G F Parkinson v Bullamon (St George) Pty Ltd
[2017] QDC 200
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- G F Parkinson v Bullamon (St George) Pty Ltd[2017] QDC 200
- Add to List
G F Parkinson v Bullamon (St George) Pty Ltd[2017] QDC 200
G F Parkinson v Bullamon (St George) Pty Ltd[2017] QDC 200
DISTRICT COURT OF QUEENSLAND
CITATION: | G F Parkinson v Bullamon (St George) Pty Ltd & Ors [2017] QDC 200 |
PARTIES: | GLENYS FAY PARKINSON (plaintiff) and BULLAMON (ST GEORGE) PTY LTD, WILLIAM KENNETH WILLIS and SUSAN MARY LOGAN WILLIS (defendants) (ACN 009 944 183) |
FILE NO/S: | BD3412 of 2014 |
DIVISION: | Civil |
PROCEEDING: | Claim for Damages |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 28 July 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 and 9 June 2017 |
JUDGE: | Jones DCJ |
ORDER: | Judgment that the defendant pay to the plaintiff $142,686.04. |
CATCHWORDS: | PERSONAL INJURIES – where plaintiff injured in work related accident – where plaintiff a 63 year old woman injured in a rural work related accident – where only issue in dispute was quantum in respect of past and future economic loss Civil Liability Act 2003 Worker’s Compensation and Rehabilitation Act 2003 Allianz Australia Insurance Limited v McCarthy [2012] QCA 312 Husher v Husher [1999] 197 CLR 138 Koven v Hail Creek Coal Pty Ltd [2011] QSC 051 Medlin v SGIC [1995] 182 CLR 1 Perfect v MacDonald & Anor [2012] QSC 11 |
COUNSEL: | Ms J Sorbello for the plaintiff Mr S Cilento for the defendant |
SOLICITORS: | Morton & Morton, solicitors for the plaintiff BT Lawyers, solicitors for the defendant |
- [1]This proceeding is concerned with a claim for damages on the part of the plaintiff resulting from a work related accident. Initially both liability and quantum were in issue. However, as a consequence of diligent application on the part of counsel for the plaintiff and for the defendant the only issue remaining for determination was quantum in respect of past and future economic loss. For the reasons given, the orders of the court are, damages in the amount of $142,686.04 is awarded to the plaintiff.
Some background
- [2]The plaintiff was born on 23 January 1949. At the time of the accident she was a 63 year old divorced woman. She is now 68 years old and in receipt of the pension. On 7 May 2012 she commenced employment with the defendant and thereafter carried out a number of rural related activities often described as falling within the work description of a “jillaroo”. On 3 August 2012, in the course of her employment, the plaintiff was involved in an accident where, in the course of mustering sheep, the four wheeled All-Terrain Vehicle she was driving (the ATV) rolled on top of her causing her to lose consciousness for a period of time. As the ATV was too heavy for her to shift, the plaintiff had to await the assistance of others. Once discovered she was taken immediately to the Mungindi Hospital and on the same day transferred to the Roma Hospital. The property upon which the plaintiff worked was known as Bullamon located at Thallon about one hour’s drive from St George. On 4 August 2012 the plaintiff was transferred from the Roma Hospital to the Princess Alexandra Hospital at Brisbane. She was discharged from that hospital on 6 August 2012 and returned to work at the Bullamon Station on or about 12 November 2012.
- [3]Prior to the accident the plaintiff carried out numerous duties including assisting in the mustering of sheep, carrying out general garden duties, stick picking etc.[1] Upon her return to work however, the plaintiff was only capable of carrying out lighter duties and eventually her employment with the defendant ceased on 15 March 2013. During the course of her evidence the plaintiff said that as a consequence of her only being able to carry out lighter duties she was subjected to what she described as being “bullied”.
- [4]I also accept the plaintiff’s evidence that she was incapable of carrying out a number of the jobs she had been able to do as a consequence of the injuries suffered by her. Those injuries are summarised in the “chronology” agreed to by the parties.[2] While more will be said about the injuries suffered by the plaintiff below, a summary of the matters contained in that chronology are:
- On being admitted to the Roma Hospital it was recorded that in respect of the plaintiff:
“R arm Numbness, pins and needles … power on R arm reduces 3/5. Imp-MVA-lost consciousness for several mins. Numbness R arm.”
- On being admitted to the Princess Alexandra Hospital the “principal diagnosis” was:
“R (Limb nerve injury following quadbike accident, ulna nerve palsy symptoms but negative imaging studies)”
- On 4 August 2012 a MRI of the cervical spine and brachial plexus was performed and it was recorded:
“Impression: No soft tissue injury to the right brachial plexus. Multi-level degenerative cervical disc protrusions with the secondary spinal canal and foraminal stenosis as described. Minor cervical cord indentation at C6/7 level could account for the current presentation. However, no cord oedema or haematoma could be identified.”
- [5]It is convenient at this stage to note that on 15 February 2013, she attended upon Dr Goodman-Nadall complaining of depression and insomnia. It was also recorded that the plaintiff:
“Has been experiencing more dizziness and arm pain, partly due to long days and not as much task rotation as would have liked.
Employer appears to overlook the need for emotional support.”
- [6]Under the document headed “summary of parties’ positions”[3] the dispute between the parties insofar as economic loss was concerned was put in these terms:
Issue | Agreed | Plaintiff | Defendant |
Economic loss (generally) | Weekly benefits of $16,022.30 net received from WorkCover. Plaintiff ceased work with defendant on 15 March 2013. Plaintiff’s gross weekly income received from the defendant was $957.00 which amounts to a sum of $790.00 net per week. | The plaintiff to the best of her ability has exploited all avenues of employment reasonable [sic] open to her. Since the incident the plaintiff has sought and maintained employment where possible. | The plaintiff has failed to mitigate her loss inasmuch as she is not exploiting her current earning capacity. |
Past economic loss |
| $790.00 net per week since 3 August 2012 to trial (253 weeks) totalling $199,870.00 less income earned ($45,096.00) Net past economic loss $154,774.00 |
|
Future economic loss |
| A loss of $800.00 net per week for five years discounted on the 5% tables (231.5) discounted by 30% for vicissitudes - $129,640.00 |
|
Loss of superannuation entitlements | Past 9%. Future 10%. | Past: $154,744.00 multiplied by 9% equals $13,929.66 Future: $129,640 multiplied by 10% equals $12,964.00 |
|
Work history of plaintiff
- [7]Up until the work-related accident, the plaintiff was a hard worker. After leaving school at 15, she almost immediately commenced work as a “Nanny”. After that she worked as a “café assistant” up until she got married at age 17. Following marriage, she moved with her husband to Moura in Central Queensland and, it would appear that she became pregnant soon thereafter. After caring for the children, among other things, she returned to work after some eight years, that is, when she would have been about 25 to 26. At that age she then commenced work as an office typist. It would appear that either while a stay at home parent or almost immediately upon re-joining the workforce, she attended what she described as a “secretarial school.” After divorcing from her first husband, the plaintiff continued to work in a secretarial/administrative capacity for various employers, including Mount Isa Mines as it then was. She worked for that company for approximately eight years.
- [8]Employment with Mount Isa Mines ceased as a consequence of the plaintiff remarrying and becoming pregnant with her third child. She returned to work after only some eight weeks working regularly as an “office temp.” That employment continued until the plaintiff fell pregnant with her fourth child. Within eight weeks of the birth of that child, she commenced work as a manager of a bakery located at Strathpine.
