Goebel v Surfside Buslines
[2004] QDC 469
•26 November 2004
DISTRICT COURT OF QUEENSLAND
CITATION: Goebel v Surfside Buslines & Anor [2004] QDC 469 PARTIES: DOUGLAS WILLIAM GOEBEL
Plaintiff
and
SURFSIDE BUSLINES PTY LTD
and
ALLIANZ AUSTRALIA INSURANCE LIMITED
Defendants
FILE NO: 267/02 PROCEEDING: Trial ORIGINATING COURT: District Court Southport
DELIVERED ON: 26 November 2004 DELIVERED AT: Southport HEARING DATE: 6, 7, 8 October 2004 JUDGE: Newton DCJ ORDER: Judgment for plaintiff in the amount of $209,857-00 CATCHWORDS: EMPLOYMENT LAW – action for damages for personal injury. Negligence – master and servant – injury of employee – causation – injury of employee – damages – injury of employee – liability of employer – safe system of work
Plaintiff Bus Driver claims faulty seat resulted in injury to spine – whether there has been breach of duty of care by defendant employer – whether pre-existing degenerative condition became significantly more symptomatic as a result of faulty seat
Damages assessed
Cases cited:
Wyong Shire Council v Shirt (1979-1980) 146 CLR 40COUNSEL: Mr I R Molloy for the plaintiff
Mr J A McDougall for the defendantsSOLICITORS: Shine Roche McGowan for the plaintiff
McInnes Wilson for the defendants
This is an action for damages for personal injuries. Both liability and quantum are in dispute. The plaintiff is 32 years of age (date of birth 30 June 1972) and was employed by the first-named defendant as a bus driver from 1995 to December 2000. His duties involved public bus driving providing normal route service, ticket sales and school bus driving. The plaintiff’s hours varied according to the shift being worked and extended from eight hours a day to 12 hours a day. Drivers were to take breaks in each five-hour period of between half an hour to 45 minutes. Time constraints would, on occasions, reduce the time available for breaks.
On 5 July 2000 the plaintiff started work at approximately 6 a.m. and was allocated an inland route service from Broadbeach to Southport, through Nerang. The bus provided to the plaintiff was an ex-Brisbane bus, number 804, which developed a mechanical air failure of the front doors. As the doors ceased to work the plaintiff requested a replacement bus by using the two-way radio to contact the control room at Ernest. The replacement bus was provided within the hour. The plaintiff cannot identify the person who drove the replacement bus to Arundel where the changeover occurred. The number of the replacement bus was 825.
By the time the plaintiff discovered that bus 825 had a defective driver’s seat the person who had delivered the vehicle to Arundel had already departed in the bus with the defective front door (804). The plaintiff stated that he attempted to contact that bus using the two-way radio but there was no response.
When asked to describe the problem with the driver’s seat in bus 825 the plaintiff stated:
“The seat in question was very low in the back right corner of the seat and had been bent to an angle… There was also spring tension on the front which was defective. It was set for a light person and it’s a shock-absorber. When it’s set for a light person, a light person will travel very easily on it, a heavy person will travel to the fullest extend of the shock absorber. …I could not adjust it.”
The plaintiff weighed approximately 100 kilograms as at July 2000. The defects in the seat described by him were said to have been apparent to him as soon as he sat in the seat, and would have been apparent to others, including the person who drove the bus to Arundel. The latter was described by the plaintiff as a smaller man of approximately 70 kilograms. The plaintiff was asked to describe the problem caused by a seat in this condition. He stated:
“It’s a very uncomfortable position in which to be shocked up and down and with a leaning seat. You’re not sitting flat, you’re not sitting square. I found, consequently, it hurt me a lot.”
Having tried unsuccessfully on the radio to speak with the person who brought bus 825 to him at Arundel, the plaintiff spoke with the two-way manager at the Ernest depot, Mr Gary Langham. He informed Langham that the seat was defective and that another bus was required. According to the plaintiff, Langham’s response was that he should continue driving while the workshop was contacted in order to arrange the provision of another replacement bus. The plaintiff’s evidence at this point was as follows:
“So, did you proceed to use the bus?-- Upon direction from base, I did.
