Harrison v Suncorp Insurance & Finance
[1995] QSC 303
•12 December 1995
IN THE SUPREME COURT
OF QUEENSLAND No. 1579 of 1993
Brisbane
[Harrison v Suncorp Insurance & Finance]
BETWEEN:
DAVID MARK HARRISON
Plaintiff
AND:
SUNCORP INSURANCE & FINANCE
Defendant
REASONS FOR JUDGMENT - W.C. LEE. J.
Delivered the 12th day of December, 1995
On 31 January 1989 the plaintiff bore witness to a fatal accident along the Yandina-Coolum Road on the Sunshine Coast. This action was commenced to recover damages in negligence for a psychiatric injury or injuries allegedly sustained by him as a result of what he saw and heard on that occasion. The defendant is the insurer of the deceased's vehicle. On 19 December 1993 interlocutory judgment with damages to be assessed was entered in the plaintiff's favour. Put shortly, the defendant admits that the plaintiff has suffered some form of psychiatric illness as a result of the deceased's negligence but contests the nature and extent of the condition or conditions involved.
Despite the defendant's admission of liability it is necessary to give an account of some of the details of the accident in order to gain a true understanding of the ordeal which the plaintiff must have undergone. The plaintiff's recollection of the accident was understandably patchy in the witness box. He had considerable difficulty relaying events and was in substantial emotional distress in doing so. The following account is gathered from a combination of his testimony, the pleadings and the facts relayed by the plaintiff to the various expert medical witnesses. Insofar as it may rely on the plaintiff's evidence itself, I should say that I found him to be a genuinely honest and credible witness.
The pleadings allege, and it was not in dispute, that at about 11.00am on the day in question the plaintiff was driving his Isuzu utility in a easterly direction along the Yandina-Coolum Road. The deceased was travelling in the same direction in his Holden utility, behind the plaintiff. The plaintiff, however, only saw the deceased's vehicle when it was about to overtake him. They were then about 140m west of the Toolborough Road intersection and approaching a blind corner. Coming from the other direction was a prime mover with trailer. Upon seeing the danger the deceased, it seems, applied his brakes in an apparent effort to decelerate in time to tuck safely behind the plaintiff. The plaintiff observed the events which followed in his rear view mirror. When the deceased's vehicle was about 10 metres behind the plaintiff's, it and the prime mover collided. The plaintiff could at that stage see the expression on the deceased's face just before the collision. There was an explosion, the force of which was felt by the plaintiff in his vehicle. The deceased's vehicle burst into flames and the driver's side of the plaintiff's vehicle was scorched.
The plaintiff applied his brakes and came to a stop some 20 to 30 feet from the point of collision. He got out of his car and returned to the scene of the accident to assist the occupants of the other vehicles. The deceased was lying on fire by the side of his car. Part of his skull was missing and his brains were scattered over the road where the plaintiff was standing. There was obviously also a large amount of blood in the area. The plaintiff attempted to extinguish the flames with his bare hands. He was awarded the Governor General's commendation for bravery for his conduct.
Realising that there was nothing that he could do for the deceased the plaintiff retired to wait for help. He felt nauseous and was almost sick. The authorities arrived about an hour later. Out of caution he was taken to the Caloundra base hospital but was released without any overnight attendance. He suffered no physical injury in the accident, apart from what must have been some slight burns to his hands caused by his attempts to extinguish the flames.
The plaintiff returned home but was plagued by constant recall of the accident. He says that he could not sleep for several days, but his perception of both time and events was no doubt distorted by his experience and it is not unreasonable to think that he may be mistaken about the extent of his insomnia. Nightmares were a constant trouble and he even began suffering from delusions. He on one occasion thought that the television was talking to him and on another that prehistoric birds were coming to take him away.
