Wolgast v Connolly's News[2008] QSC 97

SUPREME COURT OF QUEENSLAND

[1] FRYBERG J:  The plaintiff was injured in a motor vehicle collision on 19 February 2005.  The vehicle which he was driving collided head-on with a vehicle being driven by an employee of the first defendant.  The impact was severe: the airbags in the plaintiff's vehicle were activated and both vehicles were written off.  The defendants have admitted liability for the collision.  They dispute the extent of the injuries and the loss and damage suffered by the plaintiff as a result of his injuries.

The plaintiff's injuries

[2] The plaintiff particularised the following injuries:

• a bilateral shoulder injury
• a specific phobia of sub-threshold post traumatic stress disorder symptoms
• an innominate injury to the cervical spine
• a wedge fracture to the thoracic spine (T1).

The defendants denied that the plaintiff suffered any injury to his shoulders or to his cervical spine.  They admitted that he suffered the wedge fracture and some non-permanent psychological sequelae.

[3] The plaintiff testified that the pain to the right shoulder lasted no more than three months.  Little evidence was given about it.  On any view it was a minor injury.  I take it into account but say no more about it.

[4] There was unchallenged evidence that as a result of the collision the plaintiff developed a specific phobia with respect to driving.  The plaintiff received treatment for it and it had resolved by October 2005.  WorkCover met the cost of the treatment, which is included in the amounts upon which the parties have agreed.  Again, it is a minor injury, to be taken into account.

[5] There was no radiological evidence of any injury to the cervical spine despite x-rays and CT scans.  Counsel for the plaintiff disclaimed any soft tissue injury.  However the plaintiff has repeatedly complained of the neck pain.  It seems that all the medical practitioners were prepared to treat this pain as a possible consequence of the fracture at T1.  Even were I to accept the plaintiff's evidence in full, I would not be satisfied that he suffered any injury to his cervical spine.

[6] The case revolved around the fracture.  This injury and its consequences are at the heart of the dispute between the parties.  In assessing the plaintiff's loss and damage it is necessary to review the history of his complaints relating to it.

The medical and therapeutic history to mid-2006

Treatment

[7] The plaintiff was seen at the Gympie Hospital on the day of the accident (a Saturday), but was not admitted.  He was seen by his general practitioner, Dr Lee, on the following Monday and Thursday.  On the Monday he complained of stiffness and pain in his neck, which could be rotated 20° in each direction.  Dr Lee suggested that he keep moving and use analgesia.  By Thursday the range of motion in his neck was much improved, but he was still tender especially across the upper back, with shooting pains.  He commenced physiotherapy the following week.  He was still very sore on 9 March, when Dr Lee requested a CT scan of the lower cervical/upper thoracic spine, previous x-rays having revealed nothing.

[8] The scan was carried out on 10 March.  Dr Bretherton reported:

“There is a minor upper end plate compression fracture of T1 vertebral body with slight anterior wedging producing approximately 15% loss of height anteriorly.  The posterior elements remain intact and vertebral alignment remains normal.  There does not appear to be significant associated haematoma.  No facet subluxation is seen.”

Dr Lee saw the plaintiff on 15 March and prescribed Panadeine Forte.

[9] On 22 March the plaintiff told Dr Lee that he still suffered considerable pain, especially at night and in the morning.  Neck rotation was 45° bilaterally but extension was very limited.  The doctor decided to refer the plaintiff to an orthopaedic specialist.  The defence placed some weight on the fact that at this consultation the plaintiff told the doctor that his solicitor had told him not to go back to work while he still had pain.  That is sound advice; I see nothing sinister in it.

[10] The plaintiff saw Dr Peter Winstanley on 24 March 2005.  The latter thought that there was no indication the plaintiff required further investigation or surgery.  He recommended continuation of physiotherapy and muscle strengthening to allow the plaintiff to return to work as a labourer.  He estimated that maximal medical improvement would take a further six weeks and suggested that the plaintiff avoid persistent fixed posture.

[11] Thereafter the plaintiff’s visits to the general practitioner became less frequent, and were for the purpose of changing medication or obtaining prescriptions.  He continued with physiotherapy until June 2005 when an incident caused him severe pain and led him to discontinue it.  In the meantime he attempted to return to work, working for two days about a week apart.  He was able to work satisfactorily on the first day but on the second found that sweeping floors, the duty assigned to him, caused his back and neck to become very painful.  Wearing a safety helmet caused headaches.  He was referred to a neurosurgeon and in August attended a 10 day work hardening/pain management program.  Arrangements were made for him to return to work around the end of that month.  They were not implemented in the circumstances described below.[1]

[12] Mr Wolgast remained on workers’ compensation until December 2005.  He then began to receive a disability pension of $1,875 per month from a private insurer, AMP Superannuation Ltd, by reason of a policy maintained by his employer.  He continued to attend his general practitioner from time to time after his dismissal, complaining of pain, including upper shoulder pain and was prescribed painkillers, including Panadeine Forte.  He went to a rehabilitation session in April 2006 and subsequently told his general practitioner that the maximum weight he could lift was 6.5 kg.  In May he reported that doing a prolonged task caused him pain in the neck and headaches, 10 minutes of computer work caused back and shoulder pain and long car trips (e.g. from his home outside Gympie to Brisbane) caused neck and shoulder pain and headaches.  He said that walking was “OK”.

