Chapman v Pindara Private Hospital Pty Ltd [1991] QSC 24

10 20 30 40 50 60 IN THE SUPREME COURT OF OUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE DOWSETT BRISBANE, 9 JANUARY 1991 No. 1072 of 1989 _____ s_,_....,._ l .. ~ISED COPIES .ISSUED ourt Rep. orting Bureau te~ ~11.~ L~J_!___. (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 RUSSELL CHAPMAN -and- PINDARA PRIVATE HOSPITALPTY LIMITED JUDGMENT Plaintiff Defendant HIS HONOUR: The plaintiff was born on 14 July 1940 and was injured on 11 February 1985 whilst at his employment. He was employed as a gardener at a private hospital conducted by the defendant. Amongst his duties was the occasional duty of taking empty gas bottles from the hospital to a depot at which they could be refilled. The evidence indicates that some of the bottles, when full were in excess of 70 kg in weight and in excess of 5 feet high. There can be no doubt on the uncontested evidence that such items were far too bulky and heavy to be managed c~mfortably by one person and yet, as I find, that was the system of work imposed by the defendant upon the plaintiff. The plaintiff had requested assistance in this task on previous occasions and this had been declined. On the day in question whilst trying to load such a gas bottle on to the tray of a truck, the bottle moved and in trying to control it he, as I find, injured his back. The Govt. Printer, Old. 1 10 20 30 40 so 60 -- 1 of 16 -- task he was trying to perform was to lift the bottle which was standing on the ground, leaning against the truck, up onto the tray. The inconvenience and effort required to perform this task is obvious. I have no difficulty in concluding, as I have 10 said, that it was a task beyond the capacity of one man and 10 that there was no appropriate system prescribed for the safe performance of the task. Thus it follows that the defendant 20 30 40 50 must be responsible for any injury suffered by the plaintiff as a result of the defendant's breach of duty. It is now necessary to say something about the plaintiff. 20 The evidence indicates that at least until some time early in the 1970s, he had regularly abused alcoholic liquor. He has subsequently been an active member of Alcoholics Anonymous, and I am satisfied that at the time of the accident and since, he has had this problem well and truly under control. He has been 30 very active in that organisation, and I would conclude that in all probability, in the absence of the injury, he would have continued to resist the temptations of liquor and would have been able to continue to work free of this particular problem. It appears that during the days when he was struggling 40 with liquor he did on occasions allow it to interfere with his work, and there were periods when his work history was less than satisfactory. However he had been working on a fairly regular basis prior to this accident and had been in this one job for 15 months prior to the accident. A fellow employee said that he was a satisfactory worker; indeed he said rather more than that. The defendant does not suggest that he was other than satisfactory, and so I must proceed on the basis that for 15 months he had satisfactorily discharged 50 -~6~0- ··--······. ···---·--·------·-------------------------'-' 60 Govt. Printer, Old. 2 -- 2 of 16 -- his responsibilities. He was at the time, and is married. This is his second marriage. Although I suspect that the marriage was rather less than satisfactory on occasions prior to the accident, I think that the parties have worked at it and are continuing to do so. 10 It was clear to me from the cross-examination of the 10 20 30 40 50 60 plaintiff that he has to a significant extent exaggerated his present condition. Video tapes which I saw suggested to me that he was capable of coping with most aspects of daily life, although I do not include in that description any heavy work. He has spent extended periods of time assisting in the education of young horses at a property owned by a friend of his who gave evidence, although I am satisfied that he did not derive other than a minor pecuniary benefit from this involvement. I find that his capacity to drive is greater than that suggested by him, and I think that his tolerance to pain is probably also greater than he suggests. I will return to this aspect of the matter at a later stage, but I mention it now only to indicate the view that I take of the plaintiff as a witness. There is some psychiatric evidence which suggests that he is of a disposition that is peculiarly susceptible of succumbing to the consequences of physical injury. I accept that there is an element of this in the plaintiff's condition, but of course the defendant must accept the plaintiff as he finds him. However I think that there is also a