The plaintiff was born on 4 September 1965. He is now 30 years of age and is living on a disability support pension. He left school part way through grade 11 to take up an offer of work at the Sunshine Plantation, Nambour. That was in September 1981. He was then 16 years old. He continued in employment there until the time of the accident, save for a period of a few months in the second half of 1988 when he was engaged as a landscaping labourer on the construction of the Hyatt Regency Coolum. Although he had no formal qualifications as a landscaper he then had a keen interest in horticulture. In September of the same year, the plaintiff received an offer of an interview for a job as a groundsman at the Hyatt. According to him, he was offered the position but did not take it up for other reasons.
The plaintiff was originally employed at the Sunshine Plantation as a catering assistant but his duties changed over the period of his employment there. He was at various times a waiter, kitchen hand, gardener, cleaner and security attendant. Exhibit 1 is a schedule of his earnings throughout the period now under consideration.
Within a fortnight of the accident, the plaintiff returned to work. He found difficulty in communicating with people, would continually break down and was heavily withdrawn. One moment he would be crying, the next he would be abusive and anti-social.
On 6 June 1989 the plaintiff was admitted to the Nambour General Hospital suffering from acute behavioural changes. He has a recollection of having been put in a straight jacket on the way there, although quite possibly this memory was more a product of his delusions than a representation of fact. He was treated for 3 weeks with antipsychotic drugs, including lagactil, and was discharged on 29 June. The diagnosis given was of a schizophreniform psychosis, precipitated to a large degree by the trauma of the accident. He had never suffered from any psychiatric condition nor had he received any psychiatric treatment prior to the accident. He does, however, have a brother who suffers from schizophrenia.
He returned to work for a period of about a month after his discharge from hospital but ceased employment there in mid August 1989. He has not worked in any gainful way since. The plaintiff described his thought processes throughout this period as accelerated and confused. On 28 May 1990 he was again admitted for treatment to the Nambour General Hospital for his psychiatric problems, this time for over two months. Since then he has been admitted on several occasions to psychiatric wards on both the North Coast and in Brisbane. The cost of those attendances totals over $105,000.00.
The plaintiff gave evidence, which I accept, of an intention prior to the accident to stay with the Sunshine Plantation indefinitely, preferably in a full time position. He has done some casual work since the accident, although of a very limited nature. He worked for about one week as a strawberry picker, earning a little over $300.00 and has on occasions done some paid gardening work for friends, earning $25.00 for three hours at a time. This later work had commenced prior to the accident and was not resumed until some time after it. In the middle of 1993 he worked for a short period as a builders labourer but had to cease as his then current medication, lagactil, caused excessive photosensitivity. That medication has since been changed.
The plaintiff continues to have disturbed sleep patterns and flashbacks, although his current condition is much improved. He himself said in evidence that he feels his thought processes to be much clearer. He still worries, however, about the amount of medication he is on. He lacks motivation and is disinterested in nearly all of his former pursuits. Recently he has taken up drawing, something which he seems to enjoy. He expressed in evidence a desire to one day open a gallery at which he could display his works, but without wishing to discourage his development, that is not a suggestion which at this stage I take any particular notice of (cf. Thomas v O'Shea (1989) Aust. Torts. Rep. 80-251).
In 1990 he was convicted of breaking and entering and stealing and placed on probation for 2 years. This incident occurred, according to his evidence, during his first real experience with alcohol after the accident. He admitted to occasions in his adolescence when he would use marijuana or drink excessively. He even at times sniffed nitrosyl from canisters at work. Such conduct is, according to him, now well in the past and I am satisfied that that is so. He was involved in another car accident approximately 2 years ago. He was not injured although he was left without transport for about a year waiting for his property claim to resolve itself.
Several witnesses were called to give an account of the plaintiff's behaviour and general demeanour both prior to and after the accident.
Alan James George, a retired director of security for the Australian Atomic Commission, had known the plaintiff for some years prior to these events. His sons shared the plaintiff's interest in horticulture and it was through them that the introduction was made. In December 1982, he and his wife had retired to acreage at Yandina on the Sunshine Coast. The plaintiff would often visit them at their property, helping out when he could, particularly in relation to the garden. Mr George described the plaintiff prior to the accident as honest and reliable, although perhaps a little quiet. The overall impression given was that of a normal young man. After the accident, however, Mr George observed a dramatic change in the plaintiff's behaviour. He became withdrawn, lethargic and disinterested in matters which would previously have attracted his participation, he seemed to lose self-confidence and was difficult to engage in conversation.
