- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
21 December 2011
2, 3, 8 August and 22 August 2011
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – LOSS OF A CHANCE
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 (considered)
A Moon for the plaintiff
G Crow SC for the defendants
Connolly Suthers for the plaintiff
Dibbs Barker for the defendants
 The plaintiff sues for damages for personal injuries sustained in an accident which occurred on 17 August 2005. He was then almost 41 years of age (dob 9/9/64). The first defendant was the employer of the plaintiff who worked at the Century Zinc Mine at Lorne Hill in north west Queensland. Liability has been admitted by the defendants and all contribution proceedings between the defendants have been resolved. Consequently the only issue is the quantum of the damages recoverable by the plaintiff against the four defendants.
THE PLAINTIFF'S CASE
 It is necessary to briefly describe the circumstances of the accident when the plaintiff suffered his injury. This is so notwithstanding that the defendants admitted liability and that the plaintiff sustained an injury but because the nature and extent of the injury suffered by the plaintiff and his pre-accident health is in issue it is relevant to understand how the plaintiff was injured.
 The plaintiff's evidence concerning the circumstances of his injury was not challenged at trial. He said that he was driving a large dump truck called a "haul truck". To indicate its size he said that the tyres were twice as tall as him. The plaintiff said the truck had a capacity to carry a heavy load of rock and dirt, up to 400 tonne, but that the heaviest load he had carted was approximately 326 tonne. He said that rock and dirt was to be loaded into the truck by a digger machine operated by a co-worker, Jimmy Potts. He said that he backed the truck under the digger and the operator told him that he should brace himself saying, "I got a big one coming on." The plaintiff understood this to mean that a large rock was to be deposited from the digger into the truck. The plaintiff said that a large rock, he ultimately ascertained that it weighed some 56 tonne, fell out of the digger into the truck with the result that "it got really violent in the cab" and he was winded. After he recovered from the shock of being winded he said that when he moved to get out of the seat of the truck, he felt a sharp pain in his low back.
 It is admitted on the pleadings that the plaintiff suffered an injury to his lumbar spine in the subject incident. The plaintiff said that he continued to suffer from pain in his low back and he essentially rested or was put on light duties for a day or two.
 At the time of the accident the plaintiff was living in Cardwell and was working at the mine on a roster where he worked 14 days on with 7 days off. He flew in and out of Townsville with the employer providing the cost of transportation of food and accommodation. He said that he was working approximately 12.5 hours per day when rostered on and was earning between $1,300 and $1,400 net per week.
 He said that a day or two after the incident he returned to Townsville and then to Cardwell. He was still suffering from symptoms of pain in his low back. He saw a doctor in Cardwell after a few days who certified him as unfit for work for two weeks. He stayed in Cardwell.
 The plaintiff said that he returned to work after approximately 3 to 4 weeks when he was on workers' compensation benefits. He was placed on light duties but after two days he had returned to Townsville because his condition was troubling him. He consulted Dr Allan Wallace (a general practitioner) who referred him to a physiotherapist, a Melissa Hooper. He said that subsequently he returned to work some time before Christmas in 2005 again on light duties. He was placed on a rehabilitation plan but he was still in pain. His evidence was that ultimately in May 2006 he ceased working with the defendant. He said he was not able to perform his duties as he could before the incident, that his employer was putting pressure on him to return to full duties and that as a result of discussions between himself and his employer his employment came to an end. He was paid an ex gratia payment of $16,500 by his employer when he ceased work. At sometime after Christmas 2005 the plaintiff said that he had moved his residence from Cardwell to Mackay by which time he was living with a partner, Donna Halls.
 Before proceeding with the plaintiff’s account of his work and life circumstances subsequent to the injury, it is convenient to outline his evidence of his background and adult life until the time of injury.
 The plaintiff said that he was educated to Grade 10 and after leaving school became an apprentice electrician for a couple of years before he started working in hotels in or about 1981 or 1982. He said that he worked in hotels on and off until approximately 2004 but with occasional work as a tradesman's assistant or working as a labourer or truck driving. He said that he got his truck driver's licence at the age of approximately 17 or 18.
 His evidence was that sometime in or about 2002, 2003 or 2004 he obtained employment at the mine running the tavern there. Subsequently he obtained employment in various roles at the mine site. Ultimately he applied for a job with the first defendant driving trucks. The plaintiff's evidence was that his plan at the time he went to work at the mine site was to get into the mining world to get a foot in the door and work his way up.
 For many years the plaintiff played professional rugby league football. He gave evidence that from age 19 to 34 he played professional rugby league. He was, what might be described as a "journeyman" footballer. His evidence was that he played for teams in Mt Isa, Herbert River, Cairns, Whitsundays, the Sunshine Coast, the Gold Coast and in the Brisbane rugby league competition for Souths in 1991 and 1994. The impression I gained from his evidence was that he moved around following the football for about 15 years. His evidence was that to supplement his income playing football he would obtain employment where he could often work for clubs or hotels that sponsored the football club.
 The plaintiff's evidence was that at the time of the accident he still remained physically active. He said that he had had a 21 foot fishing boat, that he played golf, and that he engaged in the recreational activities available at the mine site when he worked on roster including playing volleyball, indoor cricket, bowls and football or touch football.
 In court when he gave evidence he presented as a strong and still reasonably fit looking man showing in his appearance the wear and tear one might expect of one who has played professional football for many years.
 I have already mentioned the plaintiff's evidence of his long term plans at the time of the transition in his life after he finished playing football to the time he first obtained employment in the tavern at the mine site. He gave evidence of his specific ambition at the time of his injury. He said that had he not been injured he intended to stay with his employer (the first defendant or Roache Mining) indefinitely. He said that the company had training schemes which provided opportunities to move up. His specific aspiration was to become a "pit supervisor." He said that such a person supervises the operations of the mining pit. It was noted by the plaintiff's counsel in addresses that the defendants neither challenged nor lead contrary evidence suggesting the plaintiff did not have the opportunity of continuity of employment in the mining industry in the same sort of job he was doing at the time of the accident, with a prospect of promotion to a pit supervisor. Indeed there was no challenge to the plaintiff's evidence about the circumstances of his employment at the time of the accident. The plaintiff put into evidence some certificates and documentary evidence of qualifications he obtained during his employment at the mine. In evidence he pointed out that he obtained some qualifications training as a grader operator and he obtained a trainer's assessor's ticket. He said that these qualifications offered him the prospect of employment in positions where he would earn more.
