Embrey v Bartter Enterprises Pty Ltd

[2003] QDC 285

DISTRICT COURT OF QUEENSLAND

CITATION:	Embrey v Bartter Enterprises Pty Ltd [2003] QDC 285
PARTIES:	MARK EMBREY Plaintiff v BARTTER ENTERPRISES PTY LTD ACN 000 451 374 FORMERLY KNOWN AS STEGGLES LIMITED ACN 002 759 462
FILE NO:	D 663/02

REASONS FOR JUDGMENT NOUD DCJ

DELIVERED THIS ELEVENTHDAY OF JULY 2003 

1. This is an action for damages for personal injuries.  Quantum is the only issue.

1. The plaintiff, born on 26 September 1978, was injured on 22 November 1999. He was then a process worker, he is now a farm hand.  He was 21 years of age at the time of the 1999 accident  and is now 24.  The accident occurred at his place of work.  A bar fell on his left shoulder.  He agreed with his counsel that it was like being struck with a crow bar.  The left clavicle was fractured and the plaintiff received treatment at hospital.  It is submitted on the plaintiff’s behalf that the fractured clavicle and probably other injuries suffered at the same time have had long term consequences.  Counsel for the plaintiff submitted that the plaintiff’s damages are in excess of $100,000 (counsel’s Schedule Ex 11), whereas counsel for the defendant submitted that the damages are about $5,000 (p.5 of the defendant’s counsel’s submissions, Ex 12).

1. The reason for this difference is that the plaintiff, post accident, has continued to experience pain.  Counsel for the plaintiff submitted that this is due to the accident on 22 November 1999, whereas counsel for the defendant contended that the pain can be explained on other grounds or that the plaintiff has not proved that his continuing symptoms are accident related.  Counsel for the defendant did not contend that the plaintiff was other than genuine in relation to his continuing problems.  I agree with that approach.

1. The plaintiff gave evidence and called Dr Pentis, an orthopaedic surgeon.  Dr Pentis’ evidence supports the  plaintiff’s contention that his on-going pain is caused by the accident.  The defendant called Dr Duke, an orthopaedic surgeon, specialising in surgery of the hand, upper limb and shoulder;  Dr Livingstone, an orthopaedic surgeon and Dr Andrew, a general practitioner.  Dr Duke and Dr Livingstone gave evidence that the plaintiff’s injury was limited to the fractured clavicle.  Their evidence was that the injury would have cleared up within a few months.  It is common ground, however, that the plaintiff has a noticeable protrusion at the point of the fracture.  Dr Pentis described it as “unsightly” (Ex 1 p 3). 

1. Dr Andrew gave evidence of a pre-accident neck injury suffered by the plaintiff.  He also gave evidence about a post-accident examination which he conducted of the plaintiff.  His evidence may explain the plaintiff’s continuing symptoms as not having been caused by the accident.  I shall return to his evidence.

1. Counsel for the plaintiff submitted that the outcome of the case should not be determined simply by the number of expert witnesses called by the defendant as compared with the number of experts called by the plaintiff.  I agree with that.  Counsel for the plaintiff then submitted that it was important to have regard to the plaintiff’s evidence about his continuing pain and the support which that evidence has from Dr Pentis’ evidence.  Counsel for the plaintiff submitted that whilst the continuing complaints of pain on the part of the plaintiff could not be traced back to an identifiable injury in the sense of one capable of being seen on x-ray, the plaintiff’s evidence, supported as it was by Dr Pentis’ evidence, nevertheless justified findings that the plaintiff in the accident, in addition to fracturing his clavicle, also suffered soft tissue injuries in the neck and/or shoulder areas.  Dr Duke and Dr Livingstone do not agree with this; and in my view of his evidence Dr Pentis does not provide strong support for the plaintiff, Dr. Pentis’ evidence being in relation to what could have happened rather than as to what probably did happen (see for example T. pp 33-34). 

