Welker v Gladstone City Council
[2005] QSC 57
•22 March 2005
| SUPREME COURT OF QUEENSLAND | |
CITATION: | Welker v Gladstone City Council [2005] QSC 057 |
PARTIES: | NAKIA RAY WELKER |
| (Plaintiff) | |
| v | |
| GLADSTONE CITY COUNCIL | |
| (Defendant) | |
FILE NO: | S365/2004 |
DIVISION: | Trial Division |
DELIVERED ON: | 22 March 2005 |
DELIVERED AT: | Rockhampton |
HEARING DATES: | 23-25 November 2004 |
JUDGE: | Dutney J |
ORDERS: | 1) Judgment for the plaintiff against the defendant in the sum of $121,134.34. |
CATCHWORDS: | DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURY – where plaintiff injured back at work – where plaintiff suffers alcohol and substance abuse syndrome – whether related to back injury |
COUNSEL: | Mr G. Crow for the Plaintiff Mr R. Morton for the Defendant |
SOLICITORS: | P. J. Little and Associates for the Plaintiff HBM Lawyers for the Defendant |
The plaintiff, Mr Welker injured himself at his work at the Gladstone City pool on 27 February, 2002. He was employed by the Gladstone City Council as a senior pool attendant at the public swimming pool. He suffered a back injury manoeuvring a number of timing touchpads on a fixed wheel trolley. Liability was not in issue.
Mr Welker was born on 8th of November 1976.
Two issues dominated the trial. The first was the severity of Mr Welker’s back injury and its consequences. The second was whether severe psychiatric problems diagnosed variously as a substance abuse disorder, an adjustment disorder, a depressive illness or some combination of those can be causally related to the incident at the pool.
I found Mr Welker to be an unsatisfactory witness. When giving evidence in chief on the first morning of the trial his presentation was flat, monotonal, monosyllabic and unforthcoming. He presented as slow thinking and with a faulty memory. Late on the first day of the trial his demeanour changed for no apparent reason and he became much more animated and normal in his presentation. On the second day of his evidence, he initially presented in a similar manner to the earlier part of the day before. From mid morning he adopted an entirely different pose. He swung the witness chair around so that he was facing away from the questioner and adopted a vacant and fixed stare. When he was asked to speak in the direction of the microphone, so that his responses could be recorded, he faced generally towards the microphone but still would not look at or make eye contact with defence counsel. I found the performance histrionic and unconvincing. Accepting the plaintiff’s diagnosed psychiatric problems this performance was quite unlike any other witness I have observed with a similar diagnosis. The content of much of the plaintiff’s evidence was equally unconvincing. For reasons I shall develop later it contained much that was exaggerated or incredible. Where Mr Welker’s evidence was contested I generally prefer the evidence of other witnesses.
Mr Welker left school during grade 11. He told me that this was as a result of discussions with the deputy principal with whom he says he had developed a good relationship. Mr Welker said that he was getting “A” level grades for English and Biology without attending classes and he and the principal agreed there was no need for him to continue at school. Mr Welker held a number of jobs including one at Tradelink plumbing supplies where he quickly progressed to become store manager at Gladstone. Mr Welker left because his further promotion was blocked by lack of available positions and commenced work at the Gladstone pool in December 2001.
Mr Welker injured his back wheeling a trolley loaded with timing pads after a carnival at the Gladstone pool on 27 January 2002. Following the injury, Mr Welker described a burning sensation in his lower back. He had difficulty resuming an upright position. Mr Welker said that he reported the incident to his employer, Mr Ringuet, who offered him the option of going home. Mr Welker chose to go home.
After arriving home, Mr Welker said that his partner, Ms Walton, rubbed liniment into the sore area of his back, which was, by then, aching badly.
Mr Welker returned to work the next day. The pain in his lower back had extended into his left buttock. Mr Welker said that Mr Ringuet allowed him to restrict his activities to lighter tasks. The heavier tasks were covered by the other senior employee. Mr Welker said that he actually spent most of the day in the crib room and was “chewing Nurofen Plus like Tic Tacs.” He claimed to be taking Aspalgen as well.
As time went on Mr Welker said that he began suffering from sciatica in both legs. Mrs Ringuet gave him some of Mr Ringuet’s medication on a number of occasions until Mr Ringuet complained that he was paying for Mr Welker’s tablets. Apart from that, Mr Welker continued taking Nurofen Plus and Aspalgen and also drinking beer.
