Kilner v Turner
[2012] QDC 277
•31 August 2012
DISTRICT COURT OF QUEENSLAND
CITATION:
Kilner v Turner & Anor [2012] QDC 277
PARTIES:
KEITH WARREN KILNER
(plaintiff)v
DONALD ROBERT TURNER
(first defendant)and
SUNCORP METWAY INSURANCE LIMITED (ABN: 83 075 695 966)
(second defendant)FILE NO:
D1542/11
DIVISION:
PROCEEDING:
Trial
ORIGINATING COURT:
District Court
DELIVERED ON:
31 August 2012
DELIVERED AT:
Brisbane
HEARING DATE:
7, 8 and 9 August 2012
JUDGE:
Samios DCJ
ORDER:
Judgment for the plaintiff against the second defendant for $396,795.74.
CATCHWORDS:
Personal injuries – motor vehicle accident - quantum - major depression - orthopaedic injuries
COUNSEL:
Mr Eliadis – for the plaintiff
Mr W Campbell – for the defendants
SOLICITORS:
Shine Lawyers - for the plaintiff
Bray Lawyers - for the defendants
On 12 March 2009 the plaintiff was a passenger in a motor vehicle driven by the first defendant.
The motor vehicle driven by the first defendant came into collision with another motor vehicle which in turn collided with another motor vehicle (the accident).
The second defendant is the licensed insurer of the motor vehicle driven by the first defendant.
The defendants admit the accident was caused by the negligence of the first defendant. The plaintiff claims damages for personal injuries, loss and damage caused by the negligence of the first defendant.
The issue in these proceedings is the quantum of the plaintiff’s claim.
The plaintiff claims in the accident he suffered:-
(a) soft tissue injuries to his neck;
(b) soft tissue injuries to his right shoulder;
(c) an injury to the retro patellar surface of his right knee;
(d) major depression;
(e) adjustment disorder with anxiety and depressed mood.
The defendants admit in the accident the plaintiff suffered soft tissue injuries to his neck and soft tissue injuries to his right shoulder. However the defendants deny the plaintiff suffered in the accident an injury to the retro patellar surface of his right knee.
In relation to the plaintiff’s right knee injury the defendants say the plaintiff suffered an unrelated injury to his right knee after the accident on 21 August 2009. Further the defendants say the plaintiff does not suffer from any whole person impairment to his right knee in any event.
Further the defendants deny the plaintiff suffered from major depression and an adjustment disorder with anxiety and depressed mood and say further that any psychiatric conditions the plaintiff may be suffering from are caused by unrelated psycho-social stressors and alcoholism unrelated to the accident.
The defendants deny the plaintiff’s claim for past economic loss and in relation to any ongoing difficulties experienced by him at work, reduced employment capacity or employability say these are due to:-
A. The plaintiff’s pre-existing medical conditions including:
(a) Hepatitis C infection which has resulted in the plaintiff suffering liver cirrhosis, splenonegaly (enlarged liver), possible liver lesions and liver tumour;
(b) Osteoarthritis of his cervical spine resulting in neck pain and stiffness;
(c) Abdominal hernia
(d) Chronic obstructive pulmonary disease which has led to the plaintiff suffering from chronic chest infections and respiratory distress;
B. The plaintiff’s injury to his right knee on 21 August 2009.
The plaintiff was born on 16 December 1958. He was therefore 50 years of age at the time of the accident and is now 53 years of age.
The plaintiff was born in Dunedin in New Zealand. He is a married man. He and his wife have six children. However his relationship with his wife is such that she may live with him from time to time but after a while they get on each other’s nerves. The plaintiff said in his evidence he did not like school. He stopped going to school when he was about 12 or 13. He obtained an apprenticeship in the trade of fitter and turner. He has produced a certificate and it is an exhibit in these proceedings. He worked in an engine reconditioning shop. However when he was 17 he was involved in a work related accident. He said he got electrocuted and ended up smashing his right elbow. He underwent surgery. He was off work for about three months. He returned to work after that time off.
The evidence shows that in his 20’s and 30’s the plaintiff committed a number of offences in New Zealand, including traffic offences and dishonesty offences. He has also served periods of imprisonment.
