Hooker v Allied Pumps Pty Ltd [No 2]
[2018] WADC 129
•12 OCTOBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HOOKER -v- ALLIED PUMPS PTY LTD [No 2] [2018] WADC 129
CORAM: McCANN DCJ
HEARD: 5-9, 12-15 FEBRUARY, 6-7 MARCH & 8 AUGUST 2018
DELIVERED : 12 OCTOBER 2018
FILE NO/S: CIV 1141 of 2014
BETWEEN: MICHAEL JAMES HOOKER
Plaintiff
AND
ALLIED PUMPS PTY LTD
Defendant
Catchwords:
Negligence - Workplace injury - Portable alarm accidentally activated in an office - Plaintiff startled and injured his neck - Unsafe workplace - Turns on own facts
Assessment of damages - Co-morbid organic, psychiatric and psychological injuries - Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act 1981, s 92(b), s 93F(1), s 146H(1), s 146H(2)
Result:
Judgment for the plaintiff in sum of $1,976,364.40 (inclusive of indemnities owed to the workers' compensation insurer, Medicare and HBF)
Representation:
Counsel:
| Plaintiff | : | Mr M A Tedeschi |
| Defendant | : | Mr D Clyne |
Solicitors:
| Plaintiff | : | Slater & Gordon |
| Defendant | : | SRB Legal |
Case(s) referred to in decision(s):
Beer v Duracraft Pty Ltd [2004] WASCA 192
Briginshaw v Briginshaw (1938) 60 CLR 336
Brocx v Mounsey [2010] WASCA 196
Browne v Dunn (1893) 6 R 67
Chamberlain v The Queen [No 2](1984) 153 CLR 521
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Fox v Wood (1981) 148 CLR 438
Jones v Dunkel (1959) 101 CLR 298
Lazarevic v The State of Western Australia [2007] WASCAS 156
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
MR and RC Smith Pty Ltd v Wyatt [No 2] [2012] WASCA 110
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Ramsay v Watson (1961) 108 CLR 642
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
Subramaniam v Public Prosecutor [1956] 1 WLR 965
Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173
Thomas v O'Shea (1989) Aust Torts Reports 80‑251
Tonkin v Strickland [2007] WADC 144
Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41
Usher v Usher [1992] HCA 47; 65 ALR 384
Vairy v Wyong Shire Council [2005] HCA 62
Watson v Fung [2005] WADC 168
McCANN DCJ:
Introduction
The plaintiff claims damages for personal injuries caused by an accident in the course of his employment as a computer draftsman at the defendant's office in Welshpool (the accident).
The accident occurred at approximately 2.00 pm on 12 March 2012 whilst the plaintiff was seated at his desk in an open plan office known as the Operations Room. An employee of the defendant who was also present (Andrew Edwards, now Starcevich) switched on a personal gas detector (the gas detector) behind the plaintiff. The alarm was triggered and startled the plaintiff.
The plaintiff reactively turned sharply to his left to identify the source of the noise, but his knees hit the side of his desk. He felt pain to his neck and left shoulder, and partly in his right shoulder.
He reported the accident and injuries to his supervisors the following day and was referred to the defendant's healthcare provider, Medibank Private Clinic.
Dr Salma Saleh diagnosed a soft tissue injury to the plaintiff's neck. He returned to work with restrictions.
But his symptoms did not improve. He saw another general practitioner at the Medibank Clinic, Dr Tan, underwent physiotherapy and took medication.
He then saw general practitioners at the Langford Medical Centre.
On 4 September 2012 an MRI of his cervical spine disclosed degenerative cervical pathology with potential impingement of the C5 nerve root. Further scans and interventions over the following months led to a confirmed diagnosis of active degenerative disease at C4/5 with a recommendation of anterior decompression and an artificial disc implant (ie, a 4/5 discectomy and arthroplasty). That procedure was carried out by Dr Andrew Miles (neurosurgeon) on 13 August 2013. Intra‑operatively, he confirmed an acute C4/5 disc bulge which was impinging on the C5 nerve root.
The plaintiff contends that he has continued to suffer from significant pain in his cervical, thoracic and lumbar spine and in his shoulders and limbs.
He also developed psychological and psychiatric complications including anxiety and depression.
The plaintiff contends that he is totally and permanently disabled by his injuries, unfit for any form of employment and that his quality of life has been severely damaged. He seeks damages of over $2.5 million, plus workers' compensation entitlements paid by the defendant's workers' compensation insurer.
The issues
The plaintiff pleads that the accident was caused by the negligence, breach of contract and breach of statutory duty of the defendant. He relies on two alternative factual bases.
First, he contends that the defendant's management knew or ought to have known that the gas detector was faulty and negligently permitted it to be left in the Operations Room where it could be accessed, instead of ensuring that it was decommissioned and/or safely secured elsewhere.
Alternatively, the plaintiff pleads that the defendant is vicariously liable for Mr Starcevich's negligence in that he switched the gas detector on and thus set off the alarm when he knew or ought to have known that it was unsafe to do so.
The defendant admits that the plaintiff was at work on 12 March 2012 and that Mr Starcevich set off the alarm in the Operations Room, but otherwise denies liability.
The defendant admits that the plaintiff suffered a C4‑5 disc injury, but contends that the plaintiff's 'claim enormously over‑estimates the appropriate compensation'.
The defendant contends that, first, any incapacity is caused or contributed to by the plaintiff's pre‑existing spinal degenerative conditions (at the lumbar, thoracic and cervical levels) and by pre‑existing psychological injuries including depression.
The defendant contends that the plaintiff has exhibited abnormal illness behaviour, but does not contend that he is a malingerer.
The defendant contends that the abnormal illness behaviour is affected by psychological factors which are treatable and susceptible to improvement, that is to say, his purportedly physical symptoms are not intractable and with treatment will improve over time.
Evidentiary principles
I am required to make findings on the ultimate issues of fact on the balance of probabilities based on a body of direct and circumstantial evidence.
A circumstantial case is one in which no one fact or piece of evidence is capable of proving an ultimate fact. An ultimate fact is taken to be proven if the court is satisfied (ie, can infer) based on the whole of the evidence that it is more probable than not that the fact occurred or exists (Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 536, (Gibbs CJ and Mason J)). By 'more probable is meant no more than that upon a balance of probabilities … an inference might reasonably be considered to have some greater degree of likelihood' than others that are open (Jones v Dunkel (1959) 101 CLR 298, 310 (Menzies J)).
Inferences 'from actual facts that are proved are just as much part of the evidence as those facts themselves' (Jones v Dunkel (309) Menzies J)).
Being satisfied as to the standard of proof is not an arithmetical exercise. I am required to be actually persuaded as to the probability of a fact being true (Briginshaw v Briginshaw (1938) 60 CLR 336). Nor should I confuse mere conjecture with reasoned conclusion (Jones v Dunkel (305) (Dixon CJ), 309 ‑ 310 (Menzies J)). Findings must be supported by evidence and assumptions are not evidence (Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173).
I am also mindful that a circumstantial case which is reliant on deduction by a process of elimination is potentially fraught with the fallacy that a hypothesis must be correct merely because it is the only one left. That is to say, it does not become more probable than the alternative(s).
The assessment of the credibility or reliability of evidence is a multi‑factorial task. The appearance and demeanour of witnesses are relevant factors, but there is a danger in too readily drawing conclusions about truthfulness and reliability solely or mainly from such considerations. Judges are encouraged to 'limit their reliance on the appearance of witnesses and reason to their conclusion, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events' (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, [30] - [31] (Gleeson CJ, Gummow, Kirby JJ)). It is also useful to take into account the cooperativeness and frankness of witnesses and their willingness to make concessions.
