Reid v Skilled Engineering
[2001] QSC 423
•14 November 2001
SUPREME COURT OF QUEENSLAND
CITATION: Reid v Skilled Engineering & Anor [2001] QSC 423 PARTIES: REID
(plaintiff)
v
SKILLED ENGINEERING
(first defendant)
and
CARPENTARIA GOLD
(second defendant)FILE NO/S: S 201 of 1999 DIVISION: Trial Division PROCEEDING: Civil Trial ORIGINATING COURT: Brisbane
DELIVERED ON: 14 November 2001 DELIVERED AT: Brisbane HEARING DATE: 14, 15, 18, 20, 21 June 2001, 17, 18, 19, September 2001 JUDGE: Philippides J ORDER: Judgment for the plaintiff against the defendants in the sum of $83,162. CATCHWORDS: DAMAGES – PERSONAL INJURY – whether head injury – whether post concussion syndrome – whether chronic pain disorder – whether orthopaedic injury – where plaintiff struck by flop gate.
Supreme Court Act 1995, s 16
McNally v Essenhaven Pty Ltd [2001] QCA 452
COUNSEL: M Grant-Taylor for the Plaintiff
M O’Sullivan with PL Feely for the DefendantsSOLICITORS: Bennett Philp for the Plaintiff
Dillons for the Defendants
PHILIPPIDES J:
Background
This is an action brought by the plaintiff for damages for personal injuries in respect of an accident which occurred on 17 March 1996 while the plaintiff was engaged as an employee of the first defendant in performing work as a fitter in a chute at the mining facility of the second defendant, Carpentaria Gold Mine, at Ravenswood near Townsville. The plaintiff was working in the vicinity of a “flop gate”, which is a swinging hinged gate used as a directional gate. The accident occurred when a heavy metal flop gate fell from its previously secured position and swung shut, without any warning to the plaintiff.
It is admitted by the defendants that the release of the flop gate occurred by reason of breaches of the duties of care which they owed the plaintiff.
Accordingly, the only remaining issue is whether the plaintiff, who was born on 22 February 1963 and is now 38½ years of age, suffered any, and if so what, injuries and consequential loss as a result of the incident.
The plaintiff’s case is that the flop gate struck his upper back and head causing injuries, inter alia, permanent orthopaedic disabilities and the development of organic brain damage, as follows:
(a) a closed head injury of mild to moderate severity leading to impairment of cognitive and intellectual function, and interfering with faculties of concentration, attentiveness and memory, and impairments to balance;
(b) a post-concussion syndrome;
(c) soft tissue injuries to the cervical and thoracic spines productive of significant impairments to functioning; and
(d) a chronic pain disorder.
On behalf of the defendants it is submitted that:
(a) any back or neck problems which may have been aggravated by these incidents were also trivial in nature and transient;
(b) any injury suffered by the plaintiff in the work accident was in the nature of a minor head injury, the effects of which would have and did pass within a matter of weeks of the incident;
(c) the preponderance of the medical evidence establishes that the plaintiff has not suffered any persisting organic brain damage nor any other compensable condition related to the accident;
(d) the plaintiff’s post accident work history, earnings records and contemporaneous medical records are not consistent with the plaintiff having suffered any significant injury associated with the work accident;
(e) the plaintiff and his wife are not witnesses of credit.
The Accident
At the time of the accident the plaintiff was working with Mr Kevin Christoffeson. The plaintiff was facing away from the “flop gate” when it fell. He was aware that he had been hit by something when he found that his safety glasses were skewed across his face and his safety helmet was no longer on. When cross-examined about his recollection of the actual incident, the plaintiff said that he was “sort of crouching” when he was struck by the gate. His evidence was that it struck him on the shoulder and hit him somewhere on the back of his head. The plaintiff said that he was “not sure whether [his] face hit the floor or not, but [was] aware of remembering getting up off the floor into a hands and knees position and, … sort of looking around and then Kevin’s yelling out ‘you all right mate?’”.
Mr Christoffeson, who as the plaintiff’s counsel noted, can be considered a disinterested party, gave evidence concerning the incident. He said that the plaintiff was wearing a safety helmet and that immediately before the accident the plaintiff had dropped his hammer and had bent down to pick it up, when the flop gate “came straight down” and “seemed to catch [the plaintiff] on the back towards the side of the head of the helmet”, and “pulled his helmet off his head and sort of pushed him downwards at the same time” squashing the helmet. He said that the plaintiff was knocked from behind and fell forward onto his hands and knees. I accept Mr Christoffeson’s evidence as to what occurred.
It is unclear upon the evidence whether the plaintiff lost consciousness or not. I note that Mr Christoffeson could not be sure but said that he may have. I am unable to conclude one way or another on this issue on the evidence. However, the plaintiff was clearly dazed and in a state of shock as a result of the incident.
Post Accident
I note that immediately after the incident, the plaintiff was able to report the fact of the incident and to joke about the accident saying that he thought the “flop gate” had a “kiwi detector on it”. The plaintiff completed the remaining six hours of his shift before returning to Townsville, although during the balance of the shift he complained to Mr Christoffeson about “a really sore neck” and “severe headaches”.
It is unclear whether the plaintiff drove himself home or whether, as the plaintiff and his wife claim, Mr Christoffeson drove him. Mr Christoffeson said he was “pretty sure” that he did not drive the plaintiff home. Upon arrival home, there was nothing about the plaintiff’s appearance or condition to cause the plaintiff’s wife, who had a nursing background, to take him to hospital.
