Brinkley v P and O Trans Australia (WA) Pty Ltd
[2010] WADC 106
•30 JULY 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BRINKLEY -v- P & O TRANS AUSTRALIA (WA) PTY LTD & ANOR [2010] WADC 106
CORAM: DERRICK DCJ
HEARD: 14-21 JUNE 2010
DELIVERED : 30 JULY 2010
FILE NO/S: CIV 594 of 2008
BETWEEN: SIMON BRINKLEY
Plaintiff
AND
P & O TRANS AUSTRALIA (WA) PTY LTD (ACN 087 193 342)
First DefendantWA FORK TRUCK DISTRIBUTORS PTY LTD (ACN 009 099 861)
Second Defendant
Catchwords:
Damages - Work accident - Liability admitted - Assessment of damages - Loss of earning capacity - Retained capacity - Loss of superannuation - Medical expenses - Future prosthetic expenses - Future equipment expenses - Future services expenses - Turns on own facts
Application of the rule in Jones v Dunkel (1959) 101 CLR 298
Legislation:
Civil Liability Act 2002
Result:
Total award - $1,537,435
Representation:
Counsel:
Plaintiff: Mr M D Cuerden
First Defendant : Mr J R Criddle
Second Defendant : Mr J R Criddle
Solicitors:
Plaintiff: Slater & Gordon
First Defendant : DLA Phillips Fox
Second Defendant : DLA Phillips Fox
Case(s) referred to in judgment(s):
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Batchelor v Burke (1981) 35 ALR 15
Bowen v Tutte (1990) Aust Torts Reports 81‑043
Brett v Rees [2008] WADC 9
Derham v Insurance Commission of Western Australia [2010] WADC 12
Fox v Wood (1981) 148 CLR 438
Golden Eagles International Trading Pty Ltd & Anor v Zhang & Anor [2007] HCA 15
Graham v Baker (1961) 106 CLR 340
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Jones v Dunkel (1959) 101 CLR 298
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Martinez v OCS Services Pty Ltd [2009] WADC 42
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Pollock v Wellington (1996) 15 WAR 1
Raso v Raso [2007] WADC 53
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121
Shell Refining (Australia) Pty Ltd v CFMEU [2008] AIRC 510
Thomas v O'Shea (1989) Aust Tort Reports 80‑251
Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167
West v Government Insurance Office (NSW) (1981) 148 CLR 62
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
DERRICK DCJ: The plaintiff claims damages for injuries he suffered as a result of a work accident which occurred on 6 April 2006 ("the accident"). The defendants admit liability. The case comes before me for an assessment of damages.
The plaintiff's background and work history
The plaintiff was born on Kangaroo Island in South Australia on 5 May 1961. He is 49 years of age.
The plaintiff left school at the age of 13.
After the plaintiff left school he worked on his father's farm as a farmhand. Having spent some time as a farmhand he commenced working as a fisherman. He worked as a prawn, cray, and tuna fisherman for a number of years in a variety of locations.
In 1991 the plaintiff obtained an unlimited forklift driver ticket through his employment with Brambles.
For the next 10 or so years the plaintiff worked as a forklift driver or as a brick paver. He was in constant employment during this time. He started working as a brick paver on an ad hoc basis from around 1992.
In around 2000 the plaintiff started working for a company called Western Milling. He worked for Western Milling as a flour tanker driver.
After leaving Western Milling the plaintiff worked for a company called Resource Co. He worked for Resource Co for about two years as a truck driver, gardener and heavy machine operator. He worked the 6 pm to 8 am shift.
In September 2003 the plaintiff left Resource Co and commenced working for a demolition company. He left the demolition company in February 2004.
In March 2004 the plaintiff commenced work as a truck driver for a business called Dennis Transport. He worked overtime as required.
In June 2004 the plaintiff's employment with Dennis Transport was terminated as a result of the plaintiff returning a positive urine test for cannabis. The test was administered by or on behalf of Dennis Transport.
After losing his job with Dennis Transport, the plaintiff obtained employment as a forklift driver with a company called Independent Waste Services. He remained working for Independent Waste Services up until December 2005.
In December 2005 the plaintiff, who was at the time living in Adelaide with his de facto wife, Ms Jackie Oates, moved to Perth. The plaintiff and Ms Oates moved to Perth because Ms Oates had obtained a job in Perth and also because the plaintiff had heard that higher wages were paid in Perth than in Adelaide.
Upon moving to Perth the plaintiff obtained employment with Fusion Recruitment Pty Ltd ("Fusion"). Fusion was a labour hire company.
In January 2006 Fusion assigned the plaintiff to work at Toll West ("Toll") on a casual basis as a forklift operator and loader. The plaintiff commenced working at Toll in the first week of January 2006. He worked the regular dayshift.
After the plaintiff had been working at Toll for approximately three weeks Fusion allocated him to work at the first defendant's premises in Fremantle. He commenced to work at the first defendant's premises some time in the last week of January or in the first week of February but in any event prior to 2 February 2006.
The plaintiff was employed to work at the first defendant's premises on a casual basis as a heavy forklift driver. He worked from Monday to Friday on the 12 pm to 11.30 pm shift, commonly referred to as the afternoon shift. The hours that the plaintiff worked after 6 pm were overtime. The first two hours of overtime were paid at time and a half and the last three hours of overtime were paid at double time.
During his evidence the plaintiff testified that he "loved" his job at the first defendant's premises. He said that it was the best job that he had ever had. He said he liked working the afternoon shift and had no intention of returning to Adelaide. He said that he wanted to stay in Perth permanently.
The accident
On 6 April 2006 the plaintiff was at work at the first defendant's premises. He was driving a large 42 tonne forklift.
At about 8.30 pm the plaintiff used the forklift to remove a container from a trailer. His instructions were to place the container on top of another container.
As the plaintiff was about to unload the container that was on his forklift he heard a noise. He recognised the noise as the sound of an hydraulic line breaking. The forklift stalled. The plaintiff looked around him from his cabin to see if there was any oil or other fluid on the ground. He could not see any oil or fluid on the ground. He therefore decided to re‑start the forklift with a view to putting the container down. One of the golden rules of forklift operating is never to leave a load in the air.
As the plaintiff went to re‑start the forklift's engine hydraulic fluid which had sprayed from the broken hydraulic line onto the hot engine of the forklift caught fire. The forklift then effectively exploded into flames. The plaintiff's cabin was filled with flames. The plaintiff undid his seatbelt and tried to find somewhere where he could obtain a breath. He could not find a place to breathe. He began to panic. He could not find the cabin's door handle so he used his right hip and shoulder to smash the cabin door open. He was trying to cover his face in order to prevent it from being burnt while he was doing this.
By the time the plaintiff had opened the cabin door the ground around the forklift was on fire. The plaintiff therefore jumped outwards from the forklift cabin in an attempt to clear the flames. The forklift cabin was approximately two metres above the ground. As the plaintiff jumped he endeavoured to cover his face.
When the plaintiff hit the ground he landed predominantly on his right hand side. He felt as though his right leg "exploded". He found himself lying in the fire. He tried to get up and run away but every time he put his leg onto the ground he kept falling back towards the forklift.
The plaintiff ended up somewhere underneath the container which was still loaded on the raised forklift. He was grabbed by a fellow worker and dragged away from the forklift. A short time later an ambulance arrived and took the plaintiff to hospital.
The plaintiff's injuries and subsequent medical treatment
The plaintiff was taken to Fremantle Hospital where he was stabilised. He was transferred to the Intensive Care Unit ("the ICU") at Royal Perth Hospital ("RPH"). He remained in the ICU at RPH until 23 April 2006.
As a result of the accident the plaintiff sustained burns to 30‑40 per cent of his body. The burns were to the back and palms of both hands, both legs from the upper thighs down to the feet, his lower back and part of his face. He also sustained a compound comminuted fracture to his right ankle and a fracture to his right knee.
On 7 April 2006 the plaintiff underwent harvesting of skin from his left flank for use in later skin grafts.
On 13 April 2006 the plaintiff underwent debridement of burns to both hands and both legs.
On 20 April 2006 the plaintiff underwent a procedure which involved the application of an external fixator to his right tibia.
On 23 April 2006 the plaintiff was transferred from the ICU to RPH's Burns Unit. He remained in the Burns Unit until his discharge from hospital on 18 May 2006. During his time in the Burns Unit the plaintiff underwent split skin grafting to the areas of his burns save for his face.
On 5 May 2006 the plaintiff underwent stabilisation surgery to his right ankle. The surgery involved open reduction and internal fixation by the insertion of a plate and screws.
When the plaintiff was discharged from hospital on 18 May 2006 he was provided with a wheelchair to help him move around. He was given skin‑tight stockings to wear which covered the burns on his legs and the base of his back. He was also provided with gloves to wear so as to cover the burns on his hands.
On 6 June 2007 the plaintiff underwent surgery to remove the plate and screws from his ankle.
On 8 August 2007 the plaintiff had cortisone injections to his right ankle.
On 21 August 2007 the plaintiff underwent surgical release of contractures and re-alignment of his left little finger. The surgery was carried out by a plastic and reconstructive surgeon. The surgery involved a skin graft. Skin for the skin graft was taken from his groin area.
On 24 October 2007 the plaintiff underwent fusion (arthrodesis) of his right ankle. This involved taking a bone graft from his right hip.
In early 2009 the plaintiff had further cortisone injections to his right ankle.
On 15 December 2009 the plaintiff underwent a right below knee amputation. The surgery was performed at the Flinders Medical Centre in South Australia. The plaintiff was in hospital for five days as a result of this procedure.
Plaintiff's evidence as to condition following accident and ongoing disabilities
The plaintiff's evidence as to his condition immediately after and since the time of the accident was to the following effect.
When he was discharged from RPH he had to change the skin‑tight stockings every couple of days. This caused him severe pain because when the stockings were pulled off they would catch little pieces of his skin.
Immediately after the accident while he was in hospital he suffered from a very sore right shoulder. He had never had problems in his shoulder before. He has continued to suffer from soreness in his right shoulder since the accident. He has trouble elevating his right arm above shoulder height. If he attempts to do so he suffers a pinching type of pain.
He does not want to have cortisone injections in his right shoulder. When he had cortisone injections in his right ankle they made his ankle feel worse. He does not want this to occur with his shoulder.
Since the accident he has suffered from neck pain. His neck is very stiff. If he moves or twists his neck it gets sore. The more he moves or twists his neck the sorer it gets.
After the accident he suffered tightness and soreness in his lower back and thoracic region. Since the accident his lower back and thoracic pain has remained pretty much the same. If he stands for any length of time his lower back aches. Walking makes his back ache. Twisting causes soreness in his thoracic region between his shoulder blades.
Before leaving Perth he underwent physiotherapy on at least a weekly basis. The physiotherapist worked on his neck, back and lower back.
He has continued with his physiotherapy since returning to Adelaide. He undergoes physiotherapy on his neck and back about once every three weeks.
After seeing the physiotherapist he experiences some relief from his neck stiffness and thoracic and lower back pain. However, the stiffness and soreness gradually returns over a period of time until he returns to his physiotherapist for further treatment.