All right. And what happened?-- Well, upon continual driving and continual calling the base requesting a replacement bus, telling them that it was hurting my back because the seat was defective, the reply given to me was that we’ll get on to Workshops, continue on.
All right. And how often did you make these calls through saying what you just said?-- Approximately every half hour to 40 minutes.
And did you mention your back problem or that it was hurting your back each time?-- I did, yes.
And did you speak on each occasion to the same person?-- I did, yes.
Was there any direction given to you, for instance, to stop driving or to do anything else?-- No. The directive given to me was to continue on and we’ll get on to Workshops and get back to you.
All right. How long did this go on, ‘til what time?-- This went on to just after 1 o’clock in the afternoon, which is approximately four hours of driving this vehicle until they decided to eventually give me a changeover bus.
And how did your back feel by that time?-- It felt sore but got progressively worse from that point on.
All right. And what happened after 1 o’clock?-- Just after 1 o’clock I received a two-way transmission from base, informing me that there would be a replacement bus meeting me at Lawson Street at Southport at the end of the next run. I consequently went to Southport to Lawson Street and met with Peter Hutchinson, who was the school liaisons officer. He had brought out another bus for me and we made a vehicle transfer then.”
The plaintiff stated that he had a conversation with Hutchinson and showed him the defective seat, explaining what was wrong with it. Hutchinson, according to the plaintiff, agreed with him and informed the plaintiff that he would return the bus to the Workshop directly to have the repairs made.
Hutchinson, who testified on behalf of the plaintiff, confirmed that he drove the replacement bus to Lawson Street in Southport at about 1.30 p.m. He stated that the plaintiff was upset and demonstrated the movement in the back of the driver’s seat which was some three or four inches. He further confirmed that the plaintiff complained that his back was sore. In relation to the slant of the seat, Hutchinson said that it slanted back a lot further than it should have. Underneath the seat the metal appeared fatigued and cracked. The seat could not be adjusted to move forwards or backwards. Because Hutchinson prefers to drive large vehicles with the back of the driver’s seat slanted back, he found the driving position quite comfortable. His evidence on this point was as follows:
“And you’re indicating a fairly significant slant?-- Well, I like to sit back when I’m driving like that. I find that comfortable, especially when I’m doing three or 400 kilometres at a time. It’s just personal preference, so I didn’t find the seat terribly uncomfortable, but when you think about it, if you’re like that doing short trips all the time and taking fares, you would be continually moving forward, so you could get to your till, et cetera. …it’s just my particular preference. Everyone is different. Some people like the seat upright. Some like it forward slightly where you drive with your shoulders rounded. I like mine back.”
A paragraph of a statement of Hutchinson dated 28 March 2001 was, by consent, read into the record. This states:
“Back at the depot, I drove the vehicle to the workshop and showed the mechanics, Owen King, the seat. I asked if he had to fix it as I did not think it was that bad, and he said that he would probably have to weld it.”
[10] King, in his evidence, could not recall having inspected the driver’s seat on bus 825 on 5 July 2000. He also was unable to locate a defect notice for that bus for July 2000, having looked through the documents placed in a folder that related to that particular bus. Of course, it is palpable nonsense to suggest that because a defect notice could not be located in the folder that must mean that such notice was never completed. The folder has no means of securing documents that may be placed in it and its contents do not appear to be filed in any particular order. I am not prepared to infer from the absence of a defect notice in the folder relating to the defective driver’s seat on 5 July 2000 that no repairs were carried out with respect to the seat on or about that date.
[11] Although evidence from Mr Inch, who was employed as a bus driver with Surfside Buslines from 1989 until 2002, was called, suggesting that at some stage he had completed a defect notice in relation to the driver’s seat of bus 825 and that when he drove that bus again a couple of days later the seat had not been repaired, little weight can be given to his evidence because he conceded that he may be talking about a totally different bus.
