O'Brien v McMullen - [1999] QSC 208

IN THE SUPREME COURT

OF QUEENSLAND No. 2478 of 1992

Brisbane

[O’Brien V McMullen & Anor]

BETWEEN:

PETER JOHN O’BRIEN
Plaintiff

AND:

SHAUN McMULLEN
First Defendant

AND:

HUNTER BROS (QLD) PTY LTD
Second Defendant
REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered on 7 September 1999

CATCHWORDS: DAMAGES - INTEREST - Interest on damages for pain and suffering and loss of amenities - rate of interest to be applied - where interest a component of general damages.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - PARTICULAR CIRCUMSTANCES - where plaintiff a garbage truck driver injured in motor vehicle accident - where plaintiff suffered back injury as result of accident - whether pre-existing medical condition of plaintiff impacts on award of damages.

Counsel: KS Howe for the Plaintiff.

WDP Campbell for the Defendant.

Solicitors: Baker Johnson Lawyers for the Plaintiff.

Hunt & Hunt Lawyers for the Defendant.

Hearing Dates: 8, 9, 12, 13 April 1999.
IN THE SUPREME COURT

OF QUEENSLAND No. 2478 of 1992

Brisbane

BETWEEN:

PETER JOHN O’BRIEN
Plaintiff

AND:

SHAUN McMULLEN
First Defendant

AND:

HUNTER BROS (QLD) PTY LTD
Second Defendant
REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered on 7 September 1999

Peter O’Brien is a forty-two year old man who is married with two young children. He was injured in a motor vehicle accident on 28 January 1991. At that time he had been employed for twelve months as a garbage truck driver by Hunter Bros (Qld) Pty Ltd, the second defendant. He was a passenger in the front seat of the garbage truck when inattention by the driver, the first defendant, caused the truck to hit a pole and guard rail on the left-hand side of the road. The circumstances of the accident were described by the driver as follows:
“-- I asked Peter O’Brien for a cigarette. A carton or packet of cigarettes was flicked across, into the far right hand corner of the dashboard against the windscreen. Peter Wright was in the centre. He objected to me smoking and made a grab for the packet of cigarettes on the dashboard. He had to lean across in front of me to get them, and I was distracted and I could not see where I was going. At that point, we were very close to the gutter because the road curves around the right and the rear vision mirror on the left hand side hit the lamp-post and went with a pretty good crack. Then we were too close to the gutter and the left hand front wheel hit the gutter at which point I lost control. We mounted the gutter and hit the guardrail with the left hand front wheel. We continued along until the truck stopped.”

The truck was heading towards an overhead bridge over a train line and scraped up the guard rail for about 15-18 metres. Liability is not in issue.

Mr O’Brien threw himself backwards and he felt his head break the rear window. He was hit on the left shoulder by the side mirror or some other part of the interior of the truck. He said that he was in pain straight away in his neck, shoulder and thoracic region and was shaken up. The driver noticed that Mr O’Brien had cuts on his arm and shoulder. Because he was hurt he could not continue on the run so they called in to the foreman so that he could go back to the depot.
After he went back to work he filled in an accident form and went to the hospital. The report from the Princess Alexandra Hospital shows he was admitted to Accident and Emergency at 8:20 am and discharged at 12:10 pm. He reported injuring his left shoulder and neck and that he was tender over his fourth and fifth cervical vertebrae posteriorly. He had restricted flexion and rotation of the neck and tenderness over the eighth thoracic vertebra. His neurological examination was normal. He was assessed as having a whiplash injury to his cervical spine and a ligamentous injury to other areas. He was given a cervical collar, prescribed analgesics and referred to physiotherapy. X-rays of his spine showed normal cervical alignment and mild thoracic scoliosis with some wedging of T5, possibly an old injury. He went home where his wife picked glass out of his hair. He then consulted his general practitioner, Dr Duffield.
He was treated by the physiotherapy department at the hospital with ultrasound. Initially the pain improved but then deteriorated. On 13 February 1991 he was complaining of lower back pain and was unable to take non-steroid anti-inflammatory drugs (NSAID) due to pre-existing oesophageal ulceration. He first complained to a doctor about lumbar pain on 13 February 1992 when he described it to his general practitioner, Dr Duffield. The lack of earlier complaint concerning the lower back pain is not something I regard as being significant. That this is not unusual is shown by the following questioning of the orthopaedic surgeon, Dr Pentis:
“Doctor, an issue has arisen about the plaintiff not complaining of lower back pain at the Princess Alexandra Hospital. I would ask that you assume that in fact he complains on 13 February 1991 of the back pain which is a couple of weeks after the accident and that there is evidence that in fact his back was sore after the incident but when he went back to work, he was more greatly troubled by it and that he said that the major injuries that he was concerned about after the incident which were more major than the lower back were the shoulders and neck. Is there any particular significance in the fact that there was no complaint at the hospital about this lower back pain?--

Not really. You do find people that when they go back to work or whenever they find they have some problems in other areas when they stress. Also you do find a number of people who with time develop pain in areas other than their spine. When they initially present with it say in the cervical or thoracic region and they may present up to a couple of weeks later with pain in the lower back as well. You see the muscles that supply your spine interdigitate. In actual fact the muscle group is almost one even though there is about 30, 40 different muscles that make up your spine musculature and they can interdigitate so you may feel pain in different areas as time progresses.”

