Gonda v Residential Foundation Systems (RFS) Pty Ltd
[1998] QDC 5
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- Gonda v Residential Foundation Systems (RFS) Pty Ltd[1998] QDC 5
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Gonda v Residential Foundation Systems (RFS) Pty Ltd[1998] QDC 5
Gonda v Residential Foundation Systems (RFS) Pty Ltd[1998] QDC 5
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No. 1040 of 1996 |
BETWEEN:
ADRIAN MAXIM GONDA | Plaintiff |
AND:
RESIDENTIAL FOUNDATION SYSTEMS (RFS) PTY LTD | Defendant |
REASONS FOR JUDGMENT - McGILL D.C.J.
Delivered the 6th day of February 1998
By this action the plaintiff claims damages for personal injury suffered by him in a motor vehicle accident on 22 October 1994 when the vehicle which he was driving collided with an oncoming vehicle owned by the first defendant which turned right across his path. Liability is admitted, and the matter in issue is the assessment of the damages suffered by the plaintiff as a consequence of this accident. The plaintiff had been involved previously in a traffic accident while riding a motor cycle in January 1991. It is therefore necessary to assess damages to compensate the plaintiff for the extent to which his physical condition has been made worse by the accident in 1994: Nilon v. Bezzina [1988] 2 Qd R 420.
The plaintiff was born on 23 August 1967 (p.21), was at school until age 15, and then had a number of jobs before taking up plastering at age 19; his employment since that age has mostly been as a plasterer. In 1986 he was involved in a motor cycle accident at the Gold Coast as a result of which he suffered a dislocated shoulder, but as far as he was aware this healed without any lasting difficulty: p.24. In 1992 he married a woman with whom he had previously had a de facto relationship; they have three children: p.11.
In 1991 while riding a motor cycle on a property he rode into a barbed wire gate, and then struck a star picket, and suffered various injuries, particularly an injury to the neck: p.25. He was off work until late 1993 when he started unpaid work, and he resumed paid employment as a plasterer in May 1994: p. 10, 117. He was at that time still getting some pain in his right arm, but he was able to work notwithstanding this, because he is left handed, because he modified his work processes to minimize activities with his right arm which caused difficulty, and because he put up with such pain as he suffered.
In the 1994 accident the plaintiff's vehicle was travelling at some speed when it collided with the defendant's truck: p. 109. The plaintiff was not knocked out in the collision: p. 100. An ambulance attended and took the plaintiff to the Logan hospital. The ambulance bearer noted that the plaintiff had multiple abrasions and lacerations, but no evidence of cervical injury: Exhibit 1. The plaintiff was able to walk, and evidently told the ambulance bearer of an earlier right shoulder injury. The plaintiff refused pain killing medication in the ambulance: p.100.
On arrival at the Logan hospital the plaintiff complained of right shoulder pain, neck pain, chest pain and pain in both knees: Exhibit 2. He was given some tablets and told to attend his local doctor. He was diagnosed as having sustained soft tissue injuries to his chest and neck, and an aggravation of a chronic right shoulder injury.
The plaintiff attended his GP Dr Stephens, on 24 October 1994. He was found on examination to have bruising to the knees, a seatbelt abrasion, low left sided lumbar pain but with a full range of lumbar movement, and pain in both ankles and the right wrist but with a full range of movement. On 17 November 1994 he attended complaining of pain in the neck and both ankles; again he had full range of movement. On 1 December 1994 he reported to Dr Stephens that the knee and ankles were improving satisfactorily: Exhibit 11. Dr Stephens was called and said that the plaintiff had mainly soft tissue injuries: p.91. Dr Stephens did not have his practice notes available, but recalled that after the previous accident with the motor cycle the plaintiff had a severe type of pain in his neck and right shoulder: p.93.
