Gates v Ralph M Lee P/L
[2000] QSC 463
•14 December 2000
SUPREME COURT OF QUEENSLAND
CITATION: Gates v Ralph M Lee P/L [2000] QSC 463 PARTIES: DARYL BRUCE GATES
(plaintiff)
v
RALPH M LEE PTY LIMITED
(defendant)
JCS ENGINEERING FABRICATIONS PTY LTD
(ACN 050 404 585)
(third party)FILE NO: 6173 of 2000 DIVISION: Trial Division DELIVERED ON: 14 December 2000 DELIVERED AT: Brisbane HEARING DATE: 4, 5, 6 December 2000 JUDGE: Holmes J ORDER: Judgment for the plaintiff against the defendant in the amount of $234,417.77 CATCHWORDS: DAMAGES – BREACH OF DUTY OF CARE – Loss of Earnings - Pain and Suffering COUNSEL: N. M. Cooke QC with A. J. Williams for the plaintiff
K.S Howe for the defendantsSOLICITORS: J. Jones & Co for the plaintiff
Walsh Halligan & Douglas for the defendants
HOLMES J: Mr Gates, the plaintiff in this action, was born on 1 July 1958, making him now 42 years of age. He seeks damages in respect of an injury he sustained on 13 August 1995 while working as an electrician at the Gordonstone mine. Liability is not in dispute.
The plaintiff’s injuries
Mr Gates was injured when he fell some 8.9 metres from a platform, part of which had collapsed beneath him, to the ground. His recall was that he had put his arms out to try and prevent his fall, and then hit his head on the platform. He had no recollection of actually hitting the ground; he recovered consciousness lying face down in the dirt. Initially he was taken to the Emerald Hospital where he was given analgesics and sent home. Days later, it was discovered that he had sustained a right orbital fracture. Three days post‑accident, a specialist treated the injury by packing it to keep the bone fragments in place. That pack was removed, with further minor surgery to the face, on 24 August 1995. Further radiological investigations revealed that the plaintiff had also sustained a crush fracture to the sixth thoracic vertebrae and a fracture of the blade of the right scapula. Mr Gates said that in the weeks after the accident, he was suffering pain in his face, shoulders, back and right leg, and was also experiencing headaches.
The medical evidence
The injuries for which the plaintiff claims damages fall, broadly speaking, into four categories: facial injury, orthopaedic injury to the upper body, brain injury, and psychiatric injury. As to the first, the plaintiff complained of intermittent double vision, arising principally when he tried to concentrate, or did a lot of reading; headache; and a sharp shooting pain from the cheek to the temples and neck. Dr Djamshidi, an oral and maxillo‑facial surgeon, has set out in a report the operative procedures performed in respect of the plaintiff’s facial injuries. When he last saw Mr Gates in November 1995, the latter was experiencing some double vision, and pain in the right sinus area, probably due to chronic infection.
Dr Sullivan, an ophthalmic surgeon who examined Mr Gates in 1997, established a degree of strabismus, to which the accident might have contributed. The condition was stable, with Mr Gates having been prescribed spectacles in late 1995 by another ophthalmic specialist, Dr Workman, to relieve the problem. Dr Cameron, a neurologist who examined Mr Gates in 1996 and 1997 for WorkCover Queensland, concluded that Mr Gates’ diplopia and continuing facial pain were attributable to his accident. Taken with the plaintiff’s headaches, and some mild restriction of his neck movement which Dr Cameron also accepted as accident‑related, he assessed a 2 to 3 per cent whole person impairment.
In respect of his remaining orthopaedic injuries, the plaintiff complained of a sore and tight neck, an intermittent sharp burning pain between his shoulders, and loss of movement and pain in both shoulders, more particularly the left, which prevented him from lifting weights. In early 1996, he was seen in relation to those complaints by Dr White, an orthopaedic surgeon, on behalf of WorkCover. At that time, Mr Gates was having difficulty raising his left arm, and lifting with the right arm. Dr White regarded him, at that stage, as having suffered injury to the right shoulder and thoracic spine.