[12] From the evidence reviewed so far, a number of findings may be made. I find that the plaintiff, who I regard generally as a truthful witness, was employed as a bus driver by the first-named defendant from 1995 to December 2000; that on 5 July 2000 he was assigned a bus that developed a faulty door mechanism; that he called for a replacement bus which was duly supplied; that the replacement bus when provided, had an already existing faulty seat which caused the back to move some three or four inches and which had a crack in the metal underneath the seat; that operating the bus from the defective seat caused the plaintiff to experience pain in his back; that he notified the two-way radio operator that the seat was hurting his back and requested another replacement bus; that several such conversations occurred until a bus was provided approximately four hours after the initial request; that in the meantime, he was instructed by the radio operator to continue to operate the bus (825) with the faulty seat, despite the pain and discomfort caused to his back by such ongoing operation.
[13] Although, as will be discussed when considering the medical evidence, the plaintiff had a sore back prior to 5 July 2000, there is no suggestion that his employer had been told of this before that date. The first-named defendant became aware that the plaintiff was experiencing pain in his back only at the time of the first conversation over the two-way radio after bus 825 had been provided to replace the bus with the faulty door mechanism.
[14] In these circumstances, then, I turn to consider whether there has been a breach of the duty of care owed by the first-named defendant to the plaintiff. The relevant principles are set out in the judgment of Mason J in Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 at 47, 48:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”
[15] The system put in place by the first-named defendant as at July 2000 to deal with problems caused by illness or injury to a driver was described by Langham, the two-way radio operator. If a driver calls up and says that he needs a relief driver because of illness, the two-way radio operator informs Operations of the request and the driver would normally continue until a relief driver could be provided. If the driver indicates that he is unable to continue, that will be communicated by telephone to the radio operator to avoid members of the public overhearing the conversation. Langham did not state in his evidence the procedure that would follow such intimation. He did, however, agree with the suggestion of counsel for the plaintiff that there was no set procedure laid down where a bus was not unsafe for other road users or passengers but might be causing a problem and pain to the driver.
[16] In this case I am satisfied that a reasonable person in the first-named defendant’s position would have foreseen that by not providing a replacement bus in a timely fashion and by not advising the plaintiff to cease operating bus 825 if such operation was causing him back pain, his (its) conduct involved a risk of injury to the plaintiff. I do not conclude that the provision of bus 825 with its defective driver’s seat was, of itself, a breach of duty of care because the evidence of both Dr Curtis and Dr Fraser was to the effect that there would need to be a pre-existing disorder, albeit dormant at the time, for the seat to cause problems if a person with a presumably normal spine could tolerate sitting on it for an extended period. In other words, a seat with the defects as described would not be expected to give rise to an injury of a healthy spine. The plaintiff’s employer had no reason to believe that the plaintiff’s spine was anything other than healthy.
[17] Having answered the first question posed by Mason J in Wyong in the affirmative, the next step is to determine what a reasonable person would do by way of response to the risk. This requires consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the first-named defendant may have had. There can be little doubt that if the defendant was told by the plaintiff of the problems with the seat and that these were causing pain to his back (as I have found was the case), then it must have been obvious to the defendant that there was a substantial and clear risk of injury occurring to the plaintiff’s spine if he continued to operate the bus for an extended period of time. It must also have been apparent that the presence of pain and discomfort at the time of the first two-way radio call from the plaintiff to Langham indicated a high probability that continued driving of the bus by the plaintiff would result in injury to the plaintiff’s spine. There does not seem to be anything indicated in the evidence to suggest that it would have been particularly expensive, difficult or inconvenient to provide a replacement bus in a timely fashion. Indeed, a replacement for bus 804 which had a defective front door arrived within 40 minutes of being requested. There is no compelling reason to explain such a lengthy delay in providing a second replacement bus once the defendant had been informed of the problems with the driver’s seat in bus 825 and the effects on the plaintiff’s spine that continued driving from that seat were causing. I conclude then, that a reasonable person in the defendant’s position would have advised the plaintiff to cease driving until the arrival of a replacement vehicle and would have furnished another bus to replace 825 within a far shorter period of time than that taken. The response of the first-named defendant, in my view, was not adequate to deal with the circumstances that had arisen and of which it had been made aware by the plaintiff.
