Eck v Isidoro

[1995] QSC 96

IN THE SUPREME COURT

OF QUEENSLAND

No. 0610 of 1992

[Eck v. Isidoro & Anor]

BETWEEN:

ROBERT VAN ECK
  Plaintiff

AND:

ROTOLONE ISIDORO AND AMBROSINI TESORO
  carrying on business as A & R Painting Contractors
  Defendants

JUDGMENT  -  DERRINGTON J.

Delivered:26 May 1995

CATCHWORDS:     Personal Injury.  Quantum.  Painter fall from scaffolding.  Fracture of one foot and other ankle reasonable recovery.  Damager to cover of spinal disc.  Pre‑existing degeneration.  Damage in accident causing serious vulnerability.  disc laceration by subsequent work.  2 Laminectomic arachnoiditis.  Very vulnerable back with bouts of pain.  Serious limitations to lifestyle 30% disability.  Would have been forced by progressive degeneration after 10 years if no accident.  General damages $45,000.  Total $356,037.

Counsel:I.R. Molloy for the plaintiff

G.M. Egan for the defendants

Solicitors:Harris Soshames t/a for I.R. Shepherd & Associates for the plaintiff

Neil O'Sullivan & Rowell for the defendants

Hearing date :   3-4 May 1995
IN THE SUPREME COURT

OF QUEENSLAND

No. 0610 of 1992

[Eck v. Isidoro & Anor]

BETWEEN:

ROBERT VAN ECK
  Plaintiff

AND:

ROTOLONE ISIDORO AND AMBROSINI TESORO
  carrying on business as A & R Painting Contractors
  Defendants

JUDGMENT  -  DERRINGTON J.