The plaintiff was seen for the purposes of a report by Dr Gillett, an orthopaedic surgeon, on 6 November 1995: Exhibit 6. The report records a wide range of complaints; he thought the plaintiff had suffered an aggravation of the previous musculo-ligamentous injury to the right shoulder and cervical spine, and a musculo-ligamentous injury to the lumbosacral spine, together with general cuts and abrasions and a soft tissue injury to the wist and forearms. He thought that there was retro patellar damage to both knees, particularly the right knee, which would case some permanent loss of efficient function of the legs, 5% of the left and 7% of the right. In June 1997 Dr Gillett produced a further report expressing the view that the events of 1994 produced a temporary aggravation of the previous problem, and that the current level of symptoms in the neck related to degenerative changes in the cervical spine as a sequence of the effects of the accident in 1991: Exhibit 7. In oral evidence Dr Gillett confirmed that in November 1995 the plaintiff had not complained of any left sided problems (p.38) and expressed the view that if the first complaint of a problem on the left side was not until March 1996 there was probably no correlation between a left sided protrusion of the C6-7 disc demonstrated on MRI in July 1996 (Exhibit 9) and the motor vehicle accident in October 1994: p.40. He also expressed the view that the problems on the right side had been made a little worse, or been aggravated to the extent of perhaps two years, as a result of the 1994 accident: p.41. He thought the problem with the plaintiff's knees would disadvantage him in certain aspects of plastering: p.43. He thought the plaintiff had significant degeneration of the neck which probably related to the 1991 accident: p.44.
The plaintiff was seen by Dr Martin, an orthopaedic surgeon on 17 January 1997 for the purposes of a report at the instance of the defendant: Exhibit 10. Dr Martin found that there was no muscle wasting in the region of the neck or shoulder girdle, that circumference of each forearm was the same, and the circumference of the right arm above the elbow was slightly greater than the left. There was substantial apparent restrictions to cervical spine movement, and a limitation in deliberate elevation of right arm, although at other times there was full active and passive movement of the right arm to the shoulder. X-rays showed significant degenerative narrowing of the C5-6 disc space and less significant narrowing of the C6-7 disc space. Dr Martin did not think the plaintiff's complaints could be correlated to any identifiable pathology; he thought his presentation somewhat bizarre, with obvious attempts to exaggerate. He thought he was physically capable of working as a plasterer. Dr Martin did not examine either knee (p.71) and so was not in a position to confirm or contradict the evidence of Dr Gillett.
I also received evidence from a neurosurgeon Dr Weidmann. He examined the plaintiff on 4 November 1993, for the purposes of preparing a report on the consequences of the injury suffered in the accident in 1991: Exhibit 4. At that time the plaintiff was complaining of severe right sided neck pain radiating into the shoulder, which seemed to be steadily becoming worse. At times the muscles went into spasm and the pain became very severe, but there was some pain virtually all the time. He was at that time taking significant medication for the pain. Dr Weidmann in that report said that he could not account for the severity of the symptoms, that the disability was largely subjective, and from a neurological standpoint he would have difficulty in finding him unfit for any employment. In a further report written in 1997, but without the benefit of a further examination, Dr Weidmann noted that in 1991 there were marked psychological problems magnifying the plaintiff's disability: Exhibit 5. In that report he suggested that the C6-7 disc lesion demonstrated by the MRI was probably the result of the 1994 injury. In his oral evidence Dr Weidmann expressed the view that there was a degree of exaggeration and overstatement in the plaintiff's presentation: p.53. Dr Weidmann thought that if neither of these injuries had occurred the plaintiff would probably have developed neck troubles anyway at some stage in his life, and the affect of the second accident was to aggravate his neck condition by perhaps ten years: p.54. Under cross-examination he conceded that if there was no complaint of left sided pain until March 1996 that made the relationship between the 1994 accident and the C6-7 disc lesion more doubtful, and there could then be all sorts of explanations for the state of the neck: p.52.
