| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CREAGH -v- J R ENGINEERING SERVICES PTY LTD & ORS [2002] WADC 88 CORAM : NISBET DCJ HEARD : 11-15 & 18-22 FEBRUARY 2002 DELIVERED : 10 MAY 2002 FILE NO/S : CIV 3407 of 1998 BETWEEN : SHAUN DODD CREAGH Plaintiff
AND
J R ENGINEERING SERVICES PTY LTD (ACN 009 173 040)
First Defendant
MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD (ACN 008 861 836)
Second Defendant
HENRY WALKER SERVICES PTY LTD (ACN 071 134 168)
Third Defendant
HENRY WALKER ELTIN PTY CONTRACTING PTY LTD (ACN 009 624 138)
Fourth Defendant
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Catchwords:
Torts - Negligence - Personal injuries - Damages - Assessment - Turns on own facts
Legislation: Workers' Compensation and Rehabilitation Act 1981
Result: Award of $887,338.23 Representation:
Counsel:
Plaintiff : Mr R I Viner AO QC & Mr M E Herron
First Defendant : Mr P E Jarman
Second Defendant : Mr M H Zilko SC & Mr N M Beech
Third Defendant : Mr M H Zilko SC & Mr N M Beech
Fourth Defendant : Mr M H Zilko SC & Mr N M Beech
Solicitors:
Plaintiff : Slater & Gordon
First Defendant : Jackson McDonald
Second Defendant : Pynt McKay
Third Defendant : Pynt McKay
Fourth Defendant : Pynt McKay
Case(s) referred to in judgment(s):
Fox v Wood (1981) 148 CLR 438
Malec v J C Hutton Pty Ltd (1990) 92 ALR 545
Case(s) also cited:
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Tort Rep 81-043
Henville v Walker (2001) 75 ALJR 1410
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March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Morris v Zanki (1997) 18 WAR 260
Potter v State Government Insurance Commission (1990) A Tort Rep 81-015
Thomas v O'Shea (1989) A Tort Rep 80-251
Villasevil v Pickering (2001) 24 WAR 167
Wade v Allsopp (1976) 50 ALJR 643
Watts v Rake (1960) 108 CLR 158
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1 NISBET DCJ: On 21 June 1996 the plaintiff sustained an injury during the course of his employment with the first defendant as a trades assistant. The first defendant is an electrical contractor and in June of 1996 it had a contract for the supply and installation of electrical works at the Yandi Iron Ore Mine and Processing Plant then being commissioned by BHP. On the day of the accident the plaintiff was directed to assist in unloading some lighting poles and cable trays and other equipment from two semi-trailers and in order to undertake this task he was directed to work with a crane and crane driver supplied by the second defendant. The site was under the control and supervision of the third and fourth defendants and when the trial commenced both liability and quantum of damage were in dispute. On the morning of the second day of trial however all of the defendants reached an agreement the terms of which were that they admitted their liability in damages to the plaintiff in the proportions 60 per cent to the first defendant, 25 per cent to the second defendant and 15 per cent to the third and fourth defendants jointly. In consequence of this agreement all contribution proceedings between the defendants were dismissed with no orders as to costs and the matter then proceeded as an assessment of damages with the second defendant having the carriage of the action on behalf of the defendants, each of the first, third and fourth defendants appointing counsel for the second defendant as their counsel in the contested assessment proceedings and, in the case of the third and fourth defendants they appointed the solicitors for the second defendant as their solicitors for the conduct of the assessment proceedings and filed notices of change of solicitors to reflect this. I should also record that it was further agreed between the defendants that they would bear the costs of the action in the same proportions as they had agreed to accept liability.
Pre-accident history 2 The plaintiff was born on 19 January 1971 and was raised in Victoria where he left school at age 15 years. For the next four years he undertook a variety of part-time jobs working at an abattoir and as a bricklayer's labourer. In March of 1990 he obtained employment with an exhaust centre as a trainee fitter where he was trained to repair brakes and exhaust systems, his duties changing over time such that eventually he had dealings with customers, invoicing and the ordering of spare parts. He remained there for some two and a half to three years until the business closed. He was then about 22 years of age. He undertook further employment as a general hand and forklift driver with Spicer's Paper for about nine months and then with an instrument company from whence he moved to work as a process worker then leading hand until he obtained
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another job as a forklift driver. By this time he was living with his sister in one of Melbourne's outer suburbs and he made enquiries about work in Western Australia because he was told that he had some cousins in Western Australia who had work in the mining industry. He travelled to Norseman where after a week he obtained employment for two weeks at a local delicatessen. This was in February and March of 1995. Whilst there he was making enquiries about obtaining employment at mines in the area eventually obtaining work at the Chalice Gold Mine where he worked for the first defendant. This was about April of 1995, he said, however Exhibit P16 suggests that it was 1 June 1995. He was employed as a tradesman's assistant to various trades engaged by the first defendant. He remained in this employment until September of 1995 when he went back to Norseman where he stayed with his cousin obtaining work at a local gypsum plant doing various odd jobs including driving. This work lasted for about six weeks until he was obliged to return to Victoria for his mother's funeral. Whilst in Victoria he obtained some work with Transfield as a trades assistant for about two months. 3 During this period in Victoria the plaintiff stayed in touch with Peter Yates, the electrical contracts manager for the first defendant. Mr Yates found work for the plaintiff as a trades assistant at Muchea for five months from January to May of 1996 although this was not with the first defendant. When this work finished the plaintiff again contacted Mr Yates who found him employment with the first defendant as a trades assistant at Yandi where the first defendant had a substantial contract for electrical works. The plaintiff arrived in Yandi in late June 1996.
The accident 4 On 21 June 1996 the plaintiff's immediate supervisor, Mr Peter Parsons, came and asked the plaintiff to assist in unloading a road train. He was to work with a mobile crane and driver and whilst not a qualified dogman was shown how to sling loads on the truck and where they were to be unloaded. Towards the end of the unloading procedure it became necessary to unload some lighting towers, these being of the type commonly seen in and around Perth for street lighting, made of steel, octagonal in shape and tapering to a curved top section, there being six or seven separate sections to each of these towers. Generally speaking this load was taken off one section at a time, placed on the ground, and repeated. The plaintiff was left alone to do this with the crane driver for one and a half to two hours when the crane driver instructed the plaintiff that the last two sections would be done as one lift. The plaintiff slung the
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load on the truck then jumped off the truck as the crane reversed back with the load and lowered the sling to waist high whereupon the plaintiff approached the load to steady it and move with the crane to the set-down area. Wooden beams (called "gluts") had been put in place by the plaintiff for the sections of the lighting tower to be placed across for ease of later handling. Before the load was to be laid down the plaintiff asked the crane driver to stop because one of the gluts needed moving. The plaintiff bent down to move the glut and just as he finished doing this and went to stand up he felt the crane load on top of him. He was still standing with the load on his head, back and shoulders. He was calling out to the crane driver to stop but the load had slipped from its sling and was beyond the control of the crane driver. The plaintiff described the weight of the load on him as being "huge". He said that he felt like he was being pressed into the ground and he watched his right leg break under him whereupon he felt like the ground opened up as he "fell in a hole". 5 Workmates around dragged the plaintiff clear, an ambulance arrived and, as can be readily imagined, the plaintiff was in great pain and frightened. Immediately he felt pain where his leg was broken and in his back. He was placed on a stretcher and taken to the site first aid room where he was put onto a bed and examined by two nurses who told him he needed to have his broken leg put in a splint, an excruciatingly painful experience. The Royal Flying Doctor Service was called and he was flown to Port Hedland, the hospital there being unable to deal with him in consequence of which he was flown to Perth and admitted to Royal Perth Hospital. He was accompanied on the aeroplane by a nurse but for reasons not made clear to me he was apparently not given any major pain relief until he was admitted to Royal Perth Hospital. 6 At Royal Perth Hospital the plaintiff's most immediate need was in respect of his right leg, and an orthopaedic surgeon, Mr Douglas Sneddon, treated this by open reduction and internal fixation using a locking nail. Subsequently he was diagnosed with a modest wedge fracture of the anterior superior margins of the L2/3, L3 and L4 vertebrae and the presentation of pars interarticularis defects of L2 and L3 in respect of which there was some doubt as to whether they preceded the accident or were caused by it. Subsequently again he was diagnosed with a fracture dislocation of the right acromio-clavicular joint. The plaintiff remained as an in-patient at Royal Perth Hospital for 16 days following which he was discharged. The plaintiff said he wanted to get out of the place as soon as possible.
