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- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
Girone v Denholm and Allianz Australia Insurance Limited  QSC 420
Robert David Girone
Samantha Kim Denholm
Allianz Australia Insurance Limited ABN 15 000 122 850
718 of 2007
Supreme Court in Townsville
10 November 2010
Supreme Court in Townsville
30 August – 1 September 2010
PERSONAL INJURIES – where the plaintiff is said to have suffered personal injuries in a motor vehicle accident – where the plaintiff’s injuries are the subject of dispute – where the plaintiff had sustained other injuries prior to his motor vehicle accident – where the defendants allege the plaintiff to have falsified his claims
Motor Accidents Insurance Act 1994
P Lafferty for the plaintiff
G Crow for the defendants
Roati & Firth for the plaintiff
McInnes Wilson for the defendants
- The plaintiff claims damages for personal injuries said to have been suffered by him in a motor vehicle accident on 29 October 2001 at Ingham.
- His cause of action is admitted.
- The plaintiff sustained a compound fracture of the right distal tibia. This is common ground. He also claims to have sustained injuries to the cervical, thoracic and lumbar spines. There is a dispute about these matters.
- The case was conducted by the defendants on the basis that the plaintiff has, to a significant extent, falsified his various claims.
- The plaintiff was born on 15 October 1979. He was educated to Grade 12 level at the Ingham State High School.
- Upon leaving school, he worked for a shed construction firm and he also worked in the planting of cane. He commenced work at the Victoria Mill at Ingham in 2000 and at the time of the accident was employed there as a pointsman.
- The pointsman position at the mill was seasonal. The plaintiff says that in the off season he would work on a casual basis for Ingham Welding Services. His tax records reveal that in the year that he commenced at the mill he worked for this firm. The evidence suggests that he did not work each year for them and when he did it was for a limited period. He has done some work for them this year (2010).
- The plaintiff gave evidence that he hoped to obtain full time work at the mill so that his work would be permanent all year round, rather than during the crushing season alone.
- Prior to the accident he had had some injuries. These had largely been associated with sporting events. He recovered quickly from these. I am satisfied from the evidence that he did not have any disability limiting his activities at the time he was injured.
- The plaintiff was, it would seem, an accomplished sportsman. He represented the State in volleyball and athletics. He engaged in sprinting pursuant to a programme of the Australian Institute of Sport. The evidence suggests that he was a very fit and athletic man.
- My impression of the plaintiff is that he is not a robust character nor can it be said that he is a man of high intelligence. There is some reference in the evidence to his having some depressive bout for which he received treatment. In some respects he presented as being over confident.
- He has no qualifications for any occupation or trade.
- Following the accident, the plaintiff was away from work until the middle of 2002. Shortly after returning to work, he slipped on a locomotive step and was off work for a week. He says that he slipped because his injured knee locked up. He returned for a short time and had what is described in the evidence as a blackout or a fainting fit. He had apparently suffered one of these earlier at home. The episode at work occurred in August 2002 and he was then off work until the end of the crushing season. There are reports of Dr Reimers, a neurologist, dealing with this subject. Epilepsy was apparently excluded. However the plaintiff was for a time on prescribed drugs.
- He returned to work in May of 2003 at what I take to be the start of the crushing season and performed the work as a pointsman until he slipped on a billet of cane in late October 2003. According to his statement, he twisted his right knee and strained his right thigh muscle in doing so. He was taken off his normal duties and placed on lighter work until the end of the season which followed shortly after this incident. He returned to work in late May or early June of 2004 performing his normal duties and was then involved in a motor vehicle accident on 23 August 2004. This necessitated some further time off work and his employment was terminated in November 2004 because of his various absences from work. The termination occurred at the end of the 2004 crushing season.
- Although the two slipping incidents were arguably the result of the disability of the plaintiff's leg, the primary causes for his absences from work were the seizure in 2002 and the motor vehicle accident in August 2004. It seems to me that the loss of the plaintiff's employment with CSR cannot be ascribed to the injuries and their consequences.
- The plaintiff was placed on a disability pension on 5 January 2009.
- He has not been employed since he ceased work with CSR at the end of 2004, except for brief periods when he performed casual work erecting sheds for Ingham Welding Services during the 2005 and 2006 financial years and again in July 2010, work he performed in 2010 was, he says, mainly of a supervisory nature.
