Houston v Pioneer Concrete (Queensland) Pty Ltd
[1999] QSC 199
•24 August 1999
IN THE SUPREME COURT
OF QUEENSLAND No. 10753 of 1996
Brisbane
[Houston v Pioneer Concrete (Queensland) Pty Ltd]
BETWEEN:
RANALD GAVIN HOUSTON
Plaintiff
AND:
PIONEER CONCRETE (QUEENSLAND) PTY LTD
Defendant
REASONS FOR JUDGMENT - CHESTERMAN J
Judgment delivered 24 August 1999
CATCHWORDS: NEGLIGENCE - master and servant - safe system of work - proof - weight and credibility of witnesses - damages - whether plaintiff injured as a result of deficiencies in the system of work at the quarry at which the plaintiff was employed.
DAMAGES - assessment of damages - pain and suffering - future economic loss - whether plaintiff’s chronic pain syndrome prevented him from engaging in any gainful employment.
Counsel:Mr G Mullins for the plaintiff
Mr M O’Sullivan for the defendant
Solicitors:Phillips Fox as town agents for Attwood Marshall for the plaintiff
W H Tutt & Quinlan for the defendant
Hearing Date: 27-30 July, 2 & 5 August 1999
IN THE SUPREME COURT
OF QUEENSLAND No. 10753 of 1996
Brisbane
BETWEEN:
RANALD GAVIN HOUSTON
Plaintiff
AND:
PIONEER CONCRETE (QUEENSLAND) PTY LTD
Defendant
REASONS FOR JUDGMENT - CHESTERMAN J
Judgment delivered 24 August 1999
At the beginning of this hard fought case the defendant contested all of the plaintiff’s claims: that the system of work in which the plaintiff was engaged was negligent; that the plaintiff was injured as a consequence of deficiencies in that system; and that his disability was severe. At the commencement of addresses the defendant limited its dispute to the second contest only, though it does take issue with the extent to which the plaintiff’s injuries will produce future disability.
The defendant operated a quarry at Wolfdene which is in the hills to the north-west of the Gold Coast. The plaintiff was employed to operate the primary crusher which is a mechanism consisting of two large steel jaws, one of which is fixed and the other of which moves. The moving jaw pivots on a swing stock, which is fixed to the back of the jaw, near the top. An offcentric pitman arm is connected by toggles to the lower part of the moving jaw. The design of the pitman arm and toggles is such that the offcentric motion is transferred into a horizontal motion of the toggles, which has the effect of swinging the lower part of the moving jaw towards and away from the lower part of the fixed jaw in a constant cycle. The fixed jaw is vertical but the moving jaw is angled and inclines away from the other so that at the top there is a void between the two jaws which is called the rockbox. Boulders taken from the quarry are dumped into a hopper from where they roll down a vibrating chute into the rockbox. They are crushed by the action of the moving jaw forcing them against the fixed jaw, and fall in smaller particles onto a conveyor belt. The face of each jaw is heavily ribbed giving them a deep corrugated effect. This facilitates the exertion of pressure on the face of the rocks. At each end of the pitman shaft behind the moving jaw is a large rotating drive wheel which provides energy and motion to the shaft and, via the toggles, to the jaw.
The vibrating chute slopes downwards to the rockbox. It vibrates so as to propel the boulders down to the edge where they fall into the void and are crushed.
The crusher operator sits in a control room located at a level a little higher than the top of the jaws and on the side opposite to the hopper and chute. He has a view of the rocks moving down the chute and can see part way into the rockbox. A series of steel ladders and catwalks connect the operating room to the rockbox, the top of the moving jaw and the hopper beyond.
On occasions a rock will not yield to the pressure exerted on it and will remain wedged between the jaws. This becomes apparent to the operator who is obliged to deal with the situation.
The issue of liability turns upon the system devised by the defendant for clearing a blockage from the jaws and, more fundamentally, whether the plaintiff suffered an injury in the performance of clearing a blockage in accordance with the system.
The operator was provided with a wedge made from mild steel. Attached to it was a chain at the other end of which was a steel loop which served as a handle. The total weight of the wedge, chain and handle was said by the plaintiff and his witness to be about 40 kilograms and by the defendant’s witnesses to be about 15 kilograms. The operator would stand somewhere (the precise position was disputed) near the top of the swing stock at the back of the moving jaw. He would lean forward over a steel parapet welded to surrounding supports. The parapet was above but not connected to the moving jaw. Its function was to prevent rocks dislodging over the back of the rockbox and into the mechanism of the pitman arm and drive wheels. The operator would lower the wedge until it was between the rock and the ribs of the jaw. The evident purpose of the manoeuvre was to concentrate the crushing pressure of the jaws onto a small surface of the rock thereby causing it to fracture into smaller parts and fall onto the conveyor belt.
