Stevens v State of Queensland

[1998] QSC 161

IN THE SUPREME COURT
OF QUEENSLAND
  No. 10308 of 1996
Before Mr Justice Dowsett
[Stevens v State of Queensland]
BETWEEN
  JOHN FRANCIS STEVENS
  Plaintiff
AND
  STATE OF QUEENSLAND
  Defendant
  REASONS FOR JUDGMENT - J.A. DOWSETT J.
  Judgment delivered 21 August 1998

CATCHWORDS:     NEGLIGENCE - PERSONAL INJURIES - WHERE PLAINTIFF   ALLEGEDLY INJURED DURING COURSE OF EMPLOYMENT -   WHERE CIRCUMSTANCES SURROUNDING INJURY NOT

KNOWN - WHETHER NEGLIGENCE OF EMPLOYER   ESTABLISHED

Counsel:  Mr M. Grant-Taylor for the plaintiff

Mr W.A. Martin for the defendant       

Solicitors:  Bowdens for the plaintiff

Crown Solicitor for the defendant

Hearing Date:              6-10 August 1998

REASONS FOR JUDGMENT - J.A. DOWSETT J.
  Judgment delivered 21 August 1998

The plaintiff was born on 17 June, 1956, the youngest of four children. As a child, his family life was unsatisfactory. During his adult life, his contact with his parents and, to some extent, with his siblings, has been sporadic. His education was disrupted by illness, resulting in his completing Grade 10 in 1972 when he was aged 16. He then completed an apprenticeship as a radio and television technician, finishing in 1976 or 1977. Thereafter, and until early l994, he was employed in positions involving the utilization of skills acquired in the course of such apprenticeship. In particular, between 1984 and 1994, he was employed as a regional communications officer with the State Emergency Service based in Townsville.

His duties involved the installation, repair and maintenance of electronic communications equipment in that area of rural Queensland which stretches from Birdsville in the south-west to Mornington Island in the north, and from Townsville and Mackay in the east to Mt Isa in the west. This area comprised three different regions for administrative purposes within the State Emergency Service, each headed by a different officer.  The plaintiff was required to travel throughout the area, attending to his duties in response to requests from the various regions. In his technical duties, he was responsible to a Mr Buchanan who was based in Brisbane. He alleged that in some respects, he was also responsible to Mr Fox who was based in Townsville. I am satisfied on the evidence that this was not so, and indeed, I do not understand the plaintiff to have persisted in that assertion.  The plaintiff complained that it was sometimes difficult to meet the demands made upon  him to perform his duties in each of the three regions. However, as he remained in this job for a fairly long time, it is probable that he found it reasonably congenial. The evidence suggests that the plaintiff has, in his adult life, tended to isolate himself from others. It may  be that the nature of his duties, requiring that he travel extensively, suited him in this regard.

LIABILITY

At all material times the State Emergency Service maintained a store at Garbutt in Townsville for which Mr Fox (to whom I have already referred) was responsible. The store comprised a fenced compound containing a building used for the storage of the equipment required by the State Emergency Service for its operations. For some considerable time prior to 21 December, 1993 a disused radio antenna had been stored within the compound, but outside the building.  It was lying on its side, possibly elevated on railway sleepers or bricks. It was made of metal segments which were bolted together. The plaintiff said that as at 21 December, 1993 it was in three segments, one about 40 feet in length and the other two, each about 20 feet in length. The pieces were lying in the relative positions they would have occupied had the antenna been erected.

Some months prior to 21 December, 1993 Mr Fox and the plaintiff had discussed the antenna. Its presence in the compound was causing trouble to those responsible for cutting the grass. However Mr Fox was not responsible for it, nor did the plaintiff have authority to dismantle and move it unless so directed by somebody in authority, presumably Mr Buchanan. Although Mr Grant-Taylor for the plaintiff referred in his opening to Mr Buchanan as a witness, he was not called. On 21 December, 1993 the plaintiff and Mr Fox went to the store. Mr Fox went to attend to some tarpaulins which were stored there and perhaps to attend to other matters of maintenance. The evidence does not disclose how the plaintiff came to accompany him or what he intended to do there. Presumably, he proposed to assist Mr Fox, although there was no suggestion that he had been directed by Mr Buchanan or any other person to do so.

