McIvor v Meshlawn Pty Ltd - [1999] QSC 188

IN THE SUPREME COURT
OF QUEENSLAND No. 5901 of 1996
Brisbane
[McIvor v Meshlawn Pty Ltd]
BETWEEN:

EARL FRANKLIN McIVOR
Plaintiff

AND:
MESHLAWN PTY LTD
Defendant
REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 12 August 1999

CATCHWORDS: DAMAGES - MEASURE AND REMOTENESS OF DAMAGE IN ACTIONS FOR TORT - REMOTENESS AND CAUSATION
Pl/handyperson injured left shoulder when carrying a refrigerator in the course of employment - Assessment of damages only - Plaintiff suffered a major depressive disorder as a consequence of being unable to work - Whether plaintiff predisposed to depressive disorder - effect of unrelated back & ankle injury

Counsel:Mr J.R. Webb for the plaintiff.
Mr M.T. O’Sullivan for the defendant.

Solicitors:Gall Standfield & Smith for the plaintiff.
Mullins & Mullins for the defendant.

Date of Hearing:  7 & 8 April 1999.
IN THE SUPREME COURT
OF QUEENSLAND  No. 5901 of 1996
Brisbane
BETWEEN:

EARL FRANKLIN McIVOR
Plaintiff

AND:
MESHLAWN PTY LTD
Defendant
REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 12 August 1999

