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[2009] NSWDC 187
District Court of NSW
2009-04-30
Mr P
Original judgment source is linked above.
HEARING DATE(S): 20, 21, 22, 23, 24, 27, 29 and 30 April 2009
CATCHWORDS: DAMAGES - motor accident causing injuries resulting in physiological impairments and a severe psychiatric condition - causation: whether plaintiff's ongoing problems were caused by the injuries or the inappropriate use of opiate analgesia - past and future medical expenses, economic loss and domestic care and assistance - other miscellaneous costs and expenses
LEGISLATION CITED: Motor Accidents Compensation Act 1999 (NSW)
3WJ Pty Ltd v Kanj [2008] NSWCA 321 CASES CITED: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Mahony v J Kruschich (Demolitions) Pty Limited [1985] HCA 37 McGroder v Maguire [2002] NSWCA 261
PARTIES: Corey Thomas Clifton (Plaintiff) Janice Dunn (Defendant)
COUNSEL: Mr H Marshall SC with Mr D J Price (Plaintiff) Mr P O'Connor (Defendant)
SOLICITORS: Oliver Campbell Lawyers (Plaintiff) Holman Webb (Defendant)
The proceedings and the issues
· The nature and extent of any physical injuries suffered from the accident. · The nature and extent of any resulting psychological condition. · The medical and other out-of-pocket expenses incurred. · The past economic loss suffered. · The extent of the diminution of his future earning capacity. · The level of past domestic assistance required. · His need for future domestic assistance. · His need for future medical treatment and pharmaceuticals. · Other compensable losses.
The accident on 20 May 2005 6. The accident on 20 May 2005 occurred when Mr Clifton was driving along a street in Cessnock and the defendant's vehicle collided with the rear of his vehicle. There was a considerable impact, the force of which may be seen from the considerable damage occasioned to the vehicle (see Exhibit A).
The pre-accident history 7. Mr Clifton was born on 9 February 1979 in the small town of Mulbring, near Cessnock in New South Wales, where he has lived all his life. He was 26 at the date of the accident and is now aged 30. He and his partner, Ms Terena Sweetman, have three young children, Corenna-Leigh (8), Caleb (7) and Colby (1), who was born after the accident. Sadly, Corenna-Leigh developed meningococcal disease at about 18 months and has eyesight and hearing problems, and learning difficulties.
Mr Clifton left school at about age 16. He wasn't particularly interested in schoolwork other than metalwork and woodwork, but he was a very accomplished cricketer and rugby league player, representing his district in both sports. He still holds a number of records relating to junior cricket, and in 1994 was invited to trial with the junior squad for the Newcastle Knights in rugby league. He didn't continue with cricket and football after he left school, but continued to keep physically fit and active by engaging in the martial arts (tai chi), mountain bike riding and motocross. As his Counsel put it, physical "prowess" continued to be an important aspect of his life.
His vocational future on leaving school lay in areas that did not include the exercise of mental acuity. He commenced TAFE courses in conjunction with apprenticeships, firstly as a boilermaker and subsequently as a bricklayer, but although he completed all the practical aspects of these courses, he did not complete the theory modules. The work he did perform was predominantly in the building industry, initially as a brickies labourer, ultimately as a bricklayer. One of his employers was Rock Solid Design and Construction, a building and construction business operated out of Mulbring by Mr Steve Phillips.
In the words of his Counsel, Mr Clifton made a big impression on Mr Phillips, who employed him on several occasions. He described Corey as a fit and energetic bricklayer, competent, versatile and reliable, a person whom he would have back tomorrow if he could:
"Q. What sort of worker was he? A. Corey was a good worker, a hard worker.
Q. What can you say about his reliability? A. Very reliable. He had integrity as well, so he was honest. Yes, sort of the reason why I sort of was taken to Corey in the first place. You could see that in him."
Mr Clifton did not, however, engage in continuous gainful employment for the period preceding his accident. Some explanation is required.