Forensic

[13] Examination of Mr Wolgast for forensic purposes began with his visit to Mr Stephen Hoey, an occupational therapist, on 19 April 2006.  He told Mr Hoey that he had a central aching pain in his lower neck which radiated to his shoulder blades if he held his head in fixed postures.  He continued to suffer regular headaches, up to four per week.  On testing his cervical movements (flexion, lateral flexion, extension and rotation) were considerably restricted; there was an increased lordosis of the cervical spine with tenderness in the suboccipital triangle; there was hypomobility at C 6/7; there was paravertebral muscular spasm in the lower cervical spine; there was postural kyphosis with protracted chin posture; and there was poor tonic holding performance on a right scapula retraction depression test.  His physical condition made redeployment to a lighter occupation obviously necessary.  He needed a minimum of four hours per week assistance with domestic chores and the like.

[14] Mr Wolgast was examined by Dr Scott Campbell, a neurosurgeon, on 19 May 2006.  He complained of neck pain and mid-back pain occurring daily and tending to radiate across both shoulders.  The pain he said was aggravated by day to day activities such as lifting and carrying weights greater than 10 kg, bending to pick up objects from the floor, prolonged standing and dressing/undressing, particularly shoes and socks.  He could sit for only 15 minutes and then had to stand and stretch.  On examination Dr Campbell found movement decreased by 30% in all directions and pain at the extremities of movement.  There was tenderness and guarding over the cervico-thoracic junction.  Dr Campbell formed the opinion that the plaintiff was unable to work due to the severity of the pain.  He thought that the plaintiff would be able to re-enter the workforce retrained for sedentary work.  Any return to work of a heavy manual nature would be likely to cause aggravation and deterioration of his condition.  The plaintiff had an 8% whole person impairment.

[15] The plaintiff was examined by Dr Bruce McPhee on 24 July 2006.  His complaints to Dr McPhee were similar to those given to other doctors.  Dr McPhee found that movements of the cervical spine were generally reduced with a range of about half of normal in all planes.  Tenderness was localised to the T1 spinous process.  He too thought the plaintiff could undertake sedentary or light work but not labouring.  He noted that a return to work depended upon the plaintiff's ability to tolerate pain.  He reported:

“On the open market however as a result of his injury and age, Mr Wolgast may find it difficult to find suitable employment.  This will depend to some extent on a sympathetic employer.”

Dr McPhee found the plaintiff’s history, symptoms and clinical findings consistent.  He continued,

“His range of cervical spine movements however is somewhat greater [sic; semble less] than one would anticipate given the fact that he has a relatively minor wedge compression fracture in the upper thoracic spine as against the cervical spine.  Nonetheless there was no evidence of any significant functional overlay or any over presentation.”

He too assessed an 8% disability of the individual as a whole.

[16] On 15 August 2006 the plaintiff was seen by Ms Bronwyn Linton, an occupational therapist, for the purpose of a driving assessment report.  This report was required by AMP Superannuation, which was providing the plaintiff's disability pension, but it is unclear why such a report was required.  Ms Linton formed a less sanguine view of the plaintiff than did the two doctors.  She reported that his functional ability at the time of assessment and level of neck pain and stiffness reported were inconsistent.  The foundation for that opinion was:

“At the beginning of the assessment, Mr Wolgast held his neck and back in a stiff posture and complained of severe neck stiffness associated with his neck pain.  In the second hour of the assessment, Mr Wolgast’s posture was relaxed and he was noted to use small intuitive neck movements during pen and paper tasks not consistent with the level of neck pain and stiffness described.”

That was a little odd, as Ms Linton agreed in cross-examination that she did not undertake functional capacity assessments.  More importantly, Ms Linton agreed that the small neck movements to which she referred fell within the range of movement which she discovered on testing the plaintiff did have.  Asked to identify the inconsistency, she said:

“When someone has neck stiffness their movement is often segmented because they are very conscious about how they move.  Small intuitive movements were smooth, almost unconscious movements, and that is what I found to be inconsistent with someone who reports that level of neck pain and stiffness.”

However Ms Linton did not report observing segmented movements in the plaintiff.  Moreover, as she pointed out, the plaintiff was much more relaxed during the second hour and was only performing pen and paper tasks which required very little head movement.  I am not satisfied that her reported conclusion was correct.

