Denkewitz v Hodgson & Ors T/a Murray Lyons & Co
[1998] QSC 261
•6 November 1998
IN THE SUPREME COURT
OF QUEENSLAND
No. 1380 of 1994Before Mr Justice Ambrose
[Denkewitz v Hodgson & Ors t/a Murray Lyons & Co]
BETWEEN
CLIVE WILLIAM DENKEWITZ
Plaintiff
AND
DOUGLAS HECTOR HODGSON, JOHN CAMPBELL MACCALLUM
CHRISTOPHER MARK WRIGHT AND BEVLEE JOY REASTON
TRADING UNDER THE NAME OR STYLE OF “MURRAY LYONS & CO.”
Defendants
REASONS FOR JUDGMENT - B.W. AMBROSE J.
Delivered the 6th day of November 1998
CATCHWORDS: CIVIL LAW - professional negligence by successive firms of solicitors - failure to implement proceedings within limitation period - determining plaintiff’s original prospects of success - assessment of quantum - assessing damages for disappointment and distress - admissibility under Evidence Act s. 92 and s 102.
Limitation of Actions Act 1974 (Q)
Evidence Act 1977 (Q)
Common Law Practice Act
FAI v. Turner (1976) 50 A.L.J.R. 767
Kitchen v. Royal Air Force Assn. [1958] 1 W.O.R. 563Johnson v. Perez (1988) 166 C.L.R. 351
The Commonwealth v. Amman Aviation (1991) 174 C.L.R. 64
Sellars v. Adelaide Petroleum (1994) 179 C.L.R. 332
Baltic Shipping Co. v. Dillon (1993) 176 C.L.R. 344
Heyward v. Wellars (a firm) [1976] 1 Q.B. 446
Counsel:Mr S Keim for the plaintiff
Mr R Hanson QC for the defendant
Solicitors:Maurice Blackburn and Co. for the plaintiff
Quinlan Miller and Treston for the defendant
Hearing date: 2,4 and 5 August 1998
Final written submissions received 5 November 1998
IN THE SUPREME COURT
OF QUEENSLAND
No. 1380 of 1994Before Mr Justice Ambrose
[Denkewitz v Hodgson & Ors t/a Murray Lyons & Co]
BETWEEN
CLIVE WILLIAM DENKEWITZ
Plaintiff
AND
DOUGLAS HECTOR HODGSON, JOHN CAMPBELL MACCALLUM,
CHRISTOPHER MARK WRIGHT AND BEVLEE JOY REASTON
TRADING UNDER THE NAME OR STYLE OF “MURRAY LYONS & CO.”
Defendants
REASONS FOR JUDGMENT - B.W. AMBROSE J.
Delivered the 6th day of November 1998
The plaintiff brings this action against his former solicitors for damages for negligence in failing to institute proceedings on his behalf against yet another firm of solicitors Messrs Mellick & Smith, for professional negligence within the period of six years from the accrual of that cause of action against that firm.
His cause of action against Mellick & Smith arose upon the expiration of the period of three years from the accrual of an alleged cause of action against Dean Pradel for damages for personal injury suffered by the plaintiff by, through or in connection with an insured motor vehicle as a consequence of the negligence of Pradel.
I will endeavour to state briefly the relevant facts. Unfortunately it will be necessary to analyze in some little detail events together constituting the unhappy saga of professional negligence which has postponed the determination of his likely success in his cause of action against Pradel for damages for personal injury for a period of more than 18 years from the date of its alleged accrual.
Upon the material I find that more probably than not the plaintiff suffered an “injury” upon which he relies to support his cause of action against Pradel on or about 2 January 1980. The plaintiff said that he is uncertain at this stage whether he suffered injury in November 1979 or early in January 1980 - indeed in the course of cross-examination he asserted that he was “convinced” it happened in “late November” 1979. In my view this assertion was made primarily in an effort to suggest that a doctor had when taking a history of back pain from him, mistakenly recorded the onset at six months prior to his visit rather than 6 weeks. For reasons I will later give I reject this explanation. On the whole of the evidence it seems to me probable that he suffered it on 2 January 1980 - although for practical purposes it makes little difference with respect to the cause of action he retained Mellick & Smith to pursue on his behalf.
It appears that the plaintiff first retained Messrs H.A. Mellick & Smith to take action to recover damages for the personal injury he suffered on 2 January 1980 on or about 13 July 1982. Mr Mellick Jnr. recorded his verbal instructions in writing which is Ex. 10. On the evidence I am satisfied that subsequently he took to those solicitors a handwritten statement which is Ex. 3.
It is quite clear from those statements that in July 1982 the plaintiff said that he was injured on 2 January 1980.
His solicitors were clearly instructed that he had suffered injury as the result of a man named Dean Pradel pulling him off a fuel tank on his vehicle upon which he was then standing. As a result he suffered back injury.
Mr Pradel was employed by a firm called Trinity Petroleum Services which carried on the business of delivering diesel fuel to persons in the Cairns area. According to the statement the plaintiff gave to his solicitors, Mr Pradel had delivered diesel fuel to him which had been put into diesel tanks on the truck on which he was standing prior to his being pulled from one of those fuel tanks.
After taking instructions from the plaintiff on 13 July 1982, Mellick & Smith issued a Writ of Summons on his behalf against Trinity Petroleum Services on 20 July 1982. The writ was served 23 July 1982. The claim endorsed on the writ is for damages for personal injuries caused to the plaintiff on 2 January 1980 “by the negligent actions of an employee of the defendant firm”. 10 Those solicitors then obviously briefed counsel in Townsville to advise “as to who the defendant should be”. I infer that at that stage - within the limitation period of three years from 2 January 1980 the plaintiff’s solicitors adverted to the question as to whether Trinity Petroleum Services was the correct defendant.
By Memorandum of Advice of 13 October 1982, counsel advised those solicitors that it was quite unlikely that the plaintiff could succeed against Trinity Petroleum Services. This is unsurprising having regard to the circumstances of his injury which the plaintiff had given to his solicitors. Indeed, counsel advised the plaintiff’s solicitors that it was the driver of the diesel tanker employed by Trinity Petroleum Services who should be sued personally for damages for negligence and that on the state of the authorities the insurer of the plaintiff’s vehicle by, through or in connection with which the plaintiff had been injured by the negligence of Pradel would then be obliged to indemnify Pradel should the plaintiff obtain judgment against him. The correctness of this advice was not in issue in this action having regard to the decision in F.A.I. v Turner (1976) 50 A.L.J.R. 767 at 768.
Not merely did counsel retained by Messrs Mellick & Smith so advise, he also drafted a Statement of Claim to be served in an action to be commenced by the plaintiff against Dean Pradel.
There was one defect in that draft pleading for which counsel could not be blamed. Apparently counsel was provided with a typewritten copy - precis of the handwritten statement which I infer the plaintiff had given to his solicitors subsequent to 13 July 1982. That typewritten copy-precis is Ex. 4. It is quite clear when the two are compared that the person purporting to make a typewritten copy of that handwritten statement mistakenly typed “on the 2/11/80" instead of the words “on the 2-1-80" the date of injury contained in the handwritten statement of the plaintiff. In doing so, the typist must have been unaware of the correct date which had been written down in recording the initial oral instructions actually given to the solicitors before that handwritten statement from the plaintiff was provided. The typist must also have been unaware of the date of negligence endorsed on the Writ of Summons issued on 20 July 1984.
I would infer therefore that the typewritten document which is Ex. 4 was one that was sent to counsel retained to advise. It was on that basis that in his Memorandum of Advice counsel assumed that the injury had occurred on 2 November 1980 and drafted a Statement of Claim to accompany that Memorandum of Advice on the same assumption.
On the finding which I make that the plaintiff did probably suffer his alleged injury on 2 January 1980, the limitation period for bringing an action against Dean Pradel expired on 2 January 1983.
There was ample time therefore within which to discontinue the action commenced against Trinity Petroleum Services and to commence an action against Dean Pradel or perhaps seek to have Pradel added as a defendant to the action instituted on 20 July 1982. Making all allowances for delays in communicating the opinion and advice, one would think that the plaintiff’s solicitors would have had at least two months within which to institute proceedings against the only defendant against whom the plaintiff had any prospects of recovering damages for the injury he alleged he suffered on 2 January 1980.
For reasons which have not emerged, no such action was commenced prior to 2 January 1983. It may be I suppose that the mistake made by the typist in typing out the handwritten statement of the plaintiff was not recognized as such and/or perhaps there was not an adequate diary kept in the office of the solicitors to remind them that on the instructions they had obtained from the plaintiff any proceedings to recover damages for personal injury suffered by, through or in connection with an insured motor vehicle would have to be instituted within three years of 2 January 1980. However that may be, nothing seems to have been done to progress either the action that had been commenced against Trinity Petroleum Services or to institute an action against Dean Pradel prior to the retirement from the firm of Mr Mellick Snr. in December 1985. It was then that the plaintiff first learnt that any prospect he had of recovering damages for the injury suffered as he alleged at the hands of Mr Pradel had been lost. From time to time prior to his retirement, Mr Mellick had informed the plaintiff “Everything’s all right, don’t worry about it.” In fact it was enquiry the plaintiff made personally at the Courthouse as to the progress of his action that appraised him of his position. He then approached the firm Murray Lyons & Co., the defendants in this action to pursue what rights were available against Mellick & Smith. He first instructed them to pursue those rights on 20 June 1986.