Indeed as Dr Wiedmann, a neuro surgeon, and Dr Douglas, a physician rheumatologist, both called on behalf of the defendant, said it was normal that a severe pain in one area of the body might mask the pain in another.

As a result of his complaint of lumbar pain Mr O’Brien had X-rays of the lumbar spine on 14 February 1992. It showed transitional lumbar vertebra representing partial lumbarisation of S1. The X-rays also showed early degenerative lipping of vertebral bodies about L4-5 disc space, some possible marginal narrowing of disc space, no evidence of old or recent vertebral fracture and that the S1 joints were normal.
Physiotherapy continued at the Princess Alexandra Hospital. On 21 February 1991, Mr O’Brien was discharged from the physiotherapy department without neck pain but with occasional lower back pain after prolonged sitting.
Further spinal X-rays taken on 28 February at Princess Alexandra Hospital were analysed by Dr Dubois who said they showed a compression fracture of T7 and uncovertebral spurring on the left at C2-3.
He was absent from work for about six weeks. During that time he was in very bad pain and was mostly bed bound. The pain was in his shoulder, arms, neck and thoracic region and lower back. On 4 March 1991, Dr Duffield certified Mr O’Brien fit to return to work. Mr O’Brien thought he was not fit to return to work as he was still sore.
During that time, his wife Barbara had to take on at least two to three hours a day of extra work in the home. Previously he had attended to the washing, preparing breakfast, mowing the lawns, shopping, cooking and other household chores. This was because he usually returned from work in time for breakfast and his wife worked during the day.
Mr O’Brien was born on 19 March 1957. He left school at the age of fifteen after the end of Grade 9. Since leaving school he was always engaged in manual labouring work. He also played A grade rugby league over a number of years. He married his wife Barbara in 1981. In May 1983, he suffered left shoulder pain when lifting a heavy wheelbarrow and was diagnosed with bicipital tendonitis. He received workers’ compensation for two weeks. He was then working as a labourer.
Mr O’Brien was forthright in admitting that he had suffered previous injuries including football injuries and work related injuries. In 1985, he was hit on the back of his head by an empty eighteen gallon keg when he was running behind the back of a semi-trailer. He had his head attended to and discovered a couple of weeks later that he had a fractured neck. The diagnosis was of an undisplaced fracture of the pedicle of his third cervical vertebra. He was off work for about eight months while it repaired itself. He said that he recovered fully and played A grade rugby league for a number of years afterwards. In doing so he said he acted on medical advice. He was declared fit to work and medical reports show the fracture had healed satisfactorily with no residual complications. He also did casual work being paid cash in hand for doing such things as concreting, and heavy manual work in a meat works. He also went back to driving a brewery truck which involved packing and unpacking the kegs on the back of the truck and so was heavy and strenuous work.
In 1986 he was involved in a motor vehicle accident. He was concerned that he might have hurt his neck but had it checked and was told it was fine. There was no fracture to his cervical or thoracic spine. His x-rays were normal. However he lost his licence and his wife left him and later divorced him because of his irresponsible attitude. He gave evidence that he also had other injuries such as sprained ankles and popped out collar bones in the course of playing touch football. In February 1988, he injured his lumbar vertebrae playing touch football. An x-ray report of 18 February 1988 shows:
“Lumbar Spine: There are 5 normal lumbar vertebrae with a transitional vertebra at the lumbo-sacral junction. Apart from the congenital anomalies, no significant bone, joint or disc pathology is shown.”

He worked for a few months as a truck driver for Maryborough Pottery and Tile and then moved to Sydney where he worked as a brewery truck driver and offsider. In December 1989 he returned from Sydney, remarried Barbara and commenced work with the second defendant as a garbage collector/driver on 4 January 1990. His first son Jack was born in October 1990, his wife had full time employment and his life was in good shape. He was employed in a job he loved and did well and his personal life was very happy. His wife graphically described their life in the following evidence:
“Had there been a turn-around in his life?-- There had been a major turn-around. That was one of the reasons I think he was so happy. He has had a very - I’m not sure what you are aware of, Your Honour, in his life but he has had a very rough - he has been dragged up rather than brought up and it’s a credit to himself and only to himself he’s turned into the man he is today. He was just an Aussie yahoo. He was a footballer and he drank with his mates. He has got five brothers - four brothers and they all drink and have a good time and he just followed the example. He was the youngest. Our first - we were married and we split up because of that very thing. He just - he had never had any responsibility, he had only had to look after himself and he didn’t - I don’t think he knew how to deal with that and he wanted a life with me but he didn’t want to give up the life that he had as well and it drove us apart with him just continuing on the way he was, and then he - you’d have to ask him the depth of this but I feel that he took stock of his life and realised what we had and that it was the most important thing and completely on his own he turned himself around. He doesn’t drink any more. There’s a very odd occasion, perhaps once every couple of years, he might go away with one of his brothers but that’s all. He never drinks otherwise. He’s just a lovely family man. He’s the man I used to dream about and wonder why he couldn’t be that man, why did he have to go drinking with his friends? Well, then he became that man to me and he courted me again and we had actually been divorced but we had always stayed in touch, albeit not that much, and we had always remained friends.