- [9]Employment at that bakery ceased when the plaintiff and her family moved to the Sunshine Coast. Upon moving to the Sunshine Coast, the plaintiff initially commenced work in an administrative capacity with the firm “Steelway Engineering.” At or about this time, her then husband and sons commenced a family business involving fibreglass application. Unfortunately, that business was unsuccessful however, during the course of its operation, the plaintiff carried out a wide range of tasks from administration to acting as a courier.
- [10]It appears that the plaintiff separated from her second husband sometime prior to the business going into bankruptcy. By that time she had worked within that family business for approximately two years. Upon ceasing that employment the plaintiff then commenced work as a cleaner and also studied a course in remedial massage. In that context, the plaintiff stated that she reached the level of “Certificate IV.”
- [11]Initially, the plaintiff worked as a remedial masseuse in a business known as “Beach House Massage” located at Mooloolaba. However, after a period of time, she left that business and commenced her own at Mooloolaba under the name of “Need a Massage.” According to the plaintiff, she worked between six to eight hours per day, up to six days a week. That evidence was not seriously challenged and I accept it. It was also unchallenged that this work required the plaintiff to carry out quite strenuous deep tissue massaging.
- [12]At or about 2001, the plaintiff decided to travel overseas. At this time she was about 50 to 51 years of age. Initially she planned to stay overseas for about one year but she became homesick and returned to Hervey Bay after some five months. Within a very short space of time, the plaintiff then commenced her own remedial massage business at Hervey Bay under the name of “Love a Massage.” That business gradually built up over time, to the extent that some 10 years later the plaintiff was working up to eight hours a day, five and a half days a week.
- [13]While there was some challenge directed at the hours of work the plaintiff was doing at these businesses, her evidence about it was not seriously challenged and I accept it.
- [14]In or about March 2012, the plaintiff decided on a material lifestyle change, and that she wanted to travel and see Australia. According to the plaintiff:[4]
“I wanted a change and I wanted to travel, so I combined my love of work and massage with my love of travel, and wanted to see Australia. So I packed up my massage table and – yeah.”
- [15]In the furtherance of this objective, the plaintiff rented out the house in which she resided and, as a consequence of information provided to her by one of her clients, she applied for and was offered a position with the defendant. Due to family issues, the plaintiff did not take up that employment immediately but, as I already identified, commenced work there on 7 May 2012. According to the plaintiff, that was about the latest she could begin because the property would be commencing to plant its wheat crop at or about the time and she was needed to, among other things, drive one of the tractors.
- [16]Following the work-related accident on 3 August 2012, the plaintiff returned to work on the subject property on 12 November 2012. However, it was clear that she was no longer capable of carrying out many of the duties that she once did and, on 15 March 2013, the plaintiff ceased employment with the defendant. Notwithstanding still receiving regular medical treatment,[5] the plaintiff continued to work in the rural area including at the Yuleba Roadhouse as a cook. She gained that employment within two days of leaving the defendant property. Other employment included working as a cleaner and with another hotel described as “Byrnes Hotels”. It should be noted though, that employment with the first of those employers was only for two days and with the latter for only one shift. That was because, according to the plaintiff, the work she was required to carry out “aggravated my injuries.”[6]
- [17]At Chinchilla, the plaintiff gained further employment with “Merritt’s Bakery.” Other employment opportunities existed including that of being a governess. That latter position, however, was rejected as there was “not enough money in it.”[7] Employment ceased with that bakery on 28 February 2014 after “roughly four months.” When asked why that work ceased, the plaintiff said:[8]
“Well, everything I tried to do aggravated my arm and my back, so I chose to come back to Hervey Bay to rehabilitate myself and give my body a bit of a chance to heal.”
- [18]After returning to Hervey Bay, the plaintiff gained employment at a café known as “Katmanzoo Takeaway” on 15 March 2014. That business was owned by a friend (or friend of a friend). It would appear that working as a breakfast cook, among other things, at the café suited the plaintiff as it only required between two to two and a half hours five mornings a week. Unfortunately, that employment came to an end about five months later, when a drunken driver crashed through the front of the premises. The business did not recommence and was sold.
- [19]After ceasing work at Katmanzoo on 3 December 2014, the plaintiff commenced employment with the Disability Services at Hervey Bay. That work again suited the plaintiff because it required no real physical effort and was limited to only one day a week for four hours. According to the plaintiff, her work involved “mentoring a young gentleman (who was) intellectually handicapped.”[9]
- [20]That employment ceased after about 14 months after the plaintiff’s contract was not renewed. Notwithstanding not being aware of any difficulties she was having in that employment, she remained uncertain why her contract was not renewed. After leaving the DES, the plaintiff has, without success, sought other employment. She says that she is incapable of returning to remedial massage as it aggravates her back and arm.[10] The plaintiff said that it was her ambition, once having seen enough of Australia, to return to Hervey Bay and restart her massage business.[11] As already mentioned she now receives the pension but she also does some voluntary work at St Stephens’ Hospital, Hervey Bay.
- [21]The employment history of the plaintiff leads me to comfortably conclude that she was a hard worker, willing to give virtually anything a go, and, but for the injury, would have continued to maintain consistent and relatively well-paid employment. That observation though is subject to one caveat, that being the plaintiff’s clear intention to travel around and see as much of Australia as she could. There is little room for doubt that when the plaintiff began to put in place this goal at age 63, she intended to pursue it as long as practicable, quite likely up until about 70 years of age.
- [22]
“Q: What were your intentions prior to this quadbike accident?
A: To work, as I’m travelling around Australia – to travel and work.
Q: Did you intend to retire when you were eligible for an age pension?
A: No.
Q: Why not?
A: Because that’s not in my psyche.
Q: Financially, were you in a position to retire?
A: No.
Q: What – how long have you got left on your mortgage?
A: Until I’m 85.
Q: Do you have any money in a superannuation fund?
A: No.
The court: So but for the accident, you intended to continue travelling around Australia and taking work wherever you could find it. Is that what your intention was?
A: Yes, your Honour.
…
Q: When you were travelling around Australia, what sort of work did you think you would look for?
A: Well I’m a pretty adventurous sort of person, so it would be anything, if people would give me a go.
The injuries and their consequences
- [23]The injuries pleaded by the plaintiff and which were admitted are:[14]
- (i)right brachial plexus injury with median nerve damage;
- (ii)thoracic spine injury;
- (iii)psychiatric injury.
- [24]The plaintiff’s medical history is extensive, but specifically, for the purposes of this litigation, she was examined by a number of highly qualified and experienced specialists. In a report dated 17 February 2014 Dr Scott Campbell, neurosurgeon, at the request of the plaintiff’s solicitors, examined her. Dr Campbell reported:[15]
- The plaintiff displayed no pre-existing pathology of the cervical spine or right upper limb;
- “Ms Parkinson underwent MR scans of the cervical spine and brain because of ongoing complaints of headaches, blurred vision and a tendency to fall to the side. The scans showed an incidental right convexity meningioma and degenerative changes of the cervical spine.
Ms Parkinson was referred to a neurologist for an opinion regarding the right upper limb symptoms. Nerve conduction studies were preformed and were reported as normal. The neurologist felt there was soft evidence of a mild brachial plexus injury. Treatment was conservative.”