 The plaintiff said that at the time that he commenced work in the mines he had little superannuation and that his intention was to work until retirement age at age 67 or for as long as his employer would employ him.
 The plaintiff gave evidence that apart from an episode in 1985 he suffered no problems with his low back until he was injured in the subject incident. He said that in 1985 he was working at Mt Isa Mines and on the particular day was shovelling spillage from under a conveyor belt. He twisted his back and suffered some pain. He said that he took some time off work on compensation but returned to full duties. He said that he had no subsequent problems with his back. He was able to return to playing football, that he had no other accidents affecting his back nor any further need for medical treatment. His evidence was that the effects of the back injury had been persistent, significantly restricting him. He suffers from pain particularly if he does "too" much. His evidence was that he could not play the sports or engage in the recreational activities that he used to and that as a consequence he has time on his hands.
 The plaintiff gave evidence of what he described as a personality change, that as a result of the pain and the effects the injury had on him he had become more short tempered and less tolerant. Specifically he said that the changes that had happened to his life because of his restrictions had affected him and affected his outlook on life. His evidence was that as a result of his having more time on his hands he would spend more time in hotels with the consequence that he started drinking more alcohol post injury, because he used to be busy and was doing things he did not spend as much time in hotels.
 The plaintiff gave evidence of his post accident employment which was set out in a summary of employment and generally his evidence was consistent with the details in Exhibit 9.
 After the plaintiff had ceased employment with Roache Mining at the relevant mine in May 2006 he was unemployed for a short period and then obtained employment with Marian Haulage. He worked with that company from June to August 2006. His duties involved training truck drivers and assessing their competency in the operation of equipment. He said that he had difficulty doing the work, that he was in pain because of the design of the seat he had to sit in, that as a consequence he spent a considerable amount of time out of the vehicle watching drivers drive or operate the vehicles rather than sitting in with them properly training them. His evidence was to the effect that the pain he suffered caused him to cease that employment.
 Thereafter the plaintiff obtained employment between October 2006 and December 2007 with several different employers although he worked at essentially the same job and at the same mine performing the same tasks.
 He said that he could manage the work but that over time it affected his back and he suffered pain and discomfort in his back. He said that he worked a roster with seven days on and five days off and that the work involving seven consecutive days caused him to suffer pain. He said that his reason for ultimately ceasing employment at that mine in December 2007 was with a view to staying in the "game" longer. He said that he hoped that if he could obtain employment with a shorter roster he would be able to manage the work and continue working in the industry.
 Thereafter the plaintiff obtained employment with Leightons between December 2007 and February 2008. He says that he took that job because of its shorter roster although he was earning less money. He says that he left in circumstances where he had a fight with a worker arising out of practices of rough loading of trucks.
 Between February 2008 and May 2008 the plaintiff obtained employment with shipping containers. He says that he was "let go" because his employer found out that he had not told them of his injury and prior back claim at the time he applied for employment. Thereafter in May 2008 the plaintiff obtained employment for approximately two days doing long distance driving. On his account he couldn't manage because of the pain he suffered in that employment.
 Thereafter between June and August 2008 the plaintiff obtained employment doing hotel work. He says that he had difficulty doing that work because of the long hours standing. Also he said that he had difficulty putting up with customers. This comment was made in the context of him describing the personality change that had come upon him as a result of the accident and, as he would have it, his consequently becoming less tolerant.
 Thereafter the plaintiff obtained a series of jobs between September 2008 and May 2009. In respect of each job his evidence was that he could not cope because of his back, the pain he suffered or because of his disability he could not cope with the speed of the work required of him.
 The plaintiff was then employed by Keith Roberts between July 2009 and November 2009. He did not complain that he could not cope with this work but his evidence was that it was not full time work, that some weeks he would only work 2 to 3 days. Thereafter the plaintiff obtained employment with Shadforth's working as a plumber's tradesman's assistant. His evidence was that he got the job through a contact but that he had not told that contact of the problems with his back when he started. He worked from November 2009 through to April 2010. His evidence was that he was terminated because he had difficulty doing the work.
 The plaintiff's evidence concerning his employment with Skilled Group Limited between June and July or August 2010 was that the duties involved road maintenance and cleaning, the work was not full time, that the days and hours were sporadic. The plaintiff then obtained employment with Gas R Us in August and September 2010. He did not tell his employer when he was interviewed about his back disability. At first his duties were servicing and filling gas bottles in a shed. He said that he could manage that work but after a period his employer required that he do deliveries. He said that this was heavy work and that he had considerable difficulty doing the lifting or manoeuvring of the gas bottles. His evidence was that when he was originally employed he was put on trial for three months but that he only did 8 to 9 weeks and that ultimately he was "let go" because he was not managing due to his back problems.
 At the time of trial the plaintiff was working for Shaw Plant Hire as a truck driver. He started in February or March 2011 on a trial basis. His evidence at trial was that he was pessimistic of his chances of lasting there for an extended period.
 His evidence-in-chief concerning his future was vague. The plaintiff thought that he might, presumably if he obtained a significant award of damages, set up a business as a traffic controller working on the highways or other projects throughout the State where there is demand for persons who can perform that work. When asked whether he had any experience running a business or operating a small business he said that beyond occasionally filling in managing a hotel for his employer he did not have any relevant experience.
 The plaintiff gave evidence that he had attempted physiotherapy to treat his back symptoms, that he had engaged in exercise such as walking to assist with his back condition. At the time of trial the plaintiff was not seeking any ongoing medical advice or physiotherapy treatment. His evidence was that he attempted to manage or control his pain with over the counter medications or pain killers such as Panadol.