1. It is true that the plaintiff has experienced symptoms for longer than Dr Duke and Dr Livingstone say he should have experienced them in the normal course. One has to keep an open mind about soft tissue injuries continuing to give problems in cases such as the present.  Dr. Livingstone for instance says that this is possible (T. p.72 ll 1-5;  p.73 l.55;  p.74 l.5;  p.76 ll.30-40).  I am not satisfied however that the plaintiff has suffered long term consequences by reason of soft tissue injuries caused by the bar falling on his left shoulder when he was working on 22 November 1999.

1. The fractured clavicle itself should not have produced continuing symptoms.  Joints associated with the clavicle should not have had that result either.  I base these findings on the evidence of Dr Duke and Dr Livingstone, both of whom impressed me favourably (see T.53, ll.40-50;  p.56, ll.35-60, p.73, ll.35-40; p.75. ll20-40, p.77, ll.1-3). 

1. Dr Duke the specialist in shoulders measured the plaintiff’s clavicle (which I infer Dr Pentis did not, see T. p.87, l. 25 -p.88 l. 1) and found that whilst there was some shortening of the clavicle (which could put stress on the joints at either end) the shortening in the case of the plaintiff was not of such an order as to cause future problems.  I am therefore not satisfied that a soft tissue injury in that sense was caused by the accident.  Nor am I satisfied on the evidence that the plaintiff has suffered some other type of soft tissue shoulder injury.  To conclude otherwise would be contrary to the evidence of Dr Duke and Dr Livingstone, and I accept their evidence.

1. The only evidence that would support a finding of soft tissue injury in the region of the plaintiff’s shoulder – apart from the plaintiff’s own evidence of continuing pain – is the evidence of Dr Pentis (in addition to the evidence cited above see T. p.32 ll. 25-30). However, Dr Pentis’ clinical experience in shoulder injuries is limited compared with that of Dr Duke.  Dr Pentis conceded that his experience was limited to what he picked up from people on social occasions (T p 38 l 25).  For this and the other reasons mentioned by counsel for the defendant at pp 3-4 of his submissions (Ex 12) Dr Pentis’ evidence should be rejected where it conflicts with the evidence of the other specialists.  Dr Pentis’ evidence raises possibilities that the plaintiff may have suffered soft tissue injuries of the kind alleged.  So too does other evidence (e.g., that of Dr. Livingstone and that of the plaintiff himself), but the weight of acceptable evidence favours the conclusion that the plaintiff has not had a continuing condition by reason of a soft tissue shoulder injury on 22 November 1999. The plaintiff’s own evidence should not, in view of the evidence of the defendant’s specialists, provide the basis for findings favourable to the plaintiff, in my opinion. 

1. My approach to the alleged soft tissue neck injury is as follows. The plaintiff had an injury in the region of the neck before the accident.  He saw Dr Andrew about that in mid 1999.  He saw that practitioner again in July 2000. The symptoms on each of these occasions were similar.  Between mid 1999 and July 2000 the plaintiff was off work by reason of the accident from 22 November 1999 until 10 January 2000.  The plaintiff  returned to work on 10 January 2000 and was on light duties.  He resumed his normal duties on 9 February 2000.  He was then, in my view of the evidence, symptom free for a period of at least 6 months (T p. 21, ll. 20-30;  p. 22, ll. 30-50; p 24 ll. 21-30).  Dr. Andrews’ evidence has assisted in making these findings (see T. pp. 60-61 and Exhibits 6 and 10;  see also Dr. Duke’s evidence at T. p.56 ll.50-60).  I accept Dr. Andrew’s evidence. 

1. Counsel for the plaintiff submitted that the symptoms observed by Dr Andrew in July 2000 were not the same as those observed in mid 1999 but I remain of the view that they were similar.  I also agree with counsel for the defendant’s submissions at T p 80 ll. 40-50. 

1. Again, it is possible that the plaintiff could have suffered a soft tissue neck injury in the November 1999 accident, but the weight of acceptable evidence does not favour that conclusion, in my opinion (see for example Exhibit 4, p.4; T. p.56 ll.35-45;  T. p.76 ll.25-35). I can not accept the evidence of Dr. Pentis at T.p.34 ll. 45-55.

