Tector v McCaughey & FAI Insurance Company Ltd

[1999] QDC 139

IN THE DISTRICT COURT
HELD AT MARYBOROUGH
QUEENSLAND

[Tector v. McCaughey & FAI Insurance Company Ltd]

[Before Samios DCJ]

Plaint No 130 of 1998

BETWEEN:

GARRY JOHN TECTOR
  Plaintiff
AND:

MICHAEL ROY McCAUGHEY
  First Defendant

AND

FAI INSURANCE COMPANY LTD
  Second Defendant

JUDGMENT

Judgment delivered:                 19 July 1999

Catchwords:  PERSONAL INJURIES - motor vehicle collision - liability not in issue - back and neck injuries and headaches - plaintiff had pre-existing back disability from a work accident - quantum of damages as a consequence of motor vehicle collision

Counsel:Mr. Favell for the plaintiff

Mr. Wilson for the defendants

Solicitors: Bell Dixon Butler for the plaintiff

McInnes Wilson for the defendants

Hearing Date(s):   8 June 1999    

IN THE DISTRICT COURT
HELD AT BRISBANE
QUEENSLAND

Plaint No 130 of 1998

BETWEEN:

GARRY JOHN TECTOR
  Plaintiff
AND:

MICHAEL ROY McCAUGHEY
  First Defendant

AND

FAI INSURANCE COMPANY LTD
  Second Defendant

REASONS FOR JUDGMENT -SAMIOS D.C.J.

Delivered the 19^th day of July1999

The plaintiff was born on 5 June 1962.  He is married and has two young children.

On 20 September 1996, as the plaintiff was driving a motor vehicle on his way home from picking up one of his children from school, another vehicle collided with the rear of the motor vehicle being driven by the plaintiff.  I will hereafter refer to this collision as “the motor vehicle collision”. 

In this action the plaintiff claims damages for personal injuries, loss and damage he claims he has suffered as a consequence of the motor vehicle collision.

Liability for the motor vehicle collision is not in issue.  However, quantum of damages is in issue. 

The plaintiff claims in the plaint that as a result of the motor vehicle collision he suffered soft tissue injuries to his lumbar and cervical spine, and a severe exacerbation of pre-existing lumbar and cervical back injuries. 

On 2 June 1994 the plaintiff, in the course of his work as a self-employed cabinet maker, was  struck by falling pieces of timber.  I will refer to that event as the “work accident”.  The plaintiff said in his evidence that in the work accident he was struck across the shoulders and the back of the head and across his lower back and his legs. The evidence of Dr. McPhee, a spinal surgeon, is that the plaintiff initially attended on Dr. McPhee on 19 July 1994 with a history of spontaneous onset of lower back and right leg pain.  Further, the leg pain was associated with paresthesia in the foot.  The symptoms had been present for approximately six weeks, and had not responded to treatment.  According to Dr. McPhee x-rays at the time showed a spondylosis of L5.  Further, the plaintiff presented to Dr. McPhee in October 1994 with constant low back and bilateral leg pain which radiated to the feet.  On 15 December 1994, the plaintiff underwent surgery.  A spinal fusion was performed across the lumbo-sacral disc.  Large bilateral defects were noted at the time of operation.  The spine was internally fixed with unilateral pedicle screws on the left side.  When the plaintiff was seen by Dr. McPhee on 25 January 1996 he continued to complain of low back and buttock pain.  The pain was of moderate intensity.  The plaintiff was able to walk slowly with resultant pain down the right leg and bilateral foot pain.  He was continuing to take analgesia daily.
During his cross-examination, the plaintiff accepted that in the six month period in 1995 immediately following the operation he had daily pain in his lower back, and the pain was so bad at times he stayed in bed for relief from it.  He said sometimes he would stay in bed the whole day.  In the second half of 1995, although he continued to have pain in his lower back, he said there were some days when he was pain free.  He said associated with his lower back pain he also had pain in his legs, more in the right leg than the left leg.  He said the leg pains slowly reduced over the period of time between the work accident and the motor vehicle collision.  The plaintiff said he continued to have back pain in the first six months of 1996.  He accepted in cross-examination that this was probably the case every day.  Again, as with the previous periods mentioned, he continued to have pain in his right and left legs, although he said those pains varied depending on what he was doing. 

In the plaintiff’s evidence in chief, in the context of his progress in the time between the work accident and the motor vehicle collision, immediately before the motor vehicle collision he said his health was good and he was improving.  Further, he was looking after himself and could drive himself around and pick up his children and had virtually no pain.  According to the plaintiff, from the time of the surgery to his lower back onwards he thought he was steadily improving all the time to a stage where he was capable of looking after himself and doing his chores around the home.  He said he was cooking and washing and wiping up, and doing a little bit of vacuuming cleaning, and a little bit in the garden.  In terms of what he did in the garden, he said immediately before the motor vehicle collision he was digging up the garden beds and pruning the trees, however his wife would mow the lawn.  He would not mow the lawn because of the vibrations from the mower affecting his spine, and that he would get some pain from it.  Also immediately before the accident, he said he was scrubbing out the bath after the children had a bath, and he was keeping the house clean, wiping down the walls, picking up the children’s things that they would leave around the place and trying to keep the house in order.  He said that just prior to the motor vehicle collision he was relatively pain free.  He had to watch what he picked up.  Further, his sleeping was improving and he was getting up to eight hours a night at times.  Further, for about two or three weeks before the motor vehicle collision he no longer required his medication.  Further, he and his wife were discussing what the plaintiff might do by way of employment in the future.  Because most of the plaintiff’s working life had been in cabinet making his thoughts were that he might be able to obtain employment in a supervisory role in a cabinet making shop, or possibly with some training, engage in clerical work.

