Platen v Monadelphous Workforce Pty Ltd
[2009] QSC 222
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
- Platen v Monadelphous Workforce Pty Ltd[2009] QSC 222
- Add to List
Platen v Monadelphous Workforce Pty Ltd[2009] QSC 222
Platen v Monadelphous Workforce Pty Ltd[2009] QSC 222
SUPREME COURT OF QUEENSLAND
CITATION: | Platen v Monadelphous Workforce Pty Ltd [2009] QSC 222 |
PARTIES: | VICTOR JAMES PLATEN (Plaintiff) V MONDADELPHOUS WORKFORCE PTY LTD (Defendant) |
FILE NO/S: | 261/07 |
DIVISION: | Trial Division |
PROCEEDING: | Trial |
ORIGINATING COURT: | Rockhampton |
DELIVERED ON: | 7 August 2009 |
DELIVERED AT: | Bundaberg |
HEARING DATE: | 28,29 and 30 July 2009 |
JUDGE: | McMeekin J |
ORDER: | Judgment for the plaintiff in the sum of $288,457.31 |
CATCHWORDS: | DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where the plaintiff suffered injury to the cervical spine at work with psychiatric complications– where only the quantum of damages was in issue – where the plaintiff has a residual but unexploited earning capacity – where the plaintiff’s credibility in issue |
COUNSEL: | Mr G F Crow for the plaintiff Mr M T O'Sullivan for the defendant |
SOLICITORS: | Chris Trevor and Associates Lawyers for the plaintiff McInnes Wilson Lawyers for the defendant |
- The plaintiff, Victor James Platen, claims damages for personal injury suffered on 4 March 2005 in an incident at his work place. He was born on 30 January 1962 and so is presently aged 47 years and was 43 years of age when injured. Mr Platen was employed in the construction industry as a scaffolder at the relevant time. The defendant admitted liability in the course of the trial. There remains the assessment of damages.
The Accident & Immediate Aftermath
- At the time of the accident Mr Platen was engaged in the course of his employment. He was hit by a steel scaffold plank weighing approximately 15 to 20 kilograms when it fell from a height of 1.5m above him. It struck him on the helmet he was wearing causing him to drop to his knees. Mr Platen says that he was struck with considerable force. He was hooked up by a safety lanyard to the scaffold surrounds. He says that saved him from being knocked off the planks he was standing on to the ground. The helmet was damaged and its internal ribbing dislodged.
- Mr Platen continued to work for a period until the next smoko break. At the break he lay down in the smoko shed and fell asleep. He was awoken, a neck brace was placed on him and he was taken to hospital. He was giddy and disorientated. He had pins and needles in his hands and feet. His head was aching. The incident occurred on a Friday. Mr Platen said that he slept all weekend and took pain killers.
The Plaintiff’s Case
- The plaintiff’s case was that he had suffered a soft tissue injury to the cervical spine and then developed a major depressive disorder.
- Mr Platen’s complaints are set out in his statement[1] and read as follows:
“I still suffer from severe constant pain in my neck and into my left shoulder. The pain is aggravated by weather changes, turning my neck and attempting any repetitive or heavy physical activities. It feels like my neck is grinding. I find it extremely painful to stand or sit for extended periods. I have headaches every day. I experience pins and needles in my ring and little fingers on both hands. Since the injury my taste and smell have not been the same. I have hot and cold shivers, I often feel dizzy, my balance has been affected and my left eye is now lazy. I am suffering neck pain and headaches virtually all the time.”
- In addition to those ongoing symptoms he complains of having become depressed and, on one occasion, violently angry, resulting in admission to a psychiatric ward for 5 days in August 2006.
- On his account, Mr Platen has not been free of neck pain since the time of the accident. The injury has interfered, significantly he says, with his capacity to work such that apart from attempting work on a rehabilitation course he has not engaged in paid employment since the accident. Mr Platen says that he had no trouble finding work from about 1985-86 through to the time of the incident in 2005 and did so principally in the construction and maintenance industries in Queensland and South Australia. He says he enjoyed his work, worked long hours, and enjoyed a good income. He was the principal bread winner for the family and took on a mortgage in 2003.
