Marshall v Girard
[2010] QSC 454
•30 November 2010
SUPREME COURT OF QUEENSLAND
CITATION:
Marshall v Girard and Ors [2010] QSC 454
PARTIES:
NEIL EDWARD MARSHALL
(plaintiff)
v
BARRY NORMAN GIRARD
(first defendant)
and
SITA AUSTRALIA PTY LTD
(second defendant)
and
SUNCORP METWAY INSURANCE LIMITED(third defendant)
FILE NO/S:
7883 of 2009
DIVISION:
Trial Division
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court
DELIVERED ON:
30 November 2010
DELIVERED AT:
Brisbane
HEARING DATE:
23, 24, 25 August 2010
JUDGE:
Ann Lyons J
ORDER:
I GIVE JUDGMENT FOR THE PLAINTIFF AGAINST THE THIRD DEFENDANT IN THE SUM OF $921,667.07
CATCHWORDS:
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where the plaintiff, a painter, was involved in a collision with the defendant, the driver of a rear loading garbage truck at an intersection – where both parties claim their light was green – where plaintiff suffered psychiatric and physical injuries from the collision – where plaintiff had a number of pre-existing injuries – whether collision occurred due to the negligence of the defendant – whether the plaintiff should be awarded a sum for damages, loss of earnings and related expenses.
Civil Liability Act 2003 (Qld), s 59 (2)
Civil Liability Regulation 2003 (Qld), sch 3, sch 4.Eva (Joseph) Ltd v Reeves [1938] 2 KB 393
Purkess v Crittenden (1965) 114 CLR 164
COUNSEL:
M Grant-Taylor SC with R I Cameron for the plaintiff
W Campbell for the third defendantSOLICITORS:
Gleeson Klein Solicitors for the plaintiff
Eardley Motteram Lawyers for the third defendant
ANN LYONS J.
The plaintiff, Neil Marshall, is a painter who was injured in a motor vehicle accident as he was driving to work on 17 November 2006. His Ford Festiva sedan collided with a garbage truck driven by the first defendant, Barry Girard, at about five thirty in the morning at the intersection of Cornwall Street and Annerley Road at Dutton Park.
Marshall alleges that the accident occurred as a result of Girard’s negligence when he drove through a red light. There is no doubt that as a result of the accident the plaintiff, who is currently 50 years of age, suffered a number of physical and psychological injuries.
The plaintiff claims damages for his injuries. Girard disputes both his liability for the accident and the quantum of the damages claimed by Marshall. Because of the date of the accident, the damages must be assessed in accordance with the Civil Liability Act 2003 (Qld) (the Act) and the Civil Liability Regulation 2003 (Qld).
Plaintiff’s pre-accident injuries
Marshall was born in England on 12 July 1960 and migrated to Australia in 1983. He is a qualified painter and has worked in the occupation since he qualified. In 1985 he was involved in two motor vehicle accidents in January and October. In respect of the January accident he suffered a minor whiplash injury but was reported as being symptom free within a couple of months. In the October 1985 accident Marshall was the passenger in a car which drove through a red light. He sustained an injury to his left shoulder and developed a depressive illness. Subsequent to that accident he underwent a laminectomy of the lumbar (L4/5) spine and three years later, in February 1988, he underwent further surgery to his left shoulder, including the excision of the coraco-acromial ligament, an anterior acromioplasty and a repair of his rotator cuff.
In November 1988, he consulted a psychiatrist Dr Gartrell in relation to ongoing issues and pain as a consequence of the October 1985 accident. In December 1988, Marshall underwent a left shoulder arthrodesis.
In 1994, following a fall from a ladder at home Marshall suffered a broken left arm and underwent compound scrub and external fixation surgery.
In 2001, he had a ganglion, which emerged at work, excised from his right hand.
In August 2004, when bending on his knees painting a skirting board at work, he suffered an injury to his left knee.
In March 2005, Marshall suffered an impingement in his right shoulder and underwent arthroscopic subcromial decompression surgery in June 2005 which was followed by rehabilitation in July of 2005.
In November 2005, approximately 12 months prior to the accident which is the subject of the current proceeding, Marshall consulted Dr Nutting, his treating orthopaedic surgeon, who reported that he was back at work and performing quiet well.
Marshall gave evidence at the hearing that he returned to work in early December 2005 and for the following 11 months he worked “on the tools” and was not suffering from any physical or psychological problems.[1] At the time of the accident he had been employed as a foreman painter for Higgins Coatings for almost two years.
[1]Transcript day 1 p 34 l 50 - p 35 l 15.
As a result of the 2006 accident Marshall claims he suffered the following injuries:
(a) Fracture of the third metacarpal of the left hand requiring open reduction and internal fixation.
(b) A torn rotator cuff in the right shoulder requiring arthroscopic surgery as well as decompression and excision of the acromio-clavicular joint.
(c) Medial meniscal tears of the left and right knees requiring bilateral surgery.
(d) Consequential deep vein thrombosis.
(e) Psychiatric injury diagnosed as Chronic Adjustment Disorder with mixed anxiety and depressed mood.
The circumstances of the accident.
Mr Girard’s evidence
Girard, gave evidence that he has been a truck driver for 30 years and, whilst he previously worked for SITA, at the time of the collision, he had been back working with them for about a month. His job on that day was to drive a “rear loader truck” which is a smaller type of garbage truck used for streets with difficult access or restricted spaces. He gave evidence that, although less common, he had driven that style of truck “a few times”.[2]
[2]Transcript day 2 p 45 l 48.
He arrived at the SITA depot at Rocklea at around five in the morning. His supervisor gave him a list of bins that were missed and a couple of photocopied pages from a Refidex with the streets that were missed highlighted. One of those streets was Bower Street at Dutton Park. Girard said he was driving with a “runner” Alfredo Yepez who he had not met previously. They left the depot at about five fifteen in the morning and drove along Annerley Road to collect rubbish from the bins in Bower Street and other streets off Annerley Road near Highgate Hill. Girard said he knew the streets saying he had “done all those streets before on rear load.”[3]
[3]Transcript day 2 p 47 l 41.