The duties that aggravated the pain included using the ride on mower at the pool and the gardening. Eventually, Mr Welker said that he would begin the morning by bringing in the filters. He would open the pool to the public. He would test the pool temperature and the chlorine level. He would then retire to the crib room for the rest of the day. On an average working day he spent 6 hours in the crib room, lying on a mattress because standing was painful.
Matters came to a head when Mr Welker tried to mount a water fountain. This required chiselling out a small area of concrete at the base with a hammer and drill. Mr Welker said that he took 6 Nurofen before commencing because he knew it would cause him pain. Mr Ringuet laughed at him and said that if he had taken 6 Nurofen he would be “knocked out cold in bed.” Mr Ringuet walked off laughing. Mr Welker was insulted by this and took two weeks sick leave. During the sick leave Mr Welker decided to leave the Council’s employ.
Mr Welker advised Mr Ringuet of his intentions. He said he was leaving because he was taking up other employment selling ATM machines and signing up retailers to EFTPOS through St George Bank. This work was carried out for a company called Q-Flex Pty Ltd. The area Mr Welker serviced was the Central Highlands.
Mr Welker said that while employed by Q-Flex he drank heavily. He would drink beer at breakfast, at morning tea and at lunch. He would also stop at hotels while he was travelling and drink more. After a wile he changed from drinking beer to drinking vodka to avoid customers smelling his breath. Mr Welker was also taking large quantities of Nurofen for sciatica. Mr Welker described the quantities he was consuming as “a tray at a time”.
From about August 2002 Mr Welker ceased work at Q-Flex and commenced work with Queensland Rail. Mr Welker did not tell Queensland Rail about any back condition. Mr Welker’s duties consisted of porter’s duties and also driving train drivers to relief points where crews were changed. The driving, which involved taking crews from Gladstone to places like Duaringa and Bluff, aggravated Mr Welkers back. He coped with the increased pain by taking large quantities of Nurofen. After a day’s driving, Mr Welker said that he would return home, lie down and start drinking to relieve the pain.
Mr Welker first visited Dr Rigby, his general practitioner, on 27 August 2003. Mr Welker said he was having suicidal thoughts and was depressed. He said that he told the doctor that he could not sleep, that his back was painful and it was affecting his social and domestic life. He gave an account of domestic violence towards his partner. Dr Rigby prescribed anti depressant medication which Mr Welker said did not relieve his condition. On 3 September 2003, Mr Welker wrote a suicide note which he left for Ms Walton. He then drove to Mt Larcom and walked to the top where he intended to consume a large quantity of medication, wash it down with alcohol and sit and wait for the sunrise. Mr Welker took his mobile phone with him. After several hours he turned the phone on and took a call from his mother. He told his mother where he was and was rescued.
Following the incident in September 2003, Mr Welker was off work for two weeks. When he returned he was allocated lighter duties. He said that he continued to consume excessive quantities of vodka. In January 2004 Mr Welker gave evidence of another incident when he went into the porters’ room by himself and again tried to overdose by taking pills and alcohol. When he woke up some hours later everyone thought he had gone home.
Mr Welker spent three days in the mental health ward of the Rockhampton Base Hospital between 3 March and 5 March 2004. Mr Welker was put onto a form of prescription under which the pharmacy dispensed the medication in restricted quantities so that he could not attempt any further overdose.
After consuming a large number of pills he had managed to obtain, on 29 March 2004 Mr Welker was admitted to the Gladstone Hospital overnight. In April 2004, Mr Welker underwent a spinal block to relieve the pain.
Mr Welker has not worked since May 2004.
The psychiatric evidence is that Mr Welker has a narcissistic personality. Dr Mulholland considered that underage drinking and marijuana offences indicated a predisposition to substance abuse. The evidence supplied to Dr Mulholland indicated that Mr Welker had decompensated into mixed substance abuse/dependence. Dr Lovell diagnosed a significant adjustment disorder with anxiety and depressed mood in his report dated 4 December 2003. Dr Lawrence concluded in her report of 2 February 2004 that Mr Welker “displayed personality traits of narcissism and some exploitative and manipulative traits including an ability to exaggerate and dramatise for specific purposes.” She added that with his mild dysfunctional behaviour in late adolescence and subsequent behaviour it might be possible to conclude that he suffered a personality disorder but would not be prepared to do so until he was free of substance abuse.