The next morning the plaintiff’s wife observed bruising on the left side of the plaintiff’s neck coupled with a lump. The plaintiff was seen by Dr Dunne at the Aitkenvale Medical Centre,[1] who on medical examination of the plaintiff noted “minor head injury at work 6:00 p m yesterday – close call – very nearly fatal accident – on examination minor head injury only, bruising, fully orientated etc – nausea – no vomiting – dull bilateral frontal headaches ...”.[2]
[1]See Dr Dunn’s Report and Clinical notes Exhibit 6
[2]See Dr Dunn’s Clinical Notes Exhibit 6
The plaintiff returned to work at the Pimlico Bakery from 21 to 28 March 1996. However, on 28 March 1996, the plaintiff returned to Dr Dunne’s surgery complaining of a four day history of visual disturbance, blurring of vision, balance difficulty, poor memory, a worsening frontal headache, occipital ache, fatigue, nausea and vomiting. Dr Dunne noted reference to a “fuzzy head” with a stiff neck.[3] No abnormality was seen on physical examination and a CT Scan of the plaintiff’s head was normal.
[3]See Dr Dunn’s Clinical Notes Exhibit 6
The plaintiff returned to work between 11 April and 24 May 1996, working at the Guru Sugar Mill where he earned about $2,000 per week net. Between 29 May and 10 June 1996 he worked at the Yabulu Power Station. His work involved performing shifts of between 8 to 12 hours, and working most of the time as a leading hand in charge of other men. The plaintiff gave evidence that he was doing “mainly light duties” and “kept pushing through the pain levels… for as long as [he] could”. During that period the plaintiff was also able to participate in social activities such as attending the races at Townsville. Counsel on behalf of the plaintiff noted that those practitioners called in the plaintiff’s case, in particular Dr Marks, did not regard this immediate post accident history as inconsistent with their findings of brain injury.
By 1 August 1996, the plaintiff was reported by Mr Scholthauer, physiotherapist,[4] as having full and pain free range of movement of the cervical and lumbar spine. On the same day the plaintiff saw Dr Dunn, whose clinical notes report the plaintiff as being alright to report to work on 5 August 1996.
[4]See Exhibit 30
The evidence of the plaintiff and his wife, however, was that throughout all of this period, the plaintiff continued to suffer from blurred vision, concentration difficulties, headaches and nausea.
It appears that in August and September of 1996, the plaintiff and his wife travelled on a holiday to Sydney and Melbourne after which they returned to New Zealand because of family problems.
On 17 October 1996, the plaintiff sent a letter to the Workers’ Compensation Board,[5] in which there is no reference to any complaints of headaches, blurred vision, loss of smell, memory problems or other symptoms of head injury.
[5]Exhibit 13
There are no further medically recorded complaints of head injury symptoms until December 1996, when the plaintiff saw Dr Dempsey, an Orthopaedic Surgeon, in New Zealand. Thereafter the plaintiff made complaints of various neurological and psychological problems which develop over time to the point where, as submitted by the defendant, the plaintiff is presented as a virtual recluse with an inability to manage his own affairs.
On behalf of the defendants it was submitted that it is significant that between February and June 1997 the plaintiff worked as a tutor at the Wanganui Polytechnic, and that, while the plaintiff said that he struggled with and was unable to continue with this work, the evidence from the students who attended his tutorials is that so far as they could observe, he carried out this work efficiently and well and without any apparent difficulty.
The defendants also rely on the evidence of Mr Nicholson, who was sufficiently impressed by the plaintiff and his wife to engage them as managers of the Kaitaia Hotel, from July to October 1997. The hotel is the largest in Kaitaia, which is a tourist area, and is a relatively busy hotel.
Mr Nicholson gave evidence that the plaintiff and his wife responded to an advertisement for a couple to manage the hotel. He said that the plaintiff and his wife had applied for the job in writing as a couple and presented themselves at the interview as a couple. The evidence of the plaintiff and his wife was that it was the plaintiff’s wife only who was employed as a manager. I accept the evidence of Mr Nicholson that he engaged the plaintiff and his wife as a couple to manage the hotel from July to October 1997. After staying at the hotel for a week and observing the plaintiff and his wife, he was sufficiently confident in their ability to leave them on their own to manage the hotel. He returned for a weekend every fortnight. Mr Nicholson’s evidence was that he never observed the plaintiff to have any physical or other disability. Certainly, he never noticed any difficulty in walking, nor did he detect at any time that the plaintiff had any difficulty in understanding what was said to him, nor did the plaintiff appear confused at any time.
Orthopaedic Evidence
On behalf of the defendants it was submitted that it is unlikely that the back pain which the plaintiff says he first experienced approximately three weeks after the accident was related to the accident and that the same can be said of the neck symptoms which later developed. The defendants rely on the evidence and notes[6] of Mrs Keith, a practitioner of natural medicine, and point out that the plaintiff had suffered from neck and back problems in the past.
[6]Exhibit 28
Counsel for the defendants submitted that, on all of the orthopaedic and other physical evidence, it is difficult to distinguish between the plaintiff’s pre-accident complaints of neck and back pain and his post-accident complaints,[7] and that in any event, whatever may have been the cause of the plaintiff’s orthopaedic complaints, it was clear that they are minor complaints and would not prevent him from performing any work for which he was suited by his education, background or experience.
[7]In this regard the defendants rely on the evidence of Dr Miller; Dr Grant; Dr Dempsey; the evidence of Dr Mossman regarding headaches and the evidence of Dr Boys .
I reject the view that the orthopaedic complaints which followed the accident were unrelated to the accident. Whilst it is true that the plaintiff did consult Mrs Keith about back problems, Mrs Keith conceded that none of the complaints were of such a severity as warranted referral to another practitioner. I accept that the attendances were for “normal working muscle tension”.
Dr Boys, who was called by the defendants, stated in his report of 1 December 1999 that the plaintiff “does suffer residual disability as a result of soft tissue injury in the thoracic region. Evidence of objective impairment is sparse, but it would be reasonable to attribute a 0 to 2 % impairment of bodily function as a consequence of past injury and this man’s ongoing thoracic strain symptoms.” He did not consider that the plaintiff’s thoracic strain and symptoms would preclude employment as a maintenance fitter, although he stated that crouching, lifting and straining activities, particularly in awkward spaces might aggravate muscololigamentous strain in the thoracic region. He considered that the plaintiff would be fit to perform duties primarily working at bench level.
