Casey v Quabba & Allianz Australia Insurance Limited [2004] QSC 17

SUPREME COURT OF QUEENSLAND CITATION: Casey v Quabba & Allianz Australia Insurance Limited [2004] QSC 017 PARTIES: DANIEL CHARLES CASEY (Plaintiff) v ARLINE RHONDA QUABBA (First defendant) ALLIANZ AUSTRALIA INSURANCE LIMITED (ACN 000 122 850) (Second defendant) FILE NO/S: 36 of 2002 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court, Cairns DELIVERED ON: 18 February 2004 DELIVERED AT: Cairns HEARING DATE: 10,11 February 2004 JUDGE: Jones J ORDER: Judgment for the plaintiff in the sum of $265,232.80. CATCHWORDS: DAMAGES – ASSESSMENT OF GENERAL AND SPECIAL DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNING AND EARNING CAPACITY – EXPENSES FLOWING FROM INABILITY TO WORK – where plaintiff injured when passenger in a vehicle involved in an accident – where plaintiff suffered ‘whiplash’ injury resulting in a low back injury and neck pain COUNSEL: Mr P Lafferty for the plaintiff Mr R J Lynch for the defendants SOLICITORS: Roati and Firth Lawyers for the plaintiff McInnes Wilson for the defendants [1] The plaintiff was injured on 26 June 2000 when the vehicle in which he was a passenger collided with another vehicle at Ingham in the State of Queensland. He seeks damages against the driver and insurer of the other vehicle, the defendants in the proceedings. The defendants have admitted liability for the damages and it remains for the Court to assess their quantum. -- 1 of 11 -- 2 [2] The plaintiff was born on 30 July 1976 and is now 27 ½ years of age. At the time of the incident he was almost 24 years old. The driver of the vehicle in which he was travelling was his then girlfriend whom he since married on 5 July 2003. Mrs Casey was also injured in the collision and claimed damages. Her claim was compromised before this trial. [3] Immediately following the collision the plaintiff was aware of soreness in his neck and lower back and he suffered some bruising and swelling to his right knee. In the next few days he developed headaches. He did not seek medical attention until a week after the incident when on 4 July 2000 he consulted Dr Tuxworth at the Ingham Clinic. [4] Dr Tuxworth noted the plaintiff had a moderately elevated blood pressure and occipital tenderness. He prescribed anti-inflammatory medication, suggested an exercise regime and expressed the opinion that the symptoms should settle “without long term sequelae”1. That letter from Dr Tuxworth dated 19 July 2000 I note was addressed to the plaintiff’s solicitor. Presumably that early opinion was passed on to the plaintiff by his solicitors. [5] The plaintiff’s symptoms did not settle. He continued to suffer from intermittent pain in his neck and lower back which was exacerbated by activity. He suffered constant headaches which he described as “low grade” but which “every second day would increase to severe headaches with a ‘throbbing’ quality”.2 [6] At this time the plaintiff was working for G & N Solari Pty Ltd, an engineering contractor. The plaintiff was working as a spray painter and sand blaster which is a physically demanding job. He left this employment some four weeks after the incident to go to another job in Darwin. This change in employment had been arranged prior to the incident. However, in the last weeks of working with Solari the plaintiff experienced very bad headaches particularly when wearing a blast helmet. He was advised by that employer to seek further medical help. [7] Despite this advice the plaintiff did not seek any further medical treatment. His next attendance on a medical practitioner was on 22 May 2001, some 10 months later. This was consequent upon a referral by his solicitors to Dr Iain Macfarlane for the purpose of a medico-legal report. [8] The job in Darwin which the plaintiff commenced was with the company Blastcorp Pty Ltd where the plaintiff again experienced headaches and pain in his neck and back whilst carrying out sandblasting tasks. The plaintiff was further injured whilst in this employment. His body was blasted in the region of his left trunk from the left nipple to his back. He was in hospital for one day for the wound to be cleaned and he returned to work five to six days later. He did not have any adverse consequences from this injury and he did not suffer any loss of income nor did he disclose the fact of this income in his Statement of Loss and Damage or to medical practitioners who examined him later. [9] The plaintiff left his employment with Blastcorp after three months, for a number of reasons. He was having difficulty with pain, he was concerned about the safety 1 See ex 4 2 Ex 2 para 6 -- 2 of 11 -- 3 standards at that workplace and there were personal issues between the plaintiff and his immediate superior relating to the plaintiff’s wife. [10] The plaintiff and his wife returned to Townsville and sought other