[17] Ms Linton also attempted to carry out cognitive testing of the plaintiff.  The results of her testing are not directly relevant in the present case.  If they were I would have difficulty giving much weight to them.  Ms Linton was not a psychologist and counsel for the defendant, on whose behalf she was called, made no attempt to demonstrate that she possessed the expertise to conduct such testing.  I note moreover that the plaintiff was referred to Ms Linton as a result of a recommendation in an employment assessment conducted by a psychologist (and an occupational therapist) on 13 April 2006.  The psychologist was not called and no explanation for her absence was proffered.

[18] The defendants did not rely on the results of Ms Linton's cognitive tests, but rather on her report of the plaintiff's attitude to the testing.  They submitted that the plaintiff's aggressive approach, his lack of cooperation, his unwillingness to perform testing and the like was consistent only with an attitude of his that he did not want to pass the driving test.  That submission significantly overstates Ms Linton's evidence.  She reported:

“Mr Wolgast displayed an unusual attitude to the cognitive tests.  If the task was mildly challenging, he refused to attempt it or required frequent verbal encouragement from the therapist to continue.  He often rushed tasks and kept asking the assessor to tell him the answers.  Subsequently, his results are unlikely to reflect his true cognitive ability.”

[19] Contrary to my initial impression, Ms Linton did not agree during her evidence that the plaintiff was simply not trying.  She accepted the proposition that he did not demonstrate maximum or sufficient effort.  She based this conclusion on “his attitude towards attempting the tasks, his reluctance to participate in them and the requirement for me to encourage him to keep going”.  In reaching it she assumed that the plaintiff had completed Grade 9 at a normal school, and that if any of the tasks was beyond his ability, he would have told her so, not have refused to attempt it.  In fact the plaintiff attended mainstream schools until the year he turned eight.  Thereafter he attended Opportunity School until the age of 15.  He had difficulty with spelling and filling out forms.  One of the tests involved spelling a word backwards.  Ms Linton was unable to say whether a person’s inability to spell the same word forwards took the case outside the protocol for the use of the test.

[20] In my judgment Ms Linton failed to make due allowance for Mr Wolgast’s educational and intellectual limitations.  The flavour of her evidence betrayed an irritation with him which probably resulted from that failure.  The plaintiff's refusal to attempt some parts of the cognitive testing does not support the defendant's submission referred to above.

[21] On 21 August 2006 Mr Wolgast was examined by Ms Stephanie Johnson, another occupational therapist.  He told her of aching at the lower cervical/upper or rustic level, radiating across to both scapulars, and occasional headaches.  When driving he needed to stop every 20 to 30 minutes to change his posture; he used mirrors rather than rotate his body to look to the side or behind him.  On examination he had significantly reduced ranges of movement in flexion, extension, rotation and lateral flexion of his cervical-thoracic spine.  He was observed to sit for an hour (double his estimate of his sitting tolerance).  He lifted 10.5 kg five times at waist height to waist height, but declined to lift a greater weight because he felt a pulling across his shoulder region.  He lifted 5.5 kg three times from waist to shoulder and once from waist to floor level with no reported symptoms but ceased handling this weight due to anticipation of symptoms following the assessment. 

The plaintiff's evidence about his injuries

[22] The plaintiff testified that immediately following the accident he felt pain in his back, neck, shoulder and right arm.  In the following weeks his neck pain got worse.  The shoulder pain resolved after about three months.  He developed a phobia about travelling in motor vehicles.  He was liable to “freak out”.  He claimed this was still a problem, although the position had improved over time.  He went to physiotherapy for some months but ceased when one therapist pushed on his neck and hurt him severely.  Initially he could drive for only about 40 minutes due to pain in his neck.  He could not sit for more than half an hour.  He suffered from periodic headaches.

[23] According to the plaintiff the pain in his back and neck was severe, but it lessened about a year after the accident.  It went from “high” to “medium”.  It has remained at about that reduced level ever since, but with variations within any given weekly period.  Now he can drive for 2 or 2½ hours and sit without trouble.  He has what he described as “blind-spot mirrors” installed on his car to remove the need to turn his head to look behind.  Headaches now occur less often.  He still wakes up at about 3 am.  He has pain of variable intensity all the time.  The amount of pain depends on what he does and whether he takes medication.  To overcome the worst of the pain he takes Panadeine Forte and non-prescription painkillers once or twice a week and/or goes to bed.  Panadeine Forte “knocks me out cold”.  One tablet taken in the evening provides pain relief until halfway through the next day, sufficient relief to enable him to change a car wheel, for example.

Revised medical and therapists’ opinions

[24] The second defendant arranged surveillance of the plaintiff over five days between 19 and 28 March 2007.  The plaintiff was observed to live a generally active outdoors life.  Video recordings were obtained on 27 and 28 March.[2]  He showed no sign of pain in his neck or back nor any distress from his activities; but for the most part none of this was inconsistent with his condition as he described it in his evidence.  However on 27 March while driving his car, he was able to look over his left shoulder while reversing.  His movement generally was uninhibited and on a least two occasions his head and neck movements were crisp, in marked contrast to the way he moved to and in the witness box.  He worked on the engine of a motor vehicle for 2 hours and 22 minutes approximately on that day.  Shortly before the hearing, the DVD was shown to the various professional persons who had seen the plaintiff.  As a result, all of them modified or updated their opinions of the plaintiff's condition.