[18] Counsel for the plaintiff contended that the first-named defendant had breached its duty of care to the plaintiff simply by providing a bus with a defective seat, even though it was unaware of any problem with the plaintiff’s spine, because the plaintiff’s condition is fairly common within the adult population albeit amongst persons older than the plaintiff. It is, submitted counsel, irrelevant that the plaintiff had a pre-existing condition – the defendant takes the plaintiff as it finds him. Although no specific authority for such a proposition was cited by counsel, I was invited to peruse Luntz, Assessment of Damages; 4th edition, 2.2.1-3 for support of the submission. The sections relied on by counsel for the plaintiff deal with the eggshell skull rule and seem to have little relevance to the present case. This case involves, as will be seen when the medical evidence is discussed, an acceleration of a pre-existing degenerative condition of the spine. It is not a case that calls for the determination of the question whether it was foreseeable that the plaintiff may suffer from a special susceptibility and whether this is not so unlikely that it should be dismissed as far-fetched or speculative.
[19] The case as pleaded by the plaintiff alleges that the driver’s seat on bus 825 as provided by the first-named defendant was in a broken and defective condition and as a consequence, the plaintiff developed severe back pain. There is no allegation that the incident aggravated a pre-existing condition. However, it seems beyond dispute that the plaintiff did have a pre-existing condition of his spine which was not symptom-free.
[20] The medical notes from his general practitioner’s practice (Nerang Family Medical Practice) immediately prior to an entry of 18 October 1999 list back pain as a past problem. The entry of 13 July 2000 refers to “sore back” but gives no indication of any incident of 5 July 2000 being blamed. Rather, reference is made to “on the buses – 12/24 shift small buses”. The entry of 18 July 2000 records “back remains sore” but again, no reference is made to the defective seat on 5 July as being implicated. The entry of 26 July 2000 refers to “problems with seat on buses” and also notes “back problems 6/12-8/12 (on old buses)”. Again, there is no note of any discrete incident of 5 July 2000 being implicated.
[21] The WorkCover form dated 18 July 2000 and signed by the plaintiff similarly gives no indication that the incident of 5 July 2000 was in any way responsible for the plaintiff’s sore back. The following appears in response to a request to “Detail what you were doing at the time of your injury and how your injury happened”:
“Due to the nature of my job, being seated in the bus driving has been the contributing factor to my lower back receiving continual jarring from various buses seats. Defective old style seats are common in old style buses. Unfortunately this is what the company provides for many drivers. My back may not be as strong as some of them. Cronic (sic) lower back pain is the result.”
[22] In response to the question “When did your injury happen?” the information recorded is “12/07/00”. A tick has been placed in a box headed “Over a period of time”. It would also appear that information was provided that the plaintiff first consulted a doctor for his condition “around Feb/Mar this year”.
[23] On the other hand, the subsequent medical reports of Dr Persley, Dr Curtis, Dr Douglas, Dr Fraser and Dr Nothling are all consistent with the plaintiff’s complaint that his back pain related to the defective seat of 5 July 2000. An additional information statement for WorkCover dated 27 July 2000 and signed by the plaintiff also alleges that “the worst of my back problem started a week prior to the 12.07.00. I was given a bus with a really bad seat”.
