Clifton v Comet Express [1991] QSC 48

10 0 0 30 0 40 0 50 ~o r· - -- ---- ·- ----------------· ------ ---- .-, h :~~=\ "SEC\ cc~r.,~cs ;~:~S(,F: } .: \ Co:Ht Pepartlng Sur-::i<,'-1 ~ IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION L.~ c:.e ~ZL~ !.:!:!..-.~., _ .. J BEFORE MR. JUSTICE DEMACK MACKAY 26 FEBRUARY 1991 No. 4 of 1989 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: JOHN PHILLIP CLIFTON -and- COMET EXPRESS JUDGMENT Plaintiff Defendant HIS HONOUR: Mr. Clifton was born on 12 September 1958. He was involved in an incident at work on 7 October 1987. He commenced working for the defendant at about the end of September 1987. He was in his second week of employment when the incident occurred. His work history, which he sets out in general terms in Exhibit 1, shows that after he left school in Grade 11 he joined the army for three years as a soldier and during that time did not obtain any qualifications or trade. over the next eight and a half years after leaving the army he worked in a variety of occupations. In broad terms, as he sets it out in Exhibit 1, in that period of about eight and a half y~ars before he commenced working for the defendant he was employed for some seven years. on 7 October 1987 he was working with another employee sJ?qoq,f? 10 20 30 40 50 ~,-- G214-Govt. Printer, Qld. 60 1 -- 1 of 22 -- ----.-----------------·-------------~~~~ of the defendant loading a refrigerated van. That van was not being used for the carr~age _of refrigerated goods. It was built with a.s~eel floor that had grooves in it. Some of these grooves were wider than others. Entry to the van was through doors at the,-rear. It appears from the evidence 10 20 30 40 so . of Mr. Morrison that the wider grooves were designed to accommodate the tynes of a forklift. These grooves were approximately 75 centimetres wide. The incident in question occurred while Mr. Clifton was lifting a bundle of steel rods. These rods were about 12 feet long and there were about 10 in the bundle. The bundle was heavy. With p~s work mate he had lifted one end of the bundle on to the floor of the van. He then climbed into the van and commenced dragging the bundle backwards. His boot . .... . caught in one oi the.wider grooves. He lost his balance, ;fell to the .. left and over backwards with t:t1e rods. on top of ·-~ .. :,, ' , .• · ... _~J ,.,:..;_ :,.,.....,''. :\ ._, -· -- : . .' .. ~: ,.· ~ -~- :-,~- ·. him. He,said_that he felt a tear across his lower back, with a sharp pain just below the belt line. effect of his evidence given in Court. This is the Tp.e,_ac_cowits that he gave to the Workers' Compensation Board._ ,y,h~n he, applied for workers' compensation are different from that. He said both in Exhibit 20 and in Exhibit 21 that.his foot slipped. The full circumstances in which those stat~ments were prepared is not before me but it would s~em likely _they were not the product of the kind of careful ,questioning_which occurs in Court and in preparation • for Court •. It seemed,tp me that Mr. Clifton was not a pa,rticularly intelligent m~n and ~hat hjs command of English was not ,particularly good .. •. For instance, he referred to the grooves 2 (.r\~ ~ ·, 10 0 0 30 0 40 0 50 . 60 -- 2 of 22 -- 10 (\ in the floor as "ruts". That is not a common use of the word and it would seem.to me to suggest that his use of words is not always precise and perhaps not always what one would commonly use. It does not seem to me that any variations in what doctors have recorded is of much significance here. For example, the report from the Base Hospital simply says that he injured the left side of his back and neck while lifting at work that day. That, of course, is quite a truthful account according to what the plaintiff said in Court here· \._j but it leaves out a great deal of detail and could imply something quite different from the incident that he C: described. 30 I am not satisfied that any of these earlier accounts or variations in the accounts calls into question the truthfulness of what he said here in Court. He did not appear to be in any way dissembling. He is certainly not particularly bright, but it seemed to me that the account he·· C gave had a ring of truth about it. 40 C so His boot, and indeed any working boot, is approximately 75 millimetres wide so that getting that boot caught in the groove in the floor of the truck sounds a reasonable and likely story. I accept his account of how he fell over. Mr. Morrison has seen other refrigerated vehicles in Mackay but has not seen the particular one that was involved in this incident. However, it seeins clear enough that this kind of floor in refrigerated vans is commonly provided. The grooves are there to facilitate loading and unloading of goods with forklifts.