And had that turn-around affected him in terms of work, his motivation to get work and keep work?-- Yes. He just - he put his head down and tail up, as it were, and he got stuck in. I think he was trying to prove not only to himself but to me as well that he could do it and he wanted me to see that he could be that sort of man and -----

Did you see an optimistic pattern then for the whole family in terms of his employment and -----?-- Oh, yes. It’s the first time in our lives together that I have never had to worry about money really. He saved for and gave me a lovely honeymoon. I had no idea where we were going, what it cost. He did it all. He wanted to prove to me that he could do that, he could be relied on to look after me and he did it admirably, and so he was just - life was just really great, it was just bliss. It was what I used to dream about”.

Mr O’Brien did not undertake any rehabilitation other than some physiotherapy after the accident in 1991 but, as I have said, after six weeks returned to work. Unfortunately that return to work only lasted two weeks and he has not worked since. In the first week he was doing what was called the “old man’s run” where the garbage collectors walk the “run”. Then a position became available on another run in East Brisbane which was much sought after. The foreman gave Mr O’Brien this run full time. This was the first time he had had a permanent run. There is no doubt that his work for the second defendant prior to the accident had showed that this job was well within his capabilities.
When he was doing his first week of work he thought that his injury would be like a football injury, that is that it would come good after a while. However when he went onto the second run in the second week where he was required to run he found he just couldn’t keep up. As the week went on he got more sore, particularly in his lower back. He couldn’t keep up and had trouble getting out of the truck after a run. By the end of the week he was extremely concerned and thought there was something seriously wrong with him. He still had pain in his neck and shoulder but the thoracic pain and lower back pain started to get worse. He finished half way through the run on the final day when he said he couldn’t go any further. The pain he suffered was very intense and it stopped him from walking or running. He said he’d come from a hard knocks family. He was the youngest of eleven children whose father was an alcoholic. His mother died when he was thirteen. He had been taught, in his words, not to be a wimp and just get on with it but that he knew he just couldn’t keep going after this injury.
Mr O’Brien’s last day at work was 19 March 1991. On that day he saw Dr McIntyre, a general practitioner, complaining of lower back pain which she believed had been aggravated by his return to work. He was referred to physiotherapy and advised not to work until his back was better.
After he finished work he went to the Workers’ Compensation Rehabilitation Centre at South Brisbane receiving physiotherapy from Ms Olga Ohlsson for lower back pain in particular until 24 April 1991. He found the physiotherapy exacerbated his problems and he could not finish the rehabilitation. The physiotherapist informed his general practitioner in May 1991 that there had been no improvement in his condition. He went back to the pain clinic at Greenslopes Hospital which didn’t help him at the time.
Further X-rays of his cervical and thoracic spine were taken on 26 March 1991. Dr Sharwood, an orthopaedic surgeon, first saw Mr O’Brien on 9 April 1991 after he was referred by Dr McIntyre. After describing Mr O’Brien’s symptoms, he reported to Dr McIntyre:
“I think it is just a question of time. It appears that he had a significant injury and I have no reason to doubt the crush fracture in the mid thoracic region occurred as a result of this particular accident. I think this, combined with a soft tissue injury that no doubt he sustained in his neck and probably his lower lumbar spine, are contributing to his symptoms.”

He recommended x-rays of his lumbar spine. His report to the Workers’ Compensation Board on 14 June 1991 showed that those x-rays revealed narrowing of the L4-5 lumbar disc. He had reviewed him on a number of occasions however he had made little progress and Dr Sharwood thought a trial at the Rehabilitation Unit might be of value.

In the meantime Mr O’Brien had received physiotherapy from Ms Ohlsson who reported that he received only temporary relief and that mobilization techniques for the lumbar area were not useful in providing pain relief. His condition deteriorated in the course of treatment and he had marked back pain as well as bilateral leg pain.
Later in 1991, Dr Sharwood was more guarded in his prognosis that it was only a matter of time for it to settle.
On 30 March 1991, Mr O’Brien was terminated by Hunter Brothers. In April 1991, Mrs O’Brien was made redundant by Telecom and paid $27,000.00. In later April or early May 1991, Mr O’Brien consulted solicitors with regard to instituting an action for damages at common law. He undertook retraining to do an occupational health and safety course at Yeronga TAFE in late 1993 in order to find work where he was not confined to a desk and not labouring. However he experienced pain and difficulty in the sitting required to attend lectures and to study.
The chronic, severe physical pain that Mr O’Brien has suffered since the accident has had an effect on his life and on his relationship with his wife. He is chronically bored. He is resentful of his wife being able to live a normal life and being able to go out to work. He is worried about their future and worried about finances. Their relationship has had many rocky patches and they have separated in the past. The effect on his relationship with his children worries him greatly. He is restricted in the physical activities he undertakes with his two young sons and is also less able to control his anger with them. He feels humiliated that he is not the breadwinner. He has become dependent and has fallen into a “sick role”.
A psychological assessment, tendered by the defendants, was provided by Dr Douglas on the basis of two tests she administered, a Pain Patient Profile - P3 and the Minnesota Multiphasic Personality Inventory 2nd edition. That report is here reproduced in full:
“Mr. O’Brien’s results on the P3 indicate that he is reporting experiencing higher levels of sadness, pain and agitation than that found in the average pain patient. It is likely that many of his reported sleep, concentration and mood difficulties are a result of an elevated level of concern about his physical functioning. These findings are supported by Mr. O’Brien’s results on the MMPI-2.