An expert is permitted to give evidence of an opinion (which would otherwise be hearsay) with respect to a factual issue which requires expert elucidation if he or she is qualified by training or experience to do so. Opinion evidence is admissible for the purpose of assisting the court to make findings of fact.
Opinion evidence, and findings derived from the same, must be based upon facts or stated assumptions that are proven (or bear sufficient correlation to facts which are proven) and must be explained in such a way that the court can understand it and make the necessary findings, or at least understand why it should be adopted or deferred to. (Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J); Beer v Duracraft Pty Ltd [2004] WASCA 192 [78] – [80] (McLure J); and Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, [64] (Heydon JA)).
As with lay witnesses, the court is entitled to accept all of a particular expert's evidence, or none of it, or accept some and reject the rest, or simply put it to one side (Ramsay v Watson (1961) 108 CLR 642, 645). In this way findings can be drawn from evidence and opinions of more than one expert, irrespective of who adduced the evidence.
The purpose of expert evidence is not to educate the court so that it may then form and rely upon its own view. The court cannot substitute a diagnostic role for its forensic role.
The weight of expert evidence may depend to some extent on the degree of specialisation involved in the relevant expert field, because some fields are more esoteric than others. Evidence may be adopted or deferred to when it is very specialised or esoteric if the relevant expert(s) are suitably qualified and the science is well understood by them.
In a personal injuries case it is frequently straightforward for a fact‑finder to accept a diagnosis that is based upon reliable evidence and coherently explained. As will be seen, this is not necessarily such a case.
The accident
The altair 4X gas detector
Mr Darren Ogle is the national sales manager of MSA (Australia) Pty Ltd which was the importer of the gas detector and a subsidiary of the U.S. manufacturer. He testified as follows:
(i)The gas detector measured 11.5 cm x 7.6 cm x 3.5 cm and weighed 224 g. It was designed to be worn by personnel in enclosed spaces where there was a risk of hazardous airborne substances. The device was designed to activate three alarms if it detected such substances: an aural alarm at 95 decibels (which sounded like a domestic or automotive security alarm), a visual alarm (the green LED fascia changed to red) and a physical alarm (the unit vibrated).
(ii)The gas detector was given a certificate of calibration by the manufacturer in Pittsburgh, USA on 2 July 2011. It is essential that the calibration be maintained. To that end, each unit had to be subjected to a daily test (known as a 'bump test') prior to use and if necessary, any anomaly corrected.
(iii)The unit was capable of automatically detecting its own faults and displaying error codes. It was designed to activate all three alarms in the event of a defective mainboard. In such a case there could be no mistaking the need to the take the unit out of service immediately.
The gas detector was kept in the Operations Room in a factory‑supplied case with all of its accessories, such as charger and gas sample canister (for calibration).
Mr Ogle testified that on 13 March 2012, MSA agreed to replace the gas detector under warranty as the unit had a defective mainboard.
The plaintiff's evidence
The plaintiff testified that the Operations Room was part of a large industrial complex. Its dimensions were approximately 10 m by 6 m with work‑stations along the sides. There was a large table in the middle of the room.
He testified that he shared the Operation Room with Daniel Slack (service manager), Victor Elsinki (purchasing officer), Paul Lebbos (electrical engineer) and Melville Perera (service coordinator and occupational health and safety representative). No‑one else mentioned Mr Elsinki and based on the evidence of others, I believe that the plaintiff meant Mr Frank Kacuiba.
He testified that the gas detector was one of several Altair units that were stored (in their cases) on an open shelf above Mr Perera's work station. A contractor or employee of the defendant who needed a detector was required to get it from Mr Slack and return it to him afterwards.
The plaintiff was never required to wear a gas detector and never received any training, induction or instruction about them.
He testified that he commenced work as usual at 6.30 am on 12 March 2012. He worked continuously throughout his shift concentrating on the design of a fire suppression set.
At 2.00 pm he was seated at his computer and was 'totally engrossed' in his work. Andrew Edwards (now Starcevich) came into the room, but the plaintiff took no notice of him and kept working.
Suddenly, there was a loud and piercing screeching noise behind him. He was startled and 'instinctively turned sharply' to his left to find out what had happened. Unknown to him, a gas detector had been placed on the table behind him. Mr Starcevich had somehow triggered the alarm. As he turned the plaintiff hit his knees on the side of his desk. He felt an instant, very sharp and severe pain in his neck and left shoulder which was so intense that it took his breath away and stunned him.
He could see Mr Starcevich standing at the table behind him, holding the gas detector. Mr Starcevich switched it off. The plaintiff turned back to his computer.
However, he experienced pain which was so intense that he could hardly concentrate or move. I do not place much weight on this evidence which is not consistent with Mr Lebbos' evidence underlined at [90]) which I accept. From what I have ascertained in evidence (see [197], [201] and [249]), I would be very surprised if the plaintiff did not exhibit and verbalise his discomfort if he had as much pain as he testified.
Suddenly the alarm went off again. The plaintiff turned slowly and yelled at Mr Starcevich to turn it off, which he did. Mr Starcevich said 'sorry, it's just a joke' in a slightly testy way, signifying (I infer from the plaintiff's evidence) that he was somewhat irritated that the plaintiff could not take the joke. The plaintiff replied 'I'll give you a joke in just a minute'.
He finished his shift soon afterwards, but with difficulty. As he was leaving he noticed that the gas detector was on the table. Some sort of red tag was on it, or near it, but he does not know what, if anything, was written on it. I comment that this part of his evidence was vague. The implication is that the unit had been 'tagged out'. I suspect that it is an ex‑post facto reconstruction. It is typical of the plaintiff to do this (see [147] and [154]) and I put it to one side.
I should add a further example of this propensity which is relevant at this point. According to the plaintiff's evidence the Operations Room was a place of quiet, studious work. I do not accept that. The evidence of others and, indeed, the name and purpose of the workplace (Operations Room) suggest otherwise.
Other evidence about the accident
The plaintiff called Mr Perera.
He was employed by the defendant as a projects coordinator between April 2011 and January 2013. He was also a safety coordinator and an employee safety and health representative. Based on his evidence, I am satisfied that he took this role seriously and somewhat officiously.
Mr Perera testified that he worked in the Operations Room with Paul Lebbos, the plaintiff, Daniel Slack and Frank Kacuiba.
There were a number of gas detectors stored on a shelf above his work station, but he had no responsibility for them. Servicemen were required to deal with Mr Slack to get them and when they were returned. This occurred about two or three times per week.
He arrived in the Operations Room at approximately 8.30 am on 12 March 2012. The first thing he noticed was the gas detector lying on the central table with a piece of cardboard attached to it. The cardboard had an orange and white stripe at the bottom and the words 'tagged out', signifying that it was out of operation.
Mr Perera was not happy that a tagged out item had been left in the Operations Room and asked Mr Slack why it was there. Mr Slack replied that it was 'faulty and he was getting a technician to come over ... during the day to collect it'.
Mr Perera replied that 'the machine should not be there, it should be in the maintenance room at the back of the warehouse'.
In response, Mr Slack told him 'to shut up and leave it there'. Mr Perera was not happy with that and immediately left to take the matter up with his superior, Mr Shane Powell, who worked in another area.
He told Mr Powell what had he had seen and that the gas alarm should not be in the Operations Room and 'wasn't safe'. Mr Powell enquired what Mr Slack had said and then instructed Mr Pereira to leave the gas detector where it was.
Mr Perera returned to the Operations Room and his work. At about 2.00 pm Mr Starcevich (who everyone called 'Red') came into the room. 'Red' was a serviceman and routinely dealt with Mr Slack.
Mr Perera testified as follows (ts 462 – 464):
When he [Red] came in, as usual, he's a noisy guy, he was talking.
... and then he asked me, 'what is this doing?' ... 'what is wrong with the gas alarm?'