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Treatment history
7 The plaintiff, alone in Perth with no family or friends he could rely on save for his then girlfriend, was visited by a rehabilitation counsellor then employed by WorkCover, Ms Sandra Hartman. The first defendant had contacted her and asked her to look after the plaintiff, her role being to assist with his vocational rehabilitation and liaise with medical practitioners in his convalescence and rehabilitation. Ms Hartman assisted the plaintiff to find accommodation initially at the Mercure Hotel in Irwin Street in Perth. The plaintiff was not even ambulatory on crutches and it has been a matter of consistent concern of mine that the plaintiff would have been discharged in circumstances such as this. Ordinarily I would have thought that he was a candidate for discharge to the Shenton Park Annexe of Royal Perth Hospital which specialises in rehabilitation. I was given no evidence by way of a discharge summary from Royal Perth Hospital or evidence of any other type which would enable me to ascertain whether or not this step was even contemplated for the plaintiff or whether his desire to get out of hospital was expressed so strongly that that step was simply discounted by those having the management of his care at Royal Perth Hospital. 8 Whatever the reason for this Ms Hartman testified that the social workers at Royal Perth Hospital could not help the plaintiff and she stepped into the role. It was Ms Hartman who took the advice of an occupational therapist in finding a hotel with facilities for the disabled and having found the Mercure Hotel, assessed the need for further assistance for the plaintiff and then hired a wheelchair and shower chair for him. She stayed in contact with the plaintiff by telephone and personal visits then found that he was not being assisted with his washing and toileting. She said that the plaintiff was not able to do it so she did it even though it was not her role. As a rehabilitation counsellor certainly it may be observed that the assistance she gave the plaintiff was above and beyond that ordinarily expected of her calling. Ms Hartman also arranged for the plaintiff to be seen by a general practitioner who could oversee his convalescence and rehabilitation, making an appointment and attending with him upon Dr Eddy Bajrovic. After two weeks or so at the Mercure Hotel the plaintiff said the first defendant wanted him moved and accommodation was arranged for him at Seashells Resort in Scarborough where he said he was told he could stay as long as was necessary. He stayed there for approximately 10 to 12 weeks, wheelchair bound for approximately four to six weeks of this time. The plaintiff said he then started to be able to use his crutches although with considerable difficulty because he was experiencing pain in his back, his leg and his right
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shoulder. As the plaintiff became more mobile so Ms Harman's extra-curricular assistance lessened. This would have been six or seven weeks after the plaintiff took up residence in the Seashells Resort and approximately eight or nine weeks after his discharge from Royal Perth Hospital. 9 The plaintiff's care was being overseen by Dr Bajrovic who first saw him on 10 July 1996. Although it was not clear to me I infer that it was Dr Bajrovic who had referred the plaintiff off to physiotherapy and hydrotherapy during this period. These he had attended, going to and from by taxi. He continued using crutches until about September or October of 1996 and it was about this time that he met Ms Lynette Harris (now Mrs Murphy) who ultimately became his girlfriend. They met at a bar in Scarborough when some friends of the plaintiff's called and took him out for a drink to cheer him up. As the relationship developed Ms Harris was of considerable assistance to him assisting with meals, transport and the like. 10 During this period the plaintiff was referred by Dr Bajrovic to a clinical psychologist, Mr Graham Guest, who first saw him on 30 October 1996. Mr Guest continued to see the plaintiff at approximately monthly intervals from that time until trial. He noticed a change in the plaintiff's presentation during this period, indeed, he noticed a number of changes. Initially the plaintiff presented to him and was referred on occasion of what Mr Guest diagnosed as post-traumatic stress disorder in that the plaintiff was troubled by intrusive thoughts about his accident. "Intrusive thoughts" are thoughts over which a person has no control. There were associated nightmares and physical reminders of his injuries occasioned by thinking about his accident. He had difficulties with sleep, was irritable, couldn't concentrate and was easily startled. Mr Guest treated the plaintiff and thought that he responded well such that his post-traumatic stress syndrome symptoms subsided. As these symptoms subsided however the plaintiff's mood began to deteriorate such that in the early part of 1997 Mr Guest noted that the plaintiff was depressed and isolated which he thought coincided with the plaintiff having undertaken a failed attempt at a return to work in Kalgoorlie. As the plaintiff commenced a TAFE course of remedial studies in mathematics and English during 1997 Mr Guest thought that by October of that year the plaintiff's mood had improved to the point where his clinical depression was in remission, however problems with his mood continued. Mr Guest continued to see the plaintiff throughout 1997 and 1998 by which time the plaintiff had been commenced on narcotic analgesia which gave rise to further concerns about his mood, particularly from Ms Harris. Mr Guest
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noted that the plaintiff and his girlfriend attended upon him on a number of occasions because Ms Harris was very concerned about the plaintiff's mood which she thought was exacerbated by his medication. Mr Guest certainly noted a deterioration in the plaintiff's mood which he said was probably made worse by medication. Certainly he noted the plaintiff's continuing loss of condition and depression, the breakdown in his relationship with Ms Harris, his isolation, and despair that his legal situation would ever be resolved, a matter which seemed to weigh very heavily upon him. 11 It wasn't clear to me precisely when it occurred but sometime towards the end of 1996 or in early 1997 the plaintiff was referred to an exercise physiologist who he said was unable to assist him and who in fact aggravated his pain. 12 In the latter part of 1996 he was again required to move this time from the Seashells Resort to a motel in Belmont to be closer to the first defendant's premises. At this time the plaintiff described his condition as being depressed and emotional and said that he was scared about his future. In consultation with Ms Hartman he suggested that he might have a role to play in labour hire and eventually some duties were found for him such that he could go to Kalgoorlie to the first defendant's branch there and undertake employment. In order to do this he drove to Kalgoorlie by himself taking some 12 or 13 hours. This was 20 January 1997. He worked for three half days a week, on one occasion for a full day, persevering with this he said, until April of 1997 when he returned to Perth for medical treatment and did not return to Kalgoorlie. 13 The plaintiff testified that when he came to Perth in April of 1997 he was referred to Dr Merrick who told him to cease all activities and give his body a chance to rest. This is not quite right. Dr Merrick's report of 18 March 1997 shows that he had seen the plaintiff by that date, and allowing for the time to see his general practitioner, Dr Bajrovic, and then for the referral to Dr Merrick the plaintiff could not have been in Kalgoorlie as long as he said he was because the record shows that he was not reviewed by Dr Bajrovic for the purpose of giving him a medical clearance prior to his departure to Kalgoorlie until Friday, 17 January 1997. And, the plaintiff further said that he did not arrive in Kalgoorlie until 20 January 1997 Certainly however the plaintiff was told to cease all activities as Dr Merrick's report previously referred to discloses. 14 During this period too, he was prescribed Prozac by Dr Bajrovic and, not long after, in June of 1997, the plaintiff was re-admitted to hospital for