Girard gave further evidence that he was familiar with the intersection of Annerley Road and Cornwall Street[4] and that as he approached the intersection he recalls travelling at a comfortable speed of about 50 to 60 kilometres per hour (kph) and that the lights facing him were green. He stated he was in the left lane of Annerley Road, closest to the kerb. He does not recall seeing any other vehicles on the road before the collision. His evidence as he went into the lights was that:
“... I seen a pink car coming on the left up Cornwall Street, and I didn't think he had enough time to stop, so I swerved into the next lane on the right, started to brake, and as we come through the other side of the lights, he hit the side of the truck.
Yes, and what then happened to his vehicle and what happened to your truck?-- It hit the front wheel of our truck and then bounced down along the side into the back wheel.
Yes?-- And by then I was going pretty slow and I, sort of, watched in the mirror, and it rolled - or he drove it over to the gutter.”
[4]Transcript day 2 p 38 l 6.
Girard estimated that when he first saw the pink Festiva coming towards the corner it was about 30 metres away, he could not tell at what speed it was travelling but thought it was going too fast to stop.[5] He recalls checking his mirror to see if any other vehicles were to the truck’s right so he could move to the next lane and try and avoid the Festiva. When asked if, with hindsight, he could have done anything else to avoid the collision, Girard replied “No”.[6] Girard does not recall seeing any other vehicles on the road at all that morning.
[5]Transcript day 2 p 49 l 43.
[6]Transcript day 2 p 50 l 3.
Girard recalls that Marshall’s right arm was hurt and that Yepez approached Marshall following the collision. Girard said at that point he called back to the depot advising police and ambulance were needed.[7] Girard was also “pretty sure” he spoke with his supervisor, Heidi, who attended the scene some 15 to 20 minutes later. Girard stated that he approached Marshall himself to ask if he was OK and that Marshall had accused him of running a red light. Girard said he didn’t reply as “he didn't want to argue over who run the red light and who didn't”.[8] He denies that the accusation by Marshall was made in the presence of police.
[7]Transcript day 2 p 50 l 21.
[8]Transcript day 2 p 50 ll 10 to 12.
The evidence of Yepez, who was sitting in the front of the truck next to Girard, was that he had his “head down” looking at the map on his lap and did not actually see the car until they were just a couple of metres from it. He gave evidence that his memory of the accident was “vague”.[9] During his evidence, Counsel for the plaintiff provided Yepez with a copy of a document he had signed and which he said triggered a slight recollection, but that he could not remember much about it. The document was a statement containing Yepez’s signature witnessed by a licensed private investigator for Verifact on 17 October 2007. Mr Yepez agreed that the document contained his signature, but could not confirm that his memory 11 months following the accident would be any better or worse than his current memory of it. I note that the document states[10] that neither Yepez nor Girard knew where they were going on the day of the accident, which contradicts both men’s evidence in Court.
[9]Transcript day 2 p 72 l 28.
[10]Transcript day 1 p 21 l 50 – p23 l 45.
I consider that, on the evidence they gave before me, neither Girard or Yepez had a particularly good recollection of the accident and neither did they give a clear account of the events of the day. I also note that their supervisor gave evidence that neither driver Yepez or Girard could give her clear details as to where the accident had taken place when she was phoned from the scene that morning.
Mr Marshall’s evidence
In contrast, I consider Marshall had a very clear memory of the events in question and a clear recollection of the circumstances surrounding the accident. He also gave his evidence in a direct and forthright manner.
Marshall’s evidence was that he left his home at Yeronga at about five twenty five in the morning in his manual Ford Festiva and had travelled along Fairfield Road until the road turned right in an easterly direction and became Cornwall Street. He drove along Cornwall Street and approached the intersection with Annerley Road in an easterly direction shortly after five thirty. He stated:
“I'd come around the corner. I was in second gear. I changed up to third gear. As I come around the corner I looked up, both traffic lights were green. There was a red - green arrow to the left, straight ahead was the round traffic light, that was green.
Was Cornwall Street, or that part of Cornwall Street at that time a one-way street or a two-way street?‑‑ A two-way street. Broke up into four lanes. Two lanes are in Fairfield Road and as you come around the corner two lanes go to the left, two lanes go to the right.
... I was in lane 2 ... I went around the corner. Both traffic lights were green. I had the green arrow, the left arrow and the green light on the right side. As I got to the only building which is - it's hard to say, your Honour, about how far it is. It's between probably 50 and a hundred metres. The green arrow was still green and the traffic green light turned from green to amber, and then as I got closer it went from amber to red, with the green arrow still green. And as I come up to there by the only building I changed up to third, as I come close to the - because it's quite a - quite a long curve, bend. I changed down to second and as I come around the corner, looking straight ahead, I was still in lane two going over and I heard a tremendous bang just behind my driver's side door, because it was a three door hatchback, so it only had two doors, the front passenger. And then in a bit of shock, and then by the time it comes beside me it started to sort of pull me under, so I was trying to pull it back, and I didn't even know it was a truck at that stage, and then as I looked up the car was in the third lane and the truck went past me. I had enough power, just cut out, and just rolled to the side of the - of Annerley Road, and the truck just kept going until stopping just before the other lights, the next set of lights.
What speed were you driving at as you made your way east along Cornwall Street?‑‑ As I come around the corner or around the bend to go into Annerley Road?
After you had completed your turn from Fairfield Road into Cornwall Street, but before you got to the turn into Annerley Road, what speed were you travelling at?‑‑ I would've been travelling probably 30; not even 30 because I was in second gear so it would've been 20 to 25, going up to third.