... so I said ... 'Red, just leave it there. It needs to be sent for servicing' and then he asked me, 'what's wrong with it?' so I said, 'just leave it there'. Daniel will be calling someone over.
And then I turned and did my work.
... then next thing there was this loud piercing sound, so all of us turned ...
I saw Red or Mr Edwards holding the alarm.
... he came out with lots of profanities ... because he was cursing, he was so loud.
Then I told him to leave it on the table.
I think he put it down for a while.
... After telling Mr Edwards to leave the alarm alone. He was still shaken up and our ears were ringing so we couldn't do our work and it went off a second time.
... we [that is Paul Lebbos, the plaintiff and Mr Perera] shouted at him ... to put it down then shut it off.
He seemed surprised [but] he shut it off.
[He put the detector] ... on the table.
When I left that evening, I believe it was still there.
I comment that the underlined evidence signifies that Mr Starcevich was either not expecting the alarm to go off, or did not know how loud the alarm would be, or both.
Mr Perera testified that he made an immediate written report about the matter to Mr Powell and emailed copies to members of the safety committee and to safety representatives. He recommended that the unit be put in the warehouse.
Under cross‑examination it became apparent that Mr Perera had given a different account in a formal statement to an investigator on 31 May 2013 (exhibit 352).
He quickly corrected his evidence about telling Mr Slack to put the gas detector in the warehouse and stated that he had told him to 'put it on his table'. He said that he had confused his conversation with Mr Slack with his incident report. I comment immediately that Mr Perera struggled to explain why he made this mistake or why Mr Slack's table was preferable to the central table, especially if the device was tagged out. And I do not accept any of his evidence about the incident report (see [66]).
Actually, there is nothing in the statement about him speaking to Mr Slack or Mr Powell at all about the tagged out detector. He said that this was a 'slip' (ts 476). Given the explicit formality of the statement itself and other circumstantial details within it, that explanation is unbelievable.
Next, in par 12 of exhibit 352 he said:
On this day I remember Andrew Edwards came into the room as he often did to collect or return the gas detector. It was about 2.00 pm. I am not sure but I believe he told me it was faulty and he was messing around with it. I guess he was trying to figure what was wrong with it and it went off and was very loud.
Mr Perera did not adopt the statement or part thereof. So it is not evidence from which findings of fact may be made. But it does contradict his evidence that the gas detector had already been tagged out and his evidence that it was he (Mr Perera) who informed Mr Starcevich that it was faulty.
More difficulties were brought out in cross‑examination.
First, there is no evidence that an incident report was sent to anyone on the afternoon of 12 March 2012, much less by Mr Perera. The only incident report was prepared by the plaintiff on 13 March 2012 (exhibit 58). Mr Perera's involvement consisted of sending a copy to Mr Powell, Mr Kacuiba, the plaintiff and a Mr Mark Stein at 10.31 am on 13 March 2012. Mr Perera's covering email (exhibit 59) is instructive:
Gentlemen,
FYI. Incident report by Michael Hooker.
[P/S: didn't know the Gas Alarm/Indicator could be such a pain in the neck?]
Cheers! Melville Perera.
The intercalation was in the original. So, rather than treating the accident as an egregious breach of occupational health and safety (as he suggested in evidence), he seems to have trivialised the matter.
Mr Perera testified that he attached photographs to the report (presumably showing the tagged out gas detector in situ in the Operations Room). But, they are not mentioned in the email or report, nor have any been found. Based on other cross‑examination, I am sure that Mr Perera conflated this occasion with another occasion when the plaintiff was injured at work (11 January 2012: see exhibit 350).
It was put to Mr Perera that he had tailored his evidence to assist the plaintiff. There is force in that submission. First, a faulty memory alone cannot explain the inconsistencies in his evidence. Second, he said in evidence (ts 477) that he wants 'to get justice' for the plaintiff. Third, he bears an animus towards the management of the defendant based on his perception that they formed a clique that did not approve of him and belittled his work.
The defendant called Mr Slack. In 2012 he was the service‑manager. He is currently employed in sales in the industrial mining section. He was working in the Operations Room when the accident occurred and testified as follows (ts 720 ‑ 721):
I was working at my desk ... so I didn't exactly see what happened. But the alarm went off behind me and it wasn't until that got turned off that the alarm stopped. A few guys probably complained about it being noisy. I mean, it's not actually that loud cos it's designed to go – go off about half a metre from your ear.
He was asked about his prior knowledge of the whereabouts of the detector (ts 721 – 722):
You could see it in the desk in the middle ...
It was on that desk ...
I just thought it was in the middle but I mean it's a fine – finer detail. But it was on that desk which is all the evidence I will give.
... I wasn't in – well I wasn't in charge of it so, no, I've got no idea why it was there.
He denied speaking to anyone about the unit before the alarm off, including Mr Perera.
In cross‑examination he insisted that he was never responsible for the gas detectors. He said that Mr Kacuiba was responsible.
He testified that he was 'not sure' whether the defendant had a system for taking defective equipment out of service, but he was 'positive' that the gas detector was untagged when the accident occurred.
He said that he was not startled when the alarm went off and he 'just kept working' (ts 733). He said that he did not turn his head, but he heard other people in the room telling Mr Starcevich to turn it off. Initially I found this evidence problematic. It was difficult to accept that he was not startled by the alarm. However, having regard to my ultimate findings (see [108]), it makes sense and I accept it. Mr Slack was not startled by the sound of the alarm going off because it was not much of a surprise to him.
To the extent that demeanour is a helpful consideration, I was unimpressed by Mr Slack's evidence. I accept that he may have been nervous, but he seemed to me to be diffident at best, but evasive, defensive and obfuscatory are also open. The passage that I have italicized at [71] connoted a wish to avoid controversy. I infer that he apprehended that it would not help the defendant and/or his own sense of ease if he expanded upon what he knew.
Mr Starcevich testified that he was employed by the defendant in 2012 as a service technician. He said that he had a very vague memory of the accident (ts 742):
I can't really remember now, being such – obviously such a long time ago. But I've read my statement, so ... I – I honestly – honestly can't remember, yeah, being so long ago. So I've tried to. And obviously read my statements and, you know, like I – and – and try to remember what happened, but I honestly can't remember. So ...
He said that he could 'obviously' recall that the plaintiff and himself were in the room and he was 'pretty sure' that Mr Slack was there as well.
So, in summary, Mr Starcevich was unable to shed any light on what happened.
In cross‑examination he was asked whether to his knowledge the alarm on the gas detector had gone off before 12 March 2012. He said (ts 745):
I – I can – I obviously can't remember now, but yeah from what I've written [in my statement], yes.
... just that – yeah, just that it had gone off and that I believed it was faulty.
He was asked why he believed the unit was faulty and said:
Yeah, well, I can't remember now obviously, but would assume – I would assume that you know, that it shouldn't just go off you know, without being a situation where obviously it needs to go off, so ...
Mr Tedeschi sought permission for Mr Starcevich to refresh his memory by looking at his statement, but Mr Clyne claimed legal professional privilege and Mr Tedeschi did not press the point. (The objection might also have been sustained on the ground that the document was not made contemporaneously with the accident.)
Cross‑examination continued (ts 746):
Well, you've heard the alarm go off before 12 March 2012 haven't you? --- Ok, I – I obviously like I can't remember that now. But from when I writ (sic) my statement that yes, it was in there, so I'd assume so.
Now, what were the circumstances in which the alarm went off on the prior occasion? What did you indicate in the statement? --- Well, yeah, I mean, the only time it should go off obviously is if you're in a situation where there's low oxygen and – and anything like – maybe the compliance pit, or – yeah. Obviously I can't remember now, but from what my statement said that I've – you know, that's the only recollection I have of what's happened. I'm sticking to them, you know, I try to – you know, be honest here, so yeah, I'm – yeah, from what I can remember, yeah, it – it had gone off previously and for what reason, I don't know.