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the removal of the pin in his right leg which he said caused him a lot of pain resulting in him being bed-ridden for two weeks. During this period he was cared for by his girlfriend Ms Lynette Harris they, by that time, having commenced living together. 15 The plaintiff said that he remained in a great deal of pain following the removal of the steel rod from his leg and he returned to Dr Merrick who advised him to take stronger medications, which the plaintiff said he did not want. The plaintiff further testified that he told Dr Merrick that he was "going crazy with boredom" and in consequence Dr Merrick suggested that the plaintiff undertake a course of study at the day school at the Shenton Park Rehabilitation Centre which he did between August of 1997 and December 1997 studying Year 10 maths and English. The plaintiff said that he had certain difficulties in undertaking this study because he had only gone to Year 9 in his schooling. Further, he said that his pain state only permitted him to remain in class for one or two hours before he had to leave. He took Deloxine on the suggestion of Dr Merrick but this had no effect on his pain levels. Because of this Dr Merrick referred the plaintiff to a pain specialist at the Royal Perth Rehabilitation Hospital, Dr Baskaranathan, whom he first saw on 9 November 1997. Dr Baskaranathan is a rheumatologist by training but works in pain management. Dr Baskaranathan prescribed Methadone for the plaintiff but to no effect. Initially it was a low dose, increased in size but it made the plaintiff vomit and it had a strong sedative effect. This was bad for his relationship with Ms Harris. 16 The failure of the Methadone treatment apparently occasioned Dr Baskaranathan to refer the plaintiff to Dr Perlman, also in the Pain Clinic at the Royal Perth Rehabilitation Hospital and he in turn suggested that the plaintiff undergo a nerve block procedure for which he was admitted to hospital on 18 December 1997. He was awake during the procedure and said that he felt the needle go into his back, describing it as being like "someone sticking a hot knife into my back and cutting me up inside". This procedure left him in more pain than previously he said, and as a result his Methadone dosage was increased by Dr Baskaranathan. Returning to Dr Perlman in January of 1998 the plaintiff said he was told that it would take time for the nerve blocks to work. As before, the Methadone made the plaintiff nauseous and sedated such that he said he could not function on a day-to-day basis. His relationship with Ms Harris was faltering. He returned to Dr Baskaranathan who, with some reluctance as I understand the evidence, put him on MS Contin which is an opiate and highly addictive – the reason why it is only prescribed as a last resort and with reluctance because it gives rise to dependency
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problems. Nevertheless this was initially prescribed in therapeutic doses of 10 milligrams three times a day and because of the plaintiff's complaints that it was not working this dosage was increased to 30 milligrams, then 60 milligrams, then 100 milligrams which occasioned for the plaintiff the same problems as he had with Methadone. Even at these high dosages the plaintiff says that his pain remained. 17 The evidence of the period during which these dosages were increased was not particularly clear. Certainly by the date of Dr Merrick's report of 21 August 1998 his dosage was at 60 milligrams. 18 In February 1998 the plaintiff commenced a business studies course at TAFE and, he said, as before, he had difficulties in attending classes and remaining in class for the duration of the lessons. 19 In mid-1998 he developed a bald patch on the left side of his head. He was referred to a dermatologist, Dr Christopher Clay, who diagnosed the condition alopecia areata which he said is known to be exacerbated by emotional stress. He received an injection of steroids and some other topical treatments in consequence of which his hair grew back after about six months. The photograph, Exhibit P3, illustrates the problem. 20 Next the plaintiff said he began experiencing problems obtaining an erection which caused difficulties for his relationship with Ms Harris. The plaintiff obtained a referral to a specialist, Dr Chew, at the Keogh Institute for Medical Research, who prescribed injections which the plaintiff said did not work, and was prescribed Viagra which gave him two erections but no more. The plaintiff said that this was distressing to himself and Ms Harris and affected his mood and their relationship. Continued consultations with Mr Guest were of some (but regrettably not lasting) effect and eventually in May of 1999 the plaintiff and Ms Harris agreed to separate. From this time the plaintiff was then living alone again and was without the regular support of Ms Harris who he said had been assisting him on a daily basis, she having given up full time employment and worked part time in order to be available to help him. Nevertheless Ms Harris continued to come and help out regularly, the degree of her assistance gradually reducing when in August 1999 the plaintiff employed a cleaning agency, Flying Domestics, and even so Ms Harris would still continue to assist the plaintiff by taking him shopping. 21 Ms Harris, who has since remarried, and is now known as Mrs Murphy, was called to give evidence. She is clearly a gentle and
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caring person who impressed me with her kindness and sincerity. She described the commencement of her relationship with the plaintiff and how it developed to the stage where she was rendering more and more assistance to him until it got to the stage where after the plaintiff had his pin removed from his leg she left her permanent employment as a secretary and undertook temporary secretarial work. She described being "really, really upset" when the plaintiff was prescribed Methadone saying that his mood swings became difficult for her to cope with and their sexual relationship degenerated to become almost non-existent. She too thought that the nerve blocks made the plaintiff worse, not better, requiring her to render greater assistance to him. She encouraged the plaintiff to take up his TAFE studies and to keep his mind active but ultimately their relationship ended in May of 1999. Notwithstanding the separation Ms Harris continued to make meals for the plaintiff and take them to him. She would wash his floors and his clothing, trying, she said, to do as much as she could. This meant that she would visit twice a week, sometimes more, and averaged out over the period of a year after the separation she thought she would have been rendering assistance to the plaintiff for about four hours a week. She said that this ceased when she met her husband which was in June of 2000. I should also record that Ms Harris accepted the plaintiff's complaints of pain and disability at face value, apparently never questioning them. 22 As Ms Harris' ministrations to the plaintiff gradually subsided her father began to assist the plaintiff and he managed his care with Flying Domestics, another private cleaner and Mr Harris. In February or March of 2000 the plaintiff engaged Perth Home Care Services for 11 hours a week. By this time the plaintiff was experiencing significant weight loss. Before the accident he weighed 90 kilograms but by trial he looked emaciated and said that he was down to 68 kilograms and requiring dietary supplements after having been referred to a dietician, Ms Marilyn Ridley. His gross loss of body weight was commented upon by Dr Merrick in his report of 26 July 1999 and the plaintiff's appearance at trial was in stark contrast to his condition as depicted in Exhibit P4, three photographs taken of him which showed that he was a big, strong young man. One of these three photographs should be remarked upon now. It shows the plaintiff lying back in bed with an almost terrified expression on his face. This was typical of his presentation at trial, a subject to which I will return later in these reasons. 23 With the plaintiff's complaints of pain continuing to escalate Dr Baskaranathan suggested that the plaintiff consider a dorsal column stimulator be implanted and the plaintiff discussed this with Dr Perlman.