To fully understand his pre-accident work history, it is necessary to appreciate the unusual circumstances surrounding Mr Clifton's relationship with his partner, Terena. I digress for the moment to recount why it was that notwithstanding their relationship, and starting a family, they lived apart. Terena lived with the children on her parent's property at Sweetman's Creek, but Mr Clifton continued to live at home with his mother in Mulbring. The reason for this unconventional arrangement was the fact that they were cousins, and the "old ones" disapproved of their relationship. They did not live together out of deference to Ms Sweetman's grandparents. So it was that while they were waiting for the old ones to "pass on" Mr Clifton built accommodation for Terena and the children on her parent's property (see Exhibit B).
Although their relationship was conducted "surreptitiously" they in fact spent considerable time together. The following extracts from Ms Sweetman's evidence describe how it worked:
"Q. None the less you still spent time together before the accident? A. Yes.
Q. Would Corey stay with you? Would you stay with him? A. On different occasions yes, but he was always there for the kids. Nearly every afternoon he saw his kids, he would come out and he would help me do different things.
Q. Ms Sweetman, getting back to you and Corey before the accident, you said he used to come over in the afternoons? A. Yes.
Q. How many hours would he spend? A. In the afternoon?
Q. How many hours would he spend in the afternoons when he came over? A. Until the kids went to bed of a nighttime.
Q. So what; we don't know how many hours that is, you have to tell us? A. Probably three.
Q. Ms Sweetman, we were talking about him coming over and spending three hours or whatever it was, three hours in the afternoon until the kids went to bed. I was asking you what sort of things he would do? A. He'd play with the kids; he'd do odd things for me, jobs for me.
Q. Like what? A. Change a baby's bum, like their nappies, sorry.
Q. Sorry, I beg your pardon, yes? A. He'd chop my wood and bring my wood in for me in winter; he'd bath the kids if that wasn't done; he'd help me do tea.
Q. When you say help you do tea, what do you mean specifically? A. He'd help me cook tea.
Q. What would he do? A. He'd peel the vegies and put the vegies on for me and - yes, just, you know, drain the vegies and mash the vegies up and sometimes he cooked the meat but it's usually a bit tough.
Q. Did you all share a family meal in the evening? A. Back then, yes.
Q. Would this happen every day of the week or just some of the days of the week? A. Not every day.
Q. Out of seven, on average, going back three years before the accident, how many days a week would Corey come round from when Corenna-Leigh was born up until -? A. To have a meal or--
Q. No, to spend three hours, whatever it was, in the afternoon; how many days a week? A. It'd be nearly every day. Some weeks he'd miss a day or two.
Q. Would he spend the evening at your house sometimes? A. Sometimes he would stay the night, yes . Q. Was that infrequent or frequent in the three years leading up to the accident? A. He'd stay a couple of nights a week.
Q. Would you bring the children over to his mother's house? A. Yes.
Q. How many times a week in the three years before the accident would that happen? A. Not many.
Q. Would you spend the night at his mother's house with the children and Corey? A. Sometimes I did. It wasn't an often thing."
Mr Clifton described his pre-accident working life in the following way:
"I worked when I was getting low on money and finally I had to get back into the workforce because there was nothing I was doing at home for a spell. I like to keep active, but it was helping friends and family out, helping me mother out, and when the work run out there, I'd go back to working elsewhere."
So it was when not in paid employment he would keep himself occupied in a variety of other activities: he would mend fences; mow lawns; bring in firewood, cut and split it, and doing things for people in the community they were unable to do them for themselves.
He went back to work at Rock Solid Design and Construction in July 2004, working as a bricklayer. Although he was enjoying the work, he wanted a change. He was developing a plan to work in partnership with an uncle who lived in Adelaide, where he was a builder, who wanted to return to the Cessnock area sometime in mid 2005 to start up a business in building and construction. In the meantime, Mr Clifton was offered a chance to be trained in operating a bobcat so in December he left Rock Solid Design and Construction and started working for a business called Lawn Care, at Kurri Kurri. But this only lasted a short time:
"Q. What machinery did you want to further your future in before your uncle came over? A. I wanted to drive a backer, do a backhoe licence, and that was through Steven Phillips, and at the time I went to do me licence, we had too much building work on, so that fell through, and then I had an offer to work with Lawn Care and I was promised within the month I would have been driving a bobcat, which fell through because he kept me on mowers and tractors because he thought I was too good at using them, so I said "Sorry, mate. No more, I'm going to do up me mother's house before me uncle gets over". I was on to the bloke every day about driving bobcats and it got to the point where I said I wasn't doing that work no more, "Give me a bobcat license or I'm leaving" and that's the way it went. Q. So you left? A. Yes."
