Collins v King & Sons Pty Ltd [1991] QSC 280

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, Tne Law Courts, George Street, BRISBANE, 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.) REVISED COPIES ,ISSUED 1. Court Rep:irting Bureau ! SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION SKOIEN AJ No 391 of 1988 ANTHONY WILLIAM COLLINS and KING & SONS PTY LTD BRISBANE .. DATE 19/9/91 JUDGMENT = Dat:',.8..-o.tl 19'91 I Plaintiff Defendant 9.30 A.M. 1 -- 1 of 15 -- 10 ~, 20 30 40 50 60 190991 JUDGMENT HIS HONOUR: For the reasons I now publish, I give judgment for the plaintiff for $216,039.72. I order the defendant to pay the plaintiff's costs of the action including any reserved costs to be taxed. Govt. Printer, Old. 2 10 20 30 40 50 60 -- 2 of 15 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: ANTHONY WILLIAM COLLINS KING AND SONS PTY. LTD. No. 391 of 1988 Plaintiff Defendant REASONS FOR JUDGMENT - SKOIEN A.J. Delivered the day of September, 1991 This is an action for damages for personal injury · sustained by the plaintiff in the course of his employment with the defendant. Liability is admitted and only the quantum of damages remains to be assessed. The plaintiff's injury was sustained on 14 May, 1987. He was then aged 27 and is now aged 31. While lifting a heavy and bulky object at work he experienced the sudden onset of sharp pain in his back, severe enough to cause him to fall to the ground. He was driven to the Royal Brisbane Hospital, continuing to experience a sharp stabbing pain in the back. At the hospital his back was x-rayed and apparently a diagnosis was made of soft tissue injury. He was sent home in a cab and advised to have physiotherapy. persisted. The back pain· The next day he began a course of physiotherapy which he attended about four times. Each of these sessions made the pain in his back a great deal worse, the increased pain lasting each time for seven or eight hours. The pain· was -- 3 of 15 -- 2 severe enough to prevent him sometimes from obtaining any sleep at all. It was constant pain and finally the physiotherapist advised him to go back to see his doctor. His doctor had more x-rays taken and then sent him to an orthopaedic specialist, Dr. Parker, who diagnosed a prolapsed disc in the lower lumbar spine as well as a spinal stenosis. These conditions were apparently diagnosed after a cat scan and myelogram were performed. In September, 1987 Dr. Parker injected the affected disc with chymopapain. The plaintiff described this injection as very painful, the severe pain lasting for some four hours. That night he had an onset of vomiting which also caused severe pain in his back. The pain persisted in the lower back and a few months later he began also to experience pins and needles in his right buttock and thigh when he sat for ten minutes or more. This got progressively worse till it was happening also while he stood or walked. He returned to see Dr. Parker who admitted him to hospital for a laminectomy in November, 1987. This required him to be an in-patient for about eight · days during which he experienced a great deal of pain especially during the first few days. He then spent a couple of weeks at home in bed. The back pain and numbness returned, worse than it had been before the laminectomy. He went back to Dr. Parker in April, 1988 who finally, in November, 1988, admitted him to hospital again for a double spinal fusion between L4/5 and the lumbosacral joint. He was an in-patient in hospital for some ten days during which the pain was so severe that he -- 4 of 15 -- 3 had morphine injections every few hours. After being driven home the pain was so bad that he went to his general practitioner . who gave him another injection. He had been discharged in a chest to hip fibreglass cast which he wore for about four months. It was summer and he suffered skin irritation from the cast. The spinal fusion was successful in removing the symptom of pins and needles and slightly alleviated the back pain. Since then his condition has been pretty well static. He has a constant low grade pain in the form of a dull ache but has periods of acute pain in the back. These can occur once a week or so. Every few weeks he suffers an even more severe attack of pain which can immobilise him for a couple of days. These attacks are triggered by exertion or activities which put his back under strain, such as walking, particularly up hill. He sometimes uses a walking stick. While he is capable of running for short distances, up to 100 metres, doing so will probably precipitate an acute attack of pain. He can sit for no longer than 15 minutes or so or stand for no longer than half an hour without aggravating the pain. To prevent the onset of pain he has to alternate standing and sitting regularly. His sleep is badly disturbed and he frequently takes -sedation at night. He gets some help from wearing a lumbar support. He cannot bend nor lift objects other than light ones. He has difficulty sleeping. He spends his days reading, watching television and walking for a kilometre or so on level ground which he regards as valuable exercise. He gets some