- As a result of his injury, Mr Platen says that he has become very worried about the drop in his income. After his period on Workcover payments ceased he was placed on a Newstart (Disability) Allowance in October of 2006 and eventually a Disability Support Pension in November of 2008.
- As well Mr Platen is no longer active in his hobby of racing speedway cars. He was a member of the Gladstone Show Society being its Vice-President for 3 to 4 years. As a result of his injury and consequent disability he says that he has resigned from that position and his involvement with speedway cars has been limited since this incident. He enjoyed camping and fishing, especially with his sons and his activities there too have been significantly limited.
The Defendants’ Case
- The defendant challenged Mr Platen’s honesty. Mr O'Sullivan, who appeared for the defendant, advanced three contentions:
- the plaintiff had a pre-existing neck problem and degeneration such that any present symptoms were, in part at least, due to that condition;
- the plaintiff had been engaged in commercial employment for some years since the subject accident and was fully capable of carrying out his pre-accident work;
- given the state of the evidence the plaintiff could not establish to the requisite standard any diagnosis or prognosis hence the damages could only be assessed at a fairly minimal level, reflecting the conceded facts of a blow to the head causing some form of soft tissue injury long resolved.
Pre-Existing Injury
- Mr Platen’s evidence in chief was that he had not suffered any neck pain prior to the subject incident. He agreed that he’d had an accident in 2000 racing a speedway car but maintained that he had suffered sore ribs in that accident and denied any neck pain.
- In September of 2000, and following the accident, Mr Platen had x-rays of the cervical spine. The records of the Voss Clinic, the medical centre where he was treated, refer to thoracic dysfunction and dysfunction of the head and neck.
- In a document dated 11 January 2005, which was a short form questionnaire for the purposes of a medical examination required to gain entry to the Comalco site where he was injured, Mr Platen circled yes to the question of whether he took medications and the medication recorded was “Neurofen” (sic).[2]
- An MRI taken in 2005 and after the subject incident showed degeneration of the cervical spine. Dr Shaw explained that there was no necessary correlation between any particular level of degeneration and any particular level of symptoms so one could have gross degeneration with no symptoms, or minimal degeneration with significant symptoms.
- The probabilities seem to be that Mr Platen did suffer some form of neck injury in the speedway accident and for some reason was taking Nurofen in January of 2005. There was no direct evidence that he was taken Nurofen for a neck problem and given the nature of the work he was doing, any problem could hardly have been significant.
- In my view there is no persuasive evidence of any significant pre-accident condition that would necessarily have caused difficulties in the future. There was consistent evidence from his work mates and spouse that prior to the subject accident he was an active man with no apparent limitations. There was no evidence of any ongoing treatment for any neck problem. His earnings history suggests that he earned a good income in the years leading up to the accident. Whilst the MRI reports indicated the presence of degeneration the medical evidence is against any inference being drawn of any correlation between degeneration and symptoms. The best guide is his level of activity and the lack of any medical treatment.
Commercial Employment
- The defendant’s arguments were based on inferences that it said should be drawn from surveillance undertaken of the plaintiff over 19 days from February 2006 to September 2008. Any inference, it was submitted, should be adverse to the plaintiff given his apparent attempt to conceal his activities from the court.
- Mr Platen kept a daily diary which he referred to as his “pain diary”. He says that he had in fact kept a daily diary for many years prior to the subject accident as well as subsequent to it. As part of his evidence in chief, Mr Platen supplied his diary entries for the period from 11 August 2008 to 18 August 2008. The plain intention was that the diaries were intended as a contemporaneous record of the problems experienced. Mr Platen said that he made his entries either on the night of the day in question, or on the following morning.
- The point that the defendant makes is that there is no correlation between the diary entries and the activities that the plaintiff is shown to be performing on the day of the entry.
- The DVD that was played to the Court principally concerned Mr Platen’s arrival at a work place called Custom Transport and Trailer (“Custom Trailers”), a business owned by his friend Mr William Gould, his activities there to the extent that they could be filmed (Mr Platen was out of sight most of the day), and his departure from the work place in the afternoon. On occasions he was shown to arrive at 7.00 am and leave at 5.00 pm. He would arrive in a motor vehicle, kiss his wife goodbye, take what would appear to be a lunch box or food of some sort into the premises, sometimes unlocking the premises and then was occasionally seen in the yard performing activities such as moving a ladder, driving a forklift or other motor vehicles, driving a prime mover, carrying templates or strapping down items in the back of a truck. He was dressed in what he accepted was typical work gear.