The validity scales on the MMPI-2 indicate that while Mr. O’Brien has responded in an open and consistent manner to the test items, and is acknowledging experiencing considerable emotional distress, he feels he has limited resources to be able to cope and may be exaggerating the severity of his difficulties. His elevation on F(B), (T = 100) suggests the possibility of symptom exaggeration, or may reflect the greater number of distress-related items in the back half of the test. Thus, while the basic clinical scales can be interpreted with confidence, the content and supplementary scales will be interpreted with some caution.

Mr. O’Brien is reporting both high levels of distress and emotional disturbance. His profile of scores on the MMPI-2 are indicative of someone who is presenting with a wide variety of physical concerns that reflect constant anxiety and tension, as well as general pain and discomfort. He reports feeling below par both physically and mentally, extremely anxious about his state of health and worried about his potential for improvement.

Of particular concern are Mr. O’Brien’s extremely high levels of depression, increasing isolation, withdrawal from social contact and reported suicidal ideation. He is admitting to having strange feelings and thoughts about himself, increased levels of agitation and irritability, and may appear confused and anxious to others. It is likely that much of this has had a negative impact on his current marital relationship.

While Mr. O’Brien’s MMPI-2 pattern of scores is generally consistent with one of the Chronic Pain clusters, in that the amount of disturbance he is reporting falls within the expected pattern, the levels of distress he reports experiencing are extreme and are unlikely to be accounted for by pain symptoms alone. It would appear that the severity of depressive symptomatology following his loss of employment is a major contributing factor to his current level of functioning, independent of the physical pain he currently reports experiencing.”

There was a submission by the defendants that Mr O’Brien is lying or exaggerating his condition or deliberately malingering. It does seem that the suffering that Mr O’Brien has is out of proportion to the injury he suffered in the motor vehicle accident but there are strong psychological factors at work. Mr O’Brien was a strong, physically active and healthy man who has reacted very badly to a disabling injury. The job that he held was well suited to a strong healthy man and gave him good pay and good prospects but since the accident he has not been able to do the things that he thinks appropriate for a man of his age and size. He feels very humiliated. He has been suicidal because of his feelings of worthlessness. This explanation for the extreme nature of his response to the pain he suffers is more in accordance with common sense than the suggestion made on behalf of the defendants that Mr and Mrs O’Brien are co-conspirators in a fraudulent claim. I accept Dr Mulholland’s diagnosis of his condition as chronic dysthymic order and chronic pain disorder. This was consistent with my observation of him in court.
In addition Mr O’Brien has suffered from a narcotic dependency as a result of the accident. As his treating psychiatrist, Dr Apel, observed in a report dated 14 March 1995:
“The consequences of Mr O’Brien’s back injury have been enormous upon his life. He has suffered two major psychiatric complications; the development of overt narcotic dependency and the appearance of a major depressive disorder. His depressive disorder has proven essentially unresponsive to a range of medications tried.”

As a result of his depression and pain, Dr Apel prescribed a range of anti-depressants. He experienced no lasting benefit and frequently suffered disabling side-effects. Dr Apel said, “In some desperation I started him on a trial of Physeptone as a long-lasting narcotic that I hoped would give him more stable pain relief.” It worked well as pain relief but Mr O’Brien quickly became overly dependent on it.

A report written by Dr Apel to his general practitioner in early February 1994, gives some insight into his situation at that time. Dr Apel took the view that Mr O’Brien had worsened his situation by pushing himself beyond warning barriers of pain to the point of exhaustion rather than pacing himself. He had become frustrated, embarrassed, ashamed, depressed, anxious, irritable and sleepless. He found no effect from strong analgesics or anti-depressants. It was shortly after this time that Mr O’Brien went into Greenslopes Hospital for unrelated surgery and post-operatively he was prescribed methadone.
Dr Mulholland was of the view that there was causal link between the accident in 1991 and his opiate dependency in 1994 and 1995. He said in his report dated 14 March 1995:
“The link is that because he already had pre-existing pain and had already been on analgesics he was more than usually susceptible to the likelihood of iatrogenic opiate dependence after the initial operation in March 1994 and then the second operation in December 1994. It is of course possible that this iatrogenic dependence may have occurred anyway even if he had not had pre-existing injury. The more likely explanation is that he was more susceptible to this complication by virtue of his having a chronic painful condition and being on various analgesics prior to the first operation.”

The dependence on methadone and the withdrawal he suffered coming off it were very harrowing for Mr O’Brien and his wife who helped him come off the drug.

Dr Mulholland also agreed with Dr Apel’s view that Mr O’Brien suffered from a depressive disorder. In his report dated 6 April 1999 Dr Mulholland said:
“From an emotional point of view he continues to have a chronic low grade depression which would be best regarded as being a chronic dysthymic disorder which would formerly be called chronic neurotic depression or chronic depressive neurosis or chronic reactive depression. This chronic low grade depression is secondary to his being in chronic pain and the losses and limitations that have been placed upon his life. Depression is not responsible for his not working but from time to time would impair his ability to work.”

