Schonell v Laspina, Trabucco & Co Pty Ltd
[2013] QSC 90
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- Schonell v Laspina, Trabucco & Co Pty Ltd[2013] QSC 90
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Schonell v Laspina, Trabucco & Co Pty Ltd[2013] QSC 90
Schonell v Laspina, Trabucco & Co Pty Ltd[2013] QSC 90
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | No 195 of 2012 |
Trial Division | |
PROCEEDING: | Trial |
ORIGINATING COURT: | |
DELIVERED ON: | 11 April 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26, 28, 29, 30 November 2012, 3, 4, 5 December 2012 |
JUDGE: | Martin J |
ORDER: | The claim is dismissed |
CATCHWORDS: | TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – IN GENERAL – where the plaintiff was an employee of the defendant – where the plaintiff stepped from a platform onto a ladder – where the ladder seemed to give way when the plaintiff put his weight onto it – where the ladder had been checked by a fellow employee of the defendant and by the plaintiff – where the ladder did have a defective brace – whether the defendant’s negligence caused or contributed to the plaintiff’s injuries DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where the plaintiff suffers from Complex Regional Pain Syndrome Type 1 – where some medical evidence suggests that pain and symptoms have been exaggerated by the plaintiff – whether the plaintiff has satisfied the burden upon him Workers’ Compensation and Rehabilitation Act (Qld) 2003, ss 273, 274, 279 and s 284 Lusk v Sapwell [2012] 1 Qd R 507, cited Vairy v Wyong Shire Council (2005) 223 CLR 422, applied |
COUNSEL: | M E Eliadis for the plaintiff W D P Campbell for the defendant |
SOLICITORS: | Shine Lawyers for the plaintiff Bruce Thomas Lawyers for the defendant |
[1] On 20 June 2008 the plaintiff was employed by the defendant as a block layer at a construction site for the Barracks development at Petrie Terrace. The defendant was engaged in performing building work at that site. At about 11am on that day the plaintiff had finished laying blocks and stepped off the platform he was using onto a ladder. He said that when he placed his weight on a rung of the ladder it gave way and, in attempting to return to the platform, he damaged his left knee. No one else witnessed this.
[2] The plaintiff claims that he has suffered injuries to his left knee and, among other things, that as a consequence of that injury he suffers from Complex Regional Pain Syndrome Type 1 (“CRPS”).
[3] The plaintiff’s pleaded case asserted that there were many breaches of duty by the defendant, but the only points which were argued were: that the ladder had a defective brace (or “bracket hinge”), that there should have been regular inspections of the ladder, that Mr Duvalois failed to properly inspect the ladder, and that if the tipping of the ladder to its side was a cause of the accident then a conventional ladder should have been used.
[4] In Vairy v Wyong Shire Council[1] Hayne J encapsulated the principles to be applied in a case of this nature in the following way:
“[124] Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff's injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be "nothing".
[125] There are fundamental reasons why the inquiry cannot be confined to where the accident happened or how it happened. Chief among them is the prospective nature of the inquiry to be made about response to a foreseeable risk.
Look forward or look back?
[126] When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.
[127] There may be more than one place where this risk of injury may come to pass. Because the inquiry is prospective there is no basis for assuming in such a case that the only risk to be considered is the risk that an injury will occur at one of the several, perhaps many, places where it could occur. Romeo was just such a case and so is this. In both cases there were many places to which the public had access and of which the Commission (in Romeo) and the Council (in this case) had the care, control and management. In Romeo, there were many places where a person could fall off a cliff; here, there were many places where a person could dive into water that was too shallow. Because the inquiry is prospective, all these possibilities must be considered. And it is only by looking forward from a time before the accident that due weight can be given to what Mason J referred to in Shirt as “consideration of the magnitude of the risk and the degree of the probability of its occurrence”. It is only by looking forward that due account can be taken of “the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”.
[128] If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken. And this would be so no matter how diffuse the risk was – diffuse in the sense that its occurrence was improbable or, as in Romeo, diffuse in the sense that the place or places where it may come to pass could not be confined within reasonable bounds.” (references omitted) (emphasis added)
The brace
[5] On the day of the incident the plaintiff was required to lay blocks above a cabinet on the third floor of the redevelopment of the old police barracks on Petrie Terrace in Brisbane. There was at an earlier time an issue about the particular floor on which this work was being performed, but that disappeared as did a number of other matters advanced in the pleadings and elsewhere by the defendant.