· However, it is clear that any workman not· using a forklift .. is· at risk of losing his• footing in one G 214-Govt. Printer, Old. 3 10 20 30 _;. .. 40 so 60 -- 3 of 22 -- r-------------------- 10 20 30 40 so of the y1ider grooves. . . It is,. also clear enough that if he does that while carrying a load, he is likely to injure himself. Consequently, .from the point of view of workmen working on that floor,: i.:t does have a foreseeable risk attached to itp use. That risk is readily removed by putting .- a ~:pl:ank ·o-f · timber in the g-roove. -,·Mr .Morrison. has described-how this can be done and it seems to me to have been a reasonably effective and inexpensive way of removing the risk.- The failure on the part of the defendant to deal with this foreseeable risk and remove it constitutes a breach of its duty to the plaintiff. I am satisfied that because of this breach, the plaintiff suffered his injuries. Contributory negligence has been pleaded. However, it seems to me none has been made out here. The plaintiff was loading a heavy bundle of rods. He was working in tandem with ,.another w:o.rkman anc;i had to k'?ep an eye on what that i . .. ·- ... ·, . - .. - ~ .... ,.. ,. - _6 '": -.. ' • .. ' .. ·: •• ';-- • -·· - " • workman was doing _and how he was moving in relation to the plaintiff~s movements. If he were to face away from where the other workman was, he would be frustrating the whole purpose <;>f working .. in tandem. Consequently, all he could do was dr;ag the rods, as he was doing. If he were to look over ' his shoulder at the same time, he would be exposing himself to considerably more risk than he did working on the floor that the defendant provided. I am satisfied that in the circumstances ,he took reasonab.~e care for his own safety. Mr. Clifton hasn 1 t·work~d since the accident. He ;attended.the Mackay Base·Hospital_and has had traction there but has not been admittea.:to.h~spital. He has at½ended for physiotherapy. He has attended at the Commonwealth. · Rehabilitation· Service and, has undertaken some '·physiotherapy G 214--Govt. Printer. Old. 4 ,, 10 0 30 0 40 0 50 60 -- 4 of 22 -- 10 20 and body building as a prelude to rehabilitation. However, in spite of this, he has not returned to work. There is a variety of opinion expressed in the medical '. ·:, evidence in this trial. However, 'it seems to me that the most significant piece of evidence is that contained in the - report of the physiotherapist, Mr. Clutton, in 1987. He reported muscle spasm in the lumbar thoracic and cervical spines. It is accepted that this is not something that can be feigned. It is something which indicates there is some injury against which the muscles are responding. There is C no evidence of anything other than this to indicate the C 30 nature of the disability. This means that ordinary medical opinion would be to say that there is some soft tissue damage. Dr. White, who saw him after 1987, expected that the problem would settle down~ When Dr.·Douglas saw·him i-n-1990, he had some difficulty giving a clear diagnosis and prognosis because the matter seemed to him to be unusual. C He recommended that the plaintiff be seen by a psychiatrist and this seems to have · generated some interest and' debate ,~ 40 C 50 from that speciality. However, it seemed to me that, to a degree, this psychiatric debate ignored the realities of Dr. Douglas's evidence here in Court. At p.18 he was asked: "What impression did you have as to the genuineness of the pain that he complained of?