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Fleming v State of Queensland[2016] QDC 334

Fleming v State of Queensland[2016] QDC 334

DISTRICT COURT OF QUEENSLAND

CITATION:

Fleming v State of Queensland [2016] QDC 334

PARTIES:

SHANE DONALD FLEMING

(plaintiff)

v

STATE OF QUEENSLAND

(defendant)

FILE NO:

122 of 2015

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

16 December 2016

DELIVERED AT:

Cairns

HEARING DATES:

14 to 22 March 2016

JUDGE:

Morzone QC DCJ

ORDERS:

  1. Judgment for the plaintiff against the defendant for $465,167.50.
  2. Unless either party applies for, or the parties otherwise agree to, a different costs order within 30 days of this judgment, the defendant will pay the plaintiff’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – plaintiff suffered injury after falling through rotten timber stairs of police station – liability admitted.

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – causation – previous ongoing injury and sequelae – post accident injury and recovery – whether secondary to negligence – multiple injuries claimed – credit of plaintiff – veracity and genuineness of the plaintiff’s evidence and reported symptoms – causation – whether suffered loss of earning capacity – assessment of damages.

LEGISLATION:

Civil Liability Act 2003 (Qld), s 55, s 59

Civil Liability Regulation 2003 (Qld)

CASES:

State Government Insurance Commission v Oakley (1990) 10 MVR 570

Tabet v Gett (2010) 240 CLR 537

Wallace v Kam (2013) 297 ALR 383

Allianz Australia Insurance Limited v McCarthy [2012] QCA 312

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

COUNSEL:

C. Newton for the plaintiff

J. Sorbello for the defendant

SOLICITORS:

Andrew Krumins Lawyers for the plaintiff

Crown Law for the defendant

  1. [1]
    Almost 10 years have passed since the plaintiff’s zest for life plummeted when, acting on his sense of duty to report a matter to police, he fell heavily through rotten timber steps that collapsed under him at the local police station.
  1. [2]
    The defendant accepts liability but disputes the nature and extent of the injuries and damages claimed by the plaintiff.

Background

  1. [3]
    The plaintiff was born on 23 August 1972. He was 34 years old on the date of his injury and is now 44 years old.
  1. [4]
    The plaintiff’s medical records disclose his endurance with multiple conditions and injuries since leaving school. The parties have helpfully chronicled the medical evidence in this regard, and I highlight:
  • 1992 – twisted testicles;
  • 1993 – abdominal hernia injury, appendectomy;
  • 1993-1996 – groin and leg problems requiring surgery and associated surgical complications, low back pain, further surgery to remove staple, depressive symptoms, ongoing neurological pain in the left groin and leg pain and spasms, neuroma of left foot as consequence of removal of tendon and infection of groin, 10% assessed loss of left leg mobility; numbness underfoot when walking and difficulty moving foot in cold; muscle spasms in the leg; ongoing pain in the groin and knee; overweight; feeling depressed; memory problems and daily headaches;
  • 1997 – past and ongoing pain, numbness and spasms in left leg; accidental ingestion of chlorine;
  • 2001 – injury to right knee;
  • 2003 – painful and difficult urination; frequent lower back pain; Centrelink recorded ongoing disabilities of left groin and left upper thigh pain; chronic abductor tendonitis with loss of 15% mobility of left leg; haemochromatosis; Morton neuroma of left foot;
  • 2004 – work related stress, anxiety and depressive symptoms; dust in right eye; penetrating right finger injury; infected tendon and surgery;
  • 2005-2006 – pain, weakness, and restriction in the right wrist and forearm and ongoing problems and chronic pain in the right hand and forearm; paraesthesia; burning sensations in the palm; involuntary muscle contraction in right bicep;
  • Pre-accident 2007 – pains in forearm and tight skin right arm; feeling cooler to touch right arm compared to left, mottled hand, normal pulse, paraesthesia and tingling in right hand in distribution of median nerve.
  1. [5]
    The plaintiff’s penetrating finger injury sustained on 18 December 2004 resulted in a prolonged period of treatment, management and multiple medical assessments including one of chronic regional pain disorder of the hand. In the meantime, the plaintiff was able to return to work as a security guard albeit on a part time and intermittent basis. It has never completely resolved.
  1. [6]
    On Saturday, 25 January 2007, the plaintiff went to the Gordonvale Police Station to report unsupervised children in the local TAB. As the plaintiff left the building he used the timber stairs to the ground level. When he stepped with his right foot onto the rotten second bottom tread, it separated from the stringer and collapsed under him. The plaintiff alleges he tumbled forwards and then fell backwards; he received a severe graze to his right shin through contact between his right shin and the back of the bottom of the tread of the steps; and his lower back came into severe traumatic contact with one or more of the other treads which were behind him.[1]The plaintiff alleges he continues to endure chronic pain and suffering in his right leg, lower back, incontinence, sexual dysfunction, pain and numbness, psychiatric symptoms of depression, helplessness, anxiety, loss of self-esteem and loss of confidence.[2]
  1. [7]
    The defendant accepts liability for this stair incident. The defendant also admits that the plaintiff suffered a graze to his shin but otherwise does not admit the plaintiff’s allegations of the nature and consequence of his injuries.
  1. [8]
    The plaintiff further alleges that his injuries caused in the stair incident in turn resulted in a further injury during his work as a security officer on 24 June 2007. He alleges that whilst dealing with a patron he lost balance, fell and injured his left shoulder.[3]The defendant disputes any causation about this subsequent security incident.
  1. [9]
    So this case is about the nature and consequence of the plaintiff’s injuries, loss and damage caused by the stair incident at the police station.

Issues

  1. [10]
    The determinative issues in the proceeding are:
  1. (1)
    The causal relationship, if any, between the stair incident and the plaintiff’s alleged injuries and sequelae; and
  1. (2)
    The assessment of damages.
  1. [11]
    These issues largely depend on the credibility and reliability of the plaintiff, corroborative witnesses and documents.

The plaintiff’s credit

  1. [12]
    The plaintiff’s counsel urges acceptance of the plaintiff as being honest and forthright. He described the plaintiff as a “very complex individual” whose court demeanour was consistent with the observations of various medical witnesses. 
  1. [13]
    The defendant’s case is that the plaintiff’s evidence was tainted by dishonesty or misstatements such that it is impossible to know what part, if any, of the plaintiff’s allegations are true and upon which the court may safely act. At the very least, it was argued that the plaintiff was an unreliable reporter and unless his evidence is inherently probable the court ought be cautious in acting on his claims if unsupported by some other cogent evidence.[4]
  1. [14]
    The defendant relies upon various “glaring examples” of the plaintiff’s dishonesty or misstatements about (and I summarise) the circumstances, non-disclosure and concealment of his simultaneous Total and Permanent Disability claim; the accuracy of medical evidence; the explanation of his duty of disclosure; the prescription of crutches and Viagra; representation and attendance at the Medical Assessment Tribunal; earlier cessation of gym attendance; and court demeanour.
  1. [15]
    In Collings & Anor v Amaroo (Qld) Pty Ltd & Anor,[5]McPherson JA said:[6]

“A plaintiff who is guilty of dishonesty or misstatements to his legal advisers, his medical consultants, and the court hearing his claim necessarily places himself in a difficult position if his deceit is discovered.  It leaves the court with the impossible task of attempting to assess his true condition by reference, not to what he has said about it, but to what he and others might have said if he had told the truth.”

  1. [16]
    Similarly, in Bell v Mastermyne Pty Ltd,[7]McMeekin J said:

“…The assessment of damages for personal injury depends to a very large extent on a plaintiff’s honest reporting – of his or her symptoms; of their impact on the plaintiff’s life; of pre‑existing problems; of the genuineness of effort to regain employment after injury; and of their capacity to maintain employment.  These are all difficult issues for a defendant to thoroughly investigate and test.  In truth no‑one knows what level of pain an individual experiences and what impact that pain has on any particular plaintiff’s capacity to maintain their activities.  Here it is known that the plaintiff was prepared to be dishonest for his financial advantage.  In my view that permeates every aspect of the case.”

  1. [17]
    This is an appropriate case to consider the likelihood of whether the plaintiff was honest with the various medical experts by reference to his overall credibility.
  1. [18]
    The plaintiff testified for the first three days and was recalled on the last day of the trial. His testimony was interrupted by various adjournments and interposition of expert medical witnesses. He was recalled on the last day of the trial to deal with the issue of disclosure of separate claims on his Total and Permanent Disability insurance.
  1. [19]
    I was able to observe the plaintiff throughout the trial. A man of his height and size would have found the witness box small, confining, uncomfortable and unusual. During his evidence, he appeared nervous and unconformable but impressed me as doing his best to be understood and give a fulsome answer to satisfy the inquiry of the examiner.  He was emotional, animated and showed discomfort during his evidence.  I have taken into account that he may not have been able to express himself as well as others.  Indeed, his behaviour was consistent with his true character as observed by some medical experts, for example:
  1. (a)
    Melanie McAuliffe observed that “Mr Fleming does not have a reasonable stop gap between his thoughts and frustrations and his behaviour”[8]and “he can become easily and quickly frustrated and shows he is not routinely mindful of his language. Mr Fleming does demonstrate a fixation on a point of view or an angle in a conversation and routinely does not demonstrate that he is able to process concepts or nuances of explanations”;[9]
  2. (b)
    Dr Varghese noted that the plaintiff “talks loudly in a socially inappropriate way and does not pick up on social cues”;[10]
  3. (c)
    Dr James suggests that the plaintiff’s “underlying personality structure … is somewhat basic, and he views the world in a straightforward way – his relevant philosophy being that if something is wrong, find out what it is, and fix it”.[11]He remarked about the so called “Halo effect”, and the risk of reacting to the plaintiff’s characteristics, presentation, garrulousness, use of language and general impression, to discount the severity of the plaintiff’s symptoms or their impact;[12]
  4. (d)
    Dr Laws, remarked that “He has a very black and white view of everything he encounters in the world”.[13]
  1. [20]
    The plaintiff also showed physical discomfort during his evidence. During the second day of evidence he was provided with a lectern so he could stand but he did not need it. I disagree with the assertion of the defendant’s counsel that the plaintiff did not exhibit any difficulty with sitting for prolonged periods of time.  To my observation, the plaintiff’s demeanour remained generally consistent at the other times during the seven day trial when he was positioned behind counsel and behind the bar table.
  1. [21]
    The evidence did expose various inconsistencies between the plaintiff’s account and documentary evidence, for example, the plaintiff disputed three references by various practitioners to the “left” rather than the “right” foot,[14]and his account of the second incident varied in his evidence.  The defendant also relies upon variable accounts in the records of the ambulance, hospital, WorkCover, his legal representatives, and medical experts.[15]
  1. [22]
    The plaintiff’s medical consultations focused on upon treatment and getting better, and were not shackled by framing a case for litigation. In that sense, the records are organically wide and variable because the treating doctors narrowly focused on the ailment relevant to the presentation rather than evidence gathering for litigation purposes, for example: when the plaintiff’s general practitioner examined the plaintiff’s shoulder injury on 17 October 2007, he did not explore other symptoms subject of this proceeding. In this sense, I do not accept that the medical records are an infallible indicator of the plaintiff’s reliability.
  1. [23]
    Inconsistencies in describing events are relevant to whether or not evidence about them is truthful and reliable. But the mere existence of inconsistencies does not mean that of necessity the court must reject the plaintiff’s evidence. It seems to me that some inconsistency, cross-pollination and blurring is to be expected during the last nine years because it is natural enough for people who are asked on a number of different occasions over such a long time to repeat what happened at an earlier time, to tell a slightly different version each time. Variable versions may also be elicited and influenced by the environment, situation and inquiry made. Beyond his own reporting, the plaintiff had little control over the narration of the subsequent incident by others. However, his evidence whilst given in a more sanitised way, was generally consistent with past accounts of relevant, volatile and dramatic events. It seems to me that the plaintiff has been generally consistent in his reporting about his right lower limb, and the few medical records that noted the “left” foot were likely a mistaken medical note. 
  1. [24]
    In relation to memory, there are things that a witness would be expected to remember. Some of life’s events are more important than others and might be remembered more clearly, yet there will be other things, particularly things that happened some time ago, and matters of detail, that are not remembered as clearly, even though the witness is an honest witness. In the circumstances of a long, multifaceted and complex claim, I accept the plaintiff had no ready recollection of being represented by solicitors, their submissions or attendance at the Medical Assessment Tribunal. Similarly, I accept his recollection was honestly flawed in relation to a prescription of Viagra by Dr Smith on 6 September 2007.[16]I accept that he left his employ with the Brisbane City Council to obtain better paying work and that he considered himself a good employee.
  1. [25]
    During the course of this proceeding, the plaintiff also claimed on his Total and Permanent Disability insurance policy. He retained Maurice Blackburn Lawyers to make insurance claims after seeing their television advertisement. The plaintiff testified that his litigation solicitors were aware of the claims,[17]but he was vague about the extent to which he informed his litigation solicitors about these claims.  The plaintiff’s communication to his insurance solicitors strongly indicates that the plaintiff did deliberately conceal significant detail from his litigation solicitor, for example:
  1. The plaintiff instructed his insurance solicitors not to speak to his litigation solicitor in respect of his claims;[18]
  1. He didn’t want “that lawyer” finding out as he didn’t want to be blackmailed;[19]
  1. He advised the insurance solicitors that “the insurance company doesn’t know about these drs reports but if give report over [t]hey might write to the crown or the Dr”.[20]
  1. [26]
    This communication must be read in light of a solicitor’s paramount duty to the court and the administration of justice. There is no suggestion that any solicitors acted improperly on these instructions or in the claims. I infer that the plaintiff was appropriately advised. It seems to me that the plaintiff treated the claims and respective entitlements as separate and distinct. By that time the plaintiff had become disillusioned and had lost confidence in his litigation solicitors due to perceived inaction and delay.[21]I am not satisfied that he appreciated any connection or need to disclose the claim or involve his litigation solicitors, despite the effect of the certificate of explanation of duty of disclosure being filed at the commencement of the trial.  In the end, the insurance claim file was produced and the plaintiff was recalled for further examination.  His evidence and exhibits 16 and 17 are relevant to the consideration of the plaintiff’s work capacity in this case.[22]
  1. [27]
    The plaintiff did engage in inconsistency and misstatement, but when considered in context, I do not characterise his evidence as being dishonest. His evidence was entirely consistent with his personality traits, amidst a long trial, delayed litigation and complex symptomology. Since the injury he has attended many medical practitioners for examination, treatment and reporting in various disciplines. I do not accept that he was dishonest when he repetitiously conveyed his mental and physical state to medical practitioners in different presenting contexts and disciplines. The evidence in this case includes substantial medical records, reports and other collateral documents. It seems to me that the plaintiff approached those seeking to assist him with an optimistic yet frustrated hope of successful treatment and resolution of his health issues. He was firmly focused on getting better and getting back to work and less so on the mechanism of his fall and consistent sequelae. He had a tendency to conflate different symptoms as being attributable to his fall on the stair incident. He simply reported anything and everything that he honestly thought and felt in response to medical interrogation.
  1. [28]
    Further, the plaintiff’s black and white thinking and rigidity, lead to frustration, anger, irritability and impulsiveness. These seemed to be both recognised and generally managed by his regular and treating doctors, whereas they likely diminished his rapport with others.
  1. [29]
    I accept the plaintiff did his unsophisticated best to be reliable, fulsome and honest as he struggled with his complex and uncertain predicament. I have otherwise approached the evidence with caution where his testimony seemed implausible and unsupported by medical opinion, examination, or documents.

