Charles Stephan Batiste v State of Queensland
[2000] QSC 315
•14 September 2000
SUPREME COURT OF QUEENSLAND
CITATION: Charles Stephan Batiste v State of Queensland [2000] QSC 315 PARTIES: CHARLES STEPHAN BATISTE (Plaintiff)
v
STATE OF QUEENSLAND (Defendant)
FILE NO/S: S6547 of 1999 DIVISION: Trial Division PROCEEDING: Trial DELIVERED ON: 14 September 2000 DELIVERED AT: Brisbane HEARING DATE: 19, 20, 21, 24, 25, 27 July 2000 JUDGE: Wilson J ORDER: Judgment for the plaintiff against the defendant for $501,412.00 CATCHWORDS: EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE SYSTEM OF WORK – plaintiff psychiatric nurse injured – causation – usual procedure not followed – quantum – posterior dislocation of shoulder – pre-existing instability in the joint – post-traumatic stress disorder – whether diagnostic criteria satisfied – pre-existing anxiety and substance abuse – evidence – whether treating psychiatrist should give medico legal opinion
Brett v Whittingslowe (1945) 71 CLR 637, foll
Chappel v Hart (1998) 195 CLR 232, con
Hallmark–Mitex Pty Ltd v Rybarczyk CA No 11009 of 1997, 4 September 1998, con
Hill-Douglas v Beverley [1998] QCA 435, con
Seltsam Pty Ltd v McGuinness NSW CA Nos 40456/97 and 40463/97, 7 March 2000, conCOUNSEL: JA McDougall for the plaintiff
RC Morton for the defendantSOLICITORS: Murphy Schmidt for the plaintiff
Corrs Chambers Westgarth for the defendant
The plaintiff claims damages for physical and psychiatric injuries sustained during the course of his employment at the Prince Charles Hospital on 4 September 1993.
The plaintiff was employed as a psychiatric nurse at the hospital’s Winston Noble Psychiatric Unit, which was comprised of a number of wards. Ward 7 was a closed ward with a mixed range of patients usually with acute psychiatric problems and in need of confinement and structured treatment and medications.
LIABILITY
Pleadings
The plaintiff relied on the following allegations in his amended statement of claim –
“2.On or about 4 September 1993, the Plaintiff was required to escort a patient which the Defendant by servants or agents knew or ought to have known was potentially violent, to the locked Psychiatric Ward (hereinafter called ‘Ward 7’) in the said Psychiatric Unit.
3.The Plaintiff escorted the said patient to Ward 7 by taking hold of the patient’s right arm with his left hand.
3A.Prior to the patient’s arrival at Ward 7, no warning or no sufficient warning was given to the staff of Ward 7 of the impending arrival of the patient so as to enable the staff to greet and calm the patient.
4.Upon arrival at Ward 7, there were no staff present to greet and calm the patient and the patient became unsettled and violently threw himself into a chair.
5.As a consequence of the patient’s violent movement, the Plaintiff suffered a posterior dislocation of his left shoulder.
6.The Plaintiff’s injury was caused by the Defendant, particulars of which are as follows:
(a)failing to provide sufficient staff so as to safely restrain the patient;
(b).............
(c)failing to ensure that staff were present in Ward 7 to greet and calm the patient upon his arrival there so as to prevent him panicking and becoming violent;
(d)failing to warn or sufficiently warn the staff of Ward 7 of the impending arrival of the patient at the ward.”
The Evidence
On the evening in question he and a fellow employee (Graham Jones) who were working in Ward 5 were summoned to Ward 6 to transfer a patient (“Patient G”) to Ward 7. Such transfers were effected in circumstances where patients were considered to be risks to themselves or to others. Patient G had to be escorted about 150 feet across a grassed oval to another building which housed Ward 7. On arrival at Ward 7 he and his escorts would have to pass through 2 doors separated by an airlock, then take an immediate left turn into a corridor about 20 feet long, before a right turn into the main foyer or reception area where there was a glass nursing station.