Dr Dempsey, who was called by the plaintiff, in his report of 5 October 1998 was of the opinion that the plaintiff had suffered soft tissue injury predominantly to the thoracic spine. He assessed the impairment as 5% of the whole person. In his report at paragraph 5 the question is asked “If the incapacity is not permanent, what will be the duration and extent thereof”. In response Dr Dempsey notes in the report, “I don’t believe that it is possible to answer this question” and goes on to make the comment that he suspected that much of the plaintiff’s incapacity was secondary to his head injury. At trial, Dr Dempsey agreed that on the basis of his examination of the plaintiff, there was no reason why the plaintiff could not continue in his trade as a maintenance fitter, particularly if he did not have to spend a lot of time bending but was performing his duties primarily working at bench level. Dr Demsey nevertheless adhered to his expectation in his report that he did not expect the plaintiff to return to heavy physical activity at any stage in the future. It is perhaps a little unclear whether Dr Dempsey was stating an opinion that the 5% disability was a permanent one. On balance I consider that he was.
I accept Dr Dempsey’s evidence that the plaintiff has suffered soft tissue injury predominantly to the thoracic spine, which amounts to an impairment of 5% of the whole person. As mentioned I consider his evidence to be that that impairment is permanent.
Plaintiff’s Expert Evidence concerning brain injury
Dr Grant, in her report of 20 June 1997 was of the opinion that the plaintiff was suffering from the after-effects of a mild head injury and had chronic pain syndrome. In so concluding Dr Grant was in part acting on the history the plaintiff had given her. The plaintiff had reported to Dr Grant complaints of headache, giddiness, and cognitive disturbances. He had described inability to concentrate, impairment of memory, nervousness and anxiety. In her report of 29 July 1997, Dr Grant referred to the plaintiff as having a chronic post-concussion syndrome and as exhibiting three cardinal symptoms of that syndrome, namely, headache, giddiness/dizziness and cognitive disturbance, manifested by an inability to concentrate, fatigability, impairment of memory, nervousness and anxiety. Dr Grant noted diminished range of movement on abduction of the shoulders for which no anatomical explanation could be found. Dr Grant in the course of cross-examination agreed that her diagnosis was a provisional one, depending on specialist neuropsychological testing of cognitive functioning.
This was carried out by Dr Leatham. In her neuropsychological report of 15 August 1997, she stated:
“The symptoms described by Mr Reid (dizziness, fatigue, mood changes, memory problems, loss of motivation, impaired concentration and problem solving ability, sleep difficulties) are common sequelae of head injury. It appears likely in Mr Reid’s case that head injury has been caused by compression (squeezing of the head by the steel plates). Concussion, which commonly follows head injury is usually, but not always, associated with a period of amnesia, and accompanied by a cluster of symptoms such as those listed above.
Psychometric assessment reveals that Mr Reid has been significantly affected only in the area of motor functioning/information processing speed. However the reduction of function in this domain has far-reaching consequences for both employment and recreational choices. It would be unsuitable for him to return to employment which required superior motor functioning and an ability to make important decisions quickly. To do so could potentially place him, and others, in a dangerous situation.”
In her further report of 17 May 1998, Dr Leatham stated that there were demonstrated improvements in the results of neuropsychological assessment. She concluded that:
“Areas of specific difficulty appear to be reduced fine motor control and speed in his dominant hand, information processing speed, capacity and rate of initial learning levels and higher executive function when the task is complex and multidimensional. … None of these difficulties are drastically below average. … Taken together, however, they will combine to compromise cognition in the ways Mr Reid and his partner suggest. … Why the couple rate the current difficulties are greater than in 1997 is unclear. …”
She agreed that in respect of the 1997 assessment the plaintiff was functioning intellectually within the average range, and his overact verbal and visual functioning fell within the high average range. Although he did not perform well with respect to a digit span test, he had improved markedly by 1998 when the test was repeated to come within average range.
Dr Seemann, a physician rehabilitationist who was called by the plaintiff, stated in his report of 17 August 1997 his opinion that the plaintiff had suffered post-concussional symptoms and had developed a chronic pain syndrome. In his report of 3 December 1997 he stated that the symptoms from the plaintiff’s head injury were such that the plaintiff would be unable to return to heavy physical work and would need to consider much less physically demanding options.
The plaintiff saw Dr Soeterik, a consulting and clinical psychologist, in May 1998. In his report of 26 May 1998, Dr Soeterik considered the plaintiff had suffered post-concussion syndrome and had been compromised by the head injury from learning new things at the speed he used to, and that the physical chronic pain problems were likely to continue to cause fatigue and might lead to depression.
Dr Mossman, a neurologist called by the plaintiff, noted in his report of 3 December 1998 normal cognitive testing for cognitive deficits, but that the history given by the plaintiff of cognitive difficulties was that seen in a post-concussion syndrome and was likely to reflect the sequelae to his head injury. Dr Mossman could not explain the “trance like states” which the plaintiff complained about. Nor did Dr Mossman consider the problem reported by the plaintiff concerning his left eye, which had developed on the day of the plaintiff’s attendance on Dr Mossman, to be a reliable aspect of the plaintiff’s history. Dr Mossman was of the opinion that the plaintiff’s symptoms were post traumatic in origin as a direct result of the injury. Dr Mossman agreed in cross-examination that the plaintiff’s problems with his gait could not be explained by an organic brain problem. Dr Mossman also agreed that in the majority of cases involving the sort of head injury in question here, the symptoms are maximal at the beginning with gradual resolution or at least plateauing out of symptoms and that a condition which worsens over time is not explained by the head injury per se.