The plaintiff’s wife gave evidence.  She said that prior to the motor vehicle collision she was no longer giving him assistance in coping with everyday life except for heavy things.  Before the motor vehicle collision the plaintiff’s health was good and they were going away on trips, and he was doing normal everyday things.  Further, immediately before the motor vehicle collision the plaintiff was not complaining of pain and his medication was less.  Her evidence was that in the last week before the motor vehicle collision the plaintiff was not on any medication at all.  He was picking up the children from school and he was doing the dishes, vacuuming, cooking and a bit of gardening.  Her evidence was that there had been a big change between how the plaintiff was between his operation and just prior to the motor vehicle collision.  That is, before the operation he was down and not able to do much at all.  He was in bed most of the time and in pain. Then he had the operation and a few weeks later he was recovering and became more mobile.  The plaintiff’s wife accepted the proposition in cross-examination that in the period of 12 months after the operation the plaintiff did mention pain almost every day and there were days that the plaintiff could not get out of bed because of the pain.  The plaintiff’s wife accepted that at the beginning of 1996 those circumstances regarding the plaintiff’s recovery from his back injury continued.  However, her evidence was that in the last two or three weeks before the motor vehicle collision there was a sudden improvement in the plaintiff.  Her evidence was that prior to the motor vehicle collision they spoke about what work the plaintiff might be able to do in the future.  They discussed a number of options.  One option was the purchase of a business that they could both operate, such as an aquarium.  They discussed options that they both might be able to engage in, or something that the plaintiff might be able to take up in his former trade, such as a supervising role. 

With respect to the impact of the motor vehicle collision upon the plaintiff, his evidence was that immediately on being struck he was quite sick, disorientated and sore all up his spine and his head and shoulders.  He was not able to walk away from the accident.  The ambulance had to attend to him and put him in a brace and lift him out of the vehicle.  He was taken to hospital following the motor vehicle collision.  The hospital report confirms that at the hospital he complained of neck pain and tingling down the back of his legs.  The hospital also noted that the plaintiff had a past medical history of a fractured L5/S1 following the work accident.  The plaintiff’s evidence was that following the motor vehicle collision he has suffered from more pain in his lower spine which he described as excruciating, he has also suffered from what he described as bad migraine headaches, and he has had trouble with his bowel and bladder.  He also said he has had pains and soreness in his neck and shoulders since the motor vehicle collision.  Following the motor vehicle collision, he was effectively in bed for five months, requiring the assistance of his wife with respect to many aspects of his daily needs.  During that period of five months, the plaintiff was admitted to the multi-disciplinary pain centre at the Royal Brisbane Hospital by his general practitioner, Dr. Collins, for multi-disciplinary management of his back pain.  He was admitted on 11 December 1996 and discharged on 25 December 1996.  Following the motor vehicle collision he required the attendance of the Blue Nurses who ultimately showed his wife how to administer pethidine injections for the plaintiff to obtain relief from the pain.  Even the plaintiff’s parents and friends rendered assistance, although on the evidence their assistance seems to have been to give the plaintiff company and support.

The plaintiff claims in this action the effect of the motor vehicle collision has been to not only cause him an increase in his pain in his back but also to cause him neck pain and what he describes as migraine headaches, the need for assistance not only since the motor vehicle collision but also for the future, and to incur expenses.  Further, the motor vehicle collision has destroyed the capacity he had for earning income at the time of the motor vehicle collision and that he has therefore lost income he otherwise could have earned and would now not be able to earn income in the future. 

The plaintiff’s general practitioner, Dr. Collins, commenced to treat the plaintiff in 1994.  Her reports to the solicitors for the plaintiff dated 6 March 1997 and 6 March 1998 respectively make reference to the plaintiff having suffered from chronic neck pain before the motor vehicle collision.  However, when Dr. Collins gave evidence at the trial, she said that she had made a mistake in that respect, and the plaintiff had not complained to her before the motor vehicle collision of neck pain.  According to Dr. Collins, the first complaint the plaintiff made of neck pain was after the motor vehicle collision.  That was when the plaintiff phoned Dr. Collins on 23 September 1996.  The evidence of Dr. Collins was that after the operation performed  by Dr. McPhee, and up to the time of the motor vehicle collision the plaintiff’s condition had been improving.  Dr. Collins had reviewed her notes and noted that he had been improving by being able to exercise in a heated pool, able to walk and able to drive.  In cross-examination, Dr. Collins was referred to her notes and relevant entries in her notes regarding the plaintiff.  According to Dr. Collins’ notes, on 6 July 1995 the plaintiff told Dr. Collins in some weeks he had great difficulty in getting out of bed.  On 31 July 1995 he said he had a lot of pain in his back and his right leg.  The pain was referred down the right leg to the sole of his foot.  He also had a limited range of movement.  On 29 August 1995 the plaintiff told Dr. Collins he was in a lot of pain in his back, down his right leg to the soles of his feet and he was sleeping poorly because of the pain.  In November 1995 his back pain was about the same, also some leg pains and he wanted further prescription mediation.  On 21 November 1995, he told Dr. Collins that two or three days per week he would spend the whole day in bed.  That was almost a year after the surgery performed by Dr. McPhee.  On 12 March 1996, Dr. Collins has recorded “In pain constantly, has not been going to water exercise, insurance forms”.  The record on 17 April 1996 shows the plaintiff complaining of daily pain and some nights being unable to sleep because of pain.  On 14 May 1996, there was an entry that the plaintiff was getting cervical headaches.  Dr. Collins accepted this was a reference to headache stemming from the neck.  On 19 June 1996, Dr. Collins’ records show the plaintiff complained of his back being constantly sore, with buttock pain and right leg pain to the knee.  There was also the complaint of pain to the sole of the foot.