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He was apparently booked to have this procedure performed but he cancelled it on the night before out of fear for its long-term ramifications for him. 24 He finished his TAFE studies in June of 2000 having completed his course. It was about this time he started using a walking stick because of pain in his left hip, he said. This is a matter of considerable concern. In January of 1998 when the plaintiff was first seen by the rehabilitation specialist, Dr John Ker, Dr Ker noted that the plaintiff's gait was "entirely satisfactory not favouring either lower limb." By January 2000 however, Dr Ker noted "He had a bizarre gait clearly favouring the right lower limb which he held externally rotated and advanced as compared to the left lower limb." 25 I observed this myself during the frequent breaks in the evidence requested by the plaintiff when he walked to and from the witness box. Having regard to the evidence that there has been a complete and effective union at the site of the fracture in the plaintiff's leg and that nothing in the plaintiff's back or shoulder would occasion this presentation, and with experienced rehabilitation clinicians clearly baffled by it, this aspect of the plaintiff's presentation is difficult to explain. I shall return to this subject later in the reasons. 26 Continuing, however, with the chronology of the plaintiff's treatment history, the plaintiff did not particularly describe it but the medical reports refer to him having tried acupuncture and he was referred to a Feldenkrais practitioner, Ms Linda Hardey, who is a qualified physiotherapist and who additionally practises Feldenkrais from rooms at North Beach. Ms Hardey was called to give evidence. She said that Feldenkrais looks at improving a person's total body organisation and by that I understood her to be saying that it was an analytical technique using observation to detect the cause of pain or other difficulty of movement and then educating the person to adopt a pattern of movement which would inhibit the onset of pain or discomfort. Additionally, of course, she is an experienced and well qualified physiotherapist. Ms Hardey is obviously a caring and sympathetic practitioner of her art (and science) but in essence she was unable to do anything for the plaintiff because he would not let her touch him or manipulate him in any way, he was so fearful or anxious, she said. She described the plaintiff in fact as being very anxious and becoming teary and upset when he described his accident. She conceded that where there are strong emotional features present this is inhibiting of physical recovery. I should record that Ms Hardey thought that the plaintiff's injuries would have been causative of his abnormal gait pattern,
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a view not shared by medical practitioners and rehabilitation specialists, particularly Dr Ker, whose views on this matter I prefer.
Current symptoms 27 The plaintiff testified that for at least the two or three years prior to trial and at the time of the trial he suffered from constant back pain, leg pain at the fracture site and where the pins were inserted. He said he had knee pain, neck pain, headaches, pain down the right arm, shoulder pain, muscle cramps of the thigh and calf and buttocks down both legs mostly on the right and into both feet. He claimed that he could not walk correctly since the accident (despite Dr Ker's observations in 1998). He said he could stand for only 10 to 15 minutes, the maximum being 20 minutes and could only sit for 5 or 10 minutes. He was only able to walk short distances. He experienced great problems with his mood and said that he had not felt happy for a long time. He says he has feelings of anger, sadness and mixed emotions in consequence of which he continues to see Mr Guest monthly and Dr Bajrovic monthly. Presently he takes two MS Contin 60 milligrams morning and night. He takes two Epilim morning and night, one Buspar three times a day, four Dothiepin at night, one Celebrex at night, varied amounts of Panadeine Forte and laxatives but a minimum of two a day and he takes the dietary supplement Sustagen. 28 The plaintiff testified that this regime of medications had some side effects being chest pain, difficulty breathing, dizziness, difficulty of urination and constipation, loss of appetite, forgetfulness, anger and an unstable presentation. 29 Additionally the plaintiff said that his symptoms required him to wear a lumbar brace and use a walking stick. 30 Speaking further of the impact of his various symptoms upon his life the plaintiff testified that he had no social life now compared with a good social life before his accident. Prior to his accident he also said that he had a good outlook on life. He was "on top of the world". He was working hard and doing well with plans for the future and confidence in the future for the first time in his life. Breaking down in tears again as he did frequently during his testimony, the plaintiff said that this was no longer the case. His symptoms mean that he has problems working his way around his house with the bench heights being too high and problems with cupboard placement and the like.
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31 Whilst all of the medical practitioners took the plaintiff's complaints of pain and disability at face value (as their ethic requires) save in respect of his adoption of his bizarre gait and his subsequent hip problems, having observed the plaintiff very closely during the course of 10 days of hearing I found his presentation difficult to reconcile with the objective medical evidence.