Dr Marks, a psychiatrist who was called by the plaintiff, also concluded, in his report of 25 March 1999, that the plaintiff had suffered brain damage due to traumatic brain injury. Dr Marks, in cross-examination, agreed that if the plaintiff were able to carry out tutorials, that would be adverse to the conclusion that the plaintiff suffered brain damage. Additionally, he conceded that the picture of the plaintiff as presented in May 2001 was a significant worsening of the plaintiff’s condition compared with the plaintiff’s presentation to Dr Marks in November 1998, and was concerned about such a significant degree of further impairment, although in his opinion, it was not of such a degree as to support a conclusion of malingering.
Dr Jelbart, of the Julia Farr Services Community Rehabilitation Program, gave evidence that the plaintiff demonstrated some long-term cognitive and neuro-behavioural deficits which relate to the effects of a closed head injury. In her report of 1 March 2001, she referred to the plaintiff’s continued use of a multiple series of trigger point injections for pain and bruising, and the continued use of Epilim for mood stability and to eliminate abnormal movements and trance-like phases. Dr Jelbart referred to specific difficulties the plaintiff had in keeping track of money and spending, of making decisions based on previous experience and common sense versus impulsive spur of the moment decisions and intolerance for crowded or noisy environments, as a result of which he would become uneasy and have difficulty concentrating. The plaintiff was said to be easily tired and to have profound fatigue after only several hours of activity per day. Tests were performed which showed the plaintiff to have extremely poor balance on single leg stance, and extremely poor dynamic balance on heel/toe gait.
In a report dated 28 May 2001, Mr Rothwell, a clinical neuro-psychologist with Julia Farr Services, noted that neuro-psychological testing revealed many scores in the average range with some in the high range, which on face value failed to provide psychometric support for the plaintiff’s subjective complaints. However, he explained this on the basis that “people with brain injuries are often able to rise to the occasion (such as when being tested) but then incur a cost in the form of increased recovery time and fatigue”. Mr Rothwell referred to fatigue being apparent during most sessions as drooping eyelids, glazed eyes and increasing tendency to fail to complete sentences. Many sessions involved going on short walks. It was noted that the plaintiff had difficulty walking in a straight line appearing to constantly stumble and lurch, a matter of which the plaintiff denied awareness.
Mr Rothwell considered that the most likely explanation for the plaintiff’s subjective complaints was that the plaintiff had post-concussion disorder and a pain disorder. It was noted that on many occasions after the plaintiff had extended himself he would take a disproportionate amount of time to recover. An example was given of a trip to the zoo as part of his rehabilitation, after which the plaintiff was noted by a therapist to still be very tired some six days later. Furthermore, Mr Rothwell was of the opinion that “the finding that significant fatigue appears in the afternoon rather than in the morning supports an organic interpretation rather than being seen as part of a psychological phenomenon (for example depression) whereby the fatigue would be expected upon waking in the morning”.
Mr Rothwell also referred to reported examples of memory difficulties. An example of an outing to Mt Barker on 31 May 2001, when Mr Rothwell accompanied the plaintiff in order that a bill be paid and to get a printout of a letter the plaintiff had been composing for his children, was given as follows:
“Mr Reid talked constantly during the five-minute drive into town. After parking the car in town Mr Reid looked around and said to himself “now what are we doing here” before saying “Ah paying a bill that’s right”. Mr Reid presented the bill and payment to the cashier (rental for a television set) and said that he had no idea what to do. She gave him instructions which he carried out without difficulty. We then walked down the street for around 100 metres before I asked where we were going. Mr Reid stopped looked around and then asked “We were going to the library weren’t we?”. The library was in the opposite direction to where we were walking. Mr Reid talked almost without breath for the ten-minute walk to the library about how he was going to construct thousand word essays about each of eight paintings had had done eight years earlier. On arrival at the library Mr Reid realised that while he had the floppy disc he did not have his library card so access to the computer and printer could not be accessed. After having a coffee at a nearby shop Mr Reid walked in the wrong direction down the arcade away from where the car was parked and needed to be prompted as to the correct way to talk. He appeared unperturbed by his actions, smiled briefly and then continued on with the story that he had been telling in the coffee shop.”
Dr Leung, who was also called by the plaintiff, stated in his report of 9 May 1998 that the plaintiff’s clinical presentation was consistent with temporomandibular joint pain dysfunction syndrome, which could be related to the accident.
Defendants’ Expert Evidence Concerning Brain Injury
On behalf of the defendants it is submitted that the neurological evidence does not support a diagnosis of organic brain injury. Dr Cameron, a consultant neurologist, in his report of 27 May 1998 was of the opinion that there was little evidence to suggest that the plaintiff suffered any significant head injury and that any head injury only represented a very minor concussive injury, the effects of which would have settled within a few days. He did not consider the plaintiff to have any ongoing disturbance which could be related to any direct or indirect effect of head injury and considered his symptoms to represent an anxiety/personality disturbance, but he could not determine whether or not that was related to the incident.
Dr Nothling, who was called by the defendants, was unable to find any evidence that the plaintiff had suffered any traumatic brain injury which would explain his presentation. In his report of 13 January 2000, Dr Nothling did not consider the plaintiff to be suffering from a major depressive disorder or any significant level of anxiety disorder, nor from post-traumatic stress disorder as a result of the accident.
Dr Douglas in her report of 21 December 1999 stated:
“1. Mr Reid has suffered no significant decline in overall intellectual abilities from pre-morbid estimates, and continues to function within the Average to High Average range.
2. Mr Reid’s overall memory capacities on the current assessment fell consistently within the Borderline-Low Average range. However, in the light of intact memory functioning from the prior assessments, this finding argues more for the impact of some negative intervening variable on test performance levels (such as psychosocial distress, medication effects, fluctuating attention/motivation) than it does for stable deficit due to organic brain injury.