[6] A scaffold had been erected for the use of the plaintiff by Gary Duvalois. Mr Duvalois was a labourer employed by the defendant to erect scaffolds, and to supply block layers with blocks and mortar.
[7] The scaffold consisted of two A-frame trestles and four aluminium planks. A ladder was placed next to the scaffold to provide access to the platform created by the planks. The plaintiff said that the planks were four metres long. This is of some importance because the extent to which the planks would flex was an issue. I prefer the evidence of Mr Duvalois on this point. It was his job to create the scaffold and his evidence was convincing when he spoke of his reasons for saying that the planks were three metres long. He made it clear that if the planks had been four metres long, then he would have used three trestles rather than two. I find that the planks used were three metres long and there was an overhang at each end beyond the trestle of about 100 millimetres. The planks formed a work surface about 900 millimetres wide by 2.8 metres long.
[8] After Mr Duvalois put the scaffold together he made a visual inspection of the ladder and satisfied himself that the bracket hinge between the two uprights was locked and unbroken. He said that he pushed the hinge down so that it would “click” into place. In cross-examination he was referred to a statement that he had provided to an interviewer from WorkCover. In that statement he said:
“I remember that when I returned some minutes later the ladder did not look much chop as the little angle bracket was broken but when I set it up initially the bracket was not broken. … I remember that when I set it up I made sure the bracket hinge between the two uprights was locked and unbroken.” (emphasis added)
[9] He then said:
“Well, obviously when you set up those ladders --- ? - - Yeah. When you ---
The two stiles are together, are they not? - - Yes.
You open up the ladders with your arms, presumably? - - Yes. Yep.
And you push down the --- ? - - Yes.
The things to click them into place; is that correct? - - Yes.
Okay? - - So you automatically know if there is something wrong with it because you have to actually enable it to be right.
Yes. And had that part of the bracket been broken at that time you would have seen it? - - It would have flexed.”
[10] Before ascending the ladder the plaintiff tested it for stability. He did this by giving it “a shake to make sure it was secure”. He also performed a cursory examination to make sure that “it had the two braces and there was no rubbish on the steps that could trip [him] up.” There was no evidence of anything untoward occurring when the plaintiff used the ladder to get onto the platform in order to lay the blocks.
[11] In summary, then, both the person who put the ladder up and the person who had to climb it checked it before use. There was no evidence that there was anything which would have suggested that the ladder was likely to break or collapse.
[12] The plaintiff called Dr David Jenkins, an engineer with substantial experience in mechanical testing, analysis and troubleshooting. He dealt with a number of matters in his report (Ex 35). With respect to what might have been done by the defendant he said:
“From the point of view of possible preventive action which could have been taken, the fact that Mr Duvalois states that when he set up the ladder he “made sure the bracket hinge between the two uprights was locked and unbroken” is significant. It is difficult to envisage a more practically useful means of identifying failure or incipient failures than a visual inspection immediately before the equipment is placed into service, including a check that the link (“bracket hinge”) was locked in place.” (emphasis added)
[13] Dr Jenkins then went on in his report to consider other means of testing for faults – these were generally of considerable cost and would not have been practicable – and observed:
“Regular, careful, pre-use visual inspections are a reasonable, practical and effective means of detecting dangerous damage or structural failures in portable industrial ladders.”
[14] The ladder did have a defective brace – there was satisfactory evidence that immediately after the incident the brace was seen to have been broken – but the “practically useful means” of checking undertaken by the defendant did not disclose that to the defendant.
[15] There was no evidence of any regular inspections by the defendant of this equipment but, importantly for this case, there was the evidence (which I accept) of inspection before use on this occasion. The absence of regular inspections means nothing if an inspection immediately before an incident discloses nothing untoward.
[16] It was submitted for the plaintiff that Mr Duvalois failed to properly inspect the ladder. This is a submission which cannot be accepted in circumstances where:
(a) Mr Duvalois was called for the plaintiff,
(b) No attempt was made to lead evidence of inadequacy of inspection by him,
(c) When he was asked in chief about his statement to WorkCover he confirmed that it was true, and
(d) In that statement he says “I made sure the bracket hinge between the two uprights was locked and unbroken”.