- The plaintiff has complained since the accident of extensive pain and disability in the right leg, pain in the cervical, thoracic and lumbar spines with headaches. The pain in the cervical spine radiates into the shoulder and he also has pain radiating into the right arm.
- Dr Maguire, an orthopaedic surgeon called by the plaintiff, in his report of 2 January 2007 (exhibit 1(2)) diagnosed the plaintiff as suffering from the following when he saw him 7 December 2006. He had earlier seen him on 3 April 2003:
- Soft tissue injury, cervical spine, with asymmetrical range of motion and muscle spasm;
- Soft tissue injuries, lumbar and thoracic spine with irritation and muscle spasm;
- Compound fracture of right tibia with altered sensation and the distribution of the common perineal both superficial and deep perineal nerves;
- Weakness of ankle eversion, dorsiflexion and big toe dorsiflexion. There is also some irritability of the saphenous nerve.
- Right knee injury, patella sublaxation associated with patella femoral pain and effusion.
- The development of a neurological deficit in the right upper limb which was increasing. Dr Maguire described these symptoms in this area as having the appearances of complex regional pain syndrome in the right upper limb, ulna nerve intrinsic weakness and wasting of the right hand and ulcered altered sensation in the distribution of the ulna nerve. There was weakness of the wrist dorsiflexion. These features had not been so evident at the first examination.
- Dr Maguire in a later report expressed the view that the plaintiff was not capable of performing manual work. His condition is permanent.
- The plaintiff, on each of the occasions he was seen by Dr Maguire was observed to have muscle spasm. This is a condition which cannot be simulated. It can vary from time to time which might explain why others did not observe it on their examination of him.
- Dr Maguire assessed the plaintiff's disability as being some 27% of the whole person. However, it would seem that he might have made an error in the application of the guides to the evaluation of permanent impairment which he used. However, it is not the disability in terms of percentage loss of function which I regard as being of critical importance for the purposes of assessing damages but the nature of the disabilities that he suffers from and their impact upon him.
- Dr Toft was called by the defendants. He is an orthopaedic surgeon who examined the plaintiff for the purposes of the action. He thought that the plaintiff had a minor (4% of the whole person) disability as a result of the fracture to his right leg. He did not think that there was any indication that the plaintiff had sustained an injury to the upper or lower spine in the accident and no abnormality was detectable in either area. The plaintiff complained to him of symptoms in these areas.
- Dr Toft thought that the plaintiff had no limitation upon his capacity to work in the type of work which he had previously been doing.
- Dr Campbell, a neurosurgeon called by the plaintiff, gave evidence that the plaintiff complained to him of symptoms in the upper spine, with pain in the right arm and also a pain in the right leg and lower back. Dr Campbell assessed definite weakness in the grip of the right hand. He diagnosed the plaintiff as suffering from:
(a) Chronic soft tissue muscular ligamentus injury to the cervical spine; and
(b) Chronic soft tissue muscular ligamentus injury to the lumbar spine.
- Dr Cameron, a consultant neurologist was called by the defendant. He expressed the view that the plaintiff did not have any disability. The plaintiff complained to him of pain in the lower back and in the upper back and in the cervical spine, the latter radiating into the shoulder and arm.
- It is plain that Dr Toft and Dr Cameron proceeded upon the basis that the plaintiff had made no complaints of upper or lower back symptoms at the time of this accident or thereafter until a further motor vehicle accident in August 2004. Dr Campbell, in cross-examination, was asked to assume this history.
- The evidence however in my view, clearly demonstrates that such an assumption is not correct.
- It is true that in the initial stages following his injury, no reference appears to complaints about the upper or lower spine. I accept the evidence that has been given on this subject that at that time, it could be expected that the focus would be on what was a very serious injury to the leg.
- In the records of the Ingham Hospital (to which the plaintiff was admitted following his accident) there appears a document signed by the Registrar to the effect that the plaintiff was now "six weeks post compound fracture right distal tibia" and a sketch showing the plaintiff suffering from a back problem appears. It appears that the Registrar was referring the matter to the physiotherapy department of the hospital.