He then set about doing renovation work on his mother's house at Mulbring:
"Q. Work was available to you, but you decided not to take it up? A. Yes. We had family coming over from Adelaide and we needed the bathroom done up ASAP so people could share and clean themselves properly because the floor fell through, so I jacked up the house and redone the bathroom for me mum so she could welcome people in and not have the burden for them not having a decent bathroom for them to walk into of a night and a kitchen."
On 20 May 2005, the accident intervened and he never did go into partnership with his uncle.
The post-accident history 18. As a result of the accident Mr Clifton suffered injuries, predominantly to his neck, right shoulder and head. He was taken by ambulance to Maitland Hospital and admitted as an outpatient. X-rays were performed on his chest, cervical spine, pelvis and hips. A CT scan of his head was also undertaken. He was then discharged. He then came under the care of a local General Practitioner, Dr C Matthews, who has since overseen his treatment, to which I will return in more detail.
Immediately following the accident Mr Clifton stayed with Terena's family. Subsequently, he and his family moved to his mother's house in Mulbring.
I will not dwell on the detail of his post-accident history, as much of that will emerge when I review the medical evidence. It is sufficient to note at this point that Mr Clifton's life has been dramatically changed as a result of persisting and more or less constant pain, discomfort and restriction of movement ever since the accident. He cannot sit or stand for prolonged periods, is unable to lift anything heavy, or raise his right arm above shoulder height. He has had persistent headaches. He has had difficulty in sleeping at night. He has suffered from impaired memory and an inability to concentrate. He has become moody, irritable, depressed and given to anger and frustration. He has developed severe emotional problems, a loss of motivation and a diminution in his self-esteem, leading to social withdrawal and avoidance. All these problems have persisted and continue. He has required ongoing medical treatment, to which I will come in more detail.
As a result of his problems he has been subjected to a horrifying medication regime, including being trialled on methadone to alleviate his intractable pain. This medication regime has produced adverse side effects including stomach problems and constipation, which have in turn required treatment and medication.
He has not worked in any gainful employment since the accident.
He has required ongoing domestic care and assistance in a number of areas. He has not driven a car since the accident, and has been driven almost daily to a variety of medical appointments and other places where he needs to go. He has been unable to cook and there are a variety of domestic matters that he can't do, including hanging clothes on the line, general household cleaning, and caring for the children. He has not been able to undertake the gardening and house maintenance he used to perform. He lives on a three and a half acre block on which the grass needs regular cutting. There is a regular need for firewood to be collected, cut and stacked to provide fuel for heating in the house that he has no longer been able to attend to.
He has undergone a significant change of personality. The extent of the change was illustrated during the course of Ms Sweetman's evidence:
"Q. Have you observed any change in his personality from the time of the accident to the present time? A. Yes.
Q. Now, in the time since the accident have you ever noticed him; that is, to the present time, not… A. He's cranky most of the time…He's very depressed. He's never happy…
Q. What happens when he tries to do things, to your observation, what happens to him? A. He's in a lot of pain.
Q. How does that affect his mood or how does not being able to do the things affect his mood? A. He gets extremely angry.
Q. Some mention has been made about his memory. What have you observed about his memory since the accident? A. It's no good.
Q. In what sense? Can you give us some examples? A. He loses things. He'll put something down and he'll - the keys for example, we're always losing his keys. Well he's always losing the keys. He'll forget where he's put them. I've now actually made him put a nail on the shed and a special spot inside so he has to put the keys in that special spot."