significant element of exaggeration, as I have said. I must now say something about the plaintiff's medical condition and in doing so I feel compelled to make some observations about the way in which this trial has been Govt. Printer, Old. 3 20 30 40 50 60 -- 3 of 16 -- conducted. Apparently because of difficulties in arranging the attendance of medical witnesses, the trial has proceeded upon the basis that the medical reports on both sides go in by consent without cross-examination. It is important to appreciate the role of cross-examination in the conduct of a 10 trial such as this. 10 20 30 40 50 60 The purpose of cross-examination is to enable ~n opposing side to put to a witness the case which the cross-examining side intends to make out so that the witness may comment on it to the extent that it may contradict his own evidence. In so doing, he extends to the tribunal of fact an opportunity to 20 assess his evidence in the light of the contrary case being put to him. He has an opportunity to explain his position, and the Court has an opportunity to assess his explanation. It is not satisfactory for counsel simply to decide that he will not get anywhere in cross-examination, as often appears to be the case, and therefore that he will not require a doctor . or other witness to be. called unless the areas in dispute are really only secondary to the major thrust of the report in question. To do so deprives the tribunal of fact of any opportunity of reconciling apparently different opinions, clarifying areas of doubt which appear in reports, resolving areas of ambiguity, or forming any view as to the relative expertise of witnesses. It is really impossible to resolve questions of conflicting evidence or to assess weight to be given to evidence when one does not have the opportunity of seeing the witnesses in question. This is as much true of medical witnesses as it is of other witnesses. In t~is case I am faced with~ very large volume of medical evidence, but with no real tools with which I can Govt. Printer. Old. 4 30 40 50 60 -- 4 of 16 -- 10 20 30 40 50 60 resolve the areas of doμbt and ambiguity contained in it. When the reports were tendered by consent at the beginning of the trial, I assumed that there was no significant dispute about either their contents or the condition of the plaintiff. As it has turned out, that is not the case and a close reading of the medical reports indicates why that is not tne. case. The defendant submits that the plaintiff has not been injured or was not injured in the incident in question to the extent alleged by him and that his continuing incapacities are not anything like as significant as he suggests. As I have said a perusal of the medical evidence indicates just grounds for that suspicion. However, it is necessary that I do the best I can with the evidence which has been put before me and having made those observations as to the inappropriateness of the course followed in this case, I will now proceed to do so. Firstly it must be kept in mind that on at least one occasion prior to the accident in 1985, the plaintiff had suffered significant back injury. This appears from the report of Dr. Dutney which is -Exhibit 16. It is a reasonable inference from that report that the plaintiff recovered from whatever injury he had suffered in the early '80s, but it is also reasonable to infer as was observed by Dr. Dutney that: "Once injured significantly the back is more vulnerable to symptomatic injury than a previously uninjured back." Prior to the accident, however, the plaintiff had been working full-time with little or no difficulty. Since the accident, he has not worked at all other than on a fairly informal basis. The plaintiff submits that I should therefore infer that the injury has caused whatever pain, suffering and Govt. Printer, Old. 5 10 20 30 40 50 60 -- 5 of 16 -- incapacity he now suffers. However, when one looks at the medical reports, there are considerable obstacles in the way of drawing such a conclusion. The plaintiff on the day following the incident saw his general practitioner who treated him with bed-rest and analgesics. He found no neurological abnormality. 