employment. Significantly the employment that he sought was in an area for which he had no training or experience. The position was for himself and his wife as managers of a store at a remote Aboriginal community near Alice Springs. Before actually accepting this employment the plaintiff made a further attempt to resume his employment at Blastcorp but after two days he realised he could not continue in the job, and he then accepted the position at the Pukatja Aboriginal community at Ernabella via Alice Springs. Before taking up this position he worked for three weeks at a community store at Amata Anangu in South Australia. The plaintiff finished work at Ernabella in January 2001. His main duties included checkout work, cleaning, stacking shelves and handling money. He encountered difficulties when the weekly grocery truck would arrive and various cartons of food were delivered on a pellet. The plaintiff’s task then was to move the cartons and packaged food into storage and then as required to unpack them. This type of activity caused him pain and limitation which lasted for a few days. [11] Throughout the calendar year 2001 the plaintiff attempted to return to sandblasting with a number of different employers but remained with each only for short periods. The longest term was with Monadelphaus Engineering for 3 ½ months between 22 January 2001 – 15 May 2001. It was during this period, that the plaintiff was referred to Dr Macfarlane by his solicitors. Dr Macfarlane noted the plaintiff’s problems at work, particularly when he was wearing a heavy blasting helmet. This piece of equipment weighs approximately 18 kilograms and is fitted with air hoses for ventilation. The wearer has limited visibility through the visor and this requires frequent movement of the head because of restricted vision as well as the frequent need for the head to be in a bent position. The plaintiff was advised to seek lighter work by Dr Macfarlane but he was not fitted by training or experience for any lighter occupation, and he continued to work until May 2001. Between May – October 2001 the plaintiff had periods of unemployment, punctuated by short periods of work as a spray painter.3 He was cross-examined about his inability to hold employment. [12] One such job was with Powder Works Sandblasting at Tamworth in New South Wales when he accepted the job he thought his task was in a managerial position but in fact, as matters turned out, he was into the sandblasting activities. That job ended quickly and in some dispute with his employer. [13] Between October 2001 – February 2002 the plaintiff worked as a hotel manager in two different hotels on Thursday Island. In the first of these, the owner was on the premises and he looked after all the bookwork. In the second hotel, the bookwork and the responsibility for the poker machines were left to the plaintiff. Because of his limited education and lack of experience he was unable to handle these duties. The work however does appear to have been within his physical capacity. [14] The plaintiff was referred by his solicitors to Dr Roger Watson on 13 March 2002. Dr Watson instigated a treatment regime which included manipulation, physio- 3 See Schedule “A” to ex 2 and Tax Returns ex 3 -- 3 of 11 -- 4 therapy and ultimately a referral to the Townsville Spinal Pain Unit. Dr Watson expressed his opinion in his first report dated 9 April 2002 as follows:- “… It is impossible to determine which of these radiological changes if any are due to the effects of the accident in question as it is impossible to differentiate natural degenerative change from post traumatic pathology and the evolution of osteophytic reaction is very variable. On the grounds of probability however I believe that the cervical disc change unaccompanied by an degenerative change is probably a consequence of the accident in question as is the L5/S1 pathology. The radiological pathology demonstrated is consistent with his ongoing pain but whatever part of it was pre-existing is consistent with his past basically asymptomatic status. There is nothing to suggest that he was predisposed to the spontaneous development of any of his current problems although if he had continued sandblasting he would have had minor posture stress related neck discomfort as described.”4 [15] The plaintiff was seen by Dr Boyce, neurologist, on 20 May 2002. Dr Boyce diagnosed the plaintiff as suffering with a sprain on both his cervical and lumbar regions.5 He made an assessment of the plaintiff’s impairment as a whole person in accordance with the Guides to the Evaluation of Permanent Impairment” prescribed by the American Medical Association. (5th Ed) He assessed 5% impairment of the whole person as a result of the neck injury and 2.5% attributable to his lumbar problems. The assessment of the lumbar region was made after apportioning an