The plaintiff was injured on 1 March 1995 in the course of his employment as a handyperson. He was carrying a bar refrigerator up a flight of stairs assisted by two other employees. The plaintiff was supporting the top of the refrigerator, which had been tipped onto its back, and the two other employees were each supporting a corner at the bottom of the refrigerator. One of the employees lost control of the refrigerator, causing it to tilt down and the plaintiff took the weight of the refrigerator on his left leg and left shoulder. Liability is admitted but it is necessary to assess damages.
The plaintiff is a right handed man who was born 1 October 1940 in New Zealand. He was educated to Grade 6 standard, leaving school at the age of 13. He worked as a farm hand for a number of years and then joined the Merchant Navy at the age of 16, remaining there until he was 18 years old. Between the ages of 18 and 49, the plaintiff worked in New Zealand in various jobs, including work at the Department of Railways, as an undertaker, a chain slaughterman and renovating houses. He married when he was about 26 and had a family although his children were grown up and independent at the time of events giving rise to this action.
The plaintiff came to Australia with his family in 1989. From 1991 to the time of the accident in March 1999 he entered into a number of commercial enterprises, none of which seem to have been profitable but operated at a loss. He was the proprietor of an ice cream parlour, a fun parlour and a self-employed painter. During this period the plaintiff also derived income as an employee. He worked as a cleaner for three months in 1991 - 1992, a painter from April to May 1994 and from July to August 1994. During 1994 he was employed by the defendant for approximately seven and a half months, up until the date of the accident.
After the accident, the plaintiff continued to be employed by the defendant for some weeks. He also worked as a painter for a number of months and did a few days of casual work. Other than that the plaintiff has not worked and has received payments from the Workers’ Compensation Board and the Department of Social Security. It is unlikely that he will work in remunerative employment again to any significant extent.
As I’ve said, the plaintiff continued to work for the defendant for some weeks after the injury, after that the pain was such that he gave it up. He has seen a large number of doctors over the years since the incident, been the subject of many reports, treatments and interventions with little or no degree of success. He was referred by his general practitioner, Dr Clapham, to Dr Stabler, an orthopaedic surgeon who first saw him on 11 May 1995. Dr Stabler concluded the plaintiff had suffered injuries to the brachial plexus and the shoulder. Dr Stabler thought the condition would settle with steroid injections but it did not. The plaintiff returned to work in 1995 performing light painting duties, but ceased after two months as he found the pain intolerable.
On 16 January 1996 Dr Stabler explored the left shoulder under general anesthetic and found a laminar tear and a small full thickness tear in combination which were consistent with having occurred in the incident of March 1995. He repaired the tears and took other steps to ameliorate the effect of the condition but these were not successful. Dr Stabler operated again on 19 May 1996; he found a blocked elevation at 70 degrees of elevation, managed to overcome the related adhesion and obtained full elevation. He injected a steroid compound local anaesthetic and packed the shoulder in ice. Post-operative physiotherapy was commenced and continued twice daily up to the plaintiff’s discharge. At a review on 28 March 1996, the plaintiff’s progress was poor, he was not doing well with physiotherapy and complained of neck pain and tingling in the left upper limb. In a report of 1 June 1996, Dr Stabler concluded that the plaintiff’s condition was virtually stable and that the plaintiff had a permanent/partial impairment of function of the left arm.
The plaintiff may, at times, have overstated the effect of his physical disability as a consequence of his shoulder injury but by and large he is genuine and his disability is consistent with the objective signs. The plaintiff has a permanent/partial disability of the left shoulder of the order of 15 percent to 20 percent loss of function. On account of it he will not be able to follow his previous occupation of handyman or painter. He is unable to use his left hand above chest height and although he is right handed that will greatly restrict his capacity to work in the kinds of occupations he has previously followed. His education and work history do not fit him particularly well for occupations where his injury would be less restricting.
It is clear that the plaintiff suffers from depression which is related to his shoulder injury and his consequent inability to work although the nature and extent of the relationship are controversial. There is an issue as to whether he was predisposed to the onset of that condition so that it might have occurred in any event or have been precipitated by another traumatic incident.
The plaintiff described himself as a “workaholic” having worked all his life; he has apparently been a hard and consistent worker. He did not cope with the failure to effectively treat his shoulder to permit him to return to work or his inability to return to work. He consulted his general practitioner, Dr Clapham in relation to the consequences of this in March 1996. By 26 June 1996, Dr Clapham thought that the plaintiff’s depressive symptoms had increased to the extent that he required antidepressant medication which were prescribed. By 20 August 1996, Dr Clapham thought that due to lack of improvement in his shoulder and consequent inability to return to work, the plaintiff was becoming increasingly depressed and anxious. There is no occasion to doubt this.
On 8 August 1996, Dr Straton, a psychiatrist, reported that for the past three months the plaintiff had been taking prozac, valium and normison on a regular basis. He was, it seems, drinking heavily and was somewhat erratic in taking his prescribed dosages; it seems that he has deliberately overdosed on occasions. Dr Straton concluded that the plaintiff had a major depressive disorder, not “entirely explained by his shoulder alone”. He prescribed a change of the drug regime.
By 30 April 1997, although Dr Straton thought the plaintiff had improved somewhat, he nevertheless diagnosed a major recurrent depressive disorder, alcohol dependence and panic disorder associated with agoraphobia. The prognosis was poor and dependent on whether the plaintiff remained off alcohol, whether he consolidated the new relationship he had formed with another woman after he had broken up with his wife and whether he cooperated with people who were attempting to help him. On my observation there is no occasion to be optimistic that these conditions will be satisfied. Dr Lawrence, a consultant psychiatrist, thought, for reasons which she explored, that the plaintiff was predisposed to the development of drug dependency abuse not least in relation to alcohol.
Dr Julian Boulnois, psychiatrist, in his report of 4 June 1998, thought the plaintiff suffered from a major depressive disorder which appeared on the face of it to directly relate both to the accident and to the fact that he is of a personality type which makes it impossible for him to cope with a lack of gainful employment. Life events subsequent to his accident, such as his wife leaving him, have added to his problems causing a secondary depressive overlay. In terms of the American Psychiatric Association classification of permanent disability he concluded the plaintiff is at least 35 to 50 percent disabled.
In cross-examination Dr Boulnois stated that if the plaintiff had not incurred the work injury and had incurred only the ankle and back injury, to be referred to later, and those injuries had led to the plaintiff being unable to pursue gainful employment, the plaintiff would have in all probability suffered from a depressive illness of the same type as the one which he currently suffers from.