The plaintiff’s cause of action against Mellick & Smith arose when his cause of action against Dean Pradel was barred at the latest on 2 January 1983. The possibility of getting an extension of time under the Limitations Act within which to bring action against Dean Pradel appears not to have been considered in this case. Counsel advising the defendants in May 1987 expressed the view that an application to add Pradel as a defendant in the action against Trinity Petroleum Services would be unlikely to succeed having regard to questions of prejudice that would be raised by Dean Pradel and/or the licensed insurer who in the circumstances of the case one would think would probably have reserved its rights against Mr Pradel in the event that the plaintiff succeeded in any action against him. More than 7 years had then lapsed since the accrual of the plaintiff’s alleged cause of action against Pradel. In any event the possibility of an application for an extension of time to enable Pradel to be sued as suggested by counsel advising Mellick & Smith in October 1982 or one seeking to add him as a defendant in the action initiated in July 1982 was not a matter that was raised or debated in this action before me. No such application was ever made; if it ought to have been made, failure to make it would also arguably at least amount to negligence.
The situation therefore on 20 June 1986 was that the defendants had about 2½ years within which to commence proceedings against Mellick & Smith for professional negligence. To be precise, the six year limitation period barring such proceedings would expire on or about 2 January 1989.
In the course of giving instructions to the defendants, the plaintiff advised that he was injured between late November 1979 and early January 1980. However, the defendants were apparently misled by the error of the Mellick & Smith typist in altering the date 2 January 1980 to 2 November 1980 which as I have already indicated misled counsel retained to advise Mellick & Smith which is reflected in his Memorandum of Advice and draft Statement of Claim. Perhaps this error also misled persons handling the matter in the defendant firm who did not discover that mistake by having regard to the endorsement on the Writ of Summons which Mellick & Smith had issued on the plaintiff’s behalf based upon the oral instruction obtained from him by that firm on 13 July 1982 and his handwritten statement subsequently given to them. This seems to be the explanation for counsel retained to advise the defendants accepting that the plaintiff’s cause of action against Pradel arose on 2 November 1980. The plaintiff was shown a copy of that counsel’s opinion dated 7 May 1987 and advised the defendants shortly afterwards that the date of the injury contained in it was incorrect.
The plaintiff was given a number of authorities to sign addressed to medical practitioners authorizing them to disclose matters relevant to his case. Those authorities recorded that the accident occurred on 2 November 1980 and upon receipt of them, the plaintiff again telephoned the defendants and advised that that date was incorrect. The defendants then forwarded corrected authorities with the date of injury specified to be between late November 1979 and early January 1980. I would infer that the basis of this change was what the plaintiff then told them. The very first part of the typed “copy” of the handwritten statement of the plaintiff given to Mellick & Smith which is Ex. 4 asserts that in late 1979 and early 1980, the plaintiff had rented premises as a garage and workshop where his injury was sustained. The typing error in the statement is responsible for the unequivocal assertion that the injury he suffered at the hands of Dean Pradel occurred on 2 November 1980 (2/11/80).
In any event the defendants did not issue any plaint on behalf of the plaintiff against Mellick & Smith until 8 August 1989. This was more than seven months after the expiration of the six year limitation period within which the proceedings should have been instituted. That period of course expired on 2 January 1989. Counsel retained by the defendants to give advice with respect to the plaintiff’s action did so on 7 May 1987. He refers to a cause of action alleged to exist by the plaintiff which arose “towards the end of 1980". Counsel confirmed the advice given already by another counsel to Mellick & Smith. In the course of his advice, he observed:
“The limitation period for the action against Pradel expired on 20 November 1983. It was on that date that the cause of action for professional negligence against Mr Mellick accrued.”
Counsel then referred to authority and concluded:-
“That being so the limitation period for the action for professional negligence against H.A. Mellick & Smith is six years from 20 November 1983.”
Counsel then recommended that the action against Mellick & Smith “should be commenced at an early date” observing however that before doing so, further instructions ought to be obtained on quantum etc.
The defendants received this advice more than 18 months before the expiration of the period of limitation within which action might be taken against Mellick & Smith.
On the material it seems clear that from at least July 1987 after the plaintiff having observed the incorrect date on the medical authority forms, informed the defendants of the mistake made as to the date of his injury, they were or should have been aware of that error or should at least have made further enquiries. It is clear that the plaintiff also informed them of the error when he was shown a copy of the Memorandum of Advice dated 7 May 1987 which they had received from counsel retained to advise the plaintiff. He had also informed them of the error when he read reports from doctors recording the wrong date.
The terms of counsel’s advice received on or about 7 May 1987 made it quite clear that in effect the Limitation Act would prevent the plaintiff suing Mellick & Smith subsequent to the expiration of the period of six years from the date when the cause of action arose. It was important therefore to carefully ascertain and record that date.
In my view the simple expedient of obtaining promptly a copy of the Writ of Summons issued by Mellick & Smith against Trinity Petroleum would have demonstrated quite unequivocally the claim endorsed on it that the plaintiff had been injured on 2 January 1980 . That alone would have been more than sufficient to put the defendants on further inquiry to ensure that they were acting upon accurate instructions when fixing the date when the plaintiff’s cause of action would become statute barred. On the evidence they had ample opportunity to make proper inquiries; the first one would expect would be to obtain a copy of the Writ of Summons issued by Mellick & Smith. The result of this enquiry would have been consistent with the information which the plaintiff says he gave by telephone to members of the firm when he observed the error in the date adopted by persons retained to advise with respect to the action proposed against Mellick & Smith.
In fact the defendants did at some time have the Court file containing the Writ of Summons issued on the plaintiff’s behalf by Mellick & Smith searched. Handwritten details of that search show that the searcher recorded the terms of the indorsement with precision - including the date of injury alleged. [Vide Ex. 12]. One would expect that such a search would be made promptly when the defendants were retained by the plaintiff on 20 June 1986 - rather than after the expiration of the limitation period on 2 January 1989. No evidence was called as to when this search was made on behalf of the defendants. If the search was made well within the limitation period and with reasonable promptitude after the defendants were retained by the plaintiff, as it should have been, it must simply have been overlooked when counsel was briefed for the advice he gave on 7 May 1987. I find it difficult to understand why such a search would have been made after counsel had been so briefed.
In my judgment the plaintiff has established that more probably than not:
(1)Messrs Mellick & Smith breached the duty of care they owed to him as their client in failing to initiate proceedings against Dean Pradel on his behalf prior to 2 January 1983;
.(2)Messrs Murray Lyons & Co breached the duty of care they owed to him as their client in failing to take reasonable care to ascertain and proceed on the basis that the date of his alleged injury was 2 January 1980 because the Limitation Act would bar proceedings against Mellick & Smith after 2 January 1989, and in failing to institute proceedings against that firm prior to 2 January 1989.
While in my judgment, upon the evidence, each of Mellick & Smith and Murray Lyons & Co. were clearly in breach of their professional duty to the plaintiff to institute proceedings he retained them to institute within the period allowed under the Limitation Act and indeed as I understood counsel for the defendants, this was not really contested - the critical matter for determination is the plaintiff’s prospects for success in any action taken against Dean Pradel within three years of 2 January 1980.
It is the damage which he suffered by reason of the negligence of Messrs Mellick & Smith which is critical to the assessment of damages against Messrs Murray Lyons & Co. for failing to institute proceedings against that firm in time.
In essence, the damages recoverable against Messrs Mellick & Smith requires the assessment of the value to the plaintiff of the loss of the chance to recover damages against Dean Pradel in respect of which Pradel would have been indemnified by the plaintiff’s licensed insurer. See Kitchen v Royal Air Force Assn [1958] 1 W.L.R. 563, Johnson v Perez (1988) 166 C.L.R. 351, The Commonwealth v Amann Aviation (1991) 174 C.L.R. 64 and Sellars v Adelaide Petroleum (1994) 179 C.L.R. 332.
It is necessary therefore to consider what prospects of success the plaintiff had for succeeding against Dean Pradel who of course is not a defendant to the plaintiff’s action. Nor is Messrs Mellick & Smith for that matter. Nevertheless it is necessary to determine what, if any damage attributable to the negligence of Messrs Mellick & Smith was suffered by the plaintiff and this requires consideration of the probable outcome of any action instituted within time against Dean Pradel and whether he would probably be indemnified by the insurer of the plaintiff’s motor vehicle.
On the facts of this case essentially the determination of this matter depends upon the evaluation of the reliability of the plaintiff, his son and Dean Pradel. On the evidence generally, the incident that caused the plaintiff’s back injury, occurred one would think, within a very short period of time - perhaps a matter of seconds. More than 18 years have passed since the event in issue. The first time it seems that the plaintiff gave his version of the event for the purpose of pursuing any legal action was 13 July 1982. The whole matter is complicated by the fact that his handwritten statement (Ex. 3) asserts towards its end that on 21 July (year unspecified) he was told by a doctor that he had only 65-70% function of his back. Although the plaintiff said that he gave verbal instructions to his solicitors when he visited them on 13 July 1982 when he observed Mr Mellick Jnr. writing down those instructions (Ex. 10) he gave, his handwritten statement Ex. 3 on its face would appear to have been written subsequent to 13 July 1982. It is probable that it was written out by the plaintiff at the request of his solicitors who, when they received it, then had it typed up. The typewritten “copy” is Ex. 4. The typewritten copy does not purport to record precisely what is written out in the plaintiff’s handwritten statement which seems to have been edited to produce Ex. 4.
