Kelly v Northern Meat Holdings Pty Ltd
[2001] QSC 14
•1/02/2001
IN THE SUPREME COURT OF QUEENSLAND
REGISTRY: TOWNSVILLE
NUMBER: S40 of 1996
[2001] QSC 014
Plaintiff: JAMES FRANCIS KELLY
AND
First Defendant: NORTHERN MEAT HOLDINGS PTY LIMITED
formerly known as
INNISFAIL BUTCHERING COMPANY PTY LTD
AND
Defendant-by-Election: WORKCOVER QUEENSLAND
DECISION - CULLINANE J.
DELIVERED THE FIRST DAY OF FEBRUARY 2001
The Plaintiff claims damages for personal injury alleged to have been sustained by him as a result of the negligence and/or breach of duty of the Defendant, his former employer. The personal injury is wholly psychiatric in nature.
The Plaintiff’s employment with the Defendant ceased on 2 July 1993 in circumstances which will be described more fully below. The Writ of Summons was issued on 6 March 1996. In the defence the Statute of Limitations has been
pleaded in respect of any injury the Plaintiff sustained more than three years prior to the issue of the Writ. The consequence is that the Plaintiff’s right to recover damages if he establishes negligence or breach of duty is limited to the consequences of such negligence or breach of duty of the Defendant suffered by him after that date.
The Defendant conducts an abbatoir. The Plaintiff first commenced working at those works (then under different ownership) in 1976. He left and returned in 1980. At that time the operations were in the nature of a small shed and the numbers of beasts processed were relatively small. The Plaintiff had been working as a slaughterman and was promoted to foreman in mid 1982. He became responsible for supervising the workings of the slaughtering area as well as continuing to perform his duties as a slaughterman. The number of employees under the Plaintiff’s supervision were about 15.
The abattoirs were purchased by the Defendant in the late 1980s and thereafter the operations increased in size. Cattle were killed for export. This involved complying with certain additional requirements and as time went on it would seem that some of these became more complex. In the years prior to the Plaintiff’s ceasing work, the Plaintiff had become involved in overseeing certain quality controls. He had received some training for this. It appears that it was necessary to meet requirements of three bodies, Austmeat, the Department of Primary Industries and the Defendant.
The Plaintiff on the evidence which I have heard would appear to have coped reasonably well although with increasing difficulty until the latter part of 1992.
He had, as a child, suffered polio which left him with some disability of the shoulder. During 1992 he also suffered symptoms in the right wrist, the spine and in the leg. It would seem with the benefit of hindsight that some of the increased symptomatology which he complained of in relation to those may have been somatic in origin but it appears that both the shoulder and the spinal complaint have some organic basis.
In the latter part of 1992 the Plaintiff commenced to suffer from a number of symptoms which he describes in his statement (Exhibit 1), and these also appear in a number of the medical reports. At page 2 of Professor James’ report of 12 July 2000, the symptoms from which he was suffering and which became progressively worse are listed.
I am satisfied from the evidence that the Plaintiff was having increasing difficulty with his tasks. There were competing requirements from the different sources that I have described and in addition the Plaintiff was finding himself in an adversarial situation with the men working under him. The Plaintiff did not have the capacity to deal with these matters.
He is a man of relatively limited education and I would describe him as a fairly simple uncomplicated person whose life had been one of physical work, as a member of a team. I adopt the description of his predicament which is contained in the report of Dr Rigano (Exhibit 12):
“He would undoubtedly be a dedicated workhorse. However, the change of company ownership, and the conflict arising from his work as a quality assurance officer, and the demands of work supervision were demands his personality could not easily accommodate. He is not, by nature, equipped to deal with the ambiguities of these roles. This would seem a major factor in the development of his depressive illness".
The Plaintiff did not however consult his general practitioner, Dr Di Palma about these symptoms until 28 January 1993, although it would appear that his primary complaint at that time was about his knee.
On 22 April he complained to Dr Di Palma of being under stress and was concerned about the amount of work he had to do and his ability to cope. He also complained about his shoulder. Dr Di Palma prescribed some anti-depressant tablets. Dr Di Palma at that time thought that the shoulder complaints were the result of a post polio syndrome.