And then did you continue to travel along Cornwall Street?‑‑ Then I stayed in third because I knew I had to change down to second to go around the corner, so before I got to the corner I dropped down to second and I assume probably between 20 and 25 kilometres an hour in second gear.
Mr Marshall, before you did that left turn from Cornwall Street into Annerley Road did the green arrow, which you say you had the benefit of, change at any time?‑‑ No.”
Marshall also gave evidence that the only other vehicle he remembers was a van, which he saw in the distance, turning right into Annerley Road as he came up the hill.
Marshall gave evidence that his driver’s side door was crushed so he exited the car from the passenger side door and then turned on his mobile phone to call his wife who then phoned the police. Shortly after, his wife and daughter arrived and then the police arrived, he was breath-tested and asked what had happened. He then recalled the ambulance arriving and taking him to the Princess Alexandra Hospital where he was treated for an injury to his hand, but did not stay overnight. Marshall also gave evidence that after the police arrived he had said to Girard “you went through a red light” to which Girard did not respond.
Heidi Mathieson’s evidence
Girard’s supervisor Heidi Mathieson gave evidence that she was rung by either Yepez or Girard at about five thirty five that morning and drove to the accident scene from Rocklea. Ms Mathieson conceded that she probably arrived about 15 or twenty minutes after the accident. She gave evidence that she did not initially know exactly where the accident had taken place
“because the details were fairly - fairly sketchy and the drivers weren't too sure where they actually were at that point in time, they - they sort of - I was driving along and I went - as I came up round the corner I looked at the set of lights and the lights were what I call light affected, sunlight affected, and I made a mental note to actually have it as a tool box talk, because we always have points of interest, you know, to alert other drivers to things like that that may - may affect their – their day-to-day running. And then, as it was, as I came around the corner there was the accident.”
I do not consider that there was any evidence that the intersection was light affected at suggested by Ms Mathieson at the time of the accident. Ms Mathieson arrived at the earliest some 15 to 20 minutes later than the accident and Marshall gave clear evidence that there was no such event. Neither Girard nor Yepez referred to even being aware of the sunrise that morning. I am not satisfied therefore that the intersection was light affected at the time Marshall approached it.
Mr Ness’s evidence
Mr John Ness a senior traffic signal operator with the Brisbane City Council gave evidence that there were no reported faults with the lights at the intersection on the day in question. He also gave evidence of the timing sequence of the five different sets of lights at the intersection and referred to a document which set out the “Signal Timing Sequence as at 17 November 2006.” (Exhibit11). That document is as follows.
“Signal Timing Sequence – Fairfield Road, Annerley Road and Cornwall Street, Fairfield
(For vehicles demands on all approaches)
As at 17 November 2006
| Associated Signal Group as per the attached Traffic Signal Plan | |||||||
| 1 | 3 | 2 | 4 | 5 | |||
| Phase | Annerley Road | Annerley Road | Annerley Road | Cornwall Street | Cornwall Street | Minimum Green | |
| South-East Bound | South-East Bound | North-West Bound | North-East Bound | North-East Bound | (Seconds) | ||
| Right Turn | Left Turn | Right Turn | |||||
| A | Green | Red Arrow | Green | Red Arrow | Red | 6 | |
| B | Red | Red Arrow | Red | Green Arrow | Green | 6 | |
| C | Green | Green Arrow | Red | Green Arrow | Red | 6 | |
When the signals change from one phase to another there is a 4 second YELLOW period and a 2 second ALL RED period.”
The three phases of the traffic lights were also set out in a visual representation in Exhibit 8 which is difficult to reproduce. I have, however, considered those two documents in considerable detail in coming to my conclusions on liability.
The third defendant’s submission on liability
Girard argues that Marshall had been driving the same route at the same time in the morning for five days a week for the previous five months and therefore he was less likely to take particular care with his lookout. This, it is argued, is also reflected in his failure to observe the truck proceeding into the intersection from his right until it was upon him.
The third defendant argues that the Plaintiff’s evidence is that when he came around the right hand corner from Fairfield Rd into Cornwall St he was in second gear and he looked up at the traffic lights at the end of Cornwall St which was some 170 to 200m away. Both lights were green. When he was about 50 to 100m further along Cornwall St he changed up to third gear, at which time he saw the traffic light (to turn right into Annerley Rd) change from green to amber but the green arrow (to turn left into Annerley Rd) remained. As he got closer to the intersection the right hand turn (RHT) light changed after 4 seconds from amber to red but the left hand turn (LHT) green arrow remained green, and he changed down to second gear to negotiate the corner to the left.
Counsel for the third defendant Mr Campbell submits therefore that his average speed along the length of Cornwall Street would appear to have been no more than 25kph or 6.94m per second. At that average speed it would have taken him between 24 and 29 seconds to travel the length of Cornwall Street. 30kph is 8.33m per second.
Marshall maintains that the green arrow for the LHT from Cornwall Street into Annerley Road never changed during this time. Counsel for the third defendant argues that this must be wrong because the RHT light changed from green to amber when he was about 100 to 125 m (14.4 to 18 seconds) from the intersection. Four seconds later the RHT light would have changed from amber to red with the plaintiff still 10 to 14 seconds from the intersection.
Mr Campbell argues that when Marshall first saw the lights they were in B phase, however C phase does not automatically follow B phase and that Marshall’s case proceeds upon a misapprehension that C phase always follows B phase.
The essence of the third defendant’s argument is that there was no cause for C phase to be engaged, as C phase only comes into operation if a vehicle passes over detectors 5 or 6 in the LHT lanes in Cornwall St or over detectors 3 or 4 in the RHT lanes in Annerley Road (ignoring the pedestrian crossing P2 sensor across Annerley Road on the south side of the intersection). Girard argues that there were no such vehicles just prior to the accident and that the van Marshall saw turning right from Cornwall Street either activated B phase after being stationary, or a vehicle preceding it had activated B phase, enabling it to proceed through the green light facing the RHT lane.