- Some 18 months after the accident, the plaintiff continued to complain of mid-back pain/stiffness and right upper limb weakness/numbness;
- “Clinical examination on 17 February 2014 revealed a healthy 65-year-old, right handed lady… She walked with normal posture and gait and sat in comfort.
Examination of the thoracic spine revealed decreased rotation to the right by 30%. There was tenderness and guarding over the right approximate T7-T9 paraspinal muscles. The lower limb power, reflexes and sensation were normal.
Examination of the right upper limb revealed mild reduced grip strength and numbness over the dorsum of the right hand in a non-dermatomal distribution.”
- [25]Under the heading “opinion”, Dr Campbell, in part, said:[16]
“However, it is now 18 months since the accident occurred and she suffers ongoing symptoms of mid back pain and right upper limb weakness/numbness. These symptoms are likely to persist as her condition is now stable and stationary. There is no further treatment that would be likely to result in long term improvement in her condition.
Ongoing management should be based on the avoidance of aggravating factors. Ms Parkinson should avoid lifting heavy weights and prolonged overhead work and should take frequent breaks when driving.
…
Ms Parkinson’s prognosis with regard to preforming her duties as a bakery assistant is satisfactory, as she only works a 25 hour week… ideally she would be best suited to sedentary type work.
…
Thoracic spine injury:
…
Ms Parkinson is suffering a 5% Whole Person Impairment. The impairment is likely to be permanent.
Right brachial plexus injury:
The brachial plexus injury has been assessed according to the impairment evaluation method on page 481. Ms Parkinson has a 2% Whole Person Impairment for the brachial plexus injury…”
- [26]When taken to that part of his report where reference was made to “numbness over the dorsum of the right hand in a non-dermatomal distribution,” Dr Campbell agreed that it was “soft evidence” which would cause some doubt about the accuracy of the diagnosis.[17] He also acknowledged that given the date of his examination, a more current examination would “carry more weight” in assessing the current physical wellbeing of the plaintiff.[18] In response to a number of questions from myself, Dr Campbell identified that the type of sedentary work he had in mind would include office work, computer work, sales and “white collar work.” When asked whether it would be possible for the plaintiff to resume working as a masseuse, he considered that to be a “tricky question” but, on balance, considered that up to 10 to 15 hours of such work might be within an acceptable range.[19]
- [27]As I understood the plaintiff’s evidence, not surprisingly she suffered a considerable amount of pain and incapacity for a considerable amount of time and indeed it was at least four months before she felt that her right arm “was coming back good.”[20] Her evidence was that when at rest, the level of function in her right arm had remained fairly steady since then. Her evidence was that when at rest, the pain in her right shoulder and arm would be in the order of 3/10. However, any material activity involving the use of the right arm, by way of examples vacuuming or cleaning benches etc. would aggravate that pain up to a level of about 8 or 9.[21] The plaintiff is right hand dominant. The plaintiff also continues to suffer from pain in her neck that radiates through to her neck and shoulders. And again, any meaningful domestic work increases the pain level to in the order of 8/10 from an at rest situation of between 4 and 5. Even sitting or standing for extended periods of time tends to materially aggravate the level of pain from the at rest situation.[22]
- [28]The defendant, in essence, contended that the restriction of movement and/or level of pain described by the plaintiff is inconsistent with the medical evidence. In this context, particular regard was had to the evidence of Dr Journeaux and Professor Atkinson. Before turning to the evidence of those specialists, it is appropriate to deal with the evidence of Dr Walden, a specialist to whom the plaintiff was also referred by her solicitors. Dr Walden is, among other things, a pain physician and specialist anaesthetist. He is a senior pain medicine physician at a number of prestigious hospitals in and about Brisbane. By way of executive summary, Dr Walden reports:[23]
“Glenys Parkinson sustained an injury to her right brachial plexus…
There has been a significant improvement in her right arm function since the time of her accident leaving her with a degree of pain and discomfort in the distribution of her right ulnar nerve that is unlikely to improve.
She is also experiencing a degree of post-traumatic stress disorder and fear avoidance behaviour as a result of her injury.
With treatment her post-traumatic stress and fear avoidance behaviour is likely to improve beyond its current state.” (Emphasis added).
- [29]Under the headings “subsequent treatment” and “current status”, Dr Walden reports:[24]
“She was discharged from the Princess Alexandra Hospital after four days wearing a splint on her right upper limb. It was arranged for her to receive continuing physiotherapy. Her early discharge was complicated by an infected drip site on her right upper limb.
After six months of physiotherapy, her right upper limb has regained ‘about 80 per cent’ of its movement.
Physical conditions:
- Ms Parkinson still experiences some weakness in her right upper limb ‘it is still not 100 per cent.’
- Ms Parkinson experiences a constant burning and aching pain in her right upper limb, which is usually a 3/10, but with movement increases to a 6/10.
- She also experiences pain in the mid part of her back.
Psychiatric condition:
- She describes intrusive thoughts that relate to her feelings of helplessness at the time of the accident.
- [30]Under the heading “pastimes and hobbies” it is reported:[25]
“Previous pastimes and hobbies:
She used to enjoy walking, yoga and undertaking massage.
Current pastimes and hobbies:
She now finds because her right arm easily fatigues that performing massage is exhausting and exacerbates her background level of pain.”
- [31]Under the heading “opinion”, Dr Walden reported:[26]
“It is my opinion that your client has a persistent sensory loss and dysaesthesia in the distribution of the right ulnar nerve as a result of the right brachial plexus being damaged at the time of her quadbike accident. Whilst the injury initially caused a complete loss of movement and sensation supplied by the ulnar, there has been significant recovery (this is evident by her own self-reported recovery in the right upper limb function, a normal nerve conduction study and the fact that your client returned to work, albeit on less physical duties).
However, considering the time that has elapsed since your client’s injury I would not anticipate any further improvement in your client’s current sensory impairment.
I agree with the earlier observation of your client’s treating physiotherapist, Donna McCook, that your client is fearful of moving her right upper limb (kinesthiophobia) as alluded to her (sic) report. Kinesthiophobia, a form of fear avoidance behaviour is commonly seen in individuals who experience longstanding conditions in which even once the injury has healed, a fear of further pain can lead to avoidance behaviour which, over time, leads to deconditioning…
I also believe that your client is experiencing post-traumatic disorder relating to the accident (as a pain medicine physician, it is not my area of speciality to diagnose such conditions and, therefore, I would recommend that your client undergo expert psychological assessment)…
My future recommendations would be further adjustment to injury counselling in the setting of a cognitive behavioural pain management program. This would educate your client as to the role of exercise and avoidance of pain in recovery from injury.” (Emphasis added).
- [32]During cross-examination, Dr Walden repeated that, in his opinion, the plaintiff had made significant recovery since the accident of in the order of 80 per cent.[27] However, he also maintained his position that the existence of a degree of kinesiophobia was one of the plaintiff’s remaining issues and that such a condition was not uncommon in people that had suffered pain for lengthy periods of time. He also accepted that the condition could be addressed by appropriate treatment. In this context, the doctor was careful to distinguish between recovery of movement and existence of pain. During the course of re-examination the following exchange took place:[28]
“Q: …Finally you were taken to the plaintiff’s report of regaining 80 per cent of her movement. Is there a distinction between regaining movement and whether or not there’s pain?
A: That – that was put – was particularly directed towards movement, yes. 80 per cent of her movement.
Q: And even with 80 per cent, could there – was there, in your opinion, still the experience of pain?