Dr White saw the plaintiff again in June 1999 for the purposes of a medico‑legal report. Mr Gates was then complaining of a stiff and sore neck, pins and needles in the left arm, occasional stiffness in the right shoulder after exertion, sharp pains between the shoulder blades, and pain down the right leg causing him to limp. He was also elevating the left shoulder as he walked. Dr White noted on this occasion that the plaintiff’s clinical status was difficult to assess because of “the obvious development of a chronic pain syndrome with associated functional overlay”. Nevertheless, he assessed a 5 per cent whole person impairment in respect of soft tissue damage to the cervical spine; a similar level of impairment to the thoracic spine, represented by the T6 fracture and associated soft tissue disruption; a 15 per cent impairment of the right arm, relating to calcification of the supraspinatus tendon; and a 5 per cent impairment of the left arm, arrived at by taking one-fifth of a 25 per cent impairment in the form of loss of movement, discomfort and wasting. (This discounting occurred because the plaintiff had undergone acromio-clavicular surgery in 1981, and had experienced a further fall involving the shoulder in August 1997).
In evidence, Dr White expressed the view that the plaintiff was unlikely to be able to work again as an electrician, but could work in a light job in which he was able to move around. Under cross‑examination, he said that there was no orthopaedic explanation for the plaintiff’s presentation, when last seen by him with a limp and elevated left shoulder; although pain might have played a part in altering the way Mr Gates walked. While the fractures to the thoracic spine and scapula were minor, soft tissue disruption could account for the plaintiff’s continuing pain.
Two orthopaedic surgeons called for the defendant, Dr Dickinson and Dr Downes, disagreed with Dr White’s assessment. Both considered the fractures to be minor injuries which should have resolved within months of the accident, while any soft tissue injuries should similarly have been transient in their effects. Both took the view, in essence, that the plaintiff’s symptoms relating to the fractures should have resolved within six months; and they regarded his presentation as indicative of abnormal illness behaviour. Dr Downes considered that the plaintiff might have aggravated his right acromio-clavicular joint, but did not accept that either shoulder had any residual impairment which could be attributed to the fall. He assessed the plaintiff’s level of impairment at 5 per cent of the thoraco-lumbar spine “at the most”. Dr Dickinson considered the plaintiff’s injuries to be “most minor”, leaving no evidence of any impairment.
In relation to possible brain injury, the plaintiff had undergone some psychometric testing by Ms Denise Orman, a psychologist, in August 1996. She administered one test designed to ascertain intellectual capacity, the Wechsler Adult Intelligence Scale-III (WAIS-III). Mr Gates performed in the average range, but exhibited some difficulty with concentration and memory on some tasks. Ms Orman considered him capable of undertaking TAFE or possibly University level courses. However, she also noted that Mr Gates showed signs of depression, and recommended neuropsychological assessment to establish whether his mild cognitive difficulties were due to his anxiety and depression, or were the result of head injury.
In June 1999, Mr Louis Salzman, a neuro-psychologist, administered a number of tests designed to assess the plaintiff’s cognitive functioning. He found impairments in verbal fluency, verbal memory, visual spatial memory, concentration, and executive functions. In addition, Mr Salsman administered a Minnesota Multiphasic Personality Inventory-2 (MMPI-2), the results of which were invalidated by the plaintiff’s exaggeration of symptoms.
Mr Salzman had taken a history from Mr Gates of a head injury in a motor vehicle accident in 1981, which had left him unconscious for four hours (in contrast to the present injury which had produced unconsciousness of only a minute or so) and an electrical shock in 1973. Nevertheless, because the plaintiff had a significant facial injury, Mr Salzman thought it was “quite on the cards” that there was also a significant head injury in the fall; and the fact that the plaintiff was able prior to the 1995 accident to work as an electrician suggested that the cognitive deficits manifested themselves after, rather than before, the accident.
The plaintiff did not himself give any evidence of being aware of such cognitive deficits, although he did adopt as correct a statement of loss and damage which referred to a “significant impairment to his short term memory”. Any deficits were not obvious during the course of his giving evidence. Dr Mulholland, a psychiatrist called for the plaintiff, noted in his report that the plaintiff’s “overall general intelligence appeared to be average and he did not appear to have any specific neuro‑cognitive deficits”. Similarly, Dr Varghese, a psychiatrist who examined the plaintiff for WorkCover, did not consider that he had suffered any brain injury. Dr Mulholland and Dr Varghese did not, however, carry out any specific testing.