- Commencing at page 252 of exhibit 26, is the medical file of a massage therapist, one Shannon Kemp. These commence in February 2002 and as will be seen between February 2002 and November 2002, the plaintiff attended many times for treatment of back and neck complaints.
- Counsel for the plaintiff took Dr Cameron to a number of references in the plaintiff's general practitioner's records in which it is clear that it was not the case that the plaintiff first complained in August 2004 of symptoms in the spine. In some of the references to these symptoms, the complainant refers to them having been present since the motor vehicle accident out of which this action arises.
- Dr Toft and Dr Cameron both acknowledged when confronted with these records that the plaintiff must be taken as having complained about such matters before August 2004. The assumptions upon which they have proceeded in this regard were wrong.
- Dr Maguire had, of course, seen him prior to the 2004 accident and detected muscle spasm and restriction of movement in the spine.
- I am satisfied that the plaintiff sustained injuries to the cervical, thoracic and lumbar spines in the accident and that the symptoms of which he complains are the consequence of those injuries.
- Dr Campbell expressed the view in his report of 8 May 2010 (exhibit 9) that the plaintiff's prospects of returning to work are poor because of a combination of his disabilities and the lack of education and training in sedentary type work. Catherine Purse, an occupational therapist called by the plaintiff, expressed a view that the plaintiff's capacity to return to the workforce is poor because of the pain which he suffers from. Miss Zaman, an occupational therapist called by the defendants on the other hand, expressed the view that the plaintiff had no limitation upon his capacity to work.
- I accept the evidence of Dr Maguire in relation to the orthopaedic aspects of the plaintiff's condition case and I accept that of Dr Campbell in relation to the neurological aspects of his condition.
- The plaintiff has a substantial disability in my view of the leg and of the spine. He is incapable of returning to work in any manual capacity and I accept that his lack of experience in any of the types of work for which he might be physically capable will make it difficult for him to convert any residual earning into income.
- I should mention a couple of specific attacks upon the plaintiff's voracity. I have in reaching the conclusions I have just expressed taken into account, the evidence as a whole. Of particular importance is the existence of objective symptomology detected by Dr Maguire in the plaintiff's spine. The muscle spasm he referred to had not been detected by others. However I accept his explanation that this will vary from time to time and will not always be present.
- The plaintiff walks with a limp, although he says that this is not always present and on a good day he may have no limp if I understand what he says correctly. The defendants contended that the plaintiff adopted the limp when attending medical practitioners but only those who were to assess the disability of his leg. It was argued he did not adopt such a limp when he attended other medical practitioners. Dr Campbell said that when he saw him he appeared to walk normally. Although he saw him for medico legal purposes, he was primarily concerned with his spinal complaints.
- Particular reliance was placed upon a DVD (exhibit 24) of 2 June 2008. This was a day on which the plaintiff came from Ingham to Townsville to be examined by Dr Toft. The DVD is quite brief and not of particularly good quality. Very little can be seen of the plaintiff's movements in entering and leaving the premises where Dr Toft examined him. However later in the day he is shown at a shopping centre walking normally without any detectable limp. It is a perhaps a little surprising that surveillance has not produced something more obvious and covering a longer period.
- I do not find attractive the contention that the plaintiff adopts a selective form of deception so far as the limp is concerned confining it to those who are to examine his leg but apparently quite prepared to demonstrate no limp to those who are not specifically concerned with that part of his body. This is a high risk form of deception it seems to me.
- I accept the evidence that the plaintiff's limp is variable and it is more or less pronounced according to what he has been doing. I also accept that it is not always present.
- It is also said that the plaintiff gave a false account of his movements on 2 June 2008 when he said that between the visit to Dr Toft and the visit to the shopping centre, he had gone to the home of his mother who had massaged his leg. The investigator (one Warren) was called and gave evidence from his notes that he followed the vehicle in which the plaintiff was a passenger from the medical centre and until the plaintiff reached the shopping centre. This was a substantial time and he says that he followed the vehicle to various parts of Townsville as it was driven around the streets of Townsville. He says that he did not know the locations where the vehicle went as he is not from Townsville and not familiar with the city or its surrounds.
- It is to be noted that when the plaintiff was first asked about this subject in cross-examination he said that he thought he had "probably" gone to his mother's home and ultimately said on this subject, "I don't know". He was somewhat more definite about this when tackled further about it at the end of cross-examination.