Causation

  1. [30]
    A pivotal question is whether it is more probable than not that there is a causal relationship between this stair incident and the security incident, and the plaintiff’s alleged injuries and resulting impairment.
  1. [31]
    The plaintiff’s counsel referred to Malcolm CJ in the Western Australian Full Court in State Government Insurance Commission v Oakley[23]to contend that but for the plaintiff’s numb foot and back pain (resulting from the stair incident), the security incident would not have occurred.On the contrary, the defendant contends that a finding that the security incident is causally related to the stair incident is not open on the evidence.
  1. [32]
    The plaintiff has the onus to prove a sufficient connection between the breach and the loss suffered. In Tabet v Gett,[24]Kiefel J said (excluding references):

[111]  The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage.  All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm.  “More probable” means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty. 

[112]    The “but for” test is regarded as having an important role in the resolution of the issue of causation, although more as a negative criterion than as a comprehensive test.  The resolution of the question of causation has been said to involve the common sense idea of one matter being the cause of another.  But it is also necessary to understand the purpose for making an inquiry about causation and that may require value judgments and policy choices. 

  1. [33]
    The plaintiff has the onus to prove a sufficient connection between the breach and the loss suffered. He must prove that every item of loss for which he claims damages is connected to the defendant’s wrong in the sense that the wrong caused or materially contributed to that loss.[25]It is a question of fact.[26]The relevant question is whether the defendant’s negligence was so connected with the plaintiff’s loss or damage that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it.[27]
  1. [34]
    These principles are synthesised by the Civil Liability Act 2003 (Qld) – Reprint 2 (“the Act”).[28]Section 11 of the Act provides for the test for causation as follows:
  1. (1)
    A decision that a breach of duty caused a particular harm comprises the following elements –
  1. (a)
    the breach of duty was a necessary condition of the occurrence of the harm (factual causation);
  1. (b)
    it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability). …
  1. (4)
    For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.
  1. [35]
    Section 12 of the Act further provides that in deciding liability the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
  1. [36]
    The analogous New South Wales provisions were considered by the High Court in Wallace v Kam,[29]where the Court said:

[14]  The distinction now drawn by s [11(1)] between factual causation and scope of liability should not be obscured by judicial glosses.  A determination in accordance with s [11(1)(a)] that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with section [12].  A determination in accordance with s [11(1)(b)] that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused is entirely normative, turning in accordance with s [11(4)] on consideration by a court of (among other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.

  1. [37]
    Causation requires consideration of the relevant injurious events, resultant injuries and ascription of an Injury Scale Value (ISV) to each injury as prescribed by Act and the Civil Liability Regulation 2003 (Qld) (“the Regulation”).

Sequence of injurious events

  1. [38]
    Prior to the stair incident, on 18 December 2004 the plaintiff sustained a penetrating injury to his right middle finger while working with rocks encased in steel mesh cages used for retaining walls. This required a lengthy period of treatment for infection, later carpal tunnel and reported signs and symptoms of chronic regional sympathetic dystrophy from November 2006.
  1. [39]
    The plaintiff attempted to resume work with Cairns Water in 2005 but problems using his right hand forced him to discontinue and return to receiving the Disability Support Pension. The plaintiff retrained and qualified as a security officer on 8 July 2006. He obtained work in the security industry until September 2007.
  1. [40]
    The plaintiff attributes the cessation of his work primarily due to the stair incident of 15 January 2007 and the subsequent security incident on 24 June 2007.There is no doubt, and the plaintiff has never asserted otherwise, that at the time of these incidents, his problems from the hand injury were continuing.  He has continued to gradually improve but has never completely resolved.
  1. [41]
    The plaintiff described the stair incident in his evidence as follows:[30]

“What happened?‑‑‑Then I walked back down the stairs I’d just walked up, and I was walking down the stairs like this, and then as I put my foot down to walk for some reason – there was something wrong with the stairs and it broke away and I went through the stairs, smashing my leg against the lower stair, and fallen backwards, hitting the higher stair around my tailbone.

Let’s slow down and get more detail.  Which foot have you stepped down onto the step?‑‑‑The right foot.

All right.  And the step gives way?‑‑‑Step gives way, and as I went down there, through the step with my leg, my right leg went forward and hit the next step down and then I fell – went backwards, hitting my back – tailbone against a higher stair.  And then when I was wedged between the stairs I got this awful burning sensation up my leg.  I thought I’d broken my leg.”

  1. [42]
    This was consistent with the account in his quantum statement as follows:[31]

58  As I placed my right foot on the second step from the bottom that step gave way because one end of the tread separated from the stringer and the step swung down at that end.   The tread continued to swing downwards and while it did so, my right shin, taking the full weight of my body, made heavy contact against the angular edge at the back of the tread below the one that gave way.  My shin was scraped for some distance against the back of that tread until my foot became fully grounded, whether still on the tread or on the ground I am unable to say.   Once my shin became stationary, wedged hard against the back of that lower tread.  It forced my torso to swing backwards with my coccyx and my lower spine being raked hard against the recently replaced angular forward edge of one or more of the treads above that which gave way.

59  I finished up in a semi-squatting position facing forwards in the direction I would be in if proceeding down those steps.  In the end I shuffled a little and found myself more or less sitting on the step above that which gave way.

60  To the best of my recall I yelled out in pain after my shin struck the lower step and probably swore in the process.  I initially thought I had broken my leg.  I had excruciating pain in my right lower leg.  I recall a police woman coming out and asking me if I was OK and a lady I know as Rhonda who worked at the station also came and showed concern about my predicament.  I was offered medical assistance which at the time I declined.

61  My right leg went stiff, possibly in a spasm and I remember my foot or toes becoming numb.  Not wishing to be seen as a wimp I composed myself as best I could and tried to look brave as I walked away endeavouring not to show the pain and other effects of the incident in the presence of the ladies. 

62  After some time when still in much pain and possibly in a degree of shock I walked to the nearby ambulance station where they had a look at me and presumably decided my injury was not life threatening, so they sent me to see Dr Davis who had his clinic nearby.

  1. [43]
    I accept the plaintiff’s evidence and find that in the stair incident he fell down and backwards and struck his lower back and tail bone area on the higher steps with his right leg wedged in the stairs under him on 25 January 2007. I accept that the plaintiff suffered a right leg injury and lower back injury as a consequence of the stair incident.
  1. [44]
    Between the stair incident of 15 January 2007 and the subsequent security incident on 24 June 2007 the plaintiff attended various medical professionals. He regularly complained of worsening lower back, right leg and foot symptoms, and yet no major disc, bony abnormality or herniation was seen in X-ray, CT scan or MRI investigations of his lower thoracic or lumbar spine. 
  1. [45]
    The plaintiff also referred described his ongoing problems in his quantum statement[32]and testified that:[33]

“… my foot would just go numb as soon as I put – have a shoe and a sock on my foot for at least 20, 30 minutes.  And then when I would put on my long pants – long pants and that, put on a belt, my back would just stiffen up all the time and then I’d start walking with a limp.  It was shocking what – what kept on happening.  And I just – my foot would just go numb all the time.  And then when I didn’t have a shoe – a shoe and a sock on my foot I wouldn’t get that sensation.”

  1. [46]
    His account of the subsequent security incident in his quantum statement was:[34]

76  … On the evening of 24 June 2007, whilst doing a security patrol with another officer in the night club district of Cairns, I found myself unable to run when required to do so in an incident.  The other officer ran off without me.  At that time, I experienced significant pain and numbness in the right foot together with lower back pain.  I was already having problems with pain and capacity to run that evening, due to these disabilities.  I even had problems with my balance while standing, and earlier that evening I had to lean against a wall whist (sic) on duty at The Tanks in Edge Hill.

77  When I moved on to duties at McDonalds fast food outlet later that evening.  I was having more trouble with my balance, lower back pain, a lack of strength in my right leg and numbness in my right foot.  I was then confronted with a requirement to eject an unruly and drunk patron.  I grabbed the patron and started to propel him towards the exit.  The patron resisted, so I applied a standard head lock and continued to eject him.  But for the physical disabilities, I ought to have had no problems with that manoeuvre as I had the patron securely in a head lock, as I was trained to do.  My right hand was not a problem, as I had a secure grip with my arm.  I was however, overcome by a combination of intense lower back pain, foot pain and numbness which, caused me to lose balance and fall forward with the patron, landing heavily on my left elbow severely wrenching my left shoulder.  I would not have lost control in handling this patron who was short and slightly built, but for the fact my leg gave way because of my symptoms from my fall at the police station. 

  1. [47]
    In his oral testimony the plaintiff described the security incident this way:[35]

“Okay. And then we come to the 24th of June ’07, which we’ll call the McDonald’s incident?‑‑‑Yes.

Would you just tell his Honour in your own words what you remember about the incident that resulted in a shoulder injury at McDonald’s?‑‑‑Okay.  Well, your Honour, that night I started off my shift at Tanks, and then during that night when it – when at Tanks my leg was all sore and throbbing and my back was getting stiff again.  Then after we left there we went to – into the city and I had to – unknown to me I had to walk around with this other security guard, and there was a fight that broke out and the other guy started running.  I couldn’t run.  So I just walked up and he asked me where it was, and I said – I see what’s coming.  Well, anyhow, after that I had to go and do this shift at McDonald’s which – McDonald’s is – at night, at 2 or 3 – 2 o’clock or so in the morning – not a good place to be.  People come out of the – out of the clubs ….