The Writ of Summons issued on behalf of the plaintiff on 20 July 1982 was served on the defendant on 27 July 1982. An appearance was entered on 30 August 1982.
Exhibit 48 is a copy of a statement taken from Dean Pradel obviously subsequent to the service of the Writ of Summons on Trinity Petroleum Services. It is a poor photostat copy of the statement which was signed at Cairns by Dean Pradel and witnessed on 7 October 1982 - nearly three months after oral instructions were first given by the plaintiff to his solicitor on 13 July; the written statement I would infer was produced at some later date.
The versions given by the plaintiff and Pradel on those occasions as to the event leading to the plaintiff’s injury are diametrically opposed.
Having had the opportunity to observe the plaintiff give evidence as to that event and also with respect to the consequences of his injury, I am far from impressed with his reliability. The plaintiff’s son was called to support him. For reasons which will emerge as I analyze that evidence, I am also unimpressed with his reliability as to the events which led to any back injury to the plaintiff on 2 January 1980.
Dean Pradel was called to give evidence on behalf of the defendants. I assume that they had procured his statement (Ex. 48) from the insurance company which investigated the whole matter when Trinity Petroleum Services was served with the plaintiff’s Writ of Summons in July 1982. The content of the typewritten statement (in the form of a statutory declaration) obtained from Mr Pradel if true, would either arguably negate any cause of action in the plaintiff or if he established one, require the plaintiff to bear a very significant proportion of responsibility for his injury.
I will refer to relevant parts only of the statutory declaration which Mr Pradel signed in October
1982 -
“5.I arrived at the shed at approximately 4.30 p.m. and began refuelling the vehicle. Whilst I was doing so Denkewitz was standing on the vehicle’s left hand side fuel tank working on the motor of the refrigerator trailer.
When I moved to the left hand side fuel tank and began adding fuel Denkewitz stopped working and started talking and joking with me.
6.Whilst we were talking Denkewitz placed his left foot on my left shoulder and said something jokingly to me.
7.I do not recall exactly what was said however there was no harm meant and I reached out and without any real force pushed his foot away.
8.As I pushed his foot Denkewitz appeared to lose balance and slipped off the fuel tank feet first. I do not recall if any part of his body struck the fuel tank as he was falling.
9.At the time of this incident Denkewitz was wearing thongs. The fuel tank was wet as it had been raining although it had stopped prior to the incident. I feel Denkewitz slipped as a result of his losing his balance while standing on the wet tank on one foot and not as a direct result of my moving his foot from my shoulder.
10.Denkewitz who is quite a large man is a pretty hot-headed sort of a person and he accused me of causing him to fall. I did not want to get into an argument and I continued filling the tank then packed up and left.
11.When I next filled up Denkewitz’ truck I asked him about his back which he claimed he had hurt in the fall. He told me he had seen a chiropractor and that his back was OK.
12.Since the incident I have seen Denkewitz every time we have refuelled his vehicle which was normally once a week and at no stage did he mention that his back was troubling him. Denkewitz drove the same Volvo on the Cairns to Brisbane run until mid-1981. ---”
At first sight, the version of events in Mr Pradel’s statement given within a couple of months of the statement being written out by the plaintiff would appear by comparison to be more credible.
However, when called to give evidence in this case, Mr Pradel indicated that he had no recollection of the events in issue. Although he identified the statement as one made by him permitting it to be tendered under s. 92 of the Evidence Act, having read through it, he said:
“I remember giving a statement -- to some insurance assessor or some solicitor or something.”
He said that on that occasion he “must have” told them as best he could recall what had happened. He said having read through the statement it did not refresh his memory as to what had happened on that particular day. He said that he could remember the plaintiff falling but could not recall whether he had hit his tailbone as he fell. He said he could not even recall whether he ended up on his feet or on his bottom on the ground. He did say however that he had never heard anything more about the plaintiff’s fall from the plaintiff or from anybody else for that matter until 2½ years later when the Writ of Summons issued against his employer. He said that he was 22 years of age at the time of the plaintiff’s fall and he had been working with his employer for between one and two years.
He was pressed in cross-examination on matters of detail but he said his recollection was so poor he was unable to answer many of the questions. At one stage he said:
“I know I did grab something and that would most likely have caused him to fall off the tank.”
When pressed firmly in cross-examination Mr Pradel denied that the content of the statement he gave so long ago “might be something less than the whole truth”. What Mr Pradel did firmly swear to in Court was that he certainly did not grab the plaintiff by his ankles and pull his feet out from underneath him. He then qualified that and said:-
“I can’t specifically recall exactly what I did but I doubt if I’d pull someone like that purposely for them to land on the tank or on the ground.”
I find it very difficult to determine what prospects of success the plaintiff would have had if his action had been commenced before 2 January 1983 and had proceeded to trial in about say 1985. Had the matter come to trial then, Mr Pradel’s recollection would obviously have been better one would think and more capable of being refreshed by the statement he gave in October 1982 than it was when he attempted to refresh his memory in August 1998 - 13 years after the date by which the matter should have come to trial.
On the other hand of course, it is no fault of the plaintiff that his action did not come to trial at that time. It is really the fault of both Messrs Mellick & Smith and the defendants whose failure to proceed with due diligence has led to the lengthy delay that has undoubtedly affected the recollection of all parties involved in or present at the event in issue.
Having said all that, it remains to evaluate on the evidence led in this trial the prospects of the plaintiff succeeding in any action against Dean Pradel that may have come to trial in say 1985 in Cairns.
This task is a difficult one in itself. There is evidence which suggests that indeed when he first sought medical treatment in January 1980 for back pain, which is evidenced by contemporaneous records, he made no complaint at all of any injury on 2 January. On the other hand, Mr Pradel in his statement asserted that the plaintiff did fall on 2 January and complain of some pain - injury in respect of which he abused Pradel. There is evidence that the plaintiff had suffered trouble with his back before 2 January 1980 and there is significant conflict in the medical evidence as to whether a laminectomy which the plaintiff had performed on him as a result of problems with his spinal processes in June 1982 was in fact required because of an aggravation of a pre-existing back condition or because it was itself caused by the fall in issue.
I propose therefore on the evidence before me to determine firstly the prospects for the plaintiff succeeding against Dean Pradel in an action tried about mid 1985 had he then given evidence along the lines of that contained in his handwritten statement. The content of that statement of course must be considered in the context of the evidence he actually gave on oath before me. However, on my evaluation of his evidence there was a great deal of reconstruction in it - and certainly a great deal of reconstruction in the supporting evidence given by his son.
I would regard Dean Pradel as an honest an credible witness who was quite unlikely when giving his statement to the insurance loss assessor to have made up or invented a fictitious account of how the plaintiff injured himself in an attempt to absolve himself from blame. I reject the suggestion that the reason he was unwilling to unequivocally adopt in Court the content of his statutory declaration made 7 October 1982 - 16 years ago - which in any event was admissible evidence itself under s. 92 of The Evidence Act was that in fact he was not prepared to swear to the truth of something he believed to be untrue. I accept his explanation for his unwillingness to swear to its truth because such a long period of time had passed that he simply had no independent recollection of most of the matters contained in it. I have little doubt that he could have recalled within three years of the event in issue the matters contained in his statement made in the form of a solemn statutory declaration. In spite of that however, the fact remains that the weight to be given to his statement (which is Ex. 48) under s.102 of the Evidence Act in so far as it contradicts the handwritten statement of the plaintiff given to his solicitor (but not given on oath) a couple of months earlier which is unequivocally supported by oral evidence given upon this trial in which he was subjected to severe cross-examination during which he denied emphatically the version of events contained in Dean Pradel’s statement is a matter for careful consideration.
The approach which appeals to me is to look at both statements Ex. 3 and Ex. 48 and attempt to assess the likelihood of the evidence of one or other of the plaintiff and Mr Pradel given in accord with those statements being accepted upon trial in mid 1985. In approaching the task in this way I will have regard to the evidence given by each upon this trial and the impression as to reliability and credibility that I gained from each as well as to the matters specified in s. 102.
In his handwritten statement (Ex. 3) the plaintiff wrote -
“On the 2-1-80 ---
On completion of the refuelling I was standing on the fuel tank on the R.H. side of the truck talking to Dean Pradel. He grabbed hold of both my ankles with both of his hands. I told him not to pull my legs because if I fell I would suffer injury. Mr Pradel ignored my request and pulled my ankles and I landed on my spine on the fuel cap as I fell. There was severe pain & I almost blacked out. Mr Pradel was apologetic but in my state of mind I told him to be out of sight by the time I recovered enough to become angry.”
In evidence upon this trial, the plaintiff said that Mr Pradel had refuelled his truck with diesel fuel then rolled up his hoses and then for no apparent reason, while the plaintiff was standing on a fuel tank on his vehicle -
“grabbed me by the ankles and I said ‘don’t pull them out from underneath me. I will be injured myself’ and he proceeded to do it and I landed on my tailbone on the fuel cap”.
He said that prior to Pradel doing that to him
“when I had finished I was standing there speaking to him -- and there was only normal conversation going on when he sort of approached and then he grabbed my ankles and that was it -- the cap (i.e. of the fuel tank on the truck) had been put on and he had rolled up his hoses and come back to the conversation”.
He said he was “astride of” the fuel cap “at the time he [ i.e. Pradel] pulled my legs out”.