Mr Campbell argues that in B phase both lights (signal groups 4 and 5) turn green and then both turn red unless C phase is activated by another vehicle. This argument relies not on the accuracy of memories of other vehicles on the road that morning but a presumption that a vehicle or vehicles capable of triggering or affecting C phase was visible to the parties. It was clear from Mr Ness’s evidence that a vehicle going through the intersection well before Girard’s or Marshall’s vehicles may have had an affect on the sequencing of the lights.[11]
[11]Transcript day 1 p 92 1l 84-93.
“I want you to imagine a driver rounding the bend from Fairfield Road into Cornwall Street there, so as to begin travelling in an easterly direction along Cornwall Street towards the intersection. The first site that he observes in front of him is a green left turn arrow at group four and a green circle facing group five traffic; does that make sense?-- Yes.
That must necessarily mean that we're in phase B; is that correct?-- That would indicate phase B, yes.
That may have come about - I want you to imagine that he sees a vehicle, a group five vehicle, in the process of turning right into Annerley Road ahead of him?-- Yes.
That vehicle may have been a vehicle which had been brought to a halt in a previous phase A in response to a red circle?-- Yes.
Or it may be a vehicle that had driven straight through the intersection without stopping, quite lawfully, because of a vehicle ahead of it again had been responsible for tripping seven or eight?-- Yes, that's correct.
All right, and if there was a green arrow facing group four traffic, it wouldn't necessarily be the case that there had have been a vehicle in five or six to trip that, because it may have been tripped by seven or eight, by a vehicle in seven or eight?-- That's correct.”
There is clear evidence from Marshall that what he actually observed was a green left hand arrow in the left turn lane, and a green light in front of him which changed from green to amber to red as he turned with the green arrow. However it happened, that is what he saw. Phase C was obviously activated.
In coming to a conclusion on liability, it is clear that I have accepted Marshall’s evidence as to the sequence of the lights as he saw them. He had a very clear recollection of events on the day in question and gave very precise evidence as to how the accident occurred. He had a great clarity in his memory of the events as opposed to Girard and Yepez who I do not consider were entirely forthright. In particular, Girard states he knew the intersection well, but Mathieson says neither man knew precisely where they were when she was rung. Neither could Girard recall with accuracy who it was who actually rang the depot. Yepez could not even recall the time of the accident and thought it was probably around eight in the morning.
I consider that an analysis of Marshall’s evidence, together with a study of exhibits 8 and 11, favours a conclusion that Girard must have come through a red light. In coming to this conclusion, I have accepted the submission of Marshall’s Counsel that the combined effect of Exhibit 11 and the evidence of Mr Ness demonstrates that after Marshall commenced travelling east on Cornwall Street, the traffic lights ahead of him were in phase B, with a “Green Arrow 4” and a “Green 5”. Clearly, then, at that stage Girard had to be faced with a “Red 2”. As Marshall continues to drive east on Cornwall Street, phase B ceases in that the plaintiff observes the “Green 5” change to an “Amber 5”, remaining amber for four seconds. During this interval, Girard still has to be facing a “Red 2”.
After four seconds, the “Amber 5” changes to a “Red 5”, remaining red for a further two seconds. During this interval, Girard has to still be facing a “Red 2”. After a period of two seconds, there is an interval of at least another six seconds whilst the lights pass through Phase C. During this interval, Girard is still facing a “Red 2”.
Consequently, after that period of at least six seconds, phase C would cease when the “Green Arrow 4” would change to an “Amber Arrow 4”, remaining amber for four seconds. During that period Girard is still facing a “Red 2”. After that period of four seconds, the “Amber Arrow 4” would change to a “Red Arrow 4”, remaining red for a further two seconds. During this interval, Girard still has to be facing a “Red 2”.
In my view, it is only at the conclusion of that interval of two seconds that the light in front of Girard would change to a “Green 2” at the commencement of Phase A.
Furthermore, the speed of 30 kph, at which Marshall says he was travelling, supports such a conclusion. Marshall states that he observed the “Green 5” ahead of him change to an “Amber 5” as he was passing the AAMI building on his right i.e., about 50 to 100 metres from the Fairfield Rd/Cornwall St bend in the road. On the basis of Exhibit 2,[12] he would have been located at no more than 150 metres from the Annerley Road intersection. I accept Counsel’s argument that driving at 30kph would see him take no more than 18 seconds. The interval, however, between the end of Phase B and the commencement of Phase A is no less than 18 seconds, which, in my view, means Girard could not have had the benefit of a green light.
[12] street map.
Contributory negligence
Accordingly it is clear that I accept that Girard has proceeded through a red light. Counsel for the third defendant argues that Marshall has nonetheless failed to keep a proper lookout as he turned the corner and changed lanes. This argument is based on the fact that he should have had a clear view of the garbage truck bearing down on him from the right as he turned into Annerley Road. Marshall concedes that he did not observe the approaching garbage truck before the collision occurred.
Marshall was completing the turn from Cornwall Street in to Annerley Road and he was still required to exercise due diligence and care and keep a proper lookout. I accept that he was travelling at a moderate speed and that he was coming onto a major road from what was a non major road. Furthermore, the evidence was that he was moving over a lane to get over to the lane closest to the centre lane in order to execute a right turn further along Annerley Road. The decision of Eva (Joseph) Ltd v Reeves[13] however establishes that a motorist entering an intersection when the lights are in his favour is not bound to assume that others may illegally attempt to. Scott LJ held:
“Nothing but implicit obedience to the absolute prohibition of the red – and indeed of the amber, subject only to the momentary discretion which it grants – can ensure safety to those who are crossing on the invitation of the green. Nothing but absolute confidence in the mind of the driver invited by the green to proceed, that he can safely go right ahead, accelerating up to the full speed proper to a clear road in the particular locality, without having to think of the risk of traffic from left or right crossing his path, will promote the free circulation of traffic... Nothing again will help more to encourage obedience to the prohibition of the lights, than the knowledge that, if there is a collision on the cross-roads, the trespasser will have no chance of escaping liability on a plea alleging contributory negligence against the car which has the right of way.”