In the course of the day, Mr Fox saw the plaintiff attempting to dismantle the radio antenna.  Mr Fox’s recollection was that the antenna was lying on the ground in one piece rather than in three as  suggested by the plaintiff.  He said that he saw the plaintiff using a shifting spanner and socket wrench to undo the bolts, thus reducing the antenna to sections which he was storing on a pallet.  At about 1 p.m. he saw the plaintiff walking towards him with blood streaming from his face. He asked the plaintiff what had happened. The plaintiff did not know. He asked if he had fallen. The plaintiff said he did not know.   He asked, “Did you black out?”. The plaintiff again said that he did not know. The witness then attended to the plaintiff’s injury and eventually took him to hospital. A couple of days, later he saw a shifting spanner lying on the ground close to the radio antenna.

The plaintiff has no recollection of how he was injured. He has obviously, and understandably, discussed the matter with others and developed a theory. He does not recall working on the antenna although he recalls regaining consciousness and finding himself lying nearby, between it and the fence. He noticed blood on his shirt and subsequently had the conversation with Mr Fox to which I have already referred. In cross-examination, it emerged that  the plaintiff had suffered from blackouts as a child, although there is no evidence that this tendency continued in his adult life.

There is very little other evidence on the issue of liability. The plaintiff visited the site quite recently with  Mr Murray, an engineer, who took photographs and measurements. In particular, he inspected one of a number of bolts remaining on what appears to have been part of the antenna. Mr Murray noted  that the bolt had a raised collar, designed to secure the nut to the bolt in place of a spring washer. The nut and bolt had been painted, and the threads contained paint. The nut was burred.   Mr Murray  considered that a single adult male would be unable to remove such a nut using an open-ended spanner or a wrench. He considered that the task could be performed using an electric or pneumatic wrench.  He said that the burring of the nut was indicative of a device having been used in an attempt to remove it, which device had slipped under considerable force.  Mr Murray inferred as a matter of common sense that any person experiencing such a slip whilst using such force might slip himself.

Mr M.V. Johnston, the officer-in-charge of the police radio-electronic section in Townsville, knew of the antenna prior to December, 1993. He said that parts had been removed  prior to that date to be used  for other purposes. He believed that the nuts and bolts were heavily corroded. He was familiar with the operations involved in undoing such nuts and bolts and considered that an operator would normally like to have two people competent in the use of various tools in order to perform such an operation. He considered that this would involve the use of a socket on a ratchet handle and a shifting spanner.   Mr Hegge also gave evidence concerning the antenna, but there was nothing of significance in his evidence.  Mr Mervyn Thomas, a regional communications officer with the State Emergency Service, first became aware of the antenna in late 1995. About a year ago, he attempted to dismantle part of it but found that he could not do so because of the lock nuts. He said that he had tried to undo a nut which was already burred. He was not aware of anybody else having tried to remove the nut.

There are  numerous photographs of parts of the antenna. Exhibits 14 and 15 are photographs taken by Mr Murray. I do not understand the plaintiff to assert positively that these photographs depict a bolt which he was operating upon at any relevant time. His lack of recollection of the incident would prevent him from giving such evidence. The photographs are simply photographs taken by Mr Murray of the equipment and of one particular bolt which he examined. I understand ex. 18 to show a bolt “typical” of those used in the structure and similar to that which Mr Thomas sought to undo.  I accept that the burring found by Mr Murray and Mr Thomas demonstrates that there had been some previous attempt to remove a nut or nuts, but I am unable to infer that it was the plaintiff who caused the burring.