DEFENDANT’S ATTACK ON THE PLAINTIFF’S CREDIT
 The defendant mounted an attack on the plaintiff’s credit, and also the issue of the extent of his back disability or symptomatology before the subject accident and the extent to which alcohol played a role in his life before the accident and subsequent.
 Evidence was led of the plaintiff telling untruths to doctors and others who interviewed or assessed him when he applied for work. Evidence was also tendered of the false declarations in job applications or documents relating to job applications. The defendant admitted that he told untruths to people or to prospective employers about his back condition when he applied for jobs subsequent to the incident. Though, notwithstanding that the plaintiff admitted this course of conduct he was disposed in evidence at one stage to suggest that sometimes he was not asked. Nevertheless evidence was given by Dr Dawes, who I accept, that the plaintiff gave misleading answers to questions that he asked of him when he examined him.
 The evidence is overwhelming of a calculated course of conduct over the years to mislead prospective employers. The first example in evidence was the plaintiff’s failure to disclose to the first defendant his prior back accident in 1985. Thereafter as the plaintiff made applications for employment to prospective employers he gave false or misleading answers concerning his health and back condition; the application to Legra, to Leightons, the Mine Workers Health Scheme form (that Dr Dawes spoke of) completed on 26 May 2006, the Job Wire Health Survey form dated 10 September 2008, the application to Hastings Deering, the form submitted to Keith Roberts Earthmoving, the Shadforth’s Pre-Employment form, and the form submitted to Skilled in May 2010.
 A different but related, false declaration the defendant admitted to was falsely stating to the first defendant when he commenced employment that he was then the current holder of a drivers licence. This is relevant to the issue of alcohol in the plaintiff’s life. The false declaration concerning the existence of a licence occurred at a time when he was disqualified from driving. The plaintiff admitted to having lost his licence for drink driving on two occasions prior to the accident. He also admitted to being involved in a significant motor vehicle accident on Christmas Day 2005 some four months after the accident. He admitted that this accident happened in the circumstance that he had consumed a lot of alcohol that day.
 I have already mentioned that the plaintiff in his evidence, while admitting to the back injury in 1985, swore that subsequent to his recovery from that he had no problems with his back until the subject accident. He maintained that in evidence before me and, as I will mention later, told that to the specialist doctors who examined him for the purposes of preparing reports for the Court. However, there is evidence of the plaintiff making admissions to the contrary soon after subsequent to the accident. The plaintiff had consulted Dr David Allan Wallace (a general practitioner) on the 19th of September 2005 and subsequently. Subsequently Dr Wallace provided a report to WorkCover dated 1 June 2006. In the report Dr Wallace recorded that Mr Geary had sustained a number of previous back injuries which in likelihood related in a large part to his time as a rugby league footballer. I understand the comment in the written report to concern a revelation made by the plaintiff to Dr Wallace on 19 September 2005 and to his recollection of what the plaintiff told him. In evidence Dr Wallace said that he had a clear recollection of the plaintiff telling him that he had suffered back injuries which he attributed to playing rugby league football. I accept the evidence of Dr Wallace. There is also a suggestive comment in a letter written by the physiotherapist, Melissa Hooper, to Dr Wallace on 29 September 2005 where she reports that the plaintiff reported “no previous low back conditions other than minor sports related minor muscular events whilst he was playing professional football”.
 The defendants mounted a sustained attack on the credit of the plaintiff alleging he was a violent and aggressive man. The defendants called evidence from a former partner of the plaintiff, Donna Halls. The plaintiff readily admitted that Donna Halls had obtained a “domestic violence order” against him but he denied assaulting her. When it was suggested to him that he had assaulted her and struck her on a number of occasions he denied it saying that he’d only struck her on one occasion and then it was an accidental blow in the circumstances. The evidence called by Donna Halls was markedly different. She gave evidence of multiple assaults and of violent conduct on the part of the plaintiff. Rebuttal evidence was called by the plaintiff from Sharon Louise Ellis who gave evidence contradicting Halls’ account on a particular and, seemingly, significant occasion. Halls was reluctant to give evidence in the presence of the plaintiff. I was told that she was afraid of the plaintiff. Certainly when she gave evidence she appeared to be highly agitated. In light of the contradictory evidence from Ms Ellis I have difficulties in accepting the entirety of the evidence given by Halls. That does not mean I accept the plaintiff’s account of their relationship. I will say more about my findings concerning the plaintiff later but at this juncture it is sufficient for me to say that my view is that neither the plaintiff’s nor Ms Hall’s account of their relationship is reliable.
 There was however other evidence of, seemingly, a violent disposition on the part of the plaintiff. Evidence was given of a physical altercation between the plaintiff and a Mr Terry Blackwood. The plaintiff admitted to being involved in a fight with Blackwood. The circumstances of the fight, or what exactly happened, is a little unclear in light of the plaintiff disputing some of the allegations that were put to him by Counsel for the defendants. But it is clear that the plaintiff got the better of Mr Blackwood. There is also evidence of the plaintiff being involved in two fights at his workplace subsequent to the accident. It appears that he had a fight with a worker when he was employed by Leightons at Peak Downs and again a fight when he was employed by Hastings Deering. Suggestively when he was asked whether, other than the fight with Blackwood and the two fights at work, he had been involved in other physical fights or altercations in the previous ten years his response was – “Oh, you’re joking, aren’t you? I couldn’t tell you mate.”