A: Oh yes, the two things are completely separate. They are controlled by separate sets of nerves. The nerve that you feel pain through and are involved in pain recognition are fine nerves, and hence they’re more easily damaged than the nerves that control movement, which are highly insulated, much bigger fibres, and therefore often do recover more quickly. So there’s an anatomical and a physical difference in the nerve structures, and that’s (indistinct) pain that – after movement has returned.
…
The court: Doctor, do you mind if I just ask a couple of questions, just in respect of that last matter? As I understand it – this is a reference to the 80 per cent – you would still say that there’d be pain for the reasons you gave. But is it the case that – and this is in respect of this question that was asked about returning to massage/massaging on a commercial basis – is it the case that if the fear of movement was overcome, then, whilst certainly not able to return on a full-time basis, some casual or part time work in that area might be feasible or would be feasible?
A: Yes, I think that’s a very good point, your Honour, that if she – if the patient overcame her fear that move – that use of her right upper limb would actually be a good thing for her rather than a bad thing, then some form of, you know, graduated – which I suppose is what you’re saying – some sort of, you know, partial return to work would be possible and would actually be quite advisable…” (Emphasis added).
- [33]Following a referral by the defendant solicitors, the plaintiff was examined by Dr Journeaux, a trauma and orthopaedic surgeon. Broadly consistent with the observations made by Dr Walden, Dr Journeaux also reported that the plaintiff had told him that she had improved, by the time of his examination by around 80 per cent, but that the level of improvement had “plateaued over the last two years.” According to Dr Jouneaux, the plaintiff also reported that she suffered a constant burning pain in the area of her right anterior chest which she assessed at or about 3/10 but was aggravated by any movement of the right arm.[29] In his opinion the “minor traction injury to the brachial plexus… (has) more than likely not fully recovered.”[30] After referring to not only his examination of the plaintiff but also numerous medical reports, he reported that:[31]
“The claimant if it were not for the injury sustained, irrespective of the physical and/or psychological injury, would have continued working, in my view, for at least several years after the incident, but in my view, she is currently not working primarily due to psychological factors rather than physical factors…
The claimant clearly is at an age where she would be retiring and most likely would have worked usefully in the workforce for one or two years subsequent to the injury…
The claimant is not working on a full-time basis and is working three hours per week in a very sedentary role…
Note the claimant does have age-related degenerative change in her cervical spine, which is longstanding and which would have slowly progressed due to the natural history of the constitutional condition. It would appear that she had no problems prior to the incident which is the subject of this medical report, but I do not believe that the symptoms currently have a physical basis although they potentially could be. Unfortunately her presentation is significantly clouded by psychosocial factors…” (Emphasis added).
- [34]During his cross-examination, Dr Journeaux identified that the “psychosocial factors” that he referred to included pain avoidance behaviour. According to Dr Journeaux, that would be “one of them.” He also accepted that notwithstanding that there may not be a physical explanation, the plaintiff was nonetheless experiencing genuine pain.[32]
- [35]Finally in this context, upon referral by the defendant’s solicitors, the plaintiff was assessed by Professor Atkinson, neurosurgeon and pain medicine physician on 10 November 2016. In his report under the heading “executive summary”, Professor Atkinson reported:[33]
“…
- With respect to the right shoulder injury, I conclude the opinion of an orthopaedic surgeon is indicated. Ms Parkinson’s clinical findings were variable.
- With respect to Ms Parkinson’s brachial plexus, I conclude that there is no residual organic injury. I acknowledge that she may have an early ulnar neuritis, however I would not attribute this to the effects of the accident.
- With respect to her thoracic spine, I acknowledge that Ms Parkinson has persistent posterior thoracic pain. I conclude that she has no significant residual injury to the thoracic spine… 0 per cent whole person impairment.
- I acknowledge that Ms Parkinson has an adjustment disorder with anxiety and depression. The origins, management and the prognosis should be reported on by a psychiatrist.” (Emphasis added).
- [36]He also reported:[34]
“There is no place for any further treatment for Ms Parkinson’s right upper limb symptoms and signs. There is no place for any physical therapy for the right upper limb symptoms and signs. Management may be best focused on treating her posttraumatic stress disorder and her anxiety state once the litigation process has been completed.
It is possible that Ms Parkinson’s persisting problems could be managed through a pain medicine rehabilitation programme which would only be successful at the conclusion of the litigation.
…
As the Director of a longstanding pain and spine rehabilitation programme at the Wesley Hospital I confirm that these programmes are ineffective while litigation continues. They are focused on the psychosocial contributions to chronic pain. I acknowledge that Ms Parkinson would benefit from such a programme only once the litigation process is completed. I acknowledge that from the history presented she is managing all activities of daily living. She reports that she does volunteer work at St Stephen’s Hospital one day a week…”
- [37]As was the case in respect of a number of the other specialists, Professor Atkinson was asked a number of questions including whether pain management treatment would be appropriate and, if so, the approximate cost thereof. According to the professor, the plaintiff would benefit from such a treatment course and the cost would be in the order of $10,000 including accommodation over a three week period. After expressing the view that the plaintiff was a candidate for a pain management program, he went on to report:[35]
“I understand that Ms Parkinson is now on a pension. She is aged 67. It is unlikely that she will return to paid employment.
I note that Ms Parkinson previously had a particular interest in massage therapy and if she was closer to the community she could take up this interest again.
…In my opinion, Ms Parkinson’s condition is likely to improve for the following reasons:
- Ms Parkinson’s symptoms are variable;
- The physical findings are variable and there is no muscle wasting to support a brachial plexus injury and to support the restrictions in movement that she presents with;
- The nerve condition study was normal; and
- The imaging studies have not revealed any significant objective tissue injury.
With the appropriate management of Ms Parkinson’s psychosocial issues and the resolution of the litigation, it is more likely than not that there will be significant improvement.
…
I note these employment opportunities from (a) to (g). I note that Ms Parkinson, at age 67, is on a pension. It is unlikely that she will return to employment.
If Ms Parkinson wanted to work she could, although she is on a pension and at 67 it is unlikely she will come off the pension.
I conclude that it is unlikely that Ms Parkinson will return to employment because:
- Ms Parkinson is aged 67;
- She is on a pension;
- She lives 10km from town; and
- She has a posttraumatic stress disorder and an adjustment disorder with anxiety and depression currently under treatment with Lexapro. She reports she continues to see a psychiatrist.” (Emphasis added).
- [38]The employment opportunities included by Professor Atkinson referred to a wide range of activities extending from a farm hand through to a food and beverage attendant and a service station console operator.[36]
- [39]During cross-examination, Professor Atkinson was asked whether or not his knowledge of the plaintiff’s age and the fact she was on a pension influenced his determination as to her capacity to carry out any meaningful employment. In that context he answered:[37]
“Well, if she’s – as I’ve stated in my report, if she’s on the pension and she’s 67 and she lives 10km from town and she’s got post-traumatic stress and depression, then I’m not surprised she’s not working.”
