Wootton v Smith[1999] QDC 217

Before HALL D.C.J.

BETWEEN:

AND:

PLAINT No. 395 OF 1995

BETWEEN

MICHAEL ALLEN WOOTTON

AND:

REASONS FOR JUDGMENT - HALL D.C.J.

(Delivered the 19th day of April 1999)

The plaintiff seeks damages for personal injuries resulting from two separate incidents. On 23 March 1991 he was involved in a motor vehicle collision in respect of which liability has been agreed on the basis that the plaintiff accept 10% of the fault. (Action No: 77 of 1994). Subsequently, on 22 September 1992 he sustained injuries in the course of his employment at Royal Pines Resort and alleges his employer, the defendant in Action No: 395 of 1995 was negligent. The plaintiff was emploved as a groundsman at the Royal Pines Golf Course and Resort and on the day in question had been instructed to undertake brush cutting on an embankment adjacent to the golf course and resort located at Ross Street near the bridge crossing the Nerang River to Carrara. He started work at approximately 6.15am and was accompanied by another co-worker who worked on the flat top surface of the embankment whilst the plaintiff was required to cut the sloping section of the embankment. The vegetation on the embankment was a mixture of grass and weeds 1 to 1.5 metres high and had been sprayed with a weed eradicator approximately one month prior to the relevant date. Out of concern mostly for the presence of snakes which had been observed in that area the plaintiff had suggested to his supervisor that the embankment area should be burnt off but was informed that that was not permitted. He was also told that he and his co-worker had to use brush cutters and was provided with a Kawasaki Model 18KS brush cutter with a metal blade. He was approximately twenty metres from the end of the embankment, that is the southern end, and was fecing down the embankment, sweeping the brush cutter from side to side when he struck an object which jerked the brush cutter violently to one side causing him to lose balance and fall. The embankment on which he was working was comprised of loose rock and soil and the surface was slippery and unstable. Dr Coyle, a principal of Safety Search Pty Ltd and, inter alia, an ergonomics expert had this to say in his report:

I should add that without any expertise in engineering safety science or ergonomics it occurred to me that the risk of injury to the plaintiff in the performance of the work he was required to do was every bit as obvious to me on hearing his description. In my view the circumstances of this case amount almost to one justifying the implication of the principle “res ipsa loquitur”.

Dr Coyle was readily able to suggest a number of alternatives which could have been adopted by the defendant employer to prevent or reduce the risk of damage to the plaintiff; for example, burning off the vegetation on the embankment or, if that were not possible, the use of a tractor slasher with an articulating arm capable of extending along and up or down the embankment could and should have been used. It seems that the plaintiff's supervisors considered the use of fire but discounted it as not permitted by law, and while it is probable that a tractor with an articulating arm could have been made available it is quite possible that it could not have cleared the entire embankment area thus still requiring the use of brush cutters by the defendant's employees to complete the work.

A third alternative proposed by Dr Coyle, however, seems to me to be eminently suitable and practicable. He suggested that cleated walkways should have been laid down over the embankment to provide a safe footing. These could have been fabricated at minimal expense by simply nailing appropriate cleats to painters' planks to provide a stable working surface as the employees worked their way down the embankment. Alternatively, he suggested that a harness attached to a rope connected to an anchored stake at the top of the embankment would have provided the worker with a greater measure of security. However, in that the plaintiff's fall was partly caused by the reaction force of the brush cutter contacting a hidden object, throwing the plaintiff sideways, that measure would not have been entirely effective. However, I am entirely satisfied that the use of the cleated plank was a practicable and inexpensive solution to the obvious problem created by the condition of instability in the embankment's surface. That solution, if it had been adopted, was one which could have prevented the fall in which the plaintiff was injured. I have no doubt at all that if such a facility had been provided by the defendant the plaintiff would have used it. As it was, he wore every conceivable form of safety equipment supplemented with a pair of shin pads which he had devised himself, mainly for protection against snakes. I find that it was the combination of the unstable footing provided by the surface of the slope and the sudden and unexpected recoil of the Brush cutter on striking an unseen object which caused the plaintiff to lose balance and that the use of a cleated plank would have enabled him to retain or recover his balance. I therefore find the defendant, Royal Pines Resort Pty Ltd, guilty of negligence in failing to provide a safe place of work and in failing to take adequate precautions for the safety of the plaintiff whilst he was on the embankment.