As a result of his severe burns the skin on his left hand contracted with the result that his left little finger was pulled outwards. He underwent the surgery in August 2007 in an attempt to resolve this problem. His finger still points outwards. His pants and belt rub on the area of his groin from where the skin graft was taken with the result that the area becomes red raw.
After he was discharged from RPH the condition of his ankle prevented him from walking. His ankle was sore all the time. He spent most of his time in a wheelchair.
After the surgery in June 2007 his ankle felt better for approximately six weeks. However after this period it began to deteriorate. His big toe began to cock up into the air which affected his balance. He was unable to put any weight on his ankle. It hurt all the time.
In an attempt to assist with his ankle difficulties he was given a cam boot. He was given the boot a short time after the June 2007 surgery. With the use of the cam boot in combination with crutches he was able to walk for approximately 50 metres before his pain became too severe for him to proceed any further.
After he underwent the arthrodesis surgery in October 2007 his ankle improved for a period of time. He was able to walk on it for a little while. However, over time his ankle again deteriorated with the result that he could not walk any distance without wearing his cam boot and using crutches. The pain in his ankle once again became severe, to a level of nine out of 10, and from that point on did not improve.
In March 2008 his relationship with Ms Oates came to an end. In early April 2008 he returned to Adelaide to live. He returned to Adelaide because he had little family or friend support in Perth.
He had the cortisone injections to his ankle in early 2009 in an attempt to secure some relief from his pain. However, the injections provided him with little relief.
For some period prior to December 2009 the plaintiff's ankle pain was so severe that he could not walk on it. Every time he tried to walk on it he felt as though it was going to collapse. During this time he always used the cam boot and still on occasion used crutches.
During the period of six months or so prior to December 2009 he was taking a number of medications in an attempt to gain some relief from his pain. The medication included Nausban patches, Lyrica and Tramadol. He had been taking Tramadol ever since he had left hospital in Western Australia. He was also taking Endep to help him sleep.
Over a period of time prior to December 2009 he consulted a number of medical specialists in relation to his ankle and the possibility of undergoing a right leg below knee amputation. Ultimately one of the specialists recommended that the best treatment for him was to undergo the amputation.
Following the amputation the plaintiff was confined to a wheelchair for a few weeks. After this period he began to move around on crutches.
Towards the end of January or early February 2010 he was fitted with his first right lower limb interim prosthesis. He received his prosthesis from the Repatriation Hospital in Adelaide.
He now attends Orthotics Prosthetics South Australia ("OPSA") in relation to his prosthesis. He has had two further interim prostheses fitted since January 2010. He is currently on his third prosthesis. He is due to have his final prosthesis fitted in the relatively near future. He is reasonably happy with the progress that he has made with his prostheses. He is hopeful about the progress that he will be able to make in the future with his final prosthesis.
He now tries not to take any medication. If his pain becomes too much for him he takes Tramadol or Panadeine.
After the accident he saw a psychologist in Perth approximately once every two months over a period of about 12 months. Prior to the accident he had never suffered from any psychiatric or psychological condition.
After returning to Adelaide he continued to see a psychologist approximately once a month. In more recent times he has seen a psychologist approximately once every five or six weeks. He continues to see a psychologist because the psychologist helps him deal with what has happened to him. He intends to continue to have psychological counselling. He does not know if he will need to seek psychiatric advice or treatment in the future.
After the accident he felt useless. The accident played on his mind. He suffered from nightmares which interfered with his sleep. The nightmares were of him being on fire. He continues to have nightmares along these lines. He continues to have a lot of trouble coping with things. He re‑lives the accident every day. He does not have a lot to do with people.
He avoids coming into contact with anything involving fire, for example barbeques and stoves. Although he is a smoker, he uses a flameless lighter.
His dominant hand is his left hand. He continues to have trouble with his left little finger. Given that it is angled outwards it gets hooked on lots of things such as his pockets. The skin on his left little finger is very thin. He is considering having his left little finger amputated and having a cosmetic prosthetic finger made for him. He is not interested in having a functional prosthetic finger made for him. He does not know for certain if he will proceed with obtaining a cosmetic prosthesis.
He suffers from diminished feeling in his hands and remaining leg. If he bumps them his skin opens easily. The damage to his skin can then take up to two weeks to heal depending on how bad the damage is.
He still has trouble with his stump swelling up. This makes it difficult for him to put his prosthesis on.
He can walk approximately 30 or 40 metres without the use of a walking stick. If he has to walk any greater distance he uses a walking stick to assist him.
He tries to wear his prosthesis most of the day. He wears it for up to 14 hours a day and removes it when he goes to sleep. The top of his prosthesis rubs against his stump which causes him some discomfort.
He experiences some small amount of phantom pain as a result of his missing right leg. The pain comes and goes depending on how much he walks. However, the phantom pain is not of significance in the "big picture".
He is unable to spend any significant amount of time in the sun. If he spends more than a few minutes in direct sunlight he burns.
He has difficulty regulating his body temperature.
Prior to the accident he smoked cigarettes. He had done so virtually full‑time from the age of 14 years. During those years he smoked up to between 30 and 40 cigarettes a day. His cigarette intake got worse closer in time to the accident.
Following his hospitalisation as a result of the accident he gave up smoking. However, he started smoking again in about November 2009 as a result of stress. Up until May 2010 he was smoking 30 to 40 cigarettes a day but he has now cut back to approximately 20 cigarettes a day. He wants to stop smoking.
He is not currently taking any anti‑depressant medication. He does not intend to take any in the future.
He is able to sit down for periods of time without any significant discomfort. However, he has to get up every now and then to stretch.
Plaintiff's evidence as to his current activity levels
The plaintiff's evidence as to his current activity levels was to the following effect.
Prior to the accident he was a keen fisherman, footballer and golfer. He also played eight ball. He is no longer able to fish, play football or play golf. He still plays a little bit of eight ball. He spends his days watching television.
Prior to the accident he had an interest in motor vehicles. He still maintains that interest. He is able to drive an automatic vehicle which has been modified so as to have a left foot pedal fitted for the accelerator.
He is unable to undertake any significant housework. The twisting makes "everything sore" and he does not yet have good balance. He is able to wash clothes as long as the washing machine is situated in a low position. He is unable to hang washing up because his shoulder prevents him from reaching up to the washing line. He is unable to use cleaning products because they burn his hands.
He is able to go on small scale shopping trips. He cannot shop for large numbers of items because he finds it too difficult.
Prior to the accident he enjoyed gardening. He is now unable to do any gardening because it is too difficult for him to get to ground level.
When he was discharged from hospital he returned to live with Ms Oates. For approximately 6 months she did all of his cooking, cleaning, showering and washing. She had to do everything for him. After the six month period Ms Oates spent an average of about one hour a day cooking, cleaning and washing for him.
Plaintiff's previous neck and back problems
During his evidence-in-chief the plaintiff said that he had had some problems with his neck prior to the accident but not to the extent that he had experienced since the accident. He said that his neck would sometimes get sore as a result of him lifting heavy things and that he would then have it adjusted by a chiropractor.
During his evidence-in-chief the plaintiff said that when he was working at Resource Co he did suffer a back injury. He said that he had been thrown around the back of a truck by the truck's tailgate and that he had landed on his back. He said that as a result of this incident he injured his back and neck "a little bit", that he saw a medical practitioner, that he was given three or four chiropractic sessions and that the chiropractic sessions resolved his injury. He said that he only took one day off work as a result of the incident. He said that he did not experience any further back pain after the chiropractic sessions.
During cross examination the plaintiff said that during his years working as a brick paver he had undergone chiropractic treatment from time to time for neck and back pain, but mainly for back pain. He said that the last time he had undergone such treatment was a long time ago and not within the last five years. He said that the chiropractor would manipulate his neck and back. He said that the chiropractor manipulated his back because every now and then it would "click out". The chiropractor would "click" it back in. He said that he would see the chiropractor every couple of months and that he "did not have a clue" of the period of time over which he saw the chiropractor. He said that when he was lifting bricks and twisting he would sometimes hurt himself, that he would go to the chiropractor and "get it fixed", and that then he was fine. He described his chiropractic treatment as "preventative". He conceded, in light of this evidence that he did have a little back pain over an extended period prior to the accident.
In re‑examination the plaintiff said that the chiropractic treatment that he had undergone prior to the accident was for his neck, hips and lower back.
Plaintiff's history of cannabis use
During his evidence‑in‑chief the plaintiff did not make any reference to having been dismissed from Dennis Transport as a result of returning a positive urine test for cannabis use. This evidence was given as a result of questions asked in cross‑examination. Indeed, during examination‑in‑chief the plaintiff was not asked any questions about his past cannabis use. The topic was, however, canvassed in some detail during cross‑examination. The plaintiff's evidence as to his past and present cannabis use given during cross‑examination was as follows.
He commenced using cannabis at 14 years of age. He has regularly used cannabis since that time. The amount that he has smoked each day over the years depends on what he is doing on any particular day. On some days he has smoked little or no cannabis while on other days he may have smoked 10 cones of cannabis. It is correct to say that since the age of 14 he has smoked on average four to six cones of cannabis per day.
When he was working for Resource Co he consumed only small amounts of cannabis. He would smoke a couple of cones a day.
At the time that he was working for Dennis Transport he would generally smoke about eight or nine cones of cannabis a night. He would smoke his first cone when he got home and his last cone before he went to bed. He never smoked during the day save for on weekends. He never smoked at work.
He found out that he was going to be urine tested by Dennis Transport a few days before taking the test. He stopped smoking cannabis on the day that he found out that he was to be tested.
After he was dismissed from Dennis Transport he reduced his cannabis use for a period of time to three or four cones a day.
When he moved to Western Australia he continued to smoke cannabis up until the date of the accident. However, at the time of his arrival in Western Australia he had reduced his weekday consumption to on average not less than two cones a day because he was planning to give up smoking cannabis. On the weekends he would smoke about 10 cones a day.
He was not concerned about random drug testing while he was employed by Fusion. Fusion had not said anything to him about a drug policy. He intended to continue smoking cannabis until such time as he heard about a drug policy being in existence.
While he was working at the first defendant's premises he would smoke cannabis after getting home from work. He would smoke a number of cones of cannabis between getting home and going to bed. The number of cones he smoked depended on how tired he was and when he went to bed. He would never smoke any cannabis in the morning before going to work at the first defendant's premises. On the weekends he would smoke up to 10 cones a day, sometimes more.
Since returning to Adelaide he has continued to smoke cannabis. He currently smokes cannabis "every now and then." However, as at the date of giving his evidence, namely 15 June 2010, he had not smoked any cannabis since 7 June 2010, this being the date on which he arrived in Perth for the trial.
In re-examination the plaintiff testified that when he was dismissed from Dennis Transport it was not suggested to him that he had been smoking cannabis in a way that impaired his ability to carry out his duties. He said that he has never smoked cannabis in a way that has to any degree impaired his ability to carry out his work. He repeated that he had never smoked cannabis at work.