- An example of the problems that the comparison of the DVD’s to the diary entries created for Mr Platen can be seen from his entry of 25 August 2008. The entry for that Monday reads, in its entirety, as follows:
“Had broken sleep from pain in neck and shoulder last night, very sore and stiff to move and still is at present. Got to see solicitor today. Neck pain is still giving me heaps of pain, got a bad headache and very tired, didn’t want to do anything today but try to rest. My appointment is Thursday at 9.00am instead of today. Went to bed late because I fell asleep on lounge.” (underlining added)
- The DVD shows Mr Platen arriving at the premises that I have previously mentioned at 8.53 am and leaving at 5.00 pm. At one point during the day he lifts a vacuum cleaner out from a car and carries it into the shed. Late in the day he carries a bag of rubbish to the bin. When he arrived in the morning he had a food container with him just as one might expect a person going to work might have.
- Plainly there is no correlation between the diary entry and the activities depicted on the DVD. To record that he was “very tired, didn’t want to do anything today but try to rest” without recording what in fact he did do that day is simply inexplicable if Mr Platen is to be taken as an honest recorder of the events of the day. The only explanation he could proffer is that he must have forgotten what he did that day. He suggested at one point that his memory was very poor and that he might forget what he had done ten minutes before.
- The entry for the following day, 26 August 2008, speaks of a disturbed night’s sleep that Mr Platen says that he had had, the effect of the cold weather on his pain and that his pain was getting him down. It also records:
“Still can’t work out why Joshua Hi-Lux is getting air in brake system, after I have bled it through to wheel cylinders. I will go see Brett at dyno to find out how to fix it. Rang Morgan tonight to see how she is going with Eden and is everything alright. I hate being like this pain, every day, I never get a break from it. I still hate taking drugs every day…”
- The DVD shows Mr Platen arriving at the premises I have described at 7.07 am, unlocking the gates and pushing them open obviously before any other staff have arrived. It shows him departing at 5.05 pm. Late in the day it shows him driving a forklift towing a boat in the yard of the premises.
- The entry for 28 February 2008 is instructive as well. Again he records there various problems including that his neck pain was “7” (meaning 7 out of 10) and records:
“Didn’t do much today, read book and watched a DVD today. Went to Mt Larcom to get Travis tonight…fixed up tandem trailer late in afternoon, put winch wire back on properly, racket latch fell off, got to put a weld back on it.”
- The DVD has Mr Platen arriving at the business premises at 7.00 am and departing at 5.30 pm. When he arrives he has a snack box with him suggestive of him needing food through the time he is going to be at the premises. During the day he is seen to lift up a ramp presumably used to get cars onto a trailer and drive a forklift. Late in the day he is seen securing a box of some sort in the back of a vehicle with a strap.
- The explanation offered by Mr Platen that his memory is the problem does not sit well with the entries made. The fact that he recorded events on 26 August such as the problems with his son’s motor vehicle and the making of a phone call to a family member about a matter suggests that his memory was not as grossly impaired as his answer would require.
- Nor was there anything in his presentation in the court room that suggested that he had a gross impairment of his memory. Answers in re-examination suggested that Mr Platen’s claimed limitations in his recall were convenient. One would think that if he was unable to recall at the end of a day what he had done that day, such as going to a friend’s shed and assisting in various work activities, when he had apparently been there for the whole day, it would be difficult for Mr Platen to function at all.
- The conclusion that the plaintiff has deliberately omitted from the diaries his real activities is in my view inescapable. Mr Crow, who appeared for the plaintiff, submitted that the number of hours in which the plaintiff is actually filmed and active amounts to approximately three. Three hours out of a period of 4.3 years is miniscule and an unfair basis, it is said, on which to judge the plaintiff. That submission misses the point. Out of the 19 days he was under observation Mr Platen was at the Custom Trailer’s shed on nine – an approximate 50% strike rate. For most of those days he is out of site in the shed. The lack of film of his activities does not establish that he was inactive.