[24] Thus, although there is some lack of consistency in the versions relating to the cause of the plaintiff’s back pain, there exists sufficient material to enable a finding to be made that the condition of the plaintiff’s spine became significantly more symptomatic as a result of the incident of 5 July 2000, although there clearly had been a pre-existing degenerative condition which was symptomatic to a far lesser extent prior to that date. To this extent, the plaintiff’s denial to Dr Fraser of experiencing any back pain ever prior to the incident in question was clearly incorrect, and indeed, caused Dr Fraser to alter his opinion as to the seriousness of the plaintiff’s condition. Originally, Dr Fraser was of the opinion that the plaintiff had a permanent partial impairment of 5% of efficient function of the spine which was attributable to the injury of 5 July 2000. However, upon receiving a copy of the plaintiff’s medical file from Nerang Medical Centre showing that the plaintiff experienced back pain for 6-8 months prior to the incident on 5 July 2000, Dr Fraser formed the opinion that the plaintiff simply sustained a short-term exacerbation to a pre-existing injury. Similarly, Dr Curtis changed his opinion that the impairment attributable to the effects of the injury might ultimately have arisen from the natural progression of the pre-existent degenerative changes, but would have taken a period of some 10 to 15 years before doing so, and would have come on slowly and gradually, but possibly may not have come to light at all. Having been asked by counsel to assume that the plaintiff may have had symptoms prior to 5 July 2000 but they did not require him to take time off work, see a doctor or to seek treatment, Dr Curtis stated:
“When [the symptoms] would have progressed to his current level of impairment is difficult to anticipate, but were his symptoms to be present but not disabling, as opposed to not being present at all, then one would probably reduce that period of 10 to 15 years to, say, seven and a half to 12 and a half.”
[25] I should make clear that there is no doubt that the plaintiff’s spine demonstrated degenerative changes of a long-standing pre-existent nature. X-rays of his lumbosacral spine dated 8 September 2000 report (as per Dr Curtis’ report of 30 April 2002):
“There is no evidence of spondylolisthesis. The vertebral body heights are within normal limits. There is moderate reduction in disc height at L5/S1 and minor reduction in disc height at L4/5. No focal bony abnormality is detected.”
[26] MRI of the plaintiff’s lumbar spine dated 14 December 2000 reports (as per Dr Curtis):
“Findings-
Counting inferiorly from the craniocervical junction on the localising sagittal images showed there to be an extra vertebra. As plain radiographs show five lumbar type non-rib bearing vertebra, adherence to the classification as per plain films shall be made.
Sagittal sequences show normal lumbar vertebral alignment. Vertebral body height is maintained at all levels. There is comparative reduction in disc height at the L5/S1 level and mild reduction in T2 signal consistent with a degree of disc dessication. Marrow signal is normal throughout. The conus lies at the L12/L1 level.
L1/2, L2/3 & L3/4-
There is no foraminal or central canal stenosis. The disc appears normal.
L4/5-
There is an annular disc bulge which flattens the anterior thecal sac without causing a significant central canal or foraminal stenosis.
L5/S1-
There is an annular disc bulge, a little more prominent in the inferior foramen on the left, but the left-sided L5 nerve root exits just above this level without compromise and there is no significant central canal stenosis.”
[27] In his report 30 April 2002 Dr Curtis summarises the radiological reports as demonstrating degenerative changes and bulging of the lumbosacral disc and to a lesser extent, the L4/5 disc. He notes that in all probability these changes were of a long-standing pre-existent nature and were brought to light by the plaintiff sitting in an abnormal posture for a sustained period. Dr Curtis considers that the plaintiff’s work activities were a major contributing factor in the bringing to light of a pre-existent but dormant disorder.
[28] The real conflict in the medical evidence lies in the difference of opinion between Dr Curtis and Dr Fraser as to the degree of exacerbation of the plaintiff’s spinal condition as a result of the incident of 5 July 2000. Dr Fraser’s view is that the exacerbation was relatively minor but he was unable to say whether the degenerative changes observed on the radiological examinations were present or causing symptoms prior to the incident in question. Dr Fraser considered that, in any event, the plaintiff had a permanent impairment which he assessed at 5%. Dr Fraser considered that the exacerbation would be temporary and that it would be expected to settle relatively quickly, within a few weeks at the most. Dr Curtis, in accepting that the plaintiff’s spinal condition was symptomatic prior to the relevant incident, was of the opinion that the incident aggravated the symptomatology from a low level where no actual impairment was produced to a higher level of quite considerable impairment. Dr Curtis states that the plaintiff’s condition amounts to some 15-20% impairment of the whole person which is permanent. The condition, in the view of Dr Curtis, remains wholly attributable to the effects of the injury caused by the incident of 5 July 2000 because, notwithstanding the pre-existing degeneration, the plaintiff was able to continue working for a period of several months. In these circumstances there may be no actual impairment arising as a consequence of the symptoms prior to 5 July 2000 and it is only after the incident that the level of symptomatology increased significantly to bring about actual impairment of the degree assessed.
