Beissen v Ghee & Anor [1990] QSC 24

, I 10 20 30 40 50 ->,.~ M :I-,," ,::~,:, ·):tt~i\\~~,. ( I11uea aubj eet to correction upon reviaion .) IN THE SUPREME COURT OP QUEENSLAND CIVIL JURISDICTION No. 212 of 12e1 BEFORE MR. JUSTICE KNEIPP TOWNSVILLE, 9 FEBRUARY 1990 (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: PETER BEINSSEN Plaintiff -and- AGNES MARGARET GHEE Defendant -and- SUNCORP INSURANCE Defendant AND FINANCE by election JUDGMENT HIS HONOUR: In this matter, liability has been admitted and I have to assess damages. The plaintiff was born on 14 October 1939 and he was injured on 4 July 1985. During the course of his working life, he engaged in a variety of occupations which are referred to in his statement and which I need not canvass. By the time of his accident, he was a non-tenured lecturer employed by the James Cook University of North Queensland. He had, in 1981, achieved a degree of Master of Education (Special Education) from that University. He then obtained a lectureship with limited tenure from the Townsville College of Advanced Education. That College and the University were amalgamated at the beginning of 1982, and he continued in the same position with the University until July 1986. I am 10 20 30 40 50 60 60 1 -- 1 of 7 -- I . , 10 20 aati1tied that, had it not:''baen for the inju'riea which I am satisfied he auatained on, July 1985 and their consequences, the plaintiff would have continued in employment as a lecturer, either at James Cook University or at some other tertiary institution; that he would probably have attained tenured status in 1986; and that at about the present he would probably have become a senior lecturer. The plaintiff had suffered from a variety of spinal problems, particularly involving the neck and lower back. Over the years, before 1985 in particular, he had suffered some problems with his neck. It is difficult on the evidence to establish the extent and frequency of the problems. I am satisfied that the plaintiff, having suffered now for a considerable number of years from spinal problems, has genuine difficulty in recalling what was the 30 significance of the problems from time to time. However, it has to be said that prior to the accident of 4 July 1985 the plaintiff's spinal problems were not insignificant. I am 40 50 satisfied from the medical evidence, particularly that of Dr. Douglas, Dr. Watson and Dr. Richards, that the plaintiff suffered a significant independent injury to the cervical spine as a result of the accident on 4 July 1985 and that he probably suffered some further injury to his lower back, either as a direct result the accident or as resu1 hospital treatment. He suffers now from persistent pain in the neck and from headaches and he has also problems with his lower back. As a consequence of those organic problems, he now has significant functional problems, and as a consequence of both types of problems he has not worked since 1986. The chief causes of this are functional, and I 10 20 30 40 50 60 60 ~BaJmcl~· Ql<I. 2 -- 2 of 7 -- 10 20 30 40 50 60 ,. . \ ' of Dr. Wilfred kiehard.a. which I accept, contained in hia second report dated 12 September 1989. These are as follows: "Beinssen's physical lifestyle and certain personality characteristics have made him particularly vulnerable to the organically determined pain, spinal disability, and restricted lifestyle resulting from the accidental aggravation of pre-existing spinal pathology. Pain is in fact the villain, sapping his energy, concentration, and everyday memory powers, and rendering him more hypochondriacal and pessimistic, less tolerant and more aggressive, and generally less able to cope with domestic or work stress. Organically determined pain was thus the major factor leading to his teaching inefficiency and his decision not to reapply for further university duties. The permanence of spinal pathology and resultant pain augur poorly for Beinssen's work future. It is difficult to see him utilising his professional skills in any sort of full time employment. Some sort of part time coaching or advisory service in his field of expertise would be the best that one might realistically expect." That statement accords with the opinions of Mr. Walkley, a psychologist, which I also accept. The plaintiff's own description of his problems is contained in the following passage from his statement: "Since the motor vehicle accident the subject of these proceedings, I have constantly been in pain. I have headache, neck ache, and lower back pain to some degree virtually all the time. The intensity of the headaches seems to be related to the amount of pain in the neck area and are not alleviated by strong painkillers. Much of the time my neck and head pain is such that I can't concentrate properly or for a reasonable period of t.ime and must change posture or apply traction to get relief. I also have pain and numbness down my arms particularly when they are held in front of me as in the driving and typing positions or hanging unsupported as in the normal walking position. At irregular intervals I get shooting pains, mainly to the legs. They are over in an instant but are very intense. I also get a lot of cramps, mainly at night. Absentmindedness and general disorganisation continue to be a problem. I frequently forget to 3 10 20 30 40 50 60 -- 3 of 7 -- 10 20 \ do t.JU.ngs or forget that I have done th$m. When I do aomething a second time I often don't even recognise that I have done that thing before (e.g. answering a letter, clearing the mailbox, changing torch batteries, buying a certain item, constructing a paragraph). I have difficulty remembering what I have read and often read something again without recognising that I have read it before. My whole thinking has become slowand laborious where I used to be mentally agile with a quick and accurate memory. I must change my posture frequently from sitting to kneeling or lying in order to relieve pain. I also have to be very careful how I move so as to avoid any twisting movements that