On 18th May 1993 he again consulted Dr Di Palma for, as Dr Di Palma describes it, anxiety and depression. Dr Di Palma thought he was worse than on the previous occasion and gave him a workers’ compensation certificate. After seeing Dr Di Palma in April, the Plaintiff asked Mr Tancred, the general manager, of the works and a director of the Defendant, to come and see him which he did one Sunday afternoon. The Plaintiff, in the presence of his wife, told Mr Tancred that he was suffering from problems at work and was told by Mr Tancred that he could have as much time off as he needed. The Plaintiff did in fact take time off pursuant to Dr Di Palma’s certificate. Mr Tancred recalls a discussion but does not recall any of the details of it. I accept the Plaintiff’s account of this.
The Plaintiff also approached the Commonwealth Rehabilitation Service around about this time and somebody came to the abattoir. There is a report from the Commonwealth Rehabilitiation Service in evidence. It appears that an officer visited the works and it was proposed to introduce some type of program to reduce the stress and anxiety that the Plaintiff was suffering from but events overtook this.
On the day of his return to work the Plaintiff had something of a breakdown. This occurred in an office at the works. It seems that a Miss Monaghan who was the office manager was present and also probably a Mr McIntosh who was the plant manager.
The Plaintiff says that he had also been to the Innisfail hospital seeking help. He went to see Dr Squarci on 5th May 1993. It is not entirely clear why he went to see him although the Plaintiff referred to getting a second opinion. However the Plaintiff also suggested that Dr Di Palma might not have been available at that time. On this occasion there is no mention in Dr Squarci’s notes of stress and the doctor has no personal recall.
When the Plaintiff saw Dr Squarci on the 18th June, Dr Squarci thought he was suffering from depression and prescribed anti-depressants. He told the Plaintiff that he should have two months off work for the purposes of treatment.
He gave the Plaintiff a certificate which was not in the form of a workers’ compensation certificate. Dr Squarci does not have a copy of the document but I am satisfied that its effect was that he should take two months off work.
According to the Plaintiff, on the following day, he took the certificate to Mr McIntosh at Mr McIntosh’s home. His wife went with him. According to the Plaintiff he told Mr McIntosh he had been to the doctor and had been told to take time off work and produced the certificate to him. According to the Plaintiff Mr McIntosh said that he had no-one to replace the Plaintiff and asked “could I work another week and he’d sort something out". The Plaintiff’s wife on the other hand said that Mr McIntosh said that the Plaintiff couldn’t have the time off because he had no-one to replace him. According to her he said: “You will have to come to work tomorrow” and went on to say he would “try and find someone by the end of the week".
Mr McIntosh denies that a conversation along these lines took place and said that if someone had a medical certificate “there’s no way in the world” that he would endeavour to stop him from taking that time off.
The Plaintiff gave the impression in evidence of a somewhat defeated man who had completely dropped his bundle. A good deal of his evidence was given in the form of a flat monotone although from time to time he became somewhat agitated. He has a powerful sense of grievance against what he perceives as the unfair way he has been treated by the Defendant both in relation to his work and the circumstances in which it came to an end and the manner in which he was dealt with in the course of his workers’ compensation claim and the need to pursue the Defendant to recover his entitlements. He seems to have a very poor recall of detail being quite confused about matters of chronology and dates of events. I thought that Mrs Kelly’s account of what was said on this occasion is likely to be a more reliable one than the Plaintiff. I do not accept Mr McIntosh’s evidence that no such conversation took place.
It is, I think, quite improbable that the Plaintiff having obtained a certificate from a doctor that he should have two months off work, would without any reference to any superior, simply continue to work. By this time he was quite concerned about his situation which was, I am satisfied, deteriorating and as I have already mentioned, he had raised the matter earlier with Mr Tancred and had sought help from the Commonwealth Rehabilitation Service and elsewhere.
The Plaintiff worked during that week and I am satisfied that his symptoms worsened noticeably. His wife gives evidence of that.