32 As already noted Mr Douglas Sneddon was the orthopaedic surgeon who repaired the plaintiff's fractures of his right tibia and fibula and he noted in his evidence and his report of 29 October 1997 that x-rays confirmed that these fractures were "both solidly united in anatomical position". In evidence (t/s 438-439) Mr Sneddon said that there was nothing in these fractures which would have prevented the plaintiff from returning to work on mine sites "doing pretty heavy work". It is to be remembered that Dr Ker observed nothing about the plaintiff's gait which suggested any residual defect in the plaintiff's leg when he examined him in January of 1998. 33 Mr Sneddon said that the plaintiff's right leg fracture should not be causing him any pain although it was not unusual for people who have had fractures of long bones to experience pain with changing weather, particularly cold weather but usually changing weather (t/s 438). 34 With regard to the plaintiff's back injuries Mr Sneddon described the plaintiff's compression fractures as being "relatively minor" (t/s 436) such that he would have expected the plaintiff to ultimately return to "pretty good health" with a "pretty good capacity for work and that sort of thing". Certainly nothing in the plaintiff's presentation with respect to his compression fractures suggested that he could not have been expected to return at least to sedentary work on a full time basis (t/s 436). 35 Mr Sneddon had no doubt but that the compression fractures sustained to the anterior margins of the second, third and fourth lumbar vertebral bodies were caused by his accident. He was not so sure with regard to the pars interarticularis defects observed at the L2/3 level and also on the right side at the L5/S1 level. In fact he expressed the opinion that: "… A single one-off traumatic episode is incredibly unlikely to have caused the pars interarticularis defects." (t/s 439) 36 With regard to the remaining injury of which there is objective evidence, namely the fracture at the outer end of the clavicle involving a widening of the acromioclavicular joint on that side Mr Sneddon's opinion
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was that this could be expressed as a 10 per cent disability of the whole of the right upper limb (report of 29 October 1997). 37 When Dr Ker conducted an examination of the plaintiff's spine in January of 1998 he could find no evidence of any true nerve root tension signs although he noted tenderness in the area of L3, L4 and L5 and, with regard to the right shoulder, some tenderness over the anterior aspect of the gleno-humeral joint "and a reluctance to fully abduct the right arm. The remainder of his right shoulder movements however were satisfactory." 38 With regard to Dr Merrick's opinions in respect of the plaintiff he too thought that the plaintiff's united fracture of the bones of his tibia and fibula would not, taken alone, have prevented the plaintiff from working even though he did diagnose a remnant anterior tibial nerve lesion on the right something not observed by Dr Ker. Even so he thought such a lesion would interfere "… with function rather than causing pain. He has some discomfort there but it's really the effect that it has on things like running and climbing and that sort of thing." (t/s 569) Similarly Dr Merrick was of the opinion that the compression fractures of the lumbar spine were relatively minor and he agreed with Mr Sneddon that a person with compression fractures in the lumbar spine such as those sustained by the plaintiff could be expected to return to relatively good health and work after the healing of those fractures, again, looked at alone. (t/s 566) 39 There is a significant body of other evidence which is to the effect that none of the constituent parts of the plaintiff's bony injuries would by themselves disable the plaintiff. See for example Mr Batalin's review of the MRI and CT scans at p 8 of Exhibit D7 (last two paragraphs that page). 40 There is a significant body of evidence too that the plaintiff engages in unusual illness behaviours. I have already commented upon Dr Ker's observations concerning the plaintiff's gait. This was Dr Merrick's opinion also (t/s 583). And then there are the observations of Mr Batalin. When he first examined the plaintiff on 21 July 1997 he noted that: "It was interesting that the patient was able to stand on his toes and heels and each leg individually, indicating normal motor power in both lower limbs." (Exhibit D7, p 4) 41 When Mr Batalin next reviewed the plaintiff on 12 March 1998 he noted:
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"Compared with previous assessment, I noted increased pain behaviour. The patient looked lethargic and depressed. He walked slowly and demonstrated poor spinal posture. This contrasted with reasonable gait pattern when I watched him outside the surgery." (Exhibit D7, p 8) 42 Mr Batalin reviewed the plaintiff again on 24 February 2000 and noted: "On this occasion the patient presented with considerable increase in 'pain behaviour'. I noted that he walked with a most unusual gait pattern. He tended to walk sideways with his legs widely abducted. When standing he constantly rocked from one leg to another and this is a most unusual posture and gait pattern which have not seen in my previous experience with spinal injuries." 43 He noted too that he had lost some 9 kilograms in weight in between. Later Mr Batalin was to remark that "I noted there was an increase in abnormal pain behaviour with repeated assessment". (Exhibit D 7, p 19) 44 Another rehabilitation specialist, Dr Peter Connaughton, thought the plaintiff presented with: "… a large spectrum of illness behaviours with a range of abnormal postures and movements and there was a significant degree of difficulty with objective assessment on the clinical examination. He required assistance as he had significant difficult getting on and off the examination couch, sitting up and dressing and undressing. He demonstrated major restrictions on most tests and had to rest in between tests. He had to lean against the wall or my examination couch when attempting to balance on his toes and heels. When attempting crouching he adopted a most unusual posture, leaning forwards over the examination couch with his right leg abducted to his side. On the axial load test he reported increased pain in the low back, although not severe. He also reports pain on pressure over the coccyx, but not on skin lifting." 45 To these observations by experienced clinicians I must add my own. The case had barely started when I saw the plaintiff standing at the back
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of the court rocking backwards and forwards on his walking stick with pained expressions on his face and walking up and down the court going in and out frequently as the case was being opened by his counsel. When he came to the witness box he did so with a laboured gait, a pained expression and this unusual habit of throwing his right leg out in a sort of semi-arc in front of him while he made a strained attempt to get up a couple of steps and into the witness box. Certainly, the courts in the May Holman Centre utilised by this Court are not particularly well designed. In fact in my opinion they are poorly designed and do not readily facilitate the movement of witnesses, counsel and the like. Additionally there is a pillar in front of the jury box approximately where juror number 6 would sit and behind counsel for the prosecution, or in this case the plaintiff. This narrows access for someone attempting to get from the public gallery down to the witness box which is located between the Judge's position and the jury box. But it then widens out. The entry into the witness box is somewhat constricted. As I say, the whole court has not been very well designed. There is but one advantage to the design of these courts for a civil trial (even though they are mostly used for criminal trials) and that is that the witness box is very close to the Judge. Much closer than in any other court I have sat in. It affords an exceptionally good view of a witness (a better view than that enjoyed by the jury, in fact). When the plaintiff got in the witness box he would stand using his walking stick and rock from side to side and from back to front. He would sigh. He would furrow his brow and put on a most pained expression and at times he would be overcome with self-pity and begin weeping. It is difficult to describe the next aspect of this behaviour. I can only describe it thus: he would retreat into the witness box, pushing himself into the corner of it. From time to time he asked for a break in the proceedings and, I thought, inappropriately. I formed the impression that the plaintiff was desperate for me to see how sick he was. I formed the distinct impression that the plaintiff was desperate for me to appreciate what a rotten break he had had in life. The most peculiar of all, however, was when he left the witness box. He struggled out and with his unusual gait pattern and slowly, inexorably made his way past his counsel and then stopped at the pillar that I have previously mentioned where, in my full view and, I must say, histrionically, leaned into the pillar gently banged his head into it. It was a remarkable performance. And, I regret to say, in my opinion, performance it was. 46 I also wish to record that during all of the plaintiff's testimony he spoke in a well regulated and modulated voice in ordinary conversational tones. His voice was not pained or strained although his evidence was
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punctuated with lots of sighs and other manifestations of illness behaviour. 47 Whilst I have no doubt that the plaintiff endured a very bad accident and sustained significant injuries, he has made an exceptionally good recovery from those injuries in the physical sense. Accordingly it would be reasonable to anticipate that he would have some ongoing minor restrictions of movement and a degree of continuing pain and discomfort. But nothing like that which the plaintiff presents to his doctors and to this Court. 48 What lies behind this conscious exaggeration of the plaintiff's symptoms is difficult to discern. I am reluctant to conclude that it is on account of true malingering, that is to say deliberate exaggeration for monetary gain. Dr Connaughton was of the opinion: "… that a very significant proportion of his distress and disability relates to the compensation claim process. His history in that regard is clear. There is relevant medical research literature to confirm that claims processes have a major adverse effect on disability levels. There is also pain research in the United States that the prescription of narcotic analgesics, such as MS Contin, is more likely to be related to distress levels rather than pain levels. There are a range of indicators of the adverse affect of the claim process, for example he has ceased swimming, he has ceased the process of forward planning and setting goals, he has ceased his studies, together with the wide range of pain behaviours and abnormal postures." 49 In my opinion this is the most probable explanation for the plaintiff's presentation. As I have suggested earlier, the plaintiff was desperate that I should see him as a victim. The conclusion which I draw from all of this is that it is more probable than not that once the plaintiff's claim is finalised he will have no impediment to working towards a restoration of his health and will ultimately return to some form of full time sedentary or light physical employment.