allowance for pre-existing Scheuermann’s disease.6 [16] The specialists who provided medico-legal reports for the defendants examined the plaintiff on either 16 or 17 September 2002. Dr Toft, orthopaedic surgeon, diagnosed the plaintiff as having suffering strain of the muscular ligamentous supporting structures of the cervical spine and of the muscular ligamentous supporting structures of the lumbar spine in the presence of pre-existing asymptomatic degenerative disease.7 However, in his clinical investigation he found no limitation of the range of movement of the cervical spine and some variability of movement in the lumbar spine. By his application of the AMA Guides he classified the plaintiff as having zero percent impairment of the whole person. Dr Toft did, however, acknowledge that the “type of work [the plaintiff] has been doing would be expected to cause pain and disability and therefore he would not be suited to continuing this type of work on an indefinite basis”.8 [17] The plaintiff was also examined by Dr Peter Landy, consultant neurologist, who took the view that the plaintiff “would of [sic] suffered a soft tissue injury to his neck at the time of the accident and [he] would have expected this to of [sic] resolved in a week to three months”9. Dr Landy based this opinion on his own experience and by reference to some nominated medical studies. The validity of 4 Ex 1 p 13 5 Ex 1 p 22 6 Transcript 60/10 7 Ex 5 at p 4 8 Ibid at p 6 9 Ex 6 at p 5 -- 4 of 11 -- 5 those medical studies was emphatically challenged by other medical practitioners. In particular, the studies were criticised by Dr Giles, clinical anatomist, and Dr Maguire, orthopaedic surgeon. [18] Dr Giles had the occasion to examine the plaintiff on his admission to the Townsville Spinal Pain Clinic on 16 October 2002 and furnished a report dated 21 October 2002. Included in that report are details of the ranges of movement for the plaintiff’s cervical and lumbar spines as well as the general nature in which soft tissue injury is productive of pain. Dr Giles also referred to a variety of studies which confirmed his opinion that such pain may become chronic. [19] In the end result Dr Giles’ opinion is expressed in his answers to specific questions detailed as follows:- “1. Mr Casey’s condition. In my opinion, Mr Casey has suffered musculoligamentous soft tissue injuries to his lower lumbar spine causing an apparently asymptomatic low back region to become symptomatic. In addition, it is my opinion that he has suffered a “whiplash” type musculoligamentous soft tissue injury affecting the cervical spine, particularly at the C5-6 level. These symptomatic regions appear to be the direct result of the MVA in question. 2. Whether Mr Casey is likely to suffer any residual disability. In my opinion, Mr Casey will suffer some residual disability as a result of his neck injures, particularly at the C5-6 disc level where there is isolated disc thinning ie. Not likely to be a normal change at his age when the discs above are normal and Dr Boles (22-6-01) makes no reference to any associated bony changes. With respect to his lower back pain, in my opinion, this would be an aggravation of pre-existing L4-5 and L5-S1 disc changes. In my opinion, any continuing pain at this level may be helped by Mr Casey losing weight. 3. The level of any residual impairment. In my opinion, the level of any residual impairment, ie. Loss of normal physiological and anatomical structure and function will prevent Mr Casey from performing his work as a sand blaster/spray painter. As mentioned before, it is my opinion that he should have a CT scan performed (of the mid to lower cervical and lower lumbo-sacral spines) to further investigate the condition of his intervertebral discs, particularly at the C5-6 level and at the L5-S1 level. This would be necessary in order to provide a reasonable suggestion for residual impairment. 4. Whether any residual impairment is likely to have an influence on his quality of life and ability to engage in gainful employment in the future. In my opinion, his residual impairment will affect Mr Casey’s quality of life and ability to engage in gainful employment in the future. I believe Mr Casey will have to be re- trained in order to perform only light duties and he will have to -- 5 of 11 -- 6 lose a considerable amount of weight in order to protect his lower back.”10 [20] Dr Maguire supports the opinion expressed by Dr Giles as to the reliability of medical studies relating chronic pain to whiplash type injuries. He diagnosed the plaintiff as suffering a soft tissue injury of the cervical spine with “asymmetrical range of motion causing ongoing pain and impairment”11 and injury to the lumbar spine with the “aggravation of underlying degenerative change”12. He also diagnosed that the plaintiff suffered an injury to his right