He came to Australia in his early 20’s. He did engineering work. He said following the right shoulder operation he did not have any problems with his right shoulder after that. He said before the accident he was not suffering right shoulder problems. Further he was not suffering any problems with his neck before the accident. Further he was not suffering any problems with his right knee before the accident. Further he had not been diagnosed with suffering from any psychiatric illness like depression or anxiety before the accident.
The evidence also shows that in Queensland the plaintiff committed an offence of dangerous driving with a circumstance of aggravation on 3 July 1998. He was not dealt with for that offence until 6 August 2003. He accepted when he gave evidence that he did not make himself available to be dealt with for that offence. He claimed the police were aware of his whereabouts but eventually a senior police officer said he should do something about clearing up the matter. For that offence he was sentenced to 12 months imprisonment to be suspended for three years after serving four months imprisonment. His licence was disqualified for three years. Following that he was breached for that suspended sentence in the Brisbane District Court on 21 April 2006 when his suspended sentence was extended for twelve months. He said the breaching offence was that he had moved a motor vehicle on private property. He said he did not appreciate that that could amount to an offence.
Taxation records relating to the plaintiff’s work prior to the accident have been tendered. In my opinion they show reasonably consistent work on the part of the plaintiff in the year ended 30 June 2005 until his accident.
Mr Tony Bailey gave evidence. He stated that he is the manager of PBL Trailers. He said the plaintiff was employed by PBL Trailers for the period between 2 June 2008 to 25 March 2009. The plaintiff was employed as a tyre fitter. The plaintiff was a reliable employee and he did not recall him taking sick leave often. The plaintiff’s work performance was satisfactory and his employment with PBL Trailers was stable. He states the plaintiff was unable to continue working with PBL Trailers as a result of the injuries he suffered in the accident. Had it not been for his injuries the plaintiff would have maintained his position with PBL Trailers. When Mr Bailey gave his evidence by telephone he said the job as tyre fitter for the plaintiff was left open for the plaintiff to resume his employment with PBL Trailers.
During the plaintiff’s evidence he described what work was involved with PBL Trailers. He said the work involved basically from the hips up. He said one had to physically exert mostly the hands, arms and shoulders. There was no requirement to kneel on the ground. Basically what was involved was walking. He said there was really no need to be on the floor for anything because there was nothing on the floor. He was not required to bend his knees much doing that type of work.
The plaintiff also said that he enjoyed doing that work. He indicated in his evidence that what he enjoyed most was working with his friends who he called “Mates”. He has not been back to that occupation since the accident but he wished he was still there. He said he saw his future as actually becoming a contractor with respect to PBL Trailers. However if he was unable to get that type of work he would have remained working as a tyre fitter.
The plaintiff accepted that he was diagnosed with Hepatitis C in February 2000. He said he had been jabbed by a needle when he was assaulted at an ATM in Bundaberg. He underwent 48 weeks of treatment with medication. He ultimately was cured of his Hepatitis C. However he developed cirrhosis. Doctor Smith’s evidence during the trial was to the effect that the Hepatitis C caused the cirrhosis. The plaintiff also accepted he suffered from emphysema. He called it “Welder’s lungs”. He attributed his condition to work and smoking. However he said these two medical conditions, the cirrhosis and the emphysema were not causing him any particular problems before the accident. They were not affecting him at work as a tyre fitter. He was able to carry out his work as a tyre fitter.
Regarding the plaintiff’s weight he said in his evidence that prior to the accident his weight was around 90 or 95 kilos. However when he was cross examined it was suggested to him that notes in records indicated that on 28 June 2006 he was 108 kilograms and when seen at the Taigum Medical Centre on 24 July 2006 he said he used to be 50 kilograms heavier. Another entry was put to him that on 16 April 2007 he weighed 126 kilograms and the plaintiff said that could not be right. It was also suggested to him that a Doctor McBride on 16 of March 2009 weighed the plaintiff at 138 kilograms. The plaintiff accepted during his evidence he was presently 144 kilograms in weight. Doctor Dillon who assessed the plaintiff for continuing Workers Compensation following the accident on 14 May 2009 weighed the plaintiff at 133.1 kilograms.
The plaintiff said before the accident he engaged in riding his mountain bike, fishing and golf. He played golf by hitting balls from a driving range.