He agreed that there was a fuel tank on each side of his truck and that each of them was filled with fuel by Mr Pradel on the day of the injury. He said that he was standing on the edge of the driver’s side fuel tank and talking to Mr Pradel. He said he was standing “astride the cap - one foot either side of it”. He said that the edge of the fuel cap was about two or three inches at the most from the vertical side of the tank. He said he was standing on the fuel tank in thongs with his toe “to the edge”.
It was specifically put to him in accord with the content of Mr Pradel’s statement that he had put his left foot on Pradel’s left shoulder and made some silly remark. It was put that Pradel had pushed his foot away causing the plaintiff to lose his balance and to fall off the tank feet first. The plaintiff denied this version of events. He also said that he was so offended by what had happened that he stopped buying diesel fuel from Pradel’s employer for some time.
The plaintiff’s son gave evidence that he was 13 years of age at the time of his father’s injury. He said that that occurred about November of 1979. He said -
“That time I can’t place exactly where I was but I was within reasonable view of what occurred. My father was standing on the fuel tank of the truck he had at the time. Mr Pradel was standing beside the fuel tank on the ground looking up at him talking to him. Whether he had just been in and fuelled the truck or exactly what had happened I am not sure at that point but then for no apparent reason Mr Pradel just apparently pulled my father’s ankles out from under him causing him to fall down and land on the fuel tank of the truck or more to the point on the filler cap of the fuel tank with his tail bone basically which from there he went on the ground in a considerable amount of pain
---
it took him a while to get up and get mobile again if I remember rightly. There were some heated words on his part to Mr Pradel. I remember Mr Pradel apologising profusely for his actions and beyond that I believe after that Mr Pradel left.”
When asked how he fixed November as the time when this incident occurred, he said -
“It was a long time ago. We did have to think about it a fair bit to arrive at that date. That was sort of the best we could put it at.
I remember it being later in the afternoon like after school.---
So it was probably not long before school holidays.”
He said that he provided a signed statement to solicitors who had previously been acting. He said he had previously given somebody information to the effect of that in the statement. He observed -
“Discussion between my father and myself. We arrived at this as I say. That was the best we could come up with for the date.”
He said he did not know what solicitor was acting for his father when he gave a statement in 1991. The statement is dated 24 February 1991 and is Ex. 40. About 11 years had passed since the time of the incident. He agreed that he had given that statement -
“After you and your father had talked about it and you tried to work things out.”
In that statement he said inter alia -
“After finishing refuelling my father was standing on the right hand side fuel tank of the truck and light conversation was going on between all parties.”
He had previously said that he had been assisting his father to prepare his truck for a trip to Brisbane. He continued -
“Mr Pradel grasped my father’s ankles (using both hands) my father said not to pull or he could fall and injure himself severely. Suddenly and without reason or provocation Mr Pradel pulled my father’s ankles and he fell and landed on his backside on the raised fuel cap. The result of this nearly blacked my father out and for a few moments he was unaware of what was going on. After a short while he seemed to be aware of his senses and Mr Pradel was apologizing for his action. My father told him to leave immediately as he was most distressed.”
He agreed in cross-examination that the first time he had been asked to put down in writing what he had seen 11 years previously was when he gave that statement. He said he had never attempted to do so before that time. When pressed in cross-examination as to the opportunity he had to observe the incident, he said that at the time his father fell -
“I was outside the shed where the truck was parked but exactly where I am not sure. There was sort of bathroom facilities along the side of the shed. I may have been in there or somewhere near the truck at the time - probably either just washing my hands or I had been working on the truck like greasing it or changing a light bulb, something like that.”
He said that he could have been changing a light bulb anywhere along the side of the trailer or at the rear of the truck. He agreed that -
“I haven’t got a 100% mental picture of it no but I have a fair picture of it in my mind yes.”
When asked on which side of the truck his father was standing at the time he was pulled off it he
said -
“I can visualize that quite clearly. I can remember the nature of the layout of the sheds and where he used to park the truck all the time and he was actually standing on the fuel tank of the driver’s side of the truck.”
He said he was not sure what footwear his father was using at the time of his fall. He said that he could remember the weather at the time of the incident and that it was not raining. He said at the time he fell his father was facing away from the side of the truck-trailer. He said that he could not entirely recall whether Mr Pradel had finished fuelling the truck or was in the process of going to fuel it. He said that he could recall his father saying something to the effect of “don’t do that”. He said that it was after the incident that he could recall Mr Pradel apologising for what had occurred. Interestingly when further pressed in cross-examination, Mr Denkewitz Jnr. said -
“I honestly believe he didn’t actually mean to pull that hard, but chances are the surface of the fuel tank was slippery. It could have had distillate on it or something and quite probably it wouldn’t have taken much. It was probably only a joke. He just grabbed him by the ankles not meaning to do or not meaning for the outcome that occurred.”
He said that he could not recall any “horseplay or skylarking” between his father and Mr Pradel before his father’s injury. He said that as far as he could recall his father and Pradel were simply standing “having a discussion and then all of a sudden Pradel grabbed his father’s ankles and pulled him off the truck”.
It was specifically put to the plaintiff’s son that in fact the plaintiff while standing on his fuel tank had put one foot up on Pradel’s shoulder. He said that he did not believe that that could have happened without him observing it. He then said that in fact he did see what had happened and that was not what had happened. It was put to him that Pradel had pushed the plaintiff’s foot off his shoulder causing him to lose his balance and he denied that. He said he had actually seen his father fall down. He said he was about 20 feet or 6 metres away at the time and later “between 15 and 20 feet”. Although he said on more than one occasion his father had landed on his tailbone on the fuel cap, he admitted when pressed that he could not of course see that. He said that he had been washing his hands in a toilet facility; if so the plaintiff’s body I should have thought must have been between him and the fuel tank at the time he slipped or was pulled from it to land on the ground. He said that when his father was standing beside the fuel tank his tail bone would be approximately level with the top of the fuel tank.
In my view the terms of the statement strongly suggest a reconstruction on the part of the plaintiff’s son after years of discussion of the events with the plaintiff. I am unpersuaded and I believe a trial Judge in the mid-1980's would have been unpersuaded to attach very much reliance to evidence given along these lines by the plaintiff’s son.
The defendants called Dean Pradel and when asked to give evidence as to what he could remember about the event he said -
“While I was fuelling the truck we exchanged words in a kindly manner, I guess you could say. There was a little bit of tongue in cheek which for some - I don’t know the exact circumstances at the time but I did grab Mr Denkewitz ankle somehow and he fell. The exact specifics on that I can’t recall.”
He said that he believed at the time the plaintiff had thongs on and that he was standing on the fuel tank and after the incident he ended up on the ground. he said he could not remember which of the two fuel tanks the plaintiff was standing on. He said that he gave a statement on 7 October 1982 “to some insurance assessor or some solicitor”. He was then asked -
“Q.And on that occasion did you then tell as best you could recall what had happened?
A.At that time I must have yes.”
The statement was tendered and is Ex. 48. He said that reading the statement did not “help his memory too much”. He looked at Paragraph 6 of his statement and said that he had no recollection of those facts at the time of giving evidence. He did say that to his recollection at the time the plaintiff was living in Lake Street and he continued to deliver fuel to him.
He said that he could remember the plaintiff falling but “whether he hit something on the way down I don’t recall it.”
He said the first he heard about this event was about 2½ years later when his employer was sued.
He was cross-examined at some length as to his recollection. He agreed that he had gone to the plaintiff’s premises to supply fuel and he said that the plaintiff had only one truck. He said he could not be sure whether he had finished fuelling the plaintiff’s truck at the time of the incident. He said he had some recollection of the plaintiff having been working on a refrigeration motor on the trailer. He agreed that he had been standing on the ground talking to the plaintiff who was standing on one of the petrol tanks. He said he could not recall on which of the fuel tanks he was standing. He said that he could not recall the plaintiff saying anything like “I pay you to fill it not spill it”. He said he could not recall ever having heard anybody say that before when he had been delivering diesel fuel. He said he could not remember grabbing both the plaintiff’s ankles, one in each hand. Indeed he said he could not remember one way or another. He said that although he could remember the plaintiff saying something he did not remember precisely what it was. He is recorded in the transcript of evidence as having said he grabbed his “ankles”. However, my appreciation of the evidence he gave was that he said “ankle”. He is recorded in chief as saying “I did grab Mr Denkewitz’ ankles somehow and he fell”. My distinct impression however listening to the evidence and noting it, was that he said “I did grab Mr Denkewitz’ ankle somehow and he fell”. In the course of cross-examination he said he couldn’t be sure really whether he had said “ankles” or “ankle”. He said -
“I know I just - I know I did grab something and that would most likely have caused him to fall off the tank.”
He said he could not remember many of the things that are contained in the statutory declaration that he made so long ago.
He agreed in the course of cross-examination that -
“Where a person is standing on a wet fuel tank in thongs then one has to exercise care in the way in which one acts with regard to that person because a sudden movement could make them slip is that right?”
He said -
“It’s possible yeah.”
He clearly denied the suggestion that he had grabbed the plaintiff’s ankles and pulled his feet out from under him. He said -
“I can’t specifically recall exactly what I did but I doubt if I’d pull someone like that purposely for them to land on the tank or on the ground.”
It is not necessary or indeed possible for me to determine ultimately who of the various witnesses would have been accepted as reliable witnesses had the trial come on for hearing in mid 1985. In my view, the version of events given by the plaintiff supported to the extent that it is by his son is improbable. It is conceivable I suppose that Mr Pradel would have acted in the grossly negligent way without any warning as asserted by the plaintiff and his son. However, it seems to me the version of events contained in the statement of Mr Pradel is significantly more probable than that of the plaintiff.