knee. [21] On 29 October 2002 the plaintiff was assessed as qualifying for a full disability pension. [22] As a result of my consideration of these medical opinions I accept that the plaintiff’s present disability relates to his suffering chronic pain in his neck and in his lower back. The pain increases on activity and if the activity is prolonged or of a heavy nature it will limit his ability to function. That limitation would not appear to be gauged by reference to the AMA Guides which provides for assessments and classifications based on mechanical limitations such as rotation, extension and flexion. The testing of such movements at times produce significant variations. This often raises allegations of exaggeration of complaint or feigning its symptoms when such variation might simply be a feature of the condition or, as here, a difference of medical opinion as to the nature of the injury. [23] The plaintiff’s credibility was questioned on a number of grounds. Firstly, it was alleged that he allowed Dr Maguire to believe that a knee condition was attributable to this incident by not mentioning a subsequent motor cycle incident.13 There is no substance in this suggestion because Dr Maguire was aware of this motorcycle related injury and he distinguished between those two incidents.14 Secondly, it was suggested that he failed to disclose in his Notice of Claim the injury to his chest suffered whilst employed by Blastcorp. That event ought to be have been disclosed, however I accept the plaintiff’s explanation that as no claim was made in respect of the incident at the request of his employer and he had suffered no economic loss. More significantly he had no relevant impact on his working capacity nor relevance to this claim. Thirdly, the plaintiff was challenged about false statements denying the subject injury which he made to Centre Link when attempting to find work during his unemployment15. Similar suggestions were made about this failure to refer to the injury as a reason for having to give up certain employment. Again, whilst these suggestions were correct the plaintiff explained that this was done so as not to jeopardise his prospects for re-employment. In fact one employer, Mr Peter Chamberlain, assisted in this deception.16 The plaintiff was challenged about the variation between his evidence and what was noted in medical records by examining doctors. One such matter was the absence of any complaint to Dr Tuxworth about pain in the lower back. The clinical notes of Dr Tuxworth which 10 Ex 1 p 31-32 11 Ex 1 p 60 12 Ex 1 p 60 13 Transcript p 18/1-10 14 Transcript p 127/10 15 Transcript 18/35 16 Transcript p 69/20-40 -- 6 of 11 -- 7 formed part of ex 4 do not inspire confidence that they are a complete record of what was said. [24] In general terms I accept the plaintiff as a reliable witness. He has had limited education leaving school at the age of 16 and entering the workforce soon after. His persistent, though unwise, attempts to return to the work of sandblasting after the incident is understandable as wanting to engage in work which he understood and appeared to like. In his attempts to pursue that work, given its likely impact on his disability, he has shown himself to be somewhat stoical. That appears also to be the view of Dr Watson17 and Dr Maguire18. Dr Giles found the plaintiff to be “entirely straightforward and he didn’t attempt to exaggerate his symptoms or signs in any way”19. [25] I find that as a result of the motor vehicle incident the plaintiff suffered a “whiplash” type injury as described by Dr Giles. He suffered low back injury which has aggravated pre-existing asymptomatic developmental abnormality and a knee injury which was commented jupon by Dr Maguire but which adds little to the overall disability. The injury to his neck has given rise to chronic pain with associated headaches. The plaintiff suffers also with low back pain at the L4-5 L5- S1 levels. The level of pain varies from time to time with changes in activities. The pain can be moderated by the use of analgesics but it is likely to remain chronic.20 The injuries and the associated pain will prevent the plaintiff from engaging in heavy work, particularly sandblasting for which he has both training and experience. His work options are restricted. He will have to undergo retraining to equip himself for a position requiring him to perform only light duties. Given his education and background this will not be an easy task. I am not satisfied that the plaintiff would be able to undertake some of the work options suggested e.g. as a courier driver. Nor does it seem to me he could be readily employed as a manager in a hotel or retail store. [26] The plaintiff’s injuries have adversely impacted on his quality of life and his capacity to undertake some of the usual household activities. He is restricted in active