The plaintiff's case is founded also on a breach of Statutory duty. Section 9(1) of the Workplace Health and Safety Act of 1989 provides that an employer who foils to ensure the health and safety at work of his employees, except where it is not practicable for him to do so, commits an offence. The commission of that offence creates, in addition, a right of action in the injured employee. That cause of action is not trammelled by the test of reasonable foreseeability to which the claim in negligence is subject (See Mount Isa Mines Limited -v- Peachey, C.A. unreported/12/98) and I find that it is established. I am satisfied that the course of action recommended by Dr Coyle was a practicable measure to be adopted by the defendant to ensure the plaintiff's safety.

There is no question that the plaintiff was in any way responsible for his own injuries.

As a result of the motor vehicle accident on 23 March 1991 the plaintiff suffered pain in the right knee, both thighs and in the right buttock area. That pain was very intense and he was taken to the Gold Coast Hospital where he was allowed to leave that afternoon. On that evening when the analgesics that were provided at hospital wore off he felt intense pain in the right hip, thigh, knee and ankle and that pain continued the following day and thereafter for approximately three months although its severity was reduced from time to time by medication. After that time the pain decreased slightly but he was still in much pain and was unable to continue with surfing, running or other leisure activities. The pain he felt was mainly in his right leg. His ankle and knee were very sore and his thigh felt as if he had a corked muscle causing an ache in that area. The leg ached constantly whatever posture he adopted during the day but would be eased if he lay horizontal. For six months from the date of the accident his sleep was interrupted by pain and he was unable to sleep on his right side. In addition to the physical difficulties of which he complained he suffered loss of concentration, feelings of hopelessness and insomnia and poor appetite and low self esteem which continued up until he obtained employment at the Royal Pines Resort. He complains that he was depressed that he was unable to carry out sports and to be as active as he had been. He was a keen surfer and fisherman and still performed athletics but was unable to return to any of those pastimes apart from fishing.

Notwithstanding all these complaints, however, the plaintiff was able to complete a TAFE course which he described as a very intense one with a lot of homework and studies. However, he required substantial assistance from his wife. She also assisted greatly about the household and in attending to his injuries. She cleaned and bathed his injuries, assisted him to dress, looked after the garden and was generally doing all household duties where beforehand he had contributed on an equal basis.

His TAFE course finished in November, 1991. At that time and up until the time of his employment at Royal Pines Resort he continued to suffer what he described as a “build up of pressure in my backside, my right buttock area and my thigh”. By December, 1991 he felt that his symptoms had improved and he was more mobile with more flexibility but he still suffered pain with prolonged standing and walking. At the time he commenced work with Royal Pines Resort he says he still felt limited endurance and stamina and the pressure would start to build up in his buttock area and thigh. However, from 14th May 1992 to 22nd September, 1992, he had performed all the work required of him by his new employer despite those difficulties.

The incident on that latter date had a significant effect upon his physical condition. As he slipped down the embankment he felt a sharp pain in the buttocks which seemed to radiate up his back and down his right leg. The pain was “excruciating and felt ten times as bad” as he had suffered in the 1991 incident. At the hospital he was given pain killers and, subsequently anti-inflammatory drugs. However his pain has continued and is a constant part of his life. He has a constant ache in his lower back and his hips and right thigh. It is a dull ache but is exasperated by activity to a level which he describes as “excruciating agony where I just can't handle pain at all”. The pain he feels increases with the time that he stands or remains seated in a fixed position or if he walks. Every activity associated with his daily life causes the pain to a greater or lesser degree and his sleep is greatly disturbed.

His constant pain and severe restrictions of his activity have led to his feeling depressed and worthless. His attempts at rehabilitation have disappointed him by reason of the lack of success. His only real achievement in that area has been in respect of his potting which started as a hobby or a form of therapy and has developed into a real potential source of income.

There has been led a substantial volume of expert evidence dealing with the plaintiff's physical injuries and their consequences. Despite the many and significant differences between their opinions it is clearly shown that the plaintiff sustained an injury to the lumbar spine in each of the incidents described in evidence. What is not so clear is the extent to which each of those injuries contributed to the plaintiff's present condition.