Dr Lawrence was of the view that Mr Welker was using complaints of pain as a justification for alcohol abuse and dependence on Nurofen, opiates and other analgesics. She diagnosed his primary difficulty as a Substance Abuse Disorder.
The orthopaedic evidence from Dr Boys is that Mr Welker suffered internal derangement within the degenerative lumbar and intervertebral disc or discs within the lower lumbar spine. Dr Boys assessed an 8% disability and attributed 3% to natural degeneration and 5% to the incident at the pool. Dr Boys did not consider that Mr Welker was orthopaedically unfit for driving or other semi-sedentary work. In his report dated 1 November 2004, Dr White generally agreed with Dr Boys except to the extent that he would not have attributed any percentage disability to the pre-existing condition. Both doctors accepted that the back injury would have caused pain and discomfort which, despite pre-existing changes, may not otherwise ever have been suffered.
It was not disputed that Mr Welker suffered an injury. It was not disputed that he is presently unfit for work by reason of his psychiatric condition. What was in dispute was whether the back injury has caused the present psychiatric decompensation.
There is other evidence that bears on this issue. The history of Mr Welker’s visits to his General Practitioner does not appear to be consistent with the history Mr Welker gave in evidence. Dr Rigby’s records reveal the following.
On 11 March 2002 Mr Welker attended at Dr Rigby’s surgery complaining of low back pain followed about a week later by posterior sided leg pain which eventually extended to both legs and the soles of his feet. Mr Welker attributed this to the incident at the pool.
On 18 March 2002 Mr Welker was reviewed. On that occasion he complained of less sciatica and showed improved range of movement and less spasm.
On 2 April 2002 Mr Welker attended complaining of mild sciatica, greater on the left side, with left buttock pain. His extension was poor and he couldn’t lift without pain but his range of movement continued to improve.
On 15 April 2002 Mr Welker attended on Dr Rigby complaining episodic aggravation of his pain but no sciatica. On 16 July Dr Rigby noted that Mr Welker’s symptoms continued but with only occasional “flare ups”.
In his report of 26 September 2002, Dr Rigby summarised Mr Welker’s pathology as inflammation of L5, S1 with some associated sciatica with fluctuating recovery over several months.
A second report from Dr Rigby dated 9 October 2002 records that Mr Welker attended on his surgery on 27 August 2002 suffering chronic back pain. At that time Mr Welker was asserting enormous consumption of analgesics and alcohol. He was teary, depressed and withdrawn. He was very negative concerning his future. Dr Rigby considered that Mr Welker displayed features of neurotic attention seeking. Dr Rigby related the symptoms, including the depression, to chronic pain from the injury at work.
There are inconsistencies in the plaintiff’s case. Despite his claimed consumption of enormous quantities of analgesics the records produced at trial do not support a consumption even approaching that claimed.
Mr Welker’s partner, Ms Walton was unaware of his drinking problem until he had finished work with Q-Flex in August 2002. This was despite the claim of alcoholism.
Despite the allegation of chronic pain made worse by driving, Mr Welker left a driving job with Q-Flex in August 2002 to take up a driving job with Queensland Rail.
Mrs Ringuet, the wife of the pool manager, gave evidence which I accept. She was at the pool every day for long periods, generally working in the kiosk. She said that the first report of any injury to Mr Welker was not made to her until March 2002. She also said that Mr Welker could not have spent long periods of the day lying down. As might be expected, the pool area was relatively small and there were few employees. The absence of an employee for any significant period would have been noticed. That would be particularly so if the absences were regular. Mrs Ringuet also denied absolutely the incident Mr Welker described while he was doing concrete work at the water fountain.
Mrs Ringuet denied Mr Welker’s evidence that she had provided him with tablets.
Mr Murray, a friend of Mr Welker, gave evidence that he observed Mr Welker to have been drinking in the morning from about September or October 2002. Mr Murray assumed this was about the time of the pool incident because Mr Welker attributed the drinking to the pain of that injury. Mr Murray believed the injury was suffered in about August 2002. Mr Murray could fix the approximate month he was told about the accident because it was in the winter. Mr Murray assumed the accident happened about the time he was told of it. A Ms Jones also gave evidence. She was a close friend of Mr Welker. She was not aware that Mr Welker had any drinking problem although she supported his claim of ongoing back pain.