Defendants' criticisms of plaintiff's evidence
The defendants accept that the accident was very serious and that the plaintiff has suffered serious consequences as a result of the accident. Nonetheless they submit that I should, for a number of reasons, find that the plaintiff in his evidence exaggerated the extent of some of his symptoms. They contend that the extent of the symptoms that the plaintiff has suffered and continues to suffer remains in issue on the evidence.
I will return to deal with the issue of the complainant's credibility in due course. However, for reasons that will become apparent it is convenient to first deal with the medical evidence that was adduced during the trial in relation to the plaintiff's physical and psychiatric condition.
Medical evidence as to the plaintiff's physical injuries
Dr Williams
The plaintiff called Dr Desmond Williams to give evidence. Dr Williams is an orthopaedic surgeon. He has practised as an orthopaedic surgeon for about 40 years. None of Dr Williams' evidence as to the plaintiff's injuries was the subject of any substantial dispute by the defendants.
Dr Williams saw the plaintiff for the purpose of assessing his injuries on 28 February 2007, 14 March 2007, 12 September 2007, 7 February 2008 and 31 March 2010. On each of these occasions he obtained a history from the plaintiff and in particular the plaintiff's account of the symptoms that he was suffering from. He also conducted examinations of the plaintiff.
It is not necessary to recite Dr Williams' evidence as to the history that the plaintiff provided to him during the consultations that he had with the plaintiff. It suffices to say that Dr Williams' evidence as to the plaintiff's account of his injuries and pain symptoms on each of the occasions that he saw the plaintiff was substantially consistent with the evidence that the plaintiff gave in relation to these matters.
As to the plaintiff's injuries Dr Williams' evidence was that the plaintiff, as a result of the accident, suffered the following injuries:
1.burns to 40 per cent of the body involving the face, hands, low back, legs and hips;
2.severe compound fracture of the ankle;
3.fracture of the right knee;
4.right great toe adherence of the extensor flexor;
5.deformity of the left little finger with flexion deformity;
6.soft tissue injuries to the thoracolumbar spine with exacerbation of neck and interscapular back pain symptoms from underlying degenerative change; and
7.exacerbation of symptoms from right shoulder acromioclavicular joint degenerative change and rotator cuff tendinopathy with subacromial bursal impingement.
With respect to the plaintiff's right shoulder injury, Dr Williams' evidence was that generally the injury will resolve with conservative measures including cortisone injections. Dr Williams considered that surgery will only be required if there is an increase in the plaintiff's symptoms.
Dr Williams was asked whether a decision by the plaintiff not to have cortisone injections in his right shoulder will affect the plaintiff's prognosis so far as that injury is concerned. Dr Williams' response to this question was that a refusal to have cortisone injections will not change the plaintiff's prognosis a great deal. He said that the injections would settle the irritable bursar but that the plaintiff still has underlying degenerative change in the rotator cuff. He said that the plaintiff is therefore going to be limited with regard to heavy lifting, repetitive upper limb activities and above shoulder activities. He said that with cortisone injections the plaintiff would "just be more comfortable" and have a better functional capacity but with the same limitations of the underlying rotator cuff pathology.
Dr Economos
The defendants called Dr James Economos. Dr Economos is an occupational physician. He obtained his medical degree in 1993 and in 2003 he obtained his fellowship of the Australian Faculty of Occupational and Environmental Medicine.
Since obtaining his specialist qualification Dr Economos has seen clients from various different industries and has managed their injuries and their return to work. About 50‑70 per cent of the work that he does is managing patients referred to him by general practitioners and other specialists and the remainder of his work is independent medico‑legal work. He described as his goal symptom management and relief, and minimising the level of disability as a result of injury.
Dr Economos saw the plaintiff for the purpose of carrying out independent medical evaluations of him on 17 November 2008, 19 November 2008 and 14 April 2010. The first two occasions on which he saw the plaintiff related to the one medical evaluation.
In undertaking his medical evaluations of the plaintiff Dr Economos obtained a detailed history from the plaintiff and carried out a physical examination of him.
When Dr Economos saw the plaintiff on 17 November 2008 the plaintiff reported suffering from pain in his right leg, right knee, left knee, left hip, low back, thoracic and neck region, and right shoulder since the date of the accident. On the basis of the history provided by the plaintiff and his physical examination of the plaintiff, Dr Economos formed the opinion "on the balance of probability" that the injury suffered by the plaintiff to his ankle as a result of the accident was likely to be contributing to his low back and left hip pain, and that it was also reasonable to attribute the plaintiff's right shoulder condition and left knee pain to the accident. Dr Economos was unable to state that the plaintiff's thoracic and neck pain occurred as a result of the accident as opposed to other injuries.
When Dr Economos saw the plaintiff on 14 April 2010, that is, after the amputation, he did not report any interscapular pain. However, the plaintiff's reporting of his neck, low back and right shoulder pain was not substantially different to the plaintiff's account of these symptoms given to Dr Economos during the 17 November 2008 consultation. Dr Economos' opinion as to the relationship between the accident and the plaintiff's reported symptoms did not change.
In cross‑examination Dr Economos said that to his recollection the plaintiff, during his consultations with Dr Economos, answered questions asked of him by Dr Economos promptly and not in a guarded way.
Psychiatric evidence
Dr Proud
The plaintiff called Dr Stephen Proud to give evidence. Dr Proud is a consultant psychiatrist. He has practised as a consultant psychiatrist since 1999.
Dr Proud saw the plaintiff on 10 May 2008 and 31 March 2010. On each of these occasions he interviewed the plaintiff and conducted a mental state examination. His mental state examination of the plaintiff involved him taking note of, among other things, the plaintiff's history as provided, countenance, mood, facial expressions and vocabulary. Dr Proud also performed some specific clinical short term memory and concentration tests.
Dr Proud's evidence‑in‑chief as to the interview that he conducted with the plaintiff during the 10 May 2008 consultation was to the following effect.
The plaintiff told him that since the age of 14 he had always smoked 10 cones of cannabis a day. He said that he could not go into the sun without wearing a hat, long sleeves, long trousers and sun block, but that even then the sun burnt him easily. He said that he felt hot all of the time. He said that his face was deeply pigmented down to the neck from his burns and that he felt ugly, unattractive to girls and too embarrassed to show his body in public (in the sense of taking his shirt off at the beach). He said that he felt that people stared at him and he became annoyed by people asking him about what had happened.
The plaintiff reported that he felt detached from the world, but that he did not have any sense of foreboding about the future. He said that he did not have nightmares of the accident except during the last three weeks, but that since the accident he had always had disturbing eidetic experiences of the sound, the sight and the smell of fire. He said that certain burning smells, seeing fires, seeing forklifts or talking or thinking about the accident upset him. He said that he avoided the sun, gas stoves, candles, barbeques or anywhere that there could be a fire.
The plaintiff reported that he had stopped all recreational activities such as football, fishing and golf, and that he could not do any domestic tasks. He said that he had withdrawn socially and interpersonally. He said that he had extreme difficulty driving.
Dr Proud's evidence in chief was that his mental state examination of the plaintiff carried out during the consultation on 10 May 2008 revealed the plaintiff to be a very friendly person who was clearly stoic and did not like to admit that he was badly damaged. Dr Proud noted that there was some teariness in the plaintiff's eyes when he was talking about the severity of his injuries. His overall assessment of the plaintiff was that he was "incredibly positive and optimistic" given the severe nature of the injuries that he had. Dr Proud did not discover any real evidence of impairment in concentration or short‑term memory.
As a result of his interview with the plaintiff and his mental state examination, Dr Proud formed the opinion that the plaintiff's psychological symptoms were essentially depressive symptoms including diminished confidence, diminished motivation, diminished concentration, diminished energy, trouble falling off to sleep and a sad mood. He also concluded that the plaintiff had symptoms of Post‑Traumatic Stress Disorder ("PTSD") and some symptoms of shame about his bodily appearance. Dr Proud diagnosed the plaintiff as suffering from chronic PTSD of moderate severity.
Dr Proud's evidence‑in‑chief as to his second consultation with the plaintiff was to the following effect.
The plaintiff told him that he had markedly reduced his cannabis consumption to only once a week. He told Dr Proud that he still had photosensitivity and could not go into the sun without wearing a hat, long sleeves, long trousers and sun block. He said he felt hot all the time. He said he felt even uglier and more deformed than previously given that he had a right below knee prosthesis.
The plaintiff told Dr Proud that he felt sad and lonely with no hope for the future. He said that he had disturbed sleep, that he experienced tiredness and that his concentration, short‑term memory and libido were low. He said that he had no thoughts of suicide. He said that he was getting nightmares of the accident three to four times a week. He said that the eidetic experiences of the accident had worsened since he had undergone the amputation procedure. He said he still avoided sun, gas stoves, barbeques, candles and anywhere that there could be fire. He said that he gets upset thinking or talking about the accident or seeing forklifts.
Dr Proud observed that during the interview the plaintiff was polite and co‑operative. He had a dysthymic mood and a mild congruent reduction in his affective reactivity and prosodic speech. Overall he gave a good history.
Dr Proud's clinical testing revealed no evidence of short‑term memory impairment, but a mild impairment in concentration and speed of cognitive processing.
Having interviewed the plaintiff and undertaken his mental state examination, Dr Proud again diagnosed the plaintiff as suffering from chronic PTSD of moderate severity as well as a co‑morbid chronic adjustment disorder with depressed mood of moderate severity. He concluded that the plaintiff's psychiatric disability was permanent and stable and was "solely and wholly" the result of the accident. He also concluded that the plaintiff's prognosis was poor. He considered that the plaintiff needed psychiatric treatment in the form of ten sessions with a consultant psychiatrist to optimise his medication and 20 sessions with a clinical psychologist to help him adapt to his disability. He determined that from a psychiatric point of view the plaintiff had a permanent incapacity to work in any situation that exposed him to a significant amount of sunlight or significant fire or a significant risk of being injured with machines.
When asked during examination-in-chief whether he maintained the opinions that he had formed following his consultation with the plaintiff on 31 March 2010 Dr Proud said that he did.
Dr Proud also gave some evidence in relation to the psychometric test called the Structured Inventory of Malingered Symptomatology ("SIMS"). He gave this evidence in light of the use of SIMS by consultant psychiatrist Dr Martin Ewer in his assessments of the plaintiff undertaken in June 2009 and May 2010. Dr Ewer, whose evidence I will refer to shortly, was called by the defendants.
Dr Proud's evidence as to SIMS was that it had not to his knowledge been used by other forensic psychiatrists in Perth but that tests are, with a degree of caution, generally accepted in the psychiatric profession. His evidence was that he was not personally familiar with SIMS. He accepted that a number of authors had attested to its "robustness" but that this was not a universally held view. He referred to one study which indicated that SIMS can result in high false positive rates, that is, indicate to the psychiatrist that the person may be exaggerating their symptoms when this is not in fact the case. He indicated that SIMS provides five scale domains for psychosis (neurological impairment, amnestic disorders, psychosis, low intelligence and affective disorders), and that he was not aware if its psychometric properties had been robustly studied and validated in a population of PTSD sufferers.
In the context of commenting on SIMS and Dr Ewer's use of it, Dr Proud expressed the view that when one considered the accident and the fact that the plaintiff had suffered significant burns and the amputation of his leg, this was very strong prima facie evidence to support the "face validity" that the plaintiff does have PTSD.