…

Just let me clear up something you said.  You said you couldn’t run at that prior incident that night.  Why couldn’t you run?‑‑‑Because my foot was all numb and my back was stiff.

All right.  All right.  Now we come to the incident I asked you about which is at McDonald’s.  What happens?‑‑‑At McDonald’s I’m walking around outside.  Then I come in and I see this British backpacker sitting there with some people, and he’s throwing things onto the ground.  So I said to him you’ve got to leave, mate.  And then as he got up – as I was taking him out he broke my grip I put on his hand, and then I got him in a headlock.  Then he got me in a headlock.  And, with my leg being numb and sore, my leg gave way and I went on to the floor with him under me arm, under my right arm, and my left elbow hit the ground at 90 degrees – at 90 degree angle and me arm just went ... like that.  And then ‑ ‑ ‑

Where did you feel pain?‑‑‑First in the arm, then my back was sore from when I landed down on to the ground.  And then some patrons ‑ ‑ ‑

….

I’m just trying to find out what it is that you say happened that made your prior injuries the cause of that fall.  Why wasn’t it just a fall from a normal altercation with a patron at a security place – job?‑‑‑Well, I was bigger than him.  He couldn’t have – if I – if I didn’t have this numbness in my leg that I had I wouldn’t have lost my balance and then ultimately take him to the ground, because I’ve never had that – problems prior – when I was doing security.

And did your back have anything to do with it?‑‑‑My back was aching because, when I was walking around, I have to have the belt on and all that kind of stuff.

No, in the incident did your back have anything to do with ‑ ‑ ‑?‑‑‑It gave way when I was, like, wrestling with him.

What do you mean by “gave way”?‑‑‑Well ‑ ‑ ‑

What did you feel?‑‑‑Sharp pain in my back, like a spasm I get in my back.”

  1. [48]
    During the vigour of cross-examination it emerged that he fell twice during the security incident. He was asked about this account he gave to the hospital as follows:

Do you recall telling them you fell over twice?‑‑‑I fell over twice?

Yes?‑‑‑Yes, of course.  The first time when we were in there, we fell – we had that confrontation.  Then he came back 30 minutes later – some Pommy girls asked me to sit down which I sat down then I started going like this and then I turned around and I saw him sneaking up behind me.  I said, mate, what are you doing in here?  He said, I’ve got a knife.  I’m going to kill you.  And then I – and then the girls go running out screaming then he attacked me and, like, tackled me and I fell back onto my back.

Okay?‑‑‑That’s what happened.

There’s a note then left elbow now complaining of left shoulder pain.  So does that mean you hit your left elbow and now you’re complaining of left shoulder pain?‑‑‑Well, that’s what I said.  I landed like that.  Yes, it was ‑ ‑ ‑

I’m just confirming that it’s an accurate record ‑ ‑ ‑?‑‑‑Yes, yes, that’s what happened.

  1. [49]
    The plaintiff also gave earlier versions tothe ambulance, hospital, WorkCover, his legal representatives, and medical experts.[36]
  1. [50]
    The account attributed to him by Cairns Base Hospital refers to “slippery floor, slipped” and the plaintiff’s WorkCover Statement also described that he “slipped”. The plaintiff disavowed describing saying “slippery floor”, which I accept.  I am otherwise unpersuaded that the reference to “slipped” is tolerably consistent with his pleaded case,[37]quantum statement, and testimony set out above.  It wasn’t until August 2008 that the plaintiff belatedly reported to Ms Coles “I lost my balance because of my foot”.[38]Ms Coles noted the plaintiff as having “pins and needles” in his foot and that he believed that he fell because his injured foot gave way.  This is quite different to his evidence that “I was however, overcome by a combination of intense lower back pain, foot pain and numbness which, caused me to lose balance and fell forward with the patron”.[39]
  1. [51]
    Dr Don Todman opined that “It is possible that some loss of agility from the [stair] incident could have contributed to the [security] incident”.[40]In contrast, Dr Labrom concluded that “there would be no relationship between the injury described on the 25thJanuary 2007 and the alleged injury on the 24thJune 2007”.[41]Dr Tuffley said “I couldn’t actually find anything objective when I examined his back to explain why he’d have a weakness that would cause him to fall”[42]and “when I examined him I couldn’t find anything in his lower limb that would be considered abnormal, and as such, I would say there’s nothing about his physical capabilities that would make him fall.”[43]
  1. [52]
    The medical opinion on this issue is somewhat speculative, and is subservient to the plaintiff’s evidence of the mechanism of the subsequent injury.
  1. [53]
    I regret to say that the state of the plaintiff’s evidence leaves me with intolerable uncertainty about the security incident of 24 June 2007.  My strong impression is that the plaintiff’s evidence on that issue is the product of retrospective rationalisation and reconstruction of a volatile and unrelated incident.  Whilst I accept that the plaintiff continued to experience ongoing problems from the stair incident, I do not accept they were a substantial cause of, or substantially contributed to, the second security incident injuries.  Indeed, I am unable to discern any relevant causal connection.
  1. [54]
    Therefore, I find on the balance of probabilities that plaintiff’s injuries resulting from the stair incident were not causativeof theplaintiff’s fall in the second security incident and any consequential shoulder and upper arm injuries sustained.

Back and Leg Injuries

  1. [55]
    The plaintiff complains that he suffers leg and back problems, which I summarise as follows:[44]
  1. (a)
    A severe and painful laceration to his right shin;
  1. (b)
    A severe and traumatic injury to his lower back and/or the discs and/or soft tissue structures of his spine and/or the nerve structures of his body.  Pathology in respect of his lower spine, including in particular a small annular tear at the L5-S1 disc.
  1. (c)
    Chronic pain conditions in respect of his spine and/or his buttocks and/or his groin and/or his peroneal area and/or his right lower limb to his foot.  His pain symptoms in respect of his lower back, his buttock, his groin and his right lower limb remain at a severe but variable level.
  1. (d)
    Weakness in the right lower limb; cramping pains in his lower back, buttocks, groin and right lower limb; occasional numbness across his lower back; numbness in the buttocks, parts of his right foot, sometimes extending up as high as the right calf; and numbness and weakness in respect of his right lower limb remains at a significant but variable level.
  1. (e)
    Unsteadiness on his feet, pain down the right leg to foot; an occasional limp in respect of his right lower limb and difficulty wearing enclosed shoes.  Limited endurance to sit or stand in the one position or to walk any distance.  He has problems with the function of his 4thand 5thright toes and wearing enclosed shoes.
  1. [56]
    The defendant admits the plaintiff suffered a “laceration” in the nature of a “graze” to his right shin and leg weakness but disputes the severity of the injury and sequelae.[45]The defendant also disputes the existence and severity of the plaintiff’s injuries and sequelae and attributes these to the second security incident.[46]