[29] As to the question of whether the plaintiff’s working life has been reduced, Dr Fraser is of the view that the plaintiff, if he avoids heavy manual work or work that requires repetitive bending, lifting and prolonged maintenance of a single posture, will be able to continue to work as a truck driver for a normal working life. Dr Curtis, however, when informed that the plaintiff had obtained employment in January 2003 driving a water truck for a property developer, revised his opinion that the plaintiff would not be employable without surgery by way of spinal fusion or disc replacement. Dr Curtis stated that surgery remains a possibility but he would put it at less than 50%.
[30] To evaluate the respective medical opinions in this case it is necessary to do so in the context of the plaintiff’s evidence as to his symptomatology. I have previously indicated that I accept the plaintiff as a generally truthful witness. The plaintiff stated that by the time a replacement bus was provided just after 1 o’clock, his back was sore and got progressively worse from that point on over the next few days. Although he attempted to resume duties, the plaintiff found that his back was too painful to continue driving. He ceased his usual duties from about one week after the incident. He consulted his general practitioner, underwent physiotherapy and took analgesic pain killers and anti-inflammatories. He also saw an occupational therapist and an orthopaedic surgeon. He was unable to return to full-time duties during the remainder of the year 2000 and ceased performing work duties altogether in December 2000. The plaintiff described the condition of his back in the later part of 2000 and early part of 2001 as “very sore, very painful”. He stated that he was restricted in his movement, work capacity, family life and marital commitments. He was unable to make love to his wife. He could not mow the lawn, wash the car or even play with his two children who were then aged almost six. He could not run and found walking very painful. These restrictions affected his mood, causing anger, particularly in respect of his inability to interact with his children. The plaintiff was asked whether he had experienced any back problems, not necessarily requiring treatment, prior to the incident. He replied:
“Not requiring treatment. I had a sore back before that. Yes. Nothing of a problematic type of pain. Just a sore back.”
[31] The plaintiff stated that after ceasing to be employed by the first-named defendant he looked for other work that would not affect his back. He could not undertake any work that involved lifting bags so inbound tourism work was ruled out. Eventually, he was successful in obtaining a position with Nifsan, a property development company on the Gold Coast, and commenced driving water trucks on 30 January 2003. He presently retains that employment. His duties involve watering turf, gardens and trees with a hose off the back of the truck. The position was at first casual but became permanent at the beginning of 2004. The plaintiff was asked how his back problem impacts upon his employment with Nifsan. He replied:
“It impacts a lot because I’m not able to do the hard physical labour that a lot of the other gentlemen do. There are jobs that require a lot of lifting. I can’t do any of that. I’m basically stuck to the position where I use a water hose on the back of a truck because that’s about all that’s available for me. Everything else is very physical.”
[32] The plaintiff identified other work that could be allocated to him in his position if he was fit to do it. This included landscape maintenance and landscaping, general open space maintenance and cutting grass.
[33] When asked whether his back had improved or deteriorated or remained the same since 2001, the plaintiff replied that it had not improved since he joined Nifsan and had, in fact, become “a lot sorer these days now that I’m working a lot more. It hurts a lot but I’ve got to do it. … The pain is always there. It’s just the severity of the pain. … The location is my lower back and the type of pain is a very strong, like, toothache pain radiating from my spine at the base. It’s very very sore. I have numbness from the incident right to today, from my knees half way up my thighs on the front. And I get pain that goes down the left leg. Sometimes it feels like it’s coming from the bone. I also get a burning sensation behind my left toes that I feel is connected to this. It’s a very debilitating pain when it gets very sore and I’m very restricted in what I can do.”