Following the plaintiff’s work accident, he was in receipt of an income replacement benefit provided by an insurer for a period of two years.  That having ceased before the motor vehicle collision, the plaintiff had before the motor vehicle collision applied for a disability pension.  For that purpose, the plaintiff was examined by Dr. McKeon to assess if he was eligible to receive a disability support pension.  That examination occurred on 28 August 1996.  The first thing Dr. McKeon did was to take a history from the plaintiff.  Dr. McKeon noted the lower back injury from 1994 and that there had been an operation, and that the plaintiff still continued to have lower back pain which interfered with his ability to do things.  The plaintiff told Dr. McKeon that his lower back disability was aggravated by standing and walking, sitting and just generally moving.  The plaintiff told Dr. McKeon he was not able to walk much longer than 30 or 40 minutes, he could only stand for five minutes before he had to change his position, he was unable to do physical activity to any great extent, but he could do some housework.  Further, he was on medication for his back pain.  When Dr. McKeon examined the plaintiff, Dr. McKeon noticed that the plaintiff looked generally quite healthy, but he also noted that the plaintiff had some reduction in his general mobility and he moved stiffly.  When he examined the plaintiff’s back he noted there was definite reduction of movement in his lumbar spine and when he tested the plaintiff’s legs, he found there was a mild degree of irritation of his sciatic nerves.  Further, the plaintiff told Dr. McKeon the plaintiff was able to do light duties.  The plaintiff attempted to do this by doing housework when he could and that he could do it for 10 to 20 minutes at a time, and he could go grocery shopping and as long as he looked after his back he was able to do some things.  Dr. McKeon’s notes indicated that regarding improvement following the operation there had been some improvement, but the operation did not take away the pain completely.  Nevertheless, Dr. McKeon concluded that the plaintiff was at the time of his examination capable of doing part time work which would be at least 8 hours per week and provided it was light type of work and light duties, and Dr. McKeon anticipated at some stage in the next 24 months the plaintiff may be able to increase that to full time work for 30 hours per week.  Dr. McKeon did not think that the plaintiff would ever really be capable of doing heavy work such as labouring work, and felt he was more suited in practical terms to doing light duties, such as clerical work, or work that did not require any physical work such as heavy lifting.  Dr. McKeon also noted that the plaintiff said that at the time of the examination, the plaintiff could sit for up to two hours before the pain prevented him from remaining in that position.  Dr. McKeon’s view of the plaintiff was at that time he was not medically fit to return to his previous occupation as a cabinet maker, nor would he be fit for that work within the next 24 months.  Dr. McKeon did note that the plaintiff anticipated doing external studies which could lead to a clerical career, although he would require retraining to ensure a wider scope of work.  Hence, notwithstanding the plaintiff was seeking to be granted a disability support pension, in the course of discussing his future with Dr. McKeon, the plaintiff spoke of doing something in the future towards employment. 

Although it might be inferred from the fact that the plaintiff applied for a disability support pension that he considered that as he was at the time he could qualify for the disability support pension, I do not consider the inference can be drawn that the plaintiff considered those were his circumstances indefinitely.  When it was put to him in cross-examination that by making the application for the disability support pension he had reached the view in his own mind that he was incapable of working, he said he was just starting to get better, and if they said he had to go and do work, he would have difficulty with that.  However, he said he was progressing at that stage and he was starting to get to where he could think about those things and look down that track.  When it was put to him that it was at best a dream at that stage he replied it was “A goal”.  I accept the evidence of Dr. McKeon that the plaintiff told Dr. McKeon he anticipated doing external studies which could lead to a clerical career. There is no good reason not to accept this aspect of Dr. McKeon’s evidence.  He made a note of what the plaintiff told him at a point in time before the motor vehicle collision.  In my opinion, if the plaintiff considered himself incapable of doing any work in the future he would not tell the doctor who is to assess him for his eligibility for a disability support pension that he anticipated doing external studies which could lead to a clerical career.

When it was suggested to the plaintiff in cross-examination that having regard to the regular visits he made to his general practitioner and the complaints of symptoms that he made before the motor vehicle collision he had close in time to the motor vehicle collision constant, regular, bad lower back pain, the plaintiff denied that was true.  Similarly, that the plaintiff had headaches and neck pain close in time to the motor vehicle collision, the plaintiff denied that was true.

The evidence of Dr. Collins was that the plaintiff’s symptoms after the motor vehicle collision were worse than after the work accident and were more extensive.  Nevertheless, Dr. Collins stated in her report that at 6 March 1998 that while the plaintiff sustained significant injury in the motor vehicle collision, he was severely disabled by his pre-existing back pathology prior to the accident and she felt it was impossible to ascribe his present symptoms solely to the accident.  Further, the evidence of Dr. McPhee as contained in his report dated 6 August 1997 to the solicitors for the plaintiff was that he could not discern any significant difference from the history and clinical findings recorded by him in January 1996 with those he found when he examined the plaintiff on 4 August 1997.  However, in Dr. McPhee’s summary in that report he says:

“In summary, there has been no change in impairment of lumbar spine function with some increase in pain and suffering following the road traffic accident.  This additional pain and suffering resulting from the road traffic accident I have assessed at 5% of the whole individual”