Before the accident he said he would drink alcohol on the weekends. However he would not drink on Friday night if he was expected to work on Saturday morning. That was because he would be expected to drive a forklift. Therefore he mainly drank on Saturday nights and some Sundays. He said he would not drink through the week. He said the amount he would drink would be like on a Saturday night three of them would put in and buy a carton of stubbies and share it.
The plaintiff also described what happened in the accident. He said he was using his phone and had the seat well reclined and was basically looking at the hood lining of the car and there was just a loud bang and he saw a flash of colour and that was it. He said he slid forward and his right leg actually was jammed up under the dash and sort of in front of the console where the gear stick was. He said his knee was jammed right up hard against the steel framework of the dash. He identified a photograph of the damaged motor vehicle. He said that showed the damage that it incurred in the collision. He said he was in the front passenger seat. He said the last thing he remembered was sliding and then it was sort of darkness and then he heard somebody’s voice and he opened his eyes and saw a woman looking through the window. He was then taken to hospital in an ambulance where he remained for nine days. Other evidence indicates the plaintiff was hospitalised for about three days. The plaintiff received workers’ compensation following the accident.
The plaintiff said that following the accident his neck has been terrible. He suffers headaches. He has suffered difficulties with his neck continuously since the accident. He said he took medication for it. He calls the medication “little white bombers”. He also takes other medication. From what he said in evidence it would appear he spends at least $10 a week on medication. However he has not produced any records showing his expenditure on medication. Dr Psaltis his GP gave evidence. She said she prescribes medication for him. However whether he takes it or not is another matter.
Regarding his right shoulder he says since the accident it crunches and it feels like bone on bone. He was not feeling this before the accident. He said the discomfort comes and goes. He is just careful about what he does and how he sleeps. He said immediately after the accident his right knee was painful. He said before the accident he did not have problems with his right knee. He said the pain has continued since the accident. The plaintiff said there was an incident after the accident with regard to his right knee. He said he was hanging his washing out and just went to turn and there was just a loud crack and that was it and he ended up lying on the back lawn. Later in his evidence he said he just stayed there for about four hours before his friends came and helped him to go to hospital. He said though before this later incident with respect to his right knee he was still experiencing some symptoms before then following the accident. With regard to this later incident regarding his right knee he said he did not undergo any surgery. The hospital strapped it up and sent him home with advice to put ice packs on it.
He said he did not return to work at PBL after the accident. He said this mentally shook him up. He said “you know I work with my mates and the simple fact is you’ve got to supply contractors with the stuff they need so that was it, job was gone on the spot”. He said he was disappointed that he was not able to go back to work. He spent his time home alone everyday with Foxtel and computer games which he described as “just rubbish”. When asked how he was feeling mentally he said “not good”. When asked what he meant by that he said “Ah, I just wished I hadn’t come out of that accident”. He said he never felt like that before in his life. He asked for a break at the end of these questions and answers. I am satisfied he was genuinely upset and distressed when he gave this evidence.
When he returned to give evidence in the afternoon he said he could not have done his work at PBL Trailers with his neck pain and shoulder pain. However if it was just his knee he believed he would have been able to do his old job as a tyre fitter. He said he could have put some support on his knee. He also said he stopped playing golf and implied he could not do fishing because of needing to use his right hand and arm. He gave his mountain bike away to a friend. He gave it away because he did not want to fall off it. He said he started to drink more regularly. He became depressed and fed up. He would just drink himself to sleep. However he has not continued to drink heavily. He said this was because of his medication and it would kill him. He said he ceased drinking heavily about two years ago. He said he was just making a mess of himself. Although he accepted he had ceased drinking with medication because he did not want to die he said there were days he just wished he wasn’t here. However he did accept there was an incident where he did drink too much since he gave up. He accepted he had to be taken to the Caboolture Hospital in February 2011. He said he had fallen asleep in the sun and got burnt to a crisp. He said he did not intend to resume drinking the way he was at his worst because he wanted to try and lose weight. He would like to lose 20 or 30 kilos so he did not end up having a heart attack. He said he has not had funds to see a dietician. He gets about $478 a fortnight on social security payments. He pays $325 a week in rent. He buys second hand clothes and said there is not enough money to go around when one takes into account gas and power. He also accepted that there was an incident in May 2011 when he suffered kidney failure. He was taken to hospital. He was given some treatment. He said he has not had any kidney problems since then. The plaintiff also said he has not undergone any psychiatric treatment or psychological consultations for depression. He is not sure why. He said there are plenty of free services around but he did not want people looking and going “Oh, he’s a frigging nutcase”. Notwithstanding he has stopped drinking his mental state has not improved and he still feels depressed. He just feels worthless. Although he has not thought of harming himself he has felt that at times he wished he were dead.