Mr Clifton was asked to describe a typical day and said:
"The kids are normally in bed by 8.30, 9. Terena and I like a little bit of time to ourselves to unwind and have a coffee and talk and whatever, so it's 11.30, 12 o'clock before I go to bed and I take sleeping tablets to get myself to unwind, to knock myself out, settle myself. I could wake two, three, four times through the night due to - with the tablets, I don't understand when my bladder's full then as soon as I wake up I've got to try and help myself up and out of bed to get to the toilet before my bladder wants to burst. I get up in the morning around - on a school day I like to try and be up before the kids go to school, so they leave at 9 o'clock now; before when they were at Wollombi I couldn't do it, but 9 o'clock I like to try and get out of bed. Sometimes it's 10, 11, just from - I just can't get up. I'll make meself a coffee. I'll have a smoke and then sometimes I'll - I'll make meself toast and breakfast. It all depends what's on. Life's pretty hectic so if Terena's got appointments for the kids or meself, I'll hop in the car and go with her or otherwise if she's got to mow and do lawns and that I'll try and contend with the baby as much as I can, but she likes to try and keep the manual work for when mum's at home for the baby to do that sort of stuff."
He tries to do as much as he can, mainly for his self-esteem, or because at times there is nobody else to do some of these things, but the consequences to him are fairly dire when he tries to do too much in that he will spend the next few hours, even days, on very heavy medication and lying down:
"I get me self that worked up and frustrated I push me self to an hour, two hours, to the point that I'm that dizzy in the head, me headache's thumping, me neck and shoulder is throbbing. I've - pretty well collapse on the lounge after taking a handful of tablets and hope that I - yes, wake up."
He described his inability to drive as follows:
Q. Is there some reason that you don't drive anymore? A. Oh, I get very claustrophobic and I panic a lot in the car. It was an effort getting from Melbourne to Sydney I was - wish I could have been asleep or knocked out. By the time I got down here I was very on edge.
Q. Physically are there difficulties driving? A. I - I just can't get behind a wheel to do it.
Q. You know, from neck point of view-- A. I can't--
Q. --or your shoulder? A. I can't turn me head to see. Look in the side mirror is all right but to turn and see your blind spots I - I just can't see.
Q. And who drives you to your medical appointments? A. Mainly Terena to nearly all of them. 99% of them.
Q. And what about the other things you need to attend to, social security, banking, the like. How do you do that? A. Terena. Terena."
His family life has suffered considerably. His relationship with Ms Sweetman has suffered from his depression and moodiness, and a loss of libido. His ability to interact with his children has suffered and he is no longer able to play with them to the same extent. He no longer plays any sport, has given up bike riding and motocross, and can no longer participate in the pre-accident martial arts activity he used to enjoy.
The post-accident medical treatment 29. I turn now to consider in summary the medical history, and treatment, which has been ongoing, extensive and pervasive.
The medical evidence begins with the ambulance records in which it is noted that after the accident Mr Clifton suffered from a period of loss of consciousness prior to the arrival of the officers. He was unable to recall events, remained confused and complained of headache. There was a 4cm laceration at the back of his head. He was taken to Maitland Hospital Emergency Department.
At the hospital he remained amnesic to the accident and was noted to have complained of generalised neck pain and shoulder pain. Various tests were performed including a Glasgow Coma Scale test, an ECG, X-rays and a CT. There was no skull fracture or any detectable brain injury. The laceration was sutured. He was prescribed analgesics and discharged into the care of his family and went home in a cervical collar.
Over the next few days he continued to experience persistent pain particularly in the neck and right shoulder region, and reduced movement in those areas. On 30 May 2005 he consulted a local general practitioner, Dr Chris Matthews, who then assumed supervision of his medical treatment, and Dr Mathews has continued supervising his treatment to this day.
At that first visit Dr Matthews noted reduced abduction and lateral flexion of his right shoulder with palpable crepitus on movement, reduced neck movements and spinal tenderness from the occiput to the interscapular area. There was residual tenderness at the site of the head wound. An ultrasound of the right shoulder showed some thickening of sub-deltoid bursa with impingement on shoulder abduction. An X-rays of the right shoulder and thoracic spine showed no abnormality. Apparently there was no radiological investigation of the cervical spine. The doctor's initial diagnosis was continuing concussion, a whiplash injury to the neck, and a right shoulder syndrome, with crepitus on movement. He removed the sutures and ordered X-rays and an ultrasound.