In cross‑examination Dr Proud accepted that psychiatric assessments were based to a significant extent on what the patient tells the psychiatrist. He accepted that there was a possibility for over‑exaggeration in the provision of histories by patients.
Dr Proud was asked about SIMS. He agreed that it did have some psychiatric backing.
Dr Proud was also asked in cross-examination about the plaintiff's report to him during the 10 May 2008 consultation that he had smoked 10 cones of cannabis a day from the age of 14. In response to this questioning Dr Proud said that this level of consumption was considered to be high and that it met the definition for dependency and abuse. He said that many people can get psychiatrically ill from using such large quantities of cannabis from a young age. He said that not everyone gets ill but it is a significant risk. He said that it is also a risk factor for long‑term mild permanent cognitive damage. He confirmed that he did not find any evidence of cognitive damage in his examination of the plaintiff. He said that research findings indicated that cognitive damage from cannabis use consisted of difficulties in relation to learning new material, high level processing and concentration. He said that cognitive damage caused by cannabis use has more of an impact on people whose jobs require a high cognitive demand and less impact on people who have more manual jobs.
Dr Proud was asked in cross examination about the DASS 21 form which the plaintiff, during his evidence, admitted that he had completed on 11 March 2010 during, or immediately prior to, undergoing a counselling session with a psychologist. The DASS 21 form required the plaintiff to rate from 0 to 5 "how much" each of a number of individual statements applied to him over the past week. In general terms the statements included in the form related to the plaintiff's emotional state. A rating of 0 indicated that the statement did not apply to the plaintiff at all and a rating of 5 indicated that it applied to him "very much or most of the time".
Dr Proud confirmed that the DASS 21 test was a standard test which went to the issue of depression and anxiety. He said that the conclusion he would reach from the form as completed by the plaintiff was that it provided no evidence for anxiety or depression over the week preceding the completion of the test. He accepted that the results contained in the form were inconsistent with what the plaintiff had told him when he saw the plaintiff on 31 March 2010.
Dr Proud accepted that his diagnosis of the severity of the plaintiff's PTSD was dependent upon the accuracy of the plaintiff's symptom reports, although there was some link between the diagnosis and the severity of the original injury. He accepted the proposition that working was beneficial from a psychological point of view for a person's self‑esteem.
In re‑examination Dr Proud said that the purpose of the SIMS test was to assist the clinician in the overall assessment of the patient and that it had a more specific use in the domain for which it was designed, namely amnestic disorders, affective disorders and a few other disorders. He said he was not aware of whether it had been validated in PTSD sufferers. He said that none of those domains which are the subject of the test are specifically associated with PTSD, which is a stand alone condition, but that affective disorders, that is, depression and anxiety, were the closest. He said that affective disorders were the closest to PTSD because PTSD was categorised under anxiety disorders and anxiety was an affective disorder.
When asked for his opinion as to the effect of the plaintiff's long‑term cannabis use on his ability to carry out work as a forklift driver over the long‑term, Dr Proud said that the effect was minimal because it was an over‑rehearsed skill that the plaintiff had acquired over many years and did not involve a high level of cognitive function. When asked to quantify what he meant by "minimal", Dr Proud said less than a 10 per cent reduction in productivity. He also said that whether or not the cannabis used by the plaintiff was grown naturally or hydroponically was of significance in determining whether his use of the drug would have a long‑term effect on his cognition. He said that hydroponically grown cannabis was much more potent than naturally grown cannabis and that therefore without knowing the source of the cannabis used by the plaintiff over the years it was not possible for him to form any reliable opinion as to the effect that the plaintiff's cannabis use might have on his cognitive function. He said that all that could be said is that it was a risk factor for long‑term cognitive impairment.
Dr Ewer
As mentioned above the defendants called Dr Martin Ewer. Dr Ewer is a psychiatrist who gained his specialist qualifications in 1990. He has practiced in a range of settings including general medical hospitals and large public psychiatric hospitals. For many years he has conducted a private practice evaluating and treating out‑patients and in‑patients. He has conducted medico‑legal assessments since the late 1980's. He presently conducts a private practice in general psychiatry with a specialist interest in occupational psychiatry. He offers his services as a medico‑legal consultant in the field of psychiatry.
Dr Ewer saw the plaintiff on 10 June 2009 and 7 May 2010 for the purpose of conducting independent psychiatric evaluations of him.
In conducting his psychiatric evaluations of the plaintiff Dr Ewer adhered to a methodology which involved him obtaining from the plaintiff a comprehensive history and an account of his psychological and psychiatric symptoms, undertaking a mental state examination of the plaintiff, and administering psychiatric measuring instruments. The psychiatric measuring instruments which Dr Ewer used in evaluating the plaintiff were the Personality Assessment Inventory vertical items tester ("PAI"), the Standardised Assessment of Personality – Abbreviated Scale ("SAPAS") and SIMS.
Dr Ewer's evidence revealed that the history that the plaintiff provided to him during his consultations with the plaintiff was not significantly different to the history that the plaintiff had provided to Dr Proud. It is worth noting, however, that according to Dr Ewer the plaintiff told him during the consultation on 10 June 2009 that he had smoked four to six cones of cannabis a day since the age of 14 and that he currently smoked a small amount of cannabis on the weekend. He told Dr Ewer that he had reduced his cannabis use considerably when he had moved back to South Australia. He also told Dr Ewer that he did not believe that he was suffering from a psychiatric disorder. According to Dr Ewer the plaintiff conceptualised his health status in physical terms.
Dr Ewer's evidence in chief as to his first consultation with the plaintiff was to the following effect.
On mental state examination the plaintiff maintained good eye contact during the interview. The plaintiff's facial expressions did not indicate that he was suffering from a severe psychiatric disorder. There were no other observable signs such as self neglect which indicated that he was suffering from a severe psychiatric disorder. The plaintiff did not become distressed when talking about the accident and his memory and concentration were satisfactory. He was, however, mildly depressed and anxious. There were no psychotic symptoms.
Dr Ewer's administration of SIMS to the plaintiff produced a result which was consistent with a mild degree of symptom magnification.
As a result of his evaluation of the plaintiff Dr Ewer was, for a number of reasons, concerned about whether the history reported to him by the plaintiff accurately reflected his true symptoms and level of functioning. One of the reasons for his concern was the plaintiff's results on the SIMS test. Another reason for his concern was that Dr Ewer perceived that the plaintiff had overstated the extent of some of his restrictions. Nonetheless, despite these concerns Dr Ewer's evaluation of the plaintiff at the first consultation lead him to conclude "upon a reasonable degree of medical probability" that the plaintiff was suffering from chronic PTSD which was substantially caused by the accident. Dr Ewer also concluded that the plaintiff had a number of dysfunctional personality traits but that he was probably not suffering from a personality disorder. He considered that the plaintiff's psychiatric problems would improve once his legal and compensation issues had resolved and he had undergone further treatment in the form of twelve to sixteen sessions with a consultant psychiatrist.
As to the plaintiff's capacity to work, Dr Ewer opined that as at the date of the first consultation, and taking into account his PTSD, the plaintiff could work 16 to 20 hours per week with the restriction of him not working with heavy machinery or in a forklift. He considered that the plaintiff's capacity to work, from a psychiatric perspective, would improve with additional treatment. Dr Ewer recognised that the plaintiff's physical issues clearly needed to be considered when assessing the plaintiff's work capacity and that these issues were beyond the scope of his speciality.
Dr Ewer's evidence-in-chief as to his second consultation with the plaintiff was to the following effect.
From a psychological perspective the plaintiff's condition was not significantly different to when Dr Ewer had seen him in 2009. Mental state examination of the plaintiff did not reveal observable signs of severe psychiatric disorder. The plaintiff was mildly anxious in mood but not clinically depressed. He displayed no psychotic symptoms.
In Dr Ewer's opinion the plaintiff was not as psychiatrically unwell as he was describing. Dr Ewer's administration of the SIMS test produced results that were consistent with a marked degree of symptom magnification. Nonetheless, having taken into account all relevant factors Dr Ewer formed the clinical opinion, based upon a "reasonable degree of medical probability" that the plaintiff was still suffering from a chronic PTSD. He also concluded, on the basis of the plaintiff's statements that he smoked only a small amount of cannabis once per week, that he did not meet the diagnostic criteria for a substance related psychiatric disorder.
Based on his assessment of the plaintiff Dr Ewer was optimistic that a number of the plaintiff's symptoms would improve with treatment for his PTSD but was not confident that they would fully resolve. He considered that psychiatric treatment was required. He remained of the view that the plaintiff could work approximately 16 hours per week but not with heavy machinery or in a forklift. He considered that this capacity could be increased as the plaintiff's mental state improved with treatment. He again acknowledged that the plaintiff's physical issues, which were outside of his speciality, needed to be considered.
During his evidence in chief Dr Ewer was asked whether the opinions he had formed at the time of his assessments of the plaintiff remained his opinions. He confirmed that they did.
During his evidence‑in‑chief, Dr Ewer was asked about the DASS 21 form completed by the plaintiff on 11 March 2010. He testified that the document needed to be put in context. He described the DASS 21 test as a screening test for symptoms of depression and anxiety which gave some idea of the severity of the plaintiff's symptoms. He said that the test was not specifically for the diagnosis of a PTSD. He said that the symptoms recorded on the DASS 21 form by the plaintiff needed to be considered in the context of the interview that took place on that day with the clinician and the observations of the clinician. He said that bearing those qualifications in mind just looking at the document in isolation suggested a low level of symptoms.
Dr Ewer was also asked in his evidence‑in‑chief about the plaintiff's cannabis consumption. He was asked to state his opinion as to the effects of continued consumption of cannabis at the rate of 8 to 10 cones per day over the period from the age of 14 through to some time in 2008. In response to this question Dr Ewer said that this was a long period of high level consumption. He said that the subject had been studied extensively and that there had been quite a bit written in the literature about it. He said that the literature revealed that people who use this level of cannabis over a long period are prone to a number of negative consequences including paranoia, apathy, a lack of motivation, anxiety, depression, impaired memory and concentration, and even psychotic symptoms. He said that it had also been shown that people who misused cannabis to the degree suggested can be dependent upon it and can develop significant withdrawal symptoms which include irritability, anxiety, anger, aggression, difficulty sleeping, unusual dreams and nightmares, and depression.
Dr Ewer, on the assumption that the plaintiff had smoked 8 to 10 cones of cannabis a day since the age of 14, said that it was difficult to say if he would suffer from any of the above adverse consequences. He said that all that he could say was that the literature suggested that there would be a significant risk of these problems occurring and that these problems could interfere with the plaintiff's ability to function at work. He noted that if the plaintiff continued to consume cannabis at this level he would have great difficulty passing urine and drug screens in the workplace.
In cross‑examination Dr Ewer was asked some further questions about the DASS 21 form that the plaintiff had completed on 11 March 2010. It was suggested to him that it was not possible to draw any broad conclusions from the document in isolation. Dr Ewer, in response to this suggestion, said that one could offer a view based on the document alone but that the document was just one piece of information and that people trained in using psychiatric measurement instruments look at other information. The DASS 21 statement was just one part of the picture. It was helpful because it could add an objective nature to the assessment but it was just one part of the picture. He said he would rarely offer an opinion just on one instrument alone. He said he would really need to see more of the picture to offer an informed opinion.