Future treatment 50 The plaintiff made a substantial claim for the cost of future medical and pharmaceutical treatments, calculated in the sum of $126,652.60. The various components of the claim are for the costs of future pharmaceutical items, visits to general practitioner, visits to specialists, visits to
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occupational therapist, visits podiatrist, to clinical psychologists, to radiologists, to a physiotherapist and to a dentist. 51 Dealing with these claims in turn the plaintiff calculates the anticipated future cost of the drugs he is presently taking, namely MS Contin, Epilim, Busparone, Coloxyl and Senna, Dothiepin, Celebrex, Viagra, Lactulose mixture, Panadeine Forte, Parachoc, Actilax Mixture and Ensure Plus, and Enlive and Sustagen Instant Pudding. Before a calculation can be made of the anticipated cost of future pharmaceutical items I have to anticipate the most probable course of the plaintiff's future requirements in this regard. As I have already indicated, in my opinion the plaintiff has grossly exaggerated his symptoms and therefore his presentation to the court was a false presentation, but again I am not persuaded that he is a true malingerer in the sense that he set about to deceive the court in order to increase his award of damages. Rather, from my own observations of him I have come to the firm conclusion that his exaggeration is due to other factors which the evidence before me did not permit me to properly ascertain. There are a combination of potential explanations for his conduct. Mr Guest has noted that the plaintiff was part of a dysfunctional family where he faced issues of abandonment and isolation which he explained further in his testimony as consequent upon the fact that the plaintiff was adopted and apparently felt he did not meet his adoptive father's expectations in terms of his education, his adoptive father being a school teacher. Additionally too, it seems that he ran foul of the law and was placed in an institution for adolescents for some months where his parents left him and, in consequence of which, at age 15, he went to live with a sister in Melbourne. Then there is a persistent theme in Mr Guest's reports about the plaintiff's preoccupation with the medico-legal process and it seems to me that the plaintiff has been overcome by this. Whatever the true cause of his deliberate exaggeration of his symptoms however, the evidence does not permit me to come to a firm conclusion save however that insofar it was part of the plaintiff's case that if I found that there was no physiological basis for the plaintiff's presentation arising out of or caused by the injuries he sustained in his accident then they were compensable as the psychological sequelae in the form of post-traumatic stress disorder coupled with depression. With regard to the diagnosis of depression there was no psychiatric evidence before the court and the diagnosis in this regard comes from Mr Guest and the general practitioner who prescribed anti-depressants. Other medical practitioners had noted it too. 52 For my part I do not accept this submission. The evidence does not support a finding that any exaggeration by the plaintiff of his
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symptomatology can be explained by either post-traumatic stress disorder or depression. This phenomena has not been adequately explained by the evidence. 53 Accordingly, in my opinion, Dr Peter Connaughton's prognosis for the plaintiff is that which mostly finds support in the evidence. 54 As Dr Connaughton observed in his report of 25 September 2001 (Exhibit D7, pp 27, 28): 55 In his later report of 4 February 2002 Dr Connaughton wrote: "Mr Creagh indicates that his medical management over the past three or four years has not resulted in any improvement in his status or function and that, if anything, he has developed additional symptoms. With regard to future management, it is my view that until after the outstanding financial and claim issues are resolved, there will be no reduction in disability from any forms of medical management. (a) With regard to specific future treatment options there is a significant degree of difficulty in assessing what requirements he will have following claim settlement. I understand that he plans to go home to Melbourne for holidays for a few months. I would recommend fortnightly psychological treatment until after settlement of his claim. If he was then going on holidays for two or three months I would cease counselling during that time. I would then suggest not greater than monthly counselling over a further six month period.
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I do not believe that any further pain management counselling will alter his outcome. With regard to visits to his general practitioner, given that there has been no improvement over the past three or four years, then I would limit visits to the frequency required for provision of prescriptions, which could reasonably be each three months. Again in view of the lack of progress over the last three or four years, I do not see that further review by a rehabilitation physician is indicated. I would suggest that three to six month's after settlement of his claim he has specific assistance in weaning off the narcotic analgesics. I am not aware of the likely frequency or duration of consultations for that process." (Exhibit D 7, pp 33, 34). 56 Professor Harper, a rehabilitation specialist, likewise was of the opinion that the plaintiff should cease using narcotic analgesia and that the sooner he is weaned off it the better (t/s 616). Professor Harper thought too that the plaintiff's difficulties as an adolescent may have predisposed him to suffering greater than anticipated psychological sequelae in consequence of his injuries. He was not asked to offer an opinion as to whether that would cause him to exaggerate his symptoms although he did agree that the plaintiff walked with a bizarre gait. Because of the fear of addiction other practitioners too expressed reservations about the desirability of prescribing narcotic analgesia to patients presenting with chronic pain states. And undoubtedly the MS Contin is causing a lot of the plaintiff's side effects. Some of the known side effects are detailed by Dr Baskaranathan in his report of 16 December 1998 (Exhibit P10, p 83). Certainly MS Contin would be contributing to the plaintiff's constipation and weight loss by reason of it being an appetite suppressant. These side effects are well described in the medical literature and they have been described in evidence, but it is also responsible for, dry mouth, stomach ache, nausea, vomiting, poor appetite and a reduced sexual drive. See for example the description of the drug Morphine in the Australian Drug Guide published by Schwartz Books 1991(author Dr Jonathan Upfal). 57 Clearly however, the plaintiff will have to undergo a structured programme of withdrawal from this drug and will possibly require treatment as an in-patient to assist, a step which Professor Harper thought
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highly desirable in the case of the plaintiff anyway, namely that he should be admitted to an in-patient intensive care, multi-disciplinary rehabilitation effort, perhaps of some three months duration or so. This view was propounded by Dr Connaughton as well. Of course the plaintiff had been reviewed separately from time to time by the different specialists at the Shenton Park Campus of Royal Perth Hospital but it is a matter of some regret that he was not given this attention upon his discharge from Royal Perth Hospital after the acute phase of his treatment was over. 58 Accordingly, working from the conclusion that I have reached on the evidence that the plaintiff's symptoms are grossly exaggerated, I am of the opinion that it is more probable than not that given time and proper treatment, with the court case behind him and a significant award of damages to which he is obviously entitled, still in place, he will slowly but surely regain control of his life in accordance with Dr Connaughton's prognosis. Having regard to the fact that his illness behaviour is entrenched, the course of his treatment will undoubtedly be long and difficult but with his major preoccupation of his medical legal problems behind him, with a significant award compensating him and perhaps even vindicating him, unlike Dr Merrick, I think his future prospects are, on balance, quite good. 59 A number of the medical practitioners who gave evidence in the trial testified that the plaintiff is intelligent and resourceful. Although it took him a while he did obtain a certificate in business studies. He is computer literate. He had undertaken research into aspects of his own condition and management. And whilst it is true that the assessment of the plaintiff's likely future career path after judgment involves even more conjecture than is usually required in cases such as this, the plaintiff has not established on the evidence on the balance of probabilities that he will remain completely disabled and drug dependent for the rest of his life. 60 To the contrary, I think it more probable than not that the plaintiff will take control of his life, will stop acting out the sick role and, with help, restore purpose to his life and ultimately regain fitness such that he will be able to work again. Whilst the path of this future treatment is difficult of precise evaluation I have come to the conclusion that having regard to the evidence this will be a fairly long, drawn out procedure and I estimate that in three years time the plaintiff will have weaned himself off MS Contin and with it will go the need for most of the other medications he is presently taking. As his use of these drugs will reduce over a three year period it is a difficult calculation and accordingly on balance I think the fairest way of accommodating this is simply to allow the plaintiff the