On arrival in Ward 6 the plaintiff was told that the man to be transferred had homicidal thoughts towards his wife, that he had been in the Army, that he was capable of handling himself, and that he was “sort of a biggish chappy and a bit angry”. In fact, Patient G was a 27 year old man 188 cm in height and 73 kg in weight. He had been separated from his wife for 6 weeks, and was suffering from an adjustment disorder and a narcissistic personality disorder. At about the time of the separation he had been admitted to Rosemount (another psychiatric hospital) following a paracetamol overdose and cutting his wrists. On 2 September 1993 he had been brought to the Winston Noble Unit by police after comments he would kill his wife and then kill himself. In hospital he had made ongoing threats if he were unable to see his children; he had bragged to another patient that he had a knife. This caused the hospital authorities to decide to transfer him to a locked ward. When staff were packing up his belongings they found a large pocket knife under his pillow.
A team of 4 or 5 male nurses assembled quickly to transfer Patient G. It included the plaintiff, Graham Jones, Frank Troman and John Brookes. The supervisor Tom Mutton was also in attendance. Before they approached the patient, they were assigned particular positions in the escort team - the plaintiff was assigned to his left arm and designated as “the talker”, Jones the right arm, Troman and Brookes the legs. This was in case it became necessary physically to restrain the patient. The talker’s role was to engage the patient in conversation during the transfer.
Patient G was sitting in a small office; his wife and the doctor were there too. The nurses entered, and the plaintiff began talking to him in a non-threatening way, explaining the procedure and that they would be taking hold of him in a certain way and taking him to Ward 7 as the doctor had suggested. He stood up, and the plaintiff took hold of his left arm, placing his left hand on the patient’s left wrist and his right hand slightly above the patient’s elbow, and Jones took hold of his right arm. (This is contrary to paragraph 3 of the pleading where it was alleged that the plaintiff took hold of the patient’s right arm. I accept that the plaintiff grasped patient G’s left arm.) The patient was escorted out of Ward 6 and across the oval without incident. When they reached Ward 7 one of the leg men (Troman and Brookes) opened the first door. They went through the airlock and through the second door still without incident, although Jones said he felt the patient becoming apprehensive as they entered Ward 7.
According to the plaintiff, as they moved towards the main foyer or reception area it was quite obvious that things were not as they should have been. The ward had not been “locked down” - that is, the dormitories and rooms on either side of the corridor were open and staff and other patients were moving about attending to general routine procedures. Registered Nurse Danne Wilson who was in charge of Ward 7 that evening was in the nursing station. She was not expecting Patient G. She told the Court that she heard noises and something attracted her attention; she looked down the corridor and saw the patient being escorted into the ward by a number of male nurses.
I accept the plaintiff’s evidence of what happened. He was keeping up his role as “talker”. As they approached the nursing station, he said to a staff member who was on his wing words to the effect of “Where would you like us to go now? Could you find out where you would like us to go now?” to give staff the hint to go and find someone to sort out the situation. By then they had arrived in front of or near the nursing station. They stopped and chatted a few words to the patient. In a very short space of time he seemed to become agitated, saying “What is going on here?” - but not sufficiently for the plaintiff to call a take-down (i.e. to instruct the other escorts to descend on the patient taking hold of his arms and legs according to their prearranged positions). The patient started to become more agitated and the escorts were preparing to do whatever was necessary when the patient looked straight at the plaintiff, said “Fuck you!” at the same time throwing his left arm slightly up and then down very fast and throwing himself backwards into a chair. The plaintiff tightened his grip and -
“... my whole body - arm stretched out - outstretched, went with him into the chair and he landed into the chair and continued to shake and continued to attempt to shrug me off.
.......
Once again, within a very - number of seconds I felt a click, click and like I was hit - felt like I was hit by a truck or an - overwhelming so much to the point that for all my training and focused attention I found myself staggering backwards. I had let go of the person and was staggering backwards. I was not in control of myself or the situation.”
The plaintiff said he was in extreme pain in the left shoulder region, and that when he looked down -
“the arm was twisted and deformed in a strange sort of way. I did not have control of the arm.”
He had suffered a posterior dislocation of the left shoulder.
The defendant conceded that admission to a locked ward is something that may trigger an incident of challenging behaviour on the part of the patient It is clear from the evidence of Nurse Wilson that staff in Ward 7 were not expecting the arrival of Patient G. I accept her evidence of what she would have done had she been warned of his imminent arrival:
“I would have cleared an area. We have a corridor with doors we can shut off, and the patient can be brought into that area where there’s no other patients there at all. Some staff should have been there. That would be it.”