3. Mr Reid’s verbal abilities are intact and within the Average to High Average range.
4. Mr Reid’s performance on visual tasks was generally intact and within the Average range of functioning. However, he did display extremely impaired performance on one speeded visual tracking task (although all other speeded visual tasks were generally performed within normal limits).
5. Mr Reid’s performance on tasks assessing speed of information processing abilities was extremely variable, with no consistent pattern to areas of relative cognitive weakness noted. In particular, Mr Reid rather paradoxically demonstrated better ability at performing the more complex speeded tasks, than he did simpler ones, as well as demonstrating significantly worse performance in 1999, than in 1998, on the Stroop and TMT tests. These findings again are not those commonly observed in individuals following head injury, and argue for the impact of some negative intervening variable upon test performance levels, not organic deficit.
6. There was no evidence for consistent deficit in the area of executive functioning in any of the three assessments. In general Mr Reid’s mental flexibility, divided attention, and abstract reasoning skills are intact and within normal limits. Any variability in performance levels is thus considered more likely to be a function of psychosocial, not organic, factors.
7. While there is evidence for the presence of psychosocial distress as a contributing factor to Mr Reid’s observed performance levels on cognitive assessment, it is of note that in the current testing Mr Reid was not endorsing experiencing many of the symptoms associated with traumatic brain injury on the MMPI-2, and instead identified physical and health concerns as his primary worries.”
Dr Douglas concluded that based on the above observations in conjunction with the lack of medical evidence for traumatic brain injury on neuro-imaging and the described nature of the head injury sustained, the plaintiff’s deficits on psychological testing were not a function of organic impairment arising from a head injury. In particular, the plaintiff’s worsening performance on memory and speed of information processing tasks between 1998 and 1999 was not reflective of the pattern commonly observed in individuals recovering from traumatic brain injury and instead argued for the influence of some negative intervening variable on test performance levels. In her further report of 4 June 2001, Dr Douglas expanded on this by stating that the most likely explanation for the plaintiff’s performance levels in 1999 was either the influence of some pathology operative sometime after the 1997 assessment, or the likely exaggeration of cognitive impairment.
She further stated her opinion that there was nothing in the case history to support the existence of a traumatic brain injury in the plaintiff and nothing that spoke to some other neurological insult after the 1997 assessment. In support of the view that the plaintiff had exaggerated his cognitive impairment, Dr Douglas pointed to inconsistencies between the plaintiff’s level of impairment and nature of reported injury, superior performances in tests of cognitive abilities with simultaneous impairment on easier tasks assessing these same abilities and an apparent decline in functioning over time, inconsistent with the expected pattern of cognitive recovery following traumatic brain injury.
Submissions as to Expert Evidence as to Brain Injury
On behalf of the plaintiff it was submitted that the court should view the opinions of Dr Nothling, Dr Cameron and Dr Douglas with circumspection, given that they were said not to be prepared to make any reasonable concessions in the course of cross-examination. Further, Counsel for the plaintiff made the observation that Drs Cameron, Boys, Nothling and Douglas were writing their reports for, and were to be remunerated by, the defendants’ insurer. This, counsel for the plaintiff pointed out, should be contrasted with the position as it pertained to the plaintiff’s expert witnesses. It is certainly true that one must be wary of adversarial bias in expert witnesses. In my opinion there were traces of adversarial bias in Dr Nothling’s evidence and I have taken that into account in assessing his evidence and reports.
Counsel for the plaintiff submitted that two of the principal features which caused Dr Cameron to reject the conclusion that the plaintiff had suffered some form of organic back injury were the plaintiff’s uncertainty about whether he was rendered unconscious by the blow, and the non-correspondence between the plaintiff’s reported symptomatology and the typical pattern of a plateauing of brain injury sequel after a period of up to two years. In addition, counsel for the plaintiff points to evidence demonstrating a contrary school of thought to that followed by Dr Cameron. I note the difference in expert opinion, and consider the question of what is a “typical pattern” as simply a factor to be taken into account.
At the trial, the defendants placed some importance on the fact that the plaintiff had attended upon Dr Rosengren before the accident, suffering from what Dr Rosengren described as “endogenous depression”. However, in my opinion, that diagnosis must be seen in the light of the fact that the plaintiff’s mother to whom he had a close attachment had recently died. By March 1996, Dr Rosengren’s notes report that the plaintiff was no longer depressed. Accordingly, I do not place much importance on that evidence as precluding any of the conclusions reached by the plaintiff’s experts.
The defendants submit that there are a number of reasons why the conclusion that the plaintiff has suffered brain damage in the form of post-concussion syndrome should not be accepted.
One reason why the defendants contend it should not be concluded that the plaintiff has any true neuropsychological deficits is that the pattern revealed by the psychological tests undertaken by the plaintiff[8] is entirely inconsistent with the usual pattern of recovery in cases of organic brain injury. In this regard it was submitted that, between the time of Dr Leatham’s tests in 1997 and Dr Douglas’ tests in 1999, there was a substantial worsening of the plaintiff’s intellectual functioning in relevant areas, but more recently Mr Rothwell was unable to find any significant cognitive deficits. The defendants submitted, on the basis of their expert evidence, that in cases of true organic brain injury the symptoms are maximal at the beginning with either improvement or a plateau in the level of symptoms but not a worsening of symptoms followed by an improvement. I note these submissions. As I have already mentioned, I note that there is some divergence in medical opinion on this issue, and consider the usual recovery pattern to be merely one factor to take into consideration.
[8]Dr Leathem in 1997; Dr Douglas in 1999 and Mr Rothwell in 2001.
Further, the defendants submitted that many of the plaintiff’s expert witnesses have been or remain treating practitioners, which has the potential to affect the independence and objectivity of those practitioners. Nevertheless, I have not detected any improper bias in their conclusions.