[25] Dr Winstanley did not see the plaintiff again, but signed a diary note drafted by the solicitors for the defendant:

“I have had an opportunity to view the DVD surveillance video that has been made available to me by McInnes Wilson Lawyers.  Having viewed the video it is my opinion that the plaintiff performed throughout as a person who does not appear to be any way impaired as a result of the injury to his cervical spine.

The images on the DVD illustrate that the plaintiff has the capacity to bend and twist without restriction.  The plaintiff would not appear to have restrictions on his employability.  He may not be capable of performing heavy manual labour, that is to say consistently lifting heavy weights above 25 to 30 kgs, although labour of any other kind would seem to be well within his capacity.”

In testimony he agreed that Mr Wolgast was not lifting items in the video recording, so it was difficult to make an assessment of his capacity to lift in the workforce.  He thought it would be best for him not to be involved in an occupation which required repetitive lifting.

[26] Dr Campbell saw the plaintiff on 14 February 2008.  The plaintiff continued to complain of neck pain and stiffness occurring daily and radiating to the interscapular region and across both shoulders.  He rated the pain at up to five on a scale of 10.  He said it was aggravated by lifting and carrying weights greater than 15 kg, looking up to perform overhead work and sudden movement to the left or right.  He said he continued to take Panadeine Forte two or three times a week.  On examination there was a decreased range of movement by 30% in all directions.  There was pain and stiffness at the extremities of movement and tenderness and guarding over the cervicothoracic junction.  In relation to the video evidence, Dr Campbell reported:

“The video showed Mr Wolgast moving freely and performing his day to day activities without restriction.  He was able to get into and out of the car, work under a car, work in awkward positions, jog a short distance, walk without restriction, carry light weights, kneel and bend.

Mr Wolgast was questioned about the video and he stated that he noted increased pain for the next two to three days after performing these activities and spent a lot of time convalescing in bed.”

Mr Wolgast denied making these statements.  Dr Campbell was asked whether those were Mr Wolgast’s precise words.  He responded, “No offence to Mr Wolgast, he wasn't the best historian, but they were reasonably precise.  As precise as I could nail him down, yes.”  In my judgment Dr Campbell's version is more likely to be the correct one.

[27] Some disturbing inconsistencies in the plaintiff's position are apparent.  First, in cross-examination the doctor expressed the view that there was a large difference between Mr Wolgast’s back and neck pain symptoms on examination a few days earlier and what was evident in the video; although he qualified that by pointing out that such symptoms can fluctuate from day to day and from week to week.  Second, Mr Wolgast’s evidence was that he could not recall whether he had suffered pain while doing the work shown in the video, nor how he felt in the following days.  Maybe he could have spent one or two days in bed, but he could not recall.  Third, Dr Campbell wrote that Mr Wolgast's condition had improved since May 2006.  It emerged in cross-examination that this was what the plaintiff had told him.  However Mr Wolgast said in his evidence that after the first 12 months the pain had stayed at about the same level.

[28] Dr Campbell concluded, “As his symptoms are well controlled on Panadeine Forte and are therefore not unduly disruptive I would rate his impairment at 5% whole person impairment,” a figure which included any accelerated degenerative changes in the future.  His earlier estimate had been 8%.  He saw no reason why Mr Wolgast should not return to sedentary or light manual duties in which he was limited to lifting weights of no greater than 15 kg.

[29] Dr McPhee also saw the video.  He reported:

“I viewed the entirety of the DVD and observe that there was no evidence of any restriction of the plaintiff performing activities. 

In my report of 25 July 2006 I noted that when I saw the plaintiff on 24 July 2006 I was informed that all movements of the head and neck were restricted and painful.  The observations on the DVD of the cervical spine show full rotation of motion which is inconsistent.

I was also informed by the plaintiff that he had problems putting on his shoes and socks.  My observations of the plaintiff bending and performing activities on the DVD would be inconsistent with the difficulty reported to me when I consulted with him in 2006.

The plaintiff reported to me that with activity he experienced pain.  The surveillance that I observed, extending for a period of approximately 4 hours, portrays no indication of symptoms consistent with pain … .

In my view there was no abnormality observed in the DVD.  I believe that the plaintiff would be capable of lifting most weights up to 20 kilograms in light of the observations in the DVD.  Because of the length of the activity observed I believe he would be capable of doing most things, and performing most activities.”

Dr McPhee thought that the level of improvement evident in the video by comparison with Mr Wolgast’s condition eight months earlier was “uncharacteristic”.  In the light of the DVD, he assessed the plaintiff's whole person impairment at 5%.