The plaintiff’s case is that at about 5:30 pm on 23 June 1994 he had gone to break a rock which was blocking the jaws. He had lowered the wedge which had proved effective in breaking the rock. His task was almost complete when another rock fell from the chute into the void, striking the wedge and forcing it violently downwards. The plaintiff did not see the rock fall and was unprepared for the shock. He was pulled forward over the parapet. His feet were lifted from the platform on which he stood and his back twisted. He felt immediate severe pain in his back, neck and shoulders.
The plaintiff’s description of the procedure he had been instructed to follow when clearing a blockage was that he would sound a siren to alert the other quarry employees of the blockage; turn off the vibrating chute to prevent further boulders moving down to the rockbox and then go to the jaws and, utilising the wedge, break up the rock. If the particular rock proved obdurate, and the operator could not fracture it quickly with the aid of the wedge, another worker would come to assist. No particular employee was designated for this task. When the siren sounded the other operations in the quarry would stop. Truck drivers and other operators would watch the primary crusher operator attempt to clear the blockage. If, after a few moments, the blockage had not been cleared, one of them would go to help. Sometimes more assistance would be needed, but these occasions were rare. Only one person at a time could use the wedge. If it was efficacious in breaking the rock there would be nothing for a second man to do. If the rock could not be broken with the wedge, other measures had to be resorted to which could accommodate additional labour.
The defendant had a slightly different description of the designated procedure. Mr Seymour, the defendant’s quarry manager, said that the primary crusher operator, having sounded the siren, should wait for assistance to arrive before attempting to clear the blockage. He professed to be ignorant of any occasion on which the plaintiff, or any other operator of the primary crusher, ignored the directive and proceeded to use the wedge to clear a blockage before assistance had arrived. Other employees, however, Mr Griffey, Mr Graham and Mr Patterson accepted that, initially, the primary crusher operator would attempt to clear a blockage on his own. Loyally they all confirmed that Mr Seymour did not know of this persistent and conspicuous breach of the defendant’s procedures.
I have severe reservations about the reliability and, indeed, the honesty of Mr Seymour’s evidence. It was significant that it differed from important matters of detail put to the plaintiff in cross-examination. Every divergence favoured the defendant. I formed the strong impression that Mr Seymour was not prepared to accept any criticism of the manner in which quarrying operations under his control had been conducted. The “two man rule” is an example. I accept the plaintiff’s evidence which was essentially corroborated by Griffey, Graham and Patterson that the operator would attend alone to the blockage and assistance would be forthcoming only when the operator’s attempts proved unsuccessful.
The defendant, by its counsel, conceded that if the plaintiff were permitted to remove a blockage in the crusher without a co-worker, the use of the wedge would lead to the plaintiff being exposed to a risk of injury from a stray rock and that such an occurrence was foreseeable. The presence of the second workman while the operator attempted to break up the rock with the wedge would have removed or at least substantially reduced that risk. The co-worker could have watched the chute and observed if a rock might fall into the void while the operator was concentrating on positioning the wedge. A warning could have been given in time for the operator to drop the wedge or move it out of harm’s way.
Mr Seymour’s evidence that the defendant insisted upon the presence of a second man is a sufficient concession that such a system was a reasonable response to the foreseeable risk that could have been achieved without particular inconvenience or cost. I am satisfied that there was no such system and that not to have adopted such a system was negligent. The defendant has in fact adopted a different method of dealing with blockages. It was introduced shortly after the plaintiff’s complaint of injury, though it is said the new method was not a consequence of his complaint. A hydraulic rock breaker has been installed on a braced steel tower at about the level of the top of the rockbox. It consists of a hydraulically powered drill fixed to the end of an adjustable and moveable boom. It is controlled by levers. The operator, having observed a blockage, moves from the control room to the rock breaker and manoeuvrers it into the rockbox where the drill punctures and fractures the boulder caught between the jaws.
A similar rock breaker had been installed at another quarry owned by the defendant prior to the plaintiff’s injury. Mr Seymour had seen it there towards the end of 1993. The defendant did not lead any evidence from those of its employees who had devised the system. Nothing is known of the time at which the rock breaker was thought of or when such tools became generally available. Nor was any information given as to why it was thought appropriate to install one at one quarry owned by the defendant but not at others.
I accept Dr Coyle’s evidence that such implements were available prior to the plaintiff’s injury and that, while more commonly found on mobile machinery used at the base of quarry faces, the adaptation of the breaker to a static position required little imagination and was within the competence of a tradesman.
I am satisfied that the provision of an hydraulic rock breaker was a reasonably practicable alternative system of work to that which the defendant had in place. Such a rock breaker would have reduced or eliminated the risk of injury to which the plaintiff was exposed. Failing to provide such an alternative was negligent: see Nelson v. John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214-5.