Injuries & sequelae

  1. [57]
    The plaintiff testified that his lower back and tailbone struck one or more of the stair treads during the stair indecent.[47]This was consistently reported to the hospital and medical experts.  The medical notes record that he experienced progressively escalating symptoms and neurological type symptoms. 
  1. [58]
    Initially the plaintiff presented to the Queensland Ambulance Service and then upon his general practitioner, Dr Davis.[48]
  1. [59]
    On 31 January he attended the Cairns Base Hospital complaining of back pain in the upper lumbar/lower thoracic region that worsened on movement and a recent long drive.[49]By that time he had no radiation of the pain or paraesthesia, weakness or numbness.[50]Thoracolumbar spine x-ray a mild lumbar scoliosis convexed to the left side, but no compression fracture, defect or slip was detected.[51]
  1. [60]
    The plaintiff then presented to his general practitioner, Dr Smith on 2 February 2007. He provided a history of the stair incident injury, complained that hisright leg felt as though it would collapse under him with ongoing paraesthesia into lateral aspect and base of right foot.  He also complained of spasm in lumbar area and referring into his neck.[52]This promoted a CT scan referral but which did not reveal any significant disc herniation in the lumbar spine or any other major disc or bony abnormality in the lower thoracic or lumbar spine.[53]
  1. [61]
    When Dr Smith reviewed him on 9 February 2007, the plaintiff reported that his radiculopathy leg pain was settling, with no further neck or thoracic pain.  His back was still niggly at times but improving, still painful on leaning forward to wash face, and spasms after hugs around middle.  A few days later, on 14 February 2007, the plaintiff again attended on Dr Smith complaining of difficulty urinating, paraesthesia in groin and burning into foot, but his examination was largely unremarkable.  He was referred to the hospital for orthopaedic assessment.[54]
  1. [62]
    The plaintiff presented at the hospital on 14 February 2007 for groin/penis paraesthesia, pins and needles in his right foot, and lumbar back pain.  An examination on 15 February 2007 produced tenderness in the lumber sacroiliac region with problems down the right leg, and decreased sensations in that leg.[55]MRI investigation on 15 February 2007 showed some minor loss of signal intensity on the T2 sagittal sequences in the L3-4 and L5-S1 discs.  There was no disc herniation shown.  The dimensions of the spinal canal were well preserved and with no evidence of lower cord or cauda equine lesion.
  1. [63]
    Following this presentation, the plaintiff was re-assessed by Dr Smith on the same day which revealed tenderness at L3-S2, pinpoint sharp sensation present from T7 to S1 on the leg, sensation on buttock too sharp, numbness of anal opening, priapism of penis, and paraesthesia on penile head and scrotum that worsened with positional change.  The plaintiff had normal leg reflexes, tone and power 5/5 throughout lower limb, paraesthesia into L4/5 distribution right foot, a normal gait.  He had retained urine continence and reduced flow of urine.[56]
  1. [64]
    The plaintiff attended on Dr Haynes, Occupational Physician for assessment on 27 February 2007 in relation to his hand symptoms, but he also complained of back pain yet was observed to sit comfortably and moved without evident restriction.[57]However, when the plaintiff presented to Ms McAuliffe (formerly Mirotsos) a day after he reported faecal incontinence; difficulty to initiate or control urination; frequent urge to urinate; waking with mild faecal incontinence, unusual nocturnal pattern of urinary urge and increased frequency; pain in the right posterior thigh, calf and great toe in standing; pain in the right posterior thigh, calf and great toe in long sitting; pain in the right posterior thigh, calf and great toe in hip flexion, and when combined with dorsiflexion results in genital and anal “burning”; pain in the genital and anal region combined with posterior right thigh, calf and great toe pain and significant palpable gluteal trigger points, quadratus lumborum and erector spinae spasm.
  1. [65]
    The plaintiff injured his shoulder in the security incident on 24 June 2007. I have concluded above that the mechanism of the plaintiff’s fall resulting in his shoulder injury was not caused by the ongoing problems caused by the stair incident. In my view the security indecent was separate and discrete and I am unpersuaded that it contributed to the plaintiff’s other signs and symptoms.
  1. [66]
    Further MRI investigations of the lumbar spine and pelvis were undertaken on 26 March 2008 and showed some minor desiccation of the L3/4 and L5/S1 intervertebral disc with a probable small annular tear at L5/S1.  There was no evidence of canal stenosis or root compression.  In the pelvis there was some slight thickening of the rectal wall, albeit probably not of significance, but direct or digital check was recommended.
  1. [67]
    In the meantime, Dr Smith’s clinical notes of the plaintiff’s frequent and multiple visits reveal continued escalation and complexity in his perceived problems and chronic pain complaints.[58]In this regard, there is significant overlap between the plaintiff’s back and leg, foot and groin and penile complaints.  Before the security incident, the plaintiff complained of right foot and right buttock paraesthesia, especially on activity and prolonged standing, related to muscle spasm from injury. He was required to use appropriate analgesia and continue taking Tegretol.  
  1. [68]
    In September/October 2009, Dr Smith became concerned that the plaintiff was “developing CRSD in foot” by comparison to her involvement in the plaintiff’s right hand treatment and CRSD diagnosis.[59]
  1. [69]
    On 22 September 2009, Dr Smith noted continuing changes in the plaintiff’s right foot including: thickened skin on outer aspect of right foot; red discolouration of outer aspect of right foot; splaying of fourth and fifth toes on plantar flexion of toes – (no useful toe movement of these two toes); hair loss S1 distribution on right foot; continuing pain into right buttock and groin, no sexual activity due to pain and loss of confidence; light touch of right foot causes burning pains, similar to right hand CRSD (discussed touch therapy to the right foot with different textures/temperatures to try and reteach right foot nerves better tolerance of sensation).[60]
  1. [70]
    Later on 23 October 2009, Dr Smith noted obvious changes in the right foot in the fourth and fifth toes lateral aspect with thickening of the skin creases, loss of hair and splaying of the toes on movement. The plaintiff reported burning pains on light touch to the dorsum of the right foot and hypersensitisation of the area (for example, he felt a irritation after a single drop of water was placed on the foot, and cannot wear shoes due to significant irritation to the foot). Dr Smith recorded her concern that the plaintiff was “developing CRSD in foot”.[61]
  1. [71]
    The plaintiff continued to receive physiotherapy treatment by Ms McAuliffe and at other times Ms Rowlands and Amanda Gale, who have collectively provided a valuable narrative of the plaintiff’s complaints and physiotherapy treatment for an extended period transcending most other medical practitioners. I am particularly impressed by the expertise of Ms McAuliffe resulting from her experience and training in pain management in her capacity as a physiotherapist.[62]
  1. [72]
    The plaintiff’s general management was subsequently overseen not only by Dr Smith but by other general practitioners including Dr Yates, Dr Baulch and Dr Laws. There was some inevitable loss of collective medical intelligence concerning the plaintiff during that time.
  1. [73]
    On 5 April 2011 an MRI and X-Ray were performed on the lumbosacral spine. Mild degenerative changes were seen through the lumbar spine. However, no crush fracture, pars defect or bone destructive process was apparent. There was no significant compromise of the conus, cauda equine, thecal sac, lateral recesses or neural exit foramin. There was no significant malalignment on flexion or extension.
  1. [74]
    Dr Laws had the most regular and consistent contact with the plaintiff from early 2011.  The defendant was critical of Dr Laws’ evidence because, for example, he was influenced by the plaintiff in the administration of B12 injections,[63]certification of crutches,[64]and his inability to prescribe narcotics.[65]These matters merely reflect the complexities faced by the doctor in managing the plaintiff’s personality traits.  Dr Laws was also questioned about why the register of the Australian Health Practitioner Regulation Agency his first registration on 1 July 2010,[66]and not 1987 as he testified.  I do not think much turns on this in the circumstances of this case.
  1. [75]
    Dr Laws continued to navigate the plaintiff between referrals to various specialist medical experts for his complex presentations, multifaceted complaints continuing chronic pain. These things, as well as the plaintiff’s urging to explore CPRS, lead to the referral to Dr Tadros, a consultant in rehabilitation and pain medicine, and other practitioners for treatment and continuing pain management.
  1. [76]
    Despite Dr Emery’s opinion on 9 January 2009 that lumbar epidural steroid injection may help the plaintiff’s current symptoms, it wasn’t until 27 July 2011, 22 June 2012, 26 February 2015 and 22 June 2015 that the plaintiff underwent the treatment with an eventual positive response.
  1. [77]
    Dr Tadros coordinated the plaintiff’s pain management and treatment. On 21 March 2012, the plaintiff mainly complained of his mechanical lumbosacral pain and seemingly right sided L5 radicular pain; electrical burning, an aching sensation that was worse on the dorsum of his right foot extending up to his knee; associated allodynia, myoclonus and spasm, as well as hyperhidrosis and skin and vasomotor disturbance. The plaintiff also reported burning in his penis after orgasm and after two occasions. He referred the plaintiff to a desensitisation program as a precursor to treatment at St Vincent’s Hospital.
  1. [78]
    The plaintiff was assessed by occupational therapist, Ms Helen Coles. She recorded that the plaintiff had constant pain in his buttocks/coccyx; “deep throbbing pain” after sitting for too long and now constantly in his right buttock; the pain was worse during sexual activity; pins and needles and a throbbing pain in his right foot when wearing a sock and shoe, standing for long and when walking; his fourth and fifth toes still would not curl and his outer side of foot was dry; discoloured heel, foot swelling, spasms at times when walking; ache of foot and calf, at times throbbing and shaking too much to walk; lower back pain constant and aggravated by prolonged sitting and standing, sexual activity, wearing tight pants or even wearing a belt; left shoulder and arm pain was intense, though pain only radiated a little now towards the shoulder blade.[67]
  1. [79]
    The plaintiff attended upon Dr Petkov (registrar for Dr Bryant) at the Pain Management Clinic in Townsville on 12 September 2012. He complained of constant and throbbing right foot pain associated with burning and numbing sensation; occasional ‘electric shocks’ radiating up to knee; associated spasms of his toes; regular swelling of the fourth toe; and that pain was aggravated by pressure on the foot, wearing shoes and cold. Examination revealed some hair loss on the lower lateral aspect of right leg but no apparent skin colour changes, temperature asymmetry or oedema. The plaintiff also complained of intermittent chronic lower back pain, central throbbing pain and radiating down to his right calf. Dr Petkov opined that “[b]ased upon my assessment today he does not fit the classical criteria for CRPS as per the Budapest Clinical Diagnostic Criteria for CRPS.”[68]When later reviewed by Dr Bryant on 7 November 2012, the plaintiff reported a 30% reduction of pain following his guided facet joint injection performed months before.
  1. [80]
    The plaintiff was then admitted to the St Vincent’s Hospital inpatient Re-Charge for Life Program from 18 February 2013 to 1 March 2013. His entry assessment identified constant but variably intense right lower leg pain that extended from right calf muscle down into foot and toes; ongoing diffused lower back pain; burning and aching pain in the right leg associated with swelling and discolouration; occasional lower leg spasm; severe allodynia – particularly sensitive to light touch on the right foot and lower leg and struggled wearing a shoe on his right foot due to severe tenderness and pain hypersensitivity; and a gait pattern characterised by some reluctance to fully weight-bear through his right leg. The plaintiff was discharged with an overall improved mobility level.
  1. [81]
    However, the clinical notes record the plaintiff’s continuing struggle with chronic pain in conjunction with ongoing treatment to his back, right leg and foot, as well as various medico-legal assessments including by Dr Tadros, Dr Vaghlese, Dr Ohlrich, Dr Todman and Ms Coles.
  1. [82]
    A triple phase bone scan on 12 May 2014 showed relatively subtle diffused increased tracer uptake on both the early soft tissue and delayed bony phase images, primarily within the right foot. The analyst added that while this does not have the typical peri-articular bony uptake pattern for classical CRPS, this appearance could relate to more chronic or partially treated CRPS. No other significant abnormality was detected.[69]
  1. [83]
    On 13 August 2015, Ms McAuliffe noted that: the plaintiff had pain in lumbar flexion but he was able to reach mid tibia; lying down in bed supine caused pain in his back; he had trouble sleeping due to right leg pain and constantly needed to keep moving about; he had decreased hair on the outside of the right ankle; and his right foot was purple with decreased temperature consistent with CRPS.[70]
  1. [84]
    The plaintiff was again admitted to St Vincent’s Hospital pain clinic, this time for a ketamine infusion between 17 August 2015 and 28 August 2015. On admission he complained of spasms of pain down the right lower leg radiating up the back; hyperalgesia with pain/spasms in the lower limb with light touch, and increased sensitivity to cold sensation; dystonia in the right lower limb upon light touch and sensory testing especially with cold; and marked erythema in the toes of the right foot, with an inability to wear shoes and socks on the right foot. He was independently mobile but limited by right neuropathic leg pain. The plaintiff had decreased weight-bearing on the right and decreased toe off. In contrast, on discharge the plaintiff showed decreased incidences of dystonia in the right leg and was able to tolerate being touched and having different textures on right leg/foot; he was able to wear shoes and socks for 30 mins before reporting tingling in the sole of the right foot; he had improved gait pattern with even more weight-bearing through the left and right foot and moved independently up and down stairs.
  1. [85]
    The plaintiff was again assessed by occupational therapist, Helen Coles, on 19 December 2015. The plaintiff continued to complain that: he still experienced a deep throbbing pain in his buttocks/coccyx after sitting for long, now constantly in his right buttock, which worsen during sexual activity; back spasms and pain down right leg; he still experienced pins and needles and throbbing pain in the right foot when wearing a sock and shoe and also prolonged standing; his fourth and fifth toes still would not curl; his skin along the outer side of foot was dry; he also had spasms in the foot when walking and sometimes his foot and calf ache, throb and shake; pain was always present in his lower back but had eased since ketamine infusion; and the pain in his left shoulder and arm had eased.

Expert Opinion

  1. [86]
    The expert orthopaedic surgeons and neurosurgeons disagree about the nature or extent of the plaintiff’s back injury.
  1. [87]
    Dr Guazzo, neurologist, saw the plaintiff once in May 2007 and once as an outpatient almost a year later on 20 March 2008. He found no objective neurological signs to explain the plaintiff’s subjective symptoms of intermittent lower back pain and paraesthesia of the right buttock, occasional paraesthesia of the foot and restricted toe movement. In 2007 he thought the plaintiff suffered soft tissue injuries. In 2008, Dr Guazzo’s examination included no calve wasting, normal reflexes, slightly restricted movement due to back pain, ability to walk on toes and heels and no lower limb weakness. At best, in 2008 Dr Guazzo could not explain the plaintiff’s symptoms by any known discrete neurological injury. It seems to me that Dr Guazzo did his best to diagnose by a process of elimination.
  1. [88]
    Under cross-examination he acknowledged that the symptoms reported by the plaintiff of intermittent right buttock pain, worsening when seated, occasional paraesthesia in the foot and no sensation of orgasm, seemed “real”, and were indicative of some problem arising in the lumber spine. Dr Guazzo’s examinations occurred before the results of the later MRI undertaken on 26 March 2008 and merely provide historical context to the plaintiff’s condition.
  1. [89]
    The plaintiff was examined by Dr Tuffley, orthopaedic surgeon, on 23 August 2007. The plaintiff reported chronic low back pain, sensory disturbance in the right foot made worse by wearing shoes, paraesthesia in right butt cheek, loss of sensation in his penis during intercourse, and loss of sensation of his penis being within a vagina.  Increased sweating around his anus and a loss of anal tone.  On examination the plaintiff was not tender to touch over the lumbar spine, had no measured wasting in thighs or calves, produced straight leg raising to 40o bilaterally and his deep tendon reflexes were normal.  Dr Tuffley was unable to explain the plaintiff’s unusual neurological symptoms either on clinical grounds or based on the imaging studies.[71]Given the narrow context of the plaintiff’s referral to Dr Tuffley, I found his opinion appropriately narrow, constrained and of limited assistance.
  1. [90]
    Dr Robert Labrom, orthopaedic surgeon, saw the plaintiff on 2 July 2009. At the time of examination the plaintiff complained of constant low back pain, pain in his right leg, and pins and needles in his feet when he wears socks. He also reported difficulty wearing enclosed shoes. The pain diagram showed pain in the plaintiff’s right buttock cheek, posterior thigh, posterior calf and lateral right foot. The pain was rated at 5.5 out of 10 and worsened with prolonged sitting or standing for more than 30 mins. Dr Labrom only had one opportunity to examine the plaintiff and seemed to be particularly swayed by Dr Guazzo’s report amongst his large brief. Dr Labrom only identified mild degenerative changes in the lumbosacral region in the MRI dated 17 January 2008. He concluded that the plaintiff had suffered a soft tissue and musculoligamentous injury to his lumbosacral region. He concluded that the plaintiff had no measurable loss of function and accordingly no permanent impairment in his spine and any continuing muscle or ligament strain were not attributable to the stair incident.
  1. [91]
    Dr Labrom’s testimony was consistentlynarrow.[72]It seemed to me that he resisted attributing any difference or credence to the later MRI investigations of the lumbar spine and pelvis undertaken on 26 March 2008, which show some minor desiccation of the L3/4 and L5/S1 intervertebral disc with a probable small annular tear at L5/S1.[73]In those circumstances, the weight of Dr Labrom’s opinion is significantly diminished.
  1. [92]
    Dr Don Todman, neurologist, hadthe advantage of seeing the plaintiff in July 2008, October 2009, March 2011 and May 2015, and produced multiple reports.  In his last report, Dr Todman recorded that: the plaintiff continued to feel low back pain and right sciatica, with worsening pain and associated symptoms in the right leg; the back pain was present constantly in the midline and right paravertebral regions and extended to the right buttock and posterior thigh and calf; symptoms increased with prolonged standing, prolonged sitting, bending, twisting and lifting; numbness in right foot and swelling;  and spasms in right foot and calf muscles.  Dr Todman opined that the plaintiff’s lumbar spine injury resulted in an annular tear at L5/S1, and right sciatica with increasing symptoms in the right leg.  He assessed the plaintiff’s injury as a DRE Lumbar Category 3 being one with significant signs of radiculopathy using Table 15.3 of the American Medical Association Guides 5thEdition for the Evaluation of Permanent Impairment (“AMA5”). 
  1. [93]
    He maintained his view at trial.[74]In his oral evidence, Dr Todman opined that there was fairly strong circumstantial evidence that the plaintiff had a disc injury, probably with a small disc protrusion not demonstrated radiologically, was likely caused the leg pain and numbness of his right leg, which corresponds to S1 nerve root.[75]   I was impressed by the careful, longitudinal and logical approach of Dr Todman’s evidence. 
  1. [94]
    The plaintiff was next examined by neurosurgeon Dr Lucas on 31 March 2011. The plaintiff did not appear to have a discogenic or facet mediated pain syndrome classically, though he did have a lot of central back pain. He had right sided leg discomfort which appeared largely at the L5 distribution, though it appeared to cross into the S1 distribution.  Dr Lucas characterised autonomic changes in the L5 distribution distally with hair loss, altered skin quality and occasionally swelling. There were no inguinal pathologies that could be demonstrated clinically.  He also concluded that the imaging demonstrated an L5/S1 desiccated disc and an L3/4 desiccated disc with poor core musculature but little else.  There was no neural impingement on imaging.  He opined that the imaging simply reflected wear and tear changes consistent with the passage of time, being years.[76]
  1. [95]
    Dr Ohlrich, neurologist, examined the plaintiff on 5 September 2013. The plaintiff then described pain in the right foot.  He vaguely described the localisation of this pain involving both the dorsum and sole of the foot.  He also reported spasms involving his foot whereby his toes would splay and he would develop an apparent spasm in his right calf.   He described some pain over his lower back with bending.  He was not able to walk on his right leg for any period of time, otherwise it would become tight and stiff, as well as spasm and ache at night.  The plaintiff reported no numbness or pins and needles in the right foot.  The plaintiff also complained of various sexual, bladder and bowel symptoms, and reported a recent occasion when he spilt water on his right foot and caused the foot to become red. 
  1. [96]
    On examination, Dr Ohrich found sores over the anterior aspect of right lower leg but no colour change or alteration in temperature or sweating. He found oedema involving both ankles and lower legs, marginally worse on the right side. He also noted an absence of hair growth over the lateral aspect of right lower leg from the middle of the lower leg to the foot, and rough calluses over both heels, but more prominently on the right heel. The plaintiff apparently reacted to light touching of the right foot, lower leg and underfoot, with splaying of toes of right foot, complaint of spasm in the calf and an outburst of crying and wailing. However, the plaintiff was able to walk relatively normally with the sole of the right foot touching the ground. Dr Ohlrich found no neurological impairment resulting from the stair incident, and opined that any symptoms resulting from the injury would have settled within weeks.[77]Hedismissed Dr Todman’s assessment because there was no disc lesion shown on the MRI scan.[78]
  1. [97]
    Dr Tadros, a consultant in rehabilitation and pain medicine, has been involved in the plaintiff’s management and treatment since early 2012, including the plaintiff’s admission into the St Vincent’s Hospital Pain Management Program. He has reported on the plaintiff on 21 March 2012, 14 September 2012, 29 January 2013, 1 March 2013, 26 April 2013, 3 June 2014,1 July 2014, 29 June 2015 and 24 November 2015. From an early stage, Dr Tadros considered that the plaintiff showed objective signs of CRPS Type 1 involving his right lower limb and chronic lower back pain secondary to an annular tear at L5/S1 with associated arthropathy.  Dr Tadros was cognisant of the plaintiff’s “black and white thinking” and tendency to be “very concrete”, which may lead to anger, irritability and impulsiveness. 
  1. [98]
    In June 2014, the plaintiff complained to Dr Tadros of bilateral lumbosacral pain with associated L5 radicular pain and electrical, burning and aching pain down the whole right leg into the dorsum and planter of the right foot. He also complained of allodynia, myoclonus spasm, hyperhidrosis and swelling of his right leg and colour change. At the time of examination, the plaintiff was very anxious, distressed and cried throughout the interview. He had a right sided antalgic gait; a punctate and brush-induced allodynia from his knee inferiorly on the right side; visible signs of myoclonus with minor touch; decreased skin growth and decreased hair growth on his right lower limb as well as swelling and discolouration. Dr Tadros assessed the plaintiff’s impairment of 24% according to a category 2 level of impairment under table 16:10 of the AMA5.