- [40]During the course of final submissions, Ms Sorbello implied that Professor Atkinson had, in effect, by reference to the plaintiff’s age and the other factors referred to by him, “written off” any prospect of the plaintiff returning to any meaningful employment without having any, or sufficient regard to her physical capacity to do or not do that work. There may indeed be some truth in that suggestion. That said, I am inclined to agree with his conclusions. That is, while there is no longer any physical reason why the plaintiff could not return to a meaningful level of employment, it is highly unlikely that she will. During the course of her evidence, it seemed tolerably clear to me that, no doubt as a consequence of a number of factors but, most significantly, her age, her pain avoidance phobic condition and depression, she had effectively abandoned any hope of returning to anything like full-time employment. In this context, it was quite clear that the plaintiff became emotionally upset, if not distressed, when discussing the impact these injuries have had on her ability to work and on her quality of life in general. In this context she said that one of the reasons for her doing volunteer work was to keep herself occupied and thereby reduce the risk of doing herself harm.[38]
- [41]Apparently based on an MRI performed on the plaintiff on 4 August 2012, the defendant’s primary position was that there was no objective link between the accident and the brachial plexus injury.[39] That submission must be rejected. That such an injury was caused by the negligence of the defendant was pleaded and admitted.[40] Further, it is inconsistent with the evidence of Dr Campbell, Dr Journeaux and Dr Walden.
- [42]Finally, in the context of the medical evidence, the plaintiff was examined by Professor Whiteford, a specialist psychiatrist. Following examination and reference to numerous medical reports, he reported:[41]
“1. Glenys Parkinson meets the American Psychiatric Association Diagnostic and Statistical Manual… criteria for a major depressive disorder.
I could not confirm the diagnosis of post traumatic stress disorder, given the severity of her depression and the lack of specific re-experiencing phenomena.
- The history of her injury and the development of her mental health problems are discussed in the body of my report.
- The stressors Ms Parkinson has experienced are discussed in the body of my report and are the persistent physical symptoms from the accident on 3 August 2012, the difficulties sustaining subsequent employment and the stress of the WorkCover claim and the litigation. Since these started, her untreated depression has worsened and she now needs intensive treatment.
- The stressors identified by Ms Parkinson are accepted by me as causally related to the onset and persistence of her depression.
- If Ms Parkinson does not have any permanent physical impairment arising from the accident… then that accident is not contributing to her depression. As noted earlier in the report, the diagnosis of post-traumatic stress disorder is not made.
- No pre-existing mental disorder was identified.
- No subsequent significant psychological stressors other than those outlined in the body of my report are identified.
…
- Her psychiatric impairment is not permanent, as Ms Parkinson requires effective treatment for her major depressive disorder. Specifically, she requires immediate cognitive therapy from a clinical psychologist. She would require at least 20 sessions. In addition, her dose of antidepressant medication, Lexapro… should be increased… If she does not respond to this combination over the coming month, she should be referred to a psychiatrist. The extent of any residual psychiatric impairment would depend on her recovery with this treatment.
…
- At the time I examined Ms Parkinson, she was in receipt of an age pension and had no intention to returning to remunerated employment and would not be able to undertake employment at this time even if she wanted to do so.” (Emphasis added).
- [43]In a file note the professor reiterated his opinion that the plaintiff’s psychiatric impairment was not permanent.[42] According to Professor Whiteford, with appropriate treatment the plaintiff would be capable of working up to 20 hours per week.
- [44]Finally on that topic, the professor’s evidence was that the plaintiff’s “Psychiatric Impairment Rating Scale” (PIRS) of 13 per cent (no pre-existing disorder),[43] being a “major depressive disorder” would, in addition to an increase in medication, require “at least 20 sessions” of cognitive therapy from a clinical psychologist.[44] And, while not a permanent disorder, it would require treatment over a period of six months and then the plaintiff should be able to return to “remunerative employment for at least 20 hours per week…”[45]
- [45]Evidence was also given by Ms Welshe, an occupational therapist. In her initial report of 7 March 2014, under the heading “work capacity”, Ms Welshe stated:[46]
“Ms Parkinson’s maximum sustainable work capacity is eight hours per day, five days per week. Her physical injuries restrict her capacity to return to work as a farm hand. Suitable vocational alternatives that have been identified for her include telephone counsellor or equivalent… Other occupations that may be regarded as being suitable for her include unskilled telephone-based jobs such as switchboard operator… telephone betting clerk and telemarketer.
In general however, Ms Parkinson would be disadvantaged if seeking employment in the open market due to ongoing physical limitations, limited transferrable skills, requirement for work with her reduced upper limb demands, competition with non-injured applicants and her need to find suitable employment conditions and/or adapt to the working environment in order to accommodate her physical restrictions.”
- [46]In her second report dated 16 May 2017, Ms Welshe reported:[47]
“Analysis of the (sic) Ms Parkinson’s lifting capacity on which the Dictionary of Occupational Titles defines the Physical Demand Categories (PDC) of occupations, has led me to conclude that, from a physical strength perspective, Ms Parkinson is currently suited to occupations or activities with below sedentary physical strength demands which compares with her previous assessed capacity for tasks with sedentary physical demands.
Her reported physical and sensory symptoms remain unchanged.” (Emphasis added, footnotes deleted).
- [47]Sedentary work was footnoted in her report in the following terms:[48]
“Exerting up to 4.5 kilograms of force occasionally (occasionally: activity or condition exists up to 1/3 of the time and/or a negligible amount of force frequently (frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.”
- [48]In para 13 of her second report, Ms Welshe reported:[49]
“In summary, Ms Parkinson reported no significant change in symptoms from the previous assessment, however demonstrated slightly reduced functional capacity across multiple domains, including reduced range of motion in the neck, increased pain severity, reduced exertional capacities, reduced postural tolerances and reduced dynamic tolerances, consistent with likely generalised deconditioning associated with avoidance of activities that she previously reported as being aggravators of her symptoms…” (Emphasis added).
- [49]At the time of her giving evidence in this proceeding, Ms Welshe’s opinion had changed to the extent that the plaintiff was no longer capable of working 40 hours a week in a sedentary job to the extent that she was now only capable of working four hours per week in that capacity. At the end of her evidence, Ms Welshe was referred to the above extract from her report and asked how it was that there was such a significant change:[50]
“Q: Now having regard to the reference to ‘no significant change, slightly reduced’ I am puzzled as to why the capacity to work has gone from 40 hours a week to four hours a week?
A: I would start it at four hours a week. It may be more than that. I do note that the difference between the first assessment and the second assessment is that not only did the medical evidence presented indicate that there was a psychiatric overlay, but my assessment using the DASS also changed, indicating that she went from no psychiatric screening symptoms to, to, I think, moderate symptoms in my second assessment. So there was reduction in terms of what she was demonstrating in a work environment, and I would regard – in terms of her work capacity now – that four hours a week is a starting point, and that you would – I think that if she was in a suitable job, as I said before, that you would increase it and stop once you experience an increase in symptoms. It’s very difficult to say what her current work capacity is, given the additional psychiatric diagnosis, and without having anyone conduct a supervised graded return to work program. I’m not saying its four hours a week. I would just say that I would start it at four hours a week and increase it from there.
Q: But to return to my question… what is it that caused you to form the opinion that her capacity to perform work is reduced from 40 hours a week to four hours a week?
A: Deconditioning. And the psychiatric overlay.
Q: So which is dominant?
A: Gosh. I think that you would need to get an opinion from a physician about that, because that’s looking at apportionment, and it’s difficult. I just noted that this is – this is where she’s functioning at the moment. How much is attributable to what, you would need, I think again psychiatric opinion to present that but she does have – looking at her functions, and looking at the fact that she is the kind of person who will always want to work as much as they can, she’s demonstrating capacity for four hours a week in an unsuitable occupation. I think if she is to – went into a sedentary occupation that was suitable for her and she was supported appropriately, she may be able to increase it and it’s very difficult to say how much to, and also how much is apportioned to each one. I would certainly refer to a psychiatric opinion for that.”
