Vadalma v Orford P/L - [1999] QSC 227

IN THE SUPREME COURT
OF QUEENSLAND

No 76 of 1998

Toowoomba District Registry
[Vadalma v Orford P/L]
BETWEEN:

RUDI VADALMA
  Plaintiff
AND:
ORFORD PTY LTD
  (ACN 009 790 265)
  Defendant
REASONS FOR JUDGMENT - FRYBERG J

Judgment delivered 22 September 1999

CATCHWORDS: DAMAGES - Measure and remoteness of damages in actions for tort - Remoteness and causation - Pre-accident condition of plaintiff - Possibility of future occurrence producing disability caused by accident

Counsel:Mr R Trotter for the plaintiff
Mr R Myers for the defendant

Solicitors:Shine Roche McGowan for the plaintiff
Cleary & Lee for the defendant

Hearing Date: 10-11 December 1998

FRYBERG J: In this action, Rudi Vadalma claims damages from his employer, Orford Pty Ltd, for personal injury. Orford has admitted liability. I must decide the amount of Mr Vadalma’s damages.
Mr Vadalma was injured on 14 February 1995 while working at his employer’s premises. Orford used copper tubing in its business operations. The tubing was transported and stored on large spools. A full spool weighed in excess of 100 kilograms and had a diameter exceeding one metre. Its sides were made of heavy-duty cardboard. To move a spool between two points within Orford’s premises required the spool to be placed on its edge and rolled like a wheel. On the day he was injured, the plaintiff was lifting a spool from its side to its edge. This did not require him to lift it fully off the ground - merely to rotate it in a vertical plane perpendicular to the side of the spool about a point on the external edge of the circumference of the spool. As he was doing this, the cardboard constituting the edge of the spool collapsed and Mr Vadalma suffered an injury to his back.
Despite being in some pain from his back, he continued to attend work until 20 February 1995. After a week’s sick leave, he attempted to return to work performing light duties, but was unable to do so. He ceased work and was placed on workers’ compensation. He did not return to work until 26 June 1995, although during that period he participated in a return-to-work scheme which did involve some working activity. After two weeks in a light work environment, he was again off work for a month. He then returned to normal duties, where he continued until he was retrenched in November that year. In January 1996, he commenced working for his brother as an apprentice electrician, where he remained at the time of trial.
The plaintiff claimed that as a result of the injury to his back, he suffered severe limitations on his capacity to carry out a wide range of physical activities. He described himself as being in fairly constant pain, especially if he was doing one thing for more than about an hour. Walking, standing or lying in one place could all trigger pain and he was unable to lift objects of any weight without immediate pain. He could not do a wide range of ordinary household activities, including maintenance of the garden, nor play any active sport. He could not wash his feet, put on his socks or do up shoes by himself. He could not go dancing, he had a fear of pain which caused difficulty in having sex, he slept restlessly and he was often quick-tempered and tired. None of these conditions existed before 14 February 1995.
The action was transferred to this court from the District Court after pleadings had closed. Perhaps because the pleadings completely failed to reveal the issues, the solicitors for the plaintiff did not bother complying with the rules requiring copies to be filed for the use of the trial judge. At the beginning of the trial, however, Mr Myers (for the defendant) informed me that there were in fact only two issues: whether the plaintiff’s disability would have occurred in any event and whether his condition was as bad as he claims.
It was common ground that prior to the incident, the plaintiff suffered from grade one spondylolysthesis of the L5 vertebra on S1, and also from Scheuermann’s Disease in the thoracic spine. It was also common ground that the Scheuermann’s Disease was unrelated to the incident and was not aggravated by it. These conditions were revealed in x‑rays taken shortly after the incident on 14 February 1995, and confirmed by magnetic resonance imaging carried out shortly before the trial in late 1998. The MRI also revealed bulging discs at L3‑4 and L4‑5. Whether these bulges pre-dated the incident was in dispute. The total extent of the plaintiff’s back disability was also in dispute.