He concluded that it was likely that he had a chronic pain disorder.

“From a psychosomatic aspect this man appears to continue to have significant physical symptoms and significant disability and my understanding is that there is a lack of physical explanation for same thus it is likely that his man has a somatoform disorder complicating the situation. The main aspect of that somatoform disorder would be a chronic pain disorder due to psychological factors or more likely a chronic pain disorder associated with both psychological factors and a general medical condition. In other words it is likely that psychological factors via a process of somatisation are contributing to and complicating the situation.”

Peter Stoker, a psychologist, describes how this accident has impacted on his personality. He says in the report dated 22 August 1995:
“From his behaviour at interview, from his recent psychological history and on psychological tests, Peter O’Brien presents with the personality structure of the Neurotic Introvert. This is a sensitive personality structure. He has obsessional and perfectionistic traits that indicated that he would have always pushed himself and worked very hard throughout his life. However, the trauma of the accident pushed Peter O’Brien through the psychological barrier into an area where he is unable to function psychologically and physically as he did before.

He has lost a feeling of being in control of this life. He no longer feels he is an independent man with the commensurate lifestyle.

He is anxious, depressed with suicidal ideation, suspicious and mood fluctuations with low frustration tolerance and anger.”

He has a continuing serious problem with anger management and has a traffic phobia and suffers from social isolation and insomnia. This compares with his pre-accident personality when he was, as his wife said:
“Well, before the accident he was just everybody’s friend, he was a happy-go-lucky man, he was very healthy and active, he loved his job. He was just a garbo but he loved it. He loved running in the morning when nobody was up in the fresh air and coming home having done a day’s work. He was very happy that we had ... a child. He was just probably like anybody else really, he was just happy to be alive”.

He is now moody, forgetful, resentful and withdrawn. His change in personality has adversely affected their married life including his sexual relationship with his wife. He no longer takes part in the physical activities which formed the main part of his recreation such as golf and touch football.

A matter which was relied upon by the defendants to question the plaintiff’s truthfulness was the fact that he was tested for ibruprofen (taken as brufen) by the psychiatrist Dr Nothling and it was not found in his bloodstream. In might be possible to draw a conclusion that Mr O’Brien was deliberately lying about this and is therefore is deliberately lying about many other or all other things. However, it is also possible and much more likely that it was merely a not particularly careful answer to a question he did not regard as significant since Dr Nothling was not treating him for his back pain. Mr O’Brien told Dr Mulholland that he only takes paracetamol and the anti-inflammatory brufen on an intermittent and irregular basis because of his previously having had problems with addiction and also because he is aware the brufen causes him gastric symptoms. He already has gastric symptoms and therefore does not want to aggravate them by taking too much brufen. Dr Nothling asked him about his drug usage and he said he was taking brufen regularly and had taken two tablets that morning after he arose at about 5.45 am. He took a urine sample to check that at 4.15 pm. Dr Nothling said the half life of brufen was 2-2.2 hours so there should have been not problem detecting it after 10 hours. However none was detected. Dr Nothling therefore regarded Mr O’Brien as unreliable. He said:
“I would have concerns as to the genuineness of his chronic pain and disability, as he is clearly not taking brufen as he had claimed, as demonstrated by the urinary drug screen”.