- The construction that the defendant puts upon the evidence contained in the DVD’s is that the plaintiff is plainly working. He arrives early and leaves late. He takes his lunch there. He is dressed as a worker. To the extent his activities can be observed he is doing what one would expect a worker to do. None of the activities that he is engaged in is particularly strenuous. He drives forklifts, motor vehicles, and, on one occasion, a prime mover. He tows boats. He lifts objects of modest size and weight.
- As previously mentioned the owner of the premises of Custom Trailers is Mr William Gould, who was called. Mr Gould is a good friend of the plaintiff’s. He maintains there is no commercial arrangement between him and Mr Platen. He is simply helping out a friend to help fill in his day with some sort of activity and companionship with the workers employed there. There is no record of any monies changing hands and Mr Gould denies that any money did change hands.
- Mr Gould was a very impressive witness. He was called at short notice – he had not been opened and was called in response to the attack on Mr Platen based on the DVD material. He appeared to be extremely candid in his responses. He explained that when he is present at the work shop Mr Platen does odd jobs, assists his employees in minor ways when requested, and can fall asleep at odd times on a bench when he wants to rest. His observations were confirmed by another friend of the plaintiff’s, Mr Chris Hodgson.
- Whilst I can well understand the defendant’s suspicions I am satisfied that there was no commercial arrangement between them. The independent observations of the two witnesses called on the point strongly suggest that the true explanation for the plaintiff’s attendances at Mr Gould’s shed were as Mr Gould explained.
Assessment of the Plaintiff’s Credit
- While that disposes of the defendant’s contention that the plaintiff has been engaged in paid work at Custom Trailers there remains the issue of the plaintiff’s bona fides.
- The difficulty is that if Mr Platen was using Mr Gould’s business as a means of getting away from his home and getting some relief from the boredom of being incapacitated, pursuant to his medical advice as was alleged, then it is difficult to understand why he hasn’t made entries in his diaries recording these events. One would think that he would be keen to record his compliance with his advice. His claim that he forgot about his attendances is plainly false. Indeed on many occasions his response suggested that he had no present memory of ever being at the shed for a whole day, a stance I cannot accept as a true one. As well it seems likely that even accepting that he is simply pottering about doing odd jobs on a non commercial basis, these are the most strenuous of his usual activities. Why mention activities that are mundane and innocuous, such as getting the groceries, and fail to mention these?
- There is no suggestion in any of the material presented to the court by Mr Platen, up to the point of his cross examination, that he was engaged in these activities. He plainly enough had not told his legal advisers or any of the medical practitioners who were asked to examine him. Indeed I was told from the bar table, without protest, that the defendant had asked the plaintiff’s solicitors, prior to trial, whether the plaintiff was working at Custom Trailers. Such an enquiry would normally result in a very close examination of the facts. Not even this enquiry prompted a disclosure.
- These problems are not met by pointing out, as was done, that two entries in the diaries can be found, out of a total of over 1000 entries, where mention is made of him visiting the Custom Trailer shed.
- A further issue is that there is no sign of any discomfort, or restriction in Mr Platen’s neck movements, that I can observe in any of the DVD’s shown to me. No medical practitioner suggested that they could perceive any such restriction. He at times works under the bonnet of his car and gets into and under his car without any apparent difficulty. He appears to move his head naturally. He did so in the course of giving evidence over many hours. On at least two occasions at the end of a day at Custom Trailers his shirt and jeans were distinctly grubby, consistent with him having been lying on the floor of the workshop – presumably working on vehicles or machinery. Mr Platen was not forthcoming about his activities there. The activities observed suggest that Mr Platen has a reasonable capacity to engage in some form of useful employment.
- My conclusion is that Mr Platen has not been honest and candid.
- This finding has a significant consequence. There is no objective evidence of any lasting physical injury. Cases of this type depend entirely upon the honesty and integrity of the claimant. Dr Shaw, an orthopaedic surgeon, expressed the view that the plaintiff had suffered an aggravation of pre-existing degenerative change in the cervical spine in the subject accident. Although there had been a significant deterioration in the MRI pictures between 2005 and 2007, a deterioration that could be consistent with the effects of the subject accident, no conclusion could be drawn that there would necessarily be significant symptoms. Whilst a significant blow to the head, such as Mr Platen received, was, on the balance of probabilities, likely to contribute to that acceleration of the degenerative condition, nothing more could be said as to what level of symptoms might result.