[30] In his testimony, Dr McPhee expanded on the last paragraph quoted above.  He explained that a single lift of 20 kg might cause some pain, but that would be something which people would ordinarily put up with.  Mr Wolgast might not like it but it would not worsen his condition.  On the other hand the more often a lift was done, the lighter the weight had to be.  In addition, in a work situation it was necessary to err on the side of caution.  In that context an occasional lift of 10 kg should be well within Mr Wolgast’s capabilities.

[31] Mr Hoey reassessed Mr Wolgast on 15 February 2008, immediately before the trial commenced.  He also watched the video evidence.  He thought that the latter appeared to show that Mr Wolgast had greater cervical range of motion than that exhibited during his earlier assessment, but he noted that visual estimation of range of motion is prone to error.  Examination revealed some restrictions in neck movement, but considerable improvements, as set out below:

On the basis of the video and the examination, there was now no need for assistance with domestic chores and the like.

[32] Ms Johnson saw the video and reported on 13 February 2008:

“I observed the plaintiff to flex forward freely.  I observed the plaintiff to extend his back and upper body when drinking from a can.  His movements were free with a completely functional range of movement for day to day activities.

I observed the plaintiff to sustain forward flexion through out the footage.  He was able to lean over the bonnet of a motor car for several minutes.  I could not observe any indication of impairment in performing this activity.

I recall on the occasion when I examined the plaintiff he imposed his own limitation upon the activities that he performed.  There were no objective signs of restriction, impairment or pain which accompanied the plaintiff’s stated limitations.  The images on the DVD were inconsistent with observations made by me in the course of my examination.

The plaintiff had complained to me of restrictions involving driving.  These would be caused by the necessity to turn the head and neck.  There was nothing no the DVD to indicate that there were ongoing problems in this respect.  The plaintiff did not rub his back or neck during the footage.  He did not stretch or otherwise modify his posture, nor display overt signs indicating that he required pain relief.

I consider that the plaintiff would be precluded from lifting heavy objects of or exceeding 45kgs.  However, few occupations these days require lifting those weights without assistance.  Packaging is now generally limited to weights in the order of 20kgs pr so which would seem to be within the plaintiff’s capacity.”

She was asked to comment on the likelihood that the improvement which she observed in the video occurred between the time of her examination in August 2006 and March 2007, given that the injury occurred in February 2005.  She responded:

“I think that it is - it's not out of the question that he couldn't have recovered to that extent, and - but we don't often see that without some kind of, like, a rehabilitation program involved or return to work whereas somebody can, you know, build up more tolerance and greater recovery at a pace.  If - if he were not to return to work or not to undergo some type of rehabilitation program, then, you know, my experience is that the recovery isn't that - that great in that period of time that far after the incident.”

The plaintiff's evidence about the video

[33] Mr Wolgast was shown the video evidence before the trial began.  Part of it depicted him working on a car.  He said that he and his son were putting welsh plugs into a block.  He recalled the day and he recalled doing the work, but when asked if he had any recollection of whether he suffered pain while doing the work, he answered, “Not offhand”.  Asked if he had any recollection now as to how he felt in the days which followed that work, he responded, “I could have spent one or two days in bed maybe -”, but denied any specific recollection of whether or not he did so.  Asked why he had said that he could have spent one or two days in bed, he answered, “Because I - well, I could have.  It's that long ago I don't remember.”

[34] Mr Wolgast testified that in August 2007 he could not turn his head more than 45° in any direction and that this remained the position at the date of trial.  However he accepted that the video showed him turning his head freely.  He did not suggest that anything happened between March and August 2007 which brought about that restriction.  He sought to explain his ability to turn his head freely in the video by saying, “If I take a heap of Panadeine - if I take Panadeine Forte, that relaxes everything and I get more movement”, but it was never suggested that he was using that drug prolifically.

[35] I find the assertions in this evidence improbable, and I reject it.

The plaintiff’s degree of disability

[36] Mr Wolgast said that his condition plateaued after about a year and that there was no subsequent improvement in it.  That confirmed Ms Johnson’s evidence that an improvement in his condition between August 2007 and March 2008 would have been unusual.  I am satisfied that no significant improvement occurred during that period.  I am also satisfied that Mr Wolgast exaggerated the extent of his limitations, both in his evidence and to the professional people whom he saw.  However I accept that his neck injury has left him with a 5% disability on a whole of person basis and that repetitive lifting of weights in excess of 15 to 20 kg would induce pain in his neck.

[37] Even making allowance for his limited intellectual and educational levels described below, I found Mr Wolgast an unsatisfactory witness.  He was unwilling to accept propositions which he thought might damage his case and advanced explanations for his behaviour which were on occasions silly - for example, his explanation for his failure to take a driving test required by Ms Linton.  I am not unwilling to accept his evidence without corroboration, but I treat it with caution and scepticism.