And when it went off did you bring it to the attention of someone at Allied Pumps that it had gone off? --- I honestly - yeah, I - I can't remember.
Mr Tedeschi sought to clarify (ts 747 – 748):
Before the date that the alarm went off and Mr ‑ in the room in which Mr Hooker was working, do you remember that? --- No.
Well, do you remember that you were at work in March of 2012? --- Well, not now. Yeah, but I'm - yeah, like, I know that I had a job. So ...
Yes. And you had a job at Allied Pumps? ---Yes.
...
And did you go to work every day? --- Yes.
Yes. So you were regular in your attendances at work? --- Yes. Yeah.
Now, you're aware that Mr Hooker was injured when a gas alarm went off in the operations room of March of 2012, correct? --- I had a phone call several months later, in which I was told. I didn't know at the time of the incident that anything had happened.
... But you became aware that Mr Hooker said he got injured in the operations room, when the gas alarm went off, correct? --- I can't remember who told me but, yes, I was told, I think, maybe ... maybe like three months later after ... the day of the incident ...
Now, you've referred to the gas alarm going off on another occasion. Had the gas alarm gone off before the incident involving Mr Hooker? --- I can't remember.
You can't remember or you don't want to remember? --- I can't remember. Yeah. Yeah.
Later (ts 750):
I'm putting to you, on your oath, you are the person who turned the gas alarm on, in the operations room, on 12 March 2012, is that not the truth? --- I cannot remember now. But obviously, I ‑ I - I - sorry. According to my statement, that - yes. Correct.
I found Mr Starcevich's memory loss troubling. The accident must have been a memorable event. The alarm emitted a loud, piercing sound and a number of people in the Operations Room were unhappy about it. Within about three months he was aware that there had been repercussions. And he did have a memory when he gave a witness statement. He gave no explanation for why he now has none. As with Mr Slack, I noted an unsettling reticence or guardedness in his demeanour, and his complexion deepened, particularly when he was reminded about his statement.
It is difficult to form a view as to what Mr Starcevich's evidence was, let alone its weight. Questions arise as to, first, the admissibility of the underlined passage in [83] and, second, whether his recollection that the alarm had gone off 'previously' related to one or more occasions previous to the accident or previous to making the statement. In the latter case he could have been referring to the accident itself, in which case the evidence would be irrelevant.
I find in the plaintiff's favour on both questions for the following reasons:
(i)I believe Mr Starcevich's reticence (or unease) points to a consciousness that the truth entails some embarrassment to him about his role in the matter which, in turn, points to him having an appreciation that he knows that he should have left the gas detector alone.
(ii)In terms of legal admissibility, I must take the words 'from what I remember' at face value.
Weight is another matter especially having regard to the retraction and/or contradiction in the underlined passages at [84] and [85]. Indeed, Mr Starcevich's evidence is clearly fraught and, to my mind, is not capable by itself of proving that anyone at all had prior knowledge of the faulty unit and, if so, how they acquired that knowledge. Indeed, without more, it is not possible to make a finding as to whether Mr Starcevich's memory (in his statement or his evidence) was based on personal prior knowledge (experience) of the fault or hearsay and, if the latter, when he acquired that hearsay (prior to the accident would be relevant, but not otherwise).
Mr Lebbos is a consultant process controller. He testified that he was employed by the defendant in 2012 as an electrical design engineer. His normal working hours were 9.00 am until 5.00 pm. He remembered the accident. He was sitting at his workstation with his back to the table. He does not recall seeing the gas detector lying on the table itself (ts 782):
... Red was playing around with the gas detector and when it gets set off it gives a very, very loud sound, as in incredibly loud, like, pretty much like a - like you would hear in a - if you get an alarm system tripped at home, it was ear piercing. So on - as he was doing this, every once in a while he would set it off and on one occasion - at least on one occasion, it might have been more, I turned around and told him to, in no uncertain terms, to cease the activity. Probably at least on - at least on two occasions, Michael [ie the plaintiff] would have done the same thing. It was just pretty much clowning around. And so I would've physically turned around and seen him playing around with it and told him to cut it out. And as I was working facing the wall, Michael turned around and pretty much said the same thing on at least a couple of occasions. In terms of any injury, nothing was told to me by Michael, like he felt pain or anything like that during that day. It was only the day after or the day after that that he mentioned that to me ...
Mr Lebbos said that the alarm went off 'at least five times ... as a minimum', but in cross‑examination allowed that it could have been three times.
He agreed that the alarm startled him as well as the plaintiff, who was 'upset'. He was asked what Mr Starcevich was doing with the gas detector in his hands (ts 786):
It was like a Nintendo or something. He was doing something with it. Every time one of us said something, he just ignored it and laughed and kept going.
And later (ts 789):
... the reason it went off is he was clowning around. It's pretty much that simple, it's - it wouldn't have gone off by itself because it's a gas detector, there were no gases there to trigger it. And he was triggering it, he was playing with it and he was just being silly.
And later, when questioned by myself (ts 792):
You said that Red was doing something with the detector like it was a Nintendo ... Did you actually see what he was doing with the device? --- Well - well, yes, sort of. I saw it in his hand and I saw him fiddling around with it.
Now, was that while the alarm was going off? --- No. It would've been just after it went off.
Each time? --- So when I was turning around and I saw him clowning around, he had it in his hand and he was like --- like that [and demonstrated a person using a hand‑held device]).
Unlike Mr Perera, Mr Lebbos did not mention Mr Starcevich making profane exclamations when the alarm first sounded. In my opinion the two versions are reconcilable when one takes into account the plaintiff's evidence, which connotes that Mr Starcevich said he was pranking after the second occasion. On that scenario Mr Starcevich would initially be startled like the others, but then took up an opportunity for some juvenile enjoyment.
I was reasonably impressed with Mr Lebbos' evidence for a number of reasons. It was given clearly and, apart from some doubt about how often the alarm went off, and as to whether Mr Slack was in the room (possibly because Mr Slack did not get involved when the accident occurred), he was very sure in his own mind about what happened. Next, he did not seem to have any personal investment in the matter and, to the contrary, impressed as relaxed and helpful.
I turn now to the evidence of Mr Powell. He is currently employed as the defendant's human resources, health, safety, environmental and quality manager and was in a similar role in 2012. He has had the carriage of this matter on behalf of the defendant at all material times.
Mr Powell gave evidence about procedures and the layout of the defendant's premises including the table and work stations in the Operations Room.
His office was in a separate part of the building. His normal working hours were from 8.30 am to 5.00 pm.
He said that he had no recollection of Mr Perera coming to see him on 12 March 2012 and talking about a gas alarm in the Operations Room or that it was not safe there.
As far as I could gather from the evidence, Mr Powell is a sound administrator and he was careful and helpful in his evidence. I am satisfied that he would have recalled, and testified of, a conversation with Mr Perera about this matter if such had occurred.
In cross‑examination he was asked about a report he wrote about the accident on or about 14 May 2013 (exhibit 1.375). I quote the following:
Michael Hooker incident - 12 March 2012
Open office shared by operation HSC and service personnel at time
Device – normal. MSA Altair 4X Gas detector, according to the service manager [ie Mr Slack], the device was having problems at the time, the alarm was going off every time it was turned on. It was replaced under warranty on 13 March 2013 (sic 2012) (documentation from supplier confirms this).