Mrs Ann George, the last witness' wife, and two of their sons, Andrew and Stephen, gave similar accounts of changes in the plaintiff's behaviour post-accident. Both Andrew and Stephen had worked with the plaintiff at the Hyatt Regency Coolum, and in addition the plaintiff had lived with Andrew for a period of nine months. Andrew was second in charge of soft landscaping works at the Hyatt and in that capacity acted as the plaintiff's supervisor. He found the plaintiff knowledgable about plant species and for that reason often left him in charge of a crew with instructions which would invariably be carried out. He described the plaintiff as both capable and efficient and said that he had no cause to complain about his performance.
By way of contrast, it was felt that for the plaintiff to do similar work now, close supervision would be required. He was no longer able to concentrate as he once could and he seemed to have lost much of the specialised horticultural knowledge which he once had. Whist his condition had improved considerably since the accident it was said that a substantial improvement would still be required before the plaintiff could be employed in any similar capacity in the future. Stephen George had also worked with the plaintiff at the Hyatt, although not in any supervisory role. He confirmed the plaintiff's description as eager and knowledgable before the accident but lethargic and unreliable after it.
Mr Brian Maudsley had employed the plaintiff for a short time prior to the accident on a part time basis, picking crops on his property. He had no cause to complain about the plaintiff's work performance but did notice a substantial change in the plaintiff in the period post-accident. A letter from the witness' late wife was tendered which described the plaintiff as "industrious, pleasant and helpful in all facets of his working life". I accept this description of him.
Against this evidence rests that of several of the plaintiff's superiors from the Sunshine Plantation. Mr David Billingham, who commenced work there in March 1989, described the plaintiff's attendance even before the accident as erratic. He would on occasions leave early or not show up at all. He would also fail to carry out instructions to the full and disobey company codes of conduct. Nevertheless Mr Billingham did confirm receipt by the plaintiff of several incentive payments which are expressed "to reward those who through superior effort achieve outstanding results". Two references from the same organisation, although earlier in time, similarly spoke highly of the plaintiff's character.
Ms Charmain Kither described the plaintiff as a nice young man but an average worker. In the year or so before his departure, however, she felt that both his work performance and general behaviour had deteriorated. His attendance was sporadic, he appeared moody and temperamental, and at times depressed. He on one occasion was described as having punched a hole in one of the walls. In time, it was said, he would have been let go, presumably meaning dismissed from his position. Ms Kither described the incentive payments system as something which was often applied across the board to company employees. This of course, is a description which does not sit well with the language used in the letters of notification themselves.
Mr Keith Elliott worked with the plaintiff in the garden areas of the Sunshine Plantation. He too described the plaintiff as unreliable both in terms of attendance and general work performance. He was prone to changes in mood, including what he described as bouts of depression, and would occasionally turn up to work in a hung over condition. His condition did, however, change dramatically for the worse after the accident.
The plaintiff has been treated with various drugs including lithium, described as a mood stabiliser, and lagactil, an antipsychotic drug. As mentioned, this latter medication unfortunately has side effects such as photosensitivity. He is currently on pimozide, an anti-psychotic medication used in the treatment of schizophrenia.
Before turning to the medical evidence in any detail, it should be pointed out that the experts were at one in concluding that the plaintiff has suffered and to some degree is continuing to suffer from a condition known as post traumatic stress disorder (PTSD) and that, moreover, that is a condition which can be attributed solely to the accident in question. The evidence also seems to compel the conclusion that the plaintiff is suffering from some further psychotic disorder, although the precise nature and cause of it is a matter of dispute.