At the end of that week, the Plaintiff says that Mr McIntosh spoke to him again and said to him “Can you work another week and I’ll sort something out?” The Plaintiff continued to do so but with his situation worsening, until the 2 July when he completed work and to use his words, “walked out the door". Referring to Mr McIntosh, he said “I recall he was standing near the office, I looked at him – I don’t know what he did or whatever – and I just walked out the door and from then on I could never communicate with him again. They didn’t want to know me".
Professor James describes the Plaintiff’s action as being one effectively of hiding and leaving to avoid being persuaded again to remain. In paragraph 3 of Exhibit 1, the Plaintiff describes his then condition and said that he had no idea of what he was going to do.
I think that the same result should follow whether the Plaintiff was required or requested by Mr McIntosh to continue working when he produced Dr Squarci’s certificate to him. The Defendant was aware of the difficulties which the Plaintiff was suffering from. Apart from the discussion with Mr Tancred and the visit by the Commonwealth Rehabilitation Service officer to the abattoirs Mr McIntosh, in a letter to the Commonwealth Rehabilitation Service dated 9 June 1993, had written:
“With reference to your inquiry regarding James Kelly, James holds a highly responsible supervisory position with our company. Recently we have noticed that James appears to be suffering from stress. Any help that you may be able to give either James or our company regarding this would be greatly appreciated".
Mr McIntosh acknowledges writing the letter but does not have any recall of it or of the circumstances to which it refers.
Even if this were not so, in my view for the Defendant to have either refused the Plaintiff the time which his doctor had certified he required away from work, or given their relative positions, to seek to persuade the Plaintiff not to take this time off work amounts in my view to a failure to take reasonable care for the Plaintiff’s safety. The obligation of an employer is to take reasonable care to avoid a risk of injury which is reasonably foreseeable provided there are reasonably practicable means of obviating the risk.
The means of obviating the risk in this case are obvious enough. The risk of injury inherent in a person continuing to work against the advice of his medical practitioner is also in my view, plain enough. The Defendant acted unreasonably in requiring or requesting the Plaintiff to continue working in those circumstances. As I have said, I am inclined to think that the Plaintiff’s wife’s account of the conversation is likely to be more reliable than that of the Plaintiff but I do not think that it would make any difference to the outcome. I am satisfied that the Plaintiff has established a cause of action arising out of Mr McIntosh’s conduct in the respects that I have described.
Other allegations are made against the Defendant. Although the Plaintiff is not entitled to recover damages in respect of any breach of duty of the Defendant prior to 6 March 1993 it is nonetheless important to consider whether there was any such breach by that time which might have continued and had continuing consequences after that time which the Plaintiff would be entitled to recover damages for.
The Defendant’s duty to the Plaintiff is to the Plaintiff as an individual. No doubt the Defendant was in a position to make some assessment of the Plaintiff’s capacities at the time, the different requirements of Austmeat, the DPI and the Defendant itself, commenced to make his task a more onerous and complex one. Matters such as the Plaintiff’s experience, his educational background, his performance as an employee and his apparent level of intelligence are all matters that the Defendant would have been aware of. However I accept the evidence of Dr Nothling that the Plaintiff has somewhat obsessional features in his make-up which given the great store he placed in his capacity to work and in his employment rendered him susceptible beyond the average to the development of psychiatric problems in the type of circumstances which developed. The evidence does not satisfy me that it was unreasonable for the Defendant to ask the Plaintiff to perform such work or to continue to perform such work given the absence of any evidence that the particular features of the Plaintiff’s personality or make-up to which I have just referred were or ought to have been known to the Defendant. That is, I do not think that the tasks were tasks which the Defendant would have acted unreasonably in asking of an ordinary person with those characteristics of the Plaintiff known to the Defendant.
As will be obvious from the evidence I have referred to, the Plaintiff himself did not experience signs of psychiatric problems until the latter part of 1992. I have already referred to the evidence as to when the first complaint was made to a doctor about these. The Defendant through Mr Tancred, and also through the visit of the Commonwealth Rehabilitation Service officer became aware that the Plaintiff was having difficulties with his work and was apparently suffering from the effects of stress. I do not overlook the evidence of Mr Munday in this regard although it was fairly non-specific as to time.