- Given Warren's notes, I am inclined to accept his evidence in preference to that of the plaintiff. The plaintiff's mother was not called to give evidence, nor was his partner who was said to have been the driver of the vehicle he was in at the time.
- I am not able to say whether this is an act of deception on the plaintiff's part or whether it is a case of the plaintiff being mistaken, although I am inclined to think it is the latter.
- The events are alleged to have happened on 2 June 2008, some two years and two months prior to the plaintiff being asked about the matter in evidence.
- The defendant conducted the case upon the basis that the plaintiff had advanced the false claim that he had sustained an injury to his upper and lower spine in the accident when he had made no reference to anyone treating him for symptoms in these areas prior to August 2004. In their written outline the defendants adopt a somewhat different approach to this subject, perhaps not surprisingly given the evidence to which I have already referred.
- On this issue, as I have already said, I accept the plaintiff's evidence borne out as it seems to be by the other evidence to which I have already referred to.
- The plaintiff was cross-examined at considerable length about the records of a number of persons who saw him for various purposes. The records were tendered but the makers of them were not called. An occupational therapist, who saw the plaintiff for the purposes of these proceedings, was called by the defendants and an occupational therapist was called by the plaintiff.
- Various persons concerned saw the plaintiff for various reasons. CSR Limited, the owner of Victoria Mill, engaged a physiotherapist and an occupational therapist to examine persons for the purposes of employment. General practitioners also provided reports for these purposes and some reports were provided for Centrelink. The plaintiff says that in a number of instances, the examinations were very brief and the reporting involved the completion of forms which he said were partly based upon earlier information that had been provided.
- Whilst I do not overlook this evidence, in my view the preferable evidence on the subject of what injuries the plaintiff sustained in the accident, his present disabilities and their impact upon him, falls within the province of the orthopaedic surgeons and the neurologists and I prefer their evidence on this subject. Each side has called witnesses from these specialties, as I have already indicated.
- For the reasons I have already given, I prefer the evidence of Dr Maguire and that of Dr Campbell.
- Since his employment with the mill ceased, the plaintiff has not been in any employment except for a short period with Ingham Welding Services, to which I have already referred. He was cross-examined at some length about his activities. He has endeavoured to return to some of his leisure activities but I am satisfied he is not capable of fully engaging in these in the way in which he did prior to the accident.
- He is not capable of the sort of employment that he previously engaged in, nor any other employment of a physical or manual nature. As I have said, his lack of training or experience in any other sort of field that he might be capable of engaging in within his physical limitations imposes a significant restriction upon his capacity to re-enter the workforce.
- He has lived in Ingham all of his life. It is a matter of notoriety that this is a community which draws its economic lifeblood essentially from the sugar cane industry, with some support from the timber and tourist industries. There is not the variety of work which would be available for persons like him in suburban areas.
- It is possible that the plaintiff may have obtained year round employment with CSR as he hoped. Whilst the loss of his employment may have occurred in any case, there is no reason why he could not have obtained employment in the sugar industry, perhaps with another mill or even at Victoria Mill in the future. Given Dr Reimer's latest report, it would seem that the history of his seizures should not have had an adverse impact upon his ability to re-enter the workforce.
- So far as general damages are concerned, I am satisfied the plaintiff suffers and has suffered a good deal of pain and discomfort. It appeared to me that the restrictions which his disability imposes upon him, weigh heavily on him and he seems to be quite unhappy with the situation he finds himself in. He seems to have been a person who placed great store upon his physical fitness and capacities and the restrictions which he has, cause him to be down-heartened.
- I allow general damages in the sum of $75,000. I allow interest at 2 percent for 9 years on $25,000 producing a figure of $4,500
- So far as past economic loss is concerned, some allowance has to be made for the vicissitudes and contingencies of life given the time involved. If the plaintiff was working in the sugar industry in a manual position he would have been exposed to some risk of injury. There is however the contingency that he may have obtained year round employment. As an able bodied person he would have been capable of engaging in a variety of jobs in the cane industry or in some other field from which he is now excluded.