pleasure out of writing poetry. Initially after the -- 5 of 15 -- 4 accident he put on a great deal of weight but has now slimmed almost to his normal weight. He takes pain killers constantly and sleeping pills on a fairly regular basis. He lives on a sickness benefit from the Department of Social Security. The plaintiff did not complete grade 10 and left school in 1974 at the age of 15. He then worked for a while as a farm hand, thereafter as a builder's labourer in Darwin. He then "followed the surf" around Australia working whenever needed as a fruit packer, a surf board shaper, a builder's labourer and as a deck hand on trawlers, an occupation which he continued for some four years. He pursued this lifestyle over a total of about nine years up until 1983. He earned enough to live on and never applied for Social Security unemployment benefits. Then he met a young woman, Pamela Marshall, with whom he formed a romantic attachment and they formed a defacto relationship. They decided to settle down, get married and have a family so they returned to Brisbane where he got a job as an electrical trades assistant for about four years, then with the defendant as a radiator manufacturer where he remained for three or four months. They then returned to West Australia for a few months for one last .season of surfing. They then came back to Brisbane and he took up his former occupation with the defendant. He remained in that occupation for about nine months leading up to the date of the accident. His intention was to stay with the defendant for up to a further ten years, working as much overtime as possible in order to build up some capital. They had plans then of buying a small area on the North Coast where -- 6 of 15 -- 5 they might grow pecan or macadamia seedlings, supplementing this by obtaining paid employment. Immediately after the accident and until recuperated from the second operation, he was dependent upon Miss Marshall for physical assistance. initially he had heavily She ran the household, acted as his driver and nursed him in the sense of helping him in and out of bed, the shower, and to and from the toilet. However he became increasingly irritable and violent. He attributes this to the constant pain. His violence took the form of throwing and breaking things and al though he never actually struck Miss Marshall, he relates the break-up of their relationship (which happened in January, 1989) to his behaviour towards her. In that he is supported by Dr. Mayze, a psychiatrist, who was called to give evidence. Dr. Mayze saw the plaintiff five times in early 1989, and assessed him as suffering from anxiety, depression and emotional lability secondary to chronic pain. He treated the plaintiff with psychotherapy and anti-depressant and anti- anxiety drugs and he appeared to be improving when he moved to the Casino area of New South Wales· in April, 1989. That move was made partly to escape the expense and stress of city life ?tnd also in an attempt to re-establish his relationship with Miss Marshall, an attempt which proved unsuccessful. Since his move to northern New South Wales, the plaintiff has lived a rather reclusive life. For some years he lived alone in a house on a farm ( which he did not work) . He preferred this sort of lifestyle because he found that contact with people made him irritable. When Dr. Mayze saw him again -- 7 of 15 -- 6 in early September, 1991 just before the trial, he was complaining of the loss of ability to work, to maintain relationships and enjoy life including sexual relationships. He was concerned about his future. He has taken to rather heavy drinking. Dr. Mayze thought that there were still symptoms of anxiety and depression with reduced functioning in most areas of his life as a result of the chronic pain from the back. He was guarded about any prognosis for change in the plaintiff. The plaintiff has not worked nor tried to work since the date of his injury. He said that he considered it pointless because he knew he was incapable physically of doing the sort of work for which he was qualified, that is physical work of a semi-skilled nature. He had not undergone any rehabilitation having never sought it. He once had friends build him a small bench at chest level on which he worked at propagating Queensland nut seedlings. He regarded this as a trial and not a commercial venture but seems to have been able to manage it. He recognises that there is a demand nowadays for edible nuts but·feels he could not by himself run any commercial venture in that field. Given his physical incapacities, I accept the accuracy of that opinion. The plaintiff can live by himself, having adapted his lifestyle to his restricted abilities. He can drive a car for short distances without having to rest. Should he be called upon to do something energetic (for example change the wheel of a car) he appears to be able to manage but suffers episodes of consequent pain. -- 8 of 15 -- 7 Two orthopaedic specialists gave evidence, Dr. Curtis and Dr. Blue. Both agree that the plaintiff had a condition which pre-existed his injury of spinal stenosis, that is a narrowing of the