Dr Cameron expressed the view that Mr Salzman’s results had to be approached with caution, given the invalidity of results on the MMPI-2 test. In any event, such deficits as there might have been were more probably related to the 1981 accident, which had produced a significant period of unconsciousness. In the 1995 accident, the brain’s normal function was likely to have resumed fairly quickly, given the very short period of unconsciousness.
The plaintiff said that prior to the accident he had been a very bubbly, outgoing person; after it he had become a total recluse. About a month after the accident, when he was told he would not work again as an electrician, he became depressed and was prescribed antidepressant medication, which he had continued to take. His former wife, from whom he had separated seven months prior to the accident, was called for the defendant. She said that although there had been happy times in their marriage, her husband had something of a Jekyll and Hyde personality, happy on occasion, aggressive and violent at other times, and on some occasions very withdrawn.
In August 1997 the plaintiff was examined by Dr Varghese for WorkCover. He diagnosed major depression which, at the time of examination, had remitted to a mild state following treatment with antidepressants. The depressive disorder was, in Dr Varghese’s opinion, multifactorial. It resulted in part from constitutional and personality factors and in part from life events. So far as the last were concerned, the major factor was the plaintiff’s desertion by his wife and consequent loss of contact with his two children. Physical injury would, however, have accelerated and aggravated his depression, which Dr Varghese did not consider at that time to be of such proportions as to prevent him from working.
Dr Byth, a psychiatrist who saw Mr Gates on behalf of the defendant in January 1998, diagnosed an adjustment disorder with anxious and depressed mood, and a chronic pain disorder associated with a medical condition. He considered that there may have been a pre‑existing personality dysfunction predisposing the plaintiff to the development of the psychiatric disorders mentioned. The immediate causes of the plaintiff’s adjustment disorder included the stress of the accident itself and delays in diagnosis of the injuries, the long period of return to work, and the marital separation and loss of access to his children. Dr Byth considered the plaintiff, at the time of seeing him, to have largely recovered from his adjustment disorder, while his anxiety and depression were in the very mild range. In his report Dr Byth said that the plaintiff's’ chronic pain disorder might still be contributing to his failure to re‑enter the workforce. However, in evidence he said that he considered the chronic pain disorder was largely in remission as at 1997, and was not stopping the plaintiff from performing his normal work.
In June 1999 the plaintiff was examined by Dr Peter Mulholland. Like Dr Byth, Dr Mulholland diagnosed an adjustment disorder with anxious and depressed mood, resulting partly from the accident and injuries, and partly from the marriage breakdown and conflict in respect of access to the children. He suggested that the accident was between one‑half and two‑thirds responsible for the plaintiff’s emotional problems, while the marriage factors would account for the balance. At the time of reporting, Dr Mulholland described the plaintiff as “in a significant state of depression” which required improvement before he could seriously look for work. Dr Mulholland assessed a 10 per cent psychiatric impairment translating into a 5 per cent overall whole body impairment. In evidence he said that he considered the plaintiff’s condition to be in the mild range, and that he would, on reflection, slightly reduce the level of whole body impairment assessed, to 4 per cent. The plaintiff was likely to require medication for the next two years or so, after which consideration could be given to weaning him off it. He considered that the plaintiff’s ability to obtain work was impaired, in the sense that he lacked motivation and energy and would not present well to potential employers. In cross‑examination he agreed the degree to which the accident and injuries (as opposed to the marital factors) were implicated in the plaintiff’s depression would depend largely on the plaintiff’s pre‑accident personality; that is, whether there was a significant difference in his emotional state after the accident.
The plaintiff’s employment history and prospects
After leaving school the plaintiff had completed an electrical apprenticeship in 1979. He had worked for various companies. In about 1992 he began working as a shut‑down electrician on the Queensland coalfields. He hoped eventually to become a supervisor, and, perhaps, a project manager. After the accident he remained on workers’ compensation benefits until January 1997. In 1996 he undertook a work trial with his former employer, performing clerical work with some computer‑aided drafting, for approximately one month.