-- I was not sure of the precise diagnosis that caused this man's pain but I thought it was probably . organic, but in the absence of any definite diagnosis I thought that his psychiatric state should be explored, but I didn't really think that his pain was due to psychiatric causes. . . ~ ~ - Was his presentation consistent with hi~ history of falling in the van or·twisting and falling 5 10 20 30 40 50 60 -- 5 of 22 -- ~-------- --~--- -- ------------------~- ------------------~---··---- ·---- ----- 10 20 30 40 so. on his side,?,-- It was an unusual type of back pain. It was not the usual mid-line low back pain. He indicated that.he felt this - at the time of the injury - tearing sensation in his buttock and he· localised his pain to this, to the left side, to the left of 'the sacrum really and this was the area that he said he felt tears in. I think such a tearing of the ligament or muscle could have occurred· in a~ area before, yes. With such a tearing organically is it possible for the effects of that to continue for years?-- This is a bad tearing and again, it is one of the reasons that I am not firm on my diagnosis • . Normally one would expect that that type of injury, a ligamentous or muscular tear, would heal and quite frequently after healing aching type pain is experienced with strenuous activity, but not the .. severity. The severity, more than the fact that he has pain, I think, is unusual in this man. So far as the probabilities go, would you base this pain as .an organic one?-- Yes. What do you say, given the organic pain that you would accept as being consistent and present, as. to his capacity to carry out labouring work and that so:r:t of thing?-- As I did examine him I don't think he could carry out labouring work. woul.dyouconsider him fit.for any_form_of work?-- YeEL r'ttiihk he could probably 'do some sort. of sedentary work providing that he could change posture reasonably frequently, like half-hour intervals, move from a standing/sitting or standing/moving position. If the painful symptoms have continued to this._time,. what is the probable prognosis for him?-- That it will persist. ··Is there ariy reason to expect them to cease?-- No. Is there any treatment that could be considered that he has not tried?-- I don't think anything that he has not tried could be considered, no.". That seems to.me to be a more definite opinion than he expressed.in his med,ical report, which is the document on ·. which the psychi_atri$tS have acted . . I acce}?t_. Dr. Douglas I s _opinion. It is, of course, the only orthopaepic opipion in this .c~se and it does come from a specialist who has_ been practising the orthopaedic 9 214--0ovt. Printer, Old. 6 (0. <(..,· 10 20 0 0 30 0 40 so 60 -- ... __ '''.'. ":J -- 6 of 22 -- ) !~ 10 0 speciality for over 36 years. .~ In other words, it seems to me important to keep in mind that Dr. Douglas sees some organic base for the pain and sees this as a continuing pain that Mr. Clifton will have to live with~ "" So far as the psychiatric opinion is concerned, this came from Dr. Mulholland and Dr. James. I indicated when Dr. Rice's opinion.was tendered, that I would not act on that within its psychiatric speciality because he had simply not seen the plaintiff and it, seems to me that that view must hold. There is some difference of opinion between the two psychiatrists but I do not think that it is all that C) significant. It seems clear that the kind of depression that Mr. Clifton has suffered has been no more than the kind 30 cl of frustration that would build up over a period of time with persistent pain.:-It is not a·condition that-has sent him to seek psychiatric help and, as I understand-the evidence, he has not been on a regime of anti-depressant drugs. So far as Dr. Mulholland' s opinion about psychogeni-c •· 40 C, pain is concerned, it seemed to me, again, that this opinion 50 was not as conclusive as one would look for even upon the balance of probabilities. The situation, as it seems to me on the evidence; is that the plaintiff does have an unusual soft tissue injury which is still producing pain' and discomfort. It seems to· me likely that with some proper advice from a pain clinic, he will learn to understand the nature of his pain somewhat better and will be able to adjust to use the-physical ~ . ~ , . ability that Dr. Douglas,clearly ·says he has. G 214-Govt, Printer, Old. 7 10 20 30 40 50 60 -- 7 of 22 -- 10 20 40- 50· ~~~- ------------------·---------------, Cons·equently-., I will - approach the assessment of damages on the basis that provision should be made for treatment in a pain clinic or in ·· some similar regime but that once that is undertaken, Mr. Clifton will.be able to exercise a very substantial economic capacity. It seems to me important here to keep in mind that his pre-accident work record was not of earning at a high ra~e, nor of continuous employment.