[34] This evidence, in my opinion, simply cannot support the expectation that the exacerbation of symptoms associated with the pre-existing chronic back condition would settle within a few weeks at the most. In this respect then, I do not accept the evidence of Dr Fraser. Unless the plaintiff is fabricating his evidence and grossly exaggerating his symptomatology (which I do not think is the case), Dr Fraser’s evidence must be rejected. I do note that Dr Fraser was prepared to concede the possibility that the impairment of the plaintiff’s spine may have been accelerated “by some years”, even though he thought that unlikely in view of the fact that the impairment is part of a continuum of symptoms.
[35] Both Dr Curtis and Dr Fraser acknowledge the difficulties inherent in attempting to predict the period by which the plaintiff’s impairment to his spine was accelerated by the event of 5 July 2000. However, I am unable to accept the submission of counsel for the defendant that it is illogical and unreasonable for Dr Curtis to say, given the long-standing degeneration and the fact that the plaintiff’s spine was symptomatic, that the event of 5 July 2000 brought about an acceleration of some seven-and-a-half to 12 years. Having rejected Dr Fraser’s evidence that it was to be expected that given the radiological changes to the plaintiff’s spine, his occupation as a bus driver would have made his degenerative condition symptomatic without any intervening event, I find that the exacerbation of the plaintiff’s condition was of some seven-and-a-half years, It was not, I find, of a few weeks only in the form of a temporary aggravation.
[36] Dr Persley, a consultant psychiatrist, in a report dated 13 March 2002, described the plaintiff as suffering with major depression with suicidal thoughts and a chronic pain disorder due to both physical and psychological factors. Dr Persley considered that several psychosocial factors were contributing to his psychiatric condition, particularly his sense of failure as he was not working and could not provide for his family.
[37] Dr Nothling, a psychiatrist, assessed the plaintiff on 10 April 2003 by which time he had recovered in terms of the adjustment disorder, and was no longer suffering from a diagnosable psychiatric disorder which could be causally related to the back pain which followed the injury of 5 July 2000. As noted by Dr Persley in a letter dated 30 October 2003, there had been changes in the plaintiff’s psychosocial situation at the time of Dr Nothling’s assessment. In particular, he had gained employment and reported job satisfaction. Dr Persley thought that such changes would be consistent with the improvement in his depressive condition over the twelve-month period between the two psychiatric assessments.
[38] In my view, the evidence of the psychiatrists tends to support the opinion of Dr Curtis as to the plaintiff’s condition. It is not at all suggestive, in my opinion, of a mild exacerbation of his spinal condition that was likely to settle within a few weeks.
[39] I turn then, to the assessment of damages for pain, suffering and loss of amenities. The plaintiff states that at times he experiences debilitating pain which restricts his activities, in particular swimming and running. It affects his sleep. He has now separated from his partner but prior to the separation he was restricted in his ability to engage in sexual intercourse. He was also restricted in his ability to interact with his children, whom he continues to see on weekends. The restrictions upon his activities made the plaintiff angry, which led to further difficulties with his partner. I do not ascribe the separation in 2004 solely to the effects of the pain in the plaintiff’s spine after July 2000. The relationship had previously been in difficulty and the couple had separated for a time at least in 1997. Furthermore, the pain suffered by the plaintiff in relation to his sore back prior to July 2000 (and which was never discussed with his employer) may well have contributed to the matrimonial disharmony.
[40] Although some improvement in the plaintiff’s condition was evident by September 2000 this, in my view, was neither complete nor permanent.
[41] Counsel for the plaintiff has submitted that an amount of $50,000-00 should be assessed in respect of general damages, although no comparable cases were placed before me to support the submission. In my view this figure is too high in the context of the evidence of Dr Curtis which suggests a 7.5 year acceleration of the onset of the plaintiff’s condition and a 15% impairment of the whole person, which is permanent and wholly attributable to the effects of the injury. In my opinion an appropriate award for pain, suffering and loss of amenities is $40,000-00. Interest should be allowed on 50% of this at 2% per annum for 4.25 years. This yields a further $1,700-00.