In his report Dr. Gillett assessed the plaintiff's permanent disability at 15% impairment of bodily function, one half being attribute to a degenerative condition in his lumbar spine which pre-dated the first injury in March 1991. The balance of the total disability is apportioned between the two accidents, one third to the motor vehicle accident and two thirds to the employment accident. In evidence he varied his assessment of disability to one of 10% impairment and opined that the plaintiff would be disabled by the pre-existing condition in 5-15 years from March 1991 even without the two injuries he suffered to his spine.

Further he considered that the injuries suffered in the first incident accelerated the date of disablement by 2 years and that the second injury accelerated that date by 8 years. It would follow from his opinion that the injury sustained in September 1992 was more serious than the first one, having substantially greater affect upon the plaintiff's overall disability than did the first injury.

Other estimates are given by the various medical experts but I regard Dr. Gillett's opinion as the most acceptable from the stand point of logic and common sense. There is no room for doubt that the second injury suffered by the plaintiff had a far greater impact upon his state of health than he had suffered earlier. He had recovered from his initial injuries to the extent that he had been able to carry out heavy labouring work for some 5 months without any substantial physical difficulty. Following his second injury however, his capacity to work and earn income in plumbing, landscaping or irrigation fields was practically destroyed.

The history of his complaints between the two incidents and then those following the second injury entirely supports Dr. Gillett's assessment of the relative impacts of the two incidents upon the plaintiff's physical condition. I am satisfied that each of the incidents in which the plaintiff was injured has contributed and continues to contribute to his present condition as was held to be the case in Nilon v Bezzina (1988) 2 Qd.R. 420

All the orthopaedic experts determine that the radiological investigations showed that the plaintiff had a degeneration in his lumbar spine pre-existing his injuries. All but one of those witnesses considered that those degenerative changes would themselves have disabled the plaintiff so that he would have reached his present level of disability in 5, 10 or 15 years after the date of the first incident in 1991.

The evidence before me shows that the plaintiff had been very physically active before his first accident, working in a trade which involves strong physical effort and enjoying strenuous recreational activity. Yet he had suffered no symptoms whatever suggesting that he had a potentially disabling condition in his spine. In those circumstances I find the opinion of Dr. Day far more compelling than that of his colleagues. That opinion appears through the following extract from a transcript at page 154 lines 22-49.

In cross examination he was not prepared to accept that the MRI scan referred to by himself and his colleagues suggested that it was probable that degenerative change existed in the plaintiff's lumbar spine prior to March 1991. He did agree that it was likely that the plaintiff's spine would have had degenerative changes in 1991 because on average most 28 year- old males do. However, in his opinion the degenerative changes that might have shown on radiological examination were probably no more than normal degeneration and was likely not to cause disability before age 55.

Dr. Day's opinions were attacked on the strange ground that he demonstrated a willingness to change his mind and his opinion as the evidence on which he relied varied. It was also suggested that he was not objective in forming his diagnosis and opinions because he accepted a patient's complaints at face value. That apparently is a reference to part of his evidence in cross-examination. At page 157 of the transcript this appears:—........

That comment is far from indicating a want of objectivity in Dr. Day and I found his evidence of great assistance, and refreshingly so. Further, in answer to my question subsequently in his cross-examination he said that the plaintiff had degenerative changes but they were normal degenerative changes for his age.

On the other hand, his colleagues whose opinion was that the plaintiff would have been disabled in any event by the degenerative condition in his spine all acknowledged the speculative nature of their views and that their prognoses as to the likely time of onset were really only “guesstimates” without any of the statistical support available to and relied upon by Dr Day. For example, Dr Redmond, a neurosurgeon called on behalf of the defendant Royal Pines Resort Pty Ltd, was questioned and replied, in evidence-in-chief, as follows:—

In reliance upon Dr. Day's opinion in preference to those expressed by his colleagues I am satisfied on the balance of probabilities that while the plaintiff's spine did have degenerative changes prior to March 1991 it is likely that those signs would have remained asymptomatic for the foreseeable future so that his earning capacity would not have been reduced thereby to any significant extent.