In September 1996, Mr Gates was seen by Ms Janet Benstead, an occupational therapist, who undertook a functional capacity evaluation. His major complaints at that time were of aching in the areas of his neck, sternum, upper thoracic spine and face, and burning sensations in his upper arms, shoulders, and lower back. He had a decreased range of movement in his left shoulder and some weakness in lifting. His sitting tolerance was limited to one to one and a half hours. However, he was keen to undertake a further work trial. Subsequently he was given another trial by his former employers as a health and safety officer, and then had three months of paid work in that position.
In April 1997 Mr Gates’ employment was terminated. It was suggested on behalf of the defendant that he had been performing satisfactorily and that his employment had been ended purely for financial reasons. Mr Gates, however, said that he was told that he was not working effectively and that he had been a cost to the company in the form of increased WorkCover premiums. (Notwithstanding a glowing reference, one does rather infer from the frosty tone of his original notice of termination and the plaintiff’s contemporaneous diary note that he was not perceived as an asset to the company.) The plaintiff has not engaged in paid employment since that time, although he has since April of this year undertaken volunteer work with intellectually disabled people at a community centre, on a three‑day‑a‑week basis. He said that he had made a number of unsuccessful applications for clerical work, health and safety officer positions and electrical draftsman work. Potential employers were, he said, disinclined to take him on because of his WorkCover claim and back injury.
Ms Helen Coles, occupational therapist, provided reports and gave evidence to the effect that the range of occupation open to the plaintiff was limited. Her opinion was based, in part, on pain and reduction of range of movement in both his shoulders. She also noted some impairment in the plaintiff’s ability to walk; and he complained of shooting pain in his back and a sore right leg in that regard.
Findings
I accept the evidence of Dr Cameron in its entirety. It follows that I accept that the plaintiff’s complaints of facial pain, neck stiffness and headache and intermittent double vision are attributable to injuries sustained in the accident. However I prefer Dr Cameron’s view as to the unlikelihood of any brain injury having resulted from the 1995 accident to that of Mr Salzman. In fact, given Dr Cameron’s point about the MMPI-2 result, Dr Varghese’s and Dr Mulholland’s view that there was no sign of deficit, and my own observation of the plaintiff giving evidence, I would be inclined to think that the results of Mr Salzman’s testing may have more to do with depression and perceived pain at the time of testing than any organic cause. However that may be, my conclusion is that any cognitive deficit that the plaintiff may suffer is, on the balance of probabilities, related to his 1981 accident and not the accident which is the subject of litigation here.
As to the plaintiff’s orthopaedic injuries, I accept the views of Dr Downes and Dickinson that the plaintiff has suffered from relatively minor fractures and that any soft tissue involvement in his symptoms is likely to have been short term; of the proportions of, say, six months. I accept Dr Downes’ assessment of a 5 per cent impairment of the thoraco-lumbar spine.
As to the plaintiff’s psychiatric state, I doubt that he was quite as unremittingly cheerful before the accident as his evidence suggested. I think it likely that he had something of a difficult and moody personality. It seems probable also that the loss of his children in early 1995 was a severe stressor, contributing at least equally with his injuries and their sequelae to the onset of his depression. Both factors have been alleviated somewhat, as his physical condition has improved and the access situation with his children has been regularised. I accept that he currently suffers from mild depression which is likely to require treatment with anti‑depressants for at least the two years nominated by Dr Mulholland.
I find also that the plaintiff has suffered, as Dr Byth suggests from a chronic pain disorder, but unlike Dr Byth, I consider that there is a causal connection between that disorder and the accident. The effects of that condition had largely remitted by the time of the plaintiff’s examination by Dr Byth; but there is reason to suppose that they have not entirely dissipated.