Dr Peter Landy, a consultant neurologist, was the first of the medical witnesses to be called. He was in fact interposed on behalf of the defendant. Dr Landy had an opportunity to examine the plaintiff on 1 December 1992 as a result of which he has prepared a report, Ex.10, dated the following day. He could find no injury to the plaintiff's head or cervical spine but did diagnose PTSD, a condition which was said to overlap into the field of neurology. The onset of this condition was said usually to be connected with the experience of an event outside the range of usual human experiences, a description which the accident of 30 January 1989 clearly fulfilled. Its symptoms were manifested in the plaintiff by his regular recollection of the events of that day and persistent increased arousal such as his difficulty in sleeping following it.
Dr Landy was of the clear opinion that the plaintiff's PTSD was attributable to the accident and no other cause. As I have noted that is a view which is concurred in by the other medical witnesses and I find it to be so. The plaintiff has certainly been incapacitated as a result of this condition but it was not considered permanent. Nevertheless it was said to be difficult to estimate how rapidly it would improve or the likely duration of its effects. Dr Landy's written opinion was confirmed in evidence.
Dr David Jenkins was the first psychiatrist to give evidence. He was again interposed on behalf of the defendant. Dr Jenkins had examined the plaintiff on 1 December 1992 and 18 November 1993, as a result of which he had prepared reports dated 1 February 1993 and 20 May 1994, Exs. 8 and 9 respectively.
Dr Jenkins expressed the view, which I accept, that schizophrenia can take several forms. It is most commonly characterised by thought disorder although it can also take on the form of a perception disorder characterised by hallucinations, or disturbances of sensation, emotion and volition. All of the relevant research was said to suggest, and I again accept, that its onset is often expedited by a constitutional susceptibility in the sufferer as to which there may be genetic aetiology. In other words, there is an hereditary factor involved in its development. For a person with a sibling who had developed the illness the possibility that they themselves might contract it was said to be in the order of 13%. Importantly for the defendant's case, however, Dr Jenkins expressed doubt as to the legitimacy of a view which would attribute the onset of the illness to a particular trauma, such as in this case the accident under consideration.
Schizophrenia is to be distinguishable from major affective disorder, formerly known as manic depressive psychosis, which is most commonly characterised by disturbances in mood. There is, however, somewhat of a half way house, known as schizo-affective disorder, in which the patient displays symptoms of schizophrenia as well as those of a major affective disorder.
Dr Jenkins is in no doubt that the plaintiff is suffering from a further psychotic illness. In his opinion, however, that additional condition is manifested principally by variations in the plaintiff's mood rather than by disturbances in his powers of thought or perception, although it was conceded that symptoms of the later kind may have been overshadowed by those of the former. On that basis, and although he continued to express doubts as to the precise nature of the plaintiff's psychosis, Dr Jenkins would have favoured a diagnosis of major affective disorder or possibly schizo-affective disorder.
The effects of this super-added psychosis on the plaintiff were said to be considerable. There may be periods in his life when he is unable to manage his own affairs. His ability to obtain and retain work will be severely impaired as will his entire social well being.
Dr Jenkins was guarded about the plaintiff's prognosis so far as his PTSD was concerned. As at February 1993, Dr Jenkins was of the opinion that it had rendered him completely incapable of working and as late as May 1994 he continued to express doubts as to whether the plaintiff would ever be employable again. Although agreeing with the proposition that the use of appropriate forms of medication, counselling and other types of therapy could contribute to make life tolerable for the patient, relapses were not uncommon. Dr Jenkins described such an event as more probable than possible. And, particularly were such an event to occur later in life when his capacity to handle stress is diminished, the effects on the plaintiff would likely be catastrophic.
The only expert medical witness called to give evidence on behalf of the plaintiff was Dr Donald Grant, consultant psychiatrist. Dr Grant examined the plaintiff on 17 February 1995 and his report of 2 March 1995 was tendered as Ex.7.
Dr Grant diagnosed the plaintiff as suffering from schizo‑affective disorder with dominant schizophrenic symptoms. The apparent success of his current medication, pimozide, was thought to be particularly suggestive of the fact that the primary disorder was one of schizophrenia. Often, it was said, such a condition was episodic with periods of full recovery between recurrences but in the plaintiff's case it was considered chronic in that it seemed always to be present in him to some greater or lesser degree.