[17] The submission that a conventional ladder should have been used was not established by the plaintiff. There was nothing to suggest that the use of this particular type of ladder was dangerous. Indeed, it was accepted by all witnesses that it was a common means of gaining access to a platform in these circumstances.
[18] The question which has to be answered is: what would the reasonable person have done to avoid what is now known to have occurred? It was not established that the use of this type of ladder was inappropriate. To guard against the possibility of a failure in some part of the ladder the action of a reasonable person would have been to inspect the ladder at a time close to its proposed use – “the practically useful means”. This was done. The fact that there was a failure does not, by itself, establish negligence.
The descent from the platform
[19] The plaintiff’s account of how he descended from the platform is as follows. After finishing the job he was doing he moved across the platform towards the ladder and stood on the plank closest to the ladder with both feet. He then put both of his hands on the top of the ladder to steady himself and placed his right foot onto the rung of the ladder that was directly below the platform. It was about 200 millimetres below the level of the platform. When he did this, his left foot remained on the plank closest to the ladder. As he transferred his weight onto his right foot, the ladder suddenly “shunted” (that was the term used by the plaintiff), by which he meant that the rung on which he was standing dropped suddenly in height. The plaintiff believed that the ladder was falling and swivelled his weight back onto his left leg. As he did this his left foot became caught on the edge of the adjacent plank and as he returned to the platform his left leg was bent with his weight bearing on the back of his heel. He felt, and heard, a tearing in his left knee like a thick piece of plastic being torn.
[20] The defendant submits that the plaintiff should not be accepted when he says that his left foot became caught against the second plank on the trestle platform and that caused him to suffer injury. It was argued that this version of events was a reconstruction by the plaintiff of what occurred and was inconsistent with the accounts he had given at earlier times of the accident. The defendant, in effect, contended that the version put forward in the plaintiff’s pleading and at trial was designed so as to allow him to argue that the defendant had been negligent in not providing a plank clamp. It is the plaintiff’s case that, had a plank clamp been applied, there would not have been a difference in height between the outer plank and the plank next to it, that is, the plank against which the plaintiff says his left foot became caught.
[21] In the ordinary course of litigation, an accusation of recent invention (which is plainly raised in this case) would be met by a signed statement by the person accused of the invention which would demonstrate the consistency of the person’s account. That cannot occur in this case because of the method used by the plaintiff’s instructing solicitors to take instructions.
[22] In order to understand the procedures undertaken by the plaintiff’s solicitors, I need to refer to s 279 of the Workers’ Compensation and Rehabilitation Act (Qld) 2003 (“WCR Act”). Section 279 appears in chapter 5, part 5 of the Act. The object of part 5 is contained in s 273 and it is “to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense”. Section 274(1) provides that, in accordance with the object of part 5, part 5 is to be applied by the parties to avoid undue delay, expense and technicality and to facilitate the object.
[23] Section 279, provides, so far as is relevant, the following:
“(1) The parties must cooperate in relation to a claim, in
particular by—
(a) giving each other copies of relevant documents about—
(i) the circumstances of the event resulting in the injury; and
…
(5)This section is subject to section 284.
(6) In this section—
relevant documents means reports and other documentary material, including written statements made by the claimant, the worker’s employer, a contributor, or by witnesses.”
[24] Section 284 provides:
“(1) A party is not obliged to disclose information or a document if the information or document is protected by legal professional privilege.
(2) However, the following must be disclosed even though otherwise protected by legal professional privilege—
(a) investigative reports;
(b) medical reports;
(c) reports relevant to the worker’s rehabilitation;
(d) relevant documents mentioned in section 279, other than correspondence between a party and the party’s lawyer.