The defendant’s real challenge on liability is that the plaintiff should be disbelieved when he says he was injured in the manner described. It advances seven reasons for its contention that the plaintiff has lied about the cause of the severe disability which the defendant, now, accepts is genuine. They are:
(i)there is no corroborative witness for the plaintiff’s account;
(ii)the plaintiff overstated the weight of the wedge;
(iii)the plaintiff misstated the means by which the operator had access to the rockbox to lower the wedge, thereby making the task appear far more dangerous than it was;
(iv)the plaintiff wrongly asserted that the operator was discouraged from dropping the wedge in the event something went wrong in the process of clearing a blockage;
(v)the plaintiff did not report his injury to his foreman, Mr Graham, until the following morning, despite claiming to have done so at 5:30 pm on the day of the incident;
(vi)the description of the incident first given by the plaintiff to Mr Seymour was inconsistent with his later description of what happened;
(vii)the plaintiff was observed to have a stiff back and neck on the day before the alleged incident.
It is necessary to deal with these matters in turn.
My impression of the plaintiff was that he endeavoured to give a careful and accurate account of his accident and of its effects on him. He was rigorously cross-examined. It was put to him, in effect, that he was not injured at all, that he certainly was not injured by an accident in the workplace, that the defendant’s system was safe and that he grossly exaggerated his symptoms. As I have mentioned the defendant now concedes that the plaintiff is severely disabled and that its system of work was unsafe. It adduces no evidence that the plaintiff was injured other than in the manner he designates but it invites the court to disbelieve the plaintiff on a circumstantial basis. My opinion of the plaintiff as an historian was favourable. I thought he was truthful.
It is not possible to know what the wedge weighed. None of them has been kept since the defendant changed its method of dealing with blockages. The plaintiff and Mr Dubbleman estimated the weight at 40 kilograms. Mr Dubbleman made an attempt to compare its weight with that of a known object. The defendant’s witnesses uniformly thought the wedge was much lighter. Estimating weight is a difficult task. Remembering some years later how much an object weighed is much more so. I am inclined to think that the wedge probably weighed closer to the defendant’s estimate only because a wedge of 40 kilograms would have been quite difficult to manoeuvre. I have no real confidence in that observation and I am not prepared to infer from it that the plaintiff sought to mislead the court.
The next matter has more significance. The plaintiff’s account, which was corroborated by Mr Dubbleman, was that the operator was required to stand on the swing stock which is the protective covering for the cylindrical pivot on which the moving jaw swung. The casing was slightly curved and it, as part of the jaw, moved slightly with the pivoting motion. As a platform the top of the swing stock was probably adequate for the operator but behind and below were the large drive wheels and the offcentrically rotating pitman arm. Should an operator fall or stumble backwards while standing on the swing stock he would fall into or between those moving mechanisms with every chance of being horribly mutilated or killed. The defendant’s case was the a catwalk had been erected over the swing stock on which the operator could stand while lowering the wedge. The catwalk had a rail behind to prevent the operator overbalancing. It had no rail in front, the parapet of the rockbox serving that purpose. The walkway was said to be about a foot wide and just above the level of the swing stock. Its base was of open lattice steel.
The presence, or absence, of a walkway was irrelevant to the issue of liability. It did not effect the risk of injury to which the plaintiff was exposed. Whether he stood on the catwalk or the swing stock his task was the same, the mode of performing it was the same, the risk of a rock falling onto the wedge was the same and the consequence of being pulled forward and twisted was the same. The existence of the catwalk was relevant only to a risk which did not eventuate: that of toppling backwards onto moving machinery.
The defendant argued that the plaintiff had deliberately distorted the risks to which she was exposed to prejudice the defendant’s case and excite sympathy for his own.
It is certainly curious that the plaintiff should have forgotten the existence of the walkway.
I accept the evidence of Griffey, Persell and Patterson as to the existence and description of the catwalk. I do not conclude from this that the plaintiff lied about it. He had no need to. His case was unaffected by it and had he lied he would have known his deception could be easily detected. As things turned out the detection was far from easy. The precise nature of the catwalk only emerged in the evidence of the last witnesses called in the trial. There was confusion about the catwalk during the cross-examination of the plaintiff and Mr Dubbleman, and in the evidence of Mr Graham. It would have been obvious to the plaintiff that he would hurt, not advance, his case by dishonestly seeking to blackguard the defendant’s concern for safety in an irrelevant particular. Mr Dubbleman had a similar recollection to the plaintiff’s. I do not accept that he conspired with the plaintiff to deceive the court. I thought he was a credible witness, though mistaken on this point. I also think that Mr Patterson’s recollection of the walkway became clearer as the trial wore on. Mr Graham thought that for about eight or nine years the operator’s access to the swing box was precisely the same as described by the plaintiff, though that period ended prior to 23 June 1994.
From all of this I am not disposed to disbelieve the plaintiff.