I accept the evidence of Mr Fox that on 21 December, 1993 the plaintiff was involved in dismantling the antenna. It seems likely from the plaintiff’s own evidence that some dismantling work had been done prior to this, although not by him. I also accept Mr Fox’s evidence that he was using a shifting spanner and socket wrench.  Given the lengthy period of time during which the antenna had been stored at Garbutt, I am also willing to infer that the nuts and bolts had probably suffered corrosion. I accept that there was paint in the grooves of at least some of the nuts and bolts. These factors would make it  difficult to remove such nuts from the bolts, however  Mr Fox’s evidence suggests that the plaintiff had not experienced much difficulty on that day. He considered that the plaintiff  was making reasonable progress. It would be unsafe to accept such evidence at face value.   Mr Fox was probably not closely observing the plaintiff’s activities. There was no reason for him to have done so. 

Clearly, the plaintiff was injured on 21 December, 1993 and equally clearly, he was, at some time on that day and prior to his injury, engaged in dismantling the antenna. This would  have required him to undo nuts and bolts, using equipment of the kind described by Mr Fox.  In the absence of any direct evidence as to the way in which the plaintiff was injured, he advances two principal theories. Firstly, he argues that he may have been struck on the head with the wrench or spanner when it slipped whilst he was trying to loosen one of the nuts or bolts. Implicit in this is the assertion that such task required great force and was unlikely to be successful, thus leading to his applying force until the tool slipped on the bolt or nut.  Alternatively, it is suggested that when the tool slipped it may have caused the plaintiff also to slip,  striking his head, probably on the antenna or perhaps on one of his tools. 

While these two explanations are possible explanations of how the plaintiff was injured, they do not appear to me to be the only available explanations. Further, the evidence does not demonstrate that either of them probably occurred. There is little point in seeking to develop other hypotheses, but a number of possible explanations readily spring to mind. The plaintiff may have tripped, slipped or fallen in some way,  striking his head on the antenna or something else,  causing the injury of which he complains. The “blackout:” theory is also at least possible, although perhaps less likely than some other theories in the absence of evidence that his childhood tendency to blackouts continued in his adult life.  There is  also the possibility that the plaintiff may have tried to get under the antenna and hit his head whilst in that position or whilst extracting himself from it.  

The plaintiff sought to find comfort in the decision of the Court of Appeal in Carty v Purnell (1922) 22 MVR 25 to the effect that a defendant cannot rebut an inference of negligence merely by advancing other possible explanations of the way in which a plaintiff’s injury was incurred. However, the plaintiff also must do more than merely advance possible theories. Whilst it is relatively easy to infer that the plaintiff’s injury was caused by his striking his head on either the antenna or a tool which he was using, it is rather more difficult to work out how this could have happened. It is not something which one would normally expect to have occurred in the course of such a relatively straight-forward activity. The plaintiff has done little more than develop theories which explain his injury in ways which are consistent with a breach of duty on the part of his employer. The mere ability to develop such theories does nothing to prove them. I am not satisfied that the plaintiff’s injuries were caused in either of the ways suggested by him. In the pleadings, the plaintiff’s claim is put on a number of other bases, but they were not argued at the trial. In those circumstances, as I understand it, the plaintiff’‘s claim must fail simply because he has not demonstrated how he was injured. The plaintiff’s case is put both in negligence and as a breach of statutory duty, but in view of my finding, it is not necessary to consider either cause of action further.

In case it may be relevant, I find that I am not satisfied that the defendant was aware that the plaintiff was to become involved in the dismantling of the antenna. It appears at best to have been an arrangement reached between the plaintiff and Fox. The plaintiff said that he normally informed Mr Buchanan in advance of how he would be spending his time in each ensuing two-week period by submitting to him a Form A27. There is no evidence that he had so informed Mr Buchanan of his intention to undertake this task, nor that it was within the normal ambit of his activities. In those circumstances, at least insofar as the plaintiff relies upon a cause of action in negligence, it may be difficult to demonstrate a breach of duty on the part of the defendant. As to the application of s.9(1) of the Workplace Health and Safety Act 1989, it is not necessary to consider that matter further.