 The plaintiff was asked questions concerning his consumption of alcohol both before the subject incident and after. The significance of this will emerge later when the psychiatric evidence is considered. The issue emerged in the context of a report given by Dr Leong where Dr Leong reported the plaintiff admitting to consuming 10 to 16 schooners of XXXX Gold per day. The plaintiff denied consuming that quantity of alcohol day in day out and at times gave slightly varying estimates of his intake. He did admit that he may have told Dr Leong that he drank 10 to 16 schooners on a “big day” or on weekends. In his pre-employment application made to the first defendant (before the accident) the plaintiff admitted to drinking between four and six alcoholic drinks per day. He certainly admitted to spending more time in hotels subsequent to the accident because he was not as busy as he used to be. Generally his evidence was however more or less consistent. He admitted that at the end of sustained periods working at the mines, when he returned to his home for his rostered days off, he would “go on a bit of a bender” where he would consume a considerable quantity of alcohol while on the first day or so and rostered off. His evidence was that this would help him regain a normal sleeping pattern particularly if he had been working night shifts. In re-examination he admitted to drinking between four and five schooners per day when working and between 10 and 16 schooners per day on weekends.
 Significantly on the question of alcohol evidence was given by Donna Halls that in the approximately nine months that she knew the plaintiff prior to his accident she never saw him heavily intoxicated nor did he assault her.
 The plaintiff denied to be using other or illegal drugs. He was confronted with evidence of a drug test taken in June 2002 which suggested use of amphetamines. The plaintiff denied using amphetamines and was unable to explain how this may have come about. Ultimately I have concluded that this issue goes nowhere. It is an isolated entry not properly explained. It does not appear to be consistent with any other evidence. Indeed it may well be the product of a false positive because the plaintiff may have been taking other medication at the time.
 A further attack on the plaintiff’s credit was made based upon some anomalies in some of his income tax returns. In respect of his returns for the years 30 June 2003, 30 June 2008 and 30 June 2009 it was suggested that the plaintiff had failed to disclose some of his income. A comparison of some of these returns with the details set out of his employment in Exhibit 9 suggests this. Further there was a suggestion there may have been excessive deduction claims in relation to the return for the year 30 June 2003. I do not think much turns on this. If there has been a failure to declare all the income it does not go very far. At all times the plaintiff was a PAYE tax payer. His employers were remitting all group tax as he worked. Consequently it is highly unlikely there has been any shortfall to the revenue. It was not demonstrated to my satisfaction that the anomalies were the product of a conscious attempt of deception on his part. Nor was I impressed with the argument based upon the claims for deductions notwithstanding some of them may have been ambitious.
 Some other evidence was given the plaintiff or by witnesses that bears upon credit issues.
 Donna Halls gave evidence of the plaintiff’s condition post-accident. She noticed that he was in pain that when she first saw him on a weekend after his accident he was lying on the floor apparently in a lot of pain. She noticed him to be in pain for a few weeks subsequently.
 Christine Moore gave evidence. She was at the relevant times the Office Manager for Gas R Us. She says that she observed the plaintiff (perhaps twice a day) to be apparently in pain. She said that he was terminated because he could not do the job and appeared to be in pain.
 Peter Edward Owens gave evidence. He was a Maintenance Manager for Shadforth’s. He observed the plaintiff working as a labourer, perhaps a daily occurrence. He noted the plaintiff appeared to be restricted in his movements but ultimately the plaintiff was laid off, not because he could not manage the work, but because the employer did not have enough work to justify his employment. The defendant called evidence from Mr Keith Roberts relating to his employment of the plaintiff. He said that he never saw the plaintiff injured or with back pain and the plaintiff made no complaints of any disability or discomfort to him.
 I accept the evidence of Moore, Owens and Roberts. The significance of the evidence from Roberts is not necessarily contradicted by the evidence from Moore or Owens suggesting that the plaintiff appeared to be in pain at times. I did not understand the plaintiff to be saying that he left employment with Roberts because he was physically unable to be at work. The plaintiff suggested that he left because there was not enough work for him, he was only working for 2-3 days in some weeks.
 Finally the plaintiff, in relation to the suggestion that he was a heavy consumer of alcohol gave evidence that he was always sober for work, that when working on mine sites he was regularly tested, as are workers generally, for alcohol and drugs and that he always passed the alcohol tests. It was not suggested by the defendant that this was not so nor is there any suggestion of any documentary evidence to contradict the plaintiff.
FINDINGS – CREDIT ISSUES
 The defendant has demonstrated that the plaintiff was prepared to mislead prospective employers about his past. There was evidence of him doing so before he was injured when first applying for employment with the first defendant. Her persistently engaged in this conduct subsequent to the accident. I am sympathetic to the plaintiff that he was seeking to gain employment and that he feared that if he disclosed a back injury he would not obtain work. He may well have had good grounds for those fears. But the evidence of this conduct persuades me that I should be cautious when considering his evidence.
 I have already said that I accept the evidence of Dr Allan Wallace that the plaintiff told him that he had pain or symptoms with his back from time to time which the plaintiff attributed to playing rugby league football. The consequence accepting that evidence is that the plaintiff gave misleading evidence before me when he denied any back problems other than that immediately following the 1985 work incident. The view I take of the plaintiff is that he attempted to downplay or minimise the problems he had with his low back prior to the incident at the mine with a view to maximising his recovery in this action. The extent to which I can draw any inference or conclusion as to the amount of his suffering I will discuss subsequently when considering the medical evidence.
 Nevertheless, the view I take of the plaintiff’s credit is not that he cannot be believed on all matters or that he cannot be believed unless corroborated by others. For example, his post-accident work history is quite impressive. He has persisted in seeking employment and persisted with the work when, I accept, he was suffering pain and had difficulties performing the work. This goes to his credit.
 Further I do accept that the plaintiff was ambitious to make a career for as long as he could manage in the mines. He had spent much of his adult life moving about the state playing football earning, it would seem, relatively modest amounts. It would not be surprising that he would take the opportunity of the economic conditions in Queensland to earn as much as he could and put up with the dislocation of such employment.