Mr Powell agreed (ts 770) that the passage I have emphasised refers to information given to him by Mr Slack, but he cannot recall when that occurred. Mr Slack did not specifically tell him when the alarm had been going off or when he found out about that either. I infer that it is possible that Mr Slack was speaking after the accident itself, and referencing the accident, bearing in mind the evidence about the alarm sounding two, three or more times, which would predicate it being switched on and off multiple times. But the use of the words 'every time' would suggest that Mr Slack was referring to multiple occasions, and not just the occasion when the accident occurred, some of which would necessarily have been prior to the accident after which the unit was immediately decommissioned. This provides circumstantial evidence that Mr Slack or someone else in the defendant's organisation had notice of the defect prior to the accident.
Mr Powell was not aware of any 'tag out processes' that specifically applied to the gas detector, but the defendant did have a tag‑out system.
Assessment of the evidence and findings relating to the accident
I doubt the reliability of some of the evidence of Messrs Perera, Slack and Starcevich for reasons already mentioned. However, taken with Mr Lebbos' evidence, there is common ground that lays a reliable foundation for the following findings, which I make:
(i)At approximately 2.00 pm the plaintiff and Messrs Lebbos, Kacuiba, Perera and Slack were working at their desks in the Operations Room with their backs towards the central table. Mr Starcevich came into the room and went to the table. No‑one paid him any attention as he and the other service technicians usually called in during the afternoon to liaise with Mr Kacuiba and Mr Slack about their work.
(ii)The gas detector was already lying on the table. I rely on the evidence of Messrs Slack and Perera about this. I feel that Mr Lebbos may very well have missed seeing it there, or not noticed it, since it did not concern him and (as I find in [105](iii)) it was not tagged out. The unit was faulty and awaiting collection for offsite repairs. That finding is corroborated by the fact that it was not in its case or usual place of storage.
(iii)Mr Perera's evidence that the unit was tagged out is not believable; nor was his evidence that he remonstrated with Mr Slack or Mr Powell about it. I am not satisfied that the gas detector was 'tagged out' at any stage. Nor do I accept Mr Perera's evidence about conversing with Mr Starcevich prior to the accident. No‑one else who was in a position to hear the conversation testified about it taking place. It has the same self‑serving hallmark as Mr Perera's evidence about his pre‑accident conversations with Messrs Slack and Powell and about the incident report. It is also inconsistent with his 2013 statement (see [63]).
(iv)I accept Mr Perera's evidence that the plaintiff burst into profanities when the alarm first sounded and that he was 'shaken up' (see [57). Mr Lebbos' evidence (ts 786, 789) tended differently (Mr Starcevich was being wilful) but, as I have said, I am not confident that Mr Lebbos recalled Mr Starcevich's reaction on the first occasion that the alarm sounded and instead his memory focuses on the subsequent occasion(s) when Mr Starcevich made a joke out it.
(v)A number of people remonstrated with Mr Starcevich when the alarm sounded. But he activated it at least once more, as a prank. My reasons are as follows. First, such behaviour is in accordance with his light‑hearted personality. Second, he said at the time that it was 'a joke' (as the plaintiff testified and, indeed, reiterated on a number of occasions for medical or medico‑legal purposes).
The next issue is: who was first to know of the actual fault with the alarm?
In my opinion it is difficult to accept that the faulty alarm only came to light when Mr Starcevich first switched the unit on in the Operations Room. Such a finding would predicate that there was already another fault in the unit (see [105](ii)) that did not involve the mainboard, and that the mainboard itself only failed when Mr Starcevich began fiddling with the unit. That would be an improbable coincidence. So, assuming that the mainboard had already failed, and given Mr Ogle's evidence that the alarm would have sounded whenever the unit was switched on, it follows that someone in the defendant's organisation already knew what was occurring, and that the same was reported to the proper person who made arrangements to have the unit collected for repairs. I find that such person was Mr Slack. In this respect, having regard to my doubts about Mr Slack's credibility I accept the evidence of all the other witnesses to the effect that he had responsibility for the custody and maintenance of the gas detectors.
Bearing this in mind, and Mr Slack's own evidence about knowing the unit was on the table (from which I infer that he knew that it was awaiting collection for servicing), I am satisfied on the balance of probabilities that he learned of the faulty alarm prior to the accident. That is consistent with my circumstantial reasoning at [103] above.
For the reasons given at [105] (iii) and (iv), I am not satisfied on the balance of probabilities that Mr Starcevich had prior knowledge of the fault. But it is possible given that he might have been the last person to use the device and he might have switched it on as a joke, and given the scintilla of evidence referred to at [88](ii).
Negligence
I turn now to whether the defendant was negligent in allowing personnel such as Mr Starcevich to have access to the faulty gas detector in the Operations Room.
In a case such as this involving an employment situation, the duty is uncontroversial (see MR and RC Smith Pty Ltd v Wyatt [No 2] [2012] WASCA 110 [42]
The duty of an employer to his employee is to take reasonable care to avoid exposing the employee to unnecessary risks of injury. In deciding whether there has been a breach of that duty, the first question is whether a reasonable person in the employer's position would have foreseen that its conduct or workplace exposed the employee, or a class of persons including the employee, to a risk of injury. A risk which is not far-fetched or fanciful is real and therefore foreseeable.
The duty of care is not an absolute duty to prevent or harm (Vairy v Wyong Shire Council [2005] HCA 62). The duty is of a 'reasonably prudent employer' and it is not a requirement to 'safeguard a worker completely from all perils'. The response to a foreseeable risk is to be judged by the criterion of reasonableness, and not some more stringent requirement of prevention. (Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41 [18]).
A court is required to 'accurately identify the actual risk of injury faced by the employee' in order to correctly identify a reasonable response: (Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 [59]).
The question whether reasonable care was exercised is to be judged prospectively, and not retrospectively, asking whether the defendant's actions could have prevented the plaintiff's injury (Dederer [65]).
Three questions arise in this case. First, was it reasonably foreseeable that someone would switch the gas detector on as it lay on the table in the Operations Room and thus activate the alarm? Second, could personal injury to someone be reasonably foreseen in those circumstances? Third, what measures could the defendant have reasonably taken to eliminate that risk?
As to the first question, in my opinion it was reasonably foreseeable to an employer who knew of the faulty alarm that it might be triggered without warning, especially by someone in the Operations Room. Servicemen (including Mr Starcevich) had legitimate reasons to switch it on in the Operations Room, for example, to check that it was charged and/or to carry out a 'bump' test.
As to the second question, Mr Clyne submitted that the presence of the gas detector (faulty or otherwise) in the Operations Room did not present a reasonably foreseeable risk of injury. He submitted that it was not a dangerous piece of equipment and, indeed, was designed to be worn close to the person and, as such, expose wearers to the sudden or startling sound of the alarm. He submitted that any risk presented was no different from any other object in the workplace which could evoke a startle response, for example, the sound of the Operations Room door slamming (which was referred to by Mr Powell at ts 778).
In my opinion Mr Clyne's submissions did not address the particular issue, namely the hazard presented by the alarm if the gas detector was faulty. Obviously, all sorts of objects could cause a sudden loud noise in the Operations Room if mishandled and could startle someone who was not expecting it. The example of the slamming door is one, a dropped book or tool could be another. And, depending on the facts, the employer might be liable in negligence for its own omissions or vicariously for the negligence of the actual culprit.
As regards the risk associated with the gas detector alarm, I take into account the following:
(i)The plaintiff and others worked with their backs to the table and thus the gas detector alarm.
(ii)The alarm emitted an extremely loud and uncomfortable noise. Whatever may be said of the sounds of falling and slamming objects, I am not satisfied that they were commensurate with the alarm in this case.
(iii)The sound of the alarm was completely alien to the office environment and, thus, an extremely unexpected noise. It was not of a kind that might be swiftly rationalised by the mind of a hearer (such as a falling tool or slamming door).
(iv)It is not to the point that the alarm was designed to startle workers because that was limited to a specific context, namely a sudden life‑threatening emergency. In those circumstances the wearer was supposed to get a fright and immediately understand its significance, and the risk of resultant injury was justified compared to the risk of asphyxiation. The startle response might reasonably be expected to be quite different in a person who was exposed to the alarm in a benign office context (as occurred here).