- [50]On balance, it would appear that Ms Welshe’s opinion is that when looked at objectively, as the plaintiff currently presents, she would be capable of doing only up to four hours of “unsuitable” work but more hours in a sedentary occupation and that that could increase over time, dependant of course, upon her being able to address her mental health issues.
Discussion and conclusions
- [51]The totality of the evidence has led me to the following conclusions:
- As a consequence of the work-related accident, the plaintiff immediately suffered a right brachial plexus injury with median nerve damage and a thoracic spine injury. Over time, the plaintiff has developed depression and the phobic condition kinesiophobia, which causes her to limit any movement of her right upper limb.
- The plaintiff has now recovered about 80 per cent of limb movement, but that level of improvement has now plateaued.
- Notwithstanding that level of movement and, notwithstanding that there may be no underlying physical cause for it, the plaintiff suffers real pain of the type she describes.
- The level of her depression makes it impossible to form a diagnosis of whether or not she suffers a post-traumatic stress disorder.
- Prior to the accident, the plaintiff was suffering from no meaningful physical and/or mental disorder.
- The plaintiff’s current depressed state is probably the consequence of a number of factors and in particular, her inability to return to full-time work at Bullamon Plains (or other rural employment), persistent pain in her right arm and back and difficulties in sustaining meaningful employment after that accident because of those work-related injuries. Other factors would likely include the stress of the WorkCover claim and this litigation.[51]
- Provided the plaintiff kept up her medication and attended counselling for a period of six months, she probably would have been able to return to at least 20 hours of sedentary and between 15 to 20 hours of massage therapy work per week, within 9 to 12 months of her injury.
- Given the plaintiff’s age and her mental health issues, there is a genuine prospect that, as Professor Atkinson opined, the plaintiff will continue to remain on the pension.
- [52]While from a purely clinical perspective, there may no longer be a direct link between any permanent physical impairment arising from the accident and the plaintiff’s depression,[52] it seems to me that the evidence establishes that the accident resulted in a chain of interrelated events. First, the direct physical injuries caused by the accident. Second, the subsequent development of the phobic and depressive disorders identified above. To put it another way, the defendant’s admitted negligence and its consequence if not the sole cause, has made a significant or material contribution to the plaintiff’s present condition.[53] But for the accident it was unlikely that the plaintiff would be suffering the pain and related depression and phobic conditions.
- [53]On the medical evidence, I am also sufficiently satisfied that as a result of the injury suffered as a consequence of the defendant’s admitted negligence, the plaintiff has and will continue to suffer economic loss. In this context, the observations made by McMeekin J in Koven v Hail Creek Coal Pty Ltd[54] are of some assistance:
“There is a qualification that needs to be recognised with orthopaedic opinions of the type relied on by the defendant. The men proffering the opinions are themselves not truck drivers or bus drivers. The day to day reality that the work entails may not be quite as they envisage. And where it is acknowledged that pain is the restriction and that pain can be triggered by a variety of movements or forces that might impact on the joint, or indeed simply changes in the weather, or for no discernible reason, I would need cogent evidence to persuade me that a doctor has the greater capacity to judge what a man can do in such employment than the man himself — where the person in question is accepted as an honest reporter, which I certainly do here.”
- [54]In this context, I reject the defendant’s submissions to the effect that the plaintiff was an unreliable reporter. It is indeed true that on some occasions, she could not recall events that one might ordinarily expect to be capable of being recalled and, on occasions, seemed to give an exaggerated versions of events,[55] that has to be seen in the context of her clearly anxious, agitated and emotional state when giving her evidence. It this context, it is also of some significance that she did not strike me as a particularly sophisticated witness and one who was likely to be easily intimidated and somewhat confused by the formality of a courtroom situation.
- [55]On balance, I consider the plaintiff to be an “honest reporter” in the sense that she was an honest witness and not one prone to deliberately exaggerate the state of affairs. That said however, I nonetheless form the impression that, no doubt because of all the consequences of the accident addressed above, she appeared to adopt an overly pessimistic view of her capacity to return to the workforce.
- [56]
“Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss ‘by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss’. But damages for both past loss and future loss are allowed to an injured plaintiff ‘because the diminution of his earning capacity is or may be productive of financial loss’. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position…” (Footnotes deleted).
- [57]It is also necessary to bear in mind in this context that the duty to mitigate loss is not an “at all cost” obligation. In Medlin v SGIC,[57] McHugh J observed:
“A defendant cannot reasonably require a plaintiff to remain in employment for the purpose of reducing the damages that the defendant would otherwise have to pay if to do so would interfere with the plaintiff's reasonable enjoyment of life. The doctrine of mitigation of loss was not intended to turn injured plaintiffs into economic slaves.”
Past economic loss
- [58]In Ms Sorbello’s written submissions dealing with past economic loss it was submitted:[58]
“If not for the incident, the plaintiff’s anticipated earnings based on her pre-accident earning capacity, total $199,870 (being 253 weeks at $790 per week). In this period, the plaintiff’s actual net earnings total $45,096.34. Accordingly, the plaintiff has suffered a loss of $154,774.
Interest on past economic loss at 1.27 per cent over 4.85 years totals $4,696.72.”
- [59]On behalf of the defendant, Mr Cilento of counsel submitted that, by reference to the plaintiff’s intention to see Australia and, accordingly, to move from one job to another, in circumstances where a number of rural jobs are seasonally based and often lowly paid, past economic loss would be calculated in the order of $4,000 to $6,000 over a 40 week period.[59]
- [60]As appears to be often the case in proceedings such as this, the defendant has materially underestimated the amount of past economic loss and the plaintiff, although to a lesser extent, has overstated the extent of economic loss.
- [61]While the plaintiff was earning up to $816p/w plus board and keep at the time of the accident, it was submitted to the effect that, but for the accident, the plaintiff would have essentially worked on an all but full-time basis at a rate of $790 per week. It was said that that rate could be considered conservative in that whilst that was her net income on the subject property, it did not take into account free accommodation and food. While I am prepared to accept that the rate of $790 per week might have been an indicative rate of pay overall, the submission made on behalf of the plaintiff fails to adequately have regard to the plaintiff’s real intentions. The plaintiff was clearly motivated to, even at a later stage in her life, see as much of Australia as she could. To that end, she rented her house out for an indefinite period.
- [62]The fact of the matter is that to achieve her ambition of seeing as much of Australia as she could, she would have had to take whatever work was available from time to time on a temporary basis. Any form of permanent or semi-permanent employment would have prevented her from achieving the very goals she set out to achieve. Further, while on occasions the plaintiff might have been able to gain well-paid employment; that would in all likelihood, not always have been the case, particularly in circumstances where the levels of employment were seasonally based. A matter recognised by the plaintiff.[60]
- [63]It was also submitted on behalf of the plaintiff that her financial obligations were such as to require her to maintain steady and well-paid employment.[61] In this context, it was pointed out that she had refused work as a governess because it was too lowly paid. I cannot accept that submission.