Many of the orthopaedic specialists and other expert witnesses who have examined the plaintiff have commented upon the nature of his complaints of pain. Dr. Dickinson seems to have dismissed them altogether as “many non-organic functional complaints” in arriving at his startling conclusion that the plaintiff's current condition is entirely due to the pre-existing degeneration in his spine Others have spoken of “abnormal pain syndrome” and a “large psychological overlay to his pain” (John Fitzgerald, Physiotherapist). None of those witnesses (with the possible exception of Dr. Dickinson, whose opinion I reject), has suggested that the plaintiff was consciously or deliberately exaggerating his pain. In those circumstances the results of psychiatric examinations of the plaintiff are of special interest.

That evidence produced conflicting opinions from Dr. Freed and Dr. Varghese. Dr. Varghese examined the plaintiff on the 1st February 1997 and Dr. Freed saw him on the 3rd March 1997 and the 23rd November 1998. He considered the plaintiff had suffered depression as a direct result of his injuries. However Dr. Varghese was of the view that that condition had resolved and the plaintiff now suffered a somatoform pain disorder which results from his focussing upon his work accident as the cause of his problems to the exclusion of other factors. Dr. Varghese points specifically to the death of the plaintiff's father which occurred just before the birth of his son, which had been described by Ms. Robyn Nolan, a Clinical Psychologist as “major stressors which coincided with his accident”. Dr. Varghese also commented, apparently as a significant factor, upon the plaintiff's manner of speech at the start of his interview and as it progressed. His description of that matter closely approximated my observation of the plaintiff in the witness box which in my view showed nothing more than initial nervousness which eased as the plaintiff became more comfortable with his surroundings. Other factors which appeared to have lead Dr. Varghese to reject the alternative diagnosis of dysthymic disorder was that the plaintiff walked with a significant limp, was conscious of his pain and drew attention to it in the interview and was “able to smile and even joke”.

Conversely Dr. Freed is strongly of the view that the plaintiff suffers a dysthymic disorder secondary to the depression. He conducted tests which, as Dr. Varghese said were not conclusive, but which tended to show that the plaintiff was not exaggerating his pain or embellishing the portrayal of a sick role. He was able to elicit all the symptoms of a dysthymic disorder and argued that the observation of Dr. Varghese that the plaintiff smiled and joked showed nothing more than a characteristic of that condition namely that it manifests itself on more days than it doesn't. As he put it, a person with that condition would be depressed on say 4 days out of 7 and apparently normal on the other days. He also refutes the suggestion that the death of the plaintiff's father was a major factor in his depression. His view of the plaintiff's evidence about the relationship he had with his father and the affect upon him of his father's death and the birth of his son accords with my own findings on the matter. In addition neither Psychiatrist appears to have placed any weight upon the extremely valuable supportive role of the plaintiff's wife which I expect would tend to reduce the emotional upheaval of grief and to increase the plaintiff's enjoyment of his new son notwithstanding that there was little she could do to ease the pain and anxiety relating to his injuries. Nor have they given any noticeable effect to the opinion of Ms Nolan, which I believe are significant. She examined and treated the plaintiff in 1992, not long after his second injury, and her report clearly demonstrates the relative forces of the various stressors affecting the plaintiff in that year.

In her report she wrote

In her summary she states

In the circumstances and, given that Dr. Varghese conceded that he could not exclude the possibility that the plaintiff does suffer from a dysthymic disorder I prefer the opinion to that effect of Dr. Freed. I find that the plaintiff will continue to suffer that condition for the foreseeable future and that it will substantially detract from his capacity to earn an income. He would be unable to offer to any employer more than part time reliability and in addition will be further disadvantaged by psychological factors such as anxiety, self doubt, loss of motivation and concentration deficits which further diminish his worth to an employer.

One matter on which Doctors Freed and Varghese agree entirely is that no distinction can be drawn between the two personal injury incidents in relation to their contribution to the plaintiff's ultimate psychiatric condition. The clearest expression of this is recorded at page 196 of the transcript in Dr. Freed's evidence

The plaintiff's injuries in each case disabled him from performing any of the household tasks he had previously undertaken. At the same time his dependence upon his wife to assist him in day to day activities and in his personal attention and care was greatly increased. I find that between the 23rd March 1991 and June 1991 Mrs. Wootton provided additional care and assistance, necessitated by his injuries, for 2 hours a day. Thereafter up until the end of September 1991 his need for assistance amounted to 1 hour per day and this was reduced to one half- hour a day up until the end of November 1991. Between that time and the date of the second incident on the 29th September 1992 the plaintiff was able to attend to his own needs notwithstanding he continued to suffer pain and disability. The plaintiff's need for extra care and assistance for this period is related solely to the March 1991 motor vehicle accident and is assessed at 180 plus 45 plus 40 hours @ $9.50 per hour, amounting to $2,850.00.

