Clendinning v Council of the City of Thuringowa [1990] QSC 259

10 20 30 40 50 60 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION No. 501 of 1986 BEFORE MR' JUSTICE KNEIPP r.RE~/ISEDc'OPiES·~s'suE0·1 I C-')Urt ~1ep:::rting Bureau TOWNSVILLE, 20 JULY 1990 ..3..~:.:.~~:,_"WJ (Copyright in this transcript is vested in 10 the Crown. Copies thereof must not be made or sold without the written authority of the Chief court Reporter,Court Reporting Bureau.) BETWEEN: ROBERT ROY CLENDINNING -and- COUNCIL OF THE CITY OF THURINGOWA JlJDGMENT Plaintiff Defendant HIS HONOUR: The plaintiff was born on 7 September 1963 and he was injured on 7 June 1984. He left school at the age of 16. His intellectual capacities are very limited. By the time of his accident he had been employed by the defendant for some years as a plant operator, that employment was permanent and I think that the plaintiff would have remained in it indefinitely. The accident which the plaintiff sustained was comparative and minor consisting of his being struck on the head accidentally by a crowbar. However, he soon developed a variety of familiar symptoms. He went back to work after two weeks but as his symptoms developed he found himself unable to carry on his work and he gave it up on 30 April 1985. He has not worked since except for two or three days when he made an unsuccessful effort to do what was required of him in another job which he found. -Govt. Printer. Qtd. 1 20 30 40 50 60 -- 1 of 5 -- 10 20 30 40 50 He now complains of constant headaches, of constant pain in the n~ck and right arm, of pain between the shoulders, of pain in the right leg, of pain in the lumbar spine, and of weakness in his right hand, to mention his most significant complaints. I have a large body of medical evidence in the form of reports. For some time it was thought that the plaintiff's problems were organic in origin and there was a great deal of effort to ascertain a cause for them. Howevar, the weight of opinion now is that the problems are almost wholly functional. I accept those opinions. I am satisfied that the plaintiff's complaints are genuine and that his pain is real to him. I have concluded that I should assess damages by reference to the opinions cf Dr. Richards and, indeed, both counsel addressed me on that basis. In a report dated 28 May 1990 Dr. Rithards expressed the following conclusions: "Prognosis Claimant's unconscious dependency needs are adequately filled by his present semi-invalid status and the resultant care and solicitude of his mother, wife, and treating health professionals. Claimant's suggestible nature uses unconscious mechanisms to respond to and further confirm the belief of these key professionals in tpe organicity of his problems. The termination of these proceedings is unlikely to change claimant's essential needs or the expectation of those closest to him. For the same reasons successful treatment of claimant's tranquillizer addiction following conclusion of these proceedings - is unlikely. Claimant's limited intelligence and educationalachievements, militate against successful retraining in physically suitable vocations. Conscious and unconscious motivation for financial survival and/or gain will certainly be satisfied by successful conclusion of these proceedings but are unlikely to change claimant's invalid status whose roots lie in personality traits and intelligence limitations already noted. 10 30 40 50 __..:::.6-=--0--+-----------------------------------_J 60 -Govt. Printer, Old. 2 -- 2 of 5 -- 10 20 30 40 50 60 I see Clendinning's residual pain and disability as accident related, but due for the most part to psychogenic rather than organic mechanisms. It seems clear that the vocational expectations expressed in my June '87 report - were over optimistic at that time, and are certainly not realistic now. Claimant'schronic semi-invalid status would appear to result from years of unemployment, reams of conflicting opinions, his own personality needs, the expectations of those close to him, and his drug addiction. I cannot see, inretrospect, that even the most vigorous efforts at re-employment, either in 1987 or more recently, could have essentially changed his present vocational incapacity, ~hich sadly appears to be total." In a further report dated 16 July 1990 he says this: "I confirm the conclusions reached in the summary to my report of 28.05.90, and agree that patient's vulnerable personality, general life situation and solicitous relatives, would have predisposed him to psychiatric breakdown following any compensatable work injury of a relatively minor sort. Psychiatric breakdown following such other work injury of this sort would, I think, be more likely than not. Plaintiff's