- [64]The plaintiff may well have had significant financial obligations to meet. But her evidence never wavered about her intention to see as much of Australia as possible. She readily acknowledged that her goal was to travel around Australia[62] and that she “never lost sight of my goal.”[63] Further, the plaintiff had clearly put into place circumstances where her house was being rented for an indefinite period[64] and, the rental income from the house, if not entirely meeting the mortgage commitments, was making a material contribution to those repayments.[65] Also, it would appear that immediately before commencing work on the subject property, the plaintiff was meeting her financial commitments on a substantially lower net weekly income. On commencing employment at Bullamon Plains, her net weekly earnings were in the order of $799. However, immediately before leaving to take up that employment, as a self-employed therapeutic masseuse, she was earning just in excess of $412 per week net.[66]
- [65]In my view, on the evidence as it stands, neither past nor future economic loss can be precisely calculated. Accordingly, s 306J of the Worker’s Compensation and Rehabilitation Act 2003 (“WCRA”) is relevant. That is so for reasons including:
- (i)the plaintiff’s travel intentions and associated variables surrounding employment opportunities;
- (ii)age and the physical capacity of the plaintiff;
- (iii)the plaintiff’s ongoing mental health issues and the time of and prospects of recovery;
- (iv)the availability of suitable employment opportunities in or near Hervey Bay.
- [66]
“[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).
- [67]
“[48] Damages were awarded at common law for loss of or diminution in earning capacity only where it was established, on the balance of probabilities, that any demonstrated impairment ‘is or may be productive of financial loss’…. . How one approached that question of ‘may be’ was discussed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. The reasoning of all the judges in Malec would require an assessment of damages for economic loss at common law where the chance of loss of earnings post-accident was more than negligible but significantly less than 50%. That is the approach of the common law and remains the approach under the CLA.
[49] There is a further reason why that approach should be preferred. The defendants’ submission would produce unfairness. As the majority in Malec at 643 explained:
‘…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 per cent — or very low — 0.1 per cent. But unless the chance is so low as to be regarded as speculative — say less than 1 per cent — or so high as to be practically certain — say over 99 per cent — the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded… 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.’
[50] I would not readily impute to the legislature a readiness to work such unfairness without very clear words mandating that approach. Hence when the legislature uses the word ‘will’ in s 55 in the phrase ‘will suffer loss’, it is doing no more than asserting that these common law tests need to be satisfied.”
- [68]Accordingly, the plaintiff has to prove, on the balance of probabilities, that her earning capacity has been diminished because of her injuries and that the injury will be productive of economic loss. For the reasons given I am satisfied that both of those limbs have been met. The difficulty lies in trying to assess in any precise manner the level of economic loss.
Past economic loss
- [69]Prior to the accident, the plaintiff was earning between $790 and $816 per week net plus board and keep.[71] It was however agreed between the parties that for the purpose of calculating economic loss the court should proceed on the basis that the earning capacity of the plaintiff was at the time of the accident $790 per week net.[72] The plaintiff returned to work at Bullamon Plains on 12 November 2012, however her work was limited to the type canvassed during her cross-examination.[73] On 15 March 2013, the plaintiff left that property as she felt a sense of being bullied as a consequence of her not being able to carry out her full duties. Her evidence on this topic was not seriously challenged and no contrary evidence was led by the defendant. I accept the plaintiff’s evidence about this and consider her response (i.e. to resign) to be a reasonable one.
- [70]From the date of the accident through to 15 March 2013 (31.57 weeks) the plaintiff’s economic loss, based on the agreed rate of $790 per week, would be $24,940.
- [71]Between 16 March and 23 March while the plaintiff was between jobs, she suffered a loss of $903.00, calculated at the agreed rate of $790.00 per week.
- [72]On 24 March 2013, the plaintiff commenced work at the Yuleba Roadhouse, mainly cooking and cleaning for 37 hours per week. At the roadhouse she was earning $672.36 per week net before resigning on 15 September 2013. During that period she also earned in the order of $250 net from Tricia’s Cleaning.
- [73]The evidence of the plaintiff which I accept, is that she was unable to work the additional hours the employer at Yuleba required. I also accept her evidence that while she was able to just cope with the original hours, any increase would even have further aggravated the injury to and the resulting pain from her right arm.[74] According to the plaintiff the work at the roadhouse then “got to the point when it just aggravated my injuries too much.”[75] The evidence leads me to conclude that by the time the plaintiff resigned from Yuleba Roadhouse she was struggling physically and emotionally with her injuries. The communication from Dr McCook, a physiotherapist and injury rehabilitation advisor, identified not only concern that the plaintiff was displaying signs of kinesiophobia but also that she presented as teary, emotional and stressed when talking about her injuries.[76]
- [74]In my view, the plaintiff’s resignation from the roadhouse on 15 September 2013 was reasonable. Between 15 March 2013 when leaving Bullamon and 15 September 2013 when leaving the roadhouse, the plaintiff’s loss of income would have been in the order of $2,800.[77]
- [75]Consistent with her pre-injury work ethic, within 12 days of leaving the Yuleba Roadhouse, the plaintiff began work on 27 September 2013 at Merritt’s Bakery working 25 hours per week at a rate of $602 per week net. In the meantime, she had also earned between $300 and $400 in total from Byrnes Hotel and Tricia’s Cleaning.
- [76]Employment ceased at Merritt’s Bakery on 28 February 2014 because, according to the plaintiff, “well, everything I tried to do aggravated my arm and my back, so I chose to come back to Hervey Bay to rehabilitate myself and give my body a bit of a chance to heal.”[78]
- [77]It was put to the plaintiff that other minor injuries might have impacted on her employment with the bakery and that she simply wanted to return to Hervey Bay and go on the pension. The plaintiff soundly rejected such propositions and I believe her. In this context I accept her evidence that she continued to want to work, particularly in rural Australia.[79]
- [78]In respect of the period between 27 September 2013 and 28 February 2014, the plaintiff’s economic loss would have been $3,760.[80]
- [79]The assessment of past economic loss after 28 February 2014 becomes more complex. The medical evidence concerning the plaintiff’s physical capacity to work would suggest that by the time she left Merritt’s Bakery she would have been capable of working in sedentary employment and even up to 15 to 20 hours of lighter masseuse work. In this context, Ms Welshe considered not only was the plaintiff capable of carrying out identified tasks for up to 40 hours per week but in addition the plaintiff’s stress, anxiety and depression levels were “within normal limits.” [81]
- [80]The totality of the medical evidence makes it tolerably clear that while, physically speaking, the plaintiff was capable of meaningful employment what was limiting her ability to return to the workforce was her mental health. Professor Whiteford reported that the plaintiff spoke of being depressed at not being able to return to work at Bullamon and that that sense of depression not only continued but worsened.[82] The plaintiff’s depression has since coupled with her phobic condition concerning right arm movement.
- [81]While I am satisfied that the depressive and phobic conditions now affecting the plaintiff were initially as a consequence of the work-related injury, the evidence also establishes that neither of those conditions are permanent and, if properly treated and with the plaintiff’s appropriate commitment, would have resolved within 6 to 9 months.
- [82]On balance, I consider it appropriate to only allow the sum of $20,417 for the period from 28 February 2014 to 1 September 2014. That is, by 1 September 2014 the plaintiff would have been, if appropriate steps were taken by her, capable of returning to the workforce in a meaningful way.[83]
- [83]From 1 September 2014 up until the date of trial (approximately 33 months), the plaintiff should have been able to return to employment of the type identified by the medical witnesses. As to an appropriate rate of income, having regard to the rate of pay she was receiving at the bakery and Exhibit 5 to the affidavit of Ms Cathcart,[84] the plaintiff might have expected to earn in the order of $500 to $600 week. I will adopt the rate of $550 net per week. The application of this weekly rate would suggest that past economic loss suffered by the plaintiff from 1 September 2014 up to the date of trial would be $55,440.[85]
- [84]The total of the above figures for past economic loss is $108,260.