Although Dr. McPhee stated x-rays showed there had been no substantial injury to the lumbar spine and the site of the original surgery was unchanged, I consider that Dr. McPhee accepts that the plaintiff has had additional pain and suffering resulting from the motor vehicle collision.  In that respect he has assessed a 5% of the whole individual impairment from this additional pain and suffering.  It should also be noted that Dr. McPhee does not in his report refer to any complaint of neck pain and headaches.  I do not regard the lack of any complaint by the plaintiff to Dr. McPhee of neck pain and headaches as evidence the plaintiff was not suffering neck pain and headaches as a consequence of the motor vehicle collision.  As Dr. McPhee said himself, the plaintiff was sent to Dr. McPhee with a low back problem.  Further, I consider that as the plaintiff had previously been treated by Dr. McPhee for his low back problem, the focus by Dr. McPhee is likely to have been on the plaintiff’s low back problem, and that the plaintiff may not have made reference to his neck and headaches.  However, during cross-examination Dr. McPhee accepted that following the motor vehicle collision there had been a substantial increase in the intensity of the plaintiff’s lumbar spine pain, and there had also been the development of cervical pain and headaches.  That was the opinion expressed by Dr. Todman, a consultant neurologist, who had provided reports to the solicitors for the plaintiff regarding the plaintiff’s condition.  A point of departure between Dr. Todman and Dr. McPhee was that Dr. Todman was of the view that it was likely the plaintiff had sustained damage to the cervical and lumbar facet joints to explain his ongoing symptoms.  Dr. McPhee would not agree with that.  It was Dr. McPhee’s opinion that facet joints are rarely injured in car accidents or any other accident.  Dr. McPhee conceded he did not carry out any investigations to determine if the plaintiff had sustained damage to the facet joints.  He did not carry out any further investigations because as far as he was concerned the plaintiff presented with a report which was a classical acceleration/deceleration injury, and therefore it was not in the plaintiff’s interest to investigate it further.  Nevertheless, he agreed with Dr. Todman’s opinion that the plaintiff has had chronic symptoms, and the ongoing disability was likely to represent a permanent state of affairs.  Whereas Dr. Todman estimated a 15% permanent impairment of the whole person related to the lumbar spine disorder of which 5% related to the lumbar spine disorder predating the motor vehicle collision, Dr. McPhee thought that if Dr. Todman had used the American Medical Association assessment, the assessment should not have been greater than 10%.  Further, Dr. McPhee was of the view that insufficient had been allowed for the pre-existing lumbar spine disorder and said that a major part of the plaintiff’s disability may well have been in existence at the time of the motor vehicle collision. 

Although Dr. McPhee was taken to Dr. Todman’s opinions, unfortunately Dr. McPhee was not asked to specifically comment on Dr. Todman’s opinion that the mechanism of the injury suffered by the plaintiff had been a muscle and ligament strain to the both the cervical and lumbar levels.  Nevertheless, as I have said, although he disputed the plaintiff had suffered facet joint damage to account for his symptoms, I consider Dr. McPhee did accept during cross-examination that the plaintiff has suffered from a substantial increase in the intensity of his lumbar spine pain and has developed cervical pain and headaches since the motor vehicle collision as a consequence of the motor vehicle collision.  Further,  Dr. McPhee did accept the plaintiff was suffering additional pain and suffering from the motor vehicle collision which he assessed at 5% of the whole individual.  As explained in his further report dated 20 October 1998, Dr. McPhee accepted this change on the basis of a subjective complaint by the plaintiff of increased pain. 

Support for a contention that the plaintiff had suffered only minor effects as a consequence of the motor vehicle collision was provided by the evidence of Dr. Lee, orthopaedic surgeon.  He examined the plaintiff on 10 March 1999.  He concluded that from the history the plaintiff appears to have sustained bruising and/or soft tissue, musculoligamentous damage at the time of the motor vehicle collision.  In his opinion, ample time had passed to allow healing of any injury which occurred at the time of the motor vehicle collision.  He believed the non-orthopaedic (and major) component of the plaintiff’s problem would be more accurately defined and explained by those practitioners specializing in behaviourial disorders who assessed him at the pain clinic of the Royal Brisbane Hospital.  Dr. Lee stated in his report that he was not able to find any evidence that pathology sustained by the plaintiff during the motor vehicle collision was still active and therefore likely to be responsible for his current symptoms.  He did not believe the plaintiff had been left with any measurable degree of permanent injury as a result of the injuries which he sustained in the motor vehicle collision.  With respect to the plaintiff’s employability, in Dr. Lee’s opinion, that appeared to have remained unchanged following the motor vehicle collision. 
I have already mentioned some aspects of Dr. Todman’s opinion regarding the plaintiff.  He saw the plaintiff on 1 February 1999.  Dr. Todman noted the plaintiff’s previous history of lumbar spine disorder.  He proceeded on the basis of a history of steady improvement following surgery, and whilst pain continued, the plaintiff was coping with many day to day activities.  He also noted that nonetheless following his history of low back pain the plaintiff had been unable to return to his previous employment as a cabinet maker.  He also noted the history that following the motor vehicle collision there had been a substantial increase in intensity in the lumbar spine pain, and there had also been the development of cervical pain and headaches.  He stated the mechanism of injury had been a muscle and ligament strain to the spine at both the cervical and lumbar levels.  Additionally, in his opinion, it was likely that the plaintiff had sustained damage to cervical and lumbar facet joints to explain his ongoing symptoms.  In Dr. Todman’s opinion, the plaintiff’s current symptoms are substantial and affect him in all aspects of his life.  In his opinion, the plaintiff has had chronic symptoms and the ongoing disability is likely to represent a permanent state of affairs.  I have already mentioned his estimate of 15% permanent impairment of the whole person related to the lumbar spine disorder.  Further, that 5% was related to lumbar spine disorder which predated the motor vehicle collision.  However, in his opinion, there was also a 10% permanent impairment of the whole person related to the cervical spine injury.  Although further investigations were carried out by Dr. Todman, his estimate of permanent impairment as outlined in his previous report remained the same.  He did not consider that further surgical intervention would lead to substantial pain relief for the plaintiff. 