10 As a result of continued complaints of pain, he was referred to 10 Dr. Downes, an orthopaedic surgeon. The evidence of Dr. Downes 20 30 40 so 60 in this case has posed a major problem. report of 26 March 1986, he said: In Exhibit 7, his "He responded poorly to conservative management with the provisional diagnosis of disc rupture and eventually a C.T. Scan was performed showing a degree of spinal stenosis of the lower lumbar spine. "In view of the failure to settle and protracted symptomatology, operation was done on 4 June 1985. At operation there was no evidence of a disc rupture butpurely lateral recess stenosis. He has not responded to that surgical treatment and still is incapacitated II 20 Dr.. Downes further observed that he thought the 30 plaintiff's condition to be organic rather than psychological. Prior to the report, Dr. Downes had written to the general practitioner by letter dated 6 September 1985, Exhibit 41. In that letter Dr. Downes said: "John is in a big quandary both financially and socially because he cannot get back to work. He has instituted proceedings on compensation against Mr. Ramsey on Mr. Ramsay's advice but those sort ofcases drag on for three or four years and they certainly are not a short-term solution for him. "I repeated his C.T. Scan today to make sure that there was no an explanation for his pain that was perhaps able to be helped, but his C.T. Scan is normal. There is bulging of the lower three discsof the spine but the bulging is uniform, and there is no displacement whatever of the spinal corridor nerve roots and therefore the bulging is physiological. "John's back pain therefore still remains undiagnosed and as far as I am concerned further surgery would certainly not help him in any form." Govt. Printer, Qld. 6 40 50 60 -- 6 of 16 -- 10 30 40 so 60 On 6 May 1987 Dr. Downes reported on the plaintiff again. This report is Exhibit 8. In that report he said: "You asked for a detailed report on this man who as you know is these days quite severely incapacitated physically by persistent low back pain and referral pains in the legs. He represents a case of failed surgery because as you well know he had an operation on his spine on 4 June 1985 in an attempt to relieve the symptoms. The surgery did not cure the condition iO in any way and he has been advised to have no further surgery as further surgery is likely to make himworse. "The problem with this man's case from the legal point of view no matter how sympathetic one is to his case,there was underlying problems in the spine prior to the operation. It is usually not realised that such disorder always pre-exists especially in disc problems. We do not know all factors that lead to 20 degeneration of intervertebral discs but thosepatients who present with disc problems have to have pre-existing degeneration. If the degeneration is severe then the amount of strain necessary to cause a rupture of the disc is small. If the amount of degeneration is mild then the force to the spine has to be far greater. Independent of this fact, however there are always two aspects of a disc rupture, one being the degree of underlying degeneration pre-existing and the other being the force applied 30 "To complicate matters, Mr. Chapman was admittedwith severe pain as an acute emergency to hospital. clinical features suggested an acute disc rupture but a scan of his spine did not reveal a rupture butpurely spinal stenosis at a localised level. Such stenosis can cause symptoms mimicking a disc rupture of acute type but again I have to point out to you that such spinal stenosis is always pre-existing. The "At surgery we did not find a ruptured disc. We did do a lateral recess enlargement or foraminotomy as it is called with the aim of reducing a spinal stenosis laterally. This did not cure the patient. "He has had C.T. Scans repeated since the surgery which has shown a general bulge of several discs but these bulges are not pathological · in that they have notdisplaced epidural fat or the nerve roots and are essentially physiological bulges of the discs. "His pain has therefore never been explained and in view of the failed surgery and in view of the C.T. reports further surgery has been contra-indicated. "He certainly remains severely disabled subjectively and I have told him in the past he really has to live with Govt. Printer, Old. 7 40 so 60 -- 7 of 16 -- 10 the condition. I know to some extent this report therefore does not help his case in that ram stating there is a pre-existing problem but I can only tell the truth in these matters as you will appreciate." There-must have been some criticism made of his report because on 19 June 1987 he again wrote to the solicitors for the plaintiff saying: "I have to apologise about the report on this man. I have re-read it and it does appear to me that I am emphasising his pre-existing spinal degeneration, but in fact this is unfair of me and I wasn't deliberately trying to do so. "Certainly Mr. Chapman had an excellent work record up to 1 February 1985 and I can verify this myself. 