A good deal of time at trial was taken up with evidence on what would have been the appropriate procedure for receiving him into the ward. The plaintiff and Nurse Gerardus Post maintained that the ward should have been locked down and that there should have been a number of Ward 7 staff present in the reception area in a non-threatening way. According to Nurse Post, the nurse in charge of Ward 7 should have approached the patient and spoken to him, putting him at ease and taking whatever steps were necessary to ensure the safety of the patient and the staff. Dr Nothling, a psychiatrist, rejected the notion that there should always be a reception team; it was a matter of judgment in every case. Further there was no obligation on nurse in charge of the locked ward to come out of the nursing station immediately on arrival of the patient, unless he or she had been forewarned that the patient was very violent, thrashing around and likely to harm someone. I accept the evidence of another psychiatrist, Dr Shand, on this topic. He observed that the absence of anyone to greet the patient introduced a note of objective uncertainty, and that if the patient were already on edge and frightened by his perception of what was happening to him, he would be more so because of that uncertainty. Someone with Patient G’s disorders would be more likely than, say, a psychotic patient, to respond positively to a plan of action which involved engaging his attention, keeping him moving and not giving him time to think about what was happening and showing by inference that force was available if necessary.
Causation
Regardless of whether there should have been a reception team as such, the plain fact is that the staff in Ward 7 were not expecting Patient G and so no preparations of the kind described by Nurse Wilson had been made for his arrival. There was a foreseeable risk that a patient such as Patient G would become aggressive in the circumstances. He did become aggressive, and the plaintiff was injured as a result. I infer that had preparations of the kind described by Nurse Wilson been taken, it is more probable than not that the incident would not have occurred.
In Betts v Whittingslowe (1945) 71 CLR 637 at 649 Dixon J said -
“Breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach.”
Insofar as the present case rests on a failure to warn, the plaintiff has satisfied the further requirement of proving that it is more probable than not that had the warning been given, the injury would not have been suffered: Hill-Douglas v Beverley [1998] QCA 435; Hallmark-Mitex Pty Ltd v Rybarczyk CA No 11009 of 1997, 4 September 1998; Chappel v Hart (1998) 195 CLR 232; Seltsam Pty Ltd v McGuiness NSW CA No 40456/97 & 40463/97, 7 March 2000.
I find that the plaintiff’s injury resulted from the defendant’s -
1. failure to ensure that staff were present in Ward 7 to greet and calm the patient upon his arrival there so as to prevent him panicking and becoming violent; and
2. failing to warn or sufficiently warn the staff of Ward 7 of the impending arrival of the patient at the ward.
(Statement of claim para 6 (c) and (d))
QUANTUM
The plaintiff was born on 21 February 1956. For most of his adult life before the incident on 4 September 1993 he worked as a psychiatric nurse. He trained in Sydney where he remained until moving to Queensland in 1991. His wife was also a nurse. He was a member of the Army Reserve, and he participated in golf, swimming and aerobatic flying. They shifted to Queensland because of their daughter’s asthma and took up residence on the Sunshine Coast. The plaintiff obtained a position at the Winston Noble Unit at the Prince Charles Hospital at Chermside in Brisbane’s northern suburbs, and he commuted between the Sunshine Coast and Chermside for work.
Shoulder Injury
In the incident on 4 September 1993 the plaintiff sustained a posterior dislocation of his left shoulder and a reverse Hill-Sachs lesion or depression fracture in the humeral head. The pain was excruciating. Staff at the Prince Charles Hospital made an unsuccessful attempt at closed reduction of the dislocation. He was then taken to the Royal Brisbane Hospital where it was successfully reduced several hours later. He was hospitalised for some days. His arm was placed in a splint which he wore for several months. Thereafter he had a prolonged course of physiotherapy. On his case he developed a post traumatic stress disorder. In December 1994 the plaintiff commenced employment in Sydney. He worked until January 1997, but has not worked since.
A posterior dislocation is a comparatively rare and serious injury. The risk of dislocation either anteriorly or posteriorly depends upon the relationship between the integrity of the restraining structures of the joint and the degree of force applied to the joint, although the degree of force usually necessary to cause a posterior dislocation has been likened to that in a grand mal epileptic seizure or an electric shock.