- The plaintiff returned to work at the mill for some seasons, interrupted by the injuries and condition to which I have already referred. However it would seem clear from the opinions of Dr Maguire and Dr Cameron that he should not have been doing this work. Dr Maguire refers to the difficulties which the plaintiff said he was having at the time in his first report.
- The defendants have analysed the plaintiff's earnings in the year of the accident and in which his sole income was from the mill as being some $261 nett per week. I agree that the defendants are correct in their contention that the defendant did not work each year for Ingham Welding Services and that in the years that he did, his income was quite small. This income has to be allowed for but it is relatively small and I make general allowance for it in my assessment of past economic loss.
- The earnings of a pointsman could be expected to have increased significantly over the nine years since the accident.
- The plaintiff ceased to work in November 2004. He was incapable of working for some significant period following the accident and until the return to work with the mill. However any allowance for this period would, in view of his work history, be relatively small. It will be subsumed in the figure which I adopt overall for past economic loss. I allow $450 per week for six years producing a figure of $140,400.
- The material suggests that the plaintiff has received some $77,700 from Centrelink since the time of his accident, until the present. At present he is receiving a disability allowance.
- I allow interest on the difference between $140,400 and the benefits he has received, at 5% for six years producing a figure of $18,810.
- So far as the future is concerned, the plaintiff is still quite young, having just turned 31.
- There are many contingencies to be allowed for but these move in both directions.
- I have already set out the factors which I consider relevant to an assessment of what the plaintiff is likely to have done, had he not sustained this injury.
- The plaintiff must be regarded as having had a substantial destruction of his earning capacity.
- I allow $297,750 being the present value of $400 for 25 years.
- I allow 9% for loss of superannuation on the awards of past and future loss of income producing figures of $12,636 and $26,798 respectively.
- The plaintiff makes a substantial claim in respect of special damages. This is strongly contested and ultimately I think much of the plaintiff's claim in this regard fails for want of proof.
- I allow the claim of $6,300 in respect of rehabilitation expenses as these are sworn to and I accept the evidence. This involves a small reduction for cancellations for which costs were incurred.
- So far as the claim in respect of medical expenses is concerned, the plaintiff was cross-examined at some length about this. Although there are receipts for these, an analysis of the various attendances would suggest that they were largely for attendances unrelated to his injuries sustained in this accident. The defendant claims that only some $293.30 of the expenditure is recoverable. The plaintiff was not able to demonstrate in his evidence anything beyond this and his claim will be limited to that amount.
- There is a large claim for pharmaceutical expenses of some $11,000.
- The plaintiff was cross-examined about these. He produced a folder of receipts relating to pharmaceutical expenses (exhibit 28). He described in his quantum statement the type of pharmaceuticals which he purchased. These were analgesics, prescription pain medication, antidepressant medication, anti-inflammatory medication, heat relief creams and anti-inflammatory gels. Identifying these from the receipts which were provided is no easy task. The plaintiff has deposed to the quantity and cost of these but it is apparent from the cross-examination that these are in the nature of estimates. Nonetheless, the amounts which the plaintiff has expended over the nine years since the accident, adopting the plaintiff's costs and quantities, must be substantial. However in the absence of precise proof of these matters, some substantial discounting on the amount claimed is necessary. I would allow $5,000 for total pharmaceutical expenses.
- The plaintiff claims a substantial sum by way of travel expenses. He lived outside of Ingham at Trebonne from 2006 and since 2008 has lived at Lucinda. Trebonne is 11 kilometres from Ingham and Lucinda some 25 kilometres.
- His claim in this regard can be little more than an estimate and the claim advanced requires in my view, some discounting. I would allow $3,000 under this head.
- I allow in respect of the outgoings actually paid by the plaintiff, the sum of $7,650 for interest. This is based upon a rate of 5% and is allowed over nine years.
- The plaintiff claims future expenditures in the nature of medical, pharmaceutical, rehabilitation and travel expenses.
- This claim is based upon a number of visits to his general practitioner and an annual review by a specialist. The claim is for $10 per week for future medical expenses for 55 years. Evidence does not suggest that the plaintiff has been attending his medical practitioner on anything like this number of occasions. On the other hand, an annual review by a specialist would seem to be reasonable. I allow $5,000 under this head.