1. Counsel for the plaintiff also submitted that the resumption of normal duties on 9 February 2000 was not in the circumstance of this case determinative of the issues (T p 84 ll. 1-20).  I doubt the correctness of that proposition.  The plaintiff seemed definite about being able to perform full duties in February 2000 as distinct from something less than that (see again T. p.21 ll. 20-30). 

1. For these reasons I am not satisfied that the plaintiff’s ongoing problems are due to the injury he suffered on 22 November 1999. On the evidence which I accept (the defendant’s experts and not the plaintiff’s expert) the plaintiff suffered a fractured clavicle only.  That injury, apart from the protrusion, did not have permanent consequences;  it was limited to pain for a few months.  I think the likelihood is that these problems are due to a pre-existing neck disorder which, without having been aggravated by the November 1999 accident at work, again became symptomatic several months after that accident.  In view of my findings the plaintiff is not entitled to be compensated for it.  Of course, it is not necessary in finding against the plaintiff to be satisfied about what is in fact causing the continuing symptoms.  It is sufficient to say that, in my opinion, the plaintiff has not proved that the accident on 22 November 1999 caused him anything other than a fractured clavicle which resulted in pain, suffering and loss of amenities for a limited period, and as well, loss of income for a short period.

1. In a general sense I therefore agree with the damages listed at p.5 of counsel for the defendant’s submissions (Exhibit 12) and have to disagree with the schedule prepared by counsel for the plaintiff (Exhibit 11).  I think, however, that counsel for the defendant’s figure in relation to pain and suffering is a little low.  I appreciate counsel for the defendant’s arguments about this (T. p.83). However, I am concerned that his figure for general damages ($5,000) does not make sufficient allowance for the protrusion at the fracture site.  It is the case that the protrusion of the plaintiff’s clavicle will not cause the plaintiff too much trouble, either personally or at work, in the future.  It is also true that, although this protrusion can be surgically improved, the plaintiff is not interested in having that done.  In spite of all that I think it is fair to infer that in the course of everyday life the plaintiff, now a young man, will in the future be inconvenienced to a minor degree because of the protrusion.  In my view, it would therefore not be reasonable nor fair to the plaintiff to limit the damages almost exclusively to the few months of pain and suffering following the accident.  Counsel for the defendant’s submissions, with respect, seem to do that, in my opinion. There is however reason for moderation as counsel for the defendant submits, but I think that the damages for pain, suffering and loss of amenities should be $6,000, not $5,000 as submitted by counsel for the defendant.  There should be no interest on these general damages because such interest is not allowed by virtue of s.318 of the WorkCover (Queensland) Act 1996 as it applied to the plaintiff’s claim (see para. 26 at p.5 of counsel for the defendant’s submissions, Exhibit 12).

1. The damages for the off work period in accordance with my findings and the evidence should be $2,580 (see T p.91 ll 1-10;  p.96, l.50;  p.97, l.15).  There should be no interest awarded on that amount (T. p.92, ll. 30-60).  There was a debate about the plaintiff’s entitlement to past lost superannuation contributions (T. pp. 97-98).  I agree with counsel for the defendant in relation to this.  My conclusion is that the plaintiff has not proved the loss.  On the assumption that the general thrust of  counsel for the defendant’s submissions are accepted, as they have been, there is, as I understand, no real argument about the remaining heads of loss referred to in counsel for the defendant’s schedule (p.5 of Exhibit 12);  that is, the Fox v. Wood component, out of pocket expenses, and interest on out of pocket expenses.

1. In summary, then, the damages to be awarded are:

Pain, suffering and loss of amenities  $6,000.00

Past economic loss   $2,580.00

Fox v. Wood component  $  607.45

Out of pocket expenses   $  727.43

Interest on out of pocket expenses  $    14.00

Total:$9,928.88  

1. From the total of $9,928.88 the WorkCover refund of $3,600.63 has to be deducted, leaving the sum of $6,328.25 for which judgment should be entered.

1. For the above reasons I give judgment for the plaintiff against the defendant in the sum of $6,328.25.  I shall hear the parties as to costs.