The plaintiff had a history of left shoulder problems beginning with an injury (probably an anterior dislocation) sustained while working as a psychiatric nurse in Gladesville in Sydney in the 1980’s. In January 1990 he sustained a significant anterior subluxation if not a frank dislocation in another incident involving an aggressive patient. He consulted his general practitioner Dr Dalgliesh and was referred to Dr Michael Stuckey, an orthopaedic specialist. He had several weeks off work. Over the ensuing 19 months or so he complained to Dr Stuckey of ongoing symptoms which were suggestive of some ongoing capsular or ligamentous insufficiency around his left shoulder. Dr Stuckey considered that the instability which still remained in August 1991 was infinitesimal and of little or no consequence during the next two years. The plaintiff gave evidence that there were times when he felt crunches and clicks in his left shoulder, but that was able to work. In March 1993 there was a comparatively minor incident in which he pulled a box down from a shelf; his left shoulder became painful and felt as though it had either dislocated or subluxed.
There was some conflict in the orthopaedic evidence as to the significance of this history. This is relevant to the likelihood that he could have continued as a psychiatric nurse had it not been for the incident on 4 September 1993. All agreed that some specific episode would be required to produce a posterior dislocation. Dr Sonnabend and Dr Morgan seemed to agree that the greater the instability anteriorly and inferiorly the less the force that would be required to produce a posterior dislocation. However, in Dr Sonnabend’s opinion a significant force would still have been necessary to produce a posterior dislocation. Dr Morgan thought that the number of consultations with his general practitioner in relation to the shoulder (17 consultations over 3 years) was indicative of a predisposition to posterior dislocation. Dr Stuckey was of the view that the anterior dislocations and subluxations had no bearing on the likelihood of a posterior dislocation, but was nevertheless of the view that the condition of his shoulder was such that, even without the injury in question, he would sooner or later have reached the stage where he could not continue with psychiatric nursing. He could not say how long it might have taken for him to reach that point, and he agreed that if he had moved out of acute psychiatric nursing into a ward where he dealt with less aggressive patients then his exposure to possible subluxations and injuries would have been reduced. Although mindful of Dr Sonnabend’s evidence that anterior instability can be treated surgically with a success rate of over 90%, I nevertheless find that the plaintiff had some instability in his shoulder joint which may, at some indeterminate time, have prevented him from continuing with acute psychiatric nursing in any event. I do not accept that he was vulnerable to a posterior dislocation without a significant traumatic episode, which that on 4 September 1993 clearly was.
In Dr Stuckey’s opinion the plaintiff has an orthopaedic disability amounting to 30% permanent loss of the useful function of his left arm at or above the elbow. Of this overall disability some 80% should be attributed to the injuries sustained in September 1993. Dr Morgan assessed the disability as a 20% impairment of normal left upper limb function, but attributed only one-third of the current disability to the posterior dislocation. I accept the evidence of Dr Stuckey who had had the advantage of examining the plaintiff on a number of occasions between January 1990 and August 1991 and so forming an opinion of his pre-accident state based on his own clinical observations.
Psychiatric Injury
The plaintiff claimed to have suffered a post traumatic stress disorder as a result of the incident on 4 September 1993. The defendant disputed this, and submitted that it is more probable than not that he suffers from anxiety and substance abuse problems which he has had for many years.
The plaintiff gave evidence that while he was in Royal Brisbane Hospital in September 1993 he had difficulty sleeping, he had nightmares about the incident at the Winston Noble Unit and he would wake up in cold sweats. These ceased for a while, but returned “with great vengeance”. He became depressed, and his general practitioner prescribed Zoloft, an antidepressant medication.
His wife had a good job in Sydney. She commuted between Sydney and the Sunshine Coast weekly. After a time the plaintiff moved to Sydney, leaving his daughter in Queensland with relatives. This was initially intended to be a temporary measure, as he was hoping to resume employment somewhere in the Queensland hospital system. He made considerable efforts to obtain work at the Prince Charles Hospital, but to no avail. The defendant called the personnel officer at the hospital, Ian Mitchell, who gave evidence that in 1994 he offered the plaintiff a position as a ward receptionist at the Winston Noble Unit, but that the plaintiff rejected it. According to Mr Mitchell, it was within his authority to make such an offer orally, which he did; the plaintiff wanted time to think about it; and the plaintiff subsequently telephoned him and rejected the offer because it would involve too big a drop in salary. The plaintiff denied that Mr Mitchell offered him a position; according to him, Mr Mitchell did not tell him that there was a job available, but that he was hoping to try to organise something if he could. It is strange that there was no written record of such a job offer in all the circumstances. There is no evidence that the plaintiff could have coped with such a job at the time. In all the circumstances, I think Mr Mitchell’s recollection is faulty, and I do not accept his evidence on this point.