…”
[25] During the cross-examination of the plaintiff, Mr Campbell called for the statements given by the plaintiff to his instructing solicitors. He relied on s 279 of the WCR Act. From the argument which then ensued it appears that the plaintiff’s solicitors deliberately did not obtain a signed statement from the plaintiff in order that there would not be a document which fell within s 279. They instead took his instructions, reduced them to writing and asked him for his comments. The plaintiff then revised the document and returned it to his solicitors. The production of this document was resisted at trial but, after some negotiation, a redacted version was provided. Because the documents were provided I do not need to decide whether the actions of the solicitors – remarkable not least for commencing an action seeking damages of $2,000,000 without a signed statement – would have protected the documents from disclosure. It would, at the very least, seem that the solicitors acted in a way which was contrary to the objects of the WCR Act.
[26] The document which was produced became Exhibit 23. It had been amended by the plaintiff in a number of respects in response to a request from his solicitors. In “Revision 2A2” the plaintiff said:
“As Tim stepped onto the ladder to dismount the scaffold with his right leg the ladder’s outside legs slipped out slightly which lead Tim to believe he was going to fall so he braced his left leg on the aluminium plank which caused all his body weight to be placed on his left leg and further pressure put on the knee because his body weight went backwards slightly. Tim felt a plastic ripping sensation in his knee.”
[27] He was cross-examined on this and said:
“You didn’t say anything there about your left foot becoming caught in any way? – It wasn’t written there and I wasn’t sure on the full description of what was going on, so what was written there, I just – I made changes in that paragraph and some of the things remained the same.”
[28] On another occasion in cross-examination he said that the solicitor:
“…had a ‘little difficulty understanding some of the terminologies I was using as well. It was foreign to him what I was talking about.
What, that your left foot got caught on the plank? – well, some of the things I was talking about, some of the ways of the scaffold so I don’t know whether he missed it then.’”
[29] The changes made by the plaintiff were mostly concerned with the various heights of objects, including the ladder, and the fact that the planks were aluminium, not wood. It did not involve the mechanics of the positioning of his left foot or whether it became trapped.
[30] In the instructions given by the plaintiff’s solicitors to some of the experts retained on his behalf the incident was described in this way:
“As our client stepped on to the ladder to dismount the scaffold with his right leg, the ladder's outside legs slipped out slightly which led our client to believe that he was going to fall, so he braced his left leg on the aluminium plank which caused all of his body weight to be placed onto his left leg and further pressure put on the knee because his body weight went backwards slightly. Our client felt a plastic ripping sensation in his knee.” (Instructions to Dr Todman, Ex 5)
[31] A similar description of the circumstances of the injury was given to Dr Walden (Ex 6), Dr Lotz (Ex 7), and Dr Gillett (Ex 19).
[32] The first document which records the details of the incident consistently with the way the plaintiff gave evidence in this trial is the second notice of claim of 21 July 2011. The first time that the plaintiff gave this “detailed” description of the incident came following a meeting with a physiotherapist and ergonomist.
[33] It must also be recorded that in the instructions given to his solicitors, which he later amended, there are other details, in particular concerning the plaintiff going to the first aid office, discussions had with Mr Polistena concerning the incident, and when the plaintiff first noticed the crack in the brace, which have been established on the evidence.
[34] When the plaintiff first saw Dr McMeniman, the plaintiff’s version of events was summarised by Dr McMeniman as being to the effect that “he was getting off some scaffolding when he slipped and twisted his left knee …”. Clearly, the twisting could have occurred in a number of ways including the manner now relied upon by the plaintiff. For reasons which I will deal with later, I find the plaintiff to be a person given to exaggeration and to claiming greater pain and injury than he actually suffers. The mechanism by which he says his left foot was caught is something which is of considerable importance for his case. He is an intelligent man who, had his foot been so caught, would have realised the significance of that fact. It is something which he would have been able to describe in simple terms. In all the circumstances, I have come to the conclusion that, while I accept that his left knee was twisted as he attempted to return to the platform, his foot was not caught against the edge of the plank next to the plank closest to the ladder.
Plank clamps
[35] Given my finding about the mechanics of the accident and the positioning of the plaintiff’s left foot, it is unnecessary to deal in detail with the argument concerning the possible use of plank clamps. Plank clamps are devices used to secure planks adjacent to each other in order to reduce the degree of flexing and to achieve a relatively flat surface.
[36] Had I found that Mr Schonell’s foot had been caught against one of the planks I would not have held that the absence of plank clamps was demonstrative of negligence. The argument for the plaintiff on this point is based upon “an inappropriate and impermissible use of the benefit of hindsight”[2].