- Future pharmaceutical expenses are claimed in accordance with Schedule C to his statement. He deposes to the type, cost and regularity of use of these. The particular pharmaceuticals involved are analgesics, heat relief creams, anti-inflammatory gels and a miscellaneous group of hot and cold packs, various guards and braces and other medication.
- Discounting it seems to me is required in respect of these amounts. For one thing, the plaintiff may have required some of these in any case as he grew older. Nonetheless given his age he will undoubtedly incur substantial expenditures over his life expectancy which are ascribable to the injuries sustained in his accident.
- I allow $15,000 for future pharmaceutical expenses.
- So far as travelling expenses are concerned, these would I assume be limited to the costs of travelling to Ingham to see his general practitioner or elsewhere to consult a specialist each year. There are claims for what are described as rehabilitation expenses, namely physiotherapy and massage treatment to assist him with pain control and to assist his mobility. The claim is one based on twelve massage treatments per year at a cost of $60 per treatment, producing a discounted figure over his life expectancy of about $13,800. It seems to me that here again some discounts for the factors that I have referred to are required. I allow the sum of $10,000 under this head. As to future travel expenses, it is difficult to see how his future travel associated with the injuries sustained in the accident and their consequences which is to be limited to travelling to Ingham and once a year to Townsville to see medical practitioners could be anything like the amount claimed. The plaintiff may move into the town of Ingham and his expenses would be significantly reduced. I would allow $5,000 under this head.
- The total for future expenses then is $30,000.
- There is a claim in respect of past and future care and assistance.
- The evidence on this subject I have to say was a little confused and confusing.
- Section 55D of the Motor Accidents Insurance Act 1994 was the relevant legislation in force at the time.
- This provides as follows:
"55D (1)Damages are not to be awarded for gratuitous services unless -
(a)the services are necessary; and
(b)the need for the services arose out of the personal injuries suffered in the motor vehicle accident.
(2)Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the date of the motor vehicle accident.
(3)Damages are not to be awarded for gratuitous services replacing the services the injured person provided, or would have provided if the injury had not occurred, for others outside the injured person's household."
- The plaintiff undoubtedly required care and assistance in the period immediately following the accident and for some time thereafter. He says he was unable to walk unaided for about six months following the accident and thereafter was on crutches for about another month. He required the assistance of his mother and grandmother with personal care during those periods. The claim is based upon some four hours per week on average which according to Miss Purse, an occupational therapist, equates with his present requirements.
- Her estimate of his present needs, which I take to be his needs since his convalescence finished, are based upon the needs for assistance in mowing and trimming work in the garden, rubbish removal and gardening and cleaning of the bathroom and floors as well as an allowance for tasks such as cleaning of things such as windows, fans, screens etc.
- There is some dispute about whether the plaintiff required any assistance with mowing. An occupational therapist called by the defendant related that the plaintiff told her that he was able to mow. His own evidence is that he has on occasions mowed since the accident but that it has taken him a good deal longer than before. I accept the assessment of Miss Purse and the plaintiff's evidence on this subject and I think some allowance should be made for this, although the plaintiff may and probably will from time to time when he is feeling well enough, be able to perform such tasks.
- The effect, as I appreciate it, of the plaintiff's evidence is that he did little, if anything in the way of domestic tasks before the accident and as such would be faced with the statute so far as his claim in this regard is concerned.
- I allow in respect of past care and assistance $10,000 and I allow in respect of future care and assistance (based on a rate of $25 per hour) representing $25 per week for 40 years discounted by reference to the 5% tables to produce a figure of $22,500.
- The total of these sums is $660,637.30.
- I give judgment for the plaintiff against the defendants in the sum of $660,637.30 with costs to be assessed.
- Published Case Name:
Girone v Denholm and Allianz Australia Insurance Limited
- Shortened Case Name:
Girone v Denholm and Allianz Australia Insurance Limited
 QSC 420
10 Nov 2010
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 420||10 Nov 2010||Judgment for the plaintiff in the sum of $660,637.30 with costs to be assessed; Cullinane J|
|Appeal Determined (QCA)|| QCA 245||20 Sep 2011||Appeal allowed, judgment varied by reducing the judgment amount to $521,148.30; Muir JA, M Wilson AJA, Fryberg J|