As far as the effects of that illness of the plaintiff is concerned, it was said that he will have difficulty relating to people and establishing and maintaining relationships. Those impediments to his social life will also carry over to him employability. A lack of initiative, motivation and volition could be expected. He would be unable to concentrate and periods of relapse would continue to plague him. The plaintiff will probably require recurring hospitalisation in the future on a reasonably regular basis.
Dr Grant was pessimistic about the plaintiff's prognosis. Of those who develop schizophrenic illness the research indicated that one third will make a full recovery, one third will make a partial recovery and the other third will remain chronically ill. In Dr Grant's opinion, the plaintiff fell somewhere between the middle and worst thirds. It was thought that features of his psychosis would be present throughout much of his life and that he would experience regular periods of relapse. Long term treatment was thought likely to be necessary, particularly if he did not stick to his prescribed medication, a problem common with patients of schizophrenia. They tended not to be very insightful about their illness and were consequently quite flippant about its care. For those who did allow their treatment to lapse, the research was said to indicate that 90% would relapse within 12 months of ceasing medication. Even for those who were able to keep it up there was still a 25-30% chance of recurrence. Dr Grant thought the condition would cause in the plaintiff an overall disability of around 70%, something which would likely render him unemployable.
The plaintiff's current medication, pimozide, could also produce side effects of its own. It did not specifically target those areas of the brain from which the illness stemmed but also affected other areas controlling muscles, movement and the like. Patients treated with the drug could develop muscle stiffness, involuntary muscle movement and restlessness. With long term use of the drug such symptoms could become permanent, a consideration which could lead to the patient being taken off the medication, with the attendant risk of relapse.
Like Dr Jenkins, Dr Grant opined that there was an hereditary factor involved in the onset of schizophrenia. It was said that of those who contracted the illness, somewhere in the order of 90% would be considered genetically predisposed. In addition, however, people with a sibling suffering from the illness had a 10-15% chance of contracting it themselves in the normal course of things. The illness would rarely come on before puberty. It usually manifested itself in adolescence and young adulthood, although it could come on later in life as well. It could be triggered by major stresses in one's life. Dr Grant was of the opinion that in the present case the trauma of the accident, perhaps coupled with the onset of the plaintiff's PTSD, triggered his schizo-affective disorder. Research has also indicated that sleep deprivation, such as that which the plaintiff suffered from in the period immediately following the accident, can contribute to the onset of psychosis and this too may have been a causative factor.
So far as the plaintiff's PTSD was concerned, Dr Grant was of the opinion that whilst this constituted a severe impediment to the plaintiff's economic and social well being early on, he was now much improved. The plaintiff was thought likely to have only mild residual symptoms with an overall disability in the order of 5-10%.
Having considered carefully the opinions expressed by the medical experts, I have come to the somewhat uncontroversial view that the plaintiff is suffering from schizo-affective disorder. The major point of contention between the parties, of course, is whether that further condition can be attributed to the accident. In the end, I am of the opinion that it can. In so concluding, I have had close regard to the evidence given by Dr Jenkins on this issue but as I view that evidence, his objection to such a finding is based more on the lack of research to support it rather than on the existence of any positive research against it. In finding causation as a matter of fact, however, I am of course bound to approach the issue as a matter of common sense rather than as an exercise in scientific discovery: March v Stramare (E. & M.H.) Pty Ltd (1990-91) 171 C.L.R. 06.
Quite apart from the positive support which a finding of causation derives from the opinion of Dr Grant, an opinion which I unreservedly accept, I consider the timing of the accident and the onset of the plaintiff's illness to be more than a matter of mere coincidence. Nothing in the evidence would lead me to conclude that the plaintiff was developing any relevant symptoms around the time of its occurrence, although that seems to have been the tacit suggestion of the defendant. The behaviour relayed by some of his fellow workers, particularly Ms Kither, can in my opinion be dismissed as typical of a young man finding his way early in life and does not suggest the development of a condition such as that which the plaintiff now suffers from.