The evidence for the plaintiff on these issues was principally given by Dr White. He was of the opinion that Mr Vadalma had a permanent impairment of his spine of the order of 20 per cent. He attributed three-quarters of this to what he described as “the work-related injuries”. Although he expressed his estimate as an impairment of the spine, he meant the percentage to refer to whole of body function, not simply back function. In making his assessment, he relied on his own judgment and did not apply what Dr McPhee (called by the defendant) described as the “American Medical Association Guidelines for the Assessment of Impairment”. His methodology involved attributing some, albeit small, percentage disability to the back in its pre-incident condition, to make allowance for the potential disability. Dr White thought the bulging discs at L3‑4 and L4‑5 probably resulted from the incident in February 1995, and that the same incident also aggravated the spondylolysthesis at L5‑S1.
Dr McPhee’s evidence was not assisted by his somewhat combative attitude. The defence opened that his evidence would be (in substance) that the effects of the accident were spent after three months: “If he hadn’t had the accident, within three months he was going to be exactly as he was in 1995 and the way that we see him today is exactly as he was going to be.” In fact, Dr McPhee did not support that proposition in his evidence. Rather, he testified only that it was likely that Mr Vadalma would eventually have found himself in the same position (apart from the accident) due to his spondylolysthesis. However he would probably have had a working life of 20 years before the onset of symptoms. As to the bulging at L3‑4 and L4‑5, it was in Dr McPhee’s opinion, “of no clinical significance”. It was related to disc degeneration which he thought (somewhat inconsistently) might be contributing to the back symptoms. In his view, the degeneration pre-dated the incident in February 1995, although that incident aggravated it. The incident also aggravated the spondylolysthesis at L5‑S1. That had resulted in a disability of 5 per cent “whole person impairment” assessed in accordance with the American Medical Association Guidelines. No larger assessment could be made because the next figure permitted by the Guidelines was 10 per cent and the Guidelines required the existence of radiculopathy (which was not present in Mr Vadalma) before such an assessment could be made. The Guidelines did not permit any intermediate assessment. Under the Guidelines, the assessment prior to the incident was nil because there was no disability in the absence of symptoms.
I am satisfied that Mr Vadalma’s pre-existing condition rendered him vulnerable to an injury of the type which occurred to him and that there was at the time of the accident a significant chance that at some time in the future he would in any event sustain a similar injury. I do not think that it is possible to state when this would have happened, nor to carry out any mathematical calculation which could accurately quantify the probability of this occurring or fix a likely date for its occurrence. In my view, the pre-existing condition must be taken into account as a discounting factor in assessing damages, particularly damages for pain and suffering and loss of earning capacity. I reject the defendant’s contention that by the time of the trial the plaintiff’s condition was no different as a result of the incident on 14 February 1995 from what it would have been without that incident. Dr White described that proposition as “guesswork”; I have already referred to Dr McPhee’s evidence. The more difficult questions are to what extent is Mr Vadalma currently incapacitated and to what extent is that incapacity attributable to the accident.
Dr White assessed the incapacity at 20 per cent and attributed three-quarters of that (15 per cent) to the incident in February 1995. I think the latter figure is probably too high, for two reasons. First, Dr White initially agreed with Dr McPhee’s estimate of disability consequent upon the spondylolysthesis (5 per cent), but later tried to increase this estimate by 2½ per cent to get his figures to add up to his total. This was unconvincing. Second, I do not think that one can attribute 15 per cent disability to the incident when the methodology being adopted provides for a pre-accident positive assessment due to the potentiality for injury. Theoretically it would be necessary to take three-quarters of the difference between the pre and post-accident figures. On the other hand, I think Dr McPhee’s figure of 5 per cent disability consequential upon the incident is probably too low. Dr McPhee would not allow any higher figure because of his insistence that the methodology he was using required the presence of radiculopathy. I formed the impression that he was blindly applying this criterion. Certainly, he made no attempt to justify it to me. Dr McPhee conceded that the bulging (spondylosis) aggravated the disability, but would not allow any percentage disability for that aggravation. It seems to me that this approach applies the AMA method blindly, and without the proper exercise of judgment. Moreover I am not satisfied of the applicability of the methodology.