Back Injury Assessment

  1. [99]
    I accept that the plaintiff fell backwards, struck his lower back and tail bone area and thereby suffered a low back injury as a consequence of the stair incident.
  1. [100]
    Dr Todman opined that there was fairly strong circumstantial evidence that the plaintiff had a disc injury, probably with a small disc protrusion not demonstrated in the MRI, but the effects of which have been leg pain and the numbness of his right leg, which corresponds to S1 nerve root.[79]He assessed the plaintiff’s injury as a DRE Lumbar Category 3 with a 13% whole person impairment being one with significant signs of radiculopathy using Table 15.3 of the AMA5. 
  1. [101]
    The other doctors excluded any serious neurological injury. Dr Labrom opined that the plaintiff suffered a soft tissue and musculoligamentous injury to his lumbosacral region, but concluded that as at 2 July 2009 his symptoms were not attributable to the stair incident.[80]Dr Ohlrich also considered that any symptoms would have been expected to have settled within a matter of weeks.[81]Similarly, Dr Lucas expected resolution within a short time and considered that the plaintiff’s symptoms were disproportionate.  He opined that the imaging simply reflected wear and tear changes consistent with years.[82]Dr Tuffley was unable to explain the plaintiff’s unusual neurological symptoms either on clinical grounds or on the basis of the imaging studies.[83]Dr Guazzo assessed a soft tissue injury to the plaintiff’s lower back.[84]
  1. [102]
    I accept Dr Todman’s evidence that whilst the MRI scans do not show a disc protrusion,[85]it may well have healed beforehand.[86]MRI investigations of the lumbar spine and pelvis undertaken on 26 March 2008, show some minor desiccation of the L3/4 and L5/S1 intervertebral disc with a probable small annular tear at L5/S1.[87]There is also the significant overlap in the plaintiff’s reporting about a low back injury and/or radiculopathy and CRPS.
  1. [103]
    Therefore, given the state of the evidence, I assess the plaintiff’s low back injury as an ISV 10 being in the lower end of the range of a moderate thoracic or lumbar spine injury – fracture, disc prolapse, or nerve root compression or damage (Item 92) or in the upper range of a moderate thoracic or lumbar spine injury – soft tissue injury (item 93).

Chronic Pain Assessment

  1. [104]
    The plaintiff complains that his back and leg problems culminate in a complex regional pain syndrome (“CRPS”),[88]which has been the subject of intense medical scrutiny and occupied much of the trial. 
  1. [105]
    The diagnoses of CRPS is heavily reliant on the subjective complaint of pain coupled with a preponderance of objective findings identifiable by a physical examination and demonstrated by radiologist techniques. The AMA5 provided that at least eight of the following objective diagnostic criteria must be present concurrently for a diagnosis of probable CRPS I in Table 16-16, namely:[89]

Local clinical signs

Vasomotor clinical findings:

  • Skin colour: mottled or cyanotic
  • Skin temperature changes
  • Oedema

 

Sudomotor changes:

  • Skin dry or overly moist;

 

Tropic changes:

  • Skin texture: smooth, nonelastic;
  • Soft tissue atrophy: especially in fingertips;
  • Joint stiffness and decreased passic motion;
  • Nail changes: blemished, curved, talon like;
  • Hair growth changes: fall out, longer and finer.

 

Radiographic signs:

  • Radiographic: tropic bone changes, osteoporosis;
  • Bone scan: findings consistent with CRPS.

Interpretation

  • ≥ 8 Probable CPRS
  • < 8 No CPRS
  1. [106]
    These objective criteria are repeated in Table 15-25 of AMA6, however, the Objective Diagnostic Criteria for CRPS adopted the incidence of signs and symptoms for diagnoses to account for valuable but different data between examinable signs and symptoms reports by the patient. Table 15-24 provides as follows:[90]

1) Continuing Pain, which is disproportionate to any inciting event.

2) Must report at least 1 symptom in 3 of the 4 following categories:

- Sensory: Reports of hyperesthesia and/or allodynia;

- Vasomotor: Reports of temperature asymmetry and/or skin colour changes and/or skin asymmetry;

- Sudomotor/Edema: Reports of edema and/or sweating changes and/or sweating asymmetry;

- Motor/Trophic: Reports of decreased range of motion and/or motor dysfunction (weakness, tremor, dystonia) and/or trophic changes (hair, nail, skin).

3) Must display at least 1 sign at a time of evaluation in 2 or more of the following categories:

- Sensory: evidence of hyperalgesia (to pinprick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement).

- Vasomotor: Evidence of temperature asymmetry and/or skin colour changes and/or asymmetry;

- Sudomotor/Edema: Evidence of edema and/or sweating changes and/or sweating asymmetry.

- Motor/Trophic: Evidence of decreased range of motion and/or motor dysfunction (weakness, tremor, dystonia) and/or trophic changes (hair, nail, skin).

4) There is no other diagnosis that better explains the signs and symptoms.

* A sign is counted only if it is observed and document at time of the impairment evaluation.

  1. [107]
    Dr Todman also assessed the plaintiff’s CRPS using AMA 5, Table 13.15 Class 1 as 9% of whole person impairment which is in the upper part of the range. It seems to me this opinion is based on the diagnosis of Dr Tadros. Dr Todman examined the plaintiff in July 2008, October 2009, March 2011 before providing the diagnosis of CRPS in May 2015. He agreed that he did not see any signs or symptoms of CRPS in his earlier examinations[91]and that any signs or symptoms present prior to 2011 couldn’t be related to CRPS.[92]
  1. [108]
    I prefer the evidence of Dr Tadros in relation to the plaintiff’s pain syndrome and management. His evidence is supported by the signs observed by others from time to time, but especially his regular treating medical practitioners and his physiotherapist, Ms McAuliffe. Dr Tadros was uniquely placed as the plaintiff’s treating pain physician without the constraints of litigation.  He is an anaesthetist and physician who has actively worked in as interventional pain medicine for about 12 years and in rehabilitation medicine for about 14 or 15 years.  He has treated many CRPS patients and does not agree that there must be a preceding traumatic injury.  In relation to the opinions of doctors Lucas, Todman, Petkov, Varghese and Ohlrich, Dr Tadros explained in his report of 3 June 2014 that:

“I respect these doctors’ opinions and their views on Mr Fleming, and I believe all have validity.  The natural history of complex regional pain syndrome is that the disease can vary from day to day.  Some of the symptoms may not be visible when one particular pain practitioner views the patient.  This is why I prefer to have the opportunity to observe the patient longitudinally in a multidisciplinary environment with practitioners who are used to diagnosing and management this disease.  Indeed, this is the case for Mr Fleming.  As mentioned above, he was seen by our allied health team which corroborated the above diagnosis.  They also corroborated the associated psychologist issues that are complicating Mr Fleming’s case.”

  1. [109]
    During his viva voce evidence, Dr Tadros testified that there is not always a quick development of the condition, stressing the description of “complex” regional pain syndrome and that it is experienced differently for different people.  Significantly, he said that people may get one or two symptoms and then the condition can be exacerbated and slowly escalate – no one size fits all – and he candidly admitted, “we don’t understand this disease”.[93]
  1. [110]
    During cross-examination, Dr Tadros agreed that the diagnosis of CRPS is a clinical one and that often it’s identified as something that’s disproportionate to what might be the objective observation of injuries sustained.  He also conceded that it may be even difficult to find early signs of the condition.  Dr Tadros drew on his experience to explain that early treatment provides the greatest opportunity for recovery, and conversely delay in diagnosis and/or treatment could well lead to more severe physical and perhaps psychological problems.  He remarked that by the time patients come through the door, the disease is more or less permanent.  All the patient is usually left with in terms of objective signs are neuropathic pain and joint contracture and the other symptoms are minor.
  1. [111]
    I found Dr Tadros’ evidence as to the diagnosis of CRPS very persuasive. He asserted that he “observed signs of complex regional pain syndrome”,[94]but they were not recorded by Dr Tadros.  This is not surprising since the doctor was focused on recovery rather than causation.  Indeed, when challenged about causation he explained:[95]

“I am not a detective.  I can’t go out and see what happens and look at everything objectively.  I am a treating doctor.  The patient comes in. They tell me the history.  They … tell me they fell down the stairs and then they injured their foot and now they’ve got that pain.  So ipso facto I say he’s had an injury.”