Dr. Todman did not agree with the views of Dr. Lee.  As far as Dr. Todman was concerned, it is well known scientifically that rear end motor vehicle collisions can cause whiplash injuries, primarily injuries to the thoracic and lumbar spine.  Further, there is scientific evidence that about 15% of the persons who are injured in these collisions experience long term symptoms.  As far as Dr. Todman was concerned, the plaintiff’s history fits the plaintiff exactly into that category.  With respect to the plaintiff’s employability, Dr. Todman was of the view that as there had been a gradual reduction in the plaintiff’s back pain after the operation, there was some prospect of the plaintiff getting back to sedentary work, and possibly increasing that over time.  In Dr. Todman’s opinion, the additional injuries, namely the neck injury and headaches, would put a serious cloud over the plaintiff’s plan to do some work in the future.  On the other hand, Dr. McPhee’s opinion was that as the plaintiff had not worked for two years following his lower back injury, it was unlikely had the motor vehicle collision not happened, that the plaintiff would have returned to work.  In that respect, Dr. McPhee relied upon a study called the “Quebec Study” which showed that anyone who had been off work for more than two years  with an injury to their back, particularly if it was compensable or in any other way involved in litigation, had a very rare chance of returning to work.  The Quebec Study was not something that Dr. Todman was familiar with.  In support of his own opinion regarding facet joint injury to the plaintiff’s spine,  Dr. Todman relied upon a study by practitioners in Australia whom he said  are world-renowned for support for the view that the facet joints seem to be in the brunt of injuries in rear end motor vehicle collisions.  Dr. Lee said in evidence that amongst the parts of the spine that may be damaged through traumatic injury, the facet joints can also be damaged. 

Ms. Kennedy, a psychologist and occupational therapist, assessed the plaintiff on 20 May 1999.  Ms. Kennedy considered that the plaintiff’s presentations and symptoms meet the criteria of a clinical mental disorder viz. pain disorder associated with both psychological factors and a general medical condition (chronic) - DSMIV diagnostic code 307.89.  In summary, Ms. Kennedy considered the plaintiff is not commercially employable due to his having a clinical mental disorder which is also having a severe impact on his physical and functional capacity for activities related to all areas of his personal, domestic, social and occupational life.  In Ms. Kennedy’s opinion there is strong evidence that the plaintiff was suffering such a mental disorder prior to the motor vehicle collision of 1996.  The solicitors for the defendants had asked Ms. Kennedy whether she was able to differentiate between any functional incapacity arising from injuries suffered in the motor vehicle collision and any incapacity arising from injury suffered in the work accident.  Her answer was “Not to a significant degree”.  Further, Ms. Kennedy states in her report that there is also considerable medical documentation relating to the fact that the plaintiff’s recovery from the work accident was very limited.  In that respect Ms. Kennedy referred to the report of Dr. Collins dated 6 March 1998 making reference to the plaintiff being severely disabled by his pre-existing back pathology prior to the motor vehicle collision, the report of Dr. McPhee dated 20 October 1998 in which it was stated there was no change in impairment of lumbar spine function from an examination in January 1996 (before the motor vehicle collision) and that the plaintiff had been rejected for a disability support pension just prior to the motor vehicle collision (report of Dr. Collins dated 17 September 1996).  As far as Ms. Kennedy was concerned this conflicted with the plaintiff’s reports to Ms. Kennedy during her assessment that the plaintiff was thinking about work options just prior to the motor vehicle collision.  When Ms. Kennedy was cross-examined, she indicated that although the plaintiff’s limitations in her opinion were exaggerated to a degree, she was not saying that this is in a sense malingering.  She stated her belief that it was due to a pain disorder, a psychological condition.  Ms. Kennedy accepted that the plaintiff’s situation was one of suffering a mental disorder and not a case of his conscious malingering or attempting to manipulate the circumstances.

The plaintiff has also been examined by Dr. Walsh, a clinical psychologist.  In his report dated 2 June 1999, he states the results of psychological assessment raised two diagnostic possibilities. According to Dr. Walsh it would appear that the plaintiff is either suffering from a chronic pain disorder with both psychological factors and a general medical condition, or he is malingering.  He accepted he did not have any information to make a judgment that the plaintiff was suffering a pain disorder before the motor vehicle collision.  He accepted that the plaintiff’s presentation and symptoms would meet the criteria of a clinical mental disorder if the plaintiff was not malingering.  Dr. Walsh’s opinion with respect to malingering was that he was not convinced that the plaintiff was not malingering.  I take Dr. Walsh’s evidence to mean that if Dr. Walsh was satisfied the plaintiff was not malingering then he would accept that the plaintiff was suffering from a chronic pain syndrome as a consequence of the motor vehicle collision.

The plaintiff’s evidence was that after he left school after completing Grade 10 he worked for a short time as a process operator doing heavy work and worked for Woolworths stacking shelves.  Apart from that work, for the rest of his working life until the work accident he had been engaged in work as a cabinet maker, firstly doing his apprenticeship for about four years, and after that being employed as a cabinet maker and then for the three year period before the work accident he was a self employed cabinet maker.  He was successful in his business as a cabinet maker.  In the financial year ended 30 June 1994 he earned taxable income of approximately $71,000.  Because of the work accident he sold the business for approximately $35,000.  With respect to that sale he said “We gave it away”.  I infer from this that the business was, as far as the plaintiff was concerned, more valuable but that his circumstances dictated he had to sell it because of his lower back injury.  Further, I infer this demonstrates that the plaintiff had considerable aptitude in the cabinet making business and probably could persuade a prospective employer that as a supervisor he would be more valuable with someone of less experience and proven capability in the industry.