QUANTUM

The plaintiff had consulted Dr Keyes in March, 1984 (i.e., long before the accident) complaining of anxiety and tension tremors. He saw him on other occasions in March and April, 1984 and was eventually referred to a psychiatrist, Dr Richard Green whom he saw on 21 May, 1984. Doctor Green reported that the plaintiff complained of disliking his job and getting the “shakes”, causing him difficulty in delicate work. He complained of social isolation and that he had never had a satisfactory relationship with a woman. He said that he had been suffering tremors for three or four months.  These appeared to be related to anxiety in his job. Doctor Green considered him to be “fairly precise and obsessional”. The plaintiff also reported a rather unusual fantasy and that his early  family life had been characterized by parental fighting. In discussion with Dr Green, the plaintiff persistently advanced reasons why he could not do anything to remedy his social isolation. Doctor Green formed the view that he considered other people to be “dumb” and that he was often irritated and angered by his workmates whom he considered to be less competent than he was. Doctor Green found little evidence of tremor. The plaintiff apparently commenced work with the State Emergency Service after these consultations.  In July, 1985 the plaintiff saw another doctor in Dr Keyes’ practice, complaining of a sore neck with numbness down both arms associated with spasms of the neck.

After the incident on 21 December, 1993 the plaintiff was treated at the Townsville General Hospital and was off work for about a week. He said that he did not immediately experience any problems on returning to work, but as a result of an incident in March, 1994 he realized that he was having difficulties.  This incident involved his having a difference of opinion with Mr Fox over whether or not he should deliver equipment to a place called Pentland. He seemed to believe that he finally decided to go to Pentland but did not remember going. Mr Fox did not recall this incident but said that early in 1994, he noticed a decline in the plaintiff’s memory and in his capacity to concentrate and to do his job. The plaintiff ceased work in March, 1994.  He continued to undergo rehabilitation training whilst on sick leave until he retired as medically unfit on 5 July, 1996.

Doctor Keyes saw him on 14 March, 1994. He said that he had been knocked out at work in December, 1993. He complained of headaches, poor memory and difficulty in concentration.  He appeared to be quite stressed by his symptoms. He was next seen on 11 April, 1994 by which time he was seeing a psychologist.  He again complained of problems with concentration and memory and of  increased stress and anxiety.  His symptoms worsened.  Doctor Keyes diagnosed a post-concussion syndrome which was incapacitating him for work.  The plaintiff has subsequently seen numerous neurologists, psychiatrists and psychologists.
NEUROLOGICAL EVIDENCE

Doctor Reimers saw him on 25 July, 1994. The plaintiff claimed that after the accident, he experienced clumsiness and a tendency to drop things. He also had difficulty with his vision. This had resolved to some extent. He also complained of memory loss. Doctor Reimers considered that the injury had been relatively trivial. He could not find, “any serious cause for his symptomology”. He suggested that the cause might be psychiatric. Doctor Staples saw him at some time prior to 29 September, 1994. He was also unable to detect any cause for the plaintiff’s continuing symptoms. He thought that he may have been suffering from anxiety but could find no organic cause for the symptoms. He considered that the plaintiff had suffered a minor closed head injury from which, “I would have expected a complete resolution.” 

Doctor Cameron first saw the plaintiff on 10 November, 1994. He told Dr Cameron that he was injured when a piece of iron fell on him from a height of several metres. This appears to have been a reconstruction of events. He said that in the 4 to 6 weeks following his return to work, people  noticed that he was acting strangely. He also complained of mild right-side neck pain.  He said that approximately four months, later he experienced a loss of memory concerning work on a particular day. This appears to have been a reference to the Pentland incident. Thereafter, he had difficulty in recalling people’s faces, names and recent events. He also had difficulty in using his right arm and leg, describing poor co-ordination and clumsiness.