For the Plaintiff it was urged that quite apart from the conduct of Mr McIntosh on Saturday 19th June and a week later, the Defendant was in breach of its duty to the Plaintiff by not responding in some other way to the information it had about the Plaintiff and especially given his conduct on the day on which he broke down and cried. There was a specific suggestion that he should at that time have been counselled or that counselling should have been arranged for him. It is important to bear in mind that the time frame involved here is relatively brief. The events which plainly gave rise to some knowledge on the part of the Defendant or at least provided the basis for a conclusion on the part of the Defendant that the Plaintiff was suffering difficulties and the events of the 19 June and thereafter were not separated by any substantial period of time. Mr Tancred had indicated to the Plaintiff that he was able to take whatever time off he needed and it would have been apparent to the Defendant that the Plaintiff was consulting a doctor. Mr McIntosh had written to the Commonwealth Rehabilitation Centre seeking some assistance with the Plaintiff’s position. I do not think it would be reasonable in these circumstances to find that by failing to take any additional step within the relatively limited time period involved the Defendant was guilty of negligence and/or breach of duty to the Plaintiff. I decline to so find.
There is a substantial dispute as to what flows from the finding that the Defendant was negligent or in breach of its duty to the Plaintiff in the particular respects in which I have found it to be. The resolution of this issue will have a substantial impact upon the damages recoverable by the Plaintiff and largely turns upon the evidence of two psychiatrists, Professor James called by the Plaintiff and Dr Nothling called by the Defendant.
Before turning to this evidence it is necessary to say something about the course of the Plaintiff’s treatment after he ceased work and his history since that time.
The Plaintiff has not worked since 2 July 1993. He and his wife have left Innisfail and moved to the Atherton Tablelands. They have a small property near Malanda. The move took place in 1997.
Whilst in Innisfail they lived near the meatworks and thought it would be best if the Plaintiff moved away from that area.
They grow some avocados on their small property. It does not appear that any net income is received from this.
The Plaintiff suffers from a major depressive disorder. The problems which he has are described in the medical reports and in his statement and that of his wife.
On 5 July after he had left work he again went to see Dr Squarci who on this occasion issued a Workers’ Compensation certificate for two months from 5 July to 5th September. A further certificate for the same period was issued on 4th August 1993 following a further examination. Dr Squarci referred the Plaintiff to Dr Mansfield, an orthopaedic surgeon whose report is in evidence. He had earlier referred the Plaintiff to Dr Jayasinghe whose report is also in evidence. Whereas Dr Jayasinghe thought that the Plaintiff suffered from carpal tunnel syndrome, a subsequent procedure carried out to relieve the nerve did not produce any improvement in the Plaintiff’s symptoms.
As will be seen from Dr Mansfield’s report which is dated 18 August 1993, he saw the Plaintiff as suffering from four problems. One was the carpal tunnel syndrome. The second was a condition in the right knee. The third was a significant depression/anxiety state and the other was a lumbo-sacral disc problem which he thought was quite severe. He recommended that the Plaintiff see a psychiatrist. Whilst he thought that the first two problems could be readily corrected, he thought that the lumbo-sacral disc problem was a major limiting factor on his ability to continue with his employment.
Dr Clark, an orthopaedic surgeon who saw him at Dr Mansfield’s request on 27 August 1993, thought that there was a direct relationship between the Plaintiff’s psychiatric disorder and his employment and physical complaints. It is apparent that he did not regard the symptoms which the Plaintiff complained of as being explicable by any organic condition that he observed. The lumbar spine showed some early degenerative changes but the disc spaces were well preserved.