In cross‑examination Dr Ewer was also asked about the SIMS test. In response to questions asked of him he said in using the SIMS test he was not asking the question "was the plaintiff feigning PTSD symptoms?" He said that the question he was trying to answer by using the SIMS test was what was the plaintiff's response style, that is, was there any evidence of "impression management in general terms". He said that he had used the test as a general screening questionnaire regarding symptom magnification. He accepted that the SIMS test has a high negative predictive power and a low positive predictive power. He said that he would not conclude on the basis of the results of the SIMS test alone that a person was malingering. He said that because the SIMS test has a low positive predictive power, and consequently gave rise to a high risk that a person who returned a positive result had returned a false positive result, he simply treated the SIMS test results as a "red flag" to say that further information was required and that caution needed to be exercised when considering the history provided by the plaintiff. In short, the effect of Dr Ewer's evidence was that the SIMS test should not be used beyond its stated purpose as a screen for malingering.
Dr Ewer was also asked in cross-examination about the plaintiff's history of cannabis use. He accepted that different forms of cannabis contained different amounts of tetrahydrocannabinol ("THC"), this being the relevant compound in cannabis that causes it to have an effect on the mind. He also accepted that hydroponically grown cannabis plants tend to have significantly higher THC content than plants that grow naturally. He agreed that non‑psychoactive THC metabolites will remain in the body in a way that can be detected in a urine sample well after the effects of the high created by the cannabis have worn off. He agreed that while a urine test might give a positive result for cannabis, a negative result might be obtained from a blood test or a saliva test taken at the same time.
Dr Ewer was asked to identify the studies that he had relied upon for his expression of opinion as to the impact of the plaintiff's cannabis use on his employment capacity. He indicated that because he had only been asked to consider the issue recently, he was not in a position to provide exact references but would be able to do so if he was given time.
Assessment of plaintiff's credibility
I return now to the issue of the plaintiff's credibility.
As is apparent from my above summary of the plaintiff's evidence as to his condition following the accident and his current disabilities, the plaintiff did not describe his various shoulder, back and neck symptoms in particularly elaborate terms. He did not describe them as unbearable or even severe. His descriptions of his various aches and pains were, in my view, given in fairly moderate terms. He did not appear to me to be going out of his way to overstate the effect upon him of his very significant injuries. On a number of occasions his counsel had to press him for details of the effect on his well being of a particular injury.
As I have already indicated the defendants submit that I should, for a number of reasons, find that the plaintiff, in giving his evidence, exaggerated both his physical and psychological symptoms.
The first of the reasons put forward by the defendants in support of their contention that the plaintiff exaggerated his physical symptoms is that there is an inconsistency between the plaintiff's evidence as to his post-amputation level of pain and the low amount of pain medication that he is now using.
I have already referred to the plaintiff's evidence that he tries not to take pain medication but that if the pain becomes too much for him he takes Tramadol or Panadeine. Given the plaintiff's description of his pain symptoms I do not think that his stated reluctance to take and possibly become dependant on pain medication is unreasonable. I therefore do not consider that the plaintiff's low use of pain medication indicates that his evidence as to his pain symptoms was exaggerated.
The defendants' second reason for submitting that the plaintiff exaggerated the extent of his physical symptoms is that the plaintiff did not in his evidence-in-chief reveal the full extent of his pre‑accident back pain. I accept that the plaintiff's evidence‑in‑chief as to his pre-accident back pain was less expansive than the evidence he gave under cross-examination. However, I do not consider that this fact provides a basis for concluding that the evidence that the plaintiff did give as to the extent of his current back pain symptoms was exaggerated. The medical evidence of Dr Williams and Dr Economos supports the conclusion that the plaintiff suffers from lower back pain as a result of the accident even if their evidence as to the means by which the accident has caused the pain is not entirely consistent.
The defendants' third reason for submitting that the plaintiff exaggerated the extent of his physical symptoms is that the plaintiff did not, when he saw Dr Economos for the second time, tell Dr Economos that he was suffering from interscapular pain. I do not consider that this fact in itself provides a basis for concluding that the plaintiff exaggerated his symptoms. In my view it is not surprising that when a person is asked on various occasions and at various times over a number of years to recount their medical history and the effect that their injuries have had and continue to have on them that some discrepancies will arise.
The defendants' final reason for submitting that I should find that the plaintiff exaggerated his physical symptoms is that his demeanour in the witness box was inconsistent with the symptoms he was describing. It is said that the plaintiff gave evidence over a fairly prolonged period of time and that there was no suggestion during this time that he was in any apparent pain from his physical injuries.
It is true that the plaintiff did not complain of, or exhibit obvious signs of, pain during the giving of his evidence. However, the absence of complaint or signs of discomfort is consistent with what I perceived to be the plaintiff's fairly stoic approach to his injuries. Moreover, the longest continual period of time that the plaintiff spent in the witness box was approximately one hour and forty five minutes with his other two sessions each lasting for approximately one hour. In these circumstances I am not, in the absence of supportive medical evidence, willing to conclude that the plaintiff's failure to complain of pain or display any obvious signs of discomfort while giving his evidence reveals that his evidence as to his physical injuries was exaggerated.
As to the plaintiff's evidence of his psychological symptoms the defendants contend that Dr Ewer's evidence as to the results of his use of the SIMS test in evaluating the plaintiff reveal that the plaintiff has a tendency to exaggerate his symptoms. In light of the evidence given by Dr Ewer and Dr Proud as to the purposes of the SIMS test and its limitations, I do not consider that the results of its administration to the plaintiff provide a basis for me to conclude that the plaintiff exaggerated his psychological symptoms when giving his evidence. In any event, as the defendants' counsel said during his closing submissions, the evidence given by the plaintiff as to his PTSD and depression and anxiety "were dealt with on a very, very scant basis."
The defendants also put forward the plaintiff's responses on the DASS 21 form as a reason for finding that the plaintiff in his evidence exaggerated his psychological symptoms. Again, I do not accept this submission. The plaintiff did not give extensive evidence of his psychological symptoms. In these circumstances, and bearing in mind the evidence given in relation to the DASS 21 test by Dr Proud and Dr Ewer, I do not consider that the plaintiff's responses to the questions asked in the DASS 21 form provide a sound basis for me to conclude that the plaintiff exaggerated his evidence.
In summary, I found the plaintiff to be a generally credible witness. I therefore accept the evidence that he gave as to the physical and psychological symptoms that he has suffered since the accident.
Findings as to plaintiff's injuries and symptoms
There is nothing in the medical evidence before me which positively suggests that the plaintiff could not, contrary to the opinion of Dr Williams, have suffered as a result of the accident soft tissue injuries generating the neck and thoracic back pain which he described in his evidence. Although Dr Economos was not willing to attribute the plaintiff's thoracic and neck pain to the accident he did not opine that there could not be a link between the two. In these circumstances, and consistently with my generally favourable assessment of the plaintiff's credibility, I am satisfied that the accident did cause the plaintiff to suffer the injuries identified by Dr Williams, including soft tissue injury to the thoracic region, and that these injuries have in turn caused the plaintiff to suffer the physical symptoms described by him during his consultations with Dr Williams and Dr Economos and during his evidence.
So far as the plaintiff's psychiatric and psychological condition is concerned, my above recitation of the evidence given by Dr Proud and Dr Ewer reveals some differences in approach to their assessment of the plaintiff and also some difference in opinion as to the usefulness of the tests used by Dr Ewer in order to assist him in deciding if the plaintiff had provided accurate histories. It is, I think, fair to say that Dr Proud did not have any apparent concerns about the ability of the plaintiff to provide an accurate history whereas Dr Ewer did have some doubts about the accuracy of at least some aspects of the history that the plaintiff provided to him. In any event, whatever differences there may have been between the evidence of Dr Proud and Dr Ewer, both ultimately opined, perhaps with varying degrees of certainty, that the plaintiff is currently suffering from, and is likely to continue to suffer from, chronic PTSD caused by the accident. On the basis of the evidence that is before me and given my assessment of the plaintiff's credibility, I have no reason to conclude that these opinions are not well founded. I therefore find that the plaintiff suffers, and will continue for the foreseeable future, to suffer from chronic PTSD of moderate severity. However, given Dr Ewer's observations of the plaintiff in May 2010 (approximately one and a half months prior to the trial) and his findings as a result thereof, I am not satisfied that the plaintiff suffers from a co‑morbid chronic adjustment disorder
The plaintiff's damages claim
The plaintiff claims damages for past loss of earning capacity, past loss of superannuation, past medical and travel expenses, future loss of earning capacity, future prosthetic costs, future medical expenses, future equipment needs, future service needs, and pain and suffering. I will deal with each of these heads of claim in turn.
Loss of earning capacity – general
In Australia a plaintiff is compensated for loss of earning capacity, not loss of earnings. An injured plaintiff recovers not merely because his or her earning capacity has been diminished but because the diminution of his or her earning capacity is or may be productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347; Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3, 16; Husher v Husher [1999] HCA 47 at [7]; (1999) 197 CLR 138 at 143. It is necessary to identify both the capacity that has been lost and the economic consequences that will probably flow from the loss: Husher v Husher (supra) at 143 [7]. It is only when this has been done that it becomes possible to assess the sum that should be paid to the plaintiff to put him or her in the same position as he or she would have been in if the injury had not been sustained: Husher v Husher at 143 [7].
In assessing loss of earning capacity and the economic consequences that will probably flow from that loss, the past may provide important evidence: Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 658. What a worker earned in the past may provide useful guidance about what would have been earned if the worker had not been injured: Husher v Husher at 143 [8]. However, the enquiry is an enquiry about the likely course of future events and evidence of past events does not always provide certain guidance about the future: Husher v Husher at 143 [8]. There may be many reasons why an injured plaintiff's past work history provides little or no assistance in deciding what the plaintiff has lost through diminution of future earning capacity: Husher v Husher at 143 [8].
Plaintiff's past loss of earning capacity
The defendants have not sought to contend that the plaintiff has, since the date of the accident, been able to work in some capacity. It is therefore not in dispute between the parties that the plaintiff has suffered a total past loss of earning capacity. The dispute between the parties relates to the extent of the financial loss that the total past loss of earning capacity has produced.
Identification of base rate
The competing arguments
During his period of employment at the first defendant's premises the plaintiff, due to the hours of the afternoon shift, worked a considerable number of hours each week which were outside of "ordinary hours" as that term was defined in the P & O Trans Australia (WA) Pty Ltd (Transport and Warehousing) Agreement 2006 dated 9 February 2006 ("the 2006 Agreement"). The 2006 Agreement was the industrial agreement entered into between the Transport Workers Union of Australia and the first defendant that applied to the plaintiff during his period of employment at the first defendant's premises.