He told Dr Cameron that his job was stressful, that he had to work for four people and  lacked resources. He also complained of difficulty in remembering electronic symbols and reading circuit diagrams, although he felt that he was coping reasonably well.  Doctor Cameron considered that he had suffered minor injuries, followed by a brief period of unconsciousness and amnesia surrounding the event.  He considered that there was no long-term disturbance and that he had made a complete recovery from the injury.  Doctor Cameron concluded that he had developed an amnesic disturbance but could find no organic explanation for this. The disturbance was not related to his head injury. He suggested that a psychiatric opinion be obtained. 

Doctor Cameron saw him again on 18 May, 1995. He complained of difficulty in performing radio repairs in that he could not replace parts and made mistakes. He felt that his condition was improving. He had episodes of confusion, disorientation and nausea. Doctor Cameron concluded:-

“I think it is rather difficult to say that this man suffered any organic disturbance in memory as a result of a head injury from such a trivial injury particularly in the absence of any supportive evidence.”

Doctor Cameron saw him again on 7 October, 1996. He complained of  a “fuzzy” head and a state of confusion lasting for a day or two at a time. These symptoms were sometimes relieved by physiotherapy. He said that he could probably do “a job” but did not know which type of job. He complained of permanent memory loss,  that he forgot people’s names and faces and could not recall aspects of his job. He said that he made mistakes such as putting his shoes on before his socks and using salt instead of sugar. He claimed to have “lost” his bicycle by leaving it chained to a post at a railway station and then being unable to recall which railway station. He complained  of losing things and of occasional headaches. When reading, he would forget where he was. He experienced difficulty in going to films. Doctor Cameron concluded:-

“I have never been able to find any abnormalities of a neurological nature to account for this man’s rather odd symptoms. I do not believe he suffered any significant head injury in the particular event which would account for these odd manifestations. Overall I have found this man’s story somewhat bizarre and I believe his problems are non-organic in nature. ...

While this man manifests this non-organic disturbance it is unlikely he will ever return to his previous occupation although I believe he is physically capable of performing such a job.

It is unlikely he will ever return to any other form of useful employment while he manifests these symptoms.

Overall, however, I believe there exists no organic reason why he cannot return to his previous job and full-time employment.”

Doctor Saines saw him on 29 October 1997. He concluded:-

“I do not feel that he has any neurological disability as a result of the incident. 

His symptoms in the post head injury phase and his current complaint of longer term memory loss are surprising and would not readily relate to an organic cerebral injury. They may have a psychological basis as has been suggested in other reports. 

His prognosis, in terms of his neurological function, is good and he should be able to return to full employment in the area for which he is trained. I doubt that any disorder could now be attributed either directly or indirectly to the injury but I would defer to a psychiatrist to determine whether he will be able to cope with work in the future.”

Doctor Brady is a general practitioner who has also seen the plaintiff on numerous occasions since April 1995. He diagnosed “minimal  brain dysfunction/post concussion syndrome”. He considered that this condition has slowly improved, but not resolved. He expected that it would probably continue, causing a permanent minimal brain dysfunction. Although it was not clear from his report (ex. 5), his evidence-in-chief and cross-examination indicated that he did not consider the plaintiff to be suffering from a depressive illness or from any psychiatric illness. (Ts. p. 144 ll.15-20) He rather saw this as a case of minimal brain damage. (Ts. p. 144, ll. 25-35) The dysfunction which he diagnosed is, he said, very rare and may have been beyond the range of professional experience of the neurologists who have excluded brain damage. 

I accept the unanimous view of the neurologists that the plaintiff has not suffered any organic brain damage and reject Dr Brady’s view. I do this largely because of the weight of the neurological evidence, although I accept that Dr Brady has possibly had a better opportunity to assess the plaintiff’s condition, having seen him on numerous occasions.