I should say at this stage that in reaching the conclusion expressed above, I have not ignored the evidence as to the plaintiff's predisposition towards schizo-related illnesses. But in my view, although that is something which may impact on the assessment of the plaintiff's damages, it is not something which would go to break the chain of causation. I add also that in my view I need not be excessively concerned with identifying any more proximate cause of the plaintiff's illness i.e. whether it was brought about principally by his perception of the events of 30 January 1989 or by the stress which he was placed under following those events as a result of the development of his PTSD or indeed by a combination of the two. Of the three alternatives, I am inclined to the view that the latter is the most probable, but as the PTSD was the direct result of the accident each possible cause of the illness now under consideration can be attributed to the deceased's negligence.
I turn now to the assessment of the plaintiff's damages.
Before considering specifically each of the heads of damage under which the plaintiff claims, I intend to dispose of what turned out to be a major issue in the case, namely, the uncontroverted evidence that the plaintiff, by reason of his genetic predisposition, had a 10-15% chance of developing some schizo-related illness during the course of his life in any event.
Counsel for the defendant submitted that such a possibility should be taken into consideration as a factor which would compel a discounting of the plaintiff's damages, once assessed. The argument put forward against such a course by counsel for the plaintiff, on the other hand, was that in accordance with the decisions of the High Court in Watts v Rake (1960) 108 C.L.R. 158 and Purkess v Crittenden (1965) 114 C.L.R. 164, the onus lay on the defendant to establish by reliable evidence the future effects of that constitutional defect. In this case it was said that it had not done so. Clearly, in my opinion, the approach suggested by counsel for the defendant must be adopted. In both of the cases cited the suggestion was that the plaintiff's pre-existing condition would have produced the same level of disability at some future time even had the defendant's negligence not occurred. In other words, the defendants were seeking to avoid all liability beyond a future date. That, of course, is not the suggestion here and it seems to me that in a case such as this there is no reason why the principle in Malec v J.C. Hutton Pty Ltd (1990) 169 C.L.R. 638 should not operate as much in reduction of the plaintiff's damages as it does to increase them. There is in my opinion reliable evidence which I accept of a 10-15% possibility of the onset on this disease in any event and that is a fact not to be ignored.
The more difficult question is the figure to be adopted as the discount rate. There are, in my opinion, sound reasons why one should not simply apply the figure suggested by the medical experts globally against the assessment. For example, whilst Dr Grant suggested that there was some research to indicate that siblings with schizophrenia could develop it at roughly the same period in their development, the material was far from conclusive. Much depended on the genetic loading of the individual, as to which there was no evidence in the present case. Without the accident and its effects, the plaintiff may well have developed the illness much later than was in fact the case.
Moreover, one might question whether the plaintiff's condition would have been as serious but for the accident. Certainly Dr Grant knew of no research to indicate any relationship between the severity of the precipitating trauma and the severity of the resultant illness but that does not mean that none necessarily exists. Bearing in mind the nature of some of the more substantial of the plaintiff's symptoms (e.g. recall of the accident) it is only logical to question whether the accident acted as more than a mere trigger in the development of the disease. Finally, of course one cannot ignore the super-added effects, particularly pre-trial, of the PTSD. Bearing these matters in mind, and having weighed all the possibilities involved, I consider it appropriate to apply a less substantial discount to the plaintiff's past loss. For this, I adopt a figure of 5%.
So far as the plaintiff's future is concerned there is an apparent difference between the medical opinion. Dr Jenkins, for example, seems to think that the effects of the PTSD on the plaintiff's future will be greater than Dr Grant. On this point I prefer the evidence of Dr Jenkins. I nevertheless agree with the opinion of Dr Grant that the greater hurdle lies in the treatment of the plaintiff's schizo-affective disorder. The fluctuating nature of each disorder may of course impact on the treatment of the other. Taking into account once again all of the factors mentioned above I consider it appropriate to apply a figure of 10% to this part of the plaintiff's award.