· There were, as I have indicated, some seven years employment over a period of eight and a half years ;,- Past economic loss has been calculated in the schedule. There is there a.loss of possibly as much.as $47,500 but it seems to me, in the light of his work history, _that $42,000 is a reasonable sum to allow. Taking into account the amounts he has received, both :from 1 the·, Workers.!' Compensation: _Board an~t._ by way, of sickness :benefits, I will allow interest on the sum of $10,500 in .that amount. This is _an amount of $2,100 by way of interest. I will therefore allow, for past economic loss, · including 'interest on the sum, to the total of $44,100. It is difficult, in assessing future economic loss, to take a strictly:mathematical approach. I have indicated the factors that seem to me to be important. First of all, there will be a time when Mr. Clifton will need treatment and assurance to regain confidence in himself. He will then need to find work that is within his range of light work. However, it seems .to me,. in the light, of Dr. Douglas's r opinion, there.is c).early there a substantial economic capacity for.:him to exercise. To get some ide~ of. ~he range.of his loss, I have taken G ~14-Govt. Printer, Qld. 8 1 - 10 . 0 30 0 40 0 50 60 -- 8 of 22 -- ~"'·~· ... ,;:..:,> 10 0 a sum of $50 a week for 25 years. This is roughly a fifth- of his earning capacity before he was injured and it seems to me to try to embrace the various factors that are relevant here. ''This would produce a sum of over $37,000. :,~ In addition, there needs to be a substantial time when he is receiving treatment and looking for work. If this then were brought to the amount of $50,000, it would seem to me to be adequate and fair compensation £or his future_ loss of economic capacity, so I assess that part of the award in-. the amount of $50,000. The pain clinic figures, I accept from Dr. Mulholland. It would seem to me the last thing that would be needed in Q any regime of treatment for Mr. Clifton would be to put him in pyjamas, so I accept Dr. Mulholland's comment about the 30 Belmont Hospital being preferred for this activity and I shall allow the sum of $10; 006, · which seems to be.·the co~on cost at Belmont. I have taken into account the time the;. treatment will take and its consequences to work already in respect of loss of income. So far as medication is concerned, it seems to me this 40 () is a very unpredictable factor. If the pain clinic is. 50 successful, and I am satisfied on the evidence that it should be, then there will not need to be constant trips to the doctor for acupuncture or laser treatment. However, in the award of general damages for pain, suffering and loss of amenity, I will include an item to cover something for future medical treatment and chemist expenses. Mr. Clifton says that he has a very inactive and almost useless life at the moment. Prior to the accident he played rugby league. He also played Australian Rules,,_;tennis, G 214-Govt. Printer, Qld. 9 10 20 30 . 40 50 60. -- 9 of 22 -- 10 20 30 40 50 squash, golf and cricket on a social basis and he does not now get himself involved in that. His only hobby is watching videos. It would seem to me that a regime at the pain clinic will give him a much more enjoyable life in the future. So far as his personal relations are concerned, the young woman with whom he lives he met after he sustained his injuries, and they have apparently a durable relationship. For pain, suffering and loss of amenities, I shall allow the sum of $35,000, $12,000 of which will bear interest, which I fix at $2,400. Special damages were accepted in the sum of $4,585.80. The total of the award then is $146,085.80. There is a claim by the Workers' Compensation Board in the amount of $17,855.50. ~h~_re will be judgment for the plaintiff against the defendant for $128,230.30. The award is, it seems to me, well below the Supreme Court scale so I will allow costs on the District Court scale since 1 January 1990. 