aggravate the pain or any fast movements that are likely to cause dizziness. I have poor balance which results in clumsiness, something I never was before the accident. I sleep badly and often get up during the night, yet I am drowsy at inappropriate times during the day. This drowsiness seems often to be associated with times when there is limited mental orphysical demand, but not always." The plaintiff after the accident continued in his employment until the end of the 1985 academic year. He was 10 20 30 30 40 50 then placed on workers' compensation for some time. He worked again from 1 February 1986 to 31 July 1986. He sets out in his statement the problems which he had during that period. "Because of my health problems I negotiated a much reduced workload for this period. Notwithstanding this, I found.that my performance was not up tothe standards I expected of myself and which I had sought to achieve prior to the accident with, I believe some success. Lecture preparation was arduous and I had to develop different strategies to counteract my memory problems. The difficulties experiencedsapped my energies and my confidence. Before the accident, from time to time, I had been able toorganise my commitments to enable me to work at home in order to change my posture. Some needsbecame unpredictable and more frequent after the accident, so that it was not possible to planahead so that I was available to students atparticular times. This applied to other commitments, including family matters. Where I previously had a policy to be available to 40 50 _ _,60~-+----------------------------------1 60 4 -- 4 of 7 -- 10 20 30 40 50 \ students whenever poasible, I waa either forced by the pain to go home or otherwise to lock my office door and lie on the floor for relief. When marking assignments, mainly related to theexternal studies part of my workloadt I had to develop tedious and time-consuming strategies to offset the difficulties I was experiencing with headaches, neck pain and drowsiness as well as with varying difficulties I was having with my eyesight. I was aware in the second semester of 1985 that I was not doing my job at all well. When I returned to my position in 1986, it was on the basis of having negotiated a much reduced workload. I found it difficult to do justice even to this reduced workload and I left to go onto workers'compensation from the 31st of July 1986 onwards." The plaintiff has not worked since 31 July 1986. He was receiving workers' compensation for some considerable period, but this has now been terminated. I am satisfied that he is not capable of engaging in any occupation in a tertiary institution suitable to his talents. The question was canvassed whether he might be able to perform some sort of part-time work, but given his age and his qualifications, it is difficult to envisage what work he might obtain. It is significant that although this question was canvassed both in evidence by some of the medical witnesses and in argument, no specific proposition was advanced as to what sort of work he might obtain. I think that his prospects of earning any worthwhile amount in the future are negligible. One must turn next to what have been his future having regard to his pre-accident spinal problems. The medical evidence - and this is no criticism of the gentlemen who were questioned about the matter - does not assist me very much. All that I have are opinions that obviously there was something of a cloud over his future and one can only speculate as to what it might have been. The best lO 20 30 40 50 60 60 5 -- 5 of 7 -- 10 20 30 .40 so . \ conclusion I can reach on the whole of the material ia that having regard to the fact that he had reached the age of ,s years and that he was still then very active both intellectually and physically, he should be assumed, notwithstanding his problems, to have had good prospects of at least engaging in his occupation until the normal retiring age, although with increasing physical disabilities. To turn to assessments under the various heads, with some discount for contingencies, I assess the loss to the present at the sum of $90,000. So far as the future is concerned, I make an assessment based on the present net earnings of a lecturer, taking into account prospects that the plaintiff might have become a senior lecturer, and, on the other hand, the normal vicissitudes of life, with an additional discount related to the plaintiff's pre-accident spinal problems. His normal retiring age would be 65 years. I take 10 years as the appropriate number of years, which brings up a figure of $225,000. So far as general damages are concerned, I allow the sum of $50,000. The plaintiff is entitled to recover medical expenses which he paid himself amounting to $119. He is also entitled to recover the amount of medical expenses paid by the Workers' Compensation Bosxd, namely $458. 83, the amount of travelling paid by the board, amounting to $706.87, and the amount of tax paid on periodic compensation, being $9,037.29. The total of those four items I calculate to be $10,321.99. There is a claim for past and future costs of medication. The evidence is fairly vague in relation to this and I adopt what I regard as conservative figures. For the costs to the 10 20 30 40 50 60 60 6 -- 6 of 7 -- , pre1ent I allow $1,000 and for the future $2\SOO - a total of $3,500. so far as interest is concerned, on the sum. of $50,000, being part of the sum of $90,000, I allow $27,SOO. and on $15,000, being part of the $50,000, I allow $8,250, the total of the interest being $35,750. The various items 10 then are loss of wages to the present $90,000; future loss of wages $225,000, general damages $50,000, special damages $10,321.99, past and future costs of medication $3,500; and interest $35,750. I calculate the total to be $414,571.99. I give judgment for the plaintiff against the defendant '.o by election for $414,571.99 with costs to be taxed. ,~ 30 40 50 10 20 30 40 50 ~6~0--t--------------------------------' 60 7 -- 7 of 7 --