When Dr Psaltis his GP gave evidence she said that he had not discussed with her his mood. Also he had not discussed with her his depression and living a reclusive life.
When the plaintiff returned to the witness box and ended his evidence I asked him whether he had discussed with Dr Psaltis his mental condition. He said he had not and I asked him why not. He said he just did not feel comfortable talking about it. He said he gets days where he just cannot cope. Again the plaintiff was visibly distressed and crying. I am satisfied that he was genuine in the upset he expressed in his evidence
The plaintiff accepts before the accident he suffered from Hepatitis C, liver problems, chronic obstructive pulmonary disease and a hernia. Further he accepts since the accident he has suffered from liver problems, kidney problems and chronic obstructive pulmonary disease. Of course he accepts he had a fall when his knee gave way on 21 August 2009.
The plaintiff was cross examined on a number of issues. I have already mentioned the issue about his weight at the time of the accident. It was suggested to him in cross examination that by saying he was 90 to 95 kilograms at the time of the accident he was trying to suggest the accident has had a much worse effect on him than it really had. Further he was trying to suggest the accident has caused him to put on a significant amount of weight.
Regarding the delay in being dealt with for the dangerous driving with a circumstance of aggravation offence in Queensland he did not agree with the suggestion he had been on the run for five years. He said he did hand himself in. He said a detective he knew said he did not want to do the paperwork on the Saturday and to be there on Monday morning and he stuck to his word. His explanation for why it took four and half years though was that he just could not be bothered.
Further in cross-examination it was suggested to him that he was about 14 years of age when he had his first child. He accepted that and said that his wife was also 14 years of age.
Regarding the offences in New Zealand he said that involved stealing motor vehicles and breaking them up for parts and also insurance frauds. He said the longest term of imprisonment he had in New Zealand was four months. Regarding the dangerous driving with the circumstance of aggravation the plaintiff did not dispute that involved a police pursuit. The sentencing remarks of His Honour Judge Hoath referred to the motor vehicle being reversed by the plaintiff causing the driver of the police vehicle to swerve to avoid a collision. The plaintiff said he pled no contest to the whole thing. The plaintiff would not accept the suggestion that it would be difficult with his criminal history to obtain employment. He said “you got to go hunting”. He said though that jobs in the public service would be precluded from him. He said they would be “no-go” for him.
He also accepted that on 29 May 2006 before the accident he suffered an injury at work. He said that his leg had been burnt by chemicals. He said he recovered from the injury.
The plaintiff was also shown a registration of business name in his name for the business name “wheels 4 U”. The business name was current to April 2012. The plaintiff denied it was for him. He said his neighbour was looking for work and he showed him how to do it. As far as he knew the neighbour was still doing this business. His neighbour was Edward Gary McGregor who went under the name of “Ted’s Wheels”. The plaintiff denied he has earned any income from a business on the side. He said he took his neighbour around, set him up, and as far as he knew the neighbour was still running it. When Mr Bailey was cross-examined Mr. Bailey referred to a screen relating to Mr Kilner’s business he was looking at. Mr. Bailey said there were two names on the screen one was Keith and the other was “Ted”. Mr Bailey said these were two contact names that came up under the names of suppliers. Unfortunately he could not go back into the records. It appeared his accounts person would have to do that to answer the question. There was also cross examination of the plaintiff about an entry on 8 October 2009 in the Caboolture office of the Centrelink office. The entry was by one Kirsty. It related to the plaintiff’s injuries and said “partner doing physical bits” and referred to Teds Wheels. The plaintiff says he has retained this business name just in case. He said later when he gets better he wanted to get back to work. He denied getting paid and said that it was his mate that was getting paid.
A document that was shown to the plaintiff when he was cross examined but not tendered shows the plaintiff’s name and phone number on it. However, this document also shows the name ‘Ted’ on it and his phone number.