  1. [112]
    Dr Tadros’ remarks demonstrate that the diagnosis is dependent on the plaintiff accurately reporting his symptoms. I have already discussed the plaintiff’s credit. His treatment has involved a combination of various medical disciplines and opinions which provide a holistic and longitudinal narrative of his ongoing complaints and treatment.  He had confidence in Dr Tadros and seemed appropriately focused on his pain management.  It is also significant that the plaintiff’s treatment by ketamine infusion reduced the plaintiff’s pain and promoted a functional outcome with reduced medication.
  1. [113]
    I also prefer the persuasiveness of the plaintiff’s treating doctors to the other medico-legal opinions based on quick, static and isolated assessments.  Detailed notes taken by the plaintiff’s treating general practitioners (especially, Drs Smith and Laws) and physiotherapists (especially Ms McAuliffe) helpfully link his attendances upon specialist medical experts.[96]These have also been accurately chronicled by the parties. 
  1. [114]
    Whilst CRPS is often inexplicable,[97]in the circumstances of this case and based on ordinary common sense and experience, I conclude that it is more probable than not that it was the defendant’s negligence arising from the stair incident that caused the plaintiff’s chronic pain syndrome in his left leg and foot.  “More probable” means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty. 
  1. [115]
    After taking these matters into account, I categorise the plaintiff’s chronic pain syndrome in Item 134 being a Serious Lower Limb Injury with an ISV of 23 caused by the stair incident.

Sexual dysfunction, bowel and bladder incontinence

  1. [116]
    The plaintiff also asserts that as a further consequence of the stair incident he has:
  1. Problems with sexual performance and obtaining sexual satisfaction, with the sexual act causing severe lower back, peroneal and penis pain and numbness; and
  1. Incontinence problems.
  1. [117]
    The plaintiff’s myriad of complaints about his urinary incontinence, bowel incontinence and serious sexual dysfunction severely diminishes his quality of life and are likely contributors to his psychiatric condition.
  1. [118]
    Dr James concluded that the plaintiff’s sexual symptoms were “more organic than psychological”.[98]However, the other medical experts have been unable to identify any recognised physiological cause.
  1. [119]
    Dr Gordon, urologist, found no abnormality upon examination.[99]An ultrasound of the urinary tract and scrotum performed by Dr Lewis showed no evidence of hydrocele or varicocele and no penile abnormality was demonstrated.[100]Dr Geoffrey Hirst, urologist, concluded that despite extensive investigation, “none … have identified any abnormality” and “there is no sinister underlying pathology that is causing haematospermia”.[101]
  1. [120]
    Dr Todman opined that “it is possible that [the plaintiff’s] persistent back pain is a contributing factor”[102]to the plaintiff’s sexual dysfunction.  However, he accepted that his priapism, numbness in the penis and a burning pain after orgasm were not, in his experience, signs or symptoms of CRPS.[103]However, Dr Labrom excluded a L5/S1 as a cause of any sexual dysfunction.  He said: “It has no innovation to the pelvic floor, L5 nor S1.  It only has supply to the distal extremity, to the foot and ankle.  So the pelvic floor is supplied by the lower sacral nerves, S3, S4, and sexual function, erection, ejaculation, is supplied by the autonomic nervous system, the parasympathetic and sympathetic nervous systems”.[104]Further, Dr Peter Lucas opined “I do not believe that urinary incontinence, bowel incontinence or serious sexual dysfunction is likely to be caused by the [stair incident]”.[105]
  1. [121]
    Dr Tadros merely wondered whether some of the sexual dysfunction symptoms might be due to CRPS.[106]He said: “At the time I saw [the plaintiff] he was complaining of a number of unusual symptoms which I could not actually ascertain.  He was complaining of sexual dysfunction, specifically burning in his penis after orgasm and on two occasions he had urethral bleeding at the time of ejaculation.”[107]
  1. [122]
    Accordingly, there is a paucity of persuasive medical evidence about the genesis of the plaintiff’s reported sexual dysfunction and bowel and bladder incontinence. Despite the plaintiff’s seemingly genuine and distressing complaints, I am unable to discern sufficient causative connection with the stair incident. I do not assess an ISV for this reason.

Psychiatric Injury

  1. [123]
    The plaintiff claims that he has developed a psychiatric condition. He alleges that:
  1. (a)
    His psychiatric symptoms remain at a severe level, in particular, feelings of depression, helplessness, anxiety, loss of self-esteem and loss of confidence dominating his life causing a very serious diminution of the quality of his life.
  1. (b)
    He has undergone social withdrawal as a result of both his psychiatric and physical disabilities.
  1. [124]
    The plaintiff consulted psychiatrist Dr James during 2008 and 2009 culminating in four reports dated 5 February 2008, 18 April 2008, 14 May 2008 and 25 March 2009.
  1. [125]
    In his report dated 18 April 2008, Dr James opined that the plaintiff’s reactions of anxiety and depression constituted an Adjustment Disorder with Anxiety and Depressed Mood as defined in DSM IV, which he rated as a Class 3 (moderate impairment) using the AMA. He expects that the disorder is likely to fluctuate over time and that the plaintiff would benefit from some psychotherapeutic sessions for a total costs of about $5,000, together with medication at a cost of about $350 to $400 per year. With appropriate treatment he expected that the plaintiff’s condition would be stationary and stable within a year. Dr James affirmed this was his opinion after reviewing the plaintiff and collateral documents on 25 March 2009.
  1. [126]
    On 14 May 2008, Dr James apportioned the extent that the main incidents contributed or caused the condition as follows:[108]
  1. 30% - Penetrating hand injury of 18 December 2004
  1. 45% - Stair Incident of 21 January 2007; and
  1. 25% - Security Incident.
  1. [127]
    The defendant relied upon the more recent and more detailed examination of the plaintiff by Dr Varghese, a consultant psychiatrist. He saw the plaintiff on 4 March 2013 and 6 September 2013, and produced his main report on 26 September 2013.
  1. [128]
    Dr Varghese remarked that the plaintiff’s case was “very complicated with a complex intersection of psychiatric factors, medical factors and injury”.  He formally diagnosed the plaintiff as suffering:
  1. Somatoform Disorder with conversion symptoms.  This was more so a description of the plaintiff’s abnormal illness behaviour rather than a medical disorder or disability; and
  1. Underlying long term Dysthymic Disorder as a reflection of the plaintiff’s general unhappiness with life.
  1. [129]
    However, he opined that there occur in the context of Personality Disorder of a mixed type.
  1. [130]
    In the alternative, Dr Varghese proffered an alternative diagnosis if the plaintiff “has indeed suffered significant physical injury such as to bring about disability …then he could be said to have an Adjustment Disorder to physical disability as against Dysthymia.”[109]This diagnosis cannot co-exist with a diagnosis of Somatoform Disorder or Dysthymic Disorder.  It is narrower but consistent with the conclusions of Dr James which give rise to adifference in the assessment of the plaintiff’s psychiatric disability assessment.
  1. [131]
    Dr James equated his Class 3 (moderate impairment) to a psychiatric impairment rating scale (PIRS) assessment of 40% whole body impairment,[110]which is 18% after the apportionment of 45% to the stair incident.  In an addendum report dated 21 March 2016, Dr Varghese belatedly used using PIRS to assess the narrower alternative disability of Adjustment Disorder as a 3% whole body impairment.
  1. [132]
    I prefer the evidence of Dr James and find that the plaintiff suffered an Adjustment Disorder with Anxiety and Depressed Mood as a result of the stair incident; however, I think Dr James’ assessment is too high. Some matters erode the weight of Dr James’ opinion including the age of his assessment; that he was unaware of relevant aspects of the plaintiff’s history revealed in cross-examination; and that he was less certain about the appropriate apportionment. In addition, Dr James’ assessment of Class 3 (moderate impairment) was made before the plaintiff experienced relative pain relief from the back injections and ketamine infusion.
  1. [133]
    After placing the psychiatric evidence into this context, I categorise the plaintiff’s Adjustment Disorder with Anxiety and Depressed Mood in Item 12 being a moderate mental disorder with an ISV of 8 caused by the stair incident.

Assessment of General Damages

  1. [134]
    In assessing the applicable ISV for general damages, the court must choose the “dominant injury” and adopt an ISV in the range for that injury, taking into account that the ISV may be higher in the range than if there were only a single injury. ‘Dominant injury’ is defined in Schedule 7 of the Regulation:

“If the highest range for 2 or more of the injuries of the multiple injuries is the same—the injury of those injuries selected as the dominant injury by a Court assessing an ISV the Court will have regard to the criteria set out in the Civil Liability Regulation 2003 (Qld); or

Otherwise—the injury of the multiple injuries having the highest range.

Note—

The selection as a dominant injury of a particular injury from 2 or more injuries having the same highest range will not affect the outcome of the Court’s assessment of an ISV for the multiple injuries.”

  1. [135]
    I have found the plaintiff has suffered multiple injuries with the relevant ISVs. The comparative dominance of the more serious injuries are:

Item No.

Injury

ISV

12

Moderate mental disorder

8

92/93

Moderate thoracic or lumbar spine injury

10

134

Serious lower limb injury

23

  1. [136]
    Clearly enough, the plaintiff’s dominant injury is his serious lower limb injury for which I have allowed an ISV of 23. In my view that ISV does not adequately reflect the adverse impact of all the plaintiff’s injuries, and I will apply an uplift of 25% to take account of the multiple medical conditions. The result is an ISV of 29.
  1. [137]
    The resultant ISV of 29 equates to general damages in the amount of $42,200.00.[111]

Economic loss

  1. [138]
    The plaintiff claims that his physical and mental disabilities have reduced his working capacity resulting in economic loss. It is argued that, but for the stair incident the plaintiff could have returned to work in a modern/automated water treatment plant and in security work, albeit with some difficulties.
  1. [139]
    The defendant’s counsel submitted that the plaintiff had no working capacity before the stair incident due to the ongoing disability and restrictions caused by his 2004 right hand injury. It is further submitted, in effect, that he remained unsuitable for any work both before the stair incidentin any event.
  1. [140]
    Section 55 of the Act provides:
  1. (1)
    This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
  1. (2)
    The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
  1. (3)
    If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.
  1. (4)
    The limitation mentioned in section 54(2) applies to an award of damages under this section.
  1. [141]
    In Allianz Australia Insurance Limited v McCarthy,[112]White J remarked about s 55 as follows:

“[47] ... Section 55(2) of the Civil Liability Act mandates that a court may only award damages if satisfied that the person injured will suffer loss of earnings. In this, the provision does not alter the common law.

[48]  In Graham v Baker Dixon CJ, Kitto and Taylor JJ noted:

 “… an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.”

 That is, it must be demonstrated that the injured person’s impairment has resulted in loss in monetary terms. This statement of fundamental principal was restated in Medlin v State Government Insurance Commission:

 “A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute ahead [sic] of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the diminution of … earning capacity is or may be productive of financial loss.”

[49]  In Nichols v Curtis Fraser JA, with whom the President and Chesterman JA agreed, observed of a finding by the primary judge that there was no evidence that the plaintiff had lost employment or, in seeking employment, had rejected work because of her injury:

 “The effect of those findings was that the applicant did not merely fail to prove that it was more probable than not that she would have earned more money if she had not been injured; she failed to establish that there was any real prospect that that [sic] she would have earned more money. On that basis there was no room for the application of Malec v JC Hutton Pty Ltd.”

[50]  His Honour continued:

 “Nor did the primary judge make the mistake of thinking that damages for economic loss were awarded for loss of earnings rather than for loss of earning capacity. Whilst damages are awarded for loss of earning capacity, they are awarded only to the extent that the loss produces or might produce financial loss. In Medlin v State Government Insurance Commission, Deane, Dawson, Toohey and Gaudron JJ held that a plaintiff in [an] action for negligence is not entitled to recover damages for loss of earning capacity unless the plaintiff establishes both that the plaintiff’s earning capacity had been diminished by reason of the negligence-caused injury and that the diminution of earning capacity was or might be productive of financial loss.”” (Footnotes omitted.)