leisure pursuits and is frustrated by his inability to do those things. The plaintiff’s wife and his mother described changes in his general disposition such that he is now moody, tired, intolerant and aggressive. He is also overweight having gained some 20 kilograms since he has given up work and active pursuits. This excess weight adds to his level of pain and the difficulty in engaging in effective treatment. [27] The plaintiff is still a young man and has a life expectancy, according to the standard tables of 49 years. He has some pre-existing and continuing health issues such as non-insulin dependant diabetes and the pre-existing developmental abnormality to which reference has been made. [28] Taking all these matters into account, but particularly his young age, I would allow as general damages the sum of $50,000. Interest is to be allowed on half of this sum at 2% for 3.75 years adding a further component of $1,875. 17 Transcript 79/30 18 Transcript 126/1 19 Ex 1 p 30 20 Medical Report of Dr Maguire ex 1 p 61 -- 7 of 11 -- 8 Past Economic Loss [29] Immediately prior to the incident the plaintiff had a somewhat interrupted work history. He explained this as the consequence of his having a breakdown in his first marriage and concerns about the welfare of a child of that marriage. The defendant however contended there was as well an element of instability in the plaintiff’s approach to employment resulting in an average income of only $245 net per week in the financial year ending June 2000. [30] Having considered the tax returns (ex 3) for the four preceding years it seems to me there is a pattern of stable employment and reasonable income until the financial year 2000. In the 1998 financial year with one employer the plaintiff earned $19,000 gross and in 1999 his total earnings were $24,000. The pattern of the 2000 financial year was not likely to have been repeated given that the plaintiff had thereafter commenced a relationship with his present wife which has endured despite the difficulties arising from his injuries. [31] At the time of the injury the plaintiff had arranged to move to Darwin to work for Blastcorp Pty Ltd. His subsequent experiences there would indicate that even if he had not been injured he would not, because of personal reasons, have continued beyond October 2000. After that it is likely he would have continued working as a spray painter/sandblaster for most of the 170 weeks between early October 2000 and the date of the trial. Allowing net earnings of approximately $450 per week the loss of potential income from this source would be approximately $76,500. This figure should be reduced to $72,000 to allow for periods of unemployment and as well from this sum should be deducted the actual net income which he received and an allowance for the 26 weeks’ rent in lieu of wages whilst working as a caretaker at Brookleigh. The total of such benefits is approximately $38,000. I assess past economic loss at $24,000. After taking into account the plaintiff’s receipt of DSS benefits interest at 8% should be allowed on $2,000 for 3 years adding a further component of $320. Loss of earning capacity [32] The plaintiff, because of the developmental abnormality in his lumbar spine was at a higher risk of developing symptoms in that area. This, as a matter of probability, would reduce the time he would have continued in the physically demanding work of sandblasting. Dr McFarlane suggested that this would have happened by his late 30’s early 40’s. Dr Boyce expressed the opinion that there is no correlation between the presence of such degenerative changes and onset of symptoms and he referred to the high incidence of degenerative changes in the lumbar spine but which do not lead to symptoms resulting in those persons not being able to continue working. Other medical experts also commented upon the increased risk of the onset of symptoms arising from this condition. [33] I accept the opinion that the plaintiff, as a matter of probability, was more likely to develop lower back symptoms consequent upon the combination of physically demanding work and the pre-existing developmental abnormality. It is not possible to predict the manner in which the symptoms might have arisen nor their extent nor whether the plaintiff may have had the opportunity to moderate his employment to accommodate any such restrictions. He may, by that time, have owned his own business in which he could employ help. Any assessment is somewhat speculative -- 8 of 11 -- 9 but nonetheless allowance must be made for the increased risk. To give effect to these various opinions I propose to allow firstly approximately 2 years total loss of income to cover a period in which the plaintiff might notionally undertake retraining. The plaintiff would then be 30 years of age. Thereafter I would allow a diminution in earnings for the