I turn now to the actual assessment itself.
The plaintiff's past specials include $105,394 for hospital fees, $247.65 for pharmaceutical expenses, and $575.00 for the cost of transporting him from the scene of the accident to the Nambour Hospital. None of these were contested. For the future, I accept the evidence of both Drs Jenkins and Grant that the plaintiff will require substantial ongoing treatment, probably for the rest of his life. Dr Jenkins suggested that an allowance of $2,000.00 per annum would be reasonable for this and there is no reason to dispute his evidence. Discounting at 5%, a weekly allowance of $38.35 for a period of 40 years produces a figure of roughly $35,200.00. I allow that sum.
The plaintiff also claims for expenses incurred in having to travel to and from his various medical appointments. A summary of these is contained in Ex.16. It was not challenged before me and I consider it appropriate to allow the full sum of $3,444.00 claimed.
The plaintiff has clearly suffered greatly as a result of the accident. He will continue to do so in the future. I will not here repeat his likely prognosis, simply to say that it is difficult to see what facets of his life will be unaffected by his conditions. Counsel for the defendant submitted that a figure of $50,000.00 including interest was appropriate, whereas Counsel for the plaintiff submitted that a sum of $65,000.00 was reasonable. I award the sum of $55,000.00 as reasonable in the circumstances, for pain, suffering and loss of amenities. Of this, and bearing in mind the current apparent stability of his PTSD, I attribute $20,000.00 to the past. Interest will be allowed on this latter sum.
This brings me to a major point of contention between the parties: the assessment of the plaintiff's economic loss. Of course the starting point of any such discussion must be an appraisal of the plaintiff's pre-accident earning capacity. His brief work history has already been outlined and I need not repeat it here. It is reasonable to assume that he would have continued to seek work in the gardening field. He was apparently suited to it and it was all that he was used to. As is the way, however, in all cases involving injury to those who at the time of accident had not commenced or had just commenced their working life, an evaluation of that type must necessarily involve an element of guess work.
The report of Vincents, chartered accountants (Ex.26) tendered on behalf of the plaintiff, has calculated what is said to be the plaintiff's past and future economic loss based on certain scenarios set out therein. They include the possibilities that the plaintiff would have continued in employment at the Sunshine Plantation, either as a full time or as a casual gardener, or commenced employment as a full time groundsman at the Hyatt Regency Coolum. Calculations up to various suggested retirement ages (55, 60 or 65 years) have been made based on those scenarios. Neither the mathematical calculations set out in the report nor the source materials from which the calculations are made are challenged by the defendant.
So far as past economic loss in concerned, and based on the medical evidence I find the plaintiff to have been totally unemployable up until trial. On that basis, the worst scenario in the report for the plaintiff i.e. that he would have continued as a casual gardener at the Sunshine Plantation up until the time of trial, is said to produce an after tax figure of $61,017.00. The plaintiff did not suggest that any higher figure should be adopted but resisted an attempt by the defendant to further discount the award. That attempt was based by the defendant on the suggestion that the plaintiff's pre-accident work habits, particularly as outlined in evidence by Mr Billingham and Ms Kither, were poor to say the least. It was said that he was an unreliable and difficult worker, prone to bouts of depression and mood swings and would in all likelihood have been dismissed from the sunshine plantation in any event. To take into account these factors, a heavy rate of discount, perhaps as high as 50%, was suggested.
I cannot, however, agree with the defendant's submission to this extent. As has previously been mentioned, I have some difficulty in reconciling the opinions of Mr Billingham and Ms Kither with the evidence of the incentive payments received by the plaintiff during his employment at the Sunshine Plantation. I do not accept Ms Kither's explanation for this as a satisfactory one. But be that as it may, I repeat that I do not view the plaintiff's conduct as anything very much out of the ordinary for a man of his age making his way early in life although it must be taken into account in a general way. Of course the normal allowance should be made for the vicissitudes of life, which must have affected his ability to earn income. This has been in part taken into account by the selection of the figure in the report least favourable to the plaintiff, as the plaintiff's Counsel has done. It makes no accommodation for the possibility that the plaintiff may have bettered his position. Counsel for the defendant submitted that the sum of $30,000.00 was appropriate, which is far too low, and is rejected. Overall, I consider that for past economic loss the sum of $50,000.00 is reasonable in the circumstances.