The plaintiff's employment history and prospects

[38] In 1971, the year he turned eight, the plaintiff was transferred to Mitchelton Opportunity School because of his learning difficulties.  He had particular difficulties with literacy, but his ability improved a little over time.  He is now able to read the news and the job advertisements in a newspaper but his writing and spelling skills are limited.  Despite these limitations he had prior to the accident become licensed to operate a roller, a forklift, a front end loader, a crane and an excavator and had certifications or qualifications for a variety of other equipment and activities.  After leaving school he worked as a merchant seaman for six years; he worked in various labouring jobs from 1986 to 1990; he worked as a porter and shunter with Queensland Rail from 1990 until 1998; and he worked in a variety of jobs, predominantly as a labourer or meat worker from then until 2004.  He was employed by Cooloola Civil Constructions as a labourer in March of that year and was still so employed in February 2005 at the time of his accident. 

[39] His earnings were not high.  His counsel calculated them[3] as follows:

(a)1994$20,432.21

(b)1995$23,595.84

(c)1996$23,095.56

(d)1997$20,006.10

(e)1998$42,643.84

(f)1999$26,988.24

(g)2000$24,773.28

(h)2001$24,315.40

(i)2002$18,858.50

(j)2003$12,839.19

(k)2004$12,301.70

(l)2005$20,486.00

He also received benefits as a result of unemployment as follows:

(a)year ended 30.06.2000 -$   187.00

(b)year ended 30.06.2001 -$   284.00

(c)year ended 30.06.2002 -$3,796.30

(d)year ended 30.06.2003 -$7,746.00

(e)year ended 30.06.2004 $3,040.00

[40] It will be observed that in the years 2002 to 2004 the plaintiff's earnings were considerably reduced and his benefits considerably increased.  That reflected the fact that the plaintiff was out of work for a considerable part of that period.  He testified that he applied for a large number of jobs, but had great difficulty securing employment.  He found out from one potential employer that his uncle, a referee on his CV, had provided an unfavourable reference.  That referee was removed and he obtained the next job he applied for, the position at Cooloola Civil Constructions.

[41] Without saying so in as many words, the submissions seemed to be that his unemployment during this period could be attributed to his uncle.  I am not prepared to draw that inference.  There is no explanation for why the plaintiff ceased such employment as he did obtain during the period, nor is there any evidence of how many potential employers contacted his uncle.  On the other hand, not too much should be made on his unemployment.  At the time of the accident he had been in continuous full-time employment by Cooloola Civil Constructions for about a year.

[42] After an unsuccessful attempt to return to work in May, the plaintiff was scheduled to return to work on light duties in early September 2005.  Unfortunately for the plaintiff an incident which had occurred in early 2004 then came to his employer's attention.  At the time of the incident the plaintiff had been working with a water tanker laying dust during road construction in a new subdivision.  The tanker had apparently been hired by his employer.  Water was obtained from a dam on the landowner's property.  At the request of a neighbour the plaintiff filled the tanker from the dam and delivered the water to the neighbour, who gave him $40 for his trouble.  In late July 2005 the property owner complained to the plaintiff's employer, apparently for the first time, that his water had been stolen.  When the plaintiff called on his employer in late August 2005 to arrange his return to work, he was taxed with this complaint.  He did not contest the allegations made against him, although he stated in evidence that the landowner had given him permission to take the water and his foreman had permitted him to use the truck.  As a result, instead of getting a return to work with light duties, he was dismissed for dishonesty.

[43] The defendants submitted that it was hardly likely that the plaintiff, who was only ever marginally employable, would in those circumstances have been able to obtain any employment of substance, even apart from the accident.  While there is some force in the submission, in my judgment it overstates the position.  The plaintiff's job opportunities were severely limited by his lack of education, low intelligence and poor literacy and numeracy.[4]  However his employment history and tax documentation suggest that but for the accident he had an earning capacity of about $31,000 per annum net at the time of the accident.  From September 2005 this was reduced by reason of the stain of his dismissal for dishonesty.  There is no evidence of how important such a stain would be to future employers who might be seeking labourers.  No mathematical method of assessing the impact of his dismissal on his earning capacity exists.  In my judgment the detrimental effect of the dismissal on his future employment prospects can adequately be taken into account if his earning capacity after September 2005, but for the accident, is assessed at $28,000 per annum.  Having regard to ex 9, and taking into account the impediment of his dismissal for dishonesty, it is reasonable to assess that capacity at $34,500 per annum net at the present time.