The next point, whether or not operators were discouraged from dropping the wedge, is a matter of slight importance. If the operator dropped the wedge it would fall onto the conveyor belt. A metal detector designed to prevent metal passing into the secondary crusher would be activated and the conveyor belt would stop. Without much loss of time the operator could descend to the level of the belt and retrieve the wedge. The plaintiff explained that occasionally when the conveyor belt stopped rock would continue to fall through the jaws of the primary crusher and jam the belt so that before it could be restarted the rock and smaller debris would have to be shovelled away. Depending on the amount, the task could take up to an hour. To avoid such stoppages in production an operator would not drop the wedge unnecessarily. I accept this is so. I have no doubt Mr Seymour did not look kindly on losses of production. I do not expect that he actively discouraged operators from dropping the wedge in circumstances where they might be hurt by not doing so, but I would infer that quarry employees were expected to keep the plant in operation.
None of this effects whether the plaintiff maintained his hold on the wedge in response to a “policy” that discouraged dropping it. He did not suggest he did. He was asked whether he might not have dropped the wedge when the rock fell and he countered by saying operators were not encouraged to drop it. The reality is that he had a grasp of the wedge when, without warning, the rock fell, dragging him forward. He did not have time to make a considered choice about dropping it or maintaining hold of the handle. Having struck the wedge the rock bounced away, leaving the wedge in the plaintiff’s hands.
The next point appeared quite devoid of substance. The plaintiff testified that he reported his accident to Mr Graham, his immediate superior, at about 5:30 pm. Mr Graham denied hearing of the incident until the next morning. He says that he went home at about 3:00 pm. He had been placed on light duties because of an accident he sustained while working as the primary crusher operator. The defendant submits that Mr Graham would have no reason to dissimulate on this point. The same was true of the plaintiff, with added force. He told Mr Seymour that he had reported the incident to Mr Graham just after it happened. There can have been no advantage to the plaintiff in saying he had done so if he had made the report the next morning. It was not then known that the mishap would have serious consequences. It was another deception that could have been easily detected. Mr Seymour had only to ask Mr Graham to discover the deception. In fact he agreed that he spoke to Mr Graham the day after the accident. This is important because on 28 June, 1994 Mr Seymour signed an employer’s report to the Workers’ Compensation Board in which he recorded that the plaintiff had reported the incident to Mr Graham at 5:30 pm on 23 June, 1994. I cannot accept that Mr Seymour did not confirm with Mr Graham the accuracy of what the plaintiff had told him when he (Seymour) spoke to Mr Graham on the 24th. Moreover, Mr Graham’s recollection is faulty. He claimed to have signed an incident report on 24 June when the plaintiff related the incident. The incident report is signed by Mr Seymour and dated 28 June, 1994.
The next argument, that the plaintiff’s description of how he was injured changed between the initial account given on 23 June and that given more fully on 28 June when Mr Seymour made his reports, is also without substance.
On 24 June, 1994 the plaintiff made written application for workers’ compensation. He claimed that what he was “actually doing when the injury was sustained” was “wedging a jaw blockage” and that the injury occurred when a “rock hit wedge down whilst [he] was holding it”. Mr Seymour signed the claim as correct on 28 June, 1994, and, on the same day, filled out the employer’s report in which he described “briefly how the injury occurred” as “while wedging a jaw blockage rock hit wedge down while he was holding it”. Probably on the same day (although the document is dated both 23 and 28 June, 1994 and refers to an event which occurred on 10 July, 1994) Mr Seymour wrote in a lost time injury report:
“Wedging a jaw blockage in primary crusher a rock dropped on wedge jarring it down while he was holding it. This [jarred] his lower back ... dropping wedge behind rock in jaw rock dropped pulling wedge down Randy did not let chain drop with rock”
These very succinct accounts of the incident do not appear to me to show any inconsistency. At best they contain an equivocation whether the rock which pulled on the wedge was that which the plaintiff was attempting to fracture. Even if Mr Seymour meant to convey that by his report, it does not follow that the plaintiff gave such an account to him.
The last matter is also insubstantial. Mr Griffey was the plaintiff’s supervisor. On 13 October, 1994 he wrote a report to the defendant in which he said that he observed the plaintiff on 22 June, 1994 “when he returned to work after the eight hour super bike race. He appeared to be stiff and had trouble turning his neck”.
I was not greatly impressed by Mr Griffey’s evidence which embellished the contents of his report. I find it difficult to believe that five months after an event of no apparent consequence Mr Griffey could precisely recall the date on which a fellow worker appeared to have a stiff neck.
Neither individually nor collectively do the defendant’s arguments persuade me to reject the plaintiff’s evidence that he was injured at work. Despite having harboured a suspicion about the genuineness of the plaintiff’s claim almost from its inception, the defendant has been unable to adduce any evidence that the plaintiff suffered his injury other than in the manner he described. It is now agreed the plaintiff has been badly hurt. It is conceded that the system of work in which he was placed was negligent. Despite the plaintiff’s having reported the incident to his superior at the earliest opportunity (on either case because the defendant contends Mr Graham was not present on the afternoon of 23 June) and despite the defendant by its manager, after inquiry, having recorded in writing the event which gave rise to the injury the defendant contends that the plaintiff should be disbelieved. I repeat that I found him a credible witness and I accept his evidence. It follows that there must be a finding of negligence against the defendant. Contributory negligence was not alleged.