- An assumption was made by some practitioners that Mr Platen’s continuing complaints of significant pain and disablement were explained by some form of soft tissue injury with lasting effects. Dr Tomlinson’s suggested diagnoses were spinal chord concussion and a whiplash type injury. The “concussion” was a transient condition lasting only a very limited time, in the order of hours. While that may explain the early symptoms it cannot explain the continuing complaints. Dr Ohlrich, a neurologist, explained that, in his view, the notion that a soft tissue injury would have lasting effects was a very dubious proposition – whilst there are reports in the literature of continuing complaints beyond the expected period of recovery he was plainly sceptical that there was any scientific explanation or support for such complaints. There is obviously a difference between the reporting of continuing symptoms and the actual suffering of them. Where, as in this case, there is noted variability of presentation within the one interview for example in the degree of restriction of movement of the neck, then I can readily understand the basis for the scepticism.
- Whatever might be the resolution of that medical debate the analysis carried out by the medical specialist depends on the history assumed. Where the history is inaccurate then the diagnosis and prognosis proffered are worthless. As Dr Shaw conceded his analysis and conclusions that the plaintiff was significantly disabled, was unable to carry out his usual employment, and would remain that way, depended to a significant degree upon the assumption that Mr Platen’s reporting of his symptoms was a reliable one. Absent that, he could reach no decision on the level of disability that Mr Platen might have.
- The alternative explanation proffered by the plaintiff’s medical evidence was that his complaints of chronic pain were explained by some form of psychiatric mechanism. A psychiatrist, Dr Flanagan, was called by the plaintiff. His views had varied over the years. By the time of trial he concluded that the plaintiff had major depression but he had earlier diagnosed a somatoform disorder. His suggested prognosis has varied too. In his report of 25 May 2006 the psychiatrist opined that once Mr Platen’s long term involvement with Workcover had ceased, the plaintiff would gradually recover. He also accepted that it was quite possible that the plaintiff was consciously exaggerating his physical symptoms for primary or secondary gain.[3] In later reports he concluded that the plaintiff’s condition was a permanent one and that he was unlikely to work again. Those latter opinions were based on an assumption that there was an organic basis to the plaintiff’s ongoing complaints – he assumed a “severe chronic Whiplash Syndrome” and “Spinal Chord Concussion” which he assumed explained “a variety of soft neurological symptoms”.[4] I am not satisfied that the first condition is established and the psychiatrist was wrong about the “concussion” explaining ongoing symptoms.
- But for two pieces of evidence I would have acceded to Mr O'Sullivan’s submission that the plaintiff should be awarded minimal damages. The principal matter that in my view provides independent support for the plaintiff’s case is the history of his admission to the psychiatric ward in Rockhampton in August 2006. The history recorded by Dr Flanagan and confirmed by Mrs Platen was: “He ran amok last night for no apparent reason causing extensive damage to his house and car and chasing his children with, he says, a murderous rage”. Dr Flanagan recorded that at his examination at that time Mr Platen became tearful and “seemed to be expressing a genuine fear and sense of helplessness and a request for help”.[5]
- I am quite satisfied that this hospital admission was not some sort of staged event to bolster a claim for damages. Mr Platens’ wife and friends are consistent in their reporting that Mr Platen’s personality underwent a significant change following the subject accident. Mr Gould made it plain that he viewed this admission very seriously. He visited Mr Platen in hospital and suggested to his friend then that he needed to get out and be more active and suggested he come to his shed and mix with the employees there.
- The second piece of evidence that impressed me as providing a reasonably sound basis for proceeding was the evidence of Mr Gould, confirmed as it was by the evidence of the friends called, that Mr Platen was not particularly active at the shed, not overly effective in the assistance that he attempted to render, and indeed often slept. This was in marked contrast to Mr Platen’s pre-accident behaviour and energy that all witnesses, who were asked, described. He had previously been a hard working scaffolder, earning an excellent income which enabled him to support his wife and children, and was widely respected by his peers.
- Mr Gould was an owner of businesses and an employer of over 100 personnel. Apart from his evident personal qualities there were practical reasons for thinking that he would not lend his name to an effort to defraud Workcover. I am satisfied that he believes, from his observations, that Mr Platen is disabled.