 At times when the plaintiff was questioned about the affects of the injury upon him and when he spoke of the loss of his physical ability because of the restrictions and pain he appeared to be upset. I formed the impression that he was proud of his former physical prowess as a footballer and a strong man. He appeared genuinely upset and frustrated at his current condition. The observations I make concerning his pride in his manliness suggest to me that as an adult he was not squeamish about making his point by force and if needs be by fighting. The only direct evidence of his engaging in fights are the three episodes he spoke if and admitted to, all of which occurred post-accident. But the plaintiff’s evasion when he was asked about the number of fights he might have engaged in the ten years prior to trial was, in my view, suggestive. While his answer was given at a time when he was showing frustration at the persistence and length of the cross-examination there was in the view I take an element of “catch me if you can”. This would not be inconsistent with the view I take of his frankness to his employers and to the Court concerning his back disability in the past. To some extent the plaintiff’s evidence of his use of alcohol over the years tended to emphasise that he drank more post-injury than before. Indeed on the view I take of the evidence it is likely that he now drinks more than he did before he was injured and in part for the reason that he gave, that he has more time on his hands. Nevertheless my impression from the evidence was that the plaintiff drank regularly and at times, on weekends, very heavily prior to the injury. It should not be overlooked that for many years he worked in hotels to supplement his income as a professional footballer. I will say more about this issue when I discuss the medical evidence.
MEDICAL EVIDENCE AND FINDINGS
 Evidence was given by three orthopaedic surgeons and two psychiatrists.
 All the orthopaedic surgeons were given essentially the same background or history and relied upon that for the purposes of their reports and evidence. That history included a significant CT scan of the lumbar spine of the plaintiff on 7 September 2005. Of the CT findings, Dr Malcom Wallace said that they demonstrated a degenerative lumbar disease at 3 levels, pre-dating the incident the subject of the claim.
 Dr David Morgan (Orthopaedic Surgeon) gave two reports and gave some brief oral evidence. His report revealed that the plaintiff recalled a 1985 episode when he was off work for two weeks but the plaintiff denied to him any lumbar spine difficulties subsequent to that until the subject incident. Originally he offered the opinion that the plaintiff had suffered a 6% whole person impairment about one-half to two-thirds of which was referable to the incident. He thought the plaintiff was fit for sedentary or semi-sedentary work and that he might have very modest needs for some assistance with heavy gardening and household repairs. He said that the subject incident could have contributed to a disability of 3% to 4% (out of the total impairment of 6% whole person) and might have tipped the balance between the plaintiff leading a reasonably active and comfortable life and one that he had complained of when examined. Dr Morgan offered the opinion the plaintiff was unsuited for heavy labouring or manual activity and this related in part to his pre-existing disease and in part to the effects of the accident. In his subsequent report Dr Morgan offered the opinion that the plaintiff could theoretically have continued to work but the subject accident had contributed significantly to the restrictions on his future employability.
 Associate Professor Bruce McPhee provided two reports to the Court and gave oral evidence . He reported that initially the plaintiff denied any previous history with back pain but from the documents he noted a “file reference” to the 1985 episode. He noted the radiological evidence which suggested degenerative changes pre-dating the accident and he diagnosed that the plaintiff had suffered a “soft tissue injury” that was “aggravating a pre-existing” condition. He offered the opinion that the plaintiff was incapacitated for physical work of a manual or heavy nature and may be limited in some aspects of truck driving. Dr McPhee thought the plaintiff would have developed symptoms in his lower back before age 60 and possibly naturally within approximately 10 to 15 years. When pressed about his estimate of the plaintiff developing symptoms when he gave evidence he described that as a “conservative estimate”. Dr McPhee went on to say that symptoms may have emerged within five years or perhaps even in 20-25 years but he thought that latter estimate to be unlikely. He conceded that the estimates he had offered were a matter of “guess work” but that it was his best estimate, albeit speculative, based upon his experience as a guide to the likelihoods. In his second report Dr McPhee expressed the opinion that it was possible the plaintiff would have suffered from chronic low back pain within ten years with natural progression of his pre-existing condition. He expressed the opinion that the plaintiff was suffering from 5% impairment.
 Dr Malcolm Wallace (Orthopaedic Surgeon) was called by the plaintiff. Four reports were put into evidence the first of which was given at a little less than four months post-injury and the second almost 12 months post-injury. In his first report Dr Wallace noted that the plaintiff no longer required analgesia and he also reported (page 3) that the plaintiff denied any prior history of back pain. In the second report Dr Wallace expressed the opinion the plaintiff was suffering from a chronic low back syndrome that he attributed to the incident. He said that the plaintiff’s condition was stable and stationery and he expressed the opinion that he was suffering from a 10% whole person impairment. In evidence Dr Wallace agreed that that assessment equated to a 5% to 8% assessment on the standard adopted by the AMA 5th Edition. In his third report, Dr Wallace expressed the view that there was, according to the plaintiff’s reporting, demonstrable adverse affects upon his employability. He expressed the opinion that the plaintiff would not be able to work taking into consideration his training, education and experience to a retirement age of 67. In the last report Dr Wallace noted that there was no past history of any back pain and in evidence he expressed the opinion that the plaintiff was essentially unemployable, that he was fit only for sedentary or supervisory duties but that he had no relevant training experience or work skills so that in his opinion the plaintiff was essentially unemployable. When pressed in cross-examination, Dr Wallace expressed the view that if the plaintiff had a prior history of back pain post-1985 and prior to the subsequent incident then his opinion might be that the plaintiff had aggravated an underlying condition and that perhaps his disability was attributable as to 50% a pre-existing disease and 50% effects of the accident.
 The difficulty is that all three doctors reported upon the assumption that the plaintiff did not have any symptoms between 1985 and the accident. I have found to the contrary. This creates some difficulties ultimately in the assessment of damages because that will have to be made on a basis not consistent with the assumptions of fact made by the experts when they reported. On a question of the orthopaedic injury there is no doubt, indeed it is conceded by the defendants, that the plaintiff did suffer injury. The plaintiff’s account, to the extent to which I accept him (and in some respects he is corroborated by witnesses) is that he has suffered pain of a greater intensity and greater frequency than he suffered before the accident. Nevertheless on the findings of fact that I have made he had a significant back condition described as a multi level degenerative back disease which was symptomatic at the time of the accident and probably progressive. On the view of the evidence I take I consider I am entitled to approach the assessment of damages on a basis that the proportion of the plaintiff’s post-accident impairment assessed by the doctors attributable to the pre-existing back disease was greater than the doctors considered and it was likely that, by the time of the accident or shortly after, he would have begun to suffer restrictions in working in employment of the nature he described.