tranquillizer addiction at its present level is unlikely to significantly reduce his life expectancy." In a final report dated 18 July 1990 Dr. Richards gave these opinions: "You have asked me to discuss the prospects for successful therapy early in the development of claimant's present psychoneurotic illness or early in the development of such similar illness as might result from some other hypothetical traumatic event. Significant change in Clendinnings limited intelligence and vulnerable personality are not to be expected. For this reason prophylactic therapy aimed at reducing the likelihood of psychoneurotic breakdown following physical or emotional stress - is unlikely to be successful. However the suggestible nature of such a dependant and vulnerable person is just as accessible to positive and optimistic expectations as to the pessimistic assumption that his condition is due to refractory organic disease. Thus vigorous therapeutic efforts during the first one or two post traumatic years may have been helpful in a suitable away-from-home rehabilitation unit e.g. (Workers' Compensation Unit in Brisbane). The recommencement ofWorkers' Compensation payments in 1987 placed the official stamp of acceptance on Clendinnings residual symptoms, and the numerous medical examinations and -Govt. Printer, Old. 3 10 20 30 40 50 60 -- 3 of 5 -- 10 20 30 40 50 60 expense associated with the institution of these proceedings in the same year, further reinforced the subconscious motivation for chronic psychoneurotic ill health. By 1987 then the prospects of any significant improvement from therapy were negligible. The same considerations would apply to hypothetical future breakdown of similar nature and origin - and vigorous and optimistic therapy given at an early stage would have some chance of returning Clendinning to useful employment. For "any compelisatable work injury of a relatively minor sort'' read 'work injuries of similar violence and degree to those suffered in the crowbar mishap, of 07.06.84." I assess damages then on the basis that the plaintiff's condition is permanent and that he is permanently unemployed. He is in constant pain and has lost a great deal of the amenities of life. He appears to do little except potter around his hom2. To come to assessments under the various acts of damage, I deal first with economic loss to the present. That loss calculated by reference to award rates would be $68,000 net. However, I have the earnings during the relevant period of the man employed by the defendant as a driver of a front end loader and those have amounted to $82,000. I have no reason to think that the plaintiff would not have earned the same and therefore I allow $82,000. So far as the future is concerned, the current award amounts to around $293 net per week. The man to whose earnings I have referred during 1989/1990 averaged $353 net per week. I take $320 for 30 years, the result being $260,000. Special damages consist of amounts paid by the Workers' Compensation Board of $12,251. I assess the costs of medication to date at $2,160 and of future medication at -Govt. Printer, Old. 4 10 20 30 40 50 60 -- 4 of 5 -- 10 ~- 20 30 40 50 60 $2,500. $6,500. I assess the costs of future medical treatment at I assess general damages in the sum of $55,000. The total of those amounts I calculate to be $420,411 . So far as interest is concerned, I allow interest on the loss of wages in the sum of $11,640, and after making allowances for receipts of Workers• Compensation on $15,000, being part of the $55,000, I allow $5,400 and on the $2,160 I allow $650. The total of the interest then is $17,690 and the total of the damages is $438,101. It will have been observed from Dr. Richards' opinions that the plaintiff was under very substantial risks of developing functional problems in any event. The doctor said that any trauma which was comparable with the relatively insignificant trauma which he sustained in his accident could have brought on those symptoms. In relation to this it was pointed out that it was not until some two years after the accident that it was thought that the plaintiff's problems might be functional, and Dr. Richards says that there is a possibility if that had been adverted to earlier, appropriate therapy might have been successful. I take that into account but I do not think that it is a significant factor. I discount the amount of $438,101 to $325,000 having regard to the plaintiff's susceptibility to functional problems. The charge of the Workers' Compensation Board is $42,504.55. The balance is $282,495.45. I give judgment for the plaintiff against the defendant in the sum of $282,495.45, costs to be taxed. -Govt. Printer. Old. 5 10 20 30 40 50 60 -- 5 of 5 --