The plaintiff was, for the hours worked outside of ordinary hours, paid at time and a half or double time of his ordinary hourly rate of pay. His ordinary hourly rate of pay included a casual employee loading. The net result was that the plaintiff, during his time working at the first defendant's premises, was earning a weekly income that was considerably higher than he would have earned if he had been working as a full time employee on the day shift. It is therefore perhaps not surprising that the plaintiff submits that in calculating damages for his past loss of earning capacity I should find that but for the accident he would have continued to work for the defendant, either through Fusion or as a direct employee of the first defendant, on the afternoon shift on a regular and permanent basis. The plaintiff submits that the proven facts justify me drawing this inference. The proven facts which the plaintiff relies upon in this regard are as follows:
1.In December 2005 the plaintiff moved from Adelaide to Perth on a permanent basis for the purpose of obtaining better paid employment as a forklift driver.
2.On arriving in Perth the plaintiff was immediately successful in obtaining casual work through Fusion first at Toll for approximately three weeks and then at the first defendant's operations in North Fremantle.
3.The plaintiff "loved" his job at the first defendant's operations. It was the best job he had ever had. He liked working the afternoon shift
4.The plaintiff had no intention of returning to Adelaide. He wanted to stay in Perth permanently.
5.The afternoon shift was part of the first defendant's operational requirements and needed to be worked by someone.
6.The plaintiff had an unlimited forklift drivers ticket; and
7.There had been no complaints concerning the plaintiff's work.
The plaintiff also submits, in reliance on Jones v Dunkel (1959) 101 CLR 298, that the defendants' failure to adduce any evidence to the effect that the plaintiff would not have continued to work at the first defendant's premises provides a reason for me to infer that any evidence that the defendants could have adduced on this issue would not have assisted them.
On the basis of the above submissions the plaintiff contends that the base rate that I should use in calculating the plaintiff's financial loss suffered by reason of his past total loss of earning capacity is $877 net per week ($1,200 gross per week). The plaintiff has arrived at this base rate figure by calculating his average weekly income during his weeks working at the first defendant's operations ($1,301 gross, $950 net), annualising this figure ($950 x 52), reducing the annualised figure by $3,800 (four weeks of net income) to reflect the fact that as a casual worker the plaintiff was being paid higher rates than a full time employee because he did not have the right to four weeks paid annual leave, and then dividing the reduced annualised figure by 52 weeks.
The defendants do not agree with the plaintiff's submissions as to the appropriate base rate. They accept that I should find that but for the accident the plaintiff would have continued to obtain full time employment as a forklift driver. However, they take issue with the contention that the proven facts identified by the plaintiff are sufficient to justify me inferring that the plaintiff would have continued to work the afternoon shift at the first defendant's premises on a regular and permanent basis and that I should consequently use as the base rate the figure of $877 net per week. In this context the defendants point to the fact that the plaintiff was at the time of the accident filling a casual vacancy in the first defendant's workforce.
The defendants' submit that there are various alternative approaches to that put forward by the plaintiff, any one of which I can and should adopt in preference to the plaintiff's approach, in order to arrive at an appropriate base rate to use in the calculation of the plaintiff's economic loss caused by his total past loss of earning capacity.
One of the defendants' suggested approaches is to use as the base rate the amount of the plaintiff's average net income earned during the period of 2 years and 8 months prior to the accident. This approach results in a figure of $641.71 net per week. This is the lowest of the potentially appropriate base rates suggested by the defendants.
Another of the defendants' suggested approaches is to use as the base rate the plaintiff's average net income earned during the 12 week period that the plaintiff worked in Perth prior to the accident. Adopting this approach results in a base rate figure of $892.31 net per week.
A third approach put forward by the defendants is to use as the base rate the net income per week that the plaintiff would have earned if he had continued working for the first defendant 50 hours per week as a full time employee on alternating day and afternoon shifts. This approach results in a base rate figure of $835 net per week.
As to the plaintiff's submission made in reliance on Jones v Dunkel (supra), the defendants point to the fact that the plaintiff gave no indication in his pleadings or in his pre‑trial submissions that he intended to seek employment with the first defendant. The defendants submit that the plaintiff bears the burden of proving the extent of the loss arising from his injuries and that the absence of any evidence adduced by the defendants as to the first defendant's plans, if any, for the plaintiff provide no basis for drawing the inference that if such evidence had been adduced it would not have assisted their case.
Jones v Dunkel argument rejected
The rule in Jones v Dunkel is authority for the proposition that the unexplained failure by a party to call a witness may, not must, in appropriate circumstances lead to an inference that the evidence of the uncalled witness would not have assisted that party's case. It is clear from this statement of the rule that the rule does not apply if the failure to call the witness is reasonably explained. The explanation must be established by evidence: West v Government Insurance Office (NSW) (1981) 148 CLR 62 at 70.
The rule only applies where a party is "required to explain or contradict" something: Jones v Dunkel at 321 – 322; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 at [51] – [53]; (2000) 200 CLR 121 at 142 ‑ 143. Whether a party is required to explain or contradict something depends on the issues in the case as thrown up in the pleadings and by the course of the evidence. If there is no issue between the parties on the matter there is nothing to answer.
Applying the above principles I do not accept that the rule in Jones v Dunkel has any application in the present case. The plaintiff did not at any stage prior to the trial plead or otherwise assert that the first defendant had agreed to employ him on a full time basis or had even indicated to him that it intended or wished to do so. Furthermore, the plaintiff did not at trial adduce any evidence to this effect as part of his case. In these circumstances there was nothing for the defendants to explain or contradict. I therefore decline to draw the inference that the plaintiff urged me to draw on the basis of the decision in Jones v Dunkel.
The appropriate base rate
On the basis of the evidence before me I am not satisfied that if the accident had not occurred the plaintiff would, either through Fusion or as a direct employee of the first defendant, have continued to work the afternoon shift at the first defendant's premises on a regular and permanent basis. I do not accept that the facts identified by the plaintiff, and most specifically the plaintiff's nine and a half week stint working the first defendant's afternoon shift as a result of a placement by a labour hire company, provides an adequate factual foundation for arriving at this conclusion.
I am, however, satisfied that but for the accident the plaintiff would have continued to work the afternoon shift at the first defendant's premises for some limited period of time. I am also satisfied that after this limited period of time the plaintiff would have continued to work in Western Australia as a forklift driver on a full time basis sometimes on day shift and on other occasions on afternoon shift with the consequence that he would, as part of his employment, receive some overtime pay.
The defendants accept that it is reasonable to assume that but for the accident the plaintiff would have continued to work for Fusion on the afternoon shift at the first defendant's premises for a period of eight weeks. I think that is a reasonable assumption to make and I so find. Accordingly, in calculating the plaintiff's past loss for the period of eight weeks following the accident I will use as the base rate $960 ($8,639.55 net divided by 9 weeks), this being the approximate average net weekly income earned by the plaintiff during the nine weeks that he worked at the first defendant's premises prior to the week of the accident.
As to the period between the expiration of the eight weeks and the date of assessment, it seems to me that the most appropriate means of arriving at a base rate figure is to calculate the plaintiff's average net weekly income for the 12 week period prior to the week of the accident that he worked for Fusion in Western Australia, to annualise that figure, to reduce the annualised figure by an amount equivalent to four weeks of net pay to reflect the fact that as a casual worker the plaintiff was being paid higher rates than a full time employee because he did not have the right to four weeks paid annual leave, and then to divide the reduced annualised figure by 52 weeks. In my view this approach to arriving at a base rate is the most sensible way to give effect to my finding that the plaintiff would have continued to work in Western Australia as a forklift driver on a full time basis sometimes on day shift and on other occasions on afternoon shift. I am of this view because during the 12 week period that the plaintiff worked in Perth he worked only a day shift at Toll and only the afternoon shift at the first defendant's premises.
Clinical psychologist
The plaintiff asserts that he will be required to consult with a clinical psychologist 20 times at $200 per consultation to help him adapt to his disability. He therefore claims $4,000.
The defendants do not dispute that an award should be made in respect of future consultations with a clinical psychologist. However, they contend that an allowance for 10 to 15 treatments is appropriate.
In my view it is appropriate to make an allowance for 15 consultations with a clinical psychologist at a cost of $200 per consultation. I therefore award $3,000 for future psychological counselling costs.
Further physiotherapy
The plaintiff asserts that he will require ongoing physiotherapy at least 10 to 15 times per year at a cost of $46.75 per session. The defendants do not take issue with this assertion.
In my view it is appropriate to make an award in respect of future physiotherapy costs. I consider that an award to cover the cost of 12 physiotherapy sessions per year is reasonable. I therefore calculate damages for future physiotherapy costs as follows:
Yearly cost of consultations
$ 561.00
Weekly cost of consultations
$ 10.79
Total cost ($10.79 x 785.6 - 6% multiplier for 36 years)
$8,476.62
Rounded total
$8,477.00
Future medications
The plaintiff claims $1 per week for the future cost of purchasing Tramadol and Panadol for pain relief when required. I consider this to be reasonable. I therefore award $786 ($1 per week x by 785.6 rounded up) for future medication costs.
Further surgery
The plaintiff claims the cost of surgical amputation of his left little finger. The defendants accept that it is probable that the plaintiff will undergo this surgery.
I am satisfied on the plaintiff's evidence that the plaintiff will proceed to have his left little finger amputated. According to Dr Williams the estimated cost of this surgery is $4,340. I therefore award this amount.
The plaintiff also asserts, in light of evidence given by Dr Williams, that he may require a right shoulder arthroscopic subacromial shave and excision of bursa. According to Dr Williams the estimated cost of this procedure is $6,006. However, the plaintiff claims only 50 per cent of this amount in recognition of the fact that on the evidence there is a degree of uncertainty as to whether he will ultimately need to undergo the procedure. The defendants accept that there is some chance of the plaintiff undergoing the surgery.
I am satisfied that the plaintiff might undergo the right shoulder surgery and that an award of damages based on there being a 50 per cent chance of this occurring is appropriate. I therefore award $3000 in respect of this aspect of the plaintiff's claim.
Rehabilitation
The plaintiff claims an amount to cover the costs of ongoing access for a five year period to a gymnasium and swimming pool as part of his injury management and in order to reduce any progression of his symptoms. In my view the evidence does not disclose that the plaintiff will have any need for ongoing access to a gymnasium and swimming pool as part of his rehabilitation. I therefore decline to make an award in respect of these claimed costs.
Total award for future medical expenses
I award a total of $26,999 for future medical treatment expenses.
Future prosthetic costs
The plaintiff claims damages to cover the costs associated with his future prosthetic needs.
So far as future prosthetic costs are concerned there are three main areas of disagreement between the parties. The first is the regularity with which the component parts of the plaintiff's prosthetic limb will need to be replaced. The second is whether an allowance should be made for a right lower limb recreational prosthesis in addition to an everyday prosthesis and a water prosthesis. The third is whether an allowance should be made for a left little finger cosmetic prosthesis.
The component parts of any right lower limb prosthesis include a silicone liner which is worn over the stump, the prosthesis socket to which the prosthesis is affixed and the prosthesis itself which consists of the shin and foot module.
Evidence as to future prosthetic needs
In relation to his future prosthetic needs the plaintiff called Mr Mark Hills and Ms Sally Cavenett.