In December 1994 he obtained work at the Evesham Clinic in Sydney. He did not tell his new employer what had happened at the Winston Noble Unit in September 1993. This was a private psychiatric hospital where most of the patients were war veterans. He described it as a "totally non-aggressive private hospital" where the patients were treated with psychotherapy. The work was not physically demanding. After a time he was transferred to a sister clinic a few kilometres away, the Northside Clinic. Again the work was not physically demanding. There were no aggressive patients, even in the acute ward. He was involved in the provision of therapy to veterans who were suffering from post traumatic stress disorder. Performance appraisals were carried out by his superior Ms Kim Lang, who reported in glowing terms. In her oral evidence she observed that he was always an anxious person.
On the plaintiff’s evidence, he coped mentally by refusing to admit that anything was wrong and by becoming a workaholic. He said -
“I don’t think I was doing very well. I tried to keep up a very good appearance, work harder, any concerns [sic] but at home, at night-time I would be fairly depressed, fairly despairing, agitated of course. The memories would be there. I would be reminded that - of the injury and what had happened to me and things and I would just do something or work harder to try to get rid of those memories.”
In August 1996 an Israeli specialist in post traumatic stress disorder, Professor Shalev, visited the Northside Clinic. One evening, after work, the plaintiff attended a lecture given by Professor Shalev about the disorder among Israeli combat victims. He had consumed alcohol before the lecture, although the amount is not clear. Professor Shalev estimated that 40% of them would not recover. Shocked by this, the plaintiff sought out Professor Shalev for a private chat after the lecture.
“I talked to him and said that certain things had happened to me and that I felt unwell and, you know, maybe - you know, it’s just getting too close to the bone. I don’t want to know that I’ve got this but it’s too close to the bone. We talked about a couple of things and he just said that, ‘If this is the case, then you’ve had it for how long?’, ‘For X number of years’, he said, ‘I don’t think that you have got a chance of full recovery from this,’ and with that I - I felt rather devastated and went outside and was - was a bit tearful.”
Some of the plaintiff’s fellow employees witnessed his reaction and reported it to the employer. At work the next day the plaintiff was approached by supervisors. He had to explain what had happened to him in Queensland, and was taken off duty. He was given the option of consulting a psychiatrist or being admitted to a psychiatric clinic. He took the former option, and was referred to Dr Parmegiani who assessed him on 2 September 1996, and thereafter gave him six sessions of therapy. His solicitors referred him to Dr Shand, another psychiatrist, for a medico-legal opinion. Dr Shand assessed him on 3 and 9 October 1996, and at his request, began to treat him before the end of October.
Both Dr Parmegiani and Dr Shand diagnosed post traumatic stress disorder as a result of the incident in September 1993. Dr Shand, who continued to treat the plaintiff up to the trial, maintained that opinion. Dr Nothling, also a psychiatrist, assessed the plaintiff for medicolegal purposes at the request of the defendant’s solicitors in November 1998, and he subsequently reviewed his general practitioner’s records. He refuted the diagnosis of post traumatic stress disorder, and expressed the opinion that his current state was attributable to the long term history of a preexisting anxiety disorder coupled with chronic substance abuse (alcohol). To resolve this conflict it is necessary to consider the plaintiff’s history before and after the incident in question as well as the accepted criteria for a diagnosis of post traumatic stress disorder.
The accepted criteria for a diagnosis of post traumatic stress disorder are those set out in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders 4th ed (1994), which is referred to as “DSM – IV”. There are six criteria -
A. exposure to a traumatic event;
B. persistent re-experiencing of the traumatic event;C.persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma);
D. persistent symptoms of increased arousal (not present before the trauma);
E. duration of the disturbance of more than one month;F.the disturbance causing clinically significant distress or impairment in social, occupational or other important areas of functioning.
The disorder is classified as acute if the symptoms last less than 3 months, and chronic if they last 3 months or more. It is described as being with delayed onset if the onset of the symptoms is at least 6 months after the stressor.