On the other hand, it would depend upon the impression that the various witnesses would have made upon the trial Judge and it is possible I suppose that the plaintiff’s version of events might have been accepted. In the alternative, if Mr Pradel’s version of events as recorded in his statement had been regarded as more likely, it may conceivably have been found that he acted negligently in pushing the plaintiff’s foot off his shoulder which led to him falling.
I conclude that the plaintiff’s case against Mr Pradel if heard in mid 1985 would have been a weak one - or at the very least a very risky one.
The evidence relating to the medical attention he received to my mind tends to cast further doubt on the plaintiff’s version of events. When he attended for medical treatment shortly afterwards he made no mention of being pulled off the truck. One would have thought that that would have been the first thing of which he would have advised the doctor had he been caused serious pain by the “unprovoked” action on the part of Mr Pradel. However, three weeks after the event he was complaining to Dr Tucker who specialized in musculo-skeletal medicine that he had been suffering from pains down both legs for more than six months. He received spinal manipulation to “loosen up” his lumbar spine on 23 and 30 January 1980. No mention was made of any injury on 2 January 1980 although it must have been obvious to him that Dr Tucker attributed his pain in both legs to a condition in the lumbar spine. It emerges quite clearly in his handwritten statement given to his solicitors - Ex. 3 - that on 6 April 1982 he had had a myelogram which confirmed pressure on his spinal cord “by matter squashed from the disc.” No such myelogram or report thereon was ever tendered. The report on a myelogram made on 2 April 1982 - Ex. 23 certainly does not support this assertion.
He said he was unable to have an operation until June 1982. He said -
“I was discharged from the Mater Hospital on 9.6.82 and spent the next month on my back regaining strength. On the 21 July I was told by the Dr. that I was recovered and had 65 to 70% of my back. No heavy lifting no trucking or driving. I have not worked since as I cannot get a job due to physical limitation.”
It is interesting to note that his first approach to a solicitor to take action against Mr Pradel’s employer was subsequent to his operative treatment on 1 June 1982 - and it was about that time that he learnt that he had a significant permanent back disability. He admitted in cross-examination that it was not until he first consulted Mr Mellick in July 1992 that he “connected” his back pain for which he had had a laminectomy with any injury on 2 January 1990.
If Mr Pradel’s version of the event were preferred to that of the plaintiff it might be arguable that he was negligent in the circumstances in pushing the plaintiff’s foot off his shoulder as he continued to fill the fuel tank on the plaintiff’s truck. It may have been argued however that by instituting this “prank” the plaintiff was volenti to Pradel’s foreseeable if not instinctive reaction to remove the plaintiff’s foot from his shoulder. Had it not been for the evidence of Mr Pradel that indeed the plaintiff did fall from his truck and complain of pain in the back at the time, in the light of my serious reservations as to the reliability of the plaintiff, I may have been tempted to find that he had no prospects of success. In my judgment the plaintiff’s loss of his chance to recover damages against Messrs Mellick & Smith ought be valued by discounting by 75% the amount of the judgment he would probably have recovered in mid 1985 if wholly successful on the issue of liability.
I will turn now to consider on the evidence likely to have been available and accepted in mid 1985 what quantum of damages would probably have then been recovered by the plaintiff.
According to the plaintiff nearly three weeks after the day of his injury on 2 January 1980 he attended his general medical practitioner Dr Leong not concerning back pain but concerning pain in his knee for which he was referred to Dr Tucker. Dr Leong was not called to provide a history of what the plaintiff told him nor to give evidence of any clinical observations he made when he examined him. The plaintiff said that he did not even mention the fall of 2 January 1980 when he attended Dr Leong on 20 January 1980; he said he sought treatment by acupuncture for a knee condition. I have already referred to the fact that when he attended Dr Tucker who specialized in musculo skeletal medicine on two occasion, the 23rd and 30th days of January 1980 he made no mention whatever of any back injury. He certainly gave no evidence that he had fallen or sustained any impact to the spine on or about 2 January 1980 which may have led to the sort of back problems that motivated Dr Tucker to give him a spinal manipulation to loosen up his lumbar spine, presumably on the basis that pains he was at that time suffering in both legs were connected in some way with the condition of his lumbar spine.
According to Ex. 30 which is the estimate of travel expenses incurred by the plaintiff as the result of the alleged injury to his spine, by far the most numerous trips for medical attention appear to be to Dr Leong. There is no report however from Dr Leong and he was not called to give evidence. The only medical report which was tendered which seems to even mention Dr Leong’s name is a copy of a letter which Dr Mansfield an orthopaedic surgeon sent to Dr Leong on 28 January 1982 - a little over two years after the alleged injury and prior to him receiving any operative treatment to his spine.
The terms of that letter are interesting. The first paragraph of the letter reads -
“Thank you for referring Mr Denkewitz. I have seen him previously with a right knee problem but this has now settled and his trouble is coming from his low back pain. He has had low back pain for 3½ years. This settled well following acupuncture two years ago but his present episode which has been present since June 1981 has not been so receptive to treatment. He is now getting constant pain which is worse when he is sitting and it radiates down his right leg to his foot
---
x-rays reveal no bony pathology but there is narrowing at L4/5 and L5/S1 disc spaces. This man certainly has a lumbar spondyolosis which is not helped by his large size and obesity --- I have suggested to him that the best thing he can do is to lose weight and start some swimming in the pool to increase his fitness and general mobility of his spine. I think that if he does not settle with the treatment he should try a period of complete rest in hospital with relaxants and analgesics and if he continues to have intractable pain he may warrant myelogram. He seems happy with this and is going off to think about it and will contact me in the future if he requires further treatment.”
I infer from the terms of Dr Mansfield’s letter that he was not informed of any fall on 2 January 1980 of the kind to which the plaintiff refers. I find it inconceivable that in referring the plaintiff to Dr Mansfield, Dr Leong would not have at least raised any matter of a complaint made to him by Mr Denkewitz of a fall of the sort about which he gave evidence.
Dr Mansfield appears to have referred the plaintiff to Dr Curtis by letter of 18 March 1982. In the course of that letter, Dr Mansfield said:
“I saw him in January this year with a problem of low back pain. He had a similar episode some 2½ years ago and when he had acupuncture this was completely cured. He had had back pain this time since June 1981 and acupuncture has not had any effect. It is a fairly constant pain and is worse on sitting and radiated down the back of his right leg to his right foot.
---
X-rays showed no bony pathology but L4/5 and L5/S1 were narrow.
---
He re-presented on 18.3.82 and he was worse with his sciatica giving him a lot of trouble.
Examination was basically the same except I thought his quadriceps were wasted and were objectively so on mensuration on the right hand side. He has had a couple of friends who were treated by Reno Rossato and done well and therefore wanted to see Reno and has gone off to do so ---”
These medical observations were made before the plaintiff elected to have a decompressive laminectomy at the Mater Hospital in Townsville on 1 June 1982. The surgeon who performed that operation was Dr Rossato. In Ex. 31 the plaintiff lists six occasions when he had to travel from Cairns to Dr Rossato’s surgery - which was in Townsville.
Unfortunately there was no evidence whatever from Dr Rossato except a copy of a letter that he wrote to Dr Mansfield on 17 October 1983. In that letter he observed:
“I reviewed Mr Denkewitz on 12.10.83. As you know he had a lumbar decompressive laminectomy on 1.6.82 and has been extremely well. He told me that after riding a motor bike for a longish period of time he developed sore knees which were essentially within the knee itself and did not fit the picture of any more proximal referred pain. His back is quite soft and is mobile with good lumbar movements and normal straight leg raising. His knee jerks are well preserved and there is no sensory deficit. He certainly has creaky knees and I have suggested to him that the problem lies within these joints rather than with his back --”
Exhibit 23 contains an x-ray report dated 2 April 1982 to Dr Rossato. That report obviously was prepared prior to the operation performed on 1 June 1982. It gave the result of the lumbar myelogram. The report inter alia contains the following observations -
“Contrast injection demonstrated moderate to marked anterior indentation of the contrast column at L4/5 in the lateral view. However no abnormality is seen in the AP or oblique projections at this level. The other lumbar levels are all normal in appearance. The lower thoracic region including the conus also appears normal.”
In the light of that report obtained by Dr Rossato it is difficult to accept the plaintiff’s assertion that “at last Dr Rossato picked it (i.e. his crushed vertebra) straight away.”
In the course of cross-examination the plaintiff said that the fall had caused his back problems. He observed:
“That aggravated the other things coming from the L4 and the L5 region where the nerves were hurt and the pieces of disc went in there. I think he took out five pieces of disc that were in the spinal cord canal that were aggravating the spinal cord.””
If the plaintiff had any belief that this was the fact I find it strange that Dr Rossato was not called to give evidence to this effect. Such evidence in my view would have been entirely inconsistent with the x-ray report of the plaintiff’s spine of 2 April 1982 which Dr Rossato obtained before performing the laminectomy.
The plaintiff claims travelling expenses incurred in visiting Dr Gale on two occasions and also for travelling expenses incurred in visiting Dr Russell and Dr Lockhart, chiropractors in Townsville. Doing the best I can from the medical reports and observations by doctors who interviewed and gave treatment of some kind to the plaintiff within the first couple of years of the fall on 2 January 1980 for pain thought to emanate from the lumbar spine there is no suggestion that he ever complained of such a fall or that he ever complained of significant back pain which he attributed to such a fall. There is no evidence that he made such a complaint to Dr Leong or to Dr Rossato who performed the operation; indeed the plaintiff asserts that he did not inform Dr Leong to this effect.