remaining 20 years. The present earnings for a sandblaster I assess to be $500 per week net. This is derived from the amount received by the plaintiff in his last sandblasting job with Townsville Industrial Painters between 5-13 March 200221. [34] After retraining there is no guarantee that the plaintiff will have trouble free employment even with light duties nor is it likely that he would find a position which would command the same income as a person with the skill and experience of sandblasting/spray painting. I would assess the diminution in earning capacity after retraining in the sum of $150 per week. The assessment then is based on – $500 per week for 2 years (99.4) = $ 49,700.00 $150 per week for 20 years (666.4) = $ 99,960.00 $149,660.00 (which I would round off to $150,000.00) Superannuation Benefits [35] The loss of past superannuation benefits is assessed on past income loss of $38,000 and a contribution of 7% amounting to $2,660. The loss for the future is on $150,000 at 9% amounting to $13,500. The total loss of superannuation benefits therefore is $16,100. Past care [36] The plaintiff has, on various occasions, been unable to undertake what might be termed normal household tasks and he has required paid for assistance and other assistance provided gratuitously by members of his family. One complication in assessing this need is the fact that the plaintiff’s wife, because of her injuries, also was unable to carry out the task normally expected of her. This allowance is to be assessed upon some estimate of the hours required to meet the need for doing domestic cleaning and gardening. The plaintiff seeks an allowance of three and a half hours per week and the defendant concedes only one hour per week. [37] It is not the case that the plaintiff cannot physically do the tasks, it is rather that in so doing there is an increase in the level of pain which restricts him. When not employed he would be able to regulate the performance of this work in a way which would limit the onset of pain. The plaintiff’s claim is reasonable for the periods when he is engaged in employment but not when he is unemployed. For the past period I would allow one hour per week for gardening at $25 per hour and one hour per week for domestic assistance at $13 per hour making a total of $28 per week for a total period for 100 of the weeks since the accident. The total therefore is $2,800. this sum attracts interest at 5% for 3 years adding a further component of $420. Future care [38] For the future I anticipate the plaintiff’s need for assistance of this kind will be reduced. At present, for example, he lives in an apartment and does not carry out 21 Ex 3 p 94 - 1 week plus 1 days work ($799 - $138) $661 net for six days. -- 9 of 11 -- 10 any gardening tasks. That situation, however, is likely to change in the future. Similarly whilst he is not in employment there is no reason why his approach to household tasks cannot be regulated. Consequently, the assessment for this need does not allow a mathematical approach. The better course, it seems to me, is to make some global estimate of the cost of meeting future needs. For the allowance under this heading I assess the sum of $10,000. Future expenses [39] The plaintiff seeks an allowance for the future cost of medications and some allowance for rehabilitation. The plaintiff identifies rehabilitation expenses of physiotherapy and massage. The defendant suggests that expenses could validly be claimed for a weight loss programme and for retraining about which there is no specific evidence as to the cost. There is certainly no warrant in the evidence for concluding that the plaintiff would incur expenses for future treatment of $25 per week. In the absence of any specific information about the cost of rehabilitation and retraining it is appropriate that I made a global allowance which it seems to me is covered by the sum of $5,000. Future medications in the form of analgesics and anti-inflammatories I would allow $3,000 making the total component for future expenses of $8,000. Special damages [40] Special damages have been agreed in the sum of $1,561.80 which sum attracts interest at 5% for two years, adding a further component of $156. [41] In summary then the allowances are as follows:- General damages $ 50,000.00 Interest thereon $ 1,875.00 Past Economic Loss $ 24,000.00 Interest thereon $ 320.00 Loss of earning capacity $150,000.00 Loss of superannuation benefits $ 16,100.00 Past care $ 2,800.00 Interest thereon $ 420.00 Future care $ 10,000.00 Future expenses $ 8,000.00 Special damages $ 1,561.80 Interest thereon $ 156.00 $265,232.80 -- 10 of 11 -- 11 [42] I therefore give judgment for the plaintiff in the sum of $265,232.80. I will adjourn the question of costs to allow each party to make written submissions on this issue within the next 14 days. -- 11 of 11 --