Delivered the 26th day of May 1995

Liability is admitted by the defendants to the plaintiff's claim of damages for personal injury caused by negligence.
           At the time of the accident on 9 October 1989 the plaintiff was a forty-two year old painter.  He is now forty-eight.  He has been a painter all his life and intended to remain so, and he is not trained or intellectually equipped for any skilled work outside that trade or ancillary occupations.
           He was injured by falling twelve feet when a plank on which he was standing gave way.  He struck the ground with both feet, breaking one foot and the other ankle, and, continuing his fall, he rolled forward so that his body struck the ground. 
           His treatment in hospital was conservative with bed rest and the application of fibreglass plaster of paris casts.  He was discharged after a week still with both legs in plaster, which allowed him to be mobile on crutches. The plasters remained for about six weeks. These fractures appear to have healed satisfactorily with little if any residual disability.  Any problem with them which remains is lost within the symptoms which he now experiences from back trouble.
           It is that back trouble which is the source of contention in this case.  The issue extends to the question whether the relevant accident caused any back injury at all and, if so, the degree to which it contributed to the final result.  That result amounts to thirty per-cent disability, substantially due to arachnoiditis, or acute nerve irritation, caused by scar tissue developed from two laminectomy operations, the first conducted seven months after this accident.  In order to appreciate the significance of this issue, it is necessary to review his back history.
           Prior to the accident, he had signs of a degenerate disc at the relevant level.  In 1982 he had injured it in a fall, in August 1989, a couple of months prior to the relevant accident, he had been admitted to hospital for bed rest as the result of pain which was probably due to trouble from this source.  There were also other minor episodes in the intervening period, but the picture is not entirely clear as to the source of these for he also had renal colic as a symptom of kidney trouble.  The similarity of some of the symptoms has made it difficult to attribute the episode to one cause rather than the other. 
           The best of the diverse medical opinion would lead to an assessment that, allowing for the chances the plaintiff had the expectancy of a continuing working life as a painter of about ten years from the time of the accident, but he would then have been fit to undertake light work.  This would have been confined to light work where he could use his trade knowledge and expertise or to light unskilled work in other fields.
           As the result of his fall in the relevant accident he probably suffered some minor back symptoms, which possibly explain why the hospital took an X-ray of his back at the time, though this may have been simply precautionary.  More importantly, he did not have the dramatic pain associated with the large herniation which was later found on operation.  He subsequently claimed that he did have some such pain, but attributed it to the fractures of his legs, but this is probably rationalisation.  He certainly had the benefit of bed rest which would have tended to comfort his back condition, but the evidence is strongly against the likelihood that he had any serious symptoms at that time.  They would have been such as to attract medical attention in their own right, and he probably would not have been discharged from hospital after only six days if his pain had been at that level.
           The best view is that of Dr Tokely who considers that the fall caused further injury to the sheath of the disc, which was already in a state of deterioration, the degree of the injury being more than the whole of what had gone before.  This is not surprising, considering the trauma likely to have been sustained in a fall of that nature.  There were some interesting attempts by some witnesses to explain why the fall should not have injured his back, but these are quite unrealistic because of the wide possible range of the strength and direction of forces involved, not only from the first impact of his feet on the ground but also because of the contortions of his body and the trauma which it sustained when it too struck the ground.
           His fractured limbs healed satisfactorily, and he was to return to work in March 1990, but before this there had been another relevant incident.  On 20 February he experienced fairly severe back pain when he was leaning over picking up a tool bag.  However, he deferred seeking medical attention for five days until he had an appointment with his general practitioner on 27 February 1990 concerning another small matter.  He was given liniment, some physiotherapy and an anti-inflammatory tablet, and he did not return for further treatment in respect of that occasion.
           While herniation of a damaged disc could have occurred from the simple act of his bending over in this way, it is unlikely that it did so on this occasion, for he did not suffer the degree of pain ordinarily associated with that result, and indeed he was cleared medically and was able to return to work soon after.  (This is also an argument against the plaintiff's claim as to the degree of his injury in the relevant incident).  The incident may have caused some further minor damage to the sheath of the disc, but it was also probably contributed to by the injury sustained in the relevant accident.
           It has even some small tendency to support the likelihood of damage sustained in that accident, perhaps revealing the fragile state which the disk wall had reached because of that trauma.  While the mere act of bending over can cause such a result, it had never previously done so with the plaintiff, and so the proximity of this event with his injury in the relevant accident may indicate some causal relationship.  It cannot be proved, of course, but the reality of the chance cannot be ignored.
           During the two months of work which followed, his severe back and leg pain developed and intensified at the end its intensity became consistent with the large herniation which was discovered shortly after on operation.  There is no history during this period of any major or unusual trauma leading to this state, so that it is highly probable that the result was caused by the stresses of his normal work upon his vulnerable spine.  This vulnerability at that time had been produced by the accident, for without it he would probably have been able to tolerate such work for about ten years and even then he would probably not have had the massive herniation which he suffered.  Of course, none of this is certain, and a disabling trauma could have occurred at any time;  but on the probabilities, he would have been able to continue for suggested span without suffering that injury; and at the end of that time his disability would probably have been far less.