10 20 "This episode was an acute episode in a man who preceding 20 this had very little trouble of major type of his 30 40 50 spine. The simple answer to the question you raise is in my opinion his problem that necessitated surgery was an acute probl~m. Had he not had theinjury I don't think he would have been in hospital at all. I think he would be still working at his job normally and I don't think he would have had surgery. I purely commented on his degeneration because one has to comment on these things. The degeneration is a factor that exists in all of us when we get over 40 that makes us more prone to suffer prolonged trouble with our spine if we sustain an acute injury. "In short, I think this man would have been able to continue working certainly for most of his working days were it not for the accident, even if in the last five or six years of his life his back trouble started to play up and he had to reduce the type of stresses on his spine like so many of us have to do." To say the least, this line of communication causes me great trouble. It seems to me that Dr. Downes has been far too much concerned with the forensic interests of the plaintiff and not enough concerned with giving an appropriate medical opinion. I find it impossible to give any great credence to the supportive statements made in Exhibit 9. He obviously at an early stage looked for visible evidence of injury to the spine and was unable to find any. He therefore was of the view that a substantial cause of the plaintiff's condition was 60 degenerative change preceding the injury. It is simply not -----=--.c...--+------------ Govt. Printer, Qld. 8 30 40 50 60 -- 8 of 16 -- possible for an expert witness or any other sort of witness to back away from such an opinion once it has been formed unless there is some reason for doing so. I therefore can accept Dr. Downes' evidence when he speaks of the views he formed at the time of early treatment and his findings on operation and on lO C.T. scan examination, but I do not find myself able to accept 10 20 30 40 50 60 the opinions expressed in Exhibit 9. too closely with the plaintiff's case. He has identified much I can, however, see no reason for rejecting his statement that he found no apparent pathological changes to the discs likely to be attributable to injury. ii After his consultations with Dr. Downes, the plaintiff saw Dr. Yaksich. He first saw Dr. Yaksich on 14 June 1987. He was told by the plaintiff that he had injured his back lifting a gas bottle and that he had not been able to return to work following an operation. He had received epidural injections. Dr. Yaksich viewed a recent C.T. scan and saw evidence of the laminectomy on the left side at the "L3/4 level and stenosis at the L4/5 level due to osteoarthritis of the facet joint and a disc bulge". It was agreed in the course of argument that the reference by Dr. Downes to the lower three discs in Exhibit 41 would include a reference to the disc at the L4/5 level. Dr. Yaksich eventually operated and found scarring at the L3/4 level apparently attributable to Dr. Downes' previous endeavours, and at the L4/5 level he found that the lateral recess was stenosised and posterior lateral disc protrusion was also present. The stenosis was decompressed and the disc lesion was excised. Dr. Yaksich was at that stage of the view that the plaintiff would be permanently incapacitated from doing Govt. Printer, Qld. 9 20 30 40 50 60 -- 9 of 16 -- heavy work. On 8 Dece.mber 1987, he reported again in Exhibit 14. He offered the view that his findings were attributable to the lifting injury at work. However, as I understand the position in which he was placed, that should be taken as nothing more 10 than an indication that his injuries as found were consistent 10 20 with having been so caused. At this stage he also offered the view that the plaintiff would have great difficulty even with light work. In a report of 6 April 1990, Exhibit 15, he says that substantial improvement has not been effected and that the plaintiff has continued to require repeated epidural injections. Dr. Atkinson saw the plaintiff on 18 January 1989. His report is Exhibit 19. Dr. Atkinson was of the view that he had 20 30 probably suffered a low lumbar disc injury at the L4/5 level 30 in the course of his work and that there was a longstanding pre-existing spinal canal stenosis which contributed to the 40 so onset of his clinical state. was capable of light work. Dr. Atkinson considered that he Dr. Martin saw the plaintiff on 28 February 1989. He was of the view that the plaintiff was substantially exaggerating, that he exhibited a very good range of lumbar movement, that there was no objective evidence of nerve root compression, and that there was evidence of pre-existing degenerative change. He considered that the plaintiff had become dependent upon medical and nursing treatment. He thought him capable of light work. I should also refer to the evidence of Dr. Strauss who saw the plaintiff in 1985. He found at that stage some tenderness Govt. Printer. Qld. 10 40 50 60 -- 10 of 16 -- over the L4/5 and L5/Sl facet joints (see Exhibit 20). The plaintiff has also been seen by ~ome psychiatrists; Drs. Rice, Nothling and Boulnois. Dr. Rice was of the view that the plaintiff was suffering from a psychiatric illness which he described as a somatic form 1o pain disorder. This seems to be similar in some respects to 1o 20 30 40 50 60 the functional overlays with which we are more familiar. The doctor described it as follows: 11 This psychiatric disorder is a conversion phenomenon where psychological issues are converted to physical symptomatology, and in this case it has occurred at a time of a compensable injury. This is against the backgrounds of a personality structure with marked 20 compulsive dependence and narcissistic traits and in the presence of a man who has alcohol addiction problems." Dr. Boulnois was not persuaded to this view, and I think it is fair to say that neither was Dr. Nothling. In the end, I am not persuaded that there is any psychiatric illness, although I accept that the plaintiff was probably of a personality likely to be adversely affected by a significant physical injury, and as I have said at some length, I am also satisfied that he has a serious tendency to exaggerate. The plaintiff, at the moment fills in a very useful, to him, and I am sure quite enjoyable day. He has regular attendances at Alcoholics Anonymous meetings, and as I have pointed out, he has held positions of responsibility in that organisation. The role of the meetings is apparently to help members to deal with their personal problems, presumably to assist them to avoid resorting to drink as an anodyne for those problems. He also goes regularly to the beach. l, He lives at the Gold Coast. He is able ip swim in still water but not to surf, and he does so. He has spent, as I find, substantial amounts of time assisting his friend, Mr. Cooper, with his Govt. Printer, Old. 11 30 40 50 60 -- 11 of 16 -- horses and he enjoys this. I am sure that to some extent his incapacity has interfered in his married life, but as I say, I am far from persuaded that his married life was without its problems prior to the accident. I am satisfied that he would be able to cope with light 1o work and that in not seeking employment before now, he has not 1 o acted reasonably. I think that he should have sought to find some employment before this time. I find, too, that his medical expenses to date are not entirely referable to the accident. I find that to some extent, as Dr. Martin suggests, 20 30 40 50 60 his reliance upon medical treatment is attributable in some 20 degree to his tendency to exaggerate his problems. Nonetheless, I cannot escape the fact that prior to the accident in February 1985 he was working and substantially symptom-free, and he is now unable to do heavy work, and he has also been deprived of much of the amenity of life. Although I take a guarded view of his reliability in his evidence as to his condition, I do not mean to say that I think that he is an out-and-out liar. He has suffered significantly as a result of the accident although the exact sequence of the circumstances which have caused his incapacity is not entirely clear. I think that he will continue to be significantly incapacitated in the future, al though his capacity to earn income in light work will also continue. Of course, in the current economic climate it is not easy for an incapacitated man to get any job, including a job which can be described as light. Although a light job may be within his capacity, it is perhaps not always easy to convince a potential employer that he should retain an incapacitated man rather than a perfectly fit one. For this reason, his lost capacity to earn income may Govt. Printer. Old. 12 30 50 60 -- 12 of 16 -- be substantial, notwithstanding the fact that, as has been pointed out, a person doing light work may well be paid almost as much as a person doing heavy work. All in all, I will assess his award for pain suffering and loss of amenity in the amount of $40,000, but I have 10 included in this sum an amount to represent future medication and hospital care. The extent to which he requires this treatment will very much depend on him. If he continues in the way he has proceeded in the past, he may well eat up a large part of it, but if he manages to distinguish between true pain 10 20 and his own exaggeration of it, then I think that he will not 20 30 40 50 60 require substantial treatment for the future at all. Of that sum, I apportion $17,500 to past loss and allow interest at 6 per cent per annum for 4.3 years on that sum, that is from the date of issue of the writ. That shows $4,515. As to past economic loss, a schedule which has been 30 prepared shows a total sum of $78,384.52 including a Fox v. Wood component of $3,647.85. As I have said, I do not