Whilst the Operations Room was not a place of silent and contemplative work (as tendentiously contended by the plaintiff: see [46]), it was most definitely not a place in which anyone would expect the alarm to be activated. In my opinion the magnitude and type of startle response evinced by the plaintiff was reasonably foreseeable, as was the risk that he would suffer musculo‑skeletal harm of the whiplash kind.
I turn now to whether the duty of care was breached.
It is necessary to identify the measures that the defendant could have taken to minimise the risk of harm. In this case this is not a matter for expert evidence. Based on the lay evidence and/or common sense, I find that one could conceive of many possible measures, including tagging the unit out or placing it in an inaccessible place, neither of which was done.
Therefore, I find that the defendant breached its duty of care to the plaintiff and is liable for the injuries thereby caused. In short, someone in a position of responsibility left a defective alarm in an office environment where it could foreseeably be activated without warning to others and physically startle them enough to provoke some form of musculo‑skeletal injury.
Given my finding as to Mr Starcevich's probable lack of knowledge of the defective alarm, it is not necessary to consider the plaintiff's alternative case based on vicarious liability.
I turn now to the assessment of the plaintiff's damages.
A comment on my treatment of the medical and expert evidence
The plaintiff's case is multi‑factorial in terms of aetiology and diagnostic and prognostic issues. Therefore, much of the expert evidence is relevant to multiple issues and it has not been possible to adopt an orthodox, syllogistic approach. In order to mitigate this I have frequently made interim comments and findings as I deal with the evidence. Unless the context suggests otherwise, such comments have been informed by my assessment of all of the evidence and my analysis and findings as a whole wherever they appear in these reasons. I have also been obliged to indulge in relatively excessive use of emphasis (underlining, mostly) to flag‑post evidence that forms part of any broad thematic reasoning.
By consent, a large body of medical evidence was adduced in documentary form. I have used that evidence for all relevant purposes, both factual and opinion (where qualified), and construed it and attributed weight as appropriate.
Evidence was not adduced from a number of potential witnesses who were ostensibly available to both parties (eg, the physiotherapists at Parkwood Physiotherapy). I have put that omission to one side as carrying no weight either way; nor have I speculated about what might have been adduced.
For ease of reference, when quoting from clinical notes I have translated shorthand entries as opposed to setting them out verbatim. Intercalations and emphases are mine unless stated otherwise.
I have annexed a 'meta‑glossary' of the meanings of some medical and technical words and terms as I have used them based upon the evidence. They have been italicised where they first appear hereafter in these reasons. The glossary forms part of these reasons and the meanings inform my use of words and phrases, unless the context makes clear.
The pleadings
Pursuant to an amended statement of claim (pars 26 and 27) the plaintiff pleads that he suffered the following injuries as a result of the accident:
(i)compression of the left C4/5 discs and compromise of both exiting nerve roots;
(ii)proximal nerve branch pinch given crowding of the nerves C4/5 and C5/6;
(iii)injury to C4/5 facet joints bilaterally;
(iv)injury to C5/C6 discs or the facet joints and sensory impairment at left C5/C6;
(v)neuropathic pain due to permanent nerve damage at C5 and the nerve branches in his cervical spine with Central Sensitisation;
(vi)psychological injury comprising Major Depression;
(vii)aggravation pre‑existing injury to his lumbar spine at L5/S1;
(viii)aggravation of any pre‑existing asymptomatic degeneration in his cervical, thoracic or lumbar spine;
(ix)chronic pain syndrome in his cervical, thoracic and lumbar spine;
(x)marked muscular deconditioning;
(xi)significant scarring of the neck, thoracic and lumbar spine;
(xii)dyspepsia;
(xiii)anxiety and fear avoidance behaviour;
(xiv)allodynia;
(xv)hyperpathia;
(xvi)general over‑activation of the intrinsic muscles over the anterior cervical spine with a prominent tenderness at C2/3/4/5 greater on the left and around C3/4/5 less on the right.
I have not included other pleaded matters which are more in the nature of symptoms rather than diagnoses proven in their own right.
The defence is summarised at [16] – [19].
Scans and investigations
It is helpful to commence with the evidence of scans and tests since they provide reliable objective evidence.
On 25 May 2012 the plaintiff had x-rays of the cervical spine which were inconclusive.
An MRI of the cervical spine on 4 September 2012 relevantly disclosed (exhibit 126).
C3/4: Minimal disc osteophyte complex but no canal or foraminal stenosis.
C4/5: Mild loss of disc height. Broad-based disc osteophyte complex indents the ventral thecal sac and results in mild central canal stenosis. Moderate left and mild right foraminal stenosis secondary to uncovertebral spurring. Mild left C4/5 facet joint osteoarthritis.
C5/6: Broad-based disc osteophyte complex minimally indents the ventral thecal sac but does not result in central canal stenosis. There is a subtle posterior annular fissure. Mild right foraminal narrowing secondary to uncovertebral spurring.
...
Impression:
Mild central canal stenosis at C4/5. There is also moderate left foraminal stenosis, in position to potentially impinge the left C5 nerve root.
On 7 December 2012 Dr Peter Silbert (neurologist) carried out EMG tests on the plaintiff's left arm. According to his report (exhibit 347), the test was normal, meaning no frank cervical nerve damage was implicated.
On 12 December 2012 Dr Peter Robbins performed a bone scan. His conclusions were as follows (exhibit 145):
(i)There is low grade activity in the atlanto-occipital articulations and the C5/6 facet joint on the left. Appearances also suggest early degenerative disc changes at C2/3, C4/5 and C5/6.
(ii)In the thoracic region, there are degenerative disc changes at T2/3 on the right and moderately active facet arthropathy at the T5/6 bilaterally.
(iii)There has been a previous fusion at L5/S1 with low‑grade remodelling and left-sided facet arthropathy at this level. No active lumbar facet arthropathy is seen elsewhere.
(iv)There are degenerative changes in the shoulder girdle as described.
Professor Mark Kahangure performed an MRI scan of the cervical spine on 13 December 2012 (exhibit 146). His conclusion was:
Disc degeneration with an oestophytic disc ridge at C4/5 with bilateral uncovertebral oestophytic spurring with the spurs abutting the exiting C5 roots. Minor disc bulges at C3/4 and C5/6. No other abnormal feature shown.
Dr Miles interpreted this scan as showing a 'disc protrusion/osteophyte complex' at C4/5 (exhibits 168, 341, ts 299).
Dr Ashish Chawla performed an MRI of the cervical spine on 28 May 2014. The images at the C4/5 level were degraded due to the artificial disc implant. Otherwise, his opinion was (exhibit 201):
Compared to the MRI study of 13 December 2012, there is suggestion of the small right posterolateral disc extrusion [at C3/4] at the entrance of the intervertebral foramen … Narrowing of the right intervertebral neural foramen has progressed compared to previously. … [There was] also suggestion of probable minimal impingement on the exiting C6 nerve root, right side more than the left side.
These findings do not suggest any significant cervical pathology.
Dr Chawla performed an MRI of the lumbar and thoracic spine on 27 June 2014 (exhibit 205). Apart from the pre-existing spinal fusion at L5/S1 level, he noted nothing unusual. There was minimal left L5/S1 facet degeneration. Degenerative disc changes were noted in the thoracic spine predominately at T7/8 to T9/10 levels. There was minimal to mild facet degeneration at multiple levels. There was mild anterior wedging of T7 and T8 vertebral bodies which was likely related to an old compression injury. These findings do not suggest any significant thoracic or lumbar pathology.
An X-ray on 7 January 2015 in relation to the cervico‑thoracic spine revealed nothing additional.
