one that in my opinion is most useful is the Computer Analyst/Programmer, because this is the path Mr Allen has chosen. On the basis of this calculation (sch. 4.1) a figure of $66,003 is calculated for past potential earnings. There are many assumptions in this figure (para. 8) which seem to me to be reasonable. However, the exercise is no more than a set of assumptions and it seems to me to be unreasonable to appear to cloak it with precision. I shall allow $60,000 for past economic loss. For the future, it seems to me to be reasonable to begin with the figure for potential earnings as a Computer Analyst/Programmer working to age 65. That figure is $415,002 (para. 14.1). However, the calculation is based on a 5% discount rate (para. 14.9). If earlier retirement is taken, the figures are, at 55, $367,045 and at 60, $393,933 (para. 14.8). These figures are based on employment in the Queensland Government service, and, in addition to lost wages, Mr Maynes has calculated loss of superannuation benefits (para. 20). The respective figures for 55, 60 and 65 years retirement are $84,299, $105,357 and $130,701 (note, this figure is from ex. 16A). It seems to me that these figures give an indication of Mr Allen's potential future earnings. He may have earned considerably more, particularly if he followed a naval career. He may have earned less, if he became a clerk, sales assistant -- 13 of 17 -- 1 1 or boilermaker, but these figures allow a balanced view of his non-injured capacity. The best figure, a retirement at 65, with loss of superannuation benefits is $545,703. As I have said a 5% discount rate was used so I shall regard the appropriate figure as $500,000. What part of that potential has been lost by the tort created disabilities Mr Allen has? It seems to me that this is a case where a percentage assessment is appropriate. His physical loss of 70% of the whole body is an indication of the severity of his loss, but he has chosen a career path that involves greater use of his intellec.t than of his physical resources, and that figure would be too high. I do not think that anything less than 40% is fair compensation, because of the matters I have referred to. I should add that it seems to be reasonable to look at 65 retirement because the chosen career would seem to have fewer risks to his health than many occupations have. Also, he has acquired skills which may be used profitably even in formal retirement. I therefore assess future economic loss at $200,000. There is claim for services gratuitously rendered by Mrs Allen. This was agreed in the amount of $8000 (p. 85). In the course of Miss Stephenson's evidence reference was made to artificial arms that are being developed in the United States of America. This was very vague evidence, as no one has made an assessment of the plaintiff and of the available prostheses to determine if anything suitable can be fitted. It seems to me that there must be some chance that something will be developed during Mr Allen's lifetime, and I shall -- 14 of 17 -- 12 allow $20,000 to cover this possibility. spoke of a cost of between $15,000 and Miss Stephenson $30,000 for each prosthesis, with an estimated 3 year life. Clearly enough the removal of the shoulder structure and its associated muscle loss would require a very complicated piece of machinery, if an effective artificial arm is fitted. Miss Stephenson says there is a seventy per cent rejection rate with prostheses. A claim is made for the provision of an automatic car instead of a manual one. The cost is of the order of $1400. It seems today that automatic cars are becoming increasingly common. I have assumed a substantial economic capacity within the range where a person may well purchase an automatic car. Consequently, I am not satisfied that anything need be specifically allowed for this. Pain, suffering and loss of amenities great. Mr Allen is very conscious of his have been very loss. He has difficulties with relationships with women, and it does not seem likely that he will form an enduring relationship with one woman. Having only one arm obviously impedes intimacy, as does the rather gross scar and physical deformity. The disability intrudes in every aspect of ordinary daily living. It intrudes into work with computers, so that the exercise of his economic capacity will involve frustration and humiliation. These matters are set out at length in exhibit 2 and I shall not repeat them. Under this head I shall allow $100,000, $50,000 of which shall bear interest. On the question of interest, Mr Jones Q.C. submitted that the decision of the High Court in MBP (S.A.) Pty Ltd v. Gogic -- 15 of 17 -- 13 (1991) 98 A.L.R. 197 does no more than endorse for South Australia a common South Australian practice of allowing interest on the past component for pain and suffering at 4 per cent per annum. He submitted the common Queensland rate was 6 per cent per annum, and that this should be followed. I considered this question in Cameron v. Shanahan (84/1988) in a judgment delivered on 2nd May 1991. I said:- "It seems to me that the argument that is used by the High Court in MBP (SA) Pty. Ltd. v. Gogic does mean that we need to reconsider the award of interest on items for pain, suffering and loss of amenity. These are items which do not involve out- of-pocket expenses and they are generally assessed in the value of money today. Consequently, the allowance of interest at 4 per cent is justified on the basis of the High Court decision." I do not see any reason to reconsider this. Mr Tait did not suggest that the period over which interest is allowed in respect of pain and suffering should be reduced. The period is 16 years and two months, I shall allow $32,300 by way of interest. In respect of past economic loss, considerations apply in the allowing of interest. different Either a commercial rate could be applied to individual components of the total loss, or the usual rate of 6% over the whole period. The relevant table (sch. 4.1) shows a loss of income beginning on 1st January 1983, and continuing annually since then. It seems to me to be fair to take the usual approach. allow interest in the amount of $58,200. I shall Special damages were agreed in the sum of $12,000, of which $7,000 attracts interest. I am unaware when these out- of-pocket expenses were incurred, so I shall allow interest at -- 16 of 17 -- 14 6% over the 16 year period, an amount of $6,790. In summary the award is:- Pain and suffering including interest Past economic loss including interest Future economic loss Services gratuitously rendered Prostheses Special damages including interest $132,300 $118,200 $200,000 $ 8,000 $ 20,000 $18,790 $497,290 There will be judgment for the plaintiff against the first, second and fifth defendants for $497,290 together with costs to be taxed. The action against the third, fourth, sixth and seventh defendants is dismissed with no order as to costs. The various contribution proceedings between the defendants are dismissed with no order.as to costs. -- 17 of 17 --