Mr Hills has been a prosthetist for 35 years. He is currently the manager and owner of the Perth Prosthetics Centre.
Mr Hills' evidence was that the plaintiff will need to be provided with an everyday prosthesis and a water prosthesis. His evidence was that prosthetic structural components are tested to ISO standard 10328 which is three million cycles and equivalent to three years use. He therefore recommended that an allowance should be made for both the everyday prosthesis and the water prosthesis to be replaced every three years. He acknowledged that the period for which a prosthesis will continue to operate effectively will depend on the level of wear and tear. However, he said that the three year replacement period was fairly realistic.
As to the silicone liners, Mr Hills recommended that for hygiene reasons two liners at a time be provided for use with the everyday prosthesis and that both liners be replaced every six months. He considered that a third liner should be supplied every 12 months for use with the water prosthesis.
With respect to the prosthesis socket Mr Hills' evidence was that one socket would need to be replaced every 18 to 24 months. As I understood his evidence the one socket could be used with both the everyday prosthesis and the water prosthesis.
Mr Hills also considered that 10 per cent of the cost of the prostheses per annum should be "factored in" to cover the costs of repairs and adjustments.
Mr Hills confirmed that cosmetic finger prostheses for left little fingers are readily available. He said that as with any prosthesis there is a certain amount of training and trial and error but that in his view the plaintiff would quickly learn not to catch the prosthetic finger. He said that he usually finds that people do not wear their cosmetic finger prostheses on a daily basis and that they will have certain tasks that they will use if for. He said that some people may only wear their cosmetic finger prosthesis for special occasions.
Ms Cavenett is the Chief Prosthetist and Orthotist at, and manager of, OPSA at the Repatriation General Hospital in Adelaide. OPSA is the organisation that has been providing services to the plaintiff since he underwent his amputation.
Ms Cavenett holds a Bachelor of Prosthetics and Orthotics degree. She obtained her degree in 2004. She has worked in the prosthetics industry since 1992 and has been in her current position since December 2001.
As the manager of OPSA, Ms Cavenett has met the plaintiff. She has discussed with him the facets of his case and has inspected his limb loss. She has also inspected the plaintiff's interim prostheses. She has interviewed him in relation to his daily activities and his recreational lifestyle requirements.
Ms Cavenett's evidence as to the plaintiff's future prosthetic requirements was substantially the same as the evidence given by Mr Hills. In particular, she agreed that allowances should be made for the replacement of two everyday prosthesis silicone liners every six months, the replacement of the everyday prosthesis and water prosthesis every three years, and the replacement of the prosthesis socket every two years. She also agreed that 10 per cent of the cost of each prosthesis per annum should be allowed to cover repair costs.
The principle point of difference between Ms Cavenett's evidence and the evidence of Mr Hill is that in Ms Cavenett's view an allowance should also be made for the plaintiff to be provided with a recreational prosthesis. She said that all of OPSA's clients who like the plaintiff had been assessed as a K4 mobility potential were offered the opportunity for a recreational prosthesis to continue their activities post‑rehabilitation. She said that a recreational prosthesis was quite different to the everyday prosthesis. She said that it was very common for people from OPSA to be offered a recreational prosthesis and probably 70 per cent of them would take up the option of having a recreational prosthesis. She said it was very important for people to maintain body weight and activities so that they did not have recurrent damage to their residual limb. She said that when she interviewed the plaintiff about his recreational pursuits he said that he was not a candidate for swimming and would not engage in any hydrotherapy type activities but that he did report previously using an exercise bike prior to his accident. Ms Cavenett said this would be a good form of rehabilitation and that her recommendation was that the plaintiff be provided with a recreational prosthesis which enabled him to ride an exercise bike. She said that it would be possible for the plaintiff to use his everyday prosthesis on an exercise bike but that it would not be very comfortable for him to do so. She said that liners from the everyday prosthesis could be used with the recreational prosthesis. She testified that the recreational prosthesis would need to be replaced every three years.
Ms Cavenett confirmed that if the plaintiff proceeded with the amputation of his left little finger a cosmetic left little finger prosthesis could be provided to him. She said that she had not heard of the problem of a cosmetic finger getting caught on things such as trouser pockets. She said that she would not imagine that a cosmetic finger would last for more than 12 months if it was worn regularly but that if it was only worn once a month it would potentially last for five years.
I accept the evidence given by Mr Hills and Ms Cavenett. In particular, I accept their evidence as to the replacement periods for various component parts of the prostheses to be provided to the plaintiff. I also accept Ms Cavenett's evidence as to the appropriateness of providing the plaintiff with a recreational prosthesis.
As to the prosthetic finger issue I find, on the basis of the evidence given by the plaintiff, Mr Hills and Ms Cavenett that it is more likely than not that the plaintiff will proceed to obtain a cosmetic prosthesis for his left little finger which he will wear regularly but not all of the time. I also find that the prosthesis will have to be replaced on average once every three years.
Calculation of damages
On the basis of my above expressed conclusions I calculate damages for the plaintiff's future prosthetic needs as set out below. I will use the cost estimates provided by Ms Cavenett because it is likely that OPSA will be responsible for fulfilling the plaintiff's prosthetic needs in the future.
Everyday prosthesis
Everyday prosthesis initial cost including socket and liners: $16,432.00
Everyday prosthesis replacement costs at three year intervals excluding socket and liner (replacement cost being $16,432 less $3,365 for socket less $2,070 for liners):
Age 54:
$10,997 x 0.747 (5 year 6% deferred multiplier)
$ 8,214.76
Age 57:
$10,997 x 0.627 (8 year 6% deferred multiplier)
$ 6,895.12
Age 60:
$10,997 x 0.527 (11 year 6% deferred multiplier)
$ 5,795.42
Age 63:
$10,997 x 0.442 (14 year 6% deferred multiplier)
$ 4,860.67
Age 66:
$10,997 x 0.371 (17 year 6% deferred multiplier)
$ 4,079.89
Age 69:
$10,997 x 0.312 (20 year 6% deferred multiplier)
$ 3,431.06
Age 72:
$10,997 x 0.262 (23 year 6% deferred multiplier)
$ 2,881.21
Age 75:
$10,997 x 0.220 (26 year 6% deferred multiplier)
$ 2,419.34
Age 78:
$10,997 x 0.185 (29 year 6% deferred multiplier)
$ 2,034.45
Age 81:
$10,997 x 0.155 (32 year 6% deferred multiplier)
$ 1,704.54
Age 84:
$10,997 x 0.130 (35 year 6% deferred multiplier)
$ 1,429.61
Total cost
$43,746.07
Rounded total
$43,746.00
Everyday prosthesis silicone liner replacement – two liners every six months:
Cost of two silicone liners
$ 2,070.00
Replacement cost per year $2,070 x 2
$ 4,140.00
Weekly cost per year
$ 79.62
Total cost: $79.62 x 785.6 (6% multiplier for 36 years)
$62,549.47
Rounded total:
$62,549.00
Everyday prosthesis socket replacement – one socket every two years:
Cost of socket
$ 3,365.00
Replacement cost per year
$ 1,682.50
Weekly cost per year
$ 32.36
Total cost: $32.36 x 785.6
$25,422.02
Rounded total:
$25,422.00
Everyday prosthesis repair costs:
Cost of prosthesis
$10,997.00
Annual cost of repairs: 10,997.00 x 10%
$ 1,099.70
Weekly cost
$ 21.15
Total cost: $21.15 x 785.6
$16,615.44
Rounded total:
$16,615.00
Water prosthesis
Water prosthesis initial cost including liners: $ 6,076.00
Water prosthesis replacement costs at three year intervals excluding liners:
Age 54
$4,006 x 0.747
$ 2,992.50
Age 57
$4,006 x 0.627
$ 2,511.76
Age 60
$4,006 x 0.527
$ 2,111.16
Age 63
$4,006 x 0.442
$ 1,770.65
Age 66
$4,006 x 0.371
$ 1,486.23
Age 69
$4,006 x 0.312
$ 1,249.87
Age 72
$4,006 x 0.262
$ 1,049.57
Age 75
$4,006 x 0.220
$ 881.32
Age 78
$4,006 x 0.185
$ 741.11
Age 81
$4,006 x 0.155
$ 620.93
Age 84
$4,006 x 0.130
$ 520.78
Total:
$15,935.88
Rounded total:
$15,936.00
Water prosthesis silicone liner replacement – one liner every 12 months:
Cost of one liner:
$ 1,035.00
Replacement cost per year:
$ 1,035.00
Weekly cost per year:
$ 19.90
Total cost:$19.90 x 785.6
$15,633.44
Rounded Total:
$15,633.00
Water prosthesis repair costs:
Cost of prosthesis:
$4,006.00
Annual cost of repairs: $4006 x 10%
$ 400.60
Weekly cost:
$ 7.70
Total repair cost: $7.70 x 785.6
$6,049.12
Rounded Total:
$6,049.00
Recreational prosthesis:
Recreational prosthesis initial cost: $6,615.00
Recreational prosthesis replacement costs at three year intervals:
Age 54
$6,615 x 0.747
$ 4,941.40
Age 57
$6,615 x 0.627
$ 4,147.60
Age 60
$6,615 x 0.527
$ 3,486.10
Age 63
$6,615 x 0.442
$ 2,923.83
Age 66
$6,615 x 0.371
$ 2,454.16
Age 69
$6,615 x 0.312
$ 2,063.88
Age 72
$6,615 x 0.262
$ 1,733.13
Age 75
$6,615 x 0.220
$ 1,455.30
Age 78
$6,615 x 0.185
$ 1,223.77
Age 81
$6,615 x 0.155
$ 1,025.32
Age 84
$6,615 x 0.130
$ 859.95
Total cost
$26,314.44
Rounded total
$26,314.00
Recreational prosthesis repair costs:
Cost of prosthesis
$6,615.00
Annual cost of repairs: $6,615 x 10%
$ 661.50
Weekly cost
$ 12.72
Total cost: $12.72 x 785.6
$9,992.83
Rounded total
$9,993.00
Cosmetic left little finger prosthesis:
Cosmetic finger prosthesis initial cost: $1,200.00
Cosmetic finger prosthesis replacement costs three year at intervals:
Age 54
$1,200 x 0.747
$ 896.40
Age 57
$1,200 x 0.627
$ 752.40
Age 60
$1,200 x 0.527
$ 632.40
Age 63
$1,200 x 0.442
$ 530.40
Age 66
$1,200 x 0.371
$ 445.20
Age 69
$1,200 x 0.312
$ 374.40
Age 72
$1,200 x 0.262
$ 314.40
Age 75
$1,200 x 0.220
$ 264.00
Age 78
$1,200 x 0.185
$ 222.00
Age 81
$1,200 x 0.155
$ 186.00
Age 84
$1,200 x 0.130
$ 156.00
Total
$4,773.60
Rounded total
$4,774.00
Total award for future prosthetic costs
I therefore award a total of $257,354 in respect of the plaintiff's future prosthetic costs.