I accept Dr White’s evidence that the bulges are consistent with traumatic injury. I am reinforced in this conclusion by the fact that they were not evident in x‑rays taken shortly after the accident. Had they been of long standing, it is more likely that they would have shown up on x‑ray at that time. I find the spondylosis at L3‑4 and L4‑5 is contributing to the plaintiff’s disability.
In my judgment, the incident of February 1995 has caused the plaintiff a 10 per cent “whole person” disability as a result of the injury to his back. This equates to a disability of 20 per cent of the back.
The plaintiff did not contend that this was the whole of his disability. He also attributed his condition to a pain disorder. That is defined in a respected psychiatric publication as a condition in which:
“pain in one or more anatomical sites is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention. The pain causes clinically significant distress or impairment in social, occupational or other important areas of functioning. Psychological factors are judged to have an important role in the onset, severity, exacerbation or maintenance of the pain. The symptom or deficit is not intentionally produced or feigned.”
Mr Vadalma was examined by Dr Chalk, a psychiatrist, on behalf of the defendant and by another psychiatrist, Dr McIntyre, at the behest of his own solicitors. Dr Chalk’s opinion was expressed in these terms:
“This 21 year old man injured his back at work in 1995. He has been experiencing pain since that time which is clearly chronic and he is concerned about the impact this will have both upon his employability and his ability to interact with children. He is resentful towards his former employer, believing that he was retrenched because of his physical problems.
Diagnostically he has a pain disorder as defined in DSM-IV. This is associated with both general medical and psychological condition as outline. I do not think there is any significant evidence of fictitious disorder or malingering. There is no evidence of another Axis I psychiatric disorder.
I think that this man may benefit from participation in a multi‑disciplinary pain clinic over a relatively short period of time. This may assist in his adaption to his altered circumstances.”
Dr McIntyre expressed the same opinion, albeit less concisely. The plaintiff was aged 21 at the time of trial. He had not attended a pain clinic or undergone any systematic pain management. He was overweight. Dr McIntyre thought improvement in his symptoms was likely if the litigation were resolved to his satisfaction. He thought that psychotherapy, use of anti‑depressants with tension reduction methods and instruction in managing himself better to reduce anxiety and hence muscle spasm would be beneficial. He thought complete remission uncertain, particularly if there were no improvement in the orthopaedic condition. I accept that evidence.
For the defence, Mr Myers submitted that I should find the plaintiff to be an outright liar; and implicitly, that I should disbelieve his description of the effects of his injury. I reject that submission. In my view the plaintiff honestly attempted to describe his condition, although he was prone to exaggeration. His evidence was corroborated to some degree by that of his partner, Ms Marsh and his brother. Generally speaking, I accept it.
The prognosis for the plaintiff is not good. Dr McPhee expressed the view that one does not often find that patients such as the plaintiff make a complete recovery. Rather, he thought that once one had had an acute attack of back pain, there was a 60 to 80 per cent chance of recurrence within two years. On the other hand, I think the conclusion of the litigation, together with the adoption of pain management techniques, will enable the plaintiff to develop coping mechanisms and to deal with his life more effectively than he does at present. All the medical advice is against any resumption of active sports or anything else involving strenuous activity. In the light of his current condition, these matters require a substantial award of damages for pain and suffering and loss of amenities. The award must be discounted to some extent to reflect the possibility of improvement and the risk that sooner or later, Mr Vadalma would in any event have sustained a similar injury. In my judgment a proper award for pain and suffering is $35,000. For the purposes of awarding interest, I would assess on the basis of one-third of that amount pre‑judgment and two-thirds post-judgment.