I accept the evidence of the plaintiff.  I am persuaded to accept the evidence of the plaintiff because his evidence regarding his symptoms and improvement following the work accident is supported by the evidence of Dr. Collins and Dr. McKeon.  I accept that Dr. Collins made a mistake when she referred in her two reports to the plaintiff’s solicitors that the plaintiff had suffered from neck pain before the motor vehicle collision.  When Dr. Collins was cross-examined about entries in her notes, there was only one entry regarding cervical pain and that was on 14 May 1996.  That was well after the work accident and well before the motor vehicle collision and was the only entry amongst many other entries which made no reference to neck pain or disability.  Further, Dr. Collins was not challenged that her entry for 23 September 1996 which apparently was the date the plaintiff telephoned her and told her certain things was inconsistent with her having made a mistake.  Having been involved with the plaintiff’s treatment since 1994 until at least May 1998 and then in October 1998 and February 1999 and May 1999 persuades me to accept the evidence of Dr. Collins when she says that the plaintiff’s condition had been improving and that in her opinion the plaintiff was not a malingerer.  Even though Dr. Collins stated in her report dated 6 March 1998 that the plaintiff’s pre-existing back problem would probably have precluded his return to work, I take her to be referring to the duties he would need to perform as a cabinet maker which he was performing at the time of the work accident.  With respect to Dr. McKeon, in my opinion he supports the plaintiff’s evidence principally because the examination of the plaintiff by Dr. McKeon took place a month before the motor vehicle collision and without anyone knowing there was going to be a motor vehicle collision a month later, the plaintiff spoke to Dr. McKeon and told him he was contemplating doing external studies which would lead to a clerical career.  Even though the plaintiff told Dr. McKeon that the plaintiff had limitations, for example, only standing for 5 minutes, not being able to walk much longer than 30 or 40 minutes, and able to sit in one position for two hours, the plaintiff did not in evidence suggest his capacities were less than what he told Dr. McKeon.  In my opinion, it does not follow that those capacities reported by the plaintiff to Dr. McKeon are inconsistent with the plaintiff’s evidence that he was improving immediately before the accident, nor that he did not genuinely have in mind doing the things he and his wife said in evidence they had considered immediately before the motor vehicle collision.  As I have said, I do not accept that by applying for the disability support pension the plaintiff was intending that to be, if he were successful, a permanent state of affairs for he and his wife and children.  His employment history persuades me that the plaintiff was a good worker and had achieved something of substance before the work accident.  I am also of the opinion it is understandable that he may have felt low, as his wife described it, about his circumstances before the motor vehicle collision, but that following the motor vehicle collision suffering from a substantial increase of pain in his lumbar spine with the addition of cervical pain and headaches, it is entirely understandable that he might then demonstrate elements of a major depressive illness as noted by the pain centre at the Royal Brisbane Hospital in the report dated 27 March 1997. In my opinion, Dr. O’Donnell, the registrar in Mental Health is probably correct that the plaintiff was suffering a depressive reaction following the motor vehicle collision as a consequence of the knowledge that the plaintiff was unlikely to ever work again for a living and his capacity to engage in normal family activities had been curtailed indefinitely.

As I accept the evidence of the plaintiff, I therefore accept the evidence of Dr. Todman.  Although Dr. McPhee disagreed with Dr. Todman’s opinion that in addition the plaintiff was likely to have sustained damage to the cervical and lumbar facet joints to explain his ongoing symptoms, Dr. McPhee agreed with Dr. Todman’s opinion that there had been a substantial increase in intensity in the lumbar spine pain, and there had also been the development of cervical pain and headaches.  As I have said above, unfortunately the mechanism of injury supported by Dr. Todman was not put to Dr. McPhee.  Nevertheless, if Dr. McPhee thought that there was no justification for the plaintiff complaining of a substantial increase in intensity in the lumbar spine pain and his claim to have developed cervical pain and headaches, I consider he could have said so when given the opportunity to agree or disagree with Dr. Todman’s opinions that were put to him.  In the context of the cross-examination it was clear in my opinion that Dr. McPhee was being invited to comment on Dr. Todman’s opinions.  Dr. McPhee does at least accept that the plaintiff had subjective complaints of increased pain following the motor vehicle collision and as to which Dr. McPhee is prepared to assess this subjective disability at 5% of the individual as a whole. Dr. McPhee seemed to take a position that because the Quebec Study found that people who had not worked after two years following a lower back injury are unlikely to work again this therefore applied to the plaintiff.  In doing so, in my opinion, Dr. McPhee did not  acknowledge individual circumstances.  He did not seem prepared to accept that some individuals might be different as I considered Dr. Todman was prepared to do so when he referred to the study he was aware of that indicated a percentage of persons injured in rear end collisions continued to have ongoing symptoms, and that there may be explanations for ongoing symptoms which the usual diagnostic tools are unable to reveal so that they can be “seen”.  In my opinion the evidence of Dr. Lee suffered for the same reason, namely the notion that if something cannot be “seen” then there is a doubt symptoms should continue beyond a reasonably short period of time. Another reason I accept the evidence of Dr. Todman is that in part it was supported by Dr. Lee when Dr. Lee acknowledged that some structures in the spine including facet joints can be injured when the spine is the subject of traumatic injury.  While Dr. Lee did not accept that was the case with respect to the plaintiff, nevertheless he recognized in my opinion the possibility which is consistent with the view of Dr. Todman.  Of course, Dr. Todman did not proceed on the basis that it was a possibility.  Rather, he proceeded on the basis it was a likelihood.  As I have said, I accept the evidence of Dr. Todman and therefore accept his opinions regarding the plaintiff.