Pain, suffering and loss of amenities
The plaintiff suffered painful and distressing injuries, and it seems probable that the effects of the facial injuries at least, although not severe, will be life‑long. I conclude from the evidence that he was not greatly given to recreational activity before his accident; nonetheless it is of some consequence that he is now prevented from undertaking vigorous physical pursuits by his depression, diplopia and perception of pain. I consider that an award of $35,000 for pain, suffering and loss of amenities is warranted. Interest will be allowed on half that amount less the WorkCover disability settlement at 2 per cent for the 5.33 years since the accident, giving a further $458.52.
Past economic loss
I consider that the plaintiff’s gradual return to work with his former employer was a reasonable and proper process, and that he should be allowed his past economic loss in full up until 30 June 1997, shortly after the termination of his employment. Thereafter, however, I consider his past economic loss should be heavily discounted to reflect the fact that he has a significant capacity for employment not exercised, and that those features which make it difficult for him to find employment (particularly his depression) are only in part attributable to accident‑related injury. Accordingly, I consider it appropriate that he receive 25 per cent of his past economic loss from that date to the present. For this purpose I accept the calculations of Vincents Accountants, based on an average taken of the plaintiff’s income over the last two years of work pre‑accident. On the Vincents’ calculations the plaintiff’s loss to 30 June 1997 was $53,074. Twenty‑five per cent of the plaintiff’s loss from 30 June 1997 to date would add, in approximate terms, another $30,800 giving past economic loss of $83,874. Interest on that amount, less the net amount of weekly benefits, at 5 per cent for 5.33 years adds $13,388.29.
Future economic loss
There is, I consider, some limitation on the plaintiff’s future employment prospects. His diplopia, headaches, mild depression and the (unsurprising) fear of heights of which he spoke in his evidence all make it unlikely that he will return to employment as rigorous as that of working in the Queensland mines. I consider it probable that he will be able to perform less active work as an electrician, in sales or clerical work, or in a computer-related area. The greater problem may be in finding work, rather than being able to meet the requirements of work once obtained. It is difficult to quantify what loss might be entailed, but allowing for the fact that the limitations both on the plaintiff’s ability to find work and to earn income in occupations he can undertake are not entirely attributable to the accident, I think it proper to allow $150 per week as representing his loss. Discounted at 5 per cent over a period of 18 years, this gives an amount of $93,750 for future economic loss to age 60.
Loss of superannuation
In relation to superannuation I propose to take a broad‑brush approach of allowing 7 per cent on both past and future economic loss, giving an amount of $12,433.68.
Special damages and interest
The parties are to be congratulated on having reached agreement on special damages at $48,049 with interest at $3,596.50.
Gratuitous assistance
The plaintiff claims an amount of $15,000 for past and future gratuitous assistance in the form of assistance from a housemate in the weeks after the accident, and continuing assistance from his mother with whom he now resides. The defendant contended for an award of approximately $11,000 for the same components. Given the seriousness and painfulness of the plaintiff’s facial injuries in particular I would be prepared to accept that his need for assistance in the weeks after the accident would have been considerable, and am therefore prepared to accept the higher figure of $15,000 for past and future care and interest.
Future medication and treatment
The plaintiff, in my view, will require treatment for depression for at least the two years nominated by Dr Mulholland. It may well be that the residual effects of his pain disorder also require attention, particularly given his evidence as to a continuing reliance on Endone. In those circumstances I consider the claimed amount of $5,000 in this regard a reasonable one.
Fox v Wood component
There is a Fox v Wood component as shown by the WorkCover payment details of claim in the amount of $11,332.10.
Summary
The following is a summary of my assessments of the components of the award of damages:
Pain, suffering and loss of amenities $35,000.00 Interest at 2 per cent for 5.33 years 458.52 Past economic loss 83,874.00 Interest at 5 per cent for 5.33 years 13,388.29 Future economic loss 93,750.00 Loss of superannuation 12,433.68 Special damages 48,049.00 Interest 3,596.50 Past and future care 15,000.00 Future medication and treatment 5,000.00 Fox v Wood component 11,332.10 Sub Total: $321,882.09 Less WorkCover payments 87,464.32 TOTAL: $234,417.77
I give judgment for the plaintiff against the defendant in the amount of $234,417.77.
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