[37] Using that approach one would ask what a reasonable employer would have done in these circumstances. In answering that it would be appropriate to take into account the evidence:
(a) that there was no requirement in any Australian Standard or relevant legislation for the use of clamps, and
(b) that it was not the practice for clamps to be affixed on scaffolds to be used by block layers in, at least, Brisbane if not over a larger area.
[38] Mr Christopher Tucker, of Tommy Tucker Trestles (the main manufacturer of plank clamps), gave evidence that most clamps are sold to hire companies, painters and builders. He said that his company did not “cater a lot for block workers and brick layers”. This was consistent with the other evidence that such clamps are not in general use for block layers.
[39] The plaintiff has not established that the omission to provide or require the use of plank clamps was negligent.
Conclusion on Liability
[40] The plaintiff has not demonstrated that any action or lack of action by the defendant either caused or contributed to his injury or that the defendant was otherwise negligent. The claim must be dismissed.
Quantum
[41] I formed a firm view while watching and listening to the plaintiff, and in the light of some of the medical reports, that he was exaggerating his condition and was consciously presenting himself in a way designed to elicit sympathy and to support his claim. He did suffer a painful injury. He continues to suffer from the effects of the injury but I do not accept he is injured to the extent that he claims. I have come to the conclusion that, while the plaintiff does suffer from Complex Regional Pain Syndrome Type 1 (“CRPS”), he has overstated both the symptoms and effects.
[42] The chief indicator of CRPS is continuing pain that is disproportionate to any inciting event. The pain is associated with the reporting of, and display of, sensory, vasomotor, sudomotor/oedema, and motor/trophic symptoms and signs. If the relevant symptoms are present, then, CRPS will be the diagnosis unless there is no other diagnosis that better explains the symptoms and signs.
[43] Much of the debate among the various expert witnesses was concerned with the appropriate criteria to be applied for the purposes of diagnosis. Specialists who gave evidence referred, at various stages, to the diagnostic criteria which appear in the American Medical Association Guide to the Evaluation of Permanent Impairment, Fifth Edition, (“AMA5”) and the Sixth Edition (“AMA6”) and the International Association for the Study of Pain Consensus Diagnostic Criteria for CRPS Type 1 2002 (“IASP Criteria”).
[44] The plaintiff called a number of very experienced medical practitioners. Each of them had a high degree of expertise in a particular area and each of them justified the findings that they had made. Dr Todman (neurologist) agreed with an earlier diagnosis of CRPS and stated that the plaintiff “represents a florid example of this condition”. In his opinion, the plaintiff had a 30 per cent whole person impairment based on AMA5, with his sexual impairment being a 9 per cent whole person impairment.
[45] Dr Walden (anaesthetist and pain medicine physician) opined that the plaintiff had developed signs that are consistent with CRPS and that, notwithstanding the treatment he had received, very little progress had been made and that his condition had continued to deteriorate. His opinion was that the plaintiff was suffering from CRPS, principally affecting his left lower limb but beginning to affect his right lower limb (and possibly) his upper limbs. He was of the view that the plaintiff met the IASP Criteria and the AMA6 criteria. He said that the CRPS in the plaintiff’s left and lower right limbs had caused a 36 per cent whole person impairment and that his neurogenic sexual dysfunction had caused an 11 per cent whole person impairment, that the dysaesthesia, which had been caused by his spinal cord injury, resulted in a 5 per cent whole person impairment which resulted in a combined whole person impairment of 43 per cent.
[46] Dr Lotz (psychiatrist) examined Mr Schonell to determine whether he was suffering from a psychiatric disorder of any sort, a factitious disorder or was malingering. He was of the view that the plaintiff was not malingering in the sense that he did not appear to be acting for the purposes of any secondary gain.
[47] Dr Tadros (consultant in pain medicine) has treated the plaintiff since April 2010. He also diagnosed the plaintiff with CRPS.
[48] Dr Ray (anaesthetist and pain medicine specialist) first examined the plaintiff from a clinical perspective on 19 June 2009. His diagnosis of CRPS did not change.