[13][1938] 2 KB 393.
I am not therefore satisfied that contributory negligence on the part of Marshall has been established.
Marshall’s injuries
There is no doubt that Marshall had a number of pre-existing injuries at the time of the accident. I consider that Marshall has been very forthright about those injuries. They included injuries to his spine, shoulders, left wrist, right hand and left knee. He had also experienced a depressive illness which at the time of the accident was in remission.
There was clear evidence that Marshall returned to work in January 2006 after his recovery from his shoulder surgery in June 2005. It is also clear that he was working well in the eleven months post surgery. He had achieved a supervisory position within Higgins Coatings who were pleased with his work. He was considered as suitable for promotion in the future. There is no evidence before me that any of his pre-existing injuries were having any impact on his actual functioning at the time of the accident. It would seem clear to me however that long term the number, nature and extent of those injuries would necessarily have had an impact on his long term work prospects. In my view, the nature and extent of those pre-existing injuries are factors which must be taken into account in determining how long Marshall would have been able continue to work on a full time basis into the future.
I have no doubt however that despite the pre-existing injuries Marshall then sustained a number of injuries in this accident. Those injuries have resulted in serious consequences for him. The medical reports support such a conclusion.
I accept that he sustained the injuries set out in the Statement of Claim, the details of which are as follows.
Fractured hand
Marshall suffered a fractured hand which initially was placed in plaster but later required surgery in December 2006. He subsequently developed an infection. Further surgery by Dr Couzens was required to remove screws as the tendon had wrapped around a screw which had become loose in July 2007. There was a further surgical intervention in September 2008 to remove a bone chip. Marshall ultimately will need a joint replacement on his third metacarpal bone.
Dr Gillettt is an orthopaedic surgeon and he gave evidence in relation to Marshall’s injuries. He also made reference to two reports he had prepared in that regard dated 14 April 2008 and 8 December 2008 and his assessment of whole-person impairment in accordance with AMA5 methodology.
In relation to the left hand, he considered that a 2 per cent impairment was appropriate given the pain and discomfort associated with the left hand fracture. He considered that equated to a 3 per cent loss of upper extremity function.
Bilateral knee injuries
Marshall also sustained an injury to both knees when his knees hit the dashboard. The orthopaedic surgeon, Dr Johnson, performed surgery on both knees on 24 April 2007, but within days Marshall developed a deep vein thrombosis (DVT) as a direct result of that surgery. I accept that he was in excruciating pain and was hospitalised for four days and needed to take Warfarin for a period of time. Marshall also considers that his surgeon failed to diagnose his DVT, despite continual complaints by him, and showed him a callous lack of care which nearly caused his death.
Dr Gillett indicated that all the documentation support injuries due to the accident. His assessment in relation to the right knee was a 7 per cent impairment of lower limb function reflecting partial menisectomy and patello femoral changes. He considered this equated to a 3 per cent impairment of lower limb function. Similarly in relation to the left knee he assessed a 10 per cent lower limb function reflecting partial medial and lateral menisectomy which gave a 4 per cent whole person function.
Right shoulder injury
Marshall continued to experience shoulder pain and was referred to orthopaedic surgeon Dr Nutting. He suffered an injury to his acromioclavicular joint and underwent surgery in November 2007, with further surgery in May 2008, where he was an in-patient for 3 days and had his arm immobilised in a sling for 10 days.
Psychiatric Injuries
Marshall developed psychiatric problems as a result of the accident and was referred to a psychiatrist, Professor Barry Nurcombe, who prepared a report dated 19 April 2007. Professor Nurcombe considered that Marshall had an adjustment disorder with depressed mood as well as litigation stress. At that time the psychiatric condition was in remission as he was receiving appropriate anti-depressant medication. In particular, the report noted that Marshall felt upset about the accident given he could have been killed. He was also disgruntled because his knee problems were not diagnosed for a month. That report was prepared prior to the development of the DVT in late April 2007.
It is clear that the continued pain and the traumatic circumstances surrounding his DVT have further compounded his psychiatric injuries. Dr Curtis Gray, psychiatrist, in his report dated 11 March 2009, states that Marshall said he had “gone further down” since the DVT and that he considers he has “cheated death twice’. He noted Marshall’s view was that every time he has an operation he seems to go backwards. Dr Gray confirmed a diagnosis of a severe Adjustment Disorder. He stated that Marshall suffered psychologically in the face of physical injury and he had a lot of distress about the accident. He considered that he was unemployable when he saw him in 2009 and would accept Dr Bell’s opinion as to his current functioning.
Due to the exacerbation of his symptoms, he has seen Dr Bell for psychiatric treatment and also received psychological assistance from a WorkCover psychologist. Dr Bell has provided a number of reports and gave evidence that he has been Marshall’s treating psychiatrist since 2008. He indicated that he was aware that Marshall had seen Dr Gartrell after the 1985 accident and, accordingly, he considered he had a pre-existing psychiatric condition, which was in remission at the time of this accident.
Dr Bell acknowledged that Marshall showed a lot of anger towards his treating medical practitioners after both the 1985 accident and after the current accident. Dr Bell stated that there are a number of factors which account for his Adjustment Disorder, including his anger toward Dr Johnson, as well as “chronic pain, severe chronic pain, the physical restrictions that he now has”.[14] He considered Marshall would need medication long term, given he had suffered “another significant knock to his self-confidence and self esteem”.[15] He agreed, however, that the stress of litigation was also a contributing factor and that his psychiatric condition may well improve after the case has concluded, but “not to the extent that he will ever be anything like he was prior to the accident”.[16]
[14]Transcript day 2 p 64 ll 18-20.