It was a suggested by counsel for the defendant that as the plaintiff was in receipt of unemployment and/or sickness benefits during most of the period leading up to trial, interest should not be allowed on part at least of this sum. The plaintiff was apparently in continuous receipt of such payments from August/September 1989 up until approximately 2½ years ago when he was placed on a disability pension. It was conceded that the pension should be ignored for the purposes of this exercise. Unfortunately, however, the evidence on this point is in an unsatisfactory state. The precise amount received by way of such benefits has not been placed before me. Nevertheless I consider there to be some merit in the defendant's argument. It may be a somewhat haphazard way of doing things but I propose to allow interest on only half of the award for past economic loss and only for the last 2½ years.
As to the future, this is also addressed in the report by Vincents, chartered accounts, Ex. 26. Unfortunately I must say that I share Dr Grant's pessimism as to this man's prognosis. The fluctuating nature of his illness will, I believe, prove to be a major constraint on his ability to engage in any type of long term employment. Moreover, his inability to relate to others and general lack of motivation will render him uncompetitive, even in the market for part time work. Finally, as counsel for the plaintiff submitted, he will suffer the disadvantage of being labelled one who is suffering from a long term psychiatric illness. From all practical points of view I consider the plaintiff's earning capacity to have been totally destroyed. There is no reason to doubt that the plaintiff would have worked right up to the age of retirement at 65 (Dykstra v Head (1989) Aust. Torts. Rep. 80-280). Counsel for the defendant submitted that a global figure of $75,000.00 was appropriate, but again this is far too low and is out of keeping with the above findings. Counsel for the plaintiff did not seek to persuade me to award damages on the basis of the best scenario for the plaintiff i.e. that he would have entered employment as a full time groundsman at the Hyatt Regency Coolum. Rather the figure of $200,000.00 suggested lies around the mean of the earnings of full time and casual gardeners at the Sunshine Plantation. Taking all factors into account and including the usual matters a reasonable sum is $180,000.00. I also award $15,000.00 for foregone employer's superannuation contributions.
One final matter should be mentioned and that is the possibility that throughout the plaintiff's life he will experience periods of relapse during which he will be rendered incapable of managing his own affairs. I am not persuaded on the evidence currently before me that a protection order should be made in the plaintiff's favour. Viewing him in the witness box and taking into account the various medical opinions, I consider him currently capable of managing his own affairs. Nevertheless I consider it appropriate to make some allowance for that eventuality. Counsel for the plaintiff was kind enough to put before me a schedule of Public Trustee administration fees which is of course a starting point, but I must make allowance for what will hopefully be the case, namely that the plaintiff will not be reduced to the situation where his affairs must be managed for him. In all the circumstances, under this head I allow the sum of $5,000.00.
A summary of the assessment is as follows:-
Past Loss
Pain, suffering and loss of amenities $20,000.00
Interest @ 2% for approx 5 years, 11 months $2,400.00
Past economic loss $50,000.00
Interest @ 5% on half of that amount $3,125.00
for approx 2½ years
Hospital and medical expenses $106,216.65
Travelling expenses - 8,610 kms @ 40c/km $3,444.00
Interest @ 5% for approx 5 years, 11 months $1,018.85
Subtotal$186,204.50
Minus 5% global discount $9.310.20
Total$176,894.30
Future Loss
Pain, suffering and loss of amenities $35,000.00
Future loss of earning capacity $180,000.00
Foregone employer's superannuation contributions $15,000.00
Hospital and medical expenses $35,200.00
Public Trustee administration charges $5,000.00
Subtotal$270,200.00
Minus 10% global discount $27,020.00
Total$243,180.00
The total award is then $420,074.30.
I will now hear submissions as to the form of judgment and as to costs.
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