Future equipment expenses
The plaintiff, in reliance on evidence given by Ms Jodrell, asserts that he requires various items of equipment which will need to be replaced at varying intervals in order to cope with the disabilities arising from his injuries. The items of equipment in question consist of a walking stick, a pair of underarm crutches or bilateral elbow crutches, a walking stick and crutch ferrules, a lightweight manual wheelchair, a cushion for the wheelchair, a utility chair, an over the toilet frame, a bed rail, a shower hose, a urinal bottle, UV protection fingerless gloves, a sun protection hat (legionnaires style), a body cooling vest, an electric can opener, a stabilising device, a kitchen trolley, a long‑handled dustpan and broom, a long‑handled pickup stick, a laundry trolley, a universal vehicle accelerator and a disabled parking permit.
The plaintiff also asserts, again in reliance on Ms Jodrell's evidence, that there are a number of items that he may require in the future should he experience injury or degeneration of his hips or knees. The items in question are a manual wheelchair carrier, a vehicle rooftop hoist for a wheelchair, a flexliner straddle seat, an Ibis multi lifter lounge chair and wedge ramps. In respect of these items the plaintiff claims 50 per cent of their current cost in recognition of the uncertainty which exists in relation to the likelihood of the plaintiff actually needing the items in the future.
In relation to the items that the plaintiff asserts that he may need in the future, Ms Jodrell's evidence-in-chief was that if the plaintiff does in the future sustain injury or degeneration of his weight‑bearing joints or shoulders which limits his mobility it is likely that he will need to use crutches or a wheelchair to a greater extent than he was doing so at the time that she carried out her assessment of him. Her evidence was that it is for this reason that she considers that the plaintiff in the future may require a rear‑mounted wheelchair carrier on his car and later a vehicle roof‑mounted hoist. As to the latter item, Ms Jodrell's evidence was that this would be needed when the plaintiff was no longer able to rely on his prosthesis and could not use crutches to walk any distance. Ms Jodrell also gave evidence that in the future the plaintiff may benefit from the provision of a flexliner straddle seat which would enable him to sit and "scoot around the house" as well as the multi lifter lounge chair which is electronically operated and can raise a person to an almost standing position.
Ms Jodrell was cross‑examined in relation to the issue of the provision of a wheelchair. She accepted that this was a difficult area. She said that it was necessary to look at the possibility that for some reason the person could not use their prosthesis. She said that the usual reasons for this were that they had a skin breakdown, that they had an injury to another limb or that they had some overall systemic body illness. She said that in these circumstances if they did not have any other fracture site in their body and they could use both their arms they could probably use crutches. However, if they were fatigued or unwell or had a fracture or injury on any other body site then they would have to use a wheelchair. She said that all of the amputees that she had worked with had been allocated a wheelchair even if it was not to be used on a regular basis. She said that in her equipment schedule she had allocated a wheelchair on a replacement basis of about 15 years which was approximately three times as long as the normal replacement period because of the infrequent use that the plaintiff would make of a wheelchair.
The defendants accept that the plaintiff will require a number of the items that the plaintiff asserts that he needs. In particular, the defendants accept that the plaintiff will require the following items throughout the remaining years of his life, each of which will need to be replaced at varying times: walking stick, pair of bilateral elbow crutches, walking stick and crutch ferrules, urinal bottle, electric can‑opener, stabilising device, kitchen trolley, long‑handled dustpan and broom, long‑handled pickup stick, laundry trolley, universal vehicle accelerator and a disabled parking permit. The defendants do not, however, accept that the plaintiff will require a lightweight manual wheelchair, a wheelchair cushion, a utility chair, an over the toilet frame, a bed rail, a shower hose, a sun protection hat (legionnaire's style) or a body cooling vest. Nor do the defendants accept that I should make an award in respect of the items which the plaintiff asserts that he may need in the future. In this regard the defendants submit that there is no evidence to suggest that any of the factors referred to by Ms Jodrell will come to pass. In essence the defendants submit that given Ms Cavenett's evidence that the plaintiff will achieve near able‑bodied function, it is nothing more than speculation to suggest that the plaintiff will or might require the items that the plaintiff contends he might need in the future.
Taking into account the plaintiff's evidence as to his current condition and level of disability and the evidence of Ms Cavanett as to the level of mobility that the plaintiff is likely to achieve once he is fitted with his final prosthesis, I am not satisfied that the plaintiff does require a wheelchair cushion, utility chair, an over the toilet frame, a bed rail, a shower hose or a body cooling vest. I am also not satisfied on the available evidence that the possibility of the plaintiff requiring any of a manual wheelchair carrier, a vehicle rooftop hoist for a wheelchair, a flexliner straddle seat, an Ibis multi lifter lounge chair or wedge ramps is sufficiently significant to merit an award being made in respect of these items. I think that there is merit in the defendants' submission that it is speculation to suggest that the plaintiff will or might require these items in the future. I am, however, satisfied that there is some reasonable possibility that the plaintiff may on occasions be required to use a wheelchair. I will therefore award 50 per cent of the future costs of this item calculated as follows:
Initial cost of wheelchair: $4,616.00
Wheelchair replacement cost:
Age 64: $4,616 x 0.417 (15 year 6% deferred multiplier)
$1,924.87
Total cost
$1,924.87
Rounded total
$1,925.00
Wheelchair servicing costs:
Yearly cost - one service every two years at $200 per service
$ 100.00
Weekly cost per year
$ 1.92
Total: $1.92 x 785.6 (6% multiplier for 36 years)
$1,508.35
Rounded total
$1,508.00
Rounded total award for wheelchair:
$8,049 x 50%
$4,025.00
The defendants have provided a schedule of equipment costs in which they have calculated the amount of damages that should be awarded for each of the items which they accept the plaintiff requires and which I have found that the plaintiff will require. The calculations have been made using the six per cent deferred multiplier table. The plaintiff accepts the accuracy of the calculations. I will therefore rely on the defendant's table. Accordingly, in respect of future equipment expenses I award the following amounts in addition to the $4,025 for wheelchair costs:
Walking stick $ 98.00
Pair of bilateral elbow crutches $ 605.00
Walking stick and crutch ferrules $ 334.00
Urinal bottle $ 29.00
Electric can-opener $ 134.00
Stabilising device $ 160.00
Kitchen trolley $ 151.00
Long-handled dustpan and broom $ 61.00
Long-handled pickup stick $ 151.00
Laundry trolley $ 53.00
Universal vehicle accelerator $1,709.00
Disabled parking permit $ 110.00
In respect of the sun protection hat (legionnaire's style), which according to Ms Jodrell will cost $36.95 and require replacement once every year, I award $558 ($36.95 divided by 52 x 785.6). I therefore award a total of $8,178 for future equipment costs.
Past gratuitous services
The parties agree that in the circumstances of the present case the provisions of the Civil Liability Act 2002 (WA) prevent any award for past gratuitous services.
Future paid services
The plaintiff relies on the evidence given by Ms Jodrell in support of his claim in respect of future paid services.
In her evidence Ms Jodrell provided her opinion as to the services that the plaintiff will need to be provided with in the future. Her opinion was based on the plaintiff's apparent effective use of a lower limb prosthesis over long periods during each day and his reported reduced level of pain post amputation. Her evidence was that the plaintiff will require for the rest of his life two hours per week of domestic assistance, 16 hours per year (that is, approximately 20 minutes per week) of heavy cleaning assistance and one hour per week of maintenance and gardening assistance. Using the commercial rates of suppliers of such services she calculated that the annual cost of the provision of these services to be $6,989.44. The plaintiff relies on this figure in calculating the amount that he claims for future paid services.
In relation to the issue of future paid services the defendants rely on the evidence of Dr Economos. In his evidence Dr Economos, with one minor and relatively inconsequential exception, agreed with Ms Jodrell's opinion as to the amount of domestic assistance and heavy cleaning assistance that the plaintiff will require. He did not agree with the allowance made by Ms Jodrell for maintenance and gardening assistance. His evidence was, in effect, that while some allowance should be made in respect of heavier garden tasks and any garden tasks that require the use of a ladder (for example, cleaning gutters), the plaintiff would not require assistance to perform some of the less onerous garden jobs identified by Ms Jodrell such as pruning, sweeping and rubbish removal.
The defendants submit that Ms Jodrell's assessment of the plaintiff's future service needs was made at a time when the plaintiff was wearing only an interim prosthesis and without the benefit of Ms Cavenett's views that the plaintiff will return to near normal function when he is fitted with his final prosthesis. They contend that in these circumstances it is not appropriate to award damages on the basis of precise calculations and that the better approach is to make a global allowance for future services in the range of $15,000 to $20,000.
I do not accept the defendants' submission. It is to a large extent inconsistent with the evidence of Dr Economos. Furthermore, and as I have mentioned above, Ms Jodrell's evidence was based on the plaintiff making effective use of his prosthesis over long periods during each day. Effective use to my mind substantially equates with near normal functional use. I therefore see no reason not to assess damages under this head by reference to hours of assistance required and the commercial rates used by Ms Jodrell. I note that the commercial rates used by Ms Jodrell were not disputed by the defendants.
I am satisfied on the basis of the evidence given by Ms Jodrell and Dr Economos that the plaintiff will for the remainder of his life require two hours per week of domestic assistance and 16 hours per year of heavy cleaning assistance. I am also satisfied that he will have difficulty in performing some of the more heavy duty maintenance and gardening tasks but will be able to perform lighter gardening tasks. I find that he will require one hour of maintenance and gardening assistance per month.
I calculate damages for future service costs as follows:
Domestic assistance – 2 hrs/wk at $31/hr x 785.6 (6% multiplier for 36 years) =
$48,707.20
Heavy cleaning – 0.3 hrs/wk x $38/hr x 785.6 =
$ 8,955.84
Maintenance and gardening assistance – 0.25 hrs/wk x $60/hr x 785.6 =
$11,784.00
Rounded total
$69,447.00
General damages
The plaintiff submits that I should make an award for pain and suffering and loss of enjoyment of life in the vicinity of $200,000. The defendant submits that the appropriate award is in the range of $150,000 to $175,000.
The plaintiff has endured significant pain and suffering for a lengthy period of time. He will continue to suffer pain or some discomfort from his burns, his right limb stump and his soft tissue injuries for the foreseeable future. He has had to adjust to life without his right lower limb. This is an ongoing process.
The plaintiff's recreational activities are limited. He can no longer play sports that he used to enjoy playing. He can no longer hope to return to the occupation that he most enjoyed, namely forklift driving.
The plaintiff has chronic PTSD of moderate severity. He is likely to continue to suffer from this condition for some time yet. He feels unattractive. He is understandably less comfortable than he used to be in social settings.
Taking account of all of these factors, I award $160,000 for the plaintiff's pain and suffering and loss of enjoyment of life.
Summary of award
Past loss of earning capacity $ 245,007.00
Past lost of superannuation $ 13,977.00
Future loss of earning capacity $ 497,622.00
Future loss of superannuation $ 38,155.00
Past medical expenses $ 202,000.00
Past travel expenses $ 18,696.00
Future medical expenses $ 26,999.00
Future prosthetic expenses $ 257,354.00
Future equipment expenses $ 8,178.00
Future provided services $ 69,447.00
General damages $ 160,000.00
Total award $1,537,435.00
0
7
1