[15]Transcript day 2 p 64 ll 8-9.
[16]Transcript day 2 p 64 ll 29-30.
Dr Bell indicated that he doubted that Marshall could return to any work. He stated:
“Well, if - if you look at the range of his symptoms, his problems, very big problems, with his mood and that's on a daily basis. You know, he is easily moved to tears. It is very changeable. Five minutes later he could be - instead of tearful he could be totally apprehensive and tense and then he won't talk to anyone. Five minutes after that he could be very angry. His energy levels are very poor. His motivation is very poor. He doesn't sleep well, which factors into the problems with his mood and so on. His concentration and memory are very poor. They do vary, they go up and down, but they're always unsatisfactory in terms of doing any sort of work. For example, a clerical administrative desk-type job, he couldn't do that. Socially he is very withdrawn. He doesn't relate well to people because of his psychiatric problems. Yes?-- I think it really would be very, very difficult to see what he could do in the way of employment in the future.
How was it that he managed to recover and return to full-time work after that eight-year period off work during which he saw Dr Gartrell for a period of about five years?-- Well, I mean, that's eight years you say that it took him on that occasion. I think he is worse now and if he took another eight years, he'd be 58 before he could consider going back to work. It is just not very likely at all.
But when Dr Gartrell was seeing him he was suicidal, he wasn't coping well at all, was he?-- Well, that's - that's very similar to how he is now.”
Dr Bell also carried out a PIRS assessment and allocated a rating of 17 per cent. He also stated:
“I am aware that Mr Marshall sustained a serious physical injury in the 1980’s long before the accident currently under discussion. However, there was no pre-existing psychiatric impairment of any significance prior to the accident on 17.11.06. No consideration therefore needs to be made for any pre-existing psychiatric impairment in the current PIRS assessment.”
Work History
Marshall started as an apprentice in 1976 and first qualified as a painter in 1979. He was self employed from 1979 to 1983. He then suffered the injury to his neck and shoulder in the motor vehicle accident in 1985 and was away from work for 8 years. He did not resume work until 1993 when he did some sub contract work until 1998. He had 3 months off work when he fell off a ladder at home in August 1994. He then worked as a foreman painter from 1998 and had further time off work in February 2001 when he sustained injuries while painting. He then worked in an administrative capacity from June 2002 to July 2003 and subsequently worked as a painting subcontractor from July 2003 to mid 2004. In June 2004 he commenced with Ultimate Painters but sustained an injury in August 2004 when he bent down to paint a skirting board and was off work until December 2004 when he ceased work. He then commenced with Higgins Coatings, his employers at the time of the accident on 12 January 2005.
Mr Chris Dennis is the state manager of Higgins Coatings and he gave evidence that Marshall worked for the company from January 2005, initially as a painter and then as a foreman painter. He stated that Marshall had in fact brought in a number of projects in a timely manner and with “very good budget profitability”. They had also received glowing reports from the project manager on one of the jobs about Marshall’s performance on that project. He gave evidence that the company was going to fast track his advancement within the company. He stated:[17]
“-he had very good people skills and also operationally very good delivery skills. We were look at trying to advance him, as our business grew, into a supervisory role, where he would be totally off the tools and oversee projects rather than running them.”
[17]Transcript day 2 p 30 l 56.
Mr Dennis advised that if Marshall had stayed with the company he would have been promoted to a supervisory role by 2007 or 2008, with a commencing salary of $65,000 within a range which went up to $85,000 for the more senior roles. He would have also been entitled to the use of a fully maintained vehicle and mobile phone.
Mr Dennis also stated that whilst he was aware Marshall had a previous tear in his shoulder it had not impacted on his work with the company.
General Damages.
Schedule 4 of the Civil Liability Regulation 2003 (Qld) makes provision for awards of general damages in cases to which the Act applies. Schedule 3 sets out the matters to which the court is to have regard in awarding damages as follows:
“2 Injury mentioned in sch 4
(1)In assessing the injury scale value (ISV) for an injury mentioned in the injury column of schedule 4, a court must consider the range of injury scale values stated in schedule 4 for the injury.
(2)The range of ISVs for the injury reflects the level of adverse impact of the injury on the injured person.
3 Multiple injuries
(1)Subject to section 4, in assessing the ISV for multiple injuries, a court must consider the range of ISVs for the dominant injury of the multiple injuries.
(2)To reflect the level of adverse impact of multiple injuries on an injured person, the court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the court would assess for the dominant injury only.
Note—
This section acknowledges that—
• the effects of multiple injuries commonly overlap, with each injury contributing to the overall level of adverse impact on the injured person; and
• if each of the multiple injuries were assigned an individual ISV and these ISVs were added together, the total SV would generally be too high.”
I consider that Marshall’s dominant injury is his psychiatric injury of Chronic Adjustment Disorder. A PIRS rating of 17 per cent places the psychiatric illness within Item 11 of Schedule 4. However, s 3(2) of Schedule 3 provides that the court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than for the dominant injury only. Counsel for Marshall argues for a rating of 40 which is at the top of the range. In my view, however, I consider that a rating towards the top of the range but not at the top is more appropriate. Counsel for Girard argues for a rating of 30. I will allow 36 which on the Tables allows for compensation of $58,400.
Section 60 (1) of the Act precludes an award of interest on general damages.
Special damages and Interest on special damages
I accept the special damages outlined in Exhibit 3[18] with the minor adjustment in relation to items B and C to exclude the GST component.[19] This is a total of $68,846.86.
[18]Schedule of Expenses.
[19]As per third defendant’s Special Damages schedule contained in outline of submissions.
Interest at 2.535 per cent for 4 years is payable on the amount of $4,614, which was paid by Marshall and is $467.86.