The defendants submit that another reason why the conclusions of the plaintiff’s expert witnesses should not be accepted is that the ultimate conclusions reached by them rest heavily on an acceptance of the truthfulness of the history and symptoms presented by the plaintiff, and that the plaintiff has not been truthful in relation to these matters. Thus, it was submitted for example that Dr Mossman was provided with a flawed history by the plaintiff. Certainly, Dr Mossman agreed in cross-examination that he relied, in forming his conclusion that the plaintiff had cognitive difficulties as a result of post-concussional syndrome, on the history the plaintiff gave and his subjective symptoms.
There is force in the submission that much of the plaintiff’s medical experts’ conclusions rest heavily on the history and symptoms as presented by the plaintiff and his wife.
Dr Marks agreed that the only corroborative information, apart from medical reports, he had available to him was that of the plaintiff’s wife and that he was never given any statement from any family member or other lay person confirming the changes the plaintiff claimed to have occurred after the accident. In this regard I note that Dr Marks’ report of 25 March 1999 referred to a number of factual matters, which it appears are uncorroborated by independent evidence, for example:
(a) the plaintiff being unable to complete assignments in a program he commenced to be a teacher and having therefore to withdraw from those studies;
(b) the plaintiff being unable to handle the interaction with students when he took up tutoring again;
(c) the plaintiff failing to pass certain studies because of problems concentrating;
(d) the plaintiff’s greatly reduced socialising with friends compared with his prior gregarious character.
Credit Issues
The defendants submit that there are numerous respects in which the evidence of the plaintiff and his wife have been shown to be untruthful and unreliable.
Counsel for the defendants submitted that after the initial complaints by the plaintiff of dizziness, nausea and other head injury symptoms in the weeks following the accident, there was no documented independent complaint of any of the symptoms which the plaintiff says he was suffering for almost a year after the incident. Counsel for the defendants also submitted that no objective testing of any of the plaintiff’s physical, psychological or neurological complaints has demonstrated any consistent abnormality; to the contrary, the plaintiff’s case rested on variable and inconsistent subjective complaints.
Counsel for the defendant placed some emphasis on the issue of what was said to be the plaintiff’s “variable” gait. The plaintiff and his wife gave evidence that the plaintiff had poor balance and a lurching or staggering gait. As mentioned, Mr Rothwell in his report of 28 March 2001 recorded that the plaintiff could not walk straight when tested by him. On behalf of the defendants it is contended that this is entirely at odds with the surveillance film of the plaintiff which shows the plaintiff walking without difficulty, and also with his presentation to many of the doctors, for example Dr Dempsey and Dr Mossman. It is also at odds with the evidence of Mr Nicholson and the plaintiff’s former students. I have viewed the video evidence[9] of the plaintiff recorded in December 1999, which shows the plaintiff to be walking without any apparent difficulty with balance or a lurching or staggering gait, notwithstanding that the plaintiff is shown on occasions to traverse steep inclines. Of course, one must make allowances for good and bad days, but nevertheless, the matter does raise a concern as to the plaintiff’s credibility.
[9]See Exhibit 14.
In his submissions, counsel for the defendants referred to the fact that both the plaintiff and his wife gave evidence that the plaintiff’s giddiness and blurred vision have never improved from the time of the accident and have made it difficult for him to read and to drive. Despite several “near misses” and being told by Dr Mossman in December 1998[10] that the plaintiff should not drive, it appears he continued to do so and, in fact, was arrested for drink driving in late 1999. Counsel for the defendants submitted that the plaintiff’s continued driving supported the view that the plaintiff in truth did not suffer from blurred vision. However, I note that an explanation was given by the plaintiff’s wife as to the plaintiff’s continued driving.
[10]See p 5 of Dr Mossman’s report of 3 December 1998, Exhibit 1.
In December 1999, the plaintiff and his wife travelled to Brisbane for further examinations by Dr Nothling and Dr Douglas, during which they were under surveillance. The plaintiff recalled the visit being a total of four or five days, and that it was “quite tiring and very stressful”. He said that during this time they had a lot of medical interviews, and that he “was in a very emotional, distraught frame” and “a lot of pain”.
He recalled doing a little bit of walking around the city, and possibly dining out once, but said that he and his wife were “very stressed” and that he remembers the trip as an “emotional nightmare”. He said that he was in a lot of discomfort and wasn’t walking very quickly, and that he was using a walking stick quite a bit of the time. He later said he wasn’t sure if he had the walking stick on that particular trip. The plaintiff said that during this time he was “very uncomfortable” and “heavily medicated”, and that “[he] didn’t do too much walking”.
The period in question in December 1999 extended over a period of days from Wednesday 1 December 1999 to Sunday 5 December 1999. On 1 December 1999 the plaintiff attended on Drs Nothling and Boys and the Holy Spirit Hospital from about 8 a.m. to 5 p.m. On 2 December 1999 the plaintiff attended on Dr Douglas in the morning and then went to the Spring Hill Hotel for a short while to have a drink and watch the racing on television. On 3 December, the plaintiff went to the Wesley Hospital for tests and then took a train for Caboolture where he spent the afternoon with his wife, the purpose of the trip being to look at purchasing a property in Brisbane. In particular, it was put to the plaintiff’s wife in cross-examination that she and the plaintiff were discussing the purchase of a house in Brisbane and another in Adelaide with the proceeds of this litigation, the Brisbane house being a holiday home on acreage. The plaintiff’s wife admitted that that “could very well be”, but added that the plaintiff got into euphoric states of mind that she described as “very unrealistic flights of fancy”. She nevertheless conceded that she and the plaintiff did attend on various real estate agents in the Caboolture area on 3 December. The plaintiff’s wife agreed in cross-examination that they would have returned to Brisbane at about 6:30 p.m. that night and agreed that the plaintiff would have been tired as a result of all that travelling, but said that he may have been in one of his “euphoric, hyper moods” and was on “a lot of medication” to keep him going. She agreed that on 4 December 1999, the plaintiff and his wife attended the Eagle Farm races from about 12 noon to 5 p.m. On 5 December 1999, the plaintiff attended the Treasury Casino Hotel for a short while. All in all, the picture presented during this period is in stark contrast to the picture of the plaintiff as recorded by Mr Rothwell in his report. Of course one must bear in mind the possibility of fluctuating degrees of disability, nevertheless, again, the disparity is a matter of concern.