Damages
The plaintiff was born on 16 August, 1966. He was almost twenty-eight when injured and is now thirty-three. He was educated to Grade 10 standard though he did not finish that year because of injuries. He appears to have been an adventurous young man and suffered broken limbs as a result of riding horses and motorbikes. He commenced full time employment in 1982 as a factory labourer and then a plant operator at a quarry. Thereafter, for about four years, he worked as a steward in the merchant navy and then for three years as a swimming pool builder. He was engaged in a role akin to that of factor by a Japanese investor but when that opportunity terminated the plaintiff returned to quarrying. In 1992 he commenced work as a plant operator and transferred to the defendant’s employment on 16 March, 1994.
The plaintiff complained of severe pain in his back, neck and shoulder after the accident. He struggled to finish his shift and returned to work the next morning. He was unable to continue and saw a doctor at lunch time. He was advised to take three days off work. I think the plaintiff must have attended at the quarry on 28 June but did not return to work until 1 July. He continued until 7 July when he consulted Dr Stanton who certified that he was incapacitated. On 14 July the plaintiff again attempted to return to work on a program of light duties devised by an employee of the Workers’ Compensation Board. This too proved unsuccessful with the plaintiff experiencing pain from the vibrations of the control room. Alternative employment as a laboratory assistant was also unsatisfactory. In September the plaintiff attended a rehabilitation program and in November resumed working shortened hours. The plaintiff was required to lift samples of soil which were reasonably heavy and drive over roughly surfaced roads. The jolting hurt his back. He appeared to make little progress and there were no clear signs that he could return to his former duties. On 21 December, 1994 the defendant dismissed him. He has not worked since.
The debate on quantum at the trial centred on the plaintiff’s contention that he was totally incapacitated for any gainful employment and was in constant disabling pain. The defendant was disposed to contend that the plaintiff has suffered minimal injury from which he has fully recovered and that his symptoms were deliberate inventions. As I have recounted the plaintiff’s plight was lately accepted to be essentially as he and his witnesses described it. It had become common ground that the cause of the plaintiff’s disability is a chronic pain syndrome rather than a more objectively ascertainable physical ailment. This gives rise to the remaining point in issue: whether when the stresses and strains of litigation are concluded the plaintiff will make a sufficient recovery to enable him to work and recover some enjoyment of life.
This being the only real contest it is possible to deal relatively briefly with the plaintiff’s circumstances.
Until his injury the plaintiff had been an extremely enthusiastic motorbike rider. He had taken up the sport at the age of eight and progressed to the point where he was the Queensland motorcycle champion for formula two machines. He had achieved some success in national competitions and hoped to become a professional rider. He had obtained sponsorships and retained a manager. He rode a bike only two or three occasions after his accident and sold his machines towards the end of 1994. He could not afford to keep them when he was not working and he found them too painful to ride. There is no doubt that the plaintiff was passionate about his riding. It offered him excitement, success and a modicum of fame. As well, his social life and friendships depended on that activity. The fact that he gave it up was a very persuasive indication that his disability was genuine and serious.
The plaintiff has led a miserable existence since 1994. He has not worked. He has lost most of his friends. He has embarked upon two relationships with young women but both failed because of his lack of mobility with its attendant problems and the irritability borne of frustration and restriction. He lives alternately with a married sister and his parents, moving from one household to another as circumstances suggest. He is able to do very little to care for himself or to help with the household chores in the families of which he transiently forms part. His own needs, which appear quite modest, are provided for by his mother and sister.
The degree of disability and associated pain has increased over the years. The plaintiff now walks with a very pronounced limp, placing no weight on his right heel. The extent of the limp has increased over the years. He takes strong analgesics and has become addicted to them. He attended as an inpatient at Royal Brisbane Hospital to undergo a course designed to reduce his dependence on drugs. He did not complete the course but later, in about March 1998 attended a nine day pain clinic at the same hospital, the purpose of which was to overcome his chronic pain syndrome. It was unsuccessful.