PSYCHIATRIC, PSYCHOLOGICAL AND OTHER  EVIDENCE

I have already referred to the evidence of Dr Green who saw the plaintiff many years before the accident. The other psychiatric evidence must be seen in light of that evidence. Doctor Nothling saw the plaintiff on 14 February, 1995 by which time he had effectively ceased work. He said that he had experienced conflict in his work as a result of having to report to four different people. This appears to have been a reference to the three regional heads and Mr Buchanan. He complained of decreased concentration, that on occasions his mind would “go blank” and that he became irritable. He said that he remembered preparing to go to Pentland but  that he had “lost a couple of days there”. He said that in March, 1994 his short-term memory had been bad, but it was improving. He complained of blurred vision at that time. He also complained of feeling tired and of  pressure in his head. He said that he could not remember electronic theory to do his job but could perform in a “managerial” role. 

Doctor Nothling concluded:-

“It is my opinion that Mr John Francis Stevens did not suffer any serious head injury. He suffered a mild blow to the head in December 1993, and the period of post-traumatic amnesia was only of about 20 minutes duration. There was no documented head injury at the time, and he was not retained in hospital. 

He had been experiencing conflict in his situation of management at the SES, as explained in this report. In my opinion, he developed an adjustment disorder with anxious mood, which would probably explain his claimed amnesia prior to going off work in March 1994. Since then he has recovered.

...

In my opinion he is not suited to the heavy responsibility of the position he held at the SES in Townsville and, in my opinion, he will not be fit to return to that type of work again. However, in my opinion, he is fit to return to other work for which he is suited by training and experience.

...

In my opinion, he has recovered from the adjustment disorder with anxious moods, and does not require ongoing psychiatric treatment.”

In his report, Doctor Nothing is not clear in his identification of the cause of the adjustment disorder.  However, in cross-examination it became clear that Dr Nothling attributed it to the accident. See Ts. p. 155 ll.15--20.   Dr Nothing was of the opinion that the disorder had resolved by the time of his interview on 14 February, 1995.  He attributed  the plaintiff’s continuing unfitness for the work in which he had previously been employed to the plaintiff’s personality rather than to the accident.

Doctor Lawrence saw the plaintiff on 2 May, 1996. She concluded that, “some of the amnesia had a selective component,” and that:-

“In my opinion, he is suffering from a neurotic condition which apparently commenced with a fugue-like state or dissociative fugue ... the symptoms appear however to relate, both in time and through their nature, to an event in which he suffered a minor head injury with a stated period of unconsciousness. The extent of the head injury however as recorded and treated at the time is unclear and there is a delay of some weeks to a month before the neurotic symptoms emerged ...

... He certainly does not suffer from any other significant psychiatric disorder such as major depression nor any psychotic process.

Overall his complaints have been diminishing and he himself acknowledges that he is considerably improved on what he was previously. His complaints about being ‘unsafe’ to return to his former situation and his obvious desire to change his vocational direction, combined with the functional assessments which have been repeated over a two year period, lead to the inevitable conclusion that this man is unfit to return to the occupation for which he was trained and in which he has been working for 15 years.

However, in my opinion, his residual difficulties do not preclude him, nor does he anticipate that they should do so, from retraining successfully in some other occupation which he indicates that he would like to pursue.” 

Doctor Lawrence concluded:-

“1.On the information available to me, John Stevens is suffering from a psychogenic amnesia. He had personality vulnerabilities premorbidly, though no previous history of any psychiatric or psychological disorder. The condition was precipitated by an apparent head injury which is said to have rendered him unconscious. The accident occurred during the course of his work.

These neurotic symptoms interfered with his functioning to the extent that attempts at rehabilitation have been unsuccessful in restoring his complained deficits to a functional level, though there has been subjective improvement reported by him over time.

2.His prognosis, in my opinion, is good in the long term ...