Past economic loss
Marshall also gave evidence that he tried to return to work in September 2007, but he required further surgery to his right shoulder in November 2007 and May 2008. He has not since returned to work.
I accept that in the 16 weeks prior to the accident Marshall earned an average of $1,363.31 gross per week and in the longer period from January 2006 until the accident earned an average of $1,271.16 gross per week. Exhibit 5[20] however, makes it clear that the base rate of hourly pay increased from July 2006, which therefore indicates that his notional salary for the 2006-2007 year would have been based on this higher rate. I also accept that by 2008 Marshall would have been paid $65,000, and would have had an entitlement to a car had he been able to sustain his employment.
[20]Bundle of pay slips.
I have considered Mr Grant-Taylor’s complex analysis of Marshall’s possible earnings over the last four years and Mr Campbell’s arguments in reply. Mr Grant-Taylor argued for a figure of $207,165 up to the date of trial, based on a notional income for each of the four years since the accident. He argues for a notional net income in 2006-2007 of $53,056, in 2007-2008 of $54,092, in 2008-2009 of $59,597.00, in 2009-2010 of $61,459 and 2010-2011 of $63,472 ($26,611.00 to date of judgment). The total to date of judgment based on this calculation is therefore $254,815.00. Mr Campbell essentially argued for a figure of $117,000 to date of trial based on $750 net per week discounted by 20 per cent for contingencies.
I accept the basis of Mr Grant-Taylor’s calculation which is based on Marshall’s earnings and prospects as at the date of the accident. This calculation clearly takes into account an increase in his wages over the period from the date of accident to the date of judgment.
However, given the extent of his pre-existing injuries and his work history, I consider it likely that Marshall would have had some significant periods off work in this time. I consider therefore that a substantial discount needs to be applied to take into account the vicissitudes of life over this period because of the extent of Marshall’s pre-existing injuries and his past work history. As Luntz has indicated:
“In practice justice is usually done if the plaintiff is awarded the aggregate of the actual money amounts that would have been earned, ignoring the counterbalancing factors of adverse contingencies and the diminished value of money. Nevertheless, particular circumstances may call for some reduction, which on occasion can be substantial.”[21]
[21]H Luntz, Assessment of Damages for Personal Injury and Death, Fourth Edition, LexisNexis Butterworths 2002.
Mr Grant-Taylor, however, argues that no discount should be applied as the defendants have failed to discharge the onus on them as set out in Purkess v Crittenden[22] to establish not only what the pre-existing conditions were but what the future effects, “both as to their nature and their future development and progress, were likely to be”.
[22](1965) 114 CLR 164.
In my view Marshall’s previous work history speaks for itself and establishes that over the 30 year period from 1976 to 2006 he had at least nine years off work in at least five distinct periods. Marshall’s work history does not show long periods of continuous employment. I consider therefore that it is highly likely that this pattern would have repeated itself over the rest of Marshall’s working life.
I consider that a discount of 15 per cent over the four years from the accident to the date of trial needs to be applied given the particular factual circumstances of this case. This represents a figure of $216,592.75 from which an amount of $30,778 needs to be deducted for Marshall’s actual employment in the period. This leaves a figure of $185, 814.75.
Interest on an amount of $102,332.07 (after deduction of net weekly workers’ compensation payments totalling $83,482.68 from $185,814.75) which pursuant to s 60 (3) of the Act is 2.535 per cent for four years is $10,376.47.
Past Loss of employer’s contributions to superannuation
The loss of Marshall’s employer’s contribution to his superannuation which would otherwise have been made should be calculated at 9 per cent. Accordingly 9 per cent of $185,814.75 is $16,723.33.
Interest on past superannuation
Interest is calculated at 2.535 per cent on $16,723.33 over 4 years is $1695.75.
Future economic Loss
I accept that Marshall will not return to work given the extent of his psychiatric injuries. I consider that, given Mr Dennis’ evidence, Marshall would have risen to be a supervisor by the date of trial. As I have indicated I accept Mr Grant-Taylor’s analysis of Marshall’s future earning capacity. However once again given Marshall’s work history over the last thirty years and the level and extent of his pre-existing injuries I consider a substantial discount should be applied. Whilst I note Counsel for Marshall has argued that “the standard 10% suggested by Martin J in Waller v McGrath”[23] should be applied it is clear that the application of a discount for contingencies depends very much on the particular circumstances of the case. Luntz notes that the discount is varied in an upward direction where the Court considers “their estimation of the vicissitudes likely to affect the plaintiff is greater than normal” and states that a “survey of authorities reveals that discounts of up to 40% have been applied for vicissitudes”.[24]
[23][2009] QSC 158 at 50-53.
[24]At p 322 of footnote 116.
I therefore accept Mr Grant-Taylor’s calculation of $1217.34 per week for the next 16.5 years.[25] Discounting at 5 per cent per annum for 16.5 years (multiplier 591.3) yields a figure of $719,813.14. I consider however that for future economic loss a 40 per cent discount is required given Marshall’s work history and increasing age. I consider that in the 16.5 years of working life remaining from Marshall’s current age of 50 and a half years there would have been significant periods off work given the fact his work history shows he has not had long periods of continuous employment. I also consider it unlikely that Marshall would have actually been able to work to age sixty seven before this accident given the wide ranging nature of his pre existing injuries and the natural impact of the ageing process. The work history reveals he put his knee out previously by simply bending down to paint a skirting board. In my view continuous employment for the next 16 and a half years would not, prior to the accident and on the balance of probabilities, have been possible. I also consider that Marshall has some residual working capacity and that whilst he may not be able to work fulltime in the future his previous pattern of work history after injury indicates that in time Marshall should be able to work for short periods from time to time. Taking all of those factors into account I consider a discount of 40 per cent should be applied. A discount of 40 per cent yields $431,887.89
[25]Current Centrelink pension age for men born after 1957 is 67.
‘BERT’ entitlements.