[49] Dr McMeniman (orthopaedic surgeon) examined the plaintiff in September 2008. He diagnosed the plaintiff as having sustained a tear of the posterior horn of his left medial meniscus. He repaired the tear to the meniscus by surgery and the plaintiff underwent a rehabilitation program. Upon reviewing the plaintiff he formed the opinion that Mr Schonell suffered from a pain syndrome and he was very firm in his view: “What this guy has is a well-recognised, well-documented condition called chronic regional pain syndrome. There is nothing else to my knowledge that looks like it and he’s got it.”
[50] The physical symptoms and other criteria referred to in the various sets of diagnostic criteria were observed in varying degrees and at different times by the doctors referred to above. Sometimes the plaintiff exhibited one or more of the symptoms and not at others. Not surprisingly, the plaintiff has become knowledgeable about his condition and clearly had made efforts to understand and to identify the various symptoms described in the criteria.
[51] The defendant called three doctors to deal with this issue.
[52] Dr Gillett (orthopaedic surgeon) concluded that the plaintiff did not satisfy the criteria under AMA5. He was of the view, though, that the plaintiff had suffered from CRPS in the past. And while he was satisfied that the plaintiff did display sufficient criteria for a diagnosis under AMA6 and IASP, he was of the general view that the plaintiff’s condition could be better explained by the alternative diagnosis of disuse atrophy arising out of the orthopaedic condition itself.
[53] This view was shared by Dr Goode (occupational physician) although he did acknowledge that there was a possibility that the plaintiff may have been proceeding through a resolving CRPS condition.
[54] Dr Atkinson (neurosurgeon and pain medicine specialist) was also of the view that the plaintiff suffered from disuse atrophy. Of particular importance was the difference in appearance of the plaintiff between the time when he was seen by Dr Atkinson and immediately after that when he was captured on film leaving the hospital. When he was examined by Dr Atkinson, he appeared to be very disabled and exhibited a number of symptoms. But he appeared to Dr Atkinson to be a “different person” on the film. It is of importance, I think, that this film which shows the plaintiff proceeding in his wheelchair to his car demonstrates that he is burdened with a serious condition but, on Dr Atkinson’s evidence, he had exaggerated significantly his condition when he was being examined. It is also important to note that this film was made available to the plaintiff and his specialists and that none of them was examined upon it.
[55] As I have said above, much of the time of the experts was taken up with consideration of the various different criteria for diagnosis in AMA5, AMA6 and IASP. The most recent set of criteria advanced as being able to be used for the diagnosis of CRPS is contained in AMA6. The discussion of the syndrome contains the following:
“Because accurate diagnosis of CRPS is difficult, the diagnostic approach should be conservative, and supported by objective findings. The diagnosis of CRPS has not been scientifically validated as representing a specific and discrete health condition. The diagnostic process is itself unreliable, as competing diagnostic protocols and definitions are continuously being introduced and utilised. There is no gold standard diagnostic feature which reliably distinguishes the diagnosis of CRPS from presentations which clearly are not CRPS. Scientific findings have actually indicated that whenever this diagnosis is made, it is probably incorrect. A diagnosis of CRPS may create a dilemma for the evaluator with regard to a specific injury. Specifically, a lack of proportionality between a clinical presentation and any suspected inciting event is inherent to the concept of CRPS. Therefore an evaluator must determine if there is relationship between CRPS and the injury in question.
…
The taxonomy and criteria, which were adopted by the Committee for Classification of Chronic Pain of the International Association for the Study of Pain (IASP), have contributed to progress in understanding the syndrome; these substantial efforts finally provided standardised diagnostic criteria, improved clinical communication and homogeneity of research, and provided the promise of results that could be compared across studies. These criteria have been examined, both in terms of external and internal validation. The IASP criteria, while sensitive, lacks specificity, and thus would identify patients as having CRPS when they do not.” (emphasis added)
[56] It is not, then, a case which is capable of being viewed as clear cut. However, the weight of opinion in this case, both from the plaintiff’s treating physicians and consulting physicians, is that he suffers from CRPS. In that sense, the plaintiff has satisfied the burden upon him. But I do not accept that he is suffering to the extent which he sought to demonstrate both before some of the doctors and in court. It is, I think, of particular importance that no evidence was called from two women who had each been his partner at different times. The first had separated from him prior to the accident and the second had been his partner and carer for some years from soon after his injury. Likewise, his sister, with whom he initially lived for a month while he was recovering and before he found his own accommodation, was not called. Each of them would have been able, Mr Campbell submitted, to provide evidence of pre-accident condition, apparent deterioration and comparison of condition, both before and after the accident. No explanation was provided as to why none of these persons gave evidence. It is reasonable to draw the inference, then, that none of them would have been able to give evidence which assisted the plaintiff’s case.