           The period adopted in the best estimate that can be made on such a difficult hypothesis with the benefit of a very wide diversity of specialist opinion.  It does not pretend to be a correct finding as to what would have been, and indeed there is no medical opinion in evidence to support it.  Rather it is an estimate of the period that should be properly adopted for the purpose, having regard to the facts, the acceptable competing medical opinions and their supporting reasons, and the chances.
           It is therefore appropriate to attribute a substantial part of the cause of the serious herniation which occurred from his normal work to the effects of the injury suffered in the relevant accident but even at the best, because of his antecedent condition his working life would probably have been limited in the way described above.  His whole loss for that limited period should therefore be attributed to it but some suitable discount should be allowed for the contingency that if this accident had not happened he may still have suffered a disabling hernia of the disc or lesser injury at any time as the result of some non-compensable trauma upon his vulnerable back, or even some unexpected further natural degeneration.
           The next subject of enquiry is the degree to which he is currently and will be disabled and the extent to which these have been caused by this accident.  If it had not occurred, part of his present and future disability and symptoms would still have appeared.  This question also is clouded, for there is exaggeration on his part that is both conscious and unconscious, and even that which is conscious is probably motivated in part by some anger, frustration, anxiety and mild depression flowing from his injuries.  However these features should not be exaggerated, and the totally uncritical and supportive evidence of his psychological witness should not be fully accepted.  He probably suffers the usual symptoms of this nature which might be expected of a middle-aged tradesman who, through the negligence of his employer, has lost his role as a major provider for his family, with a general limitation upon his lifestyle and destruction of his sexual relationship with his wife.  He probably attributes all his pain to his employer's fault without acceptance of his antecedent deterioration, and he may suffer his pain more acutely because of his tendency to focus upon it and pity his own condition.  Nevertheless, there would also appear to be some element of deliberate exaggeration for gain, but no more than would frequently be the case where the action is a plaintiff's only asset replacing his earning capacity for the rest of his life.
           On the probabilities the following is the picture of his present state.  He suffers from a bout of pain for no apparent reason for a day or so about once a week at the most, and further pain if he stresses his back unduly which is probably not too often.  He has discomfort if he sits or stands in one place for too long, but the period is not particularly short.  He has some difficulty, which could be cured, in wearing shoes.  Providing he keeps these matters under control he otherwise enjoys a normal life within the limitations described.  Consistent with his appearance as his wife describes it, this is subject to some relatively minor residual emotional reactions of the kind mentioned which, may, become somewhat elevated with the focussing of his attention upon his tribulations.  This should largely abate with the determination of his litigation, for his response to date has followed a pattern not infrequently seen in these cases.  He would probably benefit even further by some more pain management rehabilitation.  It would be reasonable to attribute about 80% of this component of his loss to this accident, for it caused the operations which have given rise to the worst features.  However, a modest though significant part would have appeared in any case.
           He is now permanently unemployable.  Theoretically, some occupations are broadly within his physical capacity, but there are a number of factors which make an expectation of any benefit from this impractical.  He is significantly disabled and in addition his unreliability because of bouts of pain which require rest would make him unattractive to an employer, even in times of high employment.  The combination of his physical limitations and lack of intellectual skills means that even theoretically there are few jobs which he could fill.  Superimposed on these, his age and his view of his incapacity, as fashioned by his emotional responses to his injuries, further reduce his chances to the point where his future employment is very unlikely.
           In assessing his loss in this respect, account must be taken that some of these factors might have operated adversely to his prospects of future light employment even if he had not been injured in this accident.  By now he would still have had a painful back, slowly deteriorating, which would progressively have interfered with his reliability, though the degree of this would have been substantially less than his present state.  The age factor would have been the same, and his emotional response to adversity may have operated in those circumstances also so as to reduce his attractiveness as an employee. 
           All of this means that it could not be assumed that, had he not been injured, he would have successfully obtained light employment when his developing back condition would have forced his abandonment of heavy work.  Because his wife has been working for many years and his only child is now an adult, the financial pressure upon him to have found work in those circumstances would have been considerably reduced.  Consequently, the allowance for future economic loss must be discounted appropriately; but the loss has been substantial. 