What I am left with is this. I was unimpressed by Mr Welker’s presentation as a witness. On the findings I have made his evidence concerning the need to lie down for extended periods of the working day while still at the pool is inconsistent with the evidence of Mrs Ringuet which I accept. It is also inconsistent with Dr Rigby’s record of steady improvement through to July 2000. The evidence of Mr Welker that he took large quantities of analgesics from the time of the injury is not supported by the evidence. His evidence of early heavy use of alcohol is not supported by his partner. Despite his claimed chronic and severe back pain, Mr Welker went from one driving job to another.
Despite these inconsistencies, all three psychiatrists support Mr Welker’s claim of substance abuse when they saw him. Two of the psychiatrists attribute the substance abuse to the work incident. That must be on the basis of what Mr Welker told them. I am not prepared to find that he was any more reliable with the psychiatrists than he was in evidence. I accept Dr Lawrence’s opinion that he “displayed personality traits of narcissism and some exploitative and manipulative traits including an ability to exaggerate and dramatise for specific purposes.” I also accept Dr Lawrence’s opinion that “Nakia Welker developed Alcohol Abuse (chronic alcoholism) probably from the time he commenced work with Q-Flex and escalated subsequently.” I accept her opinion that “since August/September 2003, he has used pain complaints and his alleged injury as a justification for his alcohol abuse/dependence, and subsequently, to maintain a high consumption of analgesic drugs prescribed.” The opinion of Dr Lawrence is more consistent with the evidence of the treating general practitioner and the observations of other witnesses than is the conclusion of the other psychiatrists that the psychiatric disorders are related to the back injury.
In summary I do not accept that Mr Welker’s psychiatric condition which presently renders him unemployable is related to the incident at the Gladstone pool.
The injury at the Gladstone pool has left Mr Welker with some symptoms in a previously symptom free back. But for the unrelated psychiatric overlay he would be employable but only in lighter types of work.
Due to the psychiatric overlay the plaintiff’s past economic loss is not attributable to the incident for which he sues. Mr Welker left his employment with the council because he thought he was getting a better job. He ultimately left Queensland Rail because by that time he was psychiatrically unfit for employment by reason of his alcohol and substance abuse. In the future I am satisfied that his psychiatric condition is likely to be controlled. He will therefore be employable but at a disadvantage because of his limitations. It is impossible to quantify that limitation by reference to a weekly amount because it is affected by too many variables. Mr Welker’s previous employment with Tradelink suggests he has an aptitude for lighter or clerical work. In the end, and having regard to Mr Welker’s comparative youth, I am of the view that a figure of $80,000 is an appropriate allowance. That figure represents a loss of around $105.00 per week discounted by 15% for contingencies. I am not persuaded that the plaintiff has established a case for past or future care under the WorkCover legislation. Some past and future pharmaceutical expenses and some medical expenses are attributable to the back injury. I propose to allow the costs for a year until 27 January 2003. Some of those costs are likely to be associated with the onset of the psychiatric condition but this arbitrary cut off date may also exclude a few items so that the end result will be close to what is related to the back injury. I also propose to allow the cost of the pain clinic and nerve block treatment in 2004. For the future I propose to allow a modest global sum for analgesics.
In the result I assess damages as follows:
Pain & Suffering 25,000.00
Interest on $15,000 @ 2% for 3 years 900.00
Past Economic Loss 0.00
Future Economic Loss 80,000.00
Future Loss of superannuation @ 8% 8,000.00
Special damages as per exhibit 24 limited to 27.02.03 1,340.93
Interest @ 5% for 3 years 201.14
Pain clinic and nerve block treatment 3,516.45
Interest on above @ 10% for 0.5 years 175.82
Special Damages paid by LGW 2,315.50
Future pharmaceuticals 2,000.00
Sub-total123,449.84
Less refund to Local Government WorkCover 2,315.50
TOTAL121,134.34
I give judgment for the plaintiff against the defendant in the sum of ONE HUNDRED AND TWENTY ONE THOUSAND ONE HUNDRED AND THIRTY FOUR DOLLARS AND THIRTY FOUR CENTS ($121,134.34). I will hear argument about costs.
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