 Dr Michael Likely, psychiatrist, was called by the plaintiff. Dr Michael Leong, psychiatrist gave evidence in the defendant's case. Dr Likely noted a deterioration in the plaintiff's psychiatric health between the first report which was done in June 2007 and his second report in December 2010. At trial his diagnosis was that the plaintiff suffered from a major depressive disorder (secondary to chronic pain and functional incapacity) with alcohol abuse as a co-morbid disorder to the major depressive disorder. In his second report he also ventured the opinion that the plaintiff had become involved in a physical altercation with a fellow co-worker as a result of his depressive disorder related to symptoms of anger and irritability. Ultimately Dr Leong's opinion as reflected in his report of December 2010 was that the plaintiff suffered alcohol abuse and dependence and he was of the opinion that the plaintiff did not suffer from a major depressive disorder.
 Dr Leong noted in his reports that between his first report in December 2007 and his second report in December 2010, the plaintiff's consumption of alcohol had increased from a reported eight standard drinks per day to a reported sixteen standards drink per day. It is possible that Dr Leong's records of what the defendant told him about his drinking patterns in late 2010 is inaccurate. Certainly the defendant denied the daily consumption of that order although he admitted to heavy drinking on weekends as a I have indicated earlier. Dr Leong's second report evidenced at least one error in reconciliation of information given to him at the time of his first report. In his first report, Dr Leong notes the plaintiff's prior drink driving history but he records the plaintiff denying a drink driving history in the 2010 report.
 In essence, Dr Likely's conclusions could be described as follows - that the plaintiff has sustained an injury causing him pain and disability, that this condition and its consequences for him have caused him to become depressed, and that as a result he has turned to alcohol. Once again, it is apparent that Dr Likely's opinion may have been based on incomplete data. He was unaware of the plaintiff's drinking patterns before the accident, he assumed that his prior behaviour was not abnormal. Quite reasonably, Dr Likely conceded that his opinion and his conclusions were reliant upon the accuracy or reliability of the plaintiff's account. Somewhat surprisingly, Dr Likely admitted that he did not ask the plaintiff about his prior drinking pattern nor did he keep notes of the questions and answers when interviewing the plaintiff. When confronted with the plaintiff's prior history of drink driving charges, he conceded that that might be evidence suggestive of difficulties with alcohol and might suggest functional impairment or possibly alcohol abuse.
 Without intending to be critical of either doctor, it seems to me that both have proceeded upon assumptions or a history that does not entirely accord with the evidence as I have found it to be. In my view it seems that Dr Leong appears to have assumed that the plaintiff abuses alcohol to a much greater extent than he does or has in recent years and Dr Likely may have assumed that alcohol played less of a part of the plaintiff's life pre-accident than it did.
 In view of the plaintiff's long history as an adult of working in hotels, of his history of drink driving offences and of the evidence he gave or admitted to from time to time of his routine alcohol consumption before the accident, I find that it is likely that before the accident the plaintiff had formed habits that meant that routine and not insignificant consumption of alcohol was a part of his life. In those circumstances the increased consumption of alcohol that is apparent in recent years can be attributed partly to the habits of life (and would have happened anyway) and also to the circumstance that the plaintiff may have found that he has more time on his hands since his injury as he said. Further, I find that the frustrations the plaintiff has experienced because of his pain and disability may also have partly contributed to his increased use of alcohol. Further, although I am not prepared to find that the plaintiff suffers from the psychiatric impairment diagnosed by Dr Likely, I do find that the plaintiff's pain and suffering and loss of amenities of life have been affected adversely because of his frustrations and unhappiness caused by the physical effects of the injury, the effects upon his capacity to earn income and the restrictions imposed upon him in enjoying life.
ASSESSMENT OF DAMAGES
 On the view I take of the evidence, there is little doubt that the plaintiff has suffered physically and also emotionally since the accident. The assessment of damages however must reflect the extent to which that suffering was caused or contributed to by the subject accident after making due allowance for the extent to which his suffering may be attributable to his pre-accident health and the hypothetical progression or deterioration of his physical and emotional health in the circumstances of his pre-accident condition as I find it to be. In submissions before me, defence counsel contended that the appropriate award for general damages for pain and suffering and loss of the amenities of life would be $40,000. The plaintiff's counsel contended for an assessment at $70,000. Both contended for widely divergent findings with respect to the facts. In my assessment, an award of $50,000 is called for.
 In addition the plaintiff will be entitled to interest assessed at 2% for 6.3 years on $25,000 reflecting his past pain and suffering. That calculation is $3,150. With respect to special damages, I am prepared to accept the plaintiff's contention of his average expenditure upon analgesics and other medications. At times, his reporting to doctors suggest that he has not required medication but on the view I take, there have been times when he would have required and taken painkillers. In the circumstances, special damages are awarded at $7,609.99.
 I accept that the plaintiff is out of pocket for special damages paid by himself in the amount of $3,470. Interest at 5% for 6.3 years is $1,093.05.
 Fox v Wood (tax on Workers' Compensation benefits) was in the amount of $2,176.
 Past economic loss was vigorously debated before me. It was not contested that at the time of the accident the plaintiff was earning approximately $1,400 per week. Nor was it seriously contested that the potential earnings for the plaintiff had he stayed in substantially the same position since the accident, could have been in the order of or at the rate of between $1,500 and $1,600 net per week. I do not overlook that the assessment of past economic loss involves an assessment of a hypothetical. Indeed there are at least two hypothetical issues. One involves an assessment of what would have been the plaintiff's work history and capacity to continue working in the industry as a truck driver but for the accident involving an assessment of the significant back condition that was to some extent symptomatic and probably progressive as I find the facts. The other hypothetical is whether the plaintiff would have been able to continue to work and obtain promotions such as to a Pit Supervisor. As to the latter, the defendant did not challenge the plaintiff when he stated that this was his ambition. The defendant did not lead any evidence to suggest that such positions were so rare that it was unlikely the plaintiff could have obtained such a position. Nor was any evidence lead nor was it suggested to the plaintiff that he was ill-equipped by reason of his natural abilities, training and background to realistically aspire to such a position. On the other hand, the plaintiff gave no evidence of the relative availability of that kind of job. The evidence suggests that a Pit Supervisor might potentially earn as much as $2,000 net per week.