There is also evidence from Dr Petersen, who had been the plaintiff's general practitioner since December 1995: p.144. Dr Petersen had seen the plaintiff from time to time since then with complaints about pain in the neck and on the right hand side, but the first complaint to him of pain in the left hand side was during a visit on 25 March 1996, when the pain was said to have been present for forty-eight hours: p.146. This was the first record of left sided pain, and the first that Dr Petersen could recall. Dr Petersen had found increased tension and tenderness in the neck muscles on examination (p.150) and his impression was that the pain was real and the signs were real. He felt that overall the condition was improving although there were flare-ups at times. Recently the plaintiff had complained about pain on both sides.
I have not referred to all the details of the plaintiff's various complaints of the doctors from time to time; there are a number of inconsistencies between them, and between what was told to doctors and the plaintiff's evidence in court. The plaintiff himself attributed this inconsistency to incorrect recording by the doctors (p.27), which he was inclined to attribute to what he felt was some hostility from the doctors, and a reluctance to come to grips with his various problems: p.85. For example he was quite impatient with the treatment he received at the Logan hospital (p.86) after a further motor vehicle accident in October 1996, when he rolled his car and suffered increased problems in the neck: p.85. Dr Petersen thought the plaintiff was getting very intensely upset and frustrated when he got exacerbation of his pain: Exhibit 23.
Although the first recorded complaint of pain on the left side was in March 1996 with Dr Petersen (p. 146) the plaintiff had on 29 May 1996 attended the neurology outpatients clinic at the Logan Hospital where he said that about four months before he had developed some tingling in the C6 dermatome distribution on the left which had persisted: Exhibit 3. That is not entirely consistent with problems on the left from a disc herniation of the C6-7 level, although the inconsistency is perhaps not significant: see p.45. It does seem however that this recorded complaint is inconsistent with the plaintiff's having had a good deal of pain on the left hand side prior to that time, which he just did not complain about to his GP prior to March 1996, which was the possibility explored in cross-examination of Dr Petersen. On the other hand the plaintiff's wife said that he began to complain of pain on the left side in late 1994, and kept complaining about that pain in 1995: p. 129. The plaintiff said that immediately after the accident in October 1994 he was generally sore all over (p.110) but after the accident in October 1994 he began to get muscle spasm in the muscle at the back of the left shoulder (p. 111), and early in 1995 he was starting to experience pain down his left arm: p.110. He said he was getting a tingling sensation in his left hand in about April or May 1995: p.112.
The plaintiff now has continuing pain in the neck and shoulders and arms, continuing pain in both knees, worse in the right knee which gets more locking in it (p.112) a little bit of pain in the right ankle, and some pain in the right wrist when he uses it. He tried to go back to work after the accident and did two plastering jobs, one in December 1994 and one in January 1995, but he had great difficulty in coping with these and came home exhausted after work: p. 125. The plaintiff had not worked since then. The plaintiff spends most of the day lying in a bed supported by pillows watching TV: p. 122. He can dress himself in normal clothes, apart from lace-up shoes, and can shower himself, but does not do any housework or food preparation or gardening: p. 129. His father-in-law mows the lawn and keeps the garden in order. He cannot engage in a variety of recreational activities: p. 19. His capacity to react with his children has been reduced: p.13. The plaintiff's relationship with his wife has suffered somewhat; they were separated during most of 1995 (p. 125) and there was a further separation from September 1996 until May 1997: p.127. It appears however that even during periods of separation she had seen him on a regular basis, to help him with things that he could not do such as washing and cleaning: p. 126.