In order to meet criterion A, the trauma must have involved actual or threatened death or serious injury or threat to the physical integrity of self or others and the person’s response must have involved intense fear, helplessness or horror. I have already referred to the orthopaedic evidence that the force required to produce a posterior dislocation of the shoulder can be likened to that in electrocution or a grand mal seizure, to the plaintiff’s evidence that he was overwhelmed by what happened and that he experienced excruciating pain. I accept the opinions of Dr Parmegiani and Dr Shand that the plaintiff’s trauma met the requirements of criterion A, and reject the evidence of Dr Nothling to the contrary.
The plaintiff’s reliability as a witness is an important factor in the determination of whether he developed a post traumatic stress disorder as a result of the incident in September 1993. As counsel for the defendant submitted, there was no evidence but his that he suffered symptoms before his breakdown after speaking with Professor Shalev, 3 years later. The coincidence that the plaintiff was working as a psychiatric nurse caring for patients with the disorder immediately before he first complained of symptomatology which would justify such a diagnosis cannot be lightly disregarded. There was no explanation of the failure to call his wife to corroborate his evidence of his problems in the meantime; relying on Jones v Dunkel (1959) 101 CLR 298, counsel for the defendant submitted that I should draw an inescapable inference that she would not have assisted her husband’s case. In my view the rule in Jones v Dunkel is not applicable since no evidence had been given calling for an explanation or contradiction: Jones v Dunkel at 321-22; Cross on Evidence 5th Australian edition para 1215. He was clearly unreliable in the history he gave the psychiatrists. He did not tell them about the stress about which he had consulted his general practitioner in October 1981, August 1983, August 1989 and March 1991, or of the extent to which he drank alcohol at such times. He did not reveal all of the stressors in his life after the incident in question - a motor vehicle accident in 1994 in which he and his wife were injured (he suffering migraines at intervals for about 18 months), the death of his sister from cancer in 1995, and his wife’s stroke in 1997. He had a tendency to be tangential in his responses to questioning. I do not regard these factors as necessarily pointing to deliberate untruthfulness; rather, they were a feature of his mental state. I accept Dr Shand’s observation that the fact that he was an unreliable historian does not necessarily contradict or refute the diagnosis; that the question is whether there is other evidence which undermines or contradicts it. Moreover, post traumatic stress disorder can have a late onset.
Counsel for the defendant submitted that the plaintiff’s behaviour in trying to return to work at Prince Charles Hospital was inconsistent with diagnostic criterion C. However, Dr Parmegiani and Dr Shand gave evidence (which I accept) that in rare cases patients with post traumatic stress disorder exhibit counterphobic behaviour. Further, as Dr Shand pointed out, the plaintiff was desperate for work, and it is possible he overcame his avoidance.
There was also the curiosity of his having resumed his activities with the Army Reserve to the point of participating for 3 or 4 weeks in an exercise at Shoalwater Bay in 1996 or 1997. However, symptoms of post traumatic stress disorder can fluctuate in their severity.
There is a body of opinion among psychiatrists that a treating psychiatrist ought not to give a medicolegal opinion with respect to his or her patient. Dr Shand was criticised on this score. However, it should be remembered that he was asked first to make a medicolegal assessment, and subsequently became the treating doctor. Be that as it may, I understand the concern to relate to the potential harm to the doctor-patient relationship and so to the effectiveness of therapy administered by the doctor rather than to the objectivity or value of the medicolegal opinion. I do not consider it to be a reason not to accept Dr Shand’s evidence. Of the three psychiatrists he had had the most contact with the plaintiff and the greatest opportunity to assess him. I accept his opinion that the plaintiff developed a chronic post traumatic stress disorder as a result of the incident in September 1993, and that by the time of the trial he was still suffering from that disorder, as well as from depression and anxiety, and was unfit for any employment.
As a result of his orthopaedic and psychiatric injuries the plaintiff will not be able to resume work as a psychiatric nurse. He is now aged 44 years, and there is little prospect of his undergoing retraining or obtaining other work. Given his preexisting instability in the shoulder and his preexisting problems with anxiety and alcohol, he may in any event have reached the point where he could not continue with such work, or at least with work in an acute psychiatric ward. These are factors which will cause me to discount the damages for future loss of earning capacity to a greater extent than I would otherwise.
Assessment
I assess damages for pain and suffering and loss of the amenities of life at $60,000. I allow interest on $30,000 of this over 7 years at 2% per annum ($4,200).