3.The residual incapacity is such in my opinion as to prevent Mr Stevens from carrying out the duties of his position as a communications officer now and in the future.

4.The incapacity is likely to be permanent if he continues in his present position. However, there is every reason to be optimistic that there would be improvements should this situation change.”

Given Dr Green’s findings, Dr Lawrence concluded that he was probably suffering from a significant personality disorder prior to the accident and that he may well have developed his present symptoms, even in the absence of the accident, as a result of stress in his work. She was unable to say with precision when this might have occurred.

Doctor Mulholland saw the plaintiff on 5 and 11 September, 1996. He concluded that the clinical picture was “unclear”. He thought the most likely diagnosis was, “some degree of organic brain damage upon which has been superimposed a considerable conversion disorder and/or dissociative disorder”. He considered further investigation to be necessary.

Doctor Curtis saw the plaintiff on 2 November, 1996. He concluded that he had suffered an adjustment disorder as a result of the accident, which led to enduring consequences including loss of “mental tension and the mental focus to continue to do what he was able to do before.” The enduring consequences of the disorder were a generalized anxiety disorder with social phobia, severe performance anxiety and actual panic attacks. In cross-examination Dr Curtis accepted that the plaintiff appeared to have been suffering from personality problems prior to the incident but did not agree that he was therefore more susceptible to adverse consequences from the ordinary stresses of life.   He pointed out, with some justification in my view, that particular personality problems may result in a person being better suited to resist the stresses of a particular lifestyle  than a person without such problems.

Doctor Simanowsky, who was a psychiatrist employed at the Princess Alexandra Hospital, saw the plaintiff twice, on 2 and 28 August, 1996 for the purposes of treatment. She also had access to hospital records concerning his treatment there between September, 1994 and June, 1996. She concluded that he was not suffering from any psychiatric illness. The records showed “little resolution up to 16 months after the injury”. This might imply resolution after about April, 1995 or merely that there had been no resolution as at that date. It appears that psychiatric treatment was suspended in April, 1995 and not resumed until July 1996. This  suggests that it was not thought that he had any significant continuing psychiatric problems at that time.

Doctor Grant saw the plaintiff on 8 October, 1997. He concluded that organic brain damage was unlikely and that his symptoms were indicative of psychological disorder. He considered that the most likely explanation was that he was suffering a conversion disorder as a result of underlying psychological conflicts. He thought it possible that the accident highlighted difficulties he was having in the workplace and triggered his problems.  Alternatively, it was possible that there was some mild post-concussional symptoms which impaired his work performance, such impairment producing further emotional difficulties. It was also possible that the injury was irrelevant. Doctor Grant thought it unlikely that he would ever return to his previous employment although it was possible that he might make a complete recovery from his psychogenic condition. Doctor Grant also considered that psychiatric treatment was indicated but could not predict the extent. Such treatment might be difficult because of the plaintiff’s, “enormous denial of any psychological aspects of his disorders ...”.

The plaintiff was tested by  Miss Robyn Murray, a consultant psychologist of the Acquired Brain Impairment Team on 28 September and 3 October, 1995. She found:- “There was no evidence to suggest that John has substantial impairment in the areas of attention, concentration or overall memory.” Further:-

“Certainly on testing John demonstrated that he has the cognitive ability to be able to cope with the demands of his work. There were no indications of deficits on testing which could explain his reported problems at work. In addition there was nothing on testing which could shed light on John’s apparent inability to recall how and where he had disposed of his new car.”

Miss Murray concluded:-

“It is quite probable that John suffered from some post-concussional symptoms following his accident. These may have affected his capacity to work at his previous level, and as his entire life appeared to revolve around his work this would have resulted in considerable discomfort for him ...

... It is possible that his life revolved entirely around his work prior to his accident. However, when he began to suffer from post-concussional symptoms he found the one source of life’s satisfaction was no longer providing him with fulfilment.”