Following the second incident he again had to rely heavily upon his wife's assistance. She provided services of a similar kind to those needed following his first injury for about 2 hours per day until February 1994, reducing then to one and a half hours per day until January 1997, reducing again to 1 hour a day up to the date of trial. The quantum of his reliance upon his wife's services during this period is calculated on the basis of 70 weeks @ 14 hours per week, 154 weeks @ 7 and a half hours per week and 106 weeks @ 7 hours per week all at $9.50 per hour which produce the total of $31,720.50.

For the future the evidence suggests, and I accept, that the plaintiff will continue to need the provision of additional services by his wife for approximately 1 hour per day for the foreseeable future. This component is calculated at an approved rate of $10 per week and is assessed at $57,540.00.

The combined affect of all his physical disabilities and his dysthymic disorder severely limit his capacity to earn income. Certainly he has proven himself able to work as a potter, his former hobby now capable of providing a small income. With an adequate compensation award he will be able to enlarge the scope of his “cottage industry” but I cannot foresee any substantial income flowing from that source and certainly it could not sensibly be suggested that whatever may be earned in that field on endeavour would closely approximate what he was capable of earning in his trade.

Otherwise the plaintiff, who had an excellent work history in fields requiring relatively high levels of fitness and mobility, has been reduced to a person fitted only to part time work of a sedentary nature and work requiring only limited mobility. It goes without saying that such jobs as he is assumed to be capable of performing would be in popular demand amongst the less industrious applicants for employment and would also be targeted by the disabled, disadvantaged and the wholly untrained members of the labour force. It is apparent that while he is capable of working part time in a small number of possible fields, he would need a sympathetic employer who would tolerate occasional or more frequent, unplanned absences on his part and variations in emotional and psychological states he would exhibit from time to time. Thus it must be concluded that his residual earning capacity is extremely limited from a practical sense so that the assessment of his loss can be made reasonably only by discounting, to a significant extent, the mathematical calculation of his lost income.

Relying upon the opinion of Dr. Day I find that the plaintiff would have been able to continue earning income in his chosen field of work either as a tradesman or as an employer or supervisor until his proposed retiring age of 55 years. However, as a result of his injuries the plaintiff has not worked, and was not capable of doing so, since September 1992 and his past economic loss is clearly established. The quantum of that loss claimed on his behalf, $119,848, is calculated for the entire period prior to trial allowing a 15% discount for contingencies such as work lost through exacerbation of his disability resulting from the March 1991 injury. The plaintiff had secured a position in his newly chosen field and his future prospects of advancement were quite reasonable, given his TAFE qualifications. In my view there is no reason for further discounting. Interest is allowed at 5% p.a. on that sum reduced by the amount of Social Security ($36351-00) and workcover ($15550-00).

For the future the plaintiff's earning capacity is diminished for the balance of his entire working life. The only realistic prospects for earning substantial income requires the enlarging of his pottery skills and his enjoyment of beneficial market forces. On evidence before me I am unable to foresee any likelihood of that occurring to any significant extent. In any event there is clear evidence pottery was a hobby of the plaintiff's before his injuries and it may well be that whatever he earns from pottery would have been available to him even if he had continued in employment in his trade.

I find the plaintiff's probable employment future, but for his injuries, was as a plumber/landscaper. That had been his goal, which had been achieved by his employment with Royal Pines Resort. I accept the assessment of future economic loss as determined by Vincents Chartered Accountants (exhibit 14) and described as “Scenario 1” with a retirement age of 55 years. On that basis damages for future loss of earning capacity is assessed at $226,000.00 discounted by 25% leaving a sum of $169,000.00, together with loss of superannuation benefits calculated by Vincents at $2,6199.00 which should be similarly discounted to $19,600.00.