[42] In relation to past loss of income, I note that the plaintiff was at the time of the incident earning $490-00 net per week. Counsel for the plaintiff has submitted that a period of 132 weeks from 26 July 2000 to 5 January 2003 is the period over which his client was unemployed. I will adopt this submission (although the evidence suggests that the plaintiff did not commence with Nifsan until 30 January 2003) and assess past loss of income at $64,640-00. I allow interest on $21,700-00 of this amount at 5% per annum for 4.25 years, which yields a further $4,611-00. This reflects the difference between the award for past income loss and workers’ compensation payments received by the plaintiff.
[43] With respect to future loss of earning capacity, the evidence given by the plaintiff is that if his condition deteriorates further and he finds himself unable to perform his duties at the current rate, Nifsan will let him go. His employer has been very lenient with the plaintiff, but could not keep him on if his work rate were to decline. He already finds himself unable to perform the hard physical labour that others in similar jobs with Nifsan are able to do such as landscaping, maintenance and grass cutting. There can be little doubt, in my view, that if the plaintiff’s condition deteriorates to the extent that he cannot hold his position with his present employer, he will be at a disadvantage on the employment market. It is his intention to continue working to ordinary retirement age, and he hopes to remain with Nifsan in the landscaping department. It is unlikely that he will ever be able to resume work as a welder (for which he is qualified) because of the heavy lifting associated with such work. He has no other specific experience or work qualifications. He is still only 32 years old. In these circumstances I accept the submission of counsel for the plaintiff that an award of $50,000-00 in respect of future loss of earning capacity (including superannuation) is appropriate.
[44] In relation to past loss of superannuation, I assess this at 8% per annum on past economic loss of $64,640. This yields a further $5,171-00.
[45] A claim for damages under the Griffiths v Kerkemeyer head, which is not disputed, is allowed in the amount of $4,486-00, together with interest at 5% per annum for 3.5 years of $785-00. There is no future claim under this head.
[46] With respect to out-of-pocket expenses requiring repayment to the Health Insurance Commission, these are assessed at $22,429-00. This is not in dispute. There is no claim for interest under this head.
[47] Future expenses associated with pharmaceuticals and medical consultations should be compensated by allowing $45-00 per month for 5.75 years, discounted to $2,800-00.
[48] In respect of future surgery, either by way of a spinal fusion or disc replacement procedure of the affected segment of the plaintiff’s spine, Dr Curtis now considers the prospect of this as something less than 50%. It is appropriate to allow a claim under this head at 25% of the estimated costs of the procedure. This yields a further $5,375-00.
[49] The Fox v Wood component is assessed at $7,860-00.
[50] I assess the quantum of damages, then, at $209,857-00. In summary form this appears as follows:
Pain, suffering and loss of amenities $40,000-00 Interest on 50% of above @2% pa for 4.25 years $1,700-00 Past loss of income ($490 x 132 weeks from
26 July 2000 to 5 January 2003)
$64,640-00 Interest on $21,700 of past income @ 5% pa
say 4.25 years
$4,611-00 Future loss of earning capacity (including superannuation) $50,000-00 Past loss of superannuation (8% of damages
for past loss of income)
$5,171-00 Past Griffiths v Kerkemeyer $4,486-00 Interest on past Griffiths v Kerkemeyer @ 5% pa x 3.5 years $785-00 Out-of-pocket expenses/ HIC refund $22,429-00 Future on-going expenses @ $45/month (for 5.75 years) $2,800-00 Future surgery ($21,500 x 25%) $5,375-00 Fox v Wood $7,860-00 $209,857-00
[51] I give judgment to the plaintiff in the sum of $209,857-00.
[52] I will, if required, receive submissions in relation to costs in due course.
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