Marshall will also suffer loss of retirement benefits in the Building Employees’ Redundancy Trust (BERT) which is agreed to be a value of $59.55 for 16.5 years discounted at 5 per cent per annum (multiplier 591.3) which is $35,211.92, with a further 40 per cent discount of $14,084.77 for contingencies totals $21, 127.15.
Future loss of employers contributions
The future loss of employer’s superannuation contributions is calculated at the rate of 9 per cent based on the future economic loss. Accordingly 9 per cent of $431,887.89 is $38,869.91.
Past Care and Services
Marshall gave evidence of the impact the injuries had on his functioning after the accident and outlined the assistance he has required since the accident from his wife particularly post surgery. He clearly had surgery on a number of occasions and was hospitalised on seven occasions after the accident. I accept that he would have required assistance at home from his wife post surgery with respect to showering, toileting, dressing and personal hygiene.
A report was also prepared by Lee Ng, an occupational therapist. Marshall initially claimed $39,931 for services provided by his wife, based on the report of Mr Ng. Mrs Marshall also gave evidence of the care which she has provided post accident as well as the care she provided before the accident. Mrs Marshall is self employed and operates a cleaning service business.
However, after hearing Mrs Marshall’s evidence, it is clear that the level of care she provided prior to the accident was high, with very little domestic work being done by Marshall. Mrs Marshall did all the cleaning, washing and cooking pre‑accident. Section 59 (2) of the Act provides that damages for gratuitous services are not to be awarded if gratuitous services of the same kind were being provided to Marshall before the accident. Accordingly, the level of care actually provided needs to be amended to reflect this fact. I accept, however, that the threshold imposed by s 59 (2) has been satisfied.
Counsel for Marshall submitted that the adjusted claim to reflect this fact is now $11,838.75. Mr Campbell submitted that 800 hours at $20 per hour was the maximum which could be claimed which is $16,000. Having heard Mrs Marshall’s evidence I consider this figure is in fact too high.
Accordingly, I will allow $12,000. Interest is calculated at 2.535 per cent per annum for four years, which is $1,216.80.
Future Care and Services
Marshall initially claimed future care and services for six and a half hours per week. It is clear from the evidence that the amount of care required is less than that. Counsel for Marshall has submitted an appropriate figure is $14,000. This is based on care at 45 minutes per week at an agreed cost of $22.70 per hour for the next 30 years. I accept that calculation and the basis upon which it is made.
Fox v Wood Calculation
The Fox v Wood figure is agreed to be $19,669. I accept this calculation.
Future Expenses
In relation to future expenses not otherwise taken into account, I accept that Marshall will require psychiatric care into the future but that his depression should improve with ongoing treatment. I consider that he would not require more than 4 sessions per year once this litigation is complete. At $310 per session which is $1240 per year this is $23.84 per week discounted at 5 per cent per annum over 35 years (multiplier 875.6) which is $20,874.30.
In terms of medication, I accept that antidepressant medication will be required long-term at a cost of $8.75 per week discounted at 5 per cent per annum for 35 years (multiplier 875.6), which is $7,662.
With respect to pain relief, I will accept a figure of $5.75 per week to pay for the future cost of Celebrex, Aspirin and similar medication which discounted at 5 per cent per annum for 35 years which is $5,035.
Marshall claims $8,397 for other medical attendances over the next 35 years. I will allow a global figure of $5,000.
I will allow a further $2,000 for future travel for medical appointments.
I do not consider the future commercial costs of maintaining the garden have been satisfactorily established.
I therefore calculate damages as follows.
1. General damages 58,400.00 2. Special damages:
(a) Hospital expenses paid by WCQ 13,418.70
(b) Medical expenses paid by WCQ 44,556.49
(c) Rehab expenses paid by WCQ 4,147.25
(d) Travel expenses paid by WCQ 24.97
(e) Refund to Medicare (to 28.05.10) 2,085.45
(f) Medical expenses paid by plf (Ex 3) 1,853.00
(g) Travel/parking expenses paid by plf (Ex 3) 450.00
(h) Medication expenses paid by plf (Ex 3) 2,311.00
68,846.86
3. Interest on special damages paid by plf ($4,614) at 2.535% per annum for 4 yrs since accident 467.86 4. Past economic loss of $216,592.75 for 4 years minus $30,778 earnings 185,814.75 5. Interest on net past economic loss (after deduction of $83,482.68 net WCQ payments) at 2.535% per annum for 4 years since accident 10,376.47 6. Future economic loss of $1,217.34 per week net for 16.5 years discounting at 5% per annum (multiplier 591.3) yields a figure of $719,813.14 with a 40% discount. 431,887.89 7. Past superannuation loss (9% of $185,814.75) 16,723.33 8. Interest on past superannuation loss 1695.75 9. Future superannuation loss 9% of $431,887.89 38,869.91 10. Future BERT loss $59.55 for 16.5 years discounted at 5% per annum (multiplier 591.3) which is $35,211.92, with a further 40% discount for contingencies. 21,127.15 11. Fox v Wood 19,669.00 12. Past care 12,000.00 13. Interest on past care at 2.535% per annum for 4 years 1,216.80 14. Future care 45 minutes per week at 22.70 per hour discounted at 5% (multiplier 822) for 30 years 14,000.00 15. Future psychiatric treatment ($23.84 per week at 5% for 35 years (multiplier 875.6) 20,874.30 16. Future Cost Antidepressant medication ($8.75 per wk discounted at 5% for 35 years (multiplier 875.6) 7,662.00 17. Future Cost Celebrex, aspirin etc. ($5.75 per wk discounted at 5% for 35 years (multiplier 875.6) 5,035.00 18. Future medical not otherwise specified and future travel ($5,000 plus $2,000) 7,000.00 TOTAL $921,667.07
I give judgment for the plaintiff against the third defendant in the sum of $921,667.07.
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