Special damages are claimed under a number of heads and apart from that renting to the purchase of an automatic transmission vehicle, have not been contested. That claim is not properly proven, the plaintiff relying merely upon the changeover price of a trade-in of his manual transmission vehicle for a second hand automatic transmission vehicle. It may well be that the difference in value between comparable vehicles with those different transmissions is no more than the amount of $2,700.00 claimed but there is no evidence on that point where evidence is readily available. I reject that claim. The futon bed was approved by Dr. Gillett as being beneficial as it reduces pain suffered by the plaintiff and its expense is reasonable. Other items of special damage are allowed and the Fox -v- Wood component is allowed at $1,519.45.

The plaintiff has a liability to Mrs. Robin Nolan in respect of her counselling foes in the sum of $900.00 and I also allow $3,880.00 for the future psychiatric counselling.

Adaptive equipment has been recommended by Leslie Stephenson an Occupational Therapist, for the plaintiff's use to assist in the performance of daily tasks and principally to enable him to carry on the business of pottery designing. That latter equipment is expensive and while it is undoubtedly desirable that he obtain it I believe it is also equipment which anyone working in that field would require, if he is to enhance his earning capacity as a potter. However, there is no real evidence before me showing that his pottery activities will amount to more than a worthwhile and desirable form of therapy. Nor is there any evidence a all from which a realistic appraisal of the plaintiff's earning capacity in that area might be. Mr. Howe has calculated the cost for these items at $8,380.00 and I believe and find that it is appropriate, in light of the above considerations to allow only half that amount, namely $4690. This determination is based also on the evidence relating to the severe limitations of time and effort which he is subject by reason of his disabilities described at page 17 of Ms. Stephenson's report have had and will always have a restricting affect upon the income he is capable of earning. These considerations have also been allowed for as best I can in assessing the plaintiff's future economic loss component.

Special damages therefore are assessed $10814-75, $185-50 of which is attributable to the motor vehicle incident. Interest a 6% p.a. on the sum of $2646-00, which excludes the amounts paid by Workcover and the Health Insurance Commission and Ms. Nolan's fees.

The plaintiff is now aged 35 years having suffered severe pain and discomfort already for almost 8 years and fecing a future of similar pain and discomfort for the rest of his life. That is a heavy burden for a formerly active and physically orientated person to bear. Moreover it is not surprising that his continual pain and discomfort have lead to the development of depression and thereby a dysthymic disorder. There is no doubting that his enjoyment of the amenities of life has been substantially reduced. There are many activities in which he had engaged and which he might have become active in the future which are now prohibited to him because of his physical limitations. There are also many activities of a social or recreational nature which his psychological and psychiatric conditions will deter him from enjoying. He will continue to need domestic assistance to a minor degree and will be required to rely upon tradesmen for work around his home which he would have performed himself but for his disability, I assess his damages for pain and discomfort, both physical and mental, at $60,000.00, which assessment takes into account the possible cost of home maintenance work in the future.

According to the medical opinion which I accept, the damages are to be apportioned, as to one-third, to the motor vehicle collision and, as to two-thirds, to the work-related incident. The past Griffith v Kerkemeyer component of $2850-00, the Queensland Ambulance Charge of $130-00 and $55-50 of the past travel expenses are attributable only to the defendant in Plaint No. 77 of 1994, but all other items and heads of damage are apportioned according to that formula.. The damages assessed are set out in the following table;-

In plaint No 77 of 1994 liability is apportioned, by agreement, as to 10%, in the plaintiff and I give Judgement in that action for the plaintiff against the defendant in the sum of One hundred and fifth-six thousand five hundred and fifty dollars, fifty-six cents ($156,550-56). I further Order that the defendant pay the plaintiff's costs of and incidental to that action, including reserved costs, if any, to be taxed.

In plaint No.365 of 1995, an amount of $25770-00 has been paid to, or on behalf of the plaintiff by Workcover and strictly speaking, should be deducted from his damages. The balance, however, still exceeds the jurisdictional limit and I give judgment in that action for the plaintiff in the sum of Two hundred and fifty thousand dollars (S250000-00) and Order that the defendant pay the plaintiff's costs of and incidental to that action, including reserved costs, if any, to be taxed.