Dr Matthews next saw Mr Clifton on 20 June 2005, 3 weeks later. He was still in pain and restricted in his neck movement. The ultrasound indicated there was bursitis in the right shoulder. On this occasion a cervical X-ray was obtained and this revealed anterior slip of C2 on C3, suggestive of instability between these two cervical vertebrae. Medication was prescribed and he was sent for a CT scan. This was done two days later and the radiologist reported no abnormality. He could not, however, exclude ligamentous injury and recommended flexion/extension views.
On 14 July 2005 Dr Matthews saw Mr Clifton and reviewed the further imaging obtained. The flexion/extension views confirmed a slight forward shift of C2 on C3. On examination Dr Matthews found he lacked 50% of all neck movements, and had a cracking sound in the neck on movement. There was reduced erector muscle mass on resisted extension. Because of the lack of improvement, the continuing pain and restations in movement, Dr Matthews recommended specialist intervention and referred Mr Clifton to Dr Robert Kuru, a spinal and orthopaedic specialist.
Dr Kuru then saw Mr Clifton on 29 July 2005 and examined him. The doctor noted a reluctance to move the neck and general tenderness along the cervical spine, but not around the shoulder girdle. Mr Clifton's range of motion was restricted in all directions. Spurling's test reproduced pain at the base of the neck. Various other tests were performed but nothing out of the ordinary was revealed. The doctor reviewed the X-rays and scans and considered them unremarkable. His impression was of a symptomatic whiplash associated disorder. He did not think surgical intervention was appropriate and discussed with Mr Clifton an appropriate exercise based rehabilitation program. He also thought him a suitable candidate for cervical facet joint injections for relief of the pain and recommended referral to a rehabilitation specialist.
Mr Clifton returned to see Dr Matthews on 26 August 2005. On this occasion the doctor noted that Mr Clifton had become depressed and confused, unable to cope with his continuing pain and restricted movements. He reported problems with memory and concentration. The doctor discussed the letter received from Dr Kuru reporting on Mr Clifton, who told the doctor he was unable to afford the injections recommended. In accordance with Dr Kuru's other recommendation, Dr Matthews referred Mr Clifton to Dr Geoff Booth, a rehabilitation specialist at Royal Newcastle Hospital. He also arranged for physiotherapy on his right shoulder. He continued him on analgesic medication, but also prescribed sedative antidepressant medication.
It seems that for the next few months not much happened medically and for whatever reason, Mr Clifton did not go to see Dr Booth at this time. When Mr Clifton next saw Dr Matthews on 2 November 2005 his medical condition was unchanged. On this occasion the doctor injected Mr Clifton's right shoulder with Celestone chronodose and lignocaine and repeated the prescription for sedative antidepressant/analgesic medication.
The next visit was on 5 January 2006 when Dr Matthews described him as miserable, irritable and complaining of increased pain, and about his medication. He told the doctor he had had good relief from the injection in November, so he was given another, but he suffered an immediate allergic type reaction to it and had to be admitted to Cessnock District hospital for observation. Over the next few days he was treated with oral steroids, morphia and doxepin for the reaction to the injection, but in turn developed another allergic reaction to the morphia, with itching skin. When Dr Matthews next saw him on 16 January 2006 he was recovering, but still had a rash on his right arm. On this visit Dr Matthews referred him to another orthopaedic specialist, Dr Don Osborne.
In the meantime, at the request of the motor accident insurer, Dr Matthews prepared a report on Mr Clifton. This bears a December date but is clear the letter was not sent until after the examination on 16 January 2006. He provided a brief summary of the history and medical history to that point and described his injuries as:
(1) Concussive head injury with loss of consciousness, scalp laceration and post-concussion traumatic brain syndrome. (2) Soft tissue cervical spine injury. (3) Right shoulder impingement syndrome.
Dr Mathews went on in the letter to paint a picture of Mr Clifton for the insurance company that was not pretty:
"Corey has complained of persistent neck pain and reduced range of movement, pain and reduced movement in the right shoulder, deficits in memory, thinking and motivation and emotional problems (namely frustration, irritability and sleep disturbance)…
Throughout his review visits, he has appeared confused and depressed and I formed the conclusion that he was suffering from a post-concussion syndrome…
He has right shoulder impingement syndrome symptoms that are intolerable to him and have failed to respond to conservative treatment. He has had a shoulder ultrasound which confirmed a traumatic supraspinatus bursitis; this responded