The Workers’ Compensation Board at about this time would appear to have arranged for the Plaintiff to see Dr Garrone, a consultant psychiatrist in Cairns. Her opinion was that he suffered a major deperessive illness complicated by generalised anxiety symptoms. She observed that these conditions usually respond very well to anti-depressant medication and thought that some different anti-depressant should be tried. She thought the carpal tunnel syndrome and what she described as other orthopaedic problems were rather complicating the matter. She took it upon herself to contact Dr Squarci and discuss with him various treatment options. Later when she spoke to him again it seemed that the Plaintiff was slowly responding to Prozac but that his anxiety was made worse by the delay involving the carpal tunnel syndrome treatment which had been recommended. Her view was that he suffered a major depressive illness contracted in the course of his employment to which the stress of his management position was a contributing factor. She thought that he might return to work in about 12 months but that he was at that time not capable of employment.
In April the following year, Dr Rigano, also a psychiatrist, saw the Plaintiff on behalf of the Workers’ Compensation Board and for the purposes of reporting. He also thought that the Plaintiff suffered from major depression and considerable anxiety. He was not taking medication at that time and Dr Rigano reports that he was not receiving treatment for his depression at the time. It was obvious that at that time the Plaintiff was suffering from serious problems and Dr Rigano refers to the significance of his loss of work to his self esteem. He thought that the Plaintiff ought to be able to return to work within a period of about six months.
The Plaintiff has at no time received any counselling or psychotherapy, nor it would seem, was this ever recommended to him.
Dr Gallagher, an orthopaedic surgeon, saw the Plaintiff on behalf of the Defendant –by-Election in late 1997. He said he could find no reason from an orthopaedic point of view why the Plaintiff could not return to his previous occupation at the abattoirs. X-rays showed degenerative changes in the upper lumbar and lower thoracic spine which were constitutional in origin of long standing and the probable cause of symptomatology. It is apparent however that he did not consider any organic conditions which the Plaintiff had serious enough to preclude him from employment.
I now turn to the issues between the two psychiatrists.
Both Professor James and Dr Nothling are of the view that the Plaintiff suffers from a major depressive disorder. Dr Nothling’s opinion is that it is associated with a chronic generalised anxiety disorder, something with which Professor James agrees.
At the time of providing his first report in 1997 (Professor James’ first report was in July 2000), Dr Nothling did not hold the view that the Plaintiff suffered a major depressive disorder. Rather he thought that the Plaintiff suffered from an adjustment disorder with depressive mood to which his work situation had only been a minor contributor, indeed so minor that it could be ignored.
In a later report and after an extensive interview with the Plaintiff and his wife in early September 2000, Dr Nothling changed his view and now considers that the Plaintiff suffers a major depressive disorder with a chronic generalised anxiety disorder and like Professor James, he thinks that his current condition is causally related to the stressors in his work situation.
Professor James’ view is that the Plaintiff’s condition, having originated in response to the stressfulness of his position was aggravated at a very critical time by his continued exposure to the stressful environment during the last two weeks when Dr Squarci’s recommendation was that he should have ceased work was not accepted. Professor James referred to a number of publications on the impact of stress upon a person and the mechanism by which what was referred to as a catastrophic collapse or serious decompensation occurs. He described this at p. 382 in answer to a question by me. Earlier in evidence-in-chief he described what had occurred in his view in the Plaintiff’s case in the following way (at p. 200):
“And both in terms of the quantum of work and the nature of the work, particularly the management kind of issues, these just became too much for him. His coping abilities were exceeded. He began to feel stressed and developed symptoms of the kind that you’ve described; insomnia, nightmares, sweats, which I would really believe, probably, were panic attacks. He began to develop forebodings about work; waking early in the morning and in short, developed a depressive disorder and I think it was the – in a sense – the gradual de facto promotion to the position of supervisor, to a position beyond his actual competence and the maintenance of that position, excessively long.
Why then was there a period beyond which he could not go?-- Well, there is very strong evidence that it is not simply the intensity of the stress, but the duration over which it acts. And as I heard Mr Kelly’s account and construed it, he was beginning to cope with great difficulty. That difficulty increased progressively. That was really up until the time when – and I really believe it was a difficult thing for him to have to do – he’s somebody who, as many people do in those positions, pride themselves on a somewhat macho image and – and behaviour, and he’d come to the point where even he had to say to his managers he needed time off. And I think that that was a kind of last straw; when he actually, at that time, when he’d actually been able to say, “I can’t go on”, that he was, in fact, in a sense, coerced to go on, that the loyalty that he’d felt was – was used to get him to continue and that then was a - was an ultimate collapse. I have actually brought, if it would helpful to illustrate this graphically, an account by one of the most famous workers in the field of stress and illness, to show, that at a certain point, there is a disastrous and calamitous collapse which can come – come on very quickly and very steeply, once there is a point beyond which coping has been managed and I am happy to produce that if you would like it".