Since the incident on 4 September 1993, the plaintiff has received net income of $86,305-77 (including $16,466-15 from the Prince Charles Hospital) as well as $2,279-96 from the Army Reserve. His counsel produced a schedule of what he could have expected to have earned but for the incident, based on the relevant industrial award: it came to $197,748-07 net. He submitted that the plaintiff is entitled to $111,442-30 being the difference between what he might have earned and his actual income. However, there must be some discounting for the vicissitudes of life (including the risk of anterior subluxations or dislocations of his left shoulder and or his preexisting mental condition causing him to lose work), and for the saving in travelling expenses associated with his employment at Prince Charles Hospital. The plaintiff usually commuted daily between his home on the Sunshine Coast and the hospital, a round trip of 240 kilometres. About once a fortnight he stayed in accommodation provided by the hospital. Counsel for the defendant submitted that I should make an allowance of $480 per week based on 4 trips of 240 kms at 50 cents per kilometre (that being the agreed rate per km). However, I think it would be more appropriate to make some global allowance for the saving in travelling expenses having regard to these factors: the plaintiff’s wife was working in Sydney; he may not have remained at Prince Charles Hospital but may instead have obtained work closer to home; alternatively he may have changed his place of residence. Taking into account the need to discount for the vicissitudes of life and making such a global allowance for the saving in travelling expenses, I assess past economic loss at $85,000.
The plaintiff received weekly compensation and a lump sum compensation payment totalling $28,855-30. Accordingly I allow interest on $55,000 of the past economic loss over 7 years at 5% per annum ($19,250).
The plaintiff claims lost employer’s contributions to his superannuation. It was agreed by counsel that it would be appropriate to calculate such loss by taking 6% of the past economic loss and then deducting 30% of the result on account of income tax. Adopting that approach, I assess loss of pretrial superannuation contributions at $3,570.
The plaintiff claims over $390,000 for loss of future earning capacity by reference to payments under the relevant industrial award (making provision for progression through higher pay levels from $633-95 net per week to $674-80 net per week in 3 years’ time) to the age of 65 (discounted for present value using the 5% tables) and then discounted by 15% for the vicissitudes of life. That is a useful starting point in the assessment of this head of damages, but for the reasons I have already explained in paragraph 33, I consider that the discount must be greater than the conventional 15%. In all the circumstances I have assessed future loss of earning capacity at $300,000-00.
In assessing future employer’s contributions to the plaintiff’s superannuation there must be allowance for contribution factors of 8% until 30 June 2002 and 9% thereafter. I assess such loss at $18,500.
There is a claim for the value of services gratuitously provided by the plaintiff’s wife. On the evidence I am prepared to allow 4 hours per day over 118 days at the agreed rate of $9-50 per hour ($4485). Interest on that sum over 7 years at 5% per annum comes to $1570.
Special damages paid by the Workers’ Compensation Board of Queensland total $3495-59. In addition, I allow other medical expenses of $4365-75, pharmaceutical expenses of $7,500 and travelling expenses of $6155. I round off the total to $18,000. I have reduced the pharmaceutical expenses claimed by disallowing medication for stress and allowing only half of the pain killers. I have not allowed the removalist and storage expenses as I am not satisfied that these were reasonably incurred as a result of the injuries sustained in September 1993. Interest on $18,000 over 7 years at 5% per annum is $6,300.
In relation to the claim for future pharmaceutical expenses, I allow $3,800 being the cost of Digesic at $4-48 per week over 33 years (discounted for present value using the 5% tables).
The Fox v Wood component is $5,592-30.
The WorkCover “refund” is $32,350-89.
In summary, I assess damages at $501,412-00 made up as follows -
Pain and suffering, etc $ 60,000-00
Interest on past pain and suffering $ 4,200-00
Past economic loss $ 85,000-00
Interest on past economic loss $ 19,250-00
Past superannuation contributions $ 3,570-00
Loss of future earning capacity $ 300,000-00
Future superannuation contributions $ 18,500-00
Past Griffiths v Kerkemeyer $ 4,485-00
Interest on past Griffiths v Kerkemeyer $ 1,570-00
Special damages paid by WCBQ $ 3,495-59
Other special damages $ 18,000-00
Interest on special damages $ 6,300-00
Future pharmaceutical expenses $ 3,800-00
Fox v Wood $ 5,592-30
$ 533,762-89
Less WorkCover refund $ 32,350-89
$ 501,412-00
I give judgment for the plaintiff against the defendant for $501,412.
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