The precise nature and extent of the plaintiff’s physical injury is not clear but I am inclined to accept Dr McCombe’s opinion. He saw the plaintiff in October 1994 on a referral from his general practitioner, Dr Stanton, whose evidence was impressive. Dr McCombe conducted the rehabilitation course the plaintiff attended at South Brisbane. The doctor reported on 22 October, 1994 that a CT-scan revealed a disc protrusion at the level L4-5. The plaintiff identified the lumbosacral junction as the site of his pain but was tender over L4. Dr McCombe thought that the plaintiff could not return to any manual work and that he should look for a less physical vocation. In a report dated 14 December, 1996 Dr McCombe thought the plaintiff had suffered from a posterior annular tear and internal disc disruption at the L4-5 intervertebral disc. Dr McCombe thought the plaintiff had a “whole body disability” representing ten per cent loss of function. The loss is permanent. The plaintiff is incapable of returning to work as a quarry operator. Dr McCombe repeated his diagnosis in a report dated 8 March, 1999 though noted that the plaintiff’s disability had increased and was now assessed at twenty per cent loss of bodily function.
I should, perhaps, record that of the other orthopaedic specialists, Dr Gallagher was not called. His report of 7 September, 1994 was tendered. Dr Gallagher “really could not find any great evidence of a disability that would prevent him from working if he had the mind to start”. Dr Gallagher is now very old. His prognosis of malingering is expressly disavowed by the defendant. Dr McCombe’s reports persuade me that the plaintiff’s behaviour on examination was not artificial.
For the same reason Dr Downes’ evidence may be disregarded. It was, in any event, more amusing than helpful.
Dr Nave, orthopaedic surgeon, who examined the plaintiff on behalf of the defendant on 13 November, 1998 thought that the plaintiff had suffered an aggravation of pre-existing asymptomatic lower lumbar degenerative change or “in other words a musculoligamentous injury in the presence of previous degenerative change, which ... had been pain free in the ... years prior to the accident”. Dr Nave thought that further spinal degeneration as a consequence of the injury was unlikely and that “the orthopaedic component of his disability represents a permanent/partial impairment” of between two and a half to five per cent loss of bodily function.
Dr Nave accepted that the plaintiff’s level of pain and disability was as the plaintiff described. He did not disbelieve it because it had no obvious orthopaedic origin.
Dr Johnson, a physician who specialises in rehabilitation reported on 8 October, 1996 that the plaintiff was suffering from chronic low back pain, the correct treatment for which was an appropriate rehabilitation program. The earlier such courses are undertaken the more likely they are to succeed. If a rehabilitation program is not undertaken or is unsuccessful the injury is likely to be permanent. Dr Johnson recommended a pain management program which is available at the Belmont Private Hospital at a cost of $6,700.00. Dr Johnson also thought the plaintiff would benefit from vocational counselling and retraining should he successfully complete the pain rehabilitation program. The cost of such a course is about $1,200.00.
It was Dr Johnson’s opinion that the plaintiff is completely disabled from undertaking any heavy occupation but with adequate rehabilitation and appropriate vocational retraining, he could undertake full time work of a lighter nature. He assessed the plaintiff’s disability at twenty-five per cent “of the whole person” which was not permanent as the “present level of impairment is likely to change with further appropriate rehabilitation”.
Dr Johnson essentially repeated his opinion in his second report of 10 June, 1999 though he noted that “whereas the chances of a successful outcome of such a rehabilitation may have been as high as 80% in 1996 the chances of a successful outcome of such a program now are probably less than 40%”.
A chronic pain syndrome represents a malevolent and destructive force. It is a self-sustaining, self-reinforcing, and self-regenerating process. It is not a symptom of an underlying acute somatic injury but rather a destructive illness in its own right. It is an illness of the whole person and not a disease caused by the pathologic state of an organ system. Chronic pain is persistent, long lived, and progressive. Pain perception is markedly enhanced. Pain related behaviour becomes maladaptive and grossly disproportional to any underlying noxious stimulus, which usually has healed and no longer serves as an underlying pain generator. The description comes from exhibit 25, chapter 15 of the Guides to the Evaluation of Permanent Impairment published by the American Medical Association.
Dr Yaksich, a neurosurgeon, expressed the view that the plaintiff’s pain originated from a disc lesion, the presence of which was demonstrated by Magnetic Resonance, and the ongoing pain related to loss of activity and decreased fitness. The two had amalgamated to form a chronic pain problem. He thought that a pain management program would render the plaintiff able to perform light work on a full time basis and he was “reasonably optimistic” about the success of such a course. He indicated a range of employment activities the plaintiff could perform if he overcame his chronic pain.
The plaintiff was examined by Dr Golus, a clinical psychologist, in 1995 and 1999. He noted the plaintiff’s complaints of persistent, severe, disabling pain and that he has become an insomniac because of the pain. He drinks in an attempt to relax and sometimes overindulges. If unable to sleep he will watch television, wander round the house or take a hot bath.