[57] The effects upon the plaintiff of CRPS are substantial but not as substantial as he sought to make them appear, at least before me. I accept that he suffers from the following:
(a) A pain syndrome in both legs – constant aching pains with sensations of burning and sharp jabs;
(b) Oedema in both legs, worse on the left;
(c) Pins and needles and sharp pains in both feet – due to the swelling he is unable to wear closed shoes;
(d) His legs experience changes in skin colour and temperature and there are associated changes to his toenails and some loss of hair on his feet;
(e) Restrictions in mobility – he uses crutches in his residence and a wheelchair when out of his house;
(f) Some pain and symptoms in the arms;
(g) Impaired sexual function;
(h) The pain and cramping he experiences leads to disruptions to sleep.
[58] The matters referred to above mean that he has a limited capacity to perform domestic tasks in and around the home and his ability to drive is limited, on occasion, by pain.
[59] The assessments of whole person impairment range from 30 to 36 per cent so far as impairment of station, gait and chronic pain is concerned; from 9 to 11 per cent so far as sexual impairment and neurogenic sexual dysfunction is concerned and 5 per cent whole impairment caused by dysphasia due to spinal cord injury.
[60] It is submitted for the plaintiff that his situation is not completely dissimilar from that of a person with paraplegia or incomplete paraplegia. I do not accept that his condition is as bad as a paraplegic, but his pain is substantial. In the circumstances of this plaintiff an award of $125,000 for general damages is appropriate.
[61] Approximately 4.75 years has elapsed since the injury. I will allow interest on past general damages at the rate of 2 per cent for 4.75 years on one-third of the general damages award, that is, $3,957.
[62] In the financial year preceding his injury he earned income at the net weekly rate of approximately $950. It was submitted that that amount should be increased by the CPI increases for the City of Brisbane in the years following the accident. There is no evidence to support that. No evidence was called as to the wage rates which were being paid or the amounts which were being received by employees in comparable situations.
[63] I accept that the plaintiff was unable to work from July 2008. Ms Hague gave a detailed analysis of his occupational restrictions and residual employability. She was effectively unchallenged on any of that evidence. I accept that the plaintiff has not been capable of exercising any capacity to earn income since the date of his injury.
[64] I will allow, for past economic loss, the sum of $235,600 being 248 weeks at $950 a week. I have not discounted that sum. It is a relatively short period of time and there is no evidence which would suggest that the plaintiff would have been unemployed or would be likely to have been unemployed in that period.
[65] I accept that the plaintiff has received $147,264 net in workers’ compensation payments (that included a lump sum of $80,551). He ceased to receive payments on 20 July 2011. I will allow 5 per cent per annum for 248 weeks on the difference of $88,336 for 4.75 years, namely $20,980.
[66] The amount of past loss for superannuation entitlements and interest is 9 per cent of $235,600 ($21,204 plus interest at 5 per cent for 4.75 years) – $5,035.
[67] As for future economic loss, it is appropriate to work on the basis of $950 net per week. The pensionable age for the plaintiff is 67 years old, that is, on 15 February 2033. Adopting 20 years as the basis for calculation and using an interest rate of 5 per cent, the sum is $633,080.
[68] The plaintiff submitted that there should be a discount of only 10 per cent for contingencies, while the defendant submitted for 50 per cent to take into account prospects of recovery, amongst other things. There was evidence that the condition of CRPS can abate or improve with treatment and that does need to be taken into account. It is, in that respect, unlike the circumstances suffered by paraplegics. I will apply a 20 per cent discount. That equates to a sum of $506,464.
[69] Future loss of superannuation entitlements amounts to 12 per cent of $506,464, namely, $60,775.