Dr Appleton, a pathologist with Queensland Medical Laboratory, gave evidence that pathology should be able to detect ibruprofen in the blood, 4-6 hours after the patient had taken 2 x 400 g mg tablets of brufen. After 7-8 hours, only 40 per cent of patients would return as positive test; after 10 hours, only 30-35 per cent would return a positive test. He said it would be exceptional, even in a patient on the maximum dose of 1600 mg a day, to be able to detect ibruprofen “much beyond 10 to 12 hours at the most”. There is larger group in the population than had been suspected who are rapid metabolisers of brufen.
I prefer the evidence of Dr Apel and Dr Mulholland to that of Dr Nothling. Dr Apel is the treating psychiatrist having seen him an numerous occasions between March 1993 and March 1995. Dr Nothling’s view was affected by an incorrect view he took the half-life of brufen.
With regard to the purely physical consequences of the plaintiff’s injury, the assessment of surgeons varies. Dr Dubois said the X-rays of the cervical spine showed minimal uncovertebral spurring on the left of C2-3 disc level indicating chronic degenerative change probably secondary to past trauma and there was a mild compression fracture of T7; Dr Anderson said they showed abnormality of shape suggesting degeneration at C2-3 epiphyseal joints and disc area narrowing; Dr Wiedmann said they showed some narrowing of left C2-3 nerve root canal and mild anterior compression of T7, but no other specific abnormalities; Dr Nutting said that the X-rays of the thoracic spine showed evidence of developmental anomaly rather than crush fracture of T5; Dr Toft said there was evidence of old Scheurmann’s disease at T7 with minimal deformity; and Dr Anderson, Scheurmann’s disease with irregular end plates in the region of T7 with lesser changes elsewhere.
Dr Wiedmann, a neuro surgeon, attributes the permanent loss of function to be three per cent permanent partial impairment of the whole person complicated by depression and chronic pain syndrome. Dr Wiedmann thought he showed unnecessarily exaggerated pain responses when he examined him. He said that was quite common as patients want to impress their doctors with their disability. The exaggeration is very often related to personality factors and might or might not be deliberate.
Dr William Douglas said, taking into account his physical findings, he appeared to have an overall disability in the region of 5 per cent of the whole body. He though he almost certainly had a compression or partial compression facture of the seventh dorsal vertebra which was misreported at the Princess Alexandra Hospital. He thought that the partial compression fracture of about 25 per cent loss was probably related to the injury received in the accident.
Dr Toft assessed him in November 1991 as having a ten per cent loss of efficient function of the thoracic spine or three per cent permanent partial disability of the whole person about fifty per cent of which was work related. In other words, he suffered an aggravation of a pre-existing condition. He would expect the underlying disease to have become symptomatic in any event in about five to ten years. However he agreed that even with his Scheurmann’s disease it was more likely than not that he would have remained symptom-free for the rest of his working life. The trauma in 1991 rendered symptomatic an otherwise asymptomatic condition. Mr Campbell of counsel on behalf of WorkCover submitted that when Dr Toft saw the plaintiff on 26 November 1991 in relation to his ongoing workers’ compensation claim, Mr O’Brien told him he had not had any previous problems with his neck. When Dr Toft gave his evidence, however, he said that he had “no record of asking him specifically whether he had been involved in any previous accidents or had any other injuries”.
On the other hand, the occupational therapist, Ms Helen Coles, who assessed his capacities on a number of occasions over a number of hours was of the opinion that far from “gilding the lily”, objective testing showed that he tended to underplay his restrictions. His results were consistent on the occasions on which she assessed him apart from right hand grip strength at the time when he was affected by methadone.
Dr Anderson, an orthopaedic surgeon, was of the opinion in December 1991, that if any residuum was attributable to the motor vehicle accident, it was unlikely to be more than five per cent loss of total body function. Dr Anderson saw Mr O’Brien on behalf of the defendants on 12 December 1991 and 6 July 1993. By letter dated 17 March 1999, he was provided with surveillance videos taken by the defendants in April and May 1993 and December 1996.
No adequate explanation was offered by the defendant for the failure to obtain a report on the video evidence between December 1996 when it became available and March 1999, in the month before trial. No doubt it was seen to be to the forensic advantage of the defendant not to reveal the existence of the videotapes and it is under no obligation to reveal their existence. However under O.39 r.29D[1] of the Rules of the Supreme Court there was an ongoing obligation on the defendants to disclose medical reports, which has in this case been circumvented by the late seeking of such medical reports. Such behaviour has several significant consequences. It inhibits frank settlement discussions; it undermines the integrity of the court ordered ADR processes, which in this case was sought by the second defendants by summons filed 2 March 1998; and it tends to affect the length of the trial as disclosed to the court. All of those effects were present in this case although it has had no effect on the outcome of the case.
[1]see UCPR 550, 551, 552; see also r.923.
Dr Morris on 14 May 1997 saw no orthopaedic reason for him to be off work. Dr Nutting, an orthopaedic surgeon, who examined Mr O’Brien in September 1991, based his opinion on the assumption that “he had a minor injury of his back initially which he aggravated by returning to work with inadequate rehabilitation”. He referred to pre-existing back problems and was unable to “quantitate a permanent disability at [that] stage”. After viewing surveillance video tapes taken in 1993 and 1996, he doubted that Mr O’Brien had any significant orthopaedic condition. However, he heavily qualified his interpretation of the video tapes on cross-examination.
Dr Pentis, an orthopaedic surgeon, on 31 March 1999 attributed to Mr O’Brien’s problem with his spine a seven and a half per cent loss of efficient function of the whole spine. Dr Pentis said:
“The gentleman has recovered as best as he will from soft tissue musculoligamentous injuries he sustained to his spine. It has affected his cervical, thoracic and lumbar regions. He does have some degenerative changes and some old wedge fractures that have been aggravated as well by the accident.

He has been left with a residual incapacity and it is currently approximating a 7.5% loss of the efficient function of his spine as a whole.”

This is an assessment of his orthopaedic condition with which I agree.

There is no doubt in my mind that Mr O’Brien is impeded from carrying out heavy manual work or the work he was carrying out prior to the accident. The physical problems caused by the injury in 1991 together with the consequent psychological problems are very disabling. He is commercially unemployable in any area involving manual labouring work. He has no experience or training which would fit him to any other area of work. His back precludes a sedentary occupation. I accept the prognosis as to his future employability given by Dr Mulholland in his report dated 6 April 1999:
“It appears as though this man is potentially capable of doing light work but it would have to be a flexible situation and inevitably of a non-commercial nature. It goes without saying that no employer in his right mind would employ him in any capacity. The only way that this man is ever going to do any form of work is to be in some sort of highly flexible self-employment situation.”