There is nothing in any of the earlier reports to suggest that the decompressive laminectomy performed on the plaintiff in June 1982 was performed to achieve any repair of a crushed vertebral disc or that the laminectomy performed was in any way necessitated by a fall of the sort which the plaintiff swears occurred on 2 January 1980 which he asserts, and seeks to support by evidence of doctors retained since he decided in July 1982 to take proceedings against Mr Pradel’s employer, resulted in a crushed vertebra requiring a laminectomy.
One must turn then to the evidence given by the plaintiff and that given in support by Marguerite Yvonne Sloane in a statement taken 29 January 1991 upon which she was cross-examined at trial. Ms Sloane describes herself in the statement as “retired judge’s secretary and legal secretary”.
Ms Sloane says that she met the plaintiff for the first time “early 1981". In September or later in that year she and her daughter moved into the plaintiff’s house and lived together with the plaintiff and his son. She said that when she first met him the plaintiff “was a happy and lively man and together as a family we led a full active social life attending parties and dances, picnics, very long beach walks and swimming and were involved in the children’s school and social activities”. She said that despite this however the plaintiff “started to show signs of intense pain in his lower back and down his right leg towards the end of 1981. She said he consulted “various doctors, chiropractors, naturopaths, acupuncturists, herbalists to obtain some relief from this pain but to no avail.”
The plaintiff swore that he sold his trucking business in June 1981 and later invested the proceeds in an aeroplane. That venture failed and he lost the capital invested in it.
There are inconsistencies in the content of Ms Sloane’s statement and some of the evidence to which I have referred. I do not propose to deal in detail with those inconsistencies. I refer to her statement only because it suggests that twelve months after the alleged injury and his consultations with Dr Leong in respect of “his knee pain” - to the extent that he did in fact have such consultations in those first twelve months - the plaintiff seems to have had no significant diminution of his physical capacities; according to Mr Pradel he was regularly driving his truck between Brisbane and Cairns. According to Ms Sloane one year and nine months after the injury after leading the full, active social life to which I have already referred he then “started to show signs of intense pain in his lower back and down his right leg”. Unfortunately she does not specify the “various doctors, chiropractors, naturopaths acupuncturists --- etc. from whom he sought to obtain relief from this pain. I find it unfortunate, if not indeed surprising, that no effort was made to obtain from those practitioners the history of events which the plaintiff gave them with a view to getting treatment to relieve him of the symptoms of which he complained.
She said that in January 1982 the plaintiff consulted an unnamed orthopaedic surgeon. How many orthopaedic surgeons he consulted at that time is unclear. However, he certainly seems to have consulted Dr Mansfield to whom Dr Leong had referred him. He seems to have also referred him to Dr Curtis. There is no suggestion that Dr Curtis examined him at that time.
A number of medical reports were tendered and medical evidence was given. The other reports and the evidence given however seems to have come into existence as the result of preparation for litigation on the basis that the plaintiff did suffer significant back pain on 2 January 1980 from which he never substantially recovered. I find that medical evidence of less assistance than I would had I had the advantage of hearing evidence from the doctors who treated the plaintiff for whatever problems of which he was then complaining prior to his agreeing to have Dr Rossato perform the decompressive laminectomy in June 1982. It was indeed subsequent to the performance of that operation that the plaintiff seems first to have attended Messrs Mellick & Smith on 13 July 1982.
Dr Watson examined the plaintiff on 22 and 23 February 1984 “as a favour to Dr Rossato”. The plaintiff informed him apparently that he had had right-sided sciatic pain prior to the lumbar laminectomy performed on him by Dr Rossato and that prior to Christmas 1983 he had “put his left hip out” while twisting and lifting. Dr Watson gave the plaintiff a caudal steroid injection and advised that he should return in two weeks time for a review. However the plaintiff did not return for any further examination or treatment.
Dr Clark examined the plaintiff on 24 June 1991 - 11½ years after his alleged fall in January 1980. He expressed the view that the clinical observations made by Dr Mansfield in January 1982 suggested that the plaintiff’s overweight had contributed to the development of a lumbar spondylosis by the time he had attained the age of 47 years. Then accepting the statement of the plaintiff - as no doubt he felt obliged to do, he observes that he developed “root symptoms into his right leg” after the January 1980 incident. He observes that the laminectomy performed in mid-1982 did not reveal any intervertebral disc prolapse but rather a bi-lateral foraminal stenosis which suggested a naturally occurring lumbar spondylosis. According to Dr Clark the symptoms experienced by the plaintiff subsequent to his laminectomy are secondary to the continuing deterioration in his lumbar spondylosis and his excess weight has contributed to this condition. It was Dr Clark’s view that any injury suffered by the plaintiff in January 1980 -
“would appear to have aggravated that pre-existing condition and brought to light symptoms from a foraminal stenosis at L4/5. -- In the last few years (i.e. prior to 2 August 1991) it would appear that most of his symptomology continues to be due to his naturally occurring lumbar spondylosis rather than to any continuing late effect of the accident in 1980. Therefore in summary it can perhaps be stated that between 1980 and 1982 Mr Denkewitz’s condition was 80% due to the effect of his accident and 20% to the effect of his naturally occurring lumbar spondylosis. It can be stated that his operation in June 1982 helped the problem which was brought to light by the accident but since then most of his symptoms have been due to the effect of his naturally occurring spondylosis.”
I observe merely that Dr Clark’s opinion is based upon accepting that the plaintiff did suffer a sufficient trauma to his spine in January 1980 to produce back (or perhaps leg) pain. I must say I have reservations about this aspect of the plaintiff’s version of events. Firstly it is inconsistent with the income which he earned in the financial year in which he suffered his injury and in the subsequent financial year. Secondly it seems inconsistent with the evidence of Mr Pradel to the effect that the plaintiff told him a week after the incident that he had seen a chiropractor and that he was not having any problems; it is also inconsistent with Mr Pradel’s evidence that as far as he could recall the plaintiff continued to drive his truck between Cairns and Brisbane each week as he had previously done and fuel was delivered to him for this purpose.
Dr Mulholland who examined the plaintiff for psychiatric disability resulting from the delay in having his actions processed relied to a significant extent of course upon the version of events he was given by the plaintiff. In particular he relied upon the significant physical back disability that the plaintiff had been left with - according to him. Unfortunately for the plaintiff a videotape taken of his activity on 8 December 1996 (two days before he first related to Dr Mulholland the disabling effect of his injury of 2 January 1980 upon his life style and earning capacity) in servicing a hire car that he was then driving fails to reveal or record anything like the apparent disability in walking and getting around that the plaintiff manifested while walking to and from the witness box in court. Dr Mulholland stressed that the factors which he considered in coming to his conclusion that the plaintiff has an “adjustment disorder” are -
nchronic pain
ninability to work
npoverty
nunresolved litigation
I have significant reservations about the plaintiff’s “chronic pain, inability to work and poverty”. Undoubtedly he would be stressed by the fact that he has had unresolved litigation relating to whatever injury he may have suffered in January 1980 pending for some 16 years. Copies of Assessment Notices for tax payable by the plaintiff in relevant periods of time indicate -
Year 30 June 1978 - Taxable Income $4156
30 June 1979 - Taxable Income $8892
30 June 1980 - Taxable Income $6302
For the year ended 30 June 1982 the plaintiff lodged a return showing no taxable income had been received. However in a letter from the Australian Taxation Office dated 15 September 1983 it is asserted that the 1981 assessment on the plaintiff’s taxable income which was due for payment on 31 March 1982 was for $23,716.36. It emerged eventually however that this was a default assessment the primary tax being $11,502.32 and the balance being additional tax for late payment and penalty interest. It is clear that in 1983/1984 the plaintiff was in receipt of a pension. It is equally clear from the evidence and from material recorded on video camera that for many years prior to trial the plaintiff was working driving trucks, fork lifts, tractors, taxis and a hire car which he had purchased.
In his 1984 income tax return he showed a gross income from business of $25,000 approximately. There was a claim for a very significant amount of money spent on repairing and maintaining the truck he used for this operation - amounting to $22,988.
This material seems to me to be consistent with the evidence given by Mr Pradel that for about 18 months after the plaintiff suffered his back injury in January 1980 he continued to operate his transport business driving to and from Brisbane weekly. The plaintiff sold his trucking business in June 1981.
According to statements of benefit paid to the plaintiff contained in Ex. 37 he was first paid a benefit on 12 September 1984 and was last paid one on 19 June 1985 being a total of $3769.60. This statement was provided to the plaintiff for taxation purposes. It was attached to his income tax return for the year ended 30 June 1985. It is clear from that return however that he was still earning income from a trucking business and indeed was still depreciating a motor vehicle that he used for that purpose. At the time he submitted his tax return for the year ended 30 June 1987 the plaintiff was then being employed as a forklift driver according to that return. In that year he received social security benefits which I assume were paid with respect to his then back disability of $4,880. In that year he also earned about $3,000 from which was deducted $617 tax.
On 18 November 1996 the plaintiff entered into an agreement to lease a hire car for two years at a monthly rental of $500. At this time he had an authorisation to drive such a hire car. Interestingly, it was recorded with Queensland Transport that the period of the lease was from 18 November 1996 to 18 November 1999. Whichever may be the position, it is clear that at the time of trial the plaintiff was driving a hire car pursuant to a driver authorisation he had received and had been doing so since November 1996.