spinal canal. This is a disease which is progressive and ultimately crippling. The condition was asymptomatic as at the date of his injury at work. According to Dr. Curtis the probabilities are that about ten years thereafter the plaintiff would have started to suffer some symptoms and within a further five years or so his condition would have deteriorated to about the stage produced by the accident, that is, his current condition. Dr. Blue said that the plaintiff might well have reached the age of 50 before experiencing serious symptoms. While superficially there is a difference of opinion between the two doctors, it seems that more or less the same result in terms of damages would flow no matter whom I preferred. Both counsel addressed me on the basis that I might prefer Dr. Curtis's evidence, perhaps because Dr. Curtis saw the plaintiff on two occasions (Dr. Blue only once) and also because he had the benefit of being able to view x-rays which were not made available to Dr. Blue. A video film of the plaintiff shown walking around the streets of the City of Brisbane was briefly shown another one which was tendered. I was also not tendered . It is certainly true that they, particularly the one which was tendered, showed the plaintiff walking much more freely than he did in court, even breaking into a trot to catch the lights at a pedestrian crossing. On the other hand it seemed to me that he was carrying himself unnaturally erect in the films -- 9 of 15 -- 8 and it was possible to detect a slight limp from time to time. The running which I observed was merely a few paces on a slight downhill but even surface and in evidence the plaintiff said that he was able to run and certainly able to jog brief distances. Dr. Blue was not able to exclude the possibility that the plaintiff was filmed on one of his good days. There is no doubt that the plaintiff has a disabled back. There is no doubt that he has seriously had and continues to have a great deal of pain. He has undergone three unpleasant and painful surgical procedures in an attempt to eliminate the pain which argues strongly against any suggestion that he might be malingering. Counsel for the defendant did not submit that he was, but rather that he was inclined to overstate his case. It is possible that, consciously or unconsciously, he conducted himself before me with a view to maximising his damages but any such conduct was in my opinion very slight. The plaintiff was, as I have said, a keen surfer. Apart from that he was an active cyclist and took an interest in antique motor bikes, two of which he owned. He was sociable and had a happy relationship with Miss Marshall which probably would have developed into a rewarding marriage and life together with children. Because of this injury he has suffered four years, occurring during the prime of his life, of pain and physical incapacity. This will continue for a total of 15 years before the effects of the accident will be overtaken by his natural degenerative spinal condition. Superimposed on all of this is a marked psychological -- 10 of 15 -- 9 disturbance brought on by his physical disability. His prospects of marriage, a family and the leading of a normal predominantly happy life must now be quite clouded. On the other hand I thought him a personable young man with an attractive personality and it cannot be said that he has lost all chance of achieving future happiness. He has, for example, a remarkable ability to express himself clearly and imaginatively. I think it quite possible that, although unlikely to be productive of income, his writing will be a source of considerable pleasure and satisfaction to him. I also think that the end of litigation will probably lift his spirits somewhat. For damages for pain and suffering and loss of amenities I assess $40,000 and attribute $18,000 of that sum as the component to the date of trial. Interest in that at 6 per cent per annum from 14 May, 1987 to now is $4,680. The plaintiff's counsel produced a schedule (ex. 9) (based upon the plaintiff's work records with the defendant, and the evidence of Mr. Bess, a union representative) to calculate a sum for lost wages up to the date of trial. It amounts to approximately $77,000. No criticism was made by the defendant's counsel of the calculations in ex. 9 but it was submitted that there should be a substantial discount. The first reason advanced was that the plaintiff's work history prior to joining the defendant was, to say the least, patchy. He might well have had periods away from work either by choice or by necessity. Second, and more seriously -- 11 of 15 -- 10 advanced was the submission that I should find that he should have obtained some work during this period. The plaintiff called Mr. Smith, a clinical psychologist who had examined the plaintiff. His opinion was that the plaintiff was commercially unemployable. On the other hand Dr. Blue and Mrs Coles, an occupational therapist who also examined the plaintiff with his employability in mind, were of the opinion that he had a residual earning capacity. It seems to me that, while the plaintiff undoubtedly has the ability to do