- [85]As I have already stated, I consider that but for the work-related accident and associated injuries the plaintiff would have continued to work and travel around Australia until at or about the age of 70. In this context, while the plaintiff clearly expressed the desire to see as much of Australia as she could, given her financial circumstances and her age I consider that it is more likely than not that she would have adopted a conservative approach to both travel and employment opportunities. That is, she would have been more inclined to stay longer at better paid jobs. That said, in my view, some material discount of past economic loss is appropriate to take into account not only the plaintiff’s age, likely to be considered a negative in respect of a number of rural employment opportunities, together with her desire to travel and the seasonality of some rural employment. On balance I consider the appropriate discount should be 30 per cent. Accordingly, past economic loss is determined in the sum of $75,782.
- [86]The agreed rate of interest on past economic loss at 1.27 per cent from 3 August 2012 to 8 June 2017 over 4.85 years totals $1,282.
- [87]The parties also agree that allowance for superannuation for past economic loss ought be allowed at the rate of 9 per cent. That results in a total figure of $6,820.
Future economic loss
- [88]In respect of future economic loss, I am not satisfied that the plaintiff would have been likely after her 70th birthday to remain in the workforce to the extent that she would exceed the maximum allowable rate before her pension would be impacted upon. That is, $414 per fortnight. She would be physically capable of earning that level of income if she so desired. Accordingly, I have concluded that following the plaintiff’s 70th birthday it is unlikely that she would suffer any economic loss.
- [89]It was some 76 weeks from the date of trial to the plaintiff’s 70th birthday. If she had worked at her original capacity up until that birthday, her net income would have been $60,040. However, having regard to the circumstances addressed above when dealing with past economic loss (i.e. the desire to travel etc.) and taking into account the plaintiff’s advancing years, together with the other vicissitudes of life, I consider it appropriate to apply a significant discount. On balance, I consider a discount of 45% is appropriate. In this context it is also relevant of course that the medical evidence that I accept, is that the plaintiff would have had a capacity to earn a level of meaningful income for at least part of that period had she taken appropriate steps to address her medical issues.[86] Applying a discount of 45%, that results in a final determination of $33,022 for future economic loss. The parties are in agreement that the loss of superannuation ought to be awarded at the rate of 10%, i.e. $3,302.
- [90]The agreed heads of damages and quantum are:[87]
General damages - | $23,050 |
Special damages - | $16,418.12 (including refund to Medicare of $1,571.10 and WorkCover and rehabilitation expenses of $13,503.53) |
Interest on Out of Pocket Expenses - | $82.75 |
Fox v Wood component - | $2,018 |
Future special damages - | $12,453 |
- [91]For the reasons given, past economic loss is calculated in the sum of $75,782 together with interest thereon in the amount of $1,282 plus an allowance of $6,820 for superannuation on past economic loss.
- [92]Future economic loss is determined in the amount of $33,022 together with an allowance of $3,302 in respect of lost superannuation benefits. The total of these figures is $174,229.87. It is agreed that the appropriate WorkCover refund is in the sum of $31,543.83. Accordingly, judgment will be given in favour of the plaintiff in the sum of $142,686.04.
Orders of the court
- [93]Judgment that the defendant pay to the plaintiff $142,686.04.
Footnotes
[1] T1-27 L 12 – T1-28.
[2] Exhibit 3.
[3] Exhibit 1.
[4] T1-14 ll 41-43.
[5] See generally Exhibit 3 (Chronology).
[6] T1-33 ll 1-25.
[7] T1-34 L 23.
[8] T1-35 ll 1-7.
[9] T1-36 ll 10-30.
[10] T1-38 ll 42-47.
[11] T1-40 ll 29-44.
[12] T1-14 ll 41-45 to T1-15 L 1.
[13] T1-38 ll 17-40.
[14] Amended statement of claim, para 6.
[15] Exhibit 2, Tab “B”.
[16] Ibid B5.
[17] T1-81 ll 17-29.
[18] T1-82 ll 40-43.
[19] T1-84 ll 1-22.
[20] T1-20 L 13.
[21] T1-20 ll 33-47.
[22] See generally T1-21 to T1-22.
[23] Exhibit 2, “A3”.
[24] Ibid A5-A6.
[25] A8.
[26] A12.
[27] T1-72 ll 24-38.
[28] T1-77 ll 14-47.
[29] Exhibit 2, C5.
[30] Ibid C16.
[31] Ibid C18, C19.
[32] T2-5, ll 5-26.
[33] Exhibit 2, D5-D6.
[34] Exhibit 2, D31.
[35] Ibid D33-34 and D37-38.
[36] Ibid D37.
[37] T1-87 ll 22-25.
[38] T1-26 L 40.
[39] Written submissions paras 56(a) and 57.
[40] Statement of Claim, para 6; Defence para 6.
[41] Exhibit 2, F11-12.
[42] Ibid F17.
[43] Exhibit 2, F14.
[44] Ibid, F12.
[45] Ibid, F17.
[46] Ibid G4.
[47] Ibid H3, para 12(a)-(b).
[48] Ibid H3, footnote 9.
[49] Ibid H4.
[50] T2-28 ll 22-47; T2-29 ll 1-8.
[51] Exhibit 2 F11.
[52] Ibid F12.
[53] Henville v Walker [2001] HCA 52 at [60]; Roads and Traffic Authority v Royal [2008] HCA 19.
[54] [2011] QSC 051 at [34].
[55] E.g. her term of employment on the subject property.
[56] [1999] 197 CLR 138 [7].
[57] [1995] 182 CLR 1 at [1].
[58] Paras 33-35.
[59] Mr Cilento’s written submissions at para 150.
[60] T1-43 ll 33-35.
[61] The evidence in this context was that the plaintiff had hefty mortgage commitments. T1-22 ll 39-40; T1-38 ll 4-27.
[62] T1-42 L 40.
[63] T1-43 L 12.
[64] T1-15 L 1.
[65] T1-34 ll 27-36.
[66] See Exhibit 2, Tab S1.
[67] [2012] QCA 312.
[68] At paras [48], [49] and [50]
[69] [2012] QSC 11.
[70] [48], [49] and [50].
[71] Exhibit 2, Tab S1.
[72] See Exhibit 1.
[73] T1-44 to T1-57.
[74] T1-33 ll 44-46.
[75] T1-32 L 33.
[76] Exhibit 2, Tab J1.
[77] $790 PW - $672 PW = 118 PW x 24 = $2,832.
[78] T1-35 ll 3-5.
[79] T1-53 to T1-54 ll 1-8.
[80] $790 PW - $602 PW = $188 x 20 = $3,760.
[81] Exhibit 2, G4 and G14.
[82] Exhibit 2, F5 – F6; F11-13.
[83] $816 PW x 28 = $22,848 less $2,431 earned from Katmanzoo takeaway.
[84] Exhibit 5.
[85] $790 - $550 = $240 x 33 months.
[86] Refer here to evidence of Dr Walden and Professor Whiteford addressed above.
[87] Refer to Exhibit 1.