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61 During the course of his future treatment over the next three years the plaintiff will require the assistance of a number of medical specialists firstly to help wean him off MS Contin then to assist him to adjust his behaviour, relinquish the exaggeration of his symptoms, take control of his life and regain his health. He will need the assistance of a rehabilitation specialist, perhaps a pharmacologist to wean him off MS Contin, a psychologist and perhaps a psychiatrist, a physiotherapist, an occupational therapist and a general practitioner all for three years. He will need intensive treatment as an in-patient for a period of three months according to Professor Harper. There was no evidence given of the cost of in-patient treatment however the cost of hospital beds is in the order of $250 a day. With regard to allowances which are to be calculated for a rehabilitation specialist, the services will be intense at first but will taper off over the three year period and an allowance calculated on nine consultations per annum over that period of $140 each, seems appropriate. The assistance of a clinical psychologist will be required intensively at first to reinforce the work undertaken by the rehabilitation specialist and to assist the plaintiff to adopt new stratagems and again I suggest that an average of nine sessions per annum at $140 each would be reasonable in all the circumstances. The cost of a physiotherapist was said to be $40 a visit which seems low to me, however this is the way the plaintiff put his claim and the defendants did not demur and at 10 consultations per annum
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$400 is reasonable. Similarly, the cost of a general practitioner was said to be $60 per consultation which is twice that which is usually allowed by Medicare at around $30 per consultation and again I would have thought 10 per annum was more than adequate. The total cost of these services is $3,220 per annum averaged out over three years and accordingly the calculation is $3,220 ÷ 52 = $61.92 x [144] = $8,916.48. Add the cost of a hospital bed for three months ($22,750) and the total is $31,666.48. 62 The services of a pharmacologist or other specialist engaged to specifically assist the plaintiff to wean him off MS Contin must be dealt with differently. This process should not take any longer than six months in my opinion and I am prepared to allow a one-off fee of $750, making the total $32,416.48. 63 I should mention also that under this head of claim the plaintiff made claims for the cost of attending upon a podiatrist and a dentist, putting forward claims that a podiatrist had to cut his toenails because he couldn't, and also to make some adjustments to his shoes by putting on Velcro fastenings. This may be shortly disposed of. I simply do not accept that the plaintiff requires the services of a podiatrist to cut his toenails. In my opinion from my observations of the plaintiff as I have already said his symptoms are so grossly exaggerated that he can get down and cut them himself. 64 Similarly, it was promoted by the plaintiff or on his behalf that he required additional dental treatment over and above that that he would normally require by reason of the circumstances of his accident being for electric toothbrushes, an additional scale and polish and further restoration costs. I reject this claim entirely. The plaintiff has not persuaded me of the need for any of this treatment arising out of any injury he sustained in his accident and as for using an electric toothbrush, if he can hold an electric toothbrush and move it around his mouth in the manner in which they are intended to be used, then in my opinion he can do the same with an ordinary toothbrush.
Past gratuitous services and paid home help 65 The plaintiff divides his claim for gratuitous services rendered to him in the past and paid home help up until the date of judgment into three periods, the first being from the date of the plaintiff's admission to hospital until 20 January 1997 (the date when he drove to Kalgoorlie to take up a position with the first defendant in an employment coordinating role). The second period is from 21 January 1997 to 31 October 2000, the
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latter date being the day before Perth Home Care Services commenced their engagement. The third period is from 1 November 2000 until judgment. Dealing with these periods of claim in turn, the plaintiff claimed that he was rendered gratuitous services by Sandra Hartman, Jacqueline Purkiss and Ms Harris for 14 hours per week at $18 per hour. Firstly there was only limited evidence given of any gratuitous services rendered to the plaintiff whilst he was an in-patient at Royal Perth Hospital where he remained for 16 days. The only evidence of assistance during this period was that of Ms Hartman who spent time finding accommodation for the plaintiff upon his discharge from hospital. This was over and above the duties normally expected of her in her capacity as a rehabilitation counsellor with WorkCover. After the plaintiff's discharge from hospital and for a time Ms Hartman provided additional services to the plaintiff which, as I have already commented, were above and beyond those which would ordinarily have been expected of someone in her position. She rendered these services voluntarily and for the benefit of the plaintiff because there was simply no-one else to do it. It is said that the plaintiff's girlfriend before the accident, Ms Jacqueline Purkiss, rendered some assistance to him both in hospital, again whilst he lived at the Mercure Hotel in Irwin Street and finally when he was living at the Seashells Resort in Scarborough. Whatever assistance she gave ceased when their relationship was terminated after the plaintiff had been staying at the Seashells Resort for about three or four weeks. I found the evidence of the gratuitous services rendered by Sandra Hartman and the claimed gratuitous services rendered by Ms Purkiss somewhat difficult to reconcile in the plaintiff's testimony. Ms Hartman gave evidence and I have no doubt that she rendered services to the plaintiff above and beyond the call of her duty as a rehabilitation counsellor because, as she said at the time, there was simply no-one else to do it. This means the role of Ms Purkiss must have been minor if she as the girlfriend was not doing any of the things that Ms Hartman was doing because there was no-one else to do it. Ms Purkiss was not called to give evidence and in the end result I was not persuaded that I should allow the plaintiff anything by way of the gratuitous services said to have been rendered by her. Ms Hartman is in a different category altogether however and I have no doubt but that she rendered gratuitous services to the plaintiff. 66 The plaintiff also claims for the services of Ms Harris rendered to him from "about the 15th August 1996". The plaintiff's evidence was that he met Ms Harris during the time he was staying at the Seashells Resort and after he had become ambulatory on crutches and before discarding them in September or October of 1996. Ms Harris (now Mrs Murphy)