Exhibit 46 lists the plaintiff’s earnings as a taxi driver from 24 September 1992 to 30 October 1994. The sums recorded amount to $20,783. I would infer from the terms of this document that the plaintiff was employed as a casual taxi driver only. Although he did not work each day he obviously worked regularly, often three days running then having a day or two off. 106 Unsurprisingly the plaintiff was cross-examined at some length upon this material - particularly having regard to the assertions he had made to various medical specialists (including Dr Mulholland) that he had been unemployable due to his terrible back disability and the constant pain it caused.
The plaintiff in my view has quite intentionally misled his own solicitors as to his diminution of earning capacity since 1980. It is unnecessary to analyze in detail his efforts to mislead both the doctors retained to give evidence on his behalf and this Court in this regard.
His bare-faced attempted to “pass off” an accountant’s report prepared for the purpose of obtaining finance for a business venture of some kind as a “tax return” demonstrating that he earned a taxable income of $35,000 for the year ended 30 June 1981 is merely one example of what in my view constituted an intentional effort by an intelligent man to mislead the Court - just as he admitted his attempts to mislead the Taxation authorities which resulted in a default assessment.
Ultimately he agreed in cross-examination that he had failed to disclose income which he had earned since January 1980 “because - [ he] - thought - [he] would get away without anybody knowing about it”.
I am unpersuaded as to the plaintiff’s reliability either as to the extent of the pain he suffered in his back - whether as the result of degenerative spondylosis or as the result of any aggravation of that condition by whatever effect the “fall” of 2 January 1980 may have had on him. I am equally unpersuaded as to the extent of the diminution - if any - of his earning capacity at any time material to assessment of his damages.
It is clear he continued to drive his truck regularly. It is also clear from the record of Dr Rossato that in fact one of the problems he consulted him about was attributable to his riding a motor cycle - which apparently caused him some knee problems.
At the end of the day I find the most persuasive opinion to be that of Dr Clark. I much prefer his medical opinion to that given by Dr Todman even though Dr Clark was not called to give oral evidence. In my view the opinion reached by Dr Todman in 1988, 1989 and 1992 must have been based to a significant extent upon the history given to him by the plaintiff. I am unpersuaded to accept Dr Todman’s opinion because I have very significant reservations about the reliability of the plaintiff both as a witness in this case and also as a person who would give reliable information concerning the nature of the injury and its effect upon his capacity to Dr Todman who was retained for the purpose not of medical treatment but of giving medical reports for use by the plaintiff in his action or actions.
As between Dr Morris and Dr Todman, I prefer the evidence of Dr Morris because the facts to which he refers seem to receive more support from contemporaneous medical assessments close to January 1980 than do those relied upon by Dr Todman. In my view the evidence of Dr Morris is consistent with the observations in the medical report of Dr Clark to which I have referred.
In my view, there is no acceptable evidence that the plaintiff was substantially disabled for a significant period of time after the incident of 2 January 1980. In my view it is not improbable that he had Dr Rossato perform a laminectomy on him as the result of discussions he had with some of his friends as to the relief from back pain they had obtained from similar operations performed by Dr Rossato. Upon the slender evidence led the performance of that laminectomy did not disclose any spinal condition consistent with injury caused on 2 January 1980. It was consistent with a spine that had suffered from degenerative spondylitic changes and indeed the operation seems to have given significant although not complete relief from the symptoms which had motivated the plaintiff to have it. I infer on the whole of the medical evidence that in mid 1985 a court would find that to the extent that the incident of 2 January 1980 had any effect on the plaintiff it merely accelerated symptomology that induced him to have the laminectomy by a period of up to 2 years.
On the evidence generally, I am far from persuaded that in mid 1985 a court would find that the plaintiff had suffered a very significant diminution in earning capacity as the result of symptoms in his back caused or accelerated by the fall on 2 January 1980.
On the whole of the medical evidence which in some respects is a little unhelpful I find that a court in mid 1985 would have approached the matter by assuming that without the fall on 2 January 1980 the plaintiff’s back symptoms would have deteriorated by reason of natural development of spondylosis to the extent that it had by June 1982 by say June 1984. So that had he not lost weight in accordance with the medical advice he received and taken the weight off his spinal processes he would then have had the sort of laminectomy that was performed on him in June 1982 with a similar result. That is he would then have been able to work from time to time driving trucks, forklifts, tractors and taxicabs and hire cars. He may well of course have suffered a reduction in income below that which he could have continued to earn as a full time truck driver. But because of his deteriorating spinal condition his capacity to do that work would not have lasted beyond June 1984 whether or not he had had the “fall” on 2 January 1980.
Looking at the damage then that he suffered as the result of that fall, in my view, one need merely look at the loss of income in the years June 1982 to June 1984. For the defendant it was suggested that after making allowance for tax etc., a generous approach would be to simply make an allowance for income lost which might conceivably be attributable to the fall in the sum of $20,000. In my view that is a realistic concession having regard to the figures actually proved. On the other hand there is just no evidence as to what he may have earned as a truck driver between 1982 and 1984 - that is there is no evidence except his own which I find unreliable. However, upon the evidence adduced I am unpersuaded that any loss of income directly attributable to any injury to his spine was suffered by the plaintiff between 2 January 1980 and June 1982 when he had his operation. However from June 1982 to June 1984 he probably lost net income at a rate at which he could have earned it driving his truck or trucks subsequent to 2 January 1980 rather than operating his aeroplane which he purchased after he sold his trucking business in June 1981 and indeed perhaps at a slightly greater rate having regard to the effects of inflation in that period which is a matter I should think of public knowledge. I find it probable that a court would so find in mid 1985. I infer that increasing back disability played some part in the plaintiff’s decision to sell his trucking business although I am unpersuaded that it was the sole or even principal motivation -
I find that a court would have assessed that loss in round figures in the sum of $25,000.
It must be kept in mind of course that such damages would only be recoverable in any action against Mellick & Smith if they could be proved at date of trial. As I have indicated I assume I think with the concurrence of counsel that it is reasonable to fix the trial date of an action instituted by Mellick & Smith by 2 January 1983 in about mid 1985. Whatever may have been the precise time I proceed on the basis that had the action been commenced in time the plaintiff would have been able to prove the facts as I have found them and an assessment of damages would be made on the basis that in effect he had lost or had diminished say, two years of income between June 1982 and June 1984 having regard to the rate at which he could then have earned as a truck driver had he been constantly so working during that time. This would involve arriving at a net figure by making some allowance for remaining earning capacity. As I have indicated, doing the best I can on the evidence I assume that the net income lost over this two year period would not exceed $25,000.
Whist I reject the contention for the plaintiff that the failure of Mellick & Smith and of the defendants to properly institute on his behalf proceedings which he had retained them to institute resulted in psychiatric or psychological “damage” to him, I am nevertheless persuaded that those failures certainly did cause him frustration, anxiety and disappointment when he learnt eventually of the breach of duty on the part of each of those solicitors.
It is unnecessary for me to consider therefore whether the interesting point raised on behalf of the defendants that a claim for any psychiatric or psychological damage inflicted upon the plaintiff upon his learning of the breach of duty of care in the performance of their contractual obligations to him by his solicitors amounted to a “personal injury” which under the Limitation of Actions Act required that action be taken within three years of its infliction. I therefore refuse the plaintiff’s application for leave to further amend the statement of claim to claim damages for personal injury resulting from the negligence of either Mellick & Smith or the defendant’s breach of contract.
I propose to follow and apply what was said in the High Court in Baltic Shipping Co. v. Dillon (1993) 176 C.L.R. 344. It is unnecessary for me to canvass all the authorities analyzed in that case as to the circumstances in which damages for disappointment and distress have been awarded or refused for breach of contract. I will refer only to Heywood v Wellers (a Firm) [1976] 1 Q.B. 446 which was a case where a solicitor’s breach of duty to take care in instituting proceedings on behalf of a client was held to permit damages to be awarded for the mental strain inflicted upon the client in a result. At page 459 Lord Denning M.R. observed -
“So here Mrs Heywood employed the solicitors to take proceedings at law to protect her from molestation by Mr Marrion. They were under a duty by contract to use reasonable care. Owing to their want of care she was molested by this man on three or four occasions. This molestation caused her much mental distress and upset. It must have been in their contemplation that if they failed in their duty she might be further molested and suffer much upset and distress. This damage she suffered was within their contemplation within the rule in Hadley v Baxindale [1854] 9 Exch. 341.”
“It was suggested that even if the solicitors had done their duty and taken the man to court he might still have molested her. But I do not think they can excuse themselves on that ground. After all it was not put to the test: and it was their fault that it was not put to the test. If they had taken him to court as she wished and as they ought to have done - it might well have been effective to stop him from molesting her any more.”
In the same case James L.J. at 462 observed -
“In the present case the application of ‘good sense’ makes it abundantly clear that the client wanted action taken which would rid her of molestation and annoyance. It is in relation to that action that her contract with the solicitors required the exercise of proper skill and care on their part. Good sense indicates that it was foreseeable at the time of the contract that failure to enforce any remedy obtained to stop the molestation and annoyance would result in its continuance or the risk of repetition. Vexation, frustration and distress were therefore likely to result from a breach of contract in this case. Further the feelings of the plaintiff were not merely the feelings of an unsuccessful litigant who is disappointed or annoyed at the outcome of the case which would not sound in damages. In my judgment the plaintiff brings herself within those circumstances in which damages under this head are recoverable --.”