Taking all these matters into consideration, I accept the submissions of the counsel for the defendants, that it is impossible sensibly to reconcile the differences between the picture of plaintiff who was observed by Mr Rothwell in May 2001 as having a lurching staggering gait, who was easily lost and who could not tolerate a visit to the Adelaide Zoo for several hours, without being exhausted for days afterwards, with the man shown in the December 1999 surveillance footage, and described by the plaintiff’s former students and Mr Nicholson during 1997. I should add that the discrepancy was also borne out in my opinion by the plaintiff’s presentation during the trial.
Counsel for the defendants submitted that the plaintiff’s case, that since the accident the plaintiff has been easily fatigued and has over periods required between four to six and more recently, two to six hours’ sleep per day, creates a picture of the plaintiff as a virtual recluse, and is in stark contrast to the December 1999 video footage of the plaintiff, which shows the plaintiff behaving in a normal manner in a variety of busy settings, including cafes, the races and a casino. Even allowing for the plaintiff having some days that are better than others, I am of the opinion that the video footage causes one to have serious doubts about key aspects of the evidence given by the plaintiff and his wife as to his condition.
As I have mentioned, the evidence of the plaintiff and that of his wife about the plaintiff’s condition is inconsistent with the general evidence of the plaintiff’s former students from New Zealand as to the plaintiff’s apparent ability to conduct lively tutorials and his appearing entirely normal both in his tutorials and in a social setting, and is also inconsistent with Mr Nicholson’s observations of the plaintiff. I accept the defendants’ submissions that the evidence of these lay witnesses also causes one to seriously question the credibility of the plaintiff and his wife.
A further matter of concern is that the evidence appears to indicate, as submitted by the defendants, a misreporting by the plaintiff of his medication requirements and consumption. The plaintiff gave evidence that he took Epilim on the day of his appointment with Dr Nothling together with other drugs[11]. Evidence by Dr Appleton concerning drug testing indicates that the plaintiff had not taken any Epilim for some 36 to 48 hours prior to the test (and probably did not take any other drugs as claimed).
[11]See report of Dr Nothling dated 13 January 2000 p 9, Exhibit 6.
The defendants’ counsel also noted that the dates and amounts claimed in respect of the purchase of drugs in the Statement of Loss and Damages[12] is inconsistent with the level of consumption claimed by the plaintiff. It is noted that the total amount claimed for all medications (apart from Paradex) amounts to approximately $99.00. I note that the plaintiff gave evidence that the cost of medication was inexpensive and that there were quite a number of repeat scripts. The plaintiff’s wife also stated that she did not always keep the receipts.
[12]Exhibit 9.
As mentioned, the defendants’ counsel placed some emphasis on the observation that the only corroborating evidence as to the plaintiff’s condition and symptoms came from his wife and medical experts, and that no other member of the plaintiff’s family nor any friends, work colleagues or other persons have been called to corroborate the dramatic changes in the plaintiff’s life and capacities, although it was clear that the plaintiff’s credit on these issues was being challenged. Moreover, Ms Barton, from the Wanganui College Polytechnic, who did know the plaintiff before and after the accident, was unable to discern any apparent manifestation of brain injury in his conduct at the Polytechnic, except for the occasional use of a walking stick and sporadic limp.
In my opinion, on the basis of the matters mentioned above, the credibility of the plaintiff and his wife concerning the nature of the plaintiff’s injuries, both as to the claimed brain injury and chronic pain syndrome and the related symptoms the plaintiff experienced after the accident have been drawn into question and I have formed the opinion that their evidence as to that history should not be accepted, in particular as it details symptoms reported to the plaintiff’s medical practitioners upon which the diagnosis of brain injury and chronic pain syndrome has been made.
Findings
In my opinion, the evidence establishes that the plaintiff was struck or knocked by the “flop gate” on the back of the head so as to knock the helmet from his head and to throw him on to his knees.
I accept the defendants’ expert medical evidence that the plaintiff’s presentation at his G P on the day following the accident and indeed over the following several weeks was consistent with him having a minor head injury and that that thereafter the initial effects of that injury subsided, leaving him with no permanent ill effects, either in terms of his physical condition or his mental condition.
I reject the expert medical evidence adduced on behalf of the plaintiff which concludes that the plaintiff suffered a head injury resulting in post-concussion syndrome and prefer the expert evidence of the defendants on that issue.
I do not accept that the plaintiff suffers chronic pain disorder or that he has suffered a head injury of mild to moderate severity leading to impairment of cognitive and intellectual function.
I find that the plaintiff has suffered a 5% impairment of the whole person attributable to a cervico-thoracic injury as a result of the accident.
Assessment of Damages
General Damages:
As regards general damages, I am of the opinion that the sum of $30,000 is an adequate compensation for the plaintiff’s accident-related injuries. In addition, I assess interest as claimed by the plaintiff, at 2% on $15,000 over 2,062 days between 17 March 1996 and 7 November 2001, which totals $1,690.
Special Damages:
WorkCover special damages are agreed at $5,676.66. In addition, the plaintiff claims other special damages of $2,476.46. This amount is calculated by taking the figure of $10,629.59, as expenses which are said to have been incurred in relation to all the claimed injuries, and deducting the WorkCover figure, which leaves an amount of $4,952.93, and apportioning half to the cervico-thoracic injury. In my opinion it is appropriate, in addition to the WorkCover special damages of $5,676, to allow an additional $800 for special damages, inclusive of interest.