 On the view I take of it, there was a very small chance that the plaintiff would by now, absent the accident, have obtained a promotion to Pit Supervisor. It is difficult to assess the value of that chance in light of the evidence. It is slight but not so negligible that it can be totally ignored. Turning to the question of whether the plaintiff would have been able to continue in employment as a truck driver with the defendant or in a similar capacity absent the accident, I find that scenario is probable but not overwhelming. In other words, it is more likely than not that even though the plaintiff's back condition was symptomatic, as I find it to be, at the time of the accident, the likelihood is that he would have been able to continue in employment for the last 6.3 years. This finding of likelihood however does not equate to a certainty in my mind. There is a significant chance that the plaintiff would have been compromised in his capacity to work some time after the incident and before now resulting in a loss of capacity to work and income.
 In submissions before me, the plaintiff contended that his actual earnings post-accident were of the order of $328,000. The defendant did not necessarily accept that figure because there was some doubt as to the plaintiff's recent earnings and it is possible that his past earnings were a little higher. In considering the question of past economic loss on the view I take it is reasonable to approach an assessment considering potential earnings at $1,500 net per week and also, by comparison, earnings at $1,600 net per week. A calculation of past earnings at those rates for 6.3 years and then discounting that calculation by 80% reveals, after deducting a sum for past economic loss broadly as suggested by plaintiff's counsel, provides a range of between $60,000 and $85,000.
 In the circumstances I award $70,000 for past economic loss. The plaintiff is entitled to interest on approximately $63,350.29 (after allowance for Workers' Compensation benefits) at 5% for 6.3 years which is $19,955.34. In addition, the plaintiff is entitled to compensation for lost past superannuation benefits at 9% which is $6,300.
 Concerning future economic loss, the parties again were a long way apart. The plaintiff conceded a post accident residual earning capacity at $800 net per week. Although it was contended on his behalf that that capacity should only be assessed over fifteen years (to take account of demonstrated pre-accident condition) it is worthwhile noting that a calculation taken out to aged 67 discounted at 5% provides a figure of $533,120. Similar calculations based upon notional earnings at $1,500 and $2,000 provide figures at $999,600 and $1,332,800 respectively.
 The above calculations are theoretical. Again I have to make a hypothetical assessment of the plaintiff's likely capacity to work now had he not sustained the injury at work. On the view I take of the medical evidence reassessed in light of the findings I have made about the plaintiff's pre-accident condition the view I take is that it is more likely than not that by now the plaintiff would be physically in much the same condition as he now presents. With respect to the plaintiff's emotional issues and also his use of alcohol I find that because his physical condition would not have deteriorated so suddenly but would have done so progressively over the last 6.3 years it is likely that these issues would not loom as large a problem for the plaintiff now. However, on the view of the probabilities these issues would have begun to emerge because of the developing problems with the plaintiff's back and consequently into the future would, in all likelihood, be a problem for him of the same order.
 Ultimately I have determined to award as a component for the loss of earning capacity into the future a sum of $200,000. This figure reflects a notional loss of earning capacity for a notional working life to age 67 at approximately $300 net per week. The view I take of the facts this sum adequately compensates the plaintiff for the loss of the chance that into the future he would have been able to work more productively than he can and that this loss is attributable to the effects of the injury.
 The plaintiff is entitled to compensation for the loss of future superannuation entitlements calculated at 9% which is $18,000. In addition, the plaintiff is entitled to an award to reflect the costs of future pharmaceuticals in so far as they are causally related to the accident. The defendant contended for an allowance of $2,065. On the view I take that is reasonable.
THE EX GRATIA PAYMENT
 In addresses defendant's counsel went to some trouble to discuss this issue. This arose because of the way in which the plaintiff appeared to categorise the payment in his oral evidence. In my opinion, it is safer to consider this payment in light of the documentary evidence with the consequence that the ex gratia termination payment was causally not linked to the plaintiff's damages. Therefore no deduction should be made from the plaintiff's award of damages for his receipt of this sum. In passing I note that that was the preferred position of the defendant.
SUMMARY AND ORDERS
 The total of the heads of damages is $380,349.38. There are four defendants and the first defendant was the employer. The plaintiff is obliged to refund from his award of damages Workers' Compensation benefits in the amount of $12,900.25. Accordingly, the judgment entered for the first defendant should be reduced by the amount of the refund to $367,449.13.
 Accordingly, I would order that -
1.There be judgment for the plaintiff against the first defendant in the sum of $367,449.13.
2.There be judgment for the plaintiff against each of the second, third and fourth defendants in the sum of $380,349.38.
 I invite submissions as to costs.
 He being approximately 6 ft 1 inch tall. See further T1-34 l 28 & l 53-60.
 T 1-35 l 1-8.
 T 1-34 l 40.
 As to the circumstances of the incident see the plaintiff's evidence at T 1-35 and as to his description of what he felt see T 1-36 l 24-29.
 See amended statement of claim at paragraph 23 & amended defence at paragraph 21(a).
 Transcript 1-33 to 1-34.
 See for example his evidence under cross-examination at T2-74 l 40 and the doctor's certificate dated 23/8/05, part of Exhibit 22 at pg 738.
 T 1-28 l 55
 T1-29 l 13
 T1-29 l 55
 T 1-29 l 35-53
 T 1-31 l 15-20
 See T 1-30
 T 1-31 l 1-10; and T1-42 L40 to T1-43 L35.