The evidence about the plaintiff's treatment and rehabilitation
The plaintiff's demeanour and credibility
As a starting point, and based on the evidence as a whole and the defined issues, I have no hesitation in finding that the plaintiff suffered a cervical injury, which gradually worsened through 2012. At the very least, this (the primary injury) comprised an acute exacerbation of existing degenerative change at the C4/5 level, namely a broad‑based disc protrusion/osteophyte complex impinging the left C5 nerve root, with facet joint inflammation and muscle spasm (see [140] and [363] ‑ [365]), and low grade, left C5/6 facet joint inflammation (see [138](i)). The full extent of the primary injury and its organic sequelae are in dispute.
Further, having regard to the issues, the opinions of the experts and my findings, I accept that the plaintiff has always endeavoured to be an honest historian and witness. Similarly, I proceed on the basis that no somatic disorder is involved. In layman's terms, he is genuine. Save for limited instances, I have rejected terms such as 'exaggeration' as being connotative of malingering (the conscious feigning of behaviour for gain) which is contra‑indicated by the evidence.
Nevertheless, the plaintiff has demonstrated abnormal illness behaviour. I have referred to and accepted extensive expert evidence and provided numerous examples.
Further, I have come to the conclusion that at all material times the plaintiff has had a propensity to overreact to, and misconstrue, events and information, and to reconstruct or selectively accept, distrust or ignore medical and therapeutic opinions. In particular, I have found that he has become biased in favour of a false construct (a fixed idea) to the effect that he really is as organically sick and disabled as he presents (see Dr Goucke at [535]). As a result of these matters, his mind has become closed to contrary or counter‑intuitive (to him) opinions and advice (including that of his own treating doctors) and, in some areas, he places excessive weight on false constructs and pessimistic ideas. Regrettably his partner, Ms Belinda McClurg, has been unconsciously co‑opted to such thinking as well (see [227](v)).
I have resolved to refer to the manifestations of these propensities and traits as 'cognitive distortions'. But, I stress that I have employed the term in a non‑technical way.
For reasons which will become apparent, I have proceeded on the basis that the abnormal illness behaviour and allied propensities and traits are emanations of fear avoidance behaviour and depression and anxiety caused by his injuries, prognosis and litigation. That is to say, they are of psychological and psychiatric aetiology and symptoms of the same.
Based on my findings, by the time the plaintiff's organic injuries were properly understood and surgery decided upon (approximately 12 months after the accident) his cognitive distortions and psychological behaviours were entrenched.
I have found that the cognitive distortions had two important consequences:
(i)The plaintiff did not avail himself of rehabilitative programmes which would have been beneficial to him;
(ii)He has not always been a reliable historian in medical consultations and interviews, or in his evidence which has been retrospectively imbued with a catastrophic narrative that was not always apparent at the time (see [281] for example). I stress that this does not necessarily entail that such history was always false but it does mean that in many cases I have been obliged to place it to one side or limit its relevance (eg, as only speaking to the plaintiff's cognitive distortions) under the Subramaniam rule (see Subramaniam v Public Prosecutor [1956] 1 WLR 965).
The plaintiff exhibited another unusual but relevant tendency early in his evidence. He wanted to make comments when he was called to testify (see ts 48, 51 and 73, 75). One must make allowance for his lack of familiarity as to courtroom procedure, and perhaps he failed to appreciate the distinction between a pre‑trial conference and the trial, but I formed a provisional impression of a person who is prone to obsessive behaviour and, in particular, to micromanaging this case.
Later evidence showed that my impression was prescient. Ms McClurg said something similar (in his presence) to Dr Ng (exhibit 224, page 10) and such was also evident to varying degrees to others, notably Drs Holthouse and Hammersley. He frequently phoned or wrote to doctors querying their certificates and reports. He insisted on making audio recordings of interviews with the defendant's experts Professor Sikorski and Dr Goucke. To be sure, there was a tension between the views of Professor Sikorski and some of the plaintiff's treating doctors which bordered on adversarial. Nevertheless, even by the usages of medico‑legal cases, the plaintiff has evidenced an unhealthy partiality and scepticism towards perceived non‑conformist opinions (including those of his own doctors).
I have settled on an approach which predicates a total loss for five years (for which the 6% multiplier is 226.3) which predicates a very substantial period of rehabilitation, transitioning to partial loss to age 70. The award is $564,514.20 calculated as follows:
$324,514 ($1,434 x 226.3) + $40,000 for lost superannuation matters in the first five years (based on exhibit 90) + $200,000 thereafter (global sum).
The award represents 46% of the total loss and in my assessment is reasonable based on long-term favourable prospects and contingencies, including the need for a higher than usual allowance for vicissitudes because of the possibility that the plaintiff would have had regular periods of discretionary unemployment.
Past medical expenses
The defendant's insurer has paid medical and allied expenses in the sum of $99,522.35.
The plaintiff claims an indemnity payable to Medicare Australia in relation to other medical expenses in the sum of $10,890.85. The defendant accepts that item save for a sum of $507.70 in respect of some payments for which there is no evidence. The award is therefore $10,383.15.
The plaintiff claims an indemnity to his private health insurer (HBF) in the sum of $148,384.43.
The defendant disputes a handful of items worth a few hundred dollars between 13 and 22 August 2013. Having regard to their contemporaneity with the disc surgery, I am satisfied that such expenses are compensable. The award is $148,384.43.
The plaintiff claims reimbursement of treatment expenses paid to Dr Suter in the sum of $6,726.17. After allowance for expenses included in the amounts paid by the defendant (see [674]) the balance is $2,570, of which Medicare paid $1,245. The award is $1,325.
The plaintiff claims reimbursement of treatment expenses to Parkwood Physiotherapy in the sum of $2,825.50, which is not opposed and is therefore allowed.
The total award for past medical expenses is: $262,440.43 ($99,522.35 + $10,383.15+ $148,384.43 + $1,325.00 + $2,825.50).
Past and future travel expenses
The parties have agreed a modest global sum of $5,000 for past and future travel expenses which reflects his ability to take care of his own transport (ie, drive).
Future medical and pharmaceutical expenses
The plaintiff claims future medical expenses for the remainder of his life.
I have decided that a differential approach is necessary for differing contingencies.
The plaintiff claims for 12 GP consultations per annum at $80 per consultation ($18.46 per week). The defendant contends that $76.30 is appropriate and disputes the number of consultations.
I accept that $80 per consultation is appropriate, but otherwise accept the defendant's submission. Having regard to my findings as to the plaintiff's prognosis, he will not require monthly consultations with his GP. The plaintiff is very likely to need to see his doctor about injury management on a very occasional basis after an initial (front‑loaded) period of care.
Therefore, I assess this item as follows:
$18.46/week x 50% x 674.3 = $6,223.78
The plaintiff contends that he will be required to consult with specialists at an average cost of $220 per consultation (agreed by the defendant) three times per annum ($12.69 per week). Again, there should be a discount for contingencies for the same reasons as at [685] and damages are assessed as:
$12.69 x 50% x 674.3 = $4,278.43
The plaintiff claims $2,925 for consulting with Dr Brian Suter. That sum is very modest having regard to my findings. I feel that it reflects the lack of weight which the plaintiff places upon non‑organic factors. I propose to increase it to $8,000 it with no discount for contingencies. The increase will also help fund additional psychiatric appointments.
The plaintiff also claims for ongoing management of his implanted nerve stimulators. The battery will need changing every 15 to 20 years at an estimated cost of $25,000 each. The total claim is $29,550 which should be allowed with no discount for contingencies because of the important role that the stimulators have had, and will continue to have, in the plaintiff's pain management and thus overall rehabilitation and improved functionality.
The plaintiff claims for two sessions of hydrotherapy or Pilates per week and a massage once a month ($88 per week x 674.3).