Miss Murray also considered that his condition may have been attributable to mild depression.  Miss Stephenson, an occupational therapist, saw him in June, 1995 and observed him at his workplace. She concluded that he was having memory difficulties.  Mr Saltzman, a clinical neuro-psychologist, saw him on 14 October, 1996. He considered that the plaintiff’s problems were due to very significant psychological problems although he conceded the possibility that he had an extended post-concussion syndrome when first assessed in 1994. Mr Saltzman’s test results indicated likely difficulty in re-training based upon his difficulty in concentrating, studying or learning. His condition may deteriorate in the future. In his evidence-in-chief, Mr Saltzman said that following the accident, the plaintiff had developed serious psychological problems which interfered with his ability to work. The accident had exacerbated underlying psychological problems. Prior to the accident he was probably coping, but only marginally on a day-to-day basis. Any of life’s minor stresses might have “tipped him over the edge”. He considered that the accident had accelerated the development of his symptoms but could not quantify the extent of the acceleration.
CONCLUSIONS

When Dr Nothling saw him on 14 February, 1995 the doctor was unconvinced by the plaintiff’s alleged history of difficulty with memory.   Doctor Nothling considered that the plaintiff did not “present that way to me”. See Ts. p. 155 ll. 20-25.  Although Dr Nothling accepted that his adjustment disorder was attributable to the accident, he considered that it had resolved by the time of his consultation. This view of the plaintiff’s condition is to some extent supported by the history of treatment at the Princess Alexandra Hospital from December, 1994 through to August, 1996.  Further support for this view is found in Miss Murray’s report (ex. 20), in particular her  finding that in September-October, 1995, he was not suffering substantial impairment in the areas of attention, concentration or overall memory although it is true that in June, 1995 Ms Stephenson considered that she had seen  evidence of memory problems in his work.

Over a year elapsed between the plaintiff’s seeing Dr Nothling and his seeing Dr Lawrence who was the next psychiatrist (other than those at the Princess Alexandra Hospital) to see him.  It is possible that Dr Lawrence’s findings on 2 May, 1996 reflected a change in his condition subsequent to Dr Nothling’s consultation, which had occurred for reasons unconnected to the accident.  No doubt it would have been difficult for Dr Lawrence to exclude the accident as a factor contributing to the plaintiff’s condition as she found it. She points out that the focus of his management had  been very much upon the effects of the accident. Doctor Nothling was in a better position to assess those effects in early 1995. He also was in a better position in this regard than were the other psychiatrists who saw the plaintiff after Dr Lawrence.  I accept Dr Nothling’s conclusion that the consequences of the accident had resolved by 14 February, 1995. I am not persuaded that the accident contributed to his complaints after that date.   

Because the plaintiff’s counsel specifically urged the contrary in his address, I should record that I did not find the plaintiff to be a persuasive witness. He seemed to me, understandably, to have engaged in a substantial amount of reconstruction. It was sometimes difficult to know whether he was reconstructing or giving evidence based upon actual recollections of events, both before and after the incident.  I formed the opinion that he knew what was in his interests and what was not.

In the circumstances, quantum falls to be determined under the following headings:-

Pain, suffering and loss of amenity from 21 December, 1993 until

14 February, 1995

Lost income for that period

Allowance for care provided during that period

Wages lost during that period

Special damages incurred during that period

Fox v Wood component

Interest.

As to the question of pain, suffering and loss of amenity it follows from my reasons that only a moderate amount should be awarded. This is to compensate for the immediate physical pain and inconvenience suffered by him following the injury and for a short time thereafter, together with some allowance for his forgetfulness and lack of concentration in the fourteen months until February, 1995.  An award of $10,000 would, in my view, be ample. 

I find myself unable to take the question of quantum further on the submissions made at the trial.  I will therefore list the matter for further argument and also to hear argument as to costs.  There will, in any event, be judgment for the defendant against the plaintiff.