The plaintiff has developed back and ankle problems unrelated to the events of 1 March 1995. The back problem arose in a debilitating way in early 1998. It appears to be related to nerve pinching his vertebrae. It may be that the plaintiff’s lack of activity and weight gain, consequent on his inactivity, after the March 1995 accident, has a role in this and I have borne it in mind. The extent of the role is, however, problematic to say the least. The plaintiff developed a lateral ligament instability of the ankle as a consequence of a fall in October 1998. He contended that his shoulder injury prevented him from averting the injury because it prevented him grabbing a tree or otherwise breaking or preventing a fall but I am not persuaded that that was so. It would be necessary to have a good deal more detail of the circumstances than the evidence provides for and for that detail to found the conclusion contended for.
There is no reason not to accept that the plaintiff was a hard worker and that his work involved essentially physical activities which he can no longer engage in as a consequence of the accident of 1 March 1995, or which are greatly restricted by the consequences of that accident. There is no doubt that he was adversely affected, quite understandably, by the failure, from his perspective, of the various interventions and treatments to deal effectively with the pain and restrictions he suffered as a consequence of his accident and that he was and is stressed by his inability to work.
There are however aspects of his evidence which need to be approached with considerable caution. There is no evidence, other than from the plaintiff, including accounts given by him to medical practitioners, of the plaintiff’s pre-accident personality or history. It seems that he came from a large family and lived a hard life as a child; his father seems to have died when he was quite young. The probability is that he was a substance abuser, particularly of alcohol, prior to 1 March 1995. Since then it seems that he has been a heavy user of his prescribed medication, overdosing deliberately on occasions as well as abusing alcohol.
It is clear that he presented something of a challenge to the various psychiatrists who had treated or reported in respect of his condition. Dr Lawrence, in particular, formed an adverse view based, among other things, on his attitude. In fairness to him, I have the impression that he was resentful about the circumstances of the examination which was arranged by the solicitors for the defendant on fairly short notice. My observations of him during the trial however certainly reinforce the conclusion that he has what I will call a difficult personality.
In the course of his evidence the plaintiff initially said that he would not undertake a rehabilitative operation to deal with his back and ankle injuries, but the following day he said he would. His initially expressed attitude is, in my view, understandable, if not justified, in the light of his past experiences. It seems, however, that he changed his mind because he thought that would advance his case.
At the time of the March 1995 injury, the plaintiff’s evidence is that he had taken casual, rather than permanent employment, in order to care for his wife who had suffered an injury to her lower back. The plaintiff says the marriage was already under pressure because of his wife’s inability to work and the need for him to look after her and that the injury to his shoulder and the consequent frustration at not being able to work and depression, caused the marriage to break up. On another version of it the plaintiff “threw her out” for reasons unrelated to the consequences of this accident. I do not know where the truth lies although there is no doubt that the marriage broke up, a consequence which created additional stress and at least added to the plaintiff’s depression. I am not prepared to conclude that the break up was a consequence of the effects of the March 1995 accident. It is likely that the plaintiff’s ankle and back condition would have, in any event, restricted the plaintiff’s earning capacity particularly as he grew older and that this may have adversely affected his predisposed personality and caused depressive illness of the same character as that from which he presently suffers; whether to the same degree is a more difficult question.
Put shortly, therefore, the plaintiff is disabled by the combined effect of his shoulder injury and a major depressive disorder probably precipitated by the accident of 1 March 1995, the course of treatment and his consequent inability to work . He was, however, predisposed to such an outcome which may have been otherwise precipitated by some other stress. It is significant that they plaintiff probably had an alcohol abuse problem, perhaps other adverse personality manifestations, prior to the accident. His depression was, however, exacerbated by the break up of his marriage which was probably building up prior to the accident. The consequences of his other injuries, which are unrelated to that of 1 March 1995, would probably have had an adverse effect on his personality problems in due course. The prospects of recovery are slight and those of his condition deteriorating are significant. On the view I take of the evidence it is quite impossible to quantify the affect of these various considerations either separately or in relation to one another.
While they were together after the accident it seems the plaintiff received some assistance from his wife to carry out tasks he would otherwise have been unable to do on account of his disability. He formed an association with a woman with whom he still resides and who he now describes as his landlady. She has provided and continues to provide him with support, care and assistance which he needs as a consequence of his condition. I have no doubt that as a consequence of his injuries the plaintiff is, and will continue to be, unable to carry out various activities. His need has obviously fluctuated up to the present. The peaks were no doubt the periods following the various incidents of surgical intervention. It is difficult to determine the extent to which he has needed and will continue to need assistance, those periods aside. The evidence is to be approached with caution and the effect of his disability unrelated to the March 1995 incident has to be taken into account. The difficulties those considerations raise are particularly acute so far as the future is concerned.
I turn now to reflect the considerations I have been canvassing. The plaintiff was just over 54 on the date of the accident. I accept he had a life expectancy of another 21 years. For reasons I have already canvassed his earning capacity would have come under increasing pressure. His pre-accident earnings reflect what seems to have been a number of unsuccessful business ventures. It is difficult to assess the extent to which his future care needs are caused by the consequences of the accident of March 1995, but not all are. The considerations of his predisposed personality and of his subsequent back and ankle problems have to be borne in mind. As I indicated earlier, it is difficult, given the evidence, to treat these and other considerations as matters of calculation.
1.Pain, suffering and loss of amenities  $45,000.00
2.Interest on $7,000 (approx) for four years  570.00
($20,000 - $13,249)
3.Post economic loss (taking into account $4,967 earning)  45,000.00
4.Interest (no allowance on account of WorkCover and Centrelink payment)  -
5.Future economic loss  50,000.00
6.Special damages (exhibit 35)  13,289.17
7.        Fox v. Wood component  3,258.00
8.Interest (no allowance - on account of payments by
the Workers’ Compensation Board)  -
9.Future medical and pharmaceutical expenses  5,000.00
10.Lost superannuation contribution -
Past  2,250.00
Future  3,500.00
11.Post care  6,000.00
Interest  480.00
12.Future care      30,000.00
TOTAL  $204.347.17
Less WorkCover refund     46,248.93
JUDGMENT  $158,098.24