Bridge L.J. at 463 observed -
“There is I think a clear distinction to be drawn between mental distress which is an incidental consequence to the client of the misconduct of litigation by his solicitor on the one hand and mental distress on the other hand which is the direct and inevitable consequence of the solicitor’s negligent failure to obtain the very relief which it was the sole purpose of the litigation to secure. The first does not sound in damages: the second does.”
Heywood v Wellers (a Firm) was referred to without dissent, if not indeed applied, in Baltic Shipping Co. v Dillon by Mason C.J. at 363, Brennan J. at 367 and 370, Deane and Dawson JJ. at 378 and 381-382 and McHugh J. at 400-401.
The decision in Baltic Shipping Co. itself in my view is authority to support an award of damages for breach of contract in respect of each breach of professional duty to compensate the plaintiff for the distress, frustration etc. suffered on each of the two occasions when he learnt of that breach.
The first occasion was in December 1985. .
The second occasion was 24 February 1993 (vide Ex. 16). Undoubtedly the anxiety and disappointment engendered on the first occasion was replicated and indeed magnified when he learnt of a similar breach of duty on the second occasion.
In my view however, the award of damages in respect of each disappointment, anxiety etc. ought be a moderate one. I keep in mind the significant assessment of interest under the Common Law Practice Act in respect of the anxiety, disappointment etc. suffered on each occasion.
With respect to the disappointment, mental anguish etc. suffered by the plaintiff in December 1985 - which I infer was largely abated when the defendants were retained to take proceedings against Mellick & Smith in June 1986. I award $2,000.
The occasion when the plaintiff learnt of the defendants’ breach of duty was when they so informed him on 24 February 1993 of that breach. This action was commenced on 5 September 1994.
With respect to the distress etc. inflicted upon the plaintiff by the defendants in February 1993 which I infer was similarly abated when his current solicitors were retained to take proceedings against the defendants in 1993 I award $2,000.
I proceed on the basis that the sum first assessed could have been claimed in an action properly instituted by the defendants prior to 2 January 1989 about three years after the plaintiff first learnt of that failure.
No effort was made by the plaintiff to prove the items of special damages he claimed. There was apparently some discussion between the legal representatives of the plaintiff and the defendants where some agreement or understanding was reached or almost reached. In the course of his opening, counsel for the plaintiff indicated that he proposed to rely on the figures contained in the Statement of Loss and Damage filed on 24 June 1998. He indicated that it “might be” that quantum could be agreed upon.
Presumably discussions took place between counsel in the course of the trial. From the conduct of the trial it is clear that there was no agreement on loss of income.
In the course of his address, counsel for the plaintiff indicated that the notional date of trial of the plaintiff’s action against Pradel was July 1985:
“Special damages at that point in time were $6,443 which comes from the agreed amount. Interest on half of that of course is over 5½ years --- $660".
He continued:
“Voluntary assistance - that doesn’t seem to be disputed --- $1,045 interest on that at 2% over 3 years --- $60.00.”
During the course of the address of counsel for the defendant it was intimated that the quantum of $12,082.54 “as legal expenses recoverable” was agreed. It subsequently emerged however that the agreement was to the effect to which I have referred apportioning that sum between the costs thrown away as a consequence of the failure of Mellick & Smith to institute the action in time and the balance being the costs thrown away by virtue of the defendants failing to institute the action in time. It emerges clearly enough from the content of the plaintiff’s Statement of Loss and Damage that this was the basis of the agreement.
In the course of his address counsel for the defendant observed:
“Out of pocket expenses - I don’t want to talk about those matters. They are agreed, those figures are agreed.”
Unfortunately however there was no express statement as to the sum in which they had been agreed. Upon the assumption that this had been a matter of mere oversight the parties were requested to advise what were the out of pocket expenses which had actually been agreed. By letter dated 27 October 1998 the solicitors for the plaintiff advised that out of pocket expenses (other than legal expenses to which I have referred) amounted to $7,721.45.
The out of pocket expenses for a period between November 1979 and January 1980 up to mid July 1985 being the notional date of trial adopted had Mellick & Smith commenced the action within time was claimed in the sum of $6,443.95 together with interest thereon paid on out of pocket expenses of $4,000 at 5% for 5.5 years in the sum of $1,100. The total amounts to $7,543.95.
There seems to be a small discrepancy but in my view on the rather unsatisfactory state of the record I propose to assume that as the result of discussions and agreement the out of pocket expenses agreed was in the vicinity of $7,721.45.
By letter from the solicitors for the defendant dated 29 October 1998 it was stated:
“It is the writer’s recollection that the quantum of the plaintiff’s special damages outlined in your letter was not disputed for the purposes of the trial but that we would not concede the necessity for the treatments referred to.”
I am uncertain just what weight to give to the information provided by the legal representatives of the parties at my request. On its face the letter from the solicitors for the defendant reads as if the defendant agreed that the amounts claimed in respect of the various items specified were reasonable if in fact it was necessary to incur those items of expense but did not concede that it was necessary. I find it difficult really to spell out of such an agreement that there was in effect an agreement as to out of pocket expenses in the sum of $7,721.45 unless the plaintiff established that each of the out of pocket expenses claimed was necessarily expended. In the light of the concession of counsel for the defendant in the course of his submissions to which I have referred that “out of pocket expenses --- are agreed, those figure are agreed”, I propose to accept that the out of pocket expenses that could have been recovered by the plaintiff against Mr Pradel if Mellick & Smith had commenced the action in time and it had come to trial in mid July 1995 and he had been wholly successful on the issue of both liability and quantum, would have been $7,721.45.
Costs thrown away as the result of the negligence of Mellick & Smith were agreed in the sum of $8696.36 and those thrown away as the result of the defendant’s negligence in the sum of $3,386.16.
In my view the likelihood is that a trial judge then assessing the plaintiff’s damages recoverable in an action properly instituted against Mellick & Smith would have assessed them in this way:
(a)Pain, suffering, loss of amenities (recoverable against Pradel) $20,000.00
Interest on $10,000 for 5.5 years at 2% $1,100.00
(b)Damages for frustration anxiety and disappointment when
knowledge obtained of breach of duty by Mellick & Smith
(recoverable against Pradel) (Including interest) $2,000.00
(c)Income lost up to trial (recoverable against Pradel) (Including interest) $25,000.00
(d)Special Damages $7,721.45
(e)Interest on $4,000 for 5.5 years at 5 per annum $1.100.00 (recoverable against Pradel)
(f)Costs thrown away (by reason of solicitors’ negligence) $8,696.36
(g)Griffith v Kerkemeyer (with interest) $1,105.00
(hFuture loss of income Nil
TOTAL $66,722.81
In my view, upon the medical evidence, by June 1984 the plaintiff’s back condition would have been overtaken by the degenerative spondylosis which by that time would have produced in him the same symptoms and conditions and incapacity as it in fact produced in June 1982 leading him to have a laminectomy. On that basis in my view no future loss of earning capacity attributable to the incident of 2 January 1980 would have been provable in mid 1985.
Having regard to the plaintiff’s problems with quantum, which seem to me to be as significant as those with respect to liability, the proper way of valuing the chance lost by the failure of Mellick & Smith to institute the proceedings is simply to reduce the figure at which I have arrived by 75%.
The value of the loss of the chance therefore at the time of the expiration of the period of limitation on 2 January 1989 against the defendants is $16,681.00. The cause of action against the defendants of course is not one for damages for personal injury. It is damages for negligence and breach of contract resulting in the loss of a commercial right. The period of limitation was six years.
In assessing interest against the defendants I proceed on the basis that had the action against Mellick & Smith been instituted in time and properly conducted, the plaintiff may have recovered the sum to which I have referred about mid 1985. The value of the loss of the chance to recover that sum is $16,681. In addition I assess damages for frustration anxiety and disappointment as a result of the defendants’ breach of obligation in the sum of $2,000. In assessing interest therefore against the defendants on the value of the loss of the chance of recovering that judgment against Mellick & Smith in the sum of $16,681, I allow interest under the Common Law Practice Act at 10% for the period from January 1989 to date of judgment in November 1998 - a period of 9.8 years which amounts to $16,347.38. With respect to interest on damages for frustration etc. I assess interest on $2,000 at 2% per annum from 24 February 1993 to November 1998 - say 5.75 years which is $228.
I can find no basis for reducing the period of time during which interest should be allowed on the value of the lost chance assessed at $16,681. The plaintiff could not be said to be at any fault at all in my view which was not directly attributable to the failure of the defendants to take due care to look after his interests. While it is unusual for common law interest to double the quantification of the loss actually sustained it seems to me that this is an unusual case and I can find no basis on which the ordinary award of interest to a plaintiff for being deprived of the money value of a commercial right to immediate receipt of a sum of money ought not apply.
I assess damages in the sum of $16,681 for the loss of the plaintiff’s chance to sue Bennett and Mellick.
I assess interest at the rate of 10% per annum on that sum for a period of 9.8 years which amounts to $16,347.38.
I assess damages for anxiety etc suffered by the plaintiff for 1.75 years in the sum of $2,000.
I assess interest at 2% per annum on that sum for a period of four years in the sum of $160.
Recoverable Legal expenses incurred are agreed in the sum of $3,386.18.
I give judgment for the plaintiff in the sum of $38,574.54
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