[44] Both of the occupational therapists who examined Mr Wolgast made assessments of his post-accident earning capacity.  In her initial report Ms Johnson considered that he would be most suited to employment in the sedentary to light range in physical demand, and which enabled him to avoid sustained cervical postures or repetitive upper limb activity involving sustained or repetitive periods of upper limb reaching.  However she also considered that a number of other factors impacted on his ability to gain employment.  They included his poor literacy and numeracy skills, his current period of unemployment, his workers’ compensation history, his dismissal for dishonesty and his previous work history.  Taking all these factors into account it was her opinion that his employment prospects were poor.  She did not update that opinion; and she conceded in cross-examination, in order to determine what jobs Mr Wolgast could do at the date of trial she would need to carry out a functional assessment.  She had not done so.  However on the basis of what she had seen in the video evidence, she thought that he would be able to undertake employment such as forklift driving even though it might involve rotation of his neck.

[45] Mr Hoey also initially reported that Mr Wolgast was capable of occupations only in the sedentary to light range.  That report was prepared without the benefit of the subsequent medical assessments.  His supplementary report was written with the benefit of the reports of those assessments, a viewing of the video evidence and a further examination of Mr Wolgast.  Mr Hoey adhered to his assessment regarding the sedentary to light range of physical demands.  He did so on the basis that no heavy lifting was carried out in the video footage.  He emphatically rejected suggestions that Mr Wolgast could be placed higher up the range.  He also observed that every occupation in Mr Wolgast's adult work history fell outside that range.

[46] Like Ms Johnson Mr Hoey thought that physical capacity alone was not an indicator of employability.  He took into account a history of workers’ compensation, work history, education, period off work and several other factors in assessing that.  He considered that Mr Wolgast was left with residual earning capacity, but required intensive job seeker training.  Suitable occupations for which he could be retrained included meter reader, security guard (traffic controller, night patrol or gatekeeper) or some form of spare parts assistant.  He would require an empathetic employer.  Attention to posture, lifting techniques and breaks would be important.  Mr Hoey wrote that the current earnings of a security guard were $480 net per week ($25,000 per annum).  Taking Mr Wolgast’s dismissal for dishonesty and the other adverse factors (including the need to find an empathetic employer) into account I assess his present residual earning capacity at $19,000 per annum.

Damages for loss of earning capacity

February 2005 - August 2005

[47] Being generous to Mr Wolgast, I am prepared to assume that he was unable to return to work until the end of August 2005.  In the 7½ months immediately before the accident Mr Wolgast’s average weekly earnings were $586 per week.  It is reasonable to infer that in the 6½ months following he would, had he not been injured, have earned an average of $590 per week.  There is no reason to discount this figure for the chance of unemployment; it was not suggested to Mr Wolgast that he intended to leave his job during that time.  His loss of earning capacity for the period can be calculated:

28 weeks x $590 per week = $16,520.

September 2005 - date of judgment

[48] From September 2005 Mr Wolgast’s earning capacity was diminished not only by his injuries but also by his dismissal for dishonesty.  I have already found that at that time his earning capacity but for the accident would have been $28,000 per annum or about $540 per week.  Assuming that his actual earning capacity then bore the same proportion to his putative earning capacity as it does now, it would then have been $(19,000/34,500 x 28,000) ≈ $15,400 per annum or about $295 per week.  Assuming employment for the whole of the period to the date of judgment, about 142 weeks, he sustained a loss of about $41,900.  Having regard to the matters referred to in paras [40] and [41] and other usual contingencies, that should be discounted by 20%.  His loss of earning capacity for that period warrants damages of $33,500.

Interest on past economic loss

[49] The total amount awarded for loss of earning capacity to date exceeds the amount of workers compensation paid to Mr Wolgast since the accident.  He claims interest on the amount of the excess.  The parties are agreed that if interest is to be ordered, the amount is properly calculated at $2,474.38.  The second defendant submitted that in the exercise of my discretion, I should refuse to award such interest.  It based its submission on the fact that Mr Wolgast received more than the amount of the excess as a disability benefit under the policy with AMP Superannuation Ltd.  The terms of the policy were not put into evidence but Mr Wolgast testified that the benefit was payable under his employer's superannuation policy.  There is no evidence of how the amount of the benefit was calculated and I would not assume that it was dependent upon the amount of Mr Wolgast’s wages.  I assume that he was an insured person under the policy and that he received the benefit by way of legal entitlement as between him and the insurance company, not in satisfaction of any liability of his employer.  I also assume that the benefit was payable regardless of his rights against third parties and that he was not obliged to repay the benefit in the event that claim be successful.  In support of that submission the second defendant cited Hiscox v Woods[5], a decision of Moynihan J, in which without giving reasons, his Honour made no award for interest in similar circumstances.

[50] In National Insurance Co of New Zealand Ltd v Espagne[6] the High Court discussed the circumstances in which a collateral benefit (in that case a social security pension) was to be disregarded in assessing damages for loss of earning capacity.  It held that such a benefit did not mitigate the plaintiff's loss, applying the principle in Bradburn v Great Western Railway Co[7].  Espagne was applied in Redding v Lee[8], where Mason and Dawson JJ wrote:

“Benefits of this kind spring from a desire to assist the plaintiff, not from any wish to relieve against the tortfeasor's liability (Espagne).