The plaintiff denied suggestions that he had worked for remuneration apart from work with PBL Trailers before the accident. He also denied that he had worked for remuneration after the accident. It was suggested to him there was an entry in the Caboolture Hospital notes of 18 November 2008 that he “works in markets (selling tools)”. The plaintiff said this was simply him getting rid of his stuff at home. It was a garage type thing. It took nearly five Sundays to get rid of it all. The plaintiff could not remember the occasion going to the hospital for emphysema.
The plaintiff was also referred to the entry in Dr Dillon’s records of 14 May 2009. The plaintiff was asked did he say to Dr Dillon “he’s been unable to do his weekend work of selling items at Sunday markets”. The plaintiff accepted that he had done this but said they were household items. He denied that he buys and sells them. He said it was just household items he was getting rid of. He said he no longer goes to the market and uses a notice board at the Morayfield Shopping Centre.
Although the plaintiff accepted he has not lodged a tax return since the year 2005 he said that he has always paid his taxes.
Regarding an entry in Dr Psaltis’ notes on 6 September 2010 that the plaintiff was working including with asbestos and wears cheap masks from supermarket only the plaintiff said he was working with Ted at his house. He said when Ted was setting up the wheel business the plaintiff was over at his house. He said a lot of the things at Ted’s house had “a lot of nasties on them”.
Another entry in the Caboolture Hospital notes of 13 September 2010 was referred to when the plaintiff was cross-examined. The entry states that the plaintiff lives with three other friends. Further that the plaintiff was a welder and that his work brought him to rural places. As to this entry by which it was suggested to the plaintiff he was not being truthful when he said in his statutory declaration and to doctors he has not worked since the accident the plaintiff said that he did not know where that came from. When he was discharged on 17 October 2010 there is a reference in the notes to the plaintiff being given a medical certificate for his work. He said it was back in mid 2000 that he was out repairing cotton picking machines in New South Wales.
It was also suggested that when he saw Dr Psaltis on 24 September 2010 he was seeking a medical certificate for work. The way the questions and answers went after that I do not accept that the plaintiff accepted he was fit for work. I took him to be suggesting that Centrelink were requiring something to be given to them about capacity for work.
The plaintiff was also cross-examined about him wearing a yellow fluorescent upper garment the type workmen wear when he saw Dr De Leacy on 30 September 2010. The plaintiff’s response was he did not feel safe walking across the streets. He said he wore that to protect himself from cars. He did not remember telling Dr De Leacy that he had no criminal history. He also said that it was in error that Dr Lotz in his report would say the plaintiff said he was married but had no children. He also said it was not correct to say he only had three daughters. The plaintiff also denied that a photograph of him next to a motor vehicle in a facebook entry indicated he was in the business of selling cars. He said he had sold a car as a favour for a neighbour.
The plaintiff also accepted that since the accident for the offence of driving whilst unlicensed he could not pay the fine and did the imprisonment of 36 days. There was some confusion whether he had been imprisoned for two periods of 36 days each.
Further in cross-examination the plaintiff was not sure with the suggestion put to him that he had not seen his GP for some 10 months between 14 July 2011 and 28 May 2012.
The plaintiff was also referred to the Centrelink records. In particular a job capacity assessment report of 8 October 2009. In these records there is the following:
“He had been in the process of setting up a business, however his partner, who was doing the physical tasks, is no longer able to do this.”
The plaintiff accepted this was a reference to Ted. He accepted that Ted was no longer able to do it because he was in jail.
Further in cross-examination it was suggested to the plaintiff that when he was advised to have an operation on his right knee following the incident on 21 August 2009 he wanted to fraudulently have that paid for by Workers’ compensation. The plaintiff did not accept this suggestion.
In addition to these matters traversed in cross-examination with the plaintiff it is to be noted that Dr McPhee found when he examined the plaintiff there was marked voluntary restriction of some movements particularly flexion and abduction of the shoulder. Further Dr McPhee found the plaintiff had denied symptoms of his hand prior to the accident but there was evidence in the notes that he had presented to his general practitioner with essentially the same symptoms on 29 October 2007. Also the plaintiff had initially denied any further problems with his right knee but Dr McPhee said there was evidence from the Caboolture Hospital that on 21 August 2009 the plaintiff presented for an acute injury to the right knee.
In my opinion the weight issue is an example of the plaintiff being unreliable rather than untruthful. In my opinion the plaintiff honestly thought he weighed lighter at the time of the accident than he actually did. His belief seemed to be justified by the fact that he could fit into a particular size pair of pants. That may have been an unwarranted assumption on his part.