According to Professor James the decomposition which caused him to leave work set in train circumstances which led to his present “disastrous” situation. These include the associated loss of self-esteem, his grievance with the Defendant and sense of not being cared for by an employer to whom he had devoted many years of work. Professor James thinks that the Plaintiff is now unemployable but that with counselling and psychotherapy his condition might improve to the position where he could perhaps earn some income from the type of activities he engages in now but that he would not be employable in a competitive sense.
The history of the Plaintiff as presented to the court is of a hardworking man who held full time employment over many years and who rested his sense of self worth and self esteem upon his capacity to work and to provide for his family. He got out of his depth with responsibilities which generated significant sequelae to him and now suffers, and has it would seem since 1993 when seen by Dr Garrone and then in 1994 by Dr Rigano, depression of a serious nature. His loss of work, and with it the sense of self-worth and his associated sense of grievance with the Defendant have all been important factors in producing and maintaining his current condition. Other factors such as his frustrations with his claim for compensation have tended to reinforce his condition. If Professor James’ opinion is accepted it seems to me that the Defendant’s negligence must be regarded as causative of the Plaintiff’s current condition.
In Dr Nothling’s view, the Plaintiff’s psychiatric problems were the consequence of the totality of the stressors arising from his employment. The period since 6 March or the events of the final two weeks should be regarded as contributing little more to his current psychiatric condition than what is represented by their percentage of the total time to which he was exposed to such stressors. He suggested a little more than their direct proportion given that the stressors were increasing. He ascribes some 8 to 10% of the Plaintiff’s current problems to the period within the limitation period.
It would seem that Dr Nothling has proceeded upon the basis that the Plaintiff was suffering from symptoms of depression for longer than I think the evidence suggests. On the evidence which I accept the symptoms appeared in the latter part of 1992.
He thinks that with counselling the Plaintiff ought to be able to return to at least part time work.
Given the finding of negligence that I have made, the assessment of damages in this case will require consideration of what would have happened if the Defendant had not breached its duty to the Plaintiff and a comparison with what has in fact happened. It was not suggested to me that I should find that the Plaintiff has failed to mitigate his loss. Whilst some criticism has been made by Dr Nothling of the failure to have the Plaintiff undergo psychotherapy at an earlier time, there would be no grounds for a finding that the chain of causation had been broken by any failure to recommend psychotherapy or negligence in his treatment. See Mahoney -v-
J Kruschnich (Demolitions) Pty Ltd (1985) 156 CLR 522. The evidence suggests that the Plaintiff’s condition may have been recoverable had he had such treatment within a short time of his ceasing work.
The assessment of damages then involves an assessment of what would have happened but for the negligence of the Defendant. The nature of the negligent conduct in this case is critical to a consideration of this issue.
I think that had the Plaintiff had the two months off and continued to consult his medical practitioner, it is likely that the cause of the problem would have been identified. It is illustrative to look at what in fact happened, albeit after the Plaintiff had ceased work. I have already outlined the circumstances in which he did so.
Dr Mansfield and Dr Clark both identified the Plaintiff as suffering from depression as a result of his work. Dr Garrone and Dr Rigano identified the Plaintiff as suffering from a major depressive condition and identified the cause of that as being that which later both Professor James and Dr Nothling also identified namely that the Plaintiff was employed in a position the demands of which were beyond his capacity to manage resulting in the development of the problems and the condition already described. I think then that the high likelihood is that had the Plaintiff taken the two months off work which Dr Squarci advised the nature of the problem would have been identified. The evidence does not provide any basis for concluding that the Plaintiff’s tasks could have been re-arranged in such a way as to remove the problems. It is likely then that the Plaintiff would have been transferred to the position of slaughterman or to some other position in the works which would not have exposed him to such stressors or that if no such position was available he would have had to seek work elsewhere. In either event the Plaintiff’s psychiatric problems should not have developed as they did since their cause would have been removed. Professor James’ opinion, which I accept, is that there was an 80% chance that if the Plaintiff’s depressive symptoms had been treated at that time they would have resolved.