  1. [142]
    I am satisfied that the plaintiff in his current and stable state is wholly incapable of working. An examination of the plaintiff’s pre-accident hand injury and the post-accident shoulder injury must be taken into account to assess the extent of any loss of working capacity and whether it sounds in economic loss.
  1. [143]
    That plaintiff has worked as a water plant operator, warehousing, labouring and most recently as a security officer. After sustaining his hand injury, the plaintiff re-trained as a security guard on 8 July 2006 and he started work in that capacity on 3 September 2006, about five months before the stair incident and ceased six months later on 24 June 2007. He attributes the cessation of his work primarily to the stair incident of 15 January 2007 and the subsequent security incident on 24 June 2007.The plaintiff’s pre-existing hand condition continued to gradually improve but has never completely resolved. 
  1. [144]
    The plaintiff was working as a security guard in a part time capacity before the stair incident until the security incident on 24 June 2007. His first WorkCover claim, in relation to the left shoulder, declared that the plaintiff developed capsulitis and restricted motion and needed orthopaedic and physiotherapy intervention.[113]The plaintiff underwent surgical treatment on 19 December 2007 with the expectation that he’d be fit for work in three months.[114]However, he still had pain and restricted movement in the left shoulder when Dr Todman assessed him in July 2008.[115]In March 2011, Dr Todman noted improvement in the left shoulder but the plaintiff still had some restrictions in lifting his arm horizontally.[116]When the plaintiff saw Ms Coles on 19 April 2012 he reported that his left shoulder and arm pain was still intense at times but only radiated a little now towards the shoulder blade and he no longer experienced “electric shocks”.[117]By the time he was reviewed by Ms Coles on 29 December 2015 his shoulder pain had eased.[118]In February 2016, Dr Laws noted that the shoulder was asymptomatic.[119]
  1. [145]
    I accept that the plaintiff’s shoulder injury has sufficiently resolved and of itself has not been an impediment to the plaintiff’s return to work from February 2016.
  1. [146]
    Throughout this time the plaintiff was enduring the continuing problems with his right hand as a result of the penetrating finger injury sustained on 18 December 2004.  That injury resulted in a prolonged period of treatment, management, infection and multiple medical assessments including carpal tunnel syndrome and CRPS of the handin November 2006 by Dr Smith.  However, Dr Saines, a neurologist, and Dr Haynes, an occupational therapy physician, have since cast significant doubt on the CRPS diagnosis.[120]
  1. [147]
    The plaintiff was assessed by the Orthopaedic Assessment Tribunal on 31 March 2006. The Tribunal described its examination in the decision as follows:

“Surgical scars were noted over the anterior right wrist and the right middle finger.  There’s no evidence of deformity or wasting in the right hand or forearm.  Sensation in the right hand was normal.  Mr Fleming exhibited full digital and wrist function compared with the left.  Power and grip strength were not largely different from the left hand.  Tenderness was located over the carpal tunnel scar.  Tinel’s signs and Phalen’s tests were negative.”

  1. [148]
    In February 2007, the plaintiff complained to Dr Haines that pain radiated to his right forearm and worsened with most activities that required use of his right hand including gripping, lifting and driving.  The plaintiff also reported that gym work caused pain, some swelling and redness in the right hand.[121]
  1. [149]
    On 25 May 2007, in support of the plaintiff’s application for Total & Permanent Disablement benefits, Dr Smith reported that the plaintiff “indicated he was not able to perform reliably in his role as a security guard due to right hand pain and restriction, he was able to modify some duties but would decline shifts offered due to hand pain to recover if hand was actively used to restrain a customer or after training exercises.”[122]Ms Coles agreed that that was the plaintiff’s incapacity at that time.[123]
  1. [150]
    During 2007 Dr Smith recorded that the plaintiff experienced good relief after Tegretol treatment, although the symptoms increased with manual work, including shaking hands and combat training for security work despite Tegretol.[124]In the meantime, the plaintiff was able to return to work as a security guard.  However his attempt to return to work caused him painful grief, including during training sessions and when patrons shook his hand in a gesture of masculinity.  In any event, his work was interrupted by the unrelated security incident on 24 June 2007.
  1. [151]
    In 2008, 2009 and 2011, Dr Todman noted the plaintiff had continuing restrictions due to pain and sensory symptoms in the right hand and forearm.[125]In the trial, Dr Todman drew his old examinations, to give the following evidence:[126]

“… the plaintiff obtained work in a water treatment plant but … its reported that he ceased that work because the labouring was making his hand throb and he couldn’t keep it up.  You’d accept that’s a reasonable response to that type of injury? 

Yes I would.

You’d also accept that a result of that hand injury, the plaintiff isn’t suited to any labouring work or warehousing work, wouldn’t you?

Well, I think those that involve a lot of use of his right hand would be problematic for him, at least if his [symptoms] had remained ongoing.

… In respect of the security officer work, the plaintiff … had difficulty with performing the manoeuvres due to his hand injury.  You’d accept that’s reasonable?

Well, again, I think – yeah.  I think the same answer would apply.”

  1. [152]
    In September 2013, the plaintiff told Dr Varghese that he had no problem with symptoms in the right hand with no numbness in the hand or pain in the arm. This was an oddly optimistic report when compared to Ms Coles findings.
  1. [153]
    Ms Coles, occupational therapist, had the advantage of seeing the plaintiff multiple times since October 2007 and produced reports dated 20 August 2008, 3 August 2012, 22 January 2016, and 10 March 2016. In her oral testimony, Ms Coles affirmed that the plaintiff was incapable of working as a security officer as at 19 October 2007 due to his continuing hand injury problems and very impaired grip strength. She also testified that the plaintiff would be now restricted in his work as a water plant operator,[127]and would have difficulty with labouring or warehousing.[128]When asked about his capacity for work as a plant operator as a result of the hand injury, Ms Coles said:

“He indicated that his hand had improved quite a bit.  It would depend on what he was doing.  But if he was required to fulfil full duties – and I presume you’re referring to just the hand alone without his other injuries?

Yes?‑‑‑He’d be restricted.”

  1. [154]
    In February 2016, Dr Laws noted that both the plaintiff’s right hand and shoulder were asymptomatic.[129]
  1. [155]
    The High Court in Malec v J C Hutton Pty Ltd[130]held that when considering an injured plaintiff’s financial position, if not for the injury, damages should be assessed on the basis of degrees of probability.  That is so even if there is thought to be a less than even chance of loss.  The Court recognised that the assessment of economic loss is neither scientific nor an arithmetic calculation.  The principle is found in the judgment of the majority (Deane, Gaudron, and McHugh JJ) at 642-3 as follows:

“A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect to events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9% - or very low - 0.1%. But unless the chance is so low as to be regarded as speculative - say less than 1% - or so high as to be practically certain - say over 99% - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51% probability of occurring, but to ignore altogether a prediction which has a 49% probability of occurring. Thus, the court assesses a degree or probability that an event would have occurred or might occur, and adjusts its award of damages to reflect the degree of probability. ... The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.”

  1. [156]
    Brennan and Dawson JJ agreed with the general thrust of the majority but considered it undesirable for damages to be assessed on the footing of an evaluation expressed at a percentage, and did not like using 'probability' to describe the possibility of occurrence of a situation that is minimal.[131]
  1. [157]
    Degrees of probability must be taken account of with respect to both pre-trial and post-trial economic loss. It is usual for those heads of damages to be assessed separately as past and future economic loss to realise greater accuracy.
  1. [158]
    It seems to me that, having regard to the whole of the evidence, the plaintiff’s right hand and arm problems had eased by 2015, but he continued to have problems with his hand until early 2016, for example, prolonged gripping and strong squeezing and hand shaking.[132]Since the plaintiff’s shoulder injury had sufficiently resolved by the same time, he could have returned to work as a security guard from February 2016 but for injuries sustained in the stair incident.  Even so, the plaintiff’s compromised state would have restricted him to part-time work with the continuing need to avoid prolonged use, gripping and squeezing of his right hand.  I think the plaintiff’s right hand restrictions and continuing problems would have made him unsuitable for manual work as a water plant operator, in labouring or warehousing.  Further, I am not confident that the plaintiff had reasonable prospects of re-training in automated plant operation or other vocation.
  1. [159]
    In my view, the nature and extent of the plaintiff’s pre-accident working capacity generally equates to his work in the security industry on a part-time and intermittent basis in the period before the stair incident. Ms Coles has provided a summary of different types of security work and associated occupational awards.[133]Doing the best I can on the available evidence and as I find the plaintiff, I adopt a pre-accident working capacity of $400 net per week.
  1. [160]
    Accordingly, I conclude that the plaintiff’s earning capacity has been diminished because of his other injuries, which in turn have been all but extinguished as a consequence of the stair incident. Therefore, the plaintiff has shown that his physical and mental disabilities caused by the stair incident are likely to realise economic loss of $400 net per week.
  1. [161]
    On this basis, I assess the plaintiff’s past economic loss at $18,000.00, being $400 net per week for about 45 weeks from early February 2016.
  1. [162]
    I will allow past superannuation loss of $1,665.00 using the rate of 9.25%.
  1. [163]
    No interest is claimed on past economic loss.

Future economic loss

  1. [164]
    The plaintiff is only 43 years of age and as such has a prospective working life of 24 years with the new retirement age of 67.
  1. [165]
    There remains a fair prospect that the plaintiff will continue to improve in his physical capacity with determined pain management and treatment.  This will result in a commensurate improvement in his working capacity, but is unlikely to equate to an increase in or any residual earning capacity. 
  1. [166]
    The plaintiff’s counsel contends that an award of $300,000 using a global approach is appropriate. He compared this to $500 net per week for 34 years on the 5% tables to get $433,000, then applying a 30% discount for contingencies to achieve $303,100.[134]
  1. [167]
    In my view, the nature and extent of the plaintiff’s pre-accident working capacity was $400 net per week.
  1. [168]
    Even so, the circumstances of this case do not enable me to precisely calculate future economic loss and I prefer a global award. There are many variables and imponderables arising out of the plaintiff’s symptoms, his pre-existing state, the progressive deterioration in his manual capacity, the medical evidence of anunderlying personality trait identified by Dr Varghese that predisposed him to react badly to exigencies of life, intermittent and part time work and risks on the labour market, pre-accident work capacity and his employability in his area of skill and experience.
  1. [169]
    I will allow $220,000.00 for future economic loss.  I rationalise this outcome by using $400 net per week loss of earning capacity for 24 years to age 67 using the 5% multiplier of 733 to achieve $293,200.00 and then applying a discount of about 25% for the contingencies of the plaintiff’s life.
  1. [170]
    I will allow future superannuation loss of $25,105.00 using the rate of 11.41%.[135]

Special damages

  1. [171]
    Clearly enough the plaintiff has incurred significant past medical and other expenses for treatment and rehabilitation as summarised and attested to in the plaintiff’s quantum statement.[136]
  1. [172]
    Given the significant overlap in his symptoms, it is difficult to isolate and exclude expenses which are solely attributable to extraneous injuries and conditions, for example his penetrating hand injury, shoulder injury and sexual dysfunction. I have excluded WorkCover payments/refunds relating to the shoulder injury since I have found not causal connection of that injury with the stair incident.
  1. [173]
    Therefore, I allow $75,994.50 for special damages calculated as follows:

Medibank refund – 05.02.16

$7,164.00

Medicare refund – 07.03.16

$22,845.60

Cairns Base Hospital refund

$2,126.00

Physiotherapy fees owing

$5,902.00

Crown Law refund 2013 pain clinic

$15,987.50

Out of pocket expenses

$21,969.40

Total

$75,994.50

  1. [174]
    I also allow interest on the plaintiff’s out-of-pocket expenses in the amount of $3,698.82 being 1.7% of $21,969.00 for 516 weeks.

Future expenses 

  1. [175]
    I accept the plaintiff’s claim for future medical and rehabilitative expenses, which were not subject of significant challenge by the defendant in the event of consistent findings.
  1. [176]
    Therefore, I allow $48,500.00 for future expenses having regard to the plaintiff’s quantum statement,[137]calculated as follows:

Future physiotherapy

$5,000.00

Future pain management/medical

$30,000.00

Future pharmaceutical

$3,000.00

Future vocational rehabilitation

$7,500.00

Future travel

$3,000.00

Total

$48,500.00

Future care and assistance

  1. [177]
    The plaintiff claims for future care and assistance in reliance upon the assessments of Ms Coles.[138]
  1. [178]
    Section 59 of the Act provides for damages for gratuitous services provided to an injured person as follows:
  1. (1)
    Damages for gratuitous services provided to an injured person are not to be awarded unless—
  1. (a)
    the services are necessary; and
  2. (b)
    the need for the services arises solely out of the injury in relation to which damages are awarded; and
  3. (c)
    the services are provided, or are to be provided—
    1. for at least 6 hours per week; and
    2. for at least 6 months.
  1. (2)
    Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.
  2. (3)
    In assessing damages for gratuitous services, a court must take into account—
  1. (a)
    any offsetting benefit the service provider obtains through providing the services; and
  2. (b)
    periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.
  1. [179]
    The plaintiff is able to persevere with his personal care. However, I accept Ms Coles’ evidence in relation to the plaintiff’s need for future care and the relevant rates for:
  1. Domestic assistance of 1-2 hours gratuitous care or 3 to 4 hours paid per week; and
  1. Yard and garden maintenance of 3 to 4 hours per month.
  1. [180]
    It seems to me that the plaintiff’s for these services arises solely out of the injuries sustained in the stair incident, and they are likely to exceed 6 hours per week well for the foreseeable future well beyond 6 months.
  1. [181]
    Therefore, I accept the plaintiff’s claim of a global award of $30,000 for future care and assistance, which is modest in the circumstances.