However, there is a further element with respect to the plaintiff revealed by the psychological evidence before me.  That is, Ms. Kennedy was of the view that the plaintiff was not a malingerer.  That was the view of Dr. Collins and Dr. Todman.  Dr. Walsh would have been of the view that the plaintiff was suffering a chronic pain disorder if he could be satisfied that the plaintiff was not malingering.  As I have said, I take Dr. Walsh’s view to be that if he were satisfied the plaintiff was not malingering then he would accept the plaintiff was suffering from a chronic pain disorder.  It was, of course, Ms. Kennedy’s opinion that the plaintiff was suffering from a chronic pain disorder, however, she was also of the opinion that before the motor vehicle collision he was also suffering from a mental condition and therefore his employability following the motor vehicle collision was not affected in psychological terms.  I do not accept that the plaintiff was suffering a mental disorder prior to the motor vehicle collision.  Because I accept that the plaintiff was improving and had improved immediately before the motor vehicle collision, one of the premises upon which Ms. Kennedy based her view that the plaintiff was suffering from a mental disorder prior to the motor vehicle collision is not in my opinion valid.  Another premise upon which Ms. Kennedy based her opinion that the plaintiff was suffering from a mental disorder prior to the motor vehicle collision is also in my opinion not valid for the reason that the mere fact he had been rejected for a disability support pension just prior to the motor vehicle collision does not conflict with the plaintiff’s reports to Ms. Kennedy that he was thinking about work options just prior to the motor vehicle collision.  Further, Dr. Collins gave no support for a case that the plaintiff had psychological or psychiatric problems before the motor vehicle collision, although she rightly thought, in my opinion, he probably was psychologically affected by his chronic pain.  In my opinion it is understandable that the plaintiff might be psychologically affected by his chronic pain following the work accident, but that does not mean he had a disorder of the kind referred to by Ms. Kennedy before the motor vehicle collision.  I certainly accept after having put up with what the plaintiff had put up with following the work accident, including the loss of a valuable asset for himself and his family, then being involved in the motor vehicle collision with the additional pain that he certainly would be psychologically affected thereafter, and to an extent that he could develop a chronic pain disorder.

Therefore, I am satisfied it is more likely than not that as a consequence of the motor vehicle collision:

1. the plaintiff suffered muscle and ligament strain to the spine at both the cervical and lumbar levels leading to a substantial increase in intensity in his lumbar spine pain and the development of cervical pain and headaches;

2. in addition, that the plaintiff sustained damage to cervical and lumbar facet joints to explain his ongoing symptoms;

3. his current symptoms are substantial and affect him in all aspects of his life;

4. he has chronic symptoms and the ongoing disability is likely to represent a permanent state of affairs;

5. he has a 10% impairment of the whole person related to the lumbar spine disorder (after allowing for the 5% pre-existing disorder);

6. he also has a 10% permanent impairment of the whole person related to his cervical spine injury;

7. he has suffered from and will continue to suffer from a chronic pain disorder and that he would benefit from psychological treatment at a cost of approximately $1,500 although his condition is likely to improve over time once this litigation has been settled;

8. he has suffered from elements of a major depressive illness or a depressive reaction but as stated by Dr. O’Donnell, with his intelligence and sound personality he has a chance that he will adjust to the extent possible to his impaired functioning and lifestyle.

Although I accept immediately before the motor vehicle collision the plaintiff would not have been completely free of symptoms in the future due to his lower back disability, and had a 5%  impairment of his lower back, nevertheless I find the motor vehicle collision has had a substantial impact upon the plaintiff.  For pain and suffering and loss of amenities of life I allow the plaintiff the sum of $35,000.

I also allow the plaintiff interest on $15,000 of past pain and suffering and loss of amenities of life at the rate of 2% per annum for 2.82 years which is the sum of $846.

There was a claim by the plaintiff for $4,127.92 for special damages.  These were itemized in Exhibit 14.  There was a claim for vitamins and minerals in the sums of $139, $405.75 and $98.45.  There was no evidence called to support the purchase of those items being required to treat the plaintiff with respect to his injuries suffered as a consequence of the motor vehicle collision.  I therefore do not allow those items.  A further item claimed was for a recliner chair with headrest for $199.95.  Again, for the same reason as the vitamins and minerals I do not allow that item.  However, the balance of the items appear to me to be reasonable and to flow from the consequences I have found the plaintiff has suffered as a result of the motor vehicle collision. I therefore assess the plaintiff’s special damages in the sum of $3,284.77.

I also allow the plaintiff interest at 5% per annum for 2.82 years on the plaintiff’s special damages (which excludes the sum of $380 for Blue Nurses fees to be paid on settlement and $1,198.45 being a Health Insurance Commission refund) which results in a figure of $240.59

With respect to the plaintiff’s claim for economic loss both past and future, I find that it is more likely than not that immediately before the motor vehicle collision the plaintiff had some earning capacity.  This was assessed by Dr. McKeon at 8 hours per week for light duties, and that over a period of two years the plaintiff would be capable of 30 hours work in light duties.  I accept Dr. McKeon’s assessment of the plaintiff’s earning capacity because as a medical practitioner he assessed the plaintiff one month before the motor vehicle collision and had the plaintiff’s earning capacity very much to the fore in his evaluation.  That is, that was part of Dr. McKeon’s examination.  Dr. McPhee had not seen the plaintiff since January 1996.   Although I accept Dr. McKeon’s assessment of the plaintiff’s earning capacity, in my opinion it is necessary to take account of many factors that I find makes it more likely than not that the plaintiff was unlikely to have earned income at the level Dr McKeon’s assessment on its face might indicate may have been earned by the plaintiff.  One factor is the plaintiff’s  own statement to Dr. McKeon about what he was then capable of doing and what the plaintiff said in cross-examination about himself.  The plaintiff said immediately before the motor vehicle collision although the plaintiff may have had a goal to get back into work of some kind whether as an employee or self-employed, at best he was only thinking about doing so.  He accepted that if he had been offered work at that point in time he would have had difficulty doing it.  However, he was in a position to think about the future and look down the track.  Another factor is that I find the plaintiff would have required retraining to suit him for clerical work.  I do not accept that his previous experience in his business, even though it was a successful business, gave him the experience to do the work of a clerk, particularly the work of a clerk as described in the award in Exhibit 17. Another factor is if the plaintiff  had turned towards supervising in a cabinetmaking business, even though I accept he would have been attractive to an employer, there would have been limited opportunities and competition from other able bodied people who could also make themselves available for some of the heavier duties that might occur from time to time in such a business.  Even if the plaintiff had retrained as a clerk or looked for work in a supervisory role in a cabinet making business he would have had to compete with others for work and having been out of work for a long time and having a remaining spinal disability even in light work areas he would have been less attractive to a prospective employer.  Although I accept gradually the plaintiff was more likely than not to have built up his capacity to earn income to 30 hours per week over a similar time frame to Dr. McKeon’s time frame, I find it is more likely than not initially in the first year the plaintiff would not have earned income and over that time he gradually would have built up to Dr. McKeon’s assessment to 30 hours per week over a slightly longer time frame because of the factors I have mentioned above.  I find it is more likely than not that the consequences of the motor vehicle collision have destroyed any earning capacity the plaintiff had immediately before the motor vehicle collision or was likely to have in time after the motor vehicle collision.  Therefore, for past economic loss there has been 2.82 years since the motor vehicle collision.  On my finding in the first year there would not have been any earnings.  Over the balance of 1.82 years gradually the plaintiff would have earned income from nil to 30 hours per week over that period.  At $13 per hour representing earnings as a clerk over 1.82 years, that is $18,454.80.  This figure then, in my opinion, ought to be discounted by 50% for the factors I have mentioned above.  I therefore allow the plaintiff $9,227.40 for past economic loss. 