           The same modification must, with caution, be applied to the determination of his pain suffering and loss of amenities of life.  If this accident had never occurred, he still would have been beset with the development of a painful back with the possibility of the same result had a laminectomy been necessary.  However it is probable that while he would have suffered the development of painful symptoms from his deteriorating back and a consequential limitation upon his activities, these would have been of much less frequency and intensity than those which he now experiences.  He would probably have had some minor emotional reaction to this and to his loss of status as the major provider for his family.  Further, in that hypothetical situation any continued engagement in work, even light work, might have precipitated some pain which is avoidable in his present lifestyle, where he is able to control his activity.
           The constancy of his low-grade pain, with exacerbations, but relieved by analgesics, must cause a general disturbance of his overall happiness.  His loss of sexual capacity also causes him considerable regret.  However, he still probably enjoys the amenities of life within the limitations that his injury imposes but which his freedom from work allows.  He is cut off from some recreations which he would have continued to enjoy and others are more diminished, but he has found substitute recreational activities which, though probably not as enjoyable, still provide reasonable satisfaction.  
           It seems clear from his cross-examination that he is able to engage in a number of light physical activities at his own pace and when he is free of any severe exacerbations of pain.  He undertakes several domestic chores while his wife is at work and he keeps a very neat garden without heavy tasks.  He can drive, visit friends, do light work on cars, swim in non-turbulent waters, and enjoys quiet recreational activities.  He is not usually the painfully slow moving deeply depressed man he presented at the trial, but he does have serious disability and the stresses that have been mentioned.  He is fortunate in having a loyal and sensible wife who no doubt helps him considerably to accommodate his problems.
           Although he claims that had he not been injured in this accident he would have gone into business on his own account as a contract painter that would have been this is unlikely and it is very probable that he would have seen out that career as a subcontractor painter.  Had he gone into business himself, his prospect of success must be gravely in doubt, for the downturn in the building industry in the relevant years would have seriously affected his chances of survival.  Many subcontractor painters have been unemployed during that period, and that position remains even today.  As a new contractor, his position would have been worse. Further, on the material available, because of the uncertainty of obtaining business, and because of doubts as to the returns and the amount of expenses, it is not shown that in the total picture his financial position as a contractor would have been significantly better than if he had remained a subcontractor enjoying relatively full employment. 
           In that position, his average wage over the whole period would have been about $500 per week net, after tax and about $50 per week for expenses are deducted.  This is because his gross earnings with the defendant in May, June, July and part of August 1989 show a pattern of payments of about $600 per week, and those with his former employer show a rate of $15 per hour.  In the latter case he did not always work for forty hours per week for that employer, but that does not mean that he did not work for someone else whom he may have forgotten after this time.  Besides, the discounting for contingence will provide for lost time.  In addition, the average figure adopted allows for variation in the rate since the above figures were operative. In assessing his loss on this basis some allowance should be made for the adverse contingency that he may have been unemployed in this period consistently with the general unemployment in the trade which has been mentioned.  The further adverse contingency that he may have lost time because of his back condition must also be accommodated as a likelihood.  Because he was paid as a subcontractor, he was not entitled to sick leave or paid holiday leave, and allowance should be made for this, in assessing his ordinary earning capacity, for there would have been times when he would not work because of vacations or illness.  He would also have lost time due to weather, which would have fallen upon him as a subcontractor.
           Because of the uncertainty of a number of these matters, it is appropriate to adopt a figure of $100,000 for his economic loss to trial in accordance with broad mathematical calculations as modified by the features referred to. Interest should be allowed on this, subject to allowance for the sum of $41,539 paid by way of weekly compensation payments .  This should be rounded to $200.
           His economic loss for the future must be assessed upon the basis that by about five years he would have been confined to light work with a net salary of about $320 per week and superannuation.  At best he would have an anticipated working life of about sixteen and a half years from the present.
           Taking into account the vicissitudes of life which would appear throughout the relevant period as well as early termination of it, it is a just solution to reduce the primary calculated figure of about $200,000 to $160,000 to allow for all the contingencies.  This reduction is slightly larger than that appropriate to the relatively short time involved because of the doubts relating to the plaintiff's employment prospects if he had not been injured in this accident.

           For his pain suffering and loss of amenities of life he should be allowed $45,000 of which $25,000 should be attributable to past loss, attracting interest of $2,750.
           He has small continuing pharmaceutical expenses for analgesics.  For past and future costs of these he should be allowed $1,000.  Certain other components that are agreed between the parties are shown in the summary that follows.

Summary

Pharmaceutical expenses - past and future	$             1,000.00
Special damages as agreed	19,144.00
Interest thereon	314.00
Voluntary assistance - as agreed	2,250.00
Fox v. Wood factor	5,579.80
Past economic loss	100,000.00
Interest thereon	20,000.00
Future economic loss	160,000.00
Pain suffering and loss of amenities of life	45,000.00
Interest thereon	2,750.00
Total	$          356,037.80
Less workers' compensation	69,772.52
286,265.28

There is judgment for the plaintiff against the defendant in the said sum of $286,265.28 (Two hundred and eighty-six thousand, two hundred and sixty-five dollars and twenty-eight cents) together with costs including reserve costs (if any) to be taxed.