Dr Golus found the plaintiff to be depressed and to manifest feelings of sadness and moroseness. He is also anxious which has made him irritable and nervous. The results of Dr Golus’ personality assessment is that the plaintiff:
“is reporting significant distress, with particular concerns about his physical functioning. [He] sees his life as severely disrupted by a variety of physical problems. These ... have left him unhappy, with little energy or enthusiasm with which to concentrate on important life tasks and little hope for improvement in the future. His performance in important social roles has probably suffered as a result, and his lack of success in these roles serves as an additional source of stress ... Such a score suggests a ruminative preoccupation with physical functioning and health matters and severe impairment arising from somatic symptoms. These somatic complaints are likely to be chronic and accompanied by fatigue and weakness that renders Mr Houston incapable of performing even minimal role expectations”.
Dr Golus thought the plaintiff had a generalised anxiety disorder, a major depressive disorder and was dependent on alcohol. He noted that the plaintiff appeared to be motivated to undergo treatment and reported that the plaintiff showed:
“... a positive attitude towards the possibility of personal change, the value of therapy, and the importance of personal responsibility. However, the nature of some of these problems suggests that treatment would be fairly challenging, with the treatment process likely to be difficult and reversals should be expected.”
The components of the award of damages most in controversy are those for pain and suffering and future economic loss. Both depend considerably on what prediction should be made for the plaintiff’s future. If his condition does not improve he is doomed for the rest of his life to be unemployable and to suffer debilitating, intractable pain. He has no prospect of a happy life and he will require constant care and assistance. If his chronic pain responds to rehabilitative treatment his physical disability will not prevent his return to work but he could not function as a labourer or plant operator. I think the orthopaedic specialists are in general agreement that the plaintiff is not greatly disabled by reason of the disc disruption. It is the chronic pain which has set in on top of the orthopaedic injury which is crippling the plaintiff and producing the psychological deficits of depression, anxiety, alcohol dependence and insomnia.
The task for the court is not an easy one. The award of damages must be fair to the defendant as well as to the plaintiff. The Court cannot take what might appear to be an easy way out and assume, in the plaintiff’s favour, that his condition will prove intransigent. Not only would such a course be unfair to the defendant, it may well become a self-fulfilling prophecy. The plaintiff may accept the verdict that he is to be perpetually unemployed and wretched. Moreover an award assessed on such a basis will provide a disincentive for a plaintiff who might otherwise be motivated to succeed in rehabilitation.
The court, in my view, is obliged to make the best assessment it can of the plaintiff’s prospects for recovery.
I have noted Dr Golus’s comments about the plaintiff’s motivation to improve his lot. Dr Johnson who assessed the chances of success at forty per cent agreed that they were greater if the plaintiff were motivated to “get back to work or to do something with his life”. Dr Yaksich was, as I have said, reasonably optimistic.
I think I should be cautiously optimistic. The plaintiff impressed me as being an intelligent man. Prior to his accident he showed initiative and ambition. He could not have achieved success in his chosen sport without a degree of mental toughness and competitiveness.
I suspect the plaintiff was a man used to having his own way and to enjoying the considerable sympathy of his parents and sister. He did suffer a back injury which caused him persisting discomfort, but, to his chagrin the defendant, and in particular Mr Seymour, exhibited a lack of feeling and, indeed intolerance for his suffering. His symptoms grew worse as though to prove he was handicapped. The onset of litigation created a positive disincentive for the plaintiff’s recovery because the financial outcome depended upon the extent of the plaintiff’s suffering.
However, a judgment will vindicate the plaintiff who will have been proved right when he claimed he was hurt, and severely so, as a result of the defendant’s negligence. The psychological “need” for his pain to continue should come to an end. Once damages are awarded he will have no incentive to remain ill. Motivation should work the other way.
The plaintiff has some skills as a mechanic. He successfully undertook a preliminary course in natural health remedies. He did not continue with the qualifying courses because of lack of financial resources and he found it difficult to study by reason of his depression and insomnia. If his chronic pain is relieved the psychological attendants should also be removed. Studying should be easier. The fact that the nine day pain relief course which the plaintiff attended did not achieve its object is not significant. All the doctors agreed that to be successful a pain rehabilitation course must be much longer.
With these observations in mind I turn to consider the particular heads of damage.
Pain and Suffering
Although the plaintiff’s loss has been grievous, he has been affected for only five years. Not only am I cautiously optimistic that the future should be brighter, there remains the point that the plaintiff’s pre-accident lifestyle attracted a risk of injury and disruption. Although he was described as likeable and friendly it is apparent that he could make enemies as well as friends. These enmities had the potential for real danger. As well his chosen sport carried with it a prospect of permanent injury. The plaintiff seems to have played hard. His liking for large amounts of alcohol and a propensity to attract trouble mean, I think, that damages have to be assessed on the basis that his life, without the accident, may not have been one of unsullied joy. I have to take into account that he has lost the capacity to partake in any of the usual pleasures of life and he has lost the enjoyment of his particular passion. Although I am hopeful that he will recover substantially, he may not do so. I assess damages for this head in the sum of $65,000.00 and allow interest at the rate of two per cent on the sum of $25,000.00 for five years. This yields an amount of $2,560.00.