- In September of 2005 Dr Flanagan had diagnosed the plaintiff as suffering a major depressive illness and a chronic pain syndrome.[6] In April 2006 he thought that he had a “severe Somatoform Disorder”.[7] I understand that diagnosis to mean that the patient converts psychological stress into physical symptoms, the symptoms not necessarily having any, or any adequate, physical basis.[8]
- Despite the DVD recording of the visit to the speedway on 4 March 2006, on which Mr O'Sullivan placed considerable reliance, I am satisfied that Dr Flanagan’s diagnosis of a significant psychiatric problem was accurate. The explanation for the apparent discrepancy between the presentation on the DVD on 4 March (where Mr Platen appears to be enjoying a night out at the speedway in Rockhampton) and Dr Flanagan’s recording of Mr Platen’s view of it two weeks later (“He was forcing himself to go places he had gone to the speedway with someone but didn’t enjoy being in company, as he had nothing to talk about”[9]) lies, I think, in Mr Platen’s method of dealing with the problems that he was having. As Dr Flanagan observed on the occasion of his admission – and he has seen Mr Platen over 30 times – Mr Platen’s air was usually “factuous (sic – Dr Flanagan suggested “fatuous” was intended) and facetious”.[10] On that occasion, as I have mentioned, Dr Flanagan recorded that Mr Platen quickly became tearful. My conclusion is that Mr Platen tended to put on a good front to his friends and acquaintances compared to how he was truly feeling and coping.
Conclusion
- The picture that I have is that Mr Platen initially received a significant blow to his neck which resulted in soft tissue damage. That was sufficient to put him off his demanding scaffolding work. Subsequently he developed a significant psychiatric illness that caused him substantial impairment by August 2006. There has never been any alternative cause, other than the subject accident, suggested for any psychiatric condition. The aetiology of the condition is obscure - his personality, his reaction to physical disability with perhaps a perception of pessimism at recovering function, his perception of abandonment by his employer that Dr Flanagan speaks of in his earlier reports, all may have played some part. Gradually the psychiatric condition has overwhelmed any physical injury.
- As the years have gone by Mr Platen has recovered to some degree. That view was confirmed by Mr Gould. In my view Dr Flanagan had it right in April 2006 that with time and the cessation of his involvement in compensation issues Mr Platen would recover.[11] In reliance on the activities displayed on the DVD’s and Mr Gould’s evidence I am satisfied that he is in the course of that recovery but that it is not complete. The difficulty is in assessing how well the recovery has progressed to this point.
- Mr Platen has muddied the waters considerably with his attempt to hide his involvement with his friend’s business. My assessment is that he probably thought that that involvement would reflect badly on his damages claim and he determined to conceal those activities. In my opinion Mr Platen is not fraudulent in his claim. His concern was that he would not be believed in what he perceives to be a genuine claim. Hence he determined to be less than candid in his evidence. Because of his sense of genuine grievance I cannot accept that he has the capacity to assess and report accurately on his own disability. Mr Gould can only assist to a limited extent on this as he sees the plaintiff only occasionally and, in the end, only the plaintiff knows what he is reasonably capable of.
- The DVD’s suggest a reasonable level of activity at least by December 2007. Surveillance on 5 December 2007 shows the Mr Platen arriving at Custom Trailers at about 7:00 am and leaving at 5:20 pm. When the plaintiff arrives home, he works on a vehicle at the front of his residence until some time after 7:00 pm. His evidence suggests that he has abilities in the mechanical area. He is able to replace an alternator and brake cables. He is able to tune speedway cars. I have previously mentioned the activities that are observed in the yard at Mr Gould’s shed.
- I appreciate that there is a considerable gulf between carrying out such activities on a commercial basis and doing so sporadically but the plaintiff bears the onus of showing the extent of any impairment to his earning capacity and the extent of any consequent loss. Whilst the evidential burden can shift to the defendant of demonstrating alternative employment opportunities, the plaintiff must first establish the inability to obtain employment: Bugge v REB Engineering Pty Ltd [1999] 2 Qd R 227. Here the plaintiff has not sought work. His lack of candour means that I cannot rely on his reporting of his limitations.