accept that he has been reasonable in not seeking work to date. I think that had he sought work, he might well have found it. To take account of the fact that he should have found work, I find it necessary to reduce the award, and I will fix the award for past economic loss in the sum of $60,000. Although it is difficult to fix a time at which he should have started work again or started to seek work, I think that probably from 1987 or 1988 on, he was probably fit for light work, subject only to the consequences of Dr. Yaksich' s operation in September 1987. It follows from what I have said that much of what he said to the doctors, including what he may have said to Dr. Yaksich in November of 1987, he was Govt. Printer, Old. 13 40 50 60 -- 13 of 16 -- exaggerating. I think that at the very latest, by some time in 1988, he was fit to return to reasonably light work, making allowance for recovery from the operation. He appears to have received approximately $57,000 in Workers' Compensation benefits and Social Security. I will 10 allow him interest at 6 per cent per annum on $3,000 for 4.3 years showing $774. As to special damages, the claim made is for the sum of $78,893.41. It follows from what I have said that much of his medical expense is attributable to his tendency to exaggerate. 10 20 In those circumstances, I consider that sum, too, must be 20 substantially reduced to reflect this tendency. I concede that it is very difficult to know how one should approach that problem, but doing the best I can for the plaintiff, I will allow him $60,000 for past special damages. It would seem that 30 he has been compensated for virtually all of that by the 30 payments already made on his behalf, so I will not allow interest on any·part of that. 40 50 As to future economic loss, I must take into account and give weight to his pre-existing condition which, if one accepts Dr. Downes' evidence at face value, put him quite substantially at risk, although Dr. Downes, of course, subsequently resiled I from that position. I must also take into account his icontinuing capacity to earn income in light work. I think that he would have continued in employment until some time between ages 60 and 65, and I will allow him 12 years from the present time. In so far as concerns the appropriate figure, the best I can do is to fix his lost capacity at half of his previous capacity. His present weekly net wage in his previous employment would be $281.90. I will allow him $140 per week 40 50 --~6~0- ---------------------------------~ 60 Govt. Printer, Qld. 14 -- 14 of 16 -- 10 20 30 40 so for 12 years at 5 per cent showing $65,890. The award will therefore be as follows: Pain suffering and loss of amenity, (including an amount for future medical and hospital care) Interest on $17,500 at 6 per cent per annum for 4.3 years Past economic loss Interest on $3,000 at 6 per cent per annum for 4.3 years Special damages Future economic loss Total $ 40,000 4,515 60,000 774 60,000 65,890 $231,179 I fix the amount repayable to the Workers' Compensation Board in the sum of $50,315.55. I reduce the amount of the judgment accordingly to $180,863.45. There will be judgment for the plaintiff against the defendant in that sum. Application is made for costs of the action on the Supreme Court Scale, and it is submitted that in cases of this kind there are difficulties inherent in a plaintiff's ascertaining in which jurisdiction to bring the case. I must accept that as being so, I think. However, the only sanction that we can impose to ensure that cases are commenced in the correct jurisdiction is the sanction of awarding costs to a successful plaintiff limited to the District Court Scale. I can see that there is some room for subjective unfairness in these marginal areas, but on the other hand, one must keep in mind that the defendant's rights, too, must be guarded, and it is equally unfair to a defendant to compel him to litigate at his own cost in the Supreme Court if it could have been done in the District . 60 :r---~--+-·------ ··--···----------------------------------___, Govt. Printer, Old. 15 10 20 30 40 50 60 -- 15 of 16 -- ( Court. Particularly is this so when he also must pay the plaintiff's costs. Al though in marginal cases there may be a degree of unfairness one way or the other, I think that policy considerations probably dictate that where a plaintiff fails 10 to reach the jurisdictional limit, he should in general recover 10 his costs on the District Court Scale. 20 30 40 50 60 I will therefore order that the defendant pay the plaintiff's costs of the action up until the date upon which it was remitted to the District Court on the Supreme Court Scale and thereafter on the appropriate District Court Scale. Govt. Printer, Qld. 16 20 30 40 50 60 -- 16 of 16 --