Past Economic Loss
The amount is agreed in the sum of $149,745.00.
Interest is also agreed in the sum of $24,800.00.
Future Economic Loss
Mr Dubbleman estimated that if the plaintiff were presently employed as a quarry operator he would be in receipt of about $620.00 nett per week and have the use of a vehicle to drive to and from work. Mr Seymour gave evidence that he did not like to pay the operators more than “about the $1,000.00 mark per week”. That amount is gross. I am told it would reduce to $688.00 per week after tax. The plaintiff will be sixty-five in thirty-two years time. I adopt $650.00 per week as the nett loss of income. The multiplier on the five per cent discount tables for thirty-two years is 833. This yields a sum of $541,450.00. I reduce the amount by fifty per cent to take into account the plaintiff’s prospects of successful rehabilitation and a return to the workforce. As well, the reduction allows for the chance that the plaintiff may have suffered an injury in the course of racing motorbikes or his more than usually frenetic social life. It also takes account of the fact that he was engaged in a physically demanding occupation and he may, in any event, have suffered degenerative change rendering him unfit for that work. I allow $270,000.00.
Loss of Superannuation
It is agreed that the plaintiff should receive six per cent of the assessed sum for past and future economic loss. The amount is $25,200.00.
Cost of Undergoing Rehabilitation and Vocational Retraining
The plaintiff claims, and the defendant conceded, $7,900.00 under this head.
Cost of Future Pharmaceuticals
The plaintiff spends $5.70 per week on medication. The parties agree that his life expectancy is forty-four years. The multiplier for this period on the five per cent tables is 928. The calculation appears to me to yield the result of $5,289.00. This is different from both the plaintiff’s and defendant’s submissions. I propose to act on my calculation but reduce the sum to take account of the prospect that the plaintiff will recover and need to spend less on drugs. I allow $4,000.00.
Acupuncture
The plaintiff claims $59,503.00 for the cost of undergoing three treatments of acupuncture per week at an ongoing cost of $63.00 per week. Reliance is placed upon Dr Stanton’s evidence that acupuncture provides a good palliative for the relief of pain. I am not sure it has proved to be so in the past. Despite undergoing extensive treatment the plaintiff complains of continuous, severe pain. Neither Dr Yaksich nor Dr Johnson, both specialists in chronic pain, recommended acupuncture as something likely to ameliorate the pain. I do not think it reasonable to expect the defendant to pay this amount for the future, especially when it is paying for an extensive pain management course which is hoped to provide permanent pain relief. I will allow something for the cost of obtaining acupuncture in the past though not the full amount sought. Acupuncture was provided by Ms Watford-Lowther who is the mother of one of the young women with whom the plaintiff co-habited. I suspect there was a degree of friendship involved in the provision of the services. I think it was reasonable for the plaintiff to attempt to obtain some relief by acupuncture but I do not think the defendant should have to pay for his prolonged persistence in that attempt when it did not provide any worthwhile alleviation of his suffering. I allow $3,000.00 which will form part of special damages.
Special Damages
Save for the cost of acupuncture this item is agreed in the sum of $23,730.18. I allow this amount, together with the sum of $3,000.00 for acupuncture, that is $26,730.18.
Fox v. Wood
This component is agreed in the sum of $2,220.65.
Value of Past Services - Griffith v. Kerkemeyer
The parties are agreed that the appropriate amount, including interest is $9,198.30. This is based upon the modest assessment made by Mrs McBean that the plaintiff requires about half an hour a day of additional domestic assistance by reason of his disability.
Value of Future Services
The parties agree that the assessment for this component for the future should be calculated on the basis of $11.00 per hour for three and a half hours per week for a period of forty-four years discounted at three per cent. The sum comes to $49,453.25. The plaintiff suggests it be discounted by thirty per cent for the prospect that the plaintiff may gain more capacity for self-care. The defendant suggests a discount of fifty per cent. The defendant’s figure is in keeping with the discount for future economic loss based on the “cautious optimism” as to the plaintiff’s improvement. I allow $25,000.00.
The plaintiff must refund the sum of $19,296.59 to WorkCover.
In summary the assessment is:
Pain and suffering $ 65,000.00
Interest on pain and suffering
$ 2,560.00
Past economic loss
$149,745.00
Interest on past economic loss
$ 24,800.00
Future economic loss
$270,000.00
Loss of superannuation
$ 25,200.00
Cost of undergoing rehabilitation and vocational retraining
$ 7,900.00
Cost of future pharmaceutical
$ 4,000.00
Special damages
$ 26,730.18
Fox v. Wood
$ 2,220.65
Value of Past Services - Griffiths v. Kerkemeyer
$ 9,198.30
Value of future services
$ 25,000.00
Sub-total
$612,354.13
Less refund to WorkCover
$ 19,296.59
Total
$593,057.54
I give judgment for the plaintiff in the sum of $593,057.54.
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