- I am content to accept Mr Gould’s opinion that from his observations Mr Platen is presently not fit to return to the work of a scaffolder. Mr Gould is experienced in these matters and I accept he spoke honestly and accurately. Such work involves heavy physical labour, considerable dexterity, the capacity to concentrate, and an ability to work at heights.
- The DVD material indicates that Mr Platen’s capacities were such that by December 2007 he had the capacity for gainful full time employment. This leaves a reasonable time for recovery from the condition that caused his admission in August 2006. It is necessary to allow some time for the searching for and gaining of employment. There is no evidence of what Mr Platen could earn exercising his driving, mechanical and other skills. I am satisfied that he was then capable of lighter forms of labouring.
- I am satisfied that initially the plaintiff had a significantly painful neck injury with the consequences he has described. I am satisfied that he found that condition disabling and distressing. He eventually developed a significant psychiatric illness with great disruption to his well-being. A reasonably significant award of damages is called for, albeit in my view Mr Platen is now in the process of recovering and that it is likely he will recover completely in the not too distant future.
- Doing the best I can on inadequate materials[12] I assess that Mr Platen had recovered about 50% of his function by December 2007 which capacity he should have been able to utilise commercially soon after. There has probably been a process of gradual recovery since then to about 75% recovery. I accept Dr Flanagan’s early views that in time the plaintiff will recover from his psychiatric condition and recover full function. The cessation of this litigation will remove a significant hurdle to that process. I will allow a further 12 months for that process.
Summary
- In summary I assess the damages as follows:
Pain Suffering and loss of amenities of life | $35,000.00 |
Interest[13] | $2,652.00 |
Past economic Loss[14] | $246,515.00 |
Interest on Past Economic Loss[15] | $30,495.79 |
Past loss of Superannuation Benefits[16] | $22,186.00 |
Future Economic Loss[17] | $20,400.00 |
Future Loss of Superannuation benefits | $1,836.00 |
Future Treatment Costs[18] | $500.00 |
Fox v Wood | $30,080.00 |
Special damages[19] | $7,225.12 |
Special Damages (paid by Workcover) | $20,544.74 |
Interest on special damages[20] | $1,247.00 |
Total Damages | $418,681.65 |
Less Workcover Refund | $130,224.34 |
Net Damages | $288,457.31 |
Orders
- There will be judgment for the plaintiff in the sum of $288,457.31
- I will hear from counsel as to costs.
Footnotes
[1] Exhibit 1
[2] Exhibit 24
[3] See Exhibit 33 at pp 3-4 of report 25/5/06
[4] Exhibit 12 at p 9
[5] See Exhibit 10
[6] Exhibit 9
[7] Exhibit 33 at p 9 of report of 3/4/06
[8] Dr Ohlrich offered this definition: “this is defined as a pre occupation with pain in the absence of physical findings that adequately account for the pain and its intensity as well as the presence of psychological factors that are adjudged to have a major role in the pain (AMA5 p 602)” – Ex 22 at p 7
[9] Exhibit 33 at p 7
[10] Exhibit 10. See also the general practitioner Dr Nicolai’s observations of superficial cheerfulness.
[11] Exhibit 33 at p 3 of the report 25/5/06
[12] Mr Crow has referred me to Assessment of Damages for Personal Injury and Death (4th edn ) Luntz at paragraph 1.9.6
[13] On $30,000 at 2% x 4.42 yrs
[14] Assume loss until 1/1/08 at 100% of $1380 (average from Ex 2) = $1,380 x 148 wks; thereafter until 31/12/08 at 50% of an average of $1,400 per week net (adopting Costigan from Ex 2) = $700 x 52 wks; thereafter to judgment 25% of an average of $ 1,600 per week net (again adopting Costigan for the period to 10/06/08 in Ex 2) = $400 x 31 wks. Less actual earnings of $6,525.00. These are all estimates of course with a spurious air of precision.
[15] $246,515 less pensions received of $108,525 ($79,599 + $28,926) = $137,990 at 5% for 4.42 years
[16] At 9% for both past and future assessments
[17] $400 x 51 (5% discount tables for 1 year)
[18] A global sum reflecting modest needs for 1 year
[19] Exhibit 1 at p 9
[20] $5,642.72 (See Ex 1 at p 9 - Total less Medicare Refund) x 5% x 4.42 yrs