 T 1-31 l 45-55
 See specifically T 1-42 l 7-39 and T 1-64 l 15-25
 See generally exhibit 10 (the plaintiff's CV & Certificates) and his evidence at T 1-64 l 15-25 and T 1-64 l 35 - T1-66 l 40.
 T 1-68 l 1.
 T 1-67 l 60.
 T 1-32 l 10.
 T1-32 l 24-45.
 See for example T1-64 l 1-10
 See generally his evidence at T 1-52 l 50 to T1-54 l 1
 See particularly evidence at T1-52 l 55 to T1-53 l 5.
 See T3-49 l 50
 See T1-61 l 25.
 Exhibit 9.
 See T 1-45 l 30-55.
 See generally his evidence at T1-45 l 60 to T1-46 l 25.
 At T 1-49 l 45.
 T 1-49 l 50-60.
 T 1-49 l 60 to T 1-50 l 1.
 T 1-50.
 See T1-53.
 T 1-54 l 3 to T1-55 l 35.
 T 1-55 l 40-57.
 See T 1-56.
 T1-57 l 3 to T 1-58 l 20
 See T 1-59 particularly at l 35.
 T 1-59 l 41 to T1-60 l 20.
 See T 1-73 l 25-30 (the transcript page numbering is incorrect in the transcript). See further T 3-5 l 55.
 T 1-73 l 40-50.
 See the evidence of Dr Dawes especially at T 3-19 l 15-34.
 See Exhibit 24 and the evidence at T 2-100 l 10-38.
 See Exhibit 28 T 3-9 l 10-30 (arguably).
 See Exhibit 37 and the evidence at T3-11 l 50 – T3-13 l 5.
 See Exhibit 29.
 See Exhibit 30 and the evidence at T3-26 – T3-27.
 See Exhibit 36 and the evidence at T3-27 l 45 – T3-32, especially at T3-31 l 25 & at l 60.
 See Exhibit 31 and the evidence at T3-34 l 28.
 See Exhibit 32 at T3-35 l 17 to T3-38 l 3.
 See Exhibit 33 and the evidence at T3-38 l 40 to T3-42 l 10.
 See T1-77 l 40-50.
 See T1-77 l 20-30 and T1-78 l 35.
 T1-80 l 18.
 Dr Wallace’s clinical notes of the subject consultation can be seen at Exhibit 22 at pages 684 & 685.
 See Exhibit 22 at page 727.
 See T3-68 l 50 and T3-69 l 20 – l 40.
 See Exhibit 22 at page 705.****
 See T1-81 l 10-20.
 See T1-81 l 40 – T1-82 l 5.
 See T1-82.
 See generally T1-83 l 30 – T1-84 l 25.
 See T2-92 l 55 and also T2-94 l 10-30.
 See Exhibit 17.
 See T2-91 l 30-40.
 See Exhibit 24.
 See T1-61 l 25.
 See T2-70 l 10.
 Example T1-61 l 30-40 and T1-63 l 40-50.
 See T3-50 l 48 to T3-51 l 20.
 See T3-98 l 40-45.
 See Exhibit 22 at page 749.
 See T1-84 l 30 to T1-85 l 30.
 Income tax returns for a number of years were tendered as a bundle at Exhibit 15.
 Consider the evidence given at T1-86 l 11 to T1-87 l 30; T2-54 to T2-57; and T2-58.
 See T2-59 l 20 – T2-59 l 50.
 T3-110 l 55 – T3-111 l 12.
 T3-56 l 1-5.
 T3-62 l 48.
 T3-63 l 1-10.
 T3-63 l 45-60.
 T1-22 – T1-63 l 10.
 The report of the CT scan forms parts of Exhibit 22 and is found at page 702 in that bundle. Strictly speaking the doctors do not appear to have the original scan film but relied upon the findings as reported in the documentary exhibit.
 T2-19 l 55 – T2-21 l 23.
 See Exhibits 18 and 19.
 See Exhibit 18 at page 11.
 See Exhibit 19 at page 13.
 See Exhibit 20 and 21.
 T2-49 l 50 – T2-50 l 40.
 Exhibit 21
 See Exhibits 1, 2, 3 and 4.
 Dr Wallace confirmed that in evidence, see T2-12 l 50 – T2-17 l 15.
 T2-24 l 36-39.
 He was possibly then relying upon what he had been told post-accident, see Exhibit 1.
 See his evidence at T2-17 l 25 & T2-17 l 30.
 T2-24 l 40-60.
 Save perhaps for one comment by Dr McPhee at T2-51 l 30-50 that if the Plaintiff suffered more symptoms than he admitted to then his estimate of within 10 years was more likely.
 The evidence of Dr McPhee suggests a progressive condition.
 His reports are exhibit 5 and exhibit 6.
 His reports are exhibits 16 and 17.
 See exhibit 17 at page 14.
 See exhibit 17 at page 17.
 See exhibit 17 at page 9.
 T2-65 line 56 - T2-66 line 8.
 T2-67 line 55.
 T2-64 line 56.
 T2-68 line 25.
 T2-70 line 37.
 T2-68 line 40-50.
 T2-70 line 50-60.
 Indeed on a reading of the written outlines argument for the respective parties I wondered whether I was simultaneously in two parallel universes.
 See for example exhibits 11, 12 and 14.
 See for example exhibit 13 and compare with the earnings as reflected in exhibit 9.
 See Exhibit 13.
 Consider Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
 See exhibit 9.
 The allowance of 80% in my view fairly reflects the probabilities of the plaintiff being able to work as a truck driver for 6.3 years in the past augmented slightly by the chance that he may have obtained a promotion to a job such as a Pit Supervisor.
 In argument plaintiff’s counsel suggested this should be halved if allowance were made for the risk of being refused employment were he to tell the truth about his back condition!
 See exhibits 25, 26 and 27.
- Published Case Name:
Geary v REJV Services Pty Ltd & Ors
- Shortened Case Name:
Geary v REJV Services Pty Ltd
 QSC 419
21 Dec 2011
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 419||21 Dec 2011||-|
|Appeal Determined (QCA)|| QCA 238||04 Sep 2012||-|