Dr Nothling’s reports do not on my reading of it, address the question of what the position would have been likely to be had the Plaintiff had the two months off work and received treatment at that time. Perhaps this is because he does not regard the events of those two weeks as having the effect which Professor James ascribes to them but as rather being simply the last contribution by way of contributions made by the Plaintiff’s work to the development of his major depressive disorder. Whatever the position the subject was not directly addressed in his reports or evidence.
I prefer Professor James’ opinion to that of Dr Nothling on the subject of the role played by the Defendant’s response to the Plaintiff’s request for time off work and the certificate he presented (Professor James described it as a case of the Plaintiff being twice persuaded to remain at work) in the development of the Plaintiff’s condition during that time and his leaving work in the circumstances in which he did and also to the ultimate outcome. But for this I am satisfied that it is likely that not only would the Plaintiff have avoided the major depressive disorder which developed but that it is also likely that proper investigations would have resulted in the Plaintiff being moved from the position which was causing the symptoms the Plaintiff was experiencing.
On this approach to things the Plaintiff has as a result of the Defendant’s negligence lost the capacity to work since the accident and is not in the future going to be capable of obtaining employment in the open labour market although improvement in his condition might occur as a result of psychotherapy. Dr Nothling’s failure to identify the serious depressive disorder the Plaintiff was suffering from when he first saw him is, it seems to me, an important matter in reaching a conclusion as to whose opinion ought to be accepted. Moreover I think that simply approaching the matter on the mathematical or proportional approach that he has adopted is not on my assessment of things a satisfying way in which to assess the significance of what seems to me to have been a qualitatively different situation to that which he had previously been faced with and which involved a major departure from what the Plaintiff had seen as a supportive and caring attitude on the part of his employer. On the other hand Dr Squarci’s response to the Plaintiff’s condition when he saw him after he left work does not seem to have been as serious or urgent as one might have expected given Professor James’ description of his condition.
Nonetheless a consideration of the evidence as a whole leads me to prefer Professor James’ analysis and explanation of the cause of the Plaintiff’s present problems and the role played in its development by the breach of duty of the Defendant. I also accept Professor James’ opinion as to the likely future of the condition.
As I have said Professor James’ opinion was that the depression which the Plaintiff was suffering prior to the events of Saturday 19 June was likely with treatment to have resolved within 8 to 12 weeks. He says this is what occurs in 80% of such cases.
I think it should be accepted that there will be some improvement in the Plaintiff’s condition with some treatment to extend over a significant time, perhaps some two years. Nonetheless he will remain as a person with significant psychiatric problems which have greatly altered his life and restricted his activities and affected his relationships with his family and people generally. Some allowance has to be made for the risk that his depression which had developed prior to the 19th June 1993 would not have resolved or if it did, might have reappeared.
I assess his general damages in the sum of $55,000. Of this I ascribe some $25,000 to the past. The Plaintiff has received a lump sum payment of $21,804. I allow interest at 2% per annum for years on $3,196 producing a figure of $479.00.
Past economic loss is calculated by reference to the earnings which the Plaintiff would have received had he remained in employment with the Defendant. This comes from Exhibit 37 which shows the Plaintiff’s earnings during the latter part of 1991, the whole of 1992 and half of 1993. The rate seems to have remained the same during that time. Exhibit 3 is a payroll history of Mr Lutter who has been employed in the same role. This shows his income from 31 July 1998 until August 2000. It shows a net monthly income commencing at $2,235 and finishing at $3,029. The income which the Plaintiff would have received as a slaughterman would be somewhat higher than he would have received in his position as superintendent of the slaughtering area. The earnings of two slaughtermen are shown in Exhibit 38. There was some justification for adopting this figure if it is likely the Plaintiff would have returned to this position or a similar one. Of course there cannot be left out of account the prospect that the Plaintiff may not have had a position available to him if he had to leave his then position because of his medical condition.