My overall impression is that plaintiff is someone who has reacted badly to the various problems that he has had; he does not seem to be past the “stop if it hurts” stage of pain management, and does appear to make much of his various problems. There does not seem to me to be anything that would be so disabling as to require the plaintiff to spend most of the day lying in bed. Yet he does not use a cervical collar, except occasionally, having felt that it had served its purpose: p.113. He struck me as someone who complained a lot, yet I had some difficulty in obtaining a clear and coherent account of his symptoms. If he behaved in the same way when seeing various doctors, it is perhaps not surprising that they were not always accurate in recording details of what he told them, or in coming to grips entirely with his symptoms. Nevertheless, it is I think significant that a number of doctors have thought there was some explanation other than a physical one for the plaintiff's various complaints, and that Dr Martin thought there was some artificiality and exaggeration about the presentation of symptoms. I also find it somewhat suspicious that the plaintiff's condition resulting from the first accident was reported in November 1993 to Dr Weidmann as severe right sided neck pain which was steadily becoming worse notwithstanding substantial medication which he had been taking for some time (p.4), yet he claimed that by October 1994 there was only intermittent right sided pain: p.107. This he attributed to the effects of the medication after November 1993: p.115. I accept the evidence of Dr Weidmann that the plaintiff has coped poorly with pain: Exhibit 5.
One crucial issue is the question of when the plaintiff developed pain in the left shoulder and arm, and whether the association between these and the accident suggested by Dr Weidmann in Exhibit 5 is correct. If the plaintiff was having significant pain in the left shoulder from soon after the accident, extending it to the left arm early in 1995, it seems quite surprising that this did not come to the attention of his general practitioner, and that the records of the Logan Hospital (which led to Exhibit 3) although indicating that there was pain in both shoulders in May 1996, referred to a history of pain extending back any length of time only in the right shoulder. Although the plaintiff's wife impressed me as an honest witness, her evidence of pain on the left side associated with the plaintiff's return to work in late 1994 could be explained simply by the feet that he was suddenly putting his left arm to active use after a considerable period without work, in circumstances where he was apparently struggling to do the work anyway and no doubt trying to favour his right arm. This account is not really consistent with the version given by the plaintiff, who did not relate the pain in the left arm to the time when he started work. In these circumstances I am not prepared to accept the plaintiff's evidence that there were problems on the left side from soon after the accident; on the contrary I think that those problems arose sometime later, and I accept Dr Gillett's evidence that the problems on the left side are not associated with the accident, but are a consequence of degeneration, which may be itself a consequence of the 1991 accident. I also accept Dr Gillett's evidence as to the disability in the knees.
I think it is also reasonable to conclude that the plaintiff's problems on the right side, and to some extent problems to the neck, have been aggravated by the 1994 accident. It is difficult to assess how serious this aggravation was; Dr Weidmann thought ten years whereas Dr Gillett suggested an acceleration of two years. It appears that by January 1997 there was significant degeneration in the cervical spine (Exhibit 10) and it seems unlikely that had arisen as a consequence of the 1994 accident. The plaintiff's neck was aggravated anyway by the accident in October 1996 when he rolled his car, and it may be that he would have had the same problems associated with the neck anyway after this accident even if the 1994 accident had not occurred. Even if it did not arise then, I think it is likely that sooner or later the neck problems would have arisen and caused much the same difficulties as he is having now anyway. Taking all the evidence into account I think it is reasonable to compensate the plaintiff on the basis of acceleration of five years in his problems associated with the neck and the right shoulder. The plaintiff is also entitled to compensation in respect of the continuing problems with the knees, and the other consequences of the 1994 accident, which I think in fact were quite minor. It was argued that the plaintiff was fairly disabled by the first accident anyway, but I think that this is an argument which cuts both ways; to some extent the extra difficulties are worse because the plaintiff already has other problems. In all the circumstances I will assess damages for pain and suffering and loss of amenities in the sum of $18,000, of which I attribute $12,000 to past loss.