In my opinion on some occasions the plaintiff may have misunderstood or been misunderstood when he has tried to express himself. I am mindful of his criminal history. I am mindful he appears to have told Dr. De Leacy he had no criminal history. However, that does not cause me to reject the plaintiff’s evidence. The plaintiff impressed me as a person who could be quite nervous and not at ease depending on the circumstances. I consider when he was examined by Dr. McPhee that would not have been a settled experience for the plaintiff. The plaintiff’s response to questions asked about his mood and depression persuade me he is genuinely ill. I am satisfied the plaintiff has told the court the truth.
Therefore, I accept the evidence of Dr Lotz a consultant psychiatrist who saw the plaintiff on 2 July 2010 and again on 17 October 2011 that the plaintiff is suffering by reason of the accident major depression and alcohol abuse disorder (in remission). I accept Dr Lotz’s psychiatric impairment rating scale at 19 per cent. I accept Dr Lotz’s evidence that the plaintiff should seek treatment from both a psychologist and psychiatrist. Even Dr De Leacy a consultant psychiatrist diagnosed the plaintiff as suffering an adjustment disorder with anxiety and depressed mood. However I am not persuaded that the plaintiff’s permanent impairment rating is as low as Dr De Leacy states at 7 per cent. In Dr Lotz’s earlier report he envisaged 12 months of treatment on average one session per fortnight by either a psychologist and psychiatrist at an average cost of $300 per session. At the time of his first report Dr Lotz thought that the plaintiff would not be able to return to work for at least 12 months and not before significant psychiatric and psychological treatment. However, in Dr. Lotz’s second report he states, and I accept, that the prognosis for the plaintiff is unfavourable because the plaintiff is reluctant to want to engage with either a psychologist or a psychiatrist. I find on account of the plaintiff’s psychiatric injuries he could not sustain employment for remuneration .
However the plaintiff’s problems are not limited to psychiatric problems. He also has orthopaedic injuries caused by the accident. Because I accept the plaintiff’s evidence I accept he is continuing to suffer symptoms in the neck, shoulder and knee caused by the accident. Also because I accept the plaintiff’s evidence I prefer the evidence of Dr Pentis an orthopaedic surgeon to that of Dr McPhee another orthopaedic surgeon. I find the plaintiff in relation to his neck has superimposed on his pre-existing condition of his neck a further 6-7 per cent cervical whole person impairment caused by the accident. Further I find while he has currently a 12 to 15 per cent whole person impairment in relation to his right knee one third of that is due to the accident. Finally in relation to his right shoulder I find he has a 7.5-10 per cent whole person impairment and one third to a half is due to the accident.
I find that because of his residual permanent orthopaedic injuries in relation to his neck, right knee and shoulder caused by the accident he would not have been able to work at his work that he was doing at the time of the accident nor in the future. I find the plaintiff would have been able to perform his work as a tyre fitter if the only impairment he had was the impairment to his knee.
However the plaintiff’s life expectancy must still be considered.
Dr Smith a general medical practitioner in her report to the solicitors for the plaintiff dated 15 June 2012 refers to the plaintiff’s conditions. She refers to his chronic Hepatitis C. The evidence satisfies me the plaintiff was cured of that disease. However I accept the plaintiff has been left with cirrhosis which has slowly progressed despite his positive response to the treatment that he underwent for 48 weeks from March 2001. I note in her report that the liver clinic on 7 August 2006 gave consideration to whether the plaintiff was suitable for liver transplantation. Further that he failed to keep appointments and was uncontactable. In my opinion this is evidence he can be unreliabile. The report also refers to his admission to the renal unit in May 2011. However no follow-up from the liver clinic was requested as his Hepatitis C had been cured. However Dr Smith states that the plaintiff’s long term prognosis from his cirrhosis is one of reduced life span due to progressive deterioration of his liver function and progression of portal hypertension. Dr Smith said portal hypertension can be life threatening. Dr Smith said that the evidence would suggest the plaintiff is not going to have a normal life expectancy because he has a major illness that is well known to shorten people’s lives.