A similar comment may be made about pension and superannuation benefits whose purpose is to ameliorate the plaintiff's situation irrespective of his right to recover compensation against the tortfeasor. …

Our experience since Espagne enables us now to say that generally speaking the entitlements to, or the conditions for eligibility for, pension and superannuation benefits are so expressed that they do not have regard to the recipient's right to recover compensation from a third party.”

Presumably for these reasons, the second defendant did not submit that the amount of the benefit reduced the amount payable for loss of earning capacity. 

[51] In my judgment the principles discussed in Espagne apply with equal force to an award of interest on damages for loss of earning capacity.  The plaintiff has been kept out of money to which he was entitled.  Why should he not have interest on that money?  There is no suggestion that the disability benefit was paid as part of a legislative scheme “to provide compensation to take the place of the earnings lost by a worker as a result of an injury”; the benefit is “conferred upon [the plaintiff] with the intention that he may retain [it] even if he enforces his right to damages”.[9]  In this respect the case is distinguishable from Batchelor v Burke, from which those expressions are taken.  It is in my judgment analogous to the authority relied upon by counsel for Mr Wolgast, State of New South Wales v Davies[10].

[52] An award of interest under what is now s 47 of the Supreme Court Act 1995 has conventionally been regarded in Queensland as an award of interest by way of damages[11], notwithstanding differences between that section and its equivalent elsewhere.  The award is, of course, discretionary.  In my judgment the relationship between damages for loss of earning capacity and damages by way of interest on those damages is so close that for the purposes of accounting for collateral benefits the distinction should be ignored.  On that basis, no discretionary ground for refusing the award has been identified.

Future loss of earning capacity

[53] I have assessed Mr Wolgast’s residual earning capacity and putative earning capacity above.[12]  The difference between them represents a loss of earning capacity at the present time valued at $(34,500 - 19,000) = $15,500 per annum or about $300 per week.  The present value must be calculated over 20 years at a rate of discount of 5% and the result discounted by 20% for the adverse contingencies which might have occurred to Mr Wolgast in any event.  Counsel agreed that the calculation produces the result of $159,936.

Pain and suffering and loss of amenities

[54] Section 61 of the Civil Liability Act 2003 requires the court to assess an injury scale value under any rules provided under a regulation.  The parties agreed that in assessing general damages in the present case I must consider, among other things, item 92 of the fourth schedule to the Civil Liability Regulation 2003.  That item applies to the plaintiff’s wedge fracture of T1 with 15% loss of anterior vertebral height and specifies an injury scale value range of 10 to 15.  The plaintiff also suffered muscular injuries across his shoulders, headaches and a specific phobia while driving or being driven.  I have found that Mr Wolgast exaggerated the limitations imposed by his injuries.[13]  In my judgment he also exaggerated the extent of his pain, both in his evidence and to the experts whom he saw.  (In view of the course which the evidence took, I should say explicitly that in reaching that conclusion I have not taken into account what at first appeared to be an infrequency in obtaining Panadeine Forte.  In the end I thought the evidence regarding that point went nowhere.)  Nonetheless at the time of the accident and for a considerable period thereafter he undoubtedly suffered from a multiplicity of injuries which must have made his life miserable.  That permits the assessment of a higher value than would otherwise be assessed.[14]  He continues to suffer back pain to some degree and will probably do so for the rest of his life.  He is presently 44 years of age.  In the circumstances I assess his injury scale value at 16.  Under s 62(d) of the Act his damages must be assessed at $19,600.

Special damages

[55] Most of the items of past special damages are admitted and the remainder uncontroversial.  I assess them at $17,589.65.  As to the future I am satisfied that the plaintiff may benefit from physiotherapy, but I do not accept that he would undertake 10 sessions per year.  On his record, and given his attitude to physiotherapy, he may be expected to undertake a course of six sessions every three years or so.  That is an average of two sessions per year for 30 years.  He will incur travel expenses through having to travel 50 km per trip because he lives outside Gympie.  Counsel agreed that that on those findings, the proper amount to be allowed in respect of future physiotherapy is $2,766.

[56] I am also satisfied that he will incur future pharmaceutical expenses.  I accept his counsel’s submission that for these expenses I should allow $2 per week for 30 years and assess an amount the present value of which is $1,644.

Fox v Wood

[57] The parties agreed that the amount to be allowed under this doctrine is $4,879.

Interest and superannuation entitlements

[58] Counsel have agreed that on the foregoing findings, $2,474.38 should be allowed for interest, $4,501.80 should be allowed for past loss of superannuation entitlements and $14,394.24 should be allowed for future loss of superannuation entitlements.

Costs

[59] Neither party has made a relevant formal offer to settle under the rules.  The plaintiff has succeeded.  He should have his costs.

Order

[60] I give judgment for the plaintiff against the second defendant for $277,805.07 and for costs to be assessed.