10 / ·, . \ •,I' 10 0 30 0 40 0 50 60 -- 10 of 22 -- C C C ' \ C IN THE SUPREME COURT OF QUEENSLAND MACKAY BETWEEN: JOHN PHILLIP CLIFTON AND: COMET EXPRESS No. 4 of 1989. Plaintiff Defendant JUDGMENT - DEMACK J. DELIVERED the Twenty-sixth day of February 1991 . CATCHWORDS: Negligence - Employer's liability - Grooved floor in refrigerated van - Fall while lifting heavy load. Damages - Personal injuries - 'Soft tissue damage - muscle spasm in the lumbar thoracic and cervical spines - Male aged 33, unskilled worker. COUNSEL: Mr D. McMeekin Mr. D. Mullins for Plaintiff for Defendant SOLICITORS: HEARING DATES: WALLACE & WALLACE for Plaintiff CHAMBERS, McNAB, TULLY for Defendant & WILSON 21st, 22nd and 25th February, 1991 -- 11 of 22 -- \ ,,/ ( \ 10 c~ C 30 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE DEMACK MACKAY 26 FEBRUARY 1991 No. 4 of 1989 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: JOHN PHILLIP CLIFTON -and- COMET EXPRESS JUDGMENT Plaintiff Defendant HIS HONOUR: Mr. Clifton was born on 12 September 1958. He was involved in an incident at work on 7 October 1987. He commenced working for the defendant at about the end of Q September 1987. He was in his second week of employment when the incident occurred. His work history, which he sets 40 C out in general terms in Exhibit 1, shows that after he left school in Grade 11 he joined the army for three years as a soldier and during that time did not obtain any qualifications or trade. Over the next eight and a half years after leaving the army he worked in a variety of so occupations. In broad terms, as he sets it out in Exhibit 1, in that period of about eight and a half years before he commenced working for the defendant he was employed for some seven years. On 7 October 1987 he was working with another employee ·...eo ~v G214-Govt. Printer, Qld. 1 10 20 30 40 50 60 -- 12 of 22 -- 10 20 0 0 30 C 40 50 60 of the defendant loading a refrigerated van. That van was not being used for the carriage of refrigerated goods. It was built with a steel floor that had grooves in it. Some of these grooves were wider than others. Entry to the van was through doors at the rear. It appears from the evidence of Mr. Morrison that the wider grooves were designed to accommodate the tynes of a forklift. These grooves were approximately 75 centimetres wide. The incident in question occurred while Mr. Clifton was lifting a bundle of steel rods. These rods were about 12 feet long and there were about 10 in the bundle. The bundle was heavy. With his work mate he had lifted one end of the bundle on to the floor of the van. He then climbed into the van and commenced dragging the bundle backwards. His boot caught in one of the wider grooves. He lost his balance, fell to the left and over backwards with the rods on top of him. He said that he felt a tear across his lower .back, with a sharp pain just below the belt line. This is the effect of his evidence given in Court. The accounts that he gave to the Workers' Compensation Board when he applied for workers' compensation are different from that. He said both in Exhibit 20 and in Exhibit 21 that his foot slipped. The full circumstances in which those statements were prepared is not before me but it would seem likely they were not the product of the kind of careful questioning which occurs in Court and in preparation for Court. It seemed to me that Mr. Clifton was not a particularly intelligent man and that his command of English was not particularly good. For instance, he referred to the grooves 2 . 10 20 30 40 50 60 -- 13 of 22 -- 10 in the floor as "ruts". That is not a common use of the word and it would seem to me to suggest that his use of words is not always precise and perhaps not always what one would commonly use. It does not seem to me that any variations in what doctors have recorded is of much significance here. For example, the report from the Base Hospital simply says that he injured the left side of his back and neck while lifting at work that day. That, of course, is quite a truthful account according to what the plaintiff said in Court here but it leaves out a great deal of detail and could imply something quite different from the incident that he C, described. 