As regards economic loss, the plaintiff proved the earnings and rates of earnings of persons in comparable occupations to establish his potential earning capacity but for the incident. There was no attack by the defence on the figures so proved, or on the plaintiff’s methodology. However the defence contended that a minimal amount should be awarded because the plaintiff was not injured badly; was likely to improve in the future; and would in any event have been likely to have sustained a similar injury apart from the incident. I have accepted that there was a risk of the plaintiff sustaining a similar injury, although I find it was a very small risk that this would happen in the short term. I have also accepted that the plaintiff’s condition is likely to improve. The defendant further submitted that there should be discounting of the pre-trial award because the plaintiff was being paid less than the full apprentice’s wage by his brother, and had a right at law to recover the difference. This was characterised as a failure to mitigate. In my judgment the plaintiff was not under a duty to mitigate his loss by suing his brother for the shortfall in his wages. He was lucky to have a job at all. He is plainly in a position where he will struggle in the labour market to find work because of his disability. I am satisfied that there was an element of charity in his brother’s actions. Had he demanded full wages, his brother would not have been able to afford them, and he would have had no job at all. It would be most unreasonable of him to sue his brother. He has not failed to mitigate his loss.
The plaintiff calculated the loss of earnings pre-trial to be $25,912.91. In view of the time which has elapsed since I reserved this judgment, that figure should be recalculated down to the date of judgment on the same basis as was used to calculate it originally. Interest is awarded on the figure so calculated at 5 per cent per annum. It is unnecessary to discount this figure because of the low probability of injury in the pre‑trial period.
As regard future economic loss, contingencies play a much more important part. Mr Trotter contended that the amount should be calculated on the basis of a 50 per cent loss of earning capacity, represented by the amount of $300 per week. I do not think the plaintiff’s loss of earning capacity is as high as 50 per cent. It is true that he has limited aptitude for re‑training, but he does have some potential in this regard. It is also true that his range of potential occupations is much reduced without such re‑training. In my judgment the best approach is to assess his damages for loss of earning capacity at 33 per cent or $200 per week. In selecting that figure, I take the chance of improvement in his condition into account. The parties were agreed that the appropriate methodology was to use a period of 44 years for the calculation and to discount the result by the larger than usual figure of 40 per cent to take account of the other contingencies to which I have already referred. I calculate that comes to $113,200. Loss of future superannuation benefits should be calculated in the light of this finding.
The plaintiff contended for an award under the doctrine in Griffiths v Kerkemeyer of $700 to represent pre‑trial services, calculated on the basis of 3½ hours per week. That seems to me a very moderate claim. It is based upon an agreed figure of $10 per hour. For the future the amount claimable at 3.5 hours per week on this basis would be $36,000, but the plaintiff, again very moderately, concedes that such an amount could be discounted to $20,000 to take account of contingencies. I am satisfied that that is a proper approach. The amount for past assistance should be re-calculated down to the date of judgment.
The plaintiff claimed a further $4,000 for future pain clinic expenses and $4,000 for future surgery. In my judgment the prospect of future surgery to the plaintiff’s back for the condition brought about by the incident is negligible and no amount should be allowed for this. However the amount claimed for the pain clinic should be allowed in full. This expenditure is likely to bring very real relief to the plaintiff. Having regard to his pain the plaintiff is likely to need to buy pharmaceutical products for a long time into the future. He claimed $5,000, a figure which seems to me on the evidence far too high. I would be prepared to allow $1,000 under this heading.
Some items of special damages have been agreed as follows:
Medical expenses $876.47
Other expenses (WCB) $83.36
The parties are agreed that $289.40 was spent on doctors and I find that this expenditure was reasonably incurred. That amount should be added to the figure for special damages. The plaintiff further estimated an expenditure of $404 on pharmaceuticals, an amount approximately equal to a $1 per week. The defendant submitted that the plaintiff’s claim here was exaggerated, but in my judgment it is not unreasonable. I allow that claim. I do not allow the plaintiff’s claim for car washes, as in my view that is subsumed in the award for loss of amenities. Interest should be calculated on those amounts for which the plaintiff was out of pocket at the appropriate rate down to the date of judgment. The agreed amount to be added under the doctrine in Fox v Wood was $261.00. The parties were also agreed that the amount of refund to the Workers’ Compensation Board was $3,489 and the amount of the judgment must be reduced by that figure.

I will ask the parties to calculate the precise figure for which judgment should be given in accordance with these reasons.