Nonetheless given the Plaintiff’s long and impressive work history I think that it is appropriate to proceed upon the basis that a position would have been available to him with the Defendant but even if this was not so, he should have been able to obtain suitable employment. However, some discounts have to be applied, not only for the prospect that he may have received a somewhat lower income or have been out of work for some period but also for the risks I have referred to earlier.
I adopt $180,000 for past economic loss.
The Plaintiff receives a disability support pension having commenced to receive this on 21 September 1994. He has received social security payments of some $19,605 up until 5 September 2000. He would of course have received somewhat more since that time. From the sum of $180,000 there should be deducted, a figure which I fix on as $45,000 representing amounts which the Plaintiff has received by way of disability support payments and from WorkCover.
I allow interest on $135,000 for 7.5 years at 5% per annum producing a figure of $50,625.
As to the future the Plaintiff should be assessed on the basis he will regain a small earning capacity of the kind which Professor James described in his evidence which I accept. He will never, on Professor James’ evidence, return to full time employment. There has to be taken into account the usual contingencies and vicissitudes and the fact that as he grew older his physical disabilities may have prevented him from performing this work. Given the evidence it is unlikely that he would have moved into any managerial or other like position. I have referred to other risks to be taken into account. The annual net income of a slaughterman would seem to be somewhere in the order of about $38 - $39,000 a year. I allow for a period of 12 years, a loss of $500 per week producing a present value of $235,321 by reference to the 5% discount tables. This allows in my view an appropriate discount both in the number of years’ purchase and the rate adopted for the factors to which I have referred including the risk that treatment would not have resolved his depressive condition or that it might have reappeared.
I allow a loss of superannuation in respect of the past at 6% producing a figure of $10,800. I allow interest on this at 5% for 7.5 years producing a sum of $4,050. For future superannuation I allow 8% on the sum allowed producing an amount of $18,825.
There are claims in respect of past care and assistance and future care and assistance. These are based on what the Plaintiff and his wife depose to in their statements. It is impossible to assess these claims on any mathematical basis. I have no doubt that given the Plaintiff’s serious psychiatric disorder his wife would have devoted substantial time to his care and assistance and general supervision as well as assuming tasks the Plaintiff previously performed. There was no argument addressed to me on behalf of the Defendant-by-Election against the amounts claimed but I think some discounting is required. I allow in respect of the past the sum of $15,000. It is agreed I should adopt the sum of $10 per hour for this. I allow interest at 5% per annum on this for 7.5 years producing an amount of $5,625.
As for the future it can, I think, be anticipated that the Plaintiff’s needs will be lessened and I assume considerably so in the event of his having the treatment to which I have referred and for which a claim is made.
Doing the best I can I allow the sum of $7,500 for future care and assistance. This involves a significant reduction on the claim based on 2 hours 20 minutes a week at $12.50 per hour for the balance of his life.
There are various claims for special damages. These include amounts paid by WorkCover in the sums of $882.94 and $2,261.90 which I allow.
There are claims for travelling expenses, medical expenses and pharmaceutical expenses which are not the subject of any challenge, and I allow these in the sums claimed of $1,368, $911.70, $551.30 and interest on those amounts in the sum of $736.44
There are claims for future counselling in accordance with the evidence of Professor James and travelling (given the Plaintiff’s location) and future pharmaceuticals. The Plaintiff is not currently taking anti-depressant drugs but takes Panadol which I think it is reasonable to assume is a consequence of his anxiety and depression at least in so far as that exacerbates the pain from various parts of his body which he refers to. The evidence on this subject is not particularly detailed but there was no challenge to the claim of $9,600 which I allow.
The total is $599,537.28.
From this has to be deducted the sum of $48,633.16.
There will be judgment for the Plaintiff against the Defendant-by-Election in the sum of $550,904.12.