30 C 40 I am not satisfied that any of these earlier accounts or variations in the accounts calls into question the truthfulness of what he said here in Court. He did not appear to be in any way dissembling. He is certainly not particularly bright, but it seemed to me that the account he gave had a ring of truth about it. His boot, and indeed any working boot, is approximately C 75 millimetres wide so that getting that boot caught in the groove in the floor of the truck sounds a reasonable and likely story. I accept his account of how he fell over. 50 Mr. Morrison has seen other refrigerated vehicles in Mackay but has not seen the particular one that was involved in this incident. However, it seems clear enough that this kind of floor in refrigerated vans is commonly provided. The grooves are there to facilitate loading and unloading of goods with forklifts. However, it is clear that any workman not using a forklift is at risk of losing his footing in one G 214-Govt. Printer, Old. 3 10 20 30 40 50 60 -- 14 of 22 -- 10 Cf 0 30 0 40 C 50 of the wider grooves. It is also clear enough that if he does that while carrying a load, he is likely to injure himself. Consequently, from the point of view of workmen working on that floor, it does have a foreseeable risk attached to i t_s use. That risk is readily removed by putting a plank of t.imber in the groove. ,Mr.Morrison has described how this can be done and it seems to me to have been a reasonably effective and inexpensive way of removing the risk. The failure on the part of the defendant to deal with this foreseeable risk and remove it constitutes a breach of its duty to the plaintiff. I am satisfied that because of this breach, the plaintiff suffered his injuries. Contributory negligence has been pleaded. However, it seems to me none has been made out here. The plaintiff was loading a heavy bundle of rods. He was working in tandem with another workman and had to keep an eye on what that workman was doing and how he was moving in relation to the plaintiff's movements. If he were to face away from where the other workman was, he would be frustrating the whole purpose of working in tandem. Consequently, all he could do was drag the rods, as he was doing. If he were to look over his shoulder at the same time, he would be exposing himself to considerably more risk than he did working on the floor that the defendant provided. I am satisfied that in the circumstances he took reasonable care for his own safety. Mr. Clifton hasn't worked since the accident. He attended the Mackay Base Hospital and has had traction there but has not been admitted to hospital. He has attended for physiotherapy. He has attended at the Commonwealth Rehabilitation Service and has undertaken some physiotherapy G 214-Govt. Printer, Qld. 4 10 20 30 40 50 60 -- 15 of 22 -- 10 and body building as a prelude to rehabilitation. However, in spite of this, he has not returned to work. There is a variety of opinion expressed in the medical evidence in this trial. However, it seems to me that the most significant piece of evidence is that contained in the report of the physiotherapist, Mr. Clutton, in 1987. He reported muscle spasm in the lumbar thoracic and cervical spines. It is accepted that this is not something that can be feigned. It is something which indicates there is some injury against which the muscles·are responding. There is no evidence of anything other than this to indicate the nature of the disability. This means that ordinary medical Q opinion would be to say that there is some soft tissue damage. 30 C 40 C 50 Dr. White, who saw him after 1987, expected that the problem would settle down. When Dr. Douglas saw him in 1990 he had some difficulty giving a clear diagnosis and prognosis because the matter seemed to him to be unusual. He recommended that the plaintiff be seen by a psychiatrist and this seems to have generated some interest and debate from that speciality. However, it seemed to me that, to a degree, this psychiatric debate ignored the realities of Dr. Douglas's evidence here in Court. At p.18 he was asked: "What impression did you have as to the genuineness of the pain that he complained of?-- I was not sure of the precise diagnosis that caused this man's pain but I thought it was probably organic, but in the absence of any definite diagnosis I thought that his psychiatric state should be explored, but I didn't really think that his pain was due to psychiatric causes. Was his presentation consistent with his historyof falling in the van or twisting and falling 5 10 20 30 40 50 60 \ -- 16 of 22 -- 10 30 C 40 C 50 60 on his side?-- It was an unusual type of back pain. It was not the usual mid-line low back pain. He indicated that he felt this - at the time of the injury - tearing sensation in his buttock and he localised his pain to this, to the left side, to the left of the sacrum really and this was the area that he said he felt tears in. I think such a tearing of the ligament or muscle could have occurred in an area before, yes. With such a tearing organically is it possible for the effects of that to continue for years?