As I consider the plaintiff received more than that figure by way of social security benefits since the motor vehicle collision I do not allow interest on past economic loss.

With respect to the care that the plaintiff’s wife, family and friends provided to him as a consequence of his injuries, the evidence I accept is that for a period of about 5 months following the motor vehicle collision, except for a period of about 10 days in December when he went to the pain clinic, he required 4.5 hours per day care and assistance and thereafter has required 1 hour per day care and assistance. Much of what the plaintiff’s wife has done in my opinion I find has been part of the normal incidents of family life and what the plaintiff’s wife was likely to have done even if the motor vehicle collision had not occurred.

Therefore for past Griffith v. Kerkemeyer damages I allow the plaintiff 5 months less 10 days while the plaintiff was at the pain clinic, being 140 days at $45.00 per day (4.5 hours required) which is the sum of $6,300.  After that period for two years and three and one half months to the date of this judgment, which is a period of 120 weeks at $70 per week is a sum of $8,400.  The sum of those two figures is $14,700.  I allow the plaintiff $14,700 for past Griffiths v. Kerkemeyer damages.

I also allow the plaintiff interest on the past Griffiths v. Kerkemeyer damages at 2% per annum for 2.82 years which is a figure of $829.08.

With respect to future Griffiths v. Kerkemeyer damages I allow the plaintiff 1 hour per day which is $70 per week for a period of 2 years which is the period over which I consider the plaintiff will improve with respect to his chronic pain disorder, or at least have the means to improve and that he will improve with the cessation of the litigation, and that although he will have pain and physical disability there are no needs he will not be able to fulfil himself after that period of time.  Therefore, for future Griffiths v. Kerkemeyer damages on the 5% interest tables I allow the sum of $6,930.

With respect to future economic loss, at this point in time, some 2.82 years since the motor vehicle collision, I find the plaintiff more likely than not would have reached the stage of having the capacity to earn income from 30 hours per week work.  As I have said, I find it is more likely than not the consequences of the motor vehicle collision have destroyed his earning capacity.  However, there must be discounting for the factors I have mentioned above in the context of past economic loss, and for the usual contingencies.  Thirty hours work would produce $390 gross income per week.  After tax, that is approximately $290 per week.  Over a 28 year span of working life, a loss of $290 per week on the 5% interest tables produces a lump sum of $227,940.  In my opinion, that should be discounted by 50% to take account of the factors I have mentioned above in the context of past economic loss  and the usual contingencies of life that would operate over a 28 year period. The factors I have mentioned above in the context of past economic loss in my opinion would have had less impact in the area of future earning capacity of the plaintiff, although still relevant to the plaintiff’s circumstances.  This is because 2.82 years after the motor vehicle collision as I have found the plaintiff would then have been capable of 30 hours work and may have retrained or found some work to provide him with some experience to make himself more valuable to prospective employers.  I therefore allow the plaintiff $113,970 for future economic loss. 

I also find that it is more likely than not that the plaintiff will have future expenses.  These include pharmaceutical expenses at $9.20 per month, which on the 5% interest table yields a lump sum of $2,055.28 and counselling as per Dr. Walsh of $1,500.  These total therefore $3,555.28.  Although a claim was made on a global basis for future massage, physiotherapy and doctors’ appointments, I am not persuaded the evidence supports those claims. It may well be the plaintiff will suffer pain from his disabilities in the future.  However, in the next two years the plaintiff will have the means with the $1,500 I have allowed for counselling to assist him and the one hour per day Griffiths v. Kerkemeyer damages for the future to provide for ongoing needs over that period.  There was no evidence as to the need for future physiotherapy.  Although one can imagine the plaintiff may need to see his doctor for his pain, I do not accept that will be a regular need and on the evidence I consider I am guessing as to his need in this respect. 

Therefore summarizing the plaintiff’s damages that I have assessed:

1. Pain and suffering and loss of amenities of life               $35,000.00

2. Interest on past pain and suffering and loss of amenities of life  $846.00

3. Special damages  $3,284.77

4. Interest on special damages  $240.59

5. Past economic loss  $9,227.40

6. Past Griffiths v. Kerkemeyer damages  $14,700.00

7. Interest on past Griffiths v. Kerkemeyer damages  $829.08

8. Future Griffiths v. Kerkemeyer damages  $6,930

9. Future economic loss  $113,970

10. Future expenses  $3,555.28

Total:  $188,583.12

I therefore give judgment for the plaintiff against the second defendant for the sum of $188,583.12.  I will hear the parties on the question of costs.