Dr Ringrose a consultant physician although not examining the plaintiff has had reference to the records. In his report to the defendants dated 1 August 2012 he states that for the plaintiff the life table suggests a life expectancy of 32.16 years to 85 years. In his opinion on the evidence presented and especially the fact that there is evidence of ongoing alcohol consumption, the combination of his obesity, severe chronic obstructive pulmonary disease and cirrhosis of the liver with the complications affecting his portal vein and spleen, that the plaintiff’s life expectancy will be reduced by somewhere between 20 to 25 years.
When cross-examined Dr Ringrose was asked to assume the plaintiff has mended his ways with respect to alcohol consumption. Dr Ringrose said if he has ceased alcohol consumption his life expectancy may be extended by a few years. Similarly if he were to stop smoking his life expectancy would be extended for a few years. He would say probably all up five years would be reasonable as an extension to the plaintiff’s life expectancy if he ceased consumption of alcohol and smoking.
I accept the plaintiff’s evidence that he has ceased consumption of alcohol although he has lapsed on one occasion. Nevertheless he is morbidly obese and to my mind it will take a great effort on his part to lose weight, refrain from drinking and stop smoking.
I am satisfied the plaintiff has suffered because of his major depressive disorder a mental disorder with a psychiatric impairment rating scale of 19. Therefore he comes within item 11 of the Civil Liability Regulation 2003 serious mental disorder which provides a ISV range of between 11 to 40. I am satisfied in this case that the ISV in that range of 11 to 40 is 25. I am satisfied this should be uplifted to ISV 30 for the adverse impact of the multiple orthopaedic injuries including item 88 moderate cervical spine injury (ISV 5) and item 98 minor shoulder injury (ISV 5) and item 140 minor knee injury (ISV 5). Therefore for past and future pain and suffering and loss of amenities of life I assess the plaintiff’s damages at $45,000.
The plaintiff’s special damages that I allow are the following:-
(a) Medical expenses refundable to WorkCover Queensland $1,644.00
(b) Rehabilitation expenses refundable to WorkCover Queensland $173.00
(b) Refund to Medicare agreed $195.05
(d) Medication expenses paid by the plaintiff agreed $100.00
(e) Travel expenses paid by the plaintiff agreed $165.00
Total $2277.05
═════
I allow interest on the special damages paid by the plaintiff ($265) at 1.92 per cent for 3.47 years since the accident which is a sum of $17.65.
There have been 3.47 years since the accident to the present time. I am satisfied on the evidence the plaintiff was earning net per week at the time of the accident $671.43. I find the plaintiff should be allowed three years of past economic loss. By discounting this by .47 of a year that makes sufficient discount for health problems since the accident. I find he had a benevolent employer who was prepared to allow people to have time off for illnesses and be able to return to their work at the conclusion of their recovery. Therefore I allow the plaintiff for past economic loss $104,743.08.
Regarding interest on past economic loss the plaintiff received $14,796.59 for WorkCover payments and $35,100 for Centrelink payments after the accident. Therefore interest should be allowed on the balance of the past economic loss of $54,846.49 at 1.92 per cent for 3.47 years. This therefore is a sum of $3,654.08.
I also allow the plaintiff a Fox v Wood component which is the sum of $2,783.00.
With respect to future economic loss I accept Dr Ringrose’s opinion that the plaintiff may not live beyond 60 to 65 years of age. I also accept his evidence the plaintiff’s life expectancy may be increased by as much as five years if the plaintiff does cease drinking and smoking. While I accept the plaintiff has changed his ways to some extent, weight loss and abstaining from drinking and smoking is not certain. Therefore I consider for future economic loss I should act upon seven years of probable working life which allows for discounting for the factors mentioned by Dr Ringrose and Dr Smith and the usual contingencies of life. Therefore a loss of $671.43 for seven years at a multiplier of 5 per cent being 309.4 results in a figure of $207,740.44. I round that down to $200,000 for future economic loss.
For past superannuation loss I allow $9,426.88.
For loss of future superannuation benefits I allow the plaintiff $18,000.
For future medication expenses I allow the plaintiff $10 a week for seven years which is a sum of $3,094.00 using a 5 per cent multiplier which is 309.4.
I also allow the plaintiff $7,800 for psychiatric treatment.
Therefore that is a total of $396,795.74.
I therefore give judgment for the plaintiff against the second defendant for the sum of $396,795.74.
I will hear the parties as to the question of costs.
0
0
0