Economic Loss:
Past economic loss for the period to 4 August 1996 is agreed by the parties at $7,562.33, being the gross weekly Workers’ Compensation benefits of $12,628.63, less deducted tax of $5,066.30.
Otherwise, as regards economic loss, counsel for the plaintiff submitted that, from a practical perspective, even if the plaintiff may still be able to do some of the work of a fitter, the fact remains that the variability of the work involved will mean that there will frequently be occasions when the plaintiff encounters heavy work that he cannot do. Therefore, it is submitted that for practical purposes the plaintiff has been denied the opportunity to pursue his trade, because the possibility of heavy work, in respect of which Dr Dempsey indicated he was now unsuitable, cannot be excluded. Counsel for the plaintiff submitted that the figure of $300 net loss per week was an appropriate figure to be used in assessing past economic loss. That figure is derived by halving the figure of $600 as being the weekly net earnings which it is said could be earned as a fitter.[13] For future economic loss, it was submitted a figure in the region of $200 weekly net loss was an appropriate base figure, given the concession that the plaintiff’s condition had improved in recent times.
[13]This is based on the evidence of Mr Christoffesen that he had been earning $25,000 to $30,000 net per annum and the evidence of Mr Moody from Skilled Engineering that currently, fitters engaged by his company earn about $1,200 gross per week on a two week on two week off basis. In addition, there was evidence by Mr Johanson of earnings of $1,500 to $1,600 gross per week.
Counsel for the plaintiff thus advanced the figure of $71,800 as representing past economic loss, calculated as follows:
Agreed economic loss over the period from 17.03.96 to 04.08.96 $ 7,562.33
274 weeks’ loss of income between 05.08.96 and 07.11.01
@ average of $300 net loss per week $82,200.00
$89,762.33
Less discount of 20% for contingencies $17,952.47
$71,809.86
Rounded off at $71,800.00
As regards future economic loss, counsel for the plaintiff advanced the figure of $120,500, calculated on the basis of a current and continuing rate of loss of $200 net per week, discounted @ 5% per annum over 25 years (multiplier 753.6), making $150,720. This was discounted by 20% for contingencies, yielding $120,500.
By contrast, counsel for the defendants submitted that this is a case where the approach of adopting a global award in respect of both past and future economic loss is appropriate. As regards past economic loss, a figure of $5,000 was submitted as appropriate compensation. This was said to take into account the fact that it is not clear what the plaintiff’s intentions were regarding continuing as a fitter on a mining site, and that he was able to perform other work, eg as a tutor. As regards future economic loss, counsel for the defendants put forward an assessment of between $10,000 and $30,000, with $10,000 being appropriate if it were found that the plaintiff would have continued doing work in the nature of tutoring or research assistance or the like, and $30,000 being the more appropriate range if it were to be found that he would have been likely to continue working as a fitter. (The figure of $30,000 is about $50 per week for 20 years on the 5% tables.)
Counsel for the plaintiff conceded that this was not a case which lends itself to a precise actuarial approach and that such an approach would, on the facts of this case, be both difficult and artificial, but submitted that, on one interpretation of s 16 of the Supreme Court Act 1995, it is no longer open to make a global award that does not have regard to the discounting exercise referred to therein. I do not accept that that provision precludes an assessment of damages on a global basis for economic loss in this case. Indeed, I note that recently, in McNally v Essenhaven Pty Ltd,[14] the Court of Appeal assessed damages on a global approach, in a case where it considered that it was not possible “to accurately assess with any sort of precision the plaintiff’s past and future loss of income or capacity to earn income”.
[14][2001] QCA 452, the Court of Appeal at para [11]
In my opinion, this is similarly a case where it is appropriate to assess damages for past and future economic loss on a global basis. The plaintiff’s evidence was that, had he not been injured in March 1996, he intended to complete a Masters Degree in Social Sciences and move through to working in personnel management with an engineering flavour, but that if for some reason that were not possible, he would have fallen back on his trade or tutoring. However, it is difficult to determine to what extent this was a wish list or a real goal. In any event, I do not consider that the plaintiff’s injuries preclude further study for a Masters Degree. An examination of the plaintiff’s working history reveals a chequered earning record. I consider that it was likely that had the accident not occurred, the plaintiff may have pursued a variety of further study and work, including work as a fitter and possibly on occasions as a tutor. I consider on the evidence that the plaintiff is still able to continue his trade as a fitter, but that he will need to restrict his activities to the lighter range of work.
In those circumstances, the assessment should take into account that the plaintiff is at a disadvantage in the employment market and may be required to forgo opportunities of which he may otherwise have availed. I consider that a global award of $10,000 adequately compensates the plaintiff for past economic loss including lost superannuation and interest.
As regards future economic loss, I consider that a global award of $40,000 inclusive of loss of future superannuation is adequate compensation.
Voluntary Care:
As regards past care, I award $672 in accordance with the plaintiff’s schedule for the period from 18 March 1996 to 31 March 1996.
Accordingly, I assess damages as follows:
(a) Pain and Suffering $ 30,000.00
(b) Interest (@ 2% on $15,000
$ 1,690.00
(c) Specials/Expenses
Paid by WorkCover[15] $ 5,676.66
Other $ 800.00
$ 6,476.66
(d) Fox v Wood as agreed[16]
9 weeks @ $845 per week
8 Weeks @ $945 per week$ 5,066.30
(e) Past Economic Loss
To 04.08.96 as agreed $ 7,562.33
05.08.96 to 07.11.01 $10,000.00$ 17,562.33
(f) Future Economic Loss
$ 40,000.00
(i) Past Care
$ 672.00
Total
$101,467.29
Less Refund to WorkCover[17]
$ 18,305.00
TOTAL
$ 83,162 .29
[15]See Exhibit 2
[16]See Exhibit 2
[17]See Exhibit 2
I award judgment for the plaintiff against the defendants in the sum of $83,162. I shall hear the parties as to costs.
0