The defendant disputes this item because hydrotherapy and allied therapies have provided no benefit in the past. I accept that submission save for the period between 2015 to 2017 for reasons that I have mentioned earlier. I have found that it is likely that the plaintiff will in future effectively participate in physiotherapy of some kind as a means of recovering functionality and maintaining it and I allow for the same (or allied therapy) for life. Given that the plaintiff complains of hypersensitivity to light palpation the claim for one massage per month under present circumstances is unrealistic (and illustrates the underlying inconsistency of his contentions). There should be a discount for contingencies because I do not envisage the plaintiff needing two sessions per week (104 per annum) for life. In order to reflect a front-loaded effort as part of a holistic treatment plan, the discount is 30%. The award is $33,984.72 ($72 x 674.3 x 70%).
The plaintiff seeks an award for a radiological investigation once every two years ($1,685). There is no need for any further radiological investigations and this item is not allowed.
The plaintiff claims a long list of pharmaceutical products for the rest of his life, namely Cymbalta, Panadeine Forte, Jurnista, Lyrica, Palexia, Dilaudid and physio cream. The total cost is $140.91 per week which equates to $95,015.61 for the balance of his life.
Based on my earlier findings, I am not satisfied that the plaintiff will need all of these medications for the balance of his life. On the contrary, in the expectation that holistic psychological, psychiatric and physical therapy will produce significant gains in functionality and mitigation of symptoms, and remembering that the neurostimulators are to be provided for life, it is difficult to see why any substantial allowance should be made at all for these medicines in the longer term. On the other hand, the plaintiff will require two augmented psychiatric medicines for around two years (see [651]) which have not been claimed (again illustrating the blind-spot for non‑organic factors). Overall, I assess this claim on the basis that every item should be allowed, but with a 50% deduction for contingencies, subject to the weekly rate to which I now turn.
The defendant submits that the allowance should be $38.74 per week taking into account the PBS Safety Net Scheme (See Watson v Fung [2005] WADC 168 and Tonkin v Strickland [2007] WADC 144). I accept that submission. Accordingly, the allowance for future medicines is calculated as follows:
$38.74 x 674.3 x 50% = $13,061.19
The total award for future medical expenses is $95,048.12 ($6,223.78 + $4,278.43 + $8,000.00 + $29,500 + $33,984.72 + $13,061.19).
Past and future gratuitous services
There is no dispute that because of his injuries the plaintiff has received assistance from his partner Ms McClurg and from his eldest daughter in respect of a number of ADL's that he would normally perform himself.
The plaintiff claims an average of 14 hours per week from the accident up to the date of the assessment at an hourly rate of $32.44. This is justifiable and therefore damages are awarded as follows:
$32.44 x 14 x 308 = $139,881.28
Interest should be allowed in the sum of $24,842.91 ($139,881.28 x 3% x 5.92).
The plaintiff claims 20 hours per week for future gratuitous services. I am unable to see the evidentiary reason for an increase on the past allowance and, indeed, based on my findings there is a real prospect that the need will substantially decrease. Having said that, the availability of paid services helps to conserve energy and wellness and thus promotes other activities, such as paid employment.
Thus, the award is as follows:
$32.44 x 14 x 674.3 x 50% = $153,120.04
General damages
The plaintiff's submissions in relation to general damages for pain and suffering and the loss of amenities of life predicate a number of factors. As to the past, reference is made to six years of pain and suffering including psychiatric and psychological symptoms, multiple medical procedures and the near complete loss of his ability to partake in sporting, recreational and social activities, plus the sedentary and passive nature of his intimate and domestic life. As to the future, it is submitted that these impairments will continue. The suggested award is $175,000.
As to the past, I commence with the proposition that the plaintiff suffered a serious neck injury. The pre‑operative status quo was painful and debilitating. Post‑surgically a constellation of secondary symptoms continued which brought about a more or less continuous state of multi‑faceted pain. But, the level varied and with the assistance of the neurostimulators and various medications the worst of it was controlled for most of the time. Indeed, such was the purpose of the splinting.
From a purely physical point of view, I find that the worst aspect of the plaintiff's symptomatic experience since the surgery in August 2013 has been his inability to work (which he enjoyed) and participate in ADL's in the sense that he has been immobile from a functional point of view but not necessarily disabled by pain.
He also suffered psychiatrically and, regrettably, his depression was not adequately treated.
These matters diminished his ability to enjoy normal daily life in a number of domains and in particular took a toll on his ability to participate in domestic, family and recreational activities and placed considerable strain on his intimate relationship.
Some allowance should be made for scarring at the site of the 2014 back surgeries (shown in exhibit 280), but there is no evidence that these have caused any cosmetic distress or physical problems.
In this particular case I have found it helpful to proceed on the basis that the plaintiff's loss to date covers the worst of his pain and reduced functionality.
As to the future, I am satisfied on the evidence that there will be improvement, the plaintiff will be able to do many more ADL's and much of his long‑term psychological and psychiatric stress will be removed. He will not enjoy life to the fullest as he did before the accident, but his opportunities and abilities will improve. In short, in my assessment over time the worst will be behind him. He will live with restrictions but by this award will have provision (such as gratuitous services) to enable him to optimise opportunities without aggravating his symptoms.
I allow $135,000.
Summary of damages
(i)
Past loss of earnings including superannuation contributions and loss of net investment returns on past superannuation
$530,643.98
(ii)
Interest on past loss of earnings and superannuation
$65,873.44
(iii)
Future loss of earnings including future loss of superannuation and future loss of net investment returns on superannuation
$564,514.20
(iv)
Past medical expenses
$262,440.43
(v)
Past and future travel expenses
$5,000.00
(vi)
Future medical expenses
$95,048.12
(vii)
Past gratuitous services
$139,881.28
(viii)
Interest on past gratuitous services
$24,842.91
(ix)
Future gratuitous services
$153,120.04
(x)
General Damages
$135,000.00
Total
$1,976,364.40
Conclusion
For these reasons I find that there should be judgment for the plaintiff in the sum of $1,976,364.40. He will be obliged to reimburse various amounts to the defendant's insurer, Medicare and HBF from that sum.
META-GLOSSARY
abnormal illness behaviour a symptom of fear avoidance behaviour acute
a condition which begins abruptly
aetiology
the study of the factors which caused a disease or illness
allodynia
a burning, unpleasant sensation provoked by stimulation of the skin; evidence of neuropathic pain (Dr Holthouse ts 529 ‑ 530)
annular
the outer circumference of a spinal disc
arthropathy
a disease or illness affecting a joint
axial
pertaining to the spine
central canal
the tubular space in the centre of the spine
central hypersensitisation (CHS)
a neuro-endocrinal condition in which nociceptive signals are abnormally activated, leading to abnormal pain patterns.
discogenic
pertaining to a spinal disc
dysaesthesia
numbness associated with a spinal injury
fear avoidance behaviour
a maladaptive psychological condition in which a patient believes that he will make his condition worse by movement
foramen
the opening through which a nerve exits a spinal vertebra
functional
depending on context describing:
(i) behaviours that are not definable by physical (organic) evidence
or
(ii) performance of movement and ADL's
holistic treatment
co-ordinated, multi-disciplinary treatment
mechanical/musculo‑skeletal
describing something which is organic other than CHS
neuropathic
describing symptoms of pain associated with nerve damage or illness
psychiatry
the medical science of mental disorders
psychology
the science of human behaviour
radiculopathy
describing referred symptoms from a disease or injury of a nerve
stenosis
stenosis entails a narrowing of an opening or canal. Foraminal stenosis therefore involves narrowing of the nerve passageways in the spinal structure
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ED
ASSOCIATE TO JUDGE MCCANN12 OCTOBER 2018
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