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testified that she first met the plaintiff on or about 8 or 9 August 1996 and in my opinion it would be highly unlikely that within a week she was providing 14 hours of gratuitous services per week. Nevertheless over this period there were times when the plaintiff would have required intensive assistance such as in the period following his discharge from Royal Perth Hospital. On the other hand, it is as well to remember that at the end of this period the plaintiff was well enough to be able to drive to Kalgoorlie albeit he said it took him an inordinate amount of time to get there. Whilst it is difficult to be precise about claims of this type it seems to me that a fair average would be in the order of 10 hours per week which at $15 an hour is $150 per week. The claim is for 30 weeks however for 16 days the plaintiff was an in-patient at Royal Perth Hospital. Allowing for the fact that Ms Hartman said she took a day to find the plaintiff alternative accommodation and for her visits to the plaintiff in hospital it is appropriate to allow 28 weeks hence the total for this period is $4,200. 67 For the second period the plaintiff claims care given by Mrs Murphy (Harris), her father (Brian Harris), David Park and for the time during which Flying Domestics provided paid assistance. The claim during this period is for 12 hours a week at $20 per hour. The plaintiff however, was in Kalgoorlie he said until April of 1997 but it seems tolerably clear that he had returned to Perth by the middle of March of 1997. He had returned to Perth in the interim for some medical appointments and Mrs Murphy (Harris) had visited him in Kalgoorlie. Even so it is clear that no other gratuitous services were rendered to him during this time. Additionally, the plaintiff and Mrs Murphy (Harris) separated in about May 1999 although she continued to visit him once or twice a week until June 2000 when she met her present husband. They had commenced living together after the plaintiff returned from Kalgoorlie firstly at a house she shared with a girlfriend and thereafter in their own accommodation. She estimated that she spent 10 hours a week on average caring for the plaintiff (t/s 288). However, in cross-examination when Mrs Murphy was asked to detail the tasks she performed and to estimate the period she would have spent at each she calculated that she would have spent at least five hours per week rendering assistance to the plaintiff in the period up to when they commenced living together and for the period thereafter she initially said she thought she spent 10 hours a week catering to the plaintiff's needs but in cross-examination thought that it would have been at least six or seven hours a week (t/s 304). After the plaintiff and Mrs Murphy (Harris) separated in about June of 2000 Mrs Murphy continued to visit and she said in evidence she tried to go around twice a
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week taking meals and quite often doing cleaning there. Sometimes she said she would spend four hours there cleaning and the like because, being a house proud person she was saddened to see the plaintiff not taking care of his house. 68 As to Flying Domestics the evidence came in by way of a somewhat disordered exhibit (P 18) said to be an index of accounts paid by the plaintiff from 19 July 1999 to trial. As this exhibit discloses, as late as September of 2000 the plaintiff could get three hours of cleaning and washing services for $40 and two hours for $30. I should also record that as there is a separate head of claim for "Special Damages" meaning, damages paid to trial by the plaintiff directly, the only relevance of the inclusion of Flying Domestics in this period of claim for past gratuitous and paid services is that when truly gratuitous services ceased, the plaintiff evidenced his need for those services by paying for similar services to be rendered by Flying Domestics. For a period of about a year there was an overlap between the services provided by Mrs Murphy (Harris) and Flying Domestics and it seems to me that when the total cost of Flying Domestics' services is $1,356 for the period from 19 July 1999 to 10 October 2000, a period of about 15 months, the accounts total $1,356 which is $90.40 a month or about $21 per week, the claim is exaggerated. Again, after Mrs Murphy (Harris) stopped visiting the plaintiff in June of 2000, Flying Domestics' accounts until Perth Home Care Services took over, a period of about four months, only amount to $250. This demonstrates to me that the plaintiff's claim for this period is exaggerated both by hours and rate. Needless to say I am still impressed by Mrs Murphy's evidence that she gave up full-time employment and went onto temporary work in order to assist the plaintiff. Unfortunately she was not asked how many hours per week she worked as a temporary secretary. For example it could have been as many as 30 hours per week as opposed to the normal secretarial working week of 35 hours. It is just too difficult to say. In the end result however I am left with the firm impression that the plaintiff would have required the gratuitous services rendered by Mrs Murphy (Harris) (in the main) for no more than eight hours per week which I propose to allow at the rate charged by Flying Domestics at the relevant period namely $15 per hour. Accordingly, accepting an average of eight hours per week at $15 per hour the amount is $120 per week for 196.57 weeks, a total of $23,588.40. 69 I turn now to the third period. During this period all of the plaintiff's home care has been provided by Perth Home Care Services. Perth Home Care Services (Inc) is a not for profit organisation. Evidence was given by Ms Raylene Nestler, a coordinator and nursing consultant employed by
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Perth Home Care Services that she had performed an assessment of the plaintiff's needs and had in fact had four meetings with him but had not performed any of the services for him herself nor had she observed the services actually being performed which are in the main rendered by Ms Sylvia Giuffre. Ms Nestler has been a registered nurse since 1969 and for the last 18 years she has been a community nurse involved in assessing people for care needs in their own home. She has worked for Perth Home Care Services for the last three years. The fees charged by Perth Home Care Services she thought to be in the middle of the range of fees charged by like organisations, of which she had knowledge. She visited the plaintiff and talked to him about what he could do and could not do and she thought the bottom line was that there was very little that he could do. He could not put the bin out, stack cupboards, the refrigerator and he was not eating well requiring meal preparation and the like. She arranged care estimating it at between 10 and 12 hours a week for home help, shopping, meal preparation, doctors' appointments and the like. Ordinarily it is 10 hours a week but when doctors' appointments are required 12 hours a week is provided. This is charged out at the rate of $25 per hour and at the date of trial none had been paid and the amount outstanding was $15,887.50. Having regard to the fact that Flying Domestics were charging $15 an hour for cleaning services immediately before Perth Home Care Services were engaged, it does seem to me that a charge of $25 an hour is expensive when there is no evidence that Mrs Giuffre is a nurse or renders any services as a nurse as opposed to general home assistance. In my opinion this claim too exaggerates the need created by the defendants' combined negligence. An award calculated on the basis of eight hours per week at $15 per hour is indicated. From 1 November 2000 until judgment is 79.3 weeks at $120 per week, a total of $9,516. 70 In summary the award is as follows under this head of claim: First period $4,200.00 Second period $23,588.40 Third period $9,516.00 Total $37,304.40 71 The plaintiff is, of course, entitled to interest on the amount I found is due to him in respect of past gratuitous services and paid home help. As he has not yet paid any part of the account from Perth Home Care Services however, he is not entitled to any interest on that component of the award which leaves only the first and second periods to be aggregated and calculated out. As is usual, interest on an accruing loss can be
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calculated either by applying the whole rate of interest of 6 per cent to half the amount, or half the interest rate to the whole amount and, it is the latter method which is usually employed in cases such as this. The calculation then becomes $27,788.40 x 3 per cent per annum from 6 July 1996 to judgment = (5.87 years) = $4,893.54.
Future gratuitous services and paid home help 72 The position with regard to gratuitous services and paid home help for the future is much the same as it is in respect of the plaintiff's future treatment, namely, that I am of the opinion that it is more probable than not that within three years, with this litigation behind him, the plaintiff will return to comparatively good health and his need for gratuitous services and paid home help will have dissipated. Accordingly I propose to allow a continuation of paid home help averaged out over the next three years at six hours per week at $15 per hour. The 6 per cent multiplier for three years is 144 and accordingly the calculation becomes 6 hours per week at $15 per hour x 144 = $12,960. 73 A summary then of the position with regard to gratuitous services and paid home help both past and future is as follows: Loss of earning capacity 74 In the financial years ended 30 June 1992 to 1996 the plaintiff's taxable income was as follows: |