[70] Past paid services are agreed in the sum of $3,480 and I will allow interest on that sum at $480.00.
[71] With respect to future paid services, I accept that these are matters which he will need to have other persons perform for him and they include general property maintenance, cleaning, laundry, and outdoor tasks. On the basis of Ms Hague’s report, I think an allowance of 7 hours per week at $30 per hour is appropriate. Based upon his life expectancy, the calculation is $210 a week for 35 years, which amounts, to (using an interest rate of 5 per cent) $183,876. The same discount (20%) should be applied to arrive at $147,100.
[72] A claim for modification of a residence was made. Evidence was called by the plaintiff from Mr Lok who was a builder specialising in this work and, for the defendant, from Mr Leck, a quantity surveyor. The plaintiff submits that I should not pay heed to the evidence of Mr Leck as he had relied solely on certain Australian standards and other publications, whereas Mr Lok was able to provide detailed evidence of his own experience in this field.
[73] It was also submitted on behalf of the defendant that it would be unlikely that any of this type of modification would occur. The plaintiff submits that a sum of $95,714 should be allowed, but that should be discounted to allow for the prospect that the sum may only be necessary for part of a residence or may not be used as it is unlikely that any rental property will be the subject of such modification. I will allow $60,000.
[74] For Fox v Wood damages the agreed sum is $32,020.
[75] I accept that out-of-pocket expenses and other associated matters in the sum of $16,000 should be allowed. To that should be added interest in the sum of $3,000.
[76] A substantial claim for future medical care is made by the plaintiff. In particular, the costs of inserting and replacing a neuro-stimulator and electrode are claimed. The treatment of this type was supported by Dr Tadjos, Dr Walden, and Dr Todman. I preferred the evidence of Dr Atkinson, whose expertise in this area is considerable. He satisfied me that it would be unlikely to have any significant effect in alleviating the symptoms of the plaintiff, particularly since the plaintiff has been in pain for such a long period of time. I will not allow any sum for this claim, nor, on the same basis as the evidence given by Dr Atkinson, for the insertion of an intrathecal catheter and infusion device.
[77] I will allow the claim for future hydrotherapy as it was agreed by most that this was a useful and sensible form of treatment for the plaintiff. The evidence on this point was not particularly specific but the sum sought by the plaintiff appears to coincide with the evidence which was given and I will allow $20,000 under this head.
[78] For future medical expenses, the amount is not in dispute to any serious extent. I will allow $42,500.
[79] So far as the requirement for certain aids, equipment and motor vehicle requirements are concerned, these were not challenged and an allowance of $33,000 is appropriate.
[80] The plaintiff also seeks an amount for future travel for the purposes of attending medical practitioners, allied health carers and to obtain other treatments. This is a global claim and the plaintiff seeks $49,000. That amount should be discounted by 20 per cent, and I will allow $39,200 under this heading.
General Damages | 125,000.00 |
Interest on past general damages 2% x 4.75 years x one-third of $125,000 | 3,957.00 |
Past economic loss | 235,600.00 |
Interest on past economic loss : 5% x $88,336 x 4.75 years | 20,980.00 |
Past loss of superannuation entitlements | 21,204.00 |
Interest on past loss of superannuation entitlements: $21,204 x 4.75 x 5% | 5,035.00 |
Future economic loss | 506,464.00 |
Future loss of superannuation entitlements $506,160 x 12% | 60,775.00 |
Past paid services | 3,480.00 |
Interest on past paid services | 480.00 |
Future paid services: $210 per week x 35 years | 147,100.00 |
Modification of a residence | 60,000.00 |
Fox v Wood damages | 32,020.00 |
Out of pocket expenses | 16,000.00 |
Interest on out-of-pocket expenses | 3,000.00 |
Expense paid by Workcover Queensland | 50,483.55 |
Future hydrotherapy | 20,000.00 |
Future medical expenses | 42,500.00 |
Aids, equipment, motor vehicle expenses | 33,000.00 |
Future travel: medical practitioners, allied health carers | 39,200.00 |
SUB-TOTAL | $1,426,278.55 |
Less WorkCover Queensland refund | $310,319.05 |
TOTAL | $1,115,959.50 |
Order
[81] The claim is dismissed.