-- This is a bad tearing and again, it is one of the reasons that I am not firm on my diagnosis. Normally one would expect that that type of injury, a ligamentous or muscular tear, would heal and quite frequently after healing aching type pain is experienced with strenuous activity, but not the severity. The severity, more than the fact that he has pain, I think, is unusual in this man. So far as the probabilities go, would you base this pain as an organic one?-- Yes. What do you say, given the organic pain that you would accept as being consistent and present, as to his capacity to carry out labouring work and that so~t of thing?-- As I did examine him I don't think he could carry out labouring work. Would you consider him fit for any form of work?-- Yes. I think he could probably do some sort of sedentary work providing that he could change posture reasonably frequently, like half-hour intervals, move from a standing/sitting or standing/moving position. If the painful symptoms have continued to this time, what is the probable prognosis for him?-- That it will persist. Is there any reason to expect them to cease?-- No. Is there any treatment that could be considered that he has not tried?-- I don't think anything that he has not tried could be considered, no.". That seems to me to be a more definite opinion than he expressed in his medical report, which is the document on which the psychiatrists have acted. I accept Dr. Douglas's opinion. It is, of course, the only orthopaedic opinion in this case and it does come from a specialist who has been practising the orthopaedic 9214-Govt. Printer, Qld. 6 10 20 30 40 so 60 -- 17 of 22 -- 10 20 C 30 40 C 50 speciality for over 36 years. In other words, it seems to me important to keep in mind that Dr. Douglas sees some organic base for the pain and sees this as a continuing pain that Mr. Clifton will have to live with. so far as the psychiatric opinion is concerned, this came from Dr. Mulholland and Dr. James. I indicated when Dr. Rice's opinion was tendered, that I would not act on that within its psychiatric speciality because he had simply not seen the plaintiff and it seems to me that that view must hold. There is some difference of opinion between the two psychiatrists but I do not think that it is all that significant. It seems clear that the kind of depression that Mr. Clifton has suffered has been no more than the kind of frustration that would build up over a period of time with persistent pain. It is not a condition that has sent him to seek psychiatric help and, as I understand the evidence, he has not been on a regime of anti-depressant drugs. So far as Dr. Mulholland's opinion about psychogenic pain is concerned, it seemed to me, again, that this opinion was not as conclusive as one would look for even upon the balance of probabilities. The situation, as it seems to me on the evidence, is that the plaintiff does have an unusual soft tissue injury which is still producing pain and discomfort. It seems to me likely that with some proper advice from a pain clinic, he will learn to understand the nature of his pain somewhat better and will be able to adjust to use the physical ability that Dr. Douglas clearly says he has. G 214-Govt. Printer, Qld. 7 10 20 30 40 50 60 -- 18 of 22 -- 10 20 0 30 40 50 Consequently, I will-approach the assessment of damages on the basis that provision should be made for treatment in a pain clinic or in some similar regime but that once that is undertaken, Mr. Clifton will be able to exercise a very substantial economic capacity. It seems to me important here to keep in mind that his pre-accident work record was not of earning at a high rate, nor of continuous employment. There were, as I have indicated, some seven years employment over a period of eight and a half years Past economic loss has been calculated in the schedule. There is there a loss of possibly as much as $47,500 but it seems to me, in the light of his work history, that $42,000 is a reasonable sum to allow. Taking into account the amounts he has received, both from the Workers' Compensation Board and by way of sickness benefits, I will allow interest on the sum of $10,500 in that amount. This is an amount of $2,100 by way of interest. I will therefore allow, for past economic loss, including interest on the sum, to the total of $44,100. It is difficult, in assessing future economic loss, to take a strictly mathematical approach. I have indicated the factors that seem to me to be important. First of all, there will be a time when Mr. Clifton will need treatment and assurance to regain confidence in himself. He will then need to find work that is within his range of light work. However, it seems to me, in the light of Dr. Douglas's opinion, there is clearly there a substantial economic capacity for him to exercise. To get some idea of the range of his loss, I have taken G 214-Govt. Printer, Qld. 8 10 20 30 40 50 60 -- 19 of 22 -- 10 20 0 0 30 C: 40 0 50 a sum of $50 a week for 25 years. This is roughly a fifth of his earning capacity before he was injured and it seems to me to try to embrace the various factors that are relevant here. This would produce a sum of over $37,000. In addition, there needs to be a substantial time when he is receiving treatment and looking for work. If this then were brought to the amount of $50,000, it would seem to me to be adequate and fair compensation for his future loss of economic capacity, so I assess that part of the award in the amount of $50,000. The pain clinic figures, I accept from Dr. Mulholland. It would seem to me the last thing that would be needed in any regime of treatment for Mr. Clifton would be to put him in pyjamas, so I accept Dr. Mulholland's comment about the Belmont Hospital being preferred for this activity and I shall allow the sum of $10,000, which seems to be the common cost at Belmont. I have taken into account the time the treatment will take and its consequences to work already in respect of loss of income. So far as medication is concerned, it seems to me this is a very unpredictable factor. If the pain clinic is successful, and I am satisfied on the evidence that it should be, then there will not need to be constant trips to the doctor for acupuncture or laser treatment. However, in the award of general damages for pain, suffering and loss of amenity, I will include an item to cover something for future medical treatment and chemist expenses. Mr. Clifton says that he has a very inactive and almost useless life at the moment. Prior to the accident he played rugby league. He also played Australian Rules, tennis, G 214--Govt. Printer, Qld. 9 10 20 30 40 50 60 -- 20 of 22 -- ( • 10 20 C C 30 C 40 C 50 squash, golf and cricket on a social basis and he does not now get himself involved in that. His only hobby is watching videos. It would seem to me that a regime at the pain clinic will give him a much more enjoyable life in the future. So far as his personal relations are concerned, the young woman with whom he lives he met after he sustained his injuries, and they have apparently a durable relationship. For pain, suffering and loss of amenities, I shall allow the sum of $35,000, $12,000 of which will bear interest, which I fix at $2,400. Special damages were accepted in the sum of $4,585.80. The total of the award then is $146,085.80. There is a claim by the Workers' Compensation Board in the amount of $17,855.50. There will be judgment for the plaintiff against the defendant for $128,230.30. The award is, it seems to me, well below the Supreme Court scale so I will allow costs on the District Court scale since 1 January 1990. 10 10 20 30 40 50 60 -- 21 of 22 -- 10 C 20 { . C 30 C r \ 40 C 50 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR.JUSTICE DEMACK MACKAY,28 FEBRUARY 1991 No. 4 of 1989 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: JOHN PHILLIP CLIFTON Plaintiff - and - COMET EXPRESS Defendant --- ORDER' HIS HONOUR: I delivered judgment in this matter on 26 February 1991 and, in doing so, overlooked the second letter from the Workers' Compensation Board which is Exhibit 25. Consequently, the figures that I allowed for special damages and for the amount of the Board refund were wrong. The figure for special damages should be $4,820.56 and the amount of the Board refund should be $18,090.24. The result of this is that the amount of the judgment should be increased by two cents to the figure of $128,230.32. The judgment will be varied accordingly. G 214-Govt. Printer, Old. 1 10 20 30 40 50 60 -- 22 of 22 --