Conclusion and orders

  1. [182]
    For these reasons, I assess damages and give judgment for the plaintiff against the defendant for $465,167.50 summarised as follows:

General damages

$42,200.00

Past Economic Loss

$18,000.00

Past Superannuation Loss

$1,665.00

Future Economic Loss

$220,000.00

Future Superannuation Loss

$25,102.00

Past Special Damages

$75,994.50

Interest on past Special Damages

$3,706.00

Future Special Damages

$48,500.00

Future care and assistance

$30,000.00

Total

$465,167.50

  1. [183]
    I will hear the parties further on the issue of costs.
  1. [184]
    However, unless either party applies for, or the parties otherwise agree to, a different costs order within 30 days of this judgment, I will also order that the defendant pay the plaintiff’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

Judge D. P. Morzone QC

Footnotes

[1]  Statement of Claim, paras 7(c), (d) and (e).

[2]  Statement of Claim, paras 8(a)-(k).

[3]  Statement of Claim, para 9(l).

[4]  Cf. McMeekin J in Schneider v Smith & Anor [2016] QSC 47 at [22].

[5]  [1997] QCA 224 at [7].

[6]  Approved in in Lusk v Sapwell [2011] QCA 59 per Muir JA (with Margaret Wilson AJA and A. Lyons J agreed).

[7] Bell v Mastermyne Pty Ltd [2008] QSC 331 at [19], adopted by Martin J in Monger v Camwade [2011] QSC 097 at [25] and [26].

[8]  Exhibit 8, p 7.

[9]  Exhibit 8, p 8.

[10]  Exhibit1, p 39.

[11]  Exhibit 1, p 31.

[12]  Exhibit 1, p 47; T5-8/37 – T5-9/5.

[13]  Exhibit 8, p 20.

[14]  For example, Exhibit 2, Dr Smith Vol 4, tab 30, pp 204, 205 & 228; Exhibit 2, Dr Laws Vol 4, tab 30, p 312.

[15]  Referred to in Appendix A of the Defendant’s Outline of Submissions.

[16]  Exhibit 3, PBS list, G.

[17]  T2-95/7; T2-95/17; T2-95/24-27; T1-14/10-20.

[18]  Exhibit 17, p 1.

[19]  Exhibit 17, p 38.

[20]  Exhibit 17, p 43.

[21]  T2-95/9-10; T2-94/25-45.

[22]  For example, Exhibits 16, 20, 22 and 27.

[23] State Government Insurance Commission v Oakley (1990) 10 MVR 570.

[24] Tabet v Gett (2010) 240 CLR 537.

[25] Chappel v Hart (1998) 195 CLR 232 at 269-270; Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6.

[26] Medlin v State Government Insurance Commission (1995) 182 CLR 1.

[27] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 174-5.

[28] Civil Liability Act 2003 (Qld), s 7(5).

[29]  (2013) 297 ALR 383.

[30]  T1-17/1-18.

[31]  T1-12/24-30; Exhibit 3; T1-17/3-18 – T1-19/45; T3/30-31; T3-71; T3-85.

[32]  Exhibit 3, paras 57-62.

[33]  T1/18/25-31.

[34]  Exhibit 3, paras 76-77.

[35]  T1-19/10-45.

[36]  Referred to in Appendix A of the Defendant’s Outline of Submissions.

[37]  Statement of Claim, para 9(l).

[38]  Exhibit 1, Coles Report 1, p 4.

[39]  Exhibit 3, Quantum Statement, Part A, para 77.

[40]  Exhibit 1, Todman Report, p 11.

[41]  Exhibit 2, Labrom Report, p 5.

[42]  T5-34/21-27.

[43]  T5-34/44-46.

[44]  Statement of Claim, para 9(a)-(h); Exhibit 3, Quantum Statement, and plaintiff’s testimony.  Note incontinence and sexual dysfunction alleged in 9(f)(ix) & (xi) dealt with later.

[45]  Defence, paras 7(a), (b), s 10(a), (d)(i).

[46]  Defence, para 9.

[47]  T1-17/3-7; T1-17/12-17; T1-25/17-18.

[48]  Exhibit 2, Vol. 2/24 & Vol. 1/19.

[49]  Exhibit 2, Vol. 3/29.

[50]  Exhibit 2, Vol. 4/30.

[51]  Exhibit 2, Vol.  2/18.

[52]  Exhibit 2, Vol. 4/30.

[53]  Exhibit 2, Vol. 3/29.

[54]  Exhibit 2, Vol. 4/30.

[55]  Exhibit 2, Vol. 1/18.

[56]  Exhibit 2, Vol. 4/30.

[57]  Exhibit 2, Vol. 1/11.

[58]  Exhibit 2, Vol. 4/30.

[59]  Exhibit 2, Vol. 4, tab 30.

[60]  Exhibit 2, Vol. 4, tab 30.

[61]  Exhibit 2, Vol. 4, tab 30.

[62]  T2-69/9-24; T2-81/30 – T2-82/2.

[63]  T6-26/1-5.

[64]  T6-27/5-10.

[65]  Including the deliberate omission of an email alerting the solicitor to the plaintiff’s likely deception being deleted from records provided to the solicitor and the troubling omission of any attendance notes in the subsequent attendance when the plaintiff planned to divulge “the plan”, see T6-29/1-45.

[66]  Exhibit 15.

[67]  Exhibit 1, Coles, report at p 25-26.

[68]  Exhibit 2, Vol 1, tab 14, p 92.

[69]  Exhibit 2, Vol. 4/30.

[70]  Exhibit 13, p 1.

[71]  Exhibit 1, Tuffley Report, p 2.

[72]  T3-56/28-35; T3-59/4-11.

[73]  T3-45/30 – T3-47/2.

[74]  T3-105/30 – T3-106/24.

[75]  T3-104/45 (however as to the [indistinct] in transcript see T3-105/35-40).

[76]  Exhibit 2, Vol 1, tab 12, p 84.

[77]  Exhibit 1, Ohlrich Report, p 7.

[78]  T4-44.

[79]  T3-104/45; T3-105/35-40.

[80]  Exhibit 1, Labrom Report, p 4.

[81]  Exhibit 1, Ohlrich Report, p 7.

[82]  Exhibit 2, Vol 1/12.

[83]  Exhibit 1, Tuffley Report, p 2.

[84]  Exhibit 1, Guazzo Report, pp 1-2.

[85]  T3-104/34-46.

[86]  T3-105/3-9.

[87]  T3-45/30 – T3-47/2.

[88]Also referred to as “CRPS” or “CRSD” for chronic regional sympathetic dystrophy or “RSD” for reflex sympathetic dystrophy.

[89]  AMA5 – Commentary & Table 16-16 on 496;  See also AMA6 commentary and Table 15-24 on 453 and AMA5 Table 15-3 on p 384.  Note: Cyanosis is the appearance of a blue or purple colouration of the skin or mucous membranes; Oedema, swelling or fluid retention.

[90]  See also so-called “Budapest Criteria”, with Dr Ohlrich’s reports on Exhibit 1.

[91]  T3-100/5-10.

[92]  T3-104/25.

[93]  T4-5/14-27.

[94]  T4-24/27.

[95]  T4-21/4-10.

[96]  For example, McAuliffe Report (Exhibit 8, p 4; T2-83/15-26 & 39-46); Dr Laws Report (Exhibit 8).

[97]  T4-28/29.

[98]  Exhibit 1, James Report, p 1.

[99]  Exhibit 2, Vol 2, tab 29, p 178.

[100]  Exhibit 2, Vol 3, tab 29, p 208.

[101]  Exhibit 2, Vol 3, tab 29, p 214.

[102]  Exhibit 1, Todman Report 3, p 19.

[103]  T3-100/25-35.

[104]  T3-52/30-35.

[105] Exhibit 2, vol 2, tab 12, p 85.

[106]  Exhibit 1, Tadros Report, p 3.

[107]  Exhibit 1, Tadros Report, pp 6 & 18.

[108]  Exhibit 1, James Report, pp 39-40.

[109]  Exhibit 1, Varghese Report, pp 43-46.

[110]  T5-6/20-22.

[111] Civil Liability Regulation 2014, s 8 & Sch 7(1)(e) - $26,000 + (9 x $1800) = $42,200.

[112]  [2012] QCA 312.

[113]  Exhibit 2, Vol. 4, tab 30, p 207.

[114]  Exhibit 8, Mansfield Report, p 2.

[115]  Exhibit 1, Todman Report, p 2.

[116]  Exhibit, Todman Report 3, p 17.

[117]  Exhibit 1, Coles Report, pp 25-26.

[118]  Exhibit 1, Coles Report 3, p 41.

[119]  Exhibit 2, Vol. 4/30, p 312.

[120]  Exhibit 2 Vol. 1 pp 61 & 72.

[121]  Exhibit 2, Vol. 1, tab 11, p 69.

[122]  Exhibit 2, Vol. 3, p 36-37.

[123]  T3-10/40, agreeing with Dr Smith’s opinion in Exhibit 2, Vol 3, p 36.

[124]  See eg. Exhibit 2, Vol 4, tab 30, pp 201-203.

[125]  Exhibit 1, Todman Report, pp 2, 8, 9, 17.

[126]  T3-101.

[127]  T3-11/10-15.

[128]  T3-11/45 – T3-12/5.

[129]  Exhibit 2, Vol. 4/30, p 312.

[130] Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.

[131]  At p 640.

[132]  Exhibit 1, Coles Report, p 41; Exhibit 2, Coleman Report, Vol. 1/8.

[133]  Exhibit 3, tab G.

[134]  The written outline of argument inadvertently relies upon 34 years (in lieu of 24 years).

[135] Superannuation Guarantee (Administration) Act 2012.

[136]  Exhibit 3.

[137]  Exhibit 3.

[138]  Exhibit 3, Coles Report, part G.

Close

Editorial Notes

  • Published Case Name:

    Fleming v State of Queensland

  • Shortened Case Name:

    Fleming v State of Queensland

  • MNC:

    [2016] QDC 334

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    16 Dec 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allianz Australia Insurance Limited v McCarthy [2012] QCA 312
2 citations
Jump To
Cite 1 - [2012] QCA 312
Cite 2 - [2012] QCA 312
Bell v Mastermyne Pty Ltd [2008] QSC 331
1 citation
Jump To
Cite 1 - [2008] QSC 331
Chappel v Hart (1998) 195 CLR 232
1 citation
Jump To
Cite 1 - (1998) 195 CLR 232
Collings v Workers' Compensation Board of Queensland [1997] QCA 224
1 citation
Jump To
Cite 1 - [1997] QCA 224
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
1 citation
Jump To
Cite 1 - (1991) 174 CLR 64
Lusk v Sapwell[2012] 1 Qd R 507; [2011] QCA 59
1 citation
Jump To
Cite 1 - [2011] QCA 59
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
2 citations
Jump To
Cite 1 - (1990) 169 CLR 638
Cite 2 - (1990) 169 CLR 638
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
1 citation
Jump To
Cite 1 - (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
2 citations
Jump To
Cite 1 - (1995) 182 CLR 1
Cite 2 - (1995) 182 CLR 1
Monger v Camwade Pty Ltd [2011] QSC 97
1 citation
Jump To
Cite 1 - [2011] QSC 97
Schneider v Smith [2016] QSC 47
1 citation
Jump To
Cite 1 - [2016] QSC 47
State Government Insurance Commission v Oakley (1990) 10 MVR 570
2 citations
Jump To
Cite 1 - (1990) 10 MVR 570
Cite 2 - (1990) 10 MVR 570
Tabet v Gett (2010) 240 CLR 537
2 citations
Jump To
Cite 1 - (2010) 240 CLR 537
Cite 2 - (2010) 240 CLR 537
Wallace v Kam (2013) 297 ALR 383
2 citations
Jump To
Cite 1 - (2013) 297 ALR 383
Cite 2 - (2013) 297 ALR 383

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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