With regard to past economic loss, the plaintiff had returned to some work as a plasterer in May 1994, and I think it is reasonable to conclude that his ability to do this work ceased as a result of this accident. It appears from the plaintiff's 1994 income tax return that he earned $2,623 from Offwood Construction Services in that financial year (Exhibit 19) and it appears in the 1995 return that the plaintiff earned $6,832 gross from the same employer between 27 July 1994 and 16 September 1994. He was then employed by Derite Pty Ltd, a company in the Boral group, from 20 September 1994 until the date of the accident earning $513.40 gross or $395.70 nett per week: Exhibit 14. This suggests a loss of earning capacity of about $400 per week, and the question becomes one of when the plaintiff would have probably ceased work anyway as a result of the other difficulties. If the problems with the left side are not causally related to the 1994 accident then they would have arisen anyway. The plaintiff already had some difficulties in his right side, and was continuing to work only because he was left handed and was able to rearrange his work pattern to some extent. I think he was probably taking most of the load in his left arm and shoulder prior to the accident in 1994, and it follows that he would probably have been unable to continue with the work once he developed symptoms on the left side, which in the light of the evidence of Dr Gillett he probably would have developed anyway. There is also some possibility, which should be allowed for, that the plaintiff might have continued to work longer even if these problems had arisen, because he might not have been as bad as he became. On the whole I do not think much allowance should be made for that element, but it is probably reasonable to allow something like three years at $400 per week. It may be that the plaintiff would not have been in employment for the whole of that time had the accident not occurred; on the other hand it may be that the plaintiff would have found other employment for part of the time when he would have earned at a rate of more than $400 per week nett. Bearing in mind that this is not really a calculated loss, I think it appropriate to make some rounding off and I will allow $60,000 for past economic loss. It may be that in the light of the plaintiff's employment history that figure is a little generous, but it takes into account a small allowance for the possibility that but for the accident there would have been some future earning capacity which has been lost to the plaintiff as a result of that accident. In other words it includes some small amount for the loss of the chance of future economic loss. I do not propose to allow any separate amount for future economic loss.
Special damages are $53.56 paid by the Workers' Compensation Board, $392.80 owing to the QATB, and a medicare refund for which I will allow $250, lawn mowing expenses of $5 per week in respect of which I will allow $750, and travelling and other expenses for which I will allow another $250. There is also a Fox v. Wood component of $432.70: p.17. There was a claim for gratuitous care for which the agreed rate is $9.50 per hour (p.151). Again this is very difficult to assess, partly because I think the plaintiff has been over-protective of himself, and has refrained from doing things that he was in fact capable of doing, and partly because it is difficult to know what he would have been capable of doing anyway if this particular accident had not happened. His housework had been reduced to some extent by the 1991 accident: p.12, 101. I think on the whole the appropriate course is to allow seven hours a week as an average figure over the whole period up until now, but an amount of only $2,500 for future care, on the basis that the relevant compensible extra care ought to taper off fairly soon. This calculates to $13,938.00.
There was evidence from Dr Gillett that the plaintiff's knees could be assisted by further surgery at a cost of $1,800 each: Exhibit 6. The knee injuries relate to this accident and I think this is reasonable.
Summary
| Pain and suffering and loss of amenities | $18,000.00 |
| Interest on $12,000 at 2% for 3.3 years | $ 792.00 |
| Economic loss | $60,000.00 |
| Interest on $58,175.50 at 5% for 3.3 years | $9,599.00 |
| Special damages | $1,696.36 |
| Interest on $1,000 at 5% for 3.3 years | $ 165.00 |
| Fox v. Wood | $ 432.70 |
| Past gratuitous care | $11,438.00 |
| Interest at 2% for 3.3 years | $ 755.00 |
| Future gratuitous care | $ 2,500.00 |
| Future surgery to knees | $ 3,600.00 |
|
| $108,978.06 |
I therefore give judgment for the plaintiff against the defendants for $97,667.06 together with $11,311 for interest.
Counsel for Plaintiff | J.W. Lee |
Counsel for Defendants | P.C.P. Munro |
Solicitors for Plaintiff | Goodfellow and Scott |
Solicitors for Defendants | Bradley and Co. |
Hearing dates: | 31 July, 1 August 1997 |