Mr O’Brien’s workers’ compensation claim was paid out on 29 May 1992. After being assessed by a Government Medical Officer, he received a Disability Support Pension. In August 1992, he attended the Commonwealth Rehabilitation Service to see if he could retrain to rejoin the workforce. This has not been successful.
The defendant played in court long surveillance video tapes which had been taken of the plaintiff. These video tapes show him performing activities which he gave evidence he was able to perform and told doctors at the time that he was able to perform. They show him working very slowly and carefully while washing family cars at home and performing other physical tasks that are neither strenuous or demanding. He is also shown employing a variety of protective mechanisms to support his body while undertaking these tasks. The videos give no indication that he was lying about his injuries or pain or otherwise malingering.
The award of damages should reflect true compensation of the injury done to the plaintiff.[2]
[2]Haines v. Bendall (1991) 172 CLR 60 at 63 per Mason CJ, Dawson, Toohey and Gaudron JJ, Paff v. Speed (1961) 105 CLR 549 at 558-559.

Pain and Suffering and Loss of Amenities

The plaintiff has suffered and will continue to suffer pain as the result of the injury on 28 January 1991. His life has been adversely affected in the many ways set out in this judgment. Under this head I would allow $40,000.00. In addition interest should be allowed on 75 per cent of this amount for eight and a half years giving an amount of $5,100.00.
An award of interest up to the date of judgment is an award of interest in the nature of damages.[3] The award of interest is an integral element in the attainment of the object of damages, namely, to compensate a plaintiff for injuries sustained. Hence the award of interest is compensatory in character. While “interest should not be awarded as compensation for the damage done”[4], the award of interest is nevertheless an essential element in the achievement of true compensation for that damage. In Thompson v. Faraonio[5], the Privy Council stated that “the reason for awarding interest is to compensate the plaintiff for having been kept out of money which theoretically was due to him at the date of his accident”.[6]
[3]Fire & All Risks Insurance Co. Ltd v. Callinan (1978) 140 CLR 427 at 431.
[4]Jefford v. Gee [1970] 2 QB 130 at 146.
[5](1979) 54 ALJR 231 at 233.
[6]see also Batchelor v. Burke (1981) 148 CLR 448 at 455 per Gibbs CJ; MBP (SA) Pty Ltd v. Gogic (1991) 171 CLR 657 at 663-665; cf Ruby v. Marsh (1975) 132 CLR 642 at 652-653 per Barwick CJ.

The award of interest for the period of delay in payment between the date of accrual of a cause of action and the judgment affords a fair legal measure of compensation.[7] Thus, it is the award of damages and, where appropriate, interest awarded on damages for the period up until the judgment takes effect which allows the plaintiff to be placed in or restored to the situation, as far as money can do, in which he or she would have been but for the defendant’s negligence. None of the long delay in bringing this case to trial can be attributed to the plaintiff.
[7]Pheeney v. Doolan [1977] 1 NSWLR 601 at 613 per Reynolds JA.
There will be an award of interest of 4 per cent on the amount of pre-trial pain and suffering which I assess at 75 per cent of the award for general damages for a period of eight and a half years.[8] This should be further reduced by one half because the detriment was suffered progressively over the period.[9]
[8]see MBP (SA) Pty Ltd v. Gogic (supra).
[9]Jackson v. Bagwell [1992] 2 Qd R 390; Camm v. Salter [1992] 2 Qd R 342 at 345.

Special Damages

The quantum of special damages was agreed at $13,423.31 of which $1,500.00 relates to items expended by the plaintiff; $2,788.46, special damages paid by WorkCover, Fox v. Wood[10] of $4,595.45 and $4,539.40 for the Commonwealth Rehabilitation Service. Interest on $1,500.00 at a rate of six per cent for eight and a half years reduced by half because of the progressive nature of the loss gives the sum of $382.50.
[10](1981) 148 CLR 438.

Economic Loss

The principle is that a tortfeasor must take his victim as he finds him. Accordingly, a defendant to proceedings to recover damages for physical injuries caused by the negligence of the defendant must take the plaintiff with all his weaknesses, beliefs and reactions as well as his capacities and attributes, physical, social and economic.[11]
[11]Nader v. Urban Transit Authority of New South Wales (1985) 2 NSWLR 501.
The fact that the person injured was peculiarly susceptible to ensuing complications that would not in a normal person have followed from the injuries received, or that the person injured already had a disability which made the injury the more disabling, does not mean that damages are not to be assessed according to the circumstances of the particular case.[12]
[12]Watts v. Rake (1960) 108 CLR 158.
If however the plaintiff’s condition is such that the damage suffered would have happened in any case at a later time, the compensation is to be assessed for the fact that the damage occurred when it did.[13] The defendant is not liable for the whole of the adverse of effects upon the plaintiff but only for such as were the consequence of his negligence. To assess the liability, a comparison should be made between the condition and the prospects of the plaintiff before the accident and his condition and prospects after it.[14]
[13]Negretto v. Sayers [1963] SASR 313.
[14]Newell v. Lucas (1964) 82 WN (Pt 1) (NSW) 265.
Prior to his accident, Mr O’Brien was earning $359.00 per week after tax. I am not prepared to speculate that Mr O’Brien would have obtained a second job to supplement his income as a garbage collector. He had never previously worked in two jobs simultaneously and in my view it is unlikely that he would have sought a second job. On 30 June 1994, Hunter Brothers lost their contract with the Brisbane City Council to provide garbage services. It is more likely than not that Mr O’Brien would then have gone to work for Cleanaway who took over the contract. If not, I accept that he would have readily found a position as a truck driver, labourer or concreter and that his earnings would not have been any less. The weekly gross wage of garbage truck drivers as at the date of trial was $625.00 or just over $500.00 net.[15]
[15]It is the net, not gross, earnings that are used as the basis of the calculation: Cullen v. Trappell (1980) 146 CLR 1; Fox v. Wood (supra).
Given the number of injuries to which he had already been subject and pre-existing spinal problems and the hard physical nature of the work, I do not believe he would have continued to work past the age of fifty-five years.[16] I would therefore allow the amount of $500.00 a week for 13 years on the 5 per cent discount tables[17] less 20 per cent to allow for other vicissitudes, being $199,427.20[18].
[16]cf Dykstra v. Head [1989] Aust Torts R ¶80-280.
[17]General Motors Holden’s Pty Ltd v. Moularas (1964) 111 CLR 234; Todorovic v. Waller (1981) 150 CLR 402; Cullen v. Trappell (supra).
[18]Malec v. JC Hutton Pty Ltd (1990) 169 CLR 638 at 643.
Past economic loss will also be allowed on the basis that he would have retained employment as a garbage truck driver or obtained similar work. On an average net weekly income of $360.00, as submitted by the plaintiff’s counsel, over that period his net loss would have been $161,640.00 rounded down to $150,000.00 to allow for contingencies. Interest should be allowed on his loss of earnings (after allowing for payments received). I have accepted the plaintiff’s estimate that interest should be allowed at 6 per cent on 213 weeks of earnings making $4,600.80