some useful remunerative work, his practical difficulty is in obtaining that work and then holding it. On the view of the evidence which I take he can do work in which he is able to sit, stand and move around to suit himself, not to have to lift heavy objects, not to have to bend or stoop more than occasionally, which does not require agility, nor particular intellectual application nor clerical training. No doubt there are such jobs and mention was made of working in a video library, in selected types of stores or in carrying out some of the duties of a nurseryman. In practice however, I must bear in mind the notorious fact that at virtually all times since the plaintiff was injured, unemployment has been high. So far as one can foresee, it will continue to be high. There must be very many candidates for the sorts of jobs I have mentioned and I doubt that there are many of these jobs available. Furthermore, the fact that the plaintiff's physical condition quite frequently would keep him from work for days on end would make it difficult for him to hold a job if he were lucky enough to obtain one. -- 12 of 15 -- 1 1 It is the fact that he has not sought rehabilitation. However the thrust of Mrs Coles' s evidence was that rehabilitation would have, as its end, getting a job of the type I have just discussed. It was not suggested that it would be likely to fit him for any other type of work. So I 9-0 not think that his failure to undergo rehabilitation is very relevant. However I must take into account the fact that there are jobs, even if only sporadically obtained or part-time which he is capable of doing and has been capable of doing since about the beginning of 1990, that is a little over 12 months after the spinal fusion, a period suggested by Dr. Blue. Of course it is also possible that he could have obtained some sort of income by working from home at such things as the propagation of seedlings. For that reason some small discount ought to be made to his damages for lost income to date. I allow; under that head, $70,000. Interest is recoverable on that sum (less $32,517.10, which is the total of the weekly compensation benefits which were paid to the plaintiff until 25 January, 1990, that is, rounded off, $37,500) at 6 per cent from January, 1990, that is for 20 months. Interest therefore is $3,750. In calculating future economic loss, it is convenient to start with the most recent net weekly pay which he would be receiving were he still employed by the defendant. Taking .into account average overtime work, the employer's superannuation contribution, holiday loading, a net weekly after-tax figure, rounded off, is $400. Given the state of -- 13 of 15 -- 12 the evidence about his congenital spinal condition I think it reasonable to take a further period of 1 0 years during which he might have been expected to earn income before the natural degeneration overtook the effects of the accident on his spine. As I said in relation to past economic loss, there must be some discounting to take into account the possibility of his choosing to leave his employment or being forced to. There is also the possibility that during the future 10 year period which I am considering, as his spinal stenosis gradually worsened, he could have suffered a disabling injury to his back. There is also the fact that he might have chosen to embark on a business venture such as nut growing which may or may not have been successful. Lastly, he does have a small residual earning capacity. All told it seems to me that I ought to make a substantial discount and I propose to settle on a net weekly figure of $300 on which to project future lost income. Capitalised at 5 per cent the assessed amount for future lost earnings is, rounded off, $124,000. The amount of deducted income tax on the workers' compensation payments (the so-called Fox v. Wood component) is $5,050. The plaintiff has incurred some out-of-pocket expenses and they are set out in para. 3 of ex. 8. The only challenge to those is to some claimed travelling expenses and counsel for the plaintiff accepted the validity of the criticism. I assess those travelling expenses to visit doctors in the sum of $200. The total out-of-pocket expenses is therefore, rounded off, $18,415. Interest at 6 per cent on those -- 14 of 15 -- 13 components which properly bear interest is, rounding it off, $120. Future expenses for drugs and travelling expenses are set out in para. 6 of ex. 8. I regard it as probable that the plaintiff will continue to take the named, or similar, drugs at about the rate and cost claimed. However I reduce the amount claimed for travelling expenses in accordance with the concession of the plaintiff's counsel referred to assess future doctor's fees, cost of drugs and supra. I travelling expenses at $25 per week, which, capitalised at 5 per cent for 10 years is $10,325. The plaintiff's assessed loss is:- (a) damages $257,465 (b) interest $18,875 $276,340 In accordance with ex. 6, I assess the sum to be refunded to the Workers' Compensation Board of Queensland at $60,300.28. The plaintiff is thus entitled to recover $216,039.72. -- 15 of 15 --