Superannuation entitlements

The compulsory superannuation contribution was 3-4 per cent of gross earnings from 1 July 1992 to 31 December 1992; 3-5 per cent from 1 January 1993 to 30 June 1994; 4-5 per cent from 1 July 1994 to 30 June 1995; 5-6 per cent from 1 July 1995 to 30 June 1996; 6 per cent from 1 July 1996 to 30 June 1998; 7 per cent from 1 July 1998 to 30 June 2000; 8 per cent from 1 July 2000 to 30 June 2002; and 9 per cent from 1 July 2002. An average of 5.25 per cent should be allowed on the loss of past earnings. I have not further reduced it to take account of tax because I have assessed the figure on the discounted net wages. I would allow $7,875.00 for past superannuation entitlements. Interest should be allowed on this at 6 per cent[19] reduced by half because of the progressive nature of the loss giving $2,000.00. For future entitlements, I would allow 8.75 per cent of his calculated net earning capacity giving $18,540.00.

Gratuitous services[20]

[19]Knight v. Breakwater Island Resort Pty Ltd (unreported, Supreme Court of Queensland,

Williams J, 24 April 1995); Dametto v. Wishart (unreported, Supreme Court of Queensland, Cullinane J, 1 April 1996).

[20]Kars v. Kars (1996) 187 CLR 354; Van Gervan v. Fenton (1992) 175 CLR 327; Griffiths v. Kerkemeyer (1977) 139 CLR 161; O’Keefe v. Schulter [1979] Qd R 224; Wilschefski v. Smith (1988) 6 MVR 531b; (1988) Aust Torts R ¶80-203.

Past

I will allow a sum of $8.00 per hour for one hour each day together with two hours a day for the first six weeks. Over a period of eight and a half years this produces the sum of $25,156.00. He is entitled to interest at two per cent as this is a component of general damages.[21] Two per cent interest on this figure is $4,276.50.
[21]Brown v. Hale [1996] 1 Qd R 234 at 236; Grincelis v. House (1998) 156 ALR 443 at 462-463, 465, per Hill, Kiefel JJ.

Future

Allowing $60.00 per week for 13 years, on the three per cent discount tables[22] gives the sum of $33,687.00.
[22]Gaudry v. Pacific Coal Pty Ltd (unreported, Supreme Court of Queensland, Helman J, 9 November 1995); Sheath v. B & F Video and TV Service Pty Ltd (unreported, Supreme Court of Queensland, White J, 24 March 1997); Exton v. George Weston Foods Ltd (unreported, Supreme Court of Queensland, Wilson J, 9 October 1998).

Other Damages

He seeks $5,000.00 for future treatment, medication and counselling which is justified on the evidence.

WorkCover Refund

From these amounts should be deducted the WorkCover refund of $38,432.30.[23]
[23]Lausberg v. Burns Philp & Co Ltd [1991] 2 Qd R 642 has no application to the facts of this case.

Conclusion

In summary there will be judgment for the plaintiff against the defendants. I award damages in the sum of $471.036.00, being $40,000.00 for pain, suffering and loss of amenities, interest thereon of $5,100.00, special damages of $13,423.31, interest thereon of $382.50, $199,427.20 for loss of earning capacity, $150,000.00 for lost earnings, $4,600.80 interest thereon, $7,875.00 for loss of past superannuation entitlements, $2,000.00 interest thereon and $18,540.00 for the loss of future superannuation entitlements, $25,156.00 for past gratuitous services, $4,276.50 interest thereon, $33,687.00 for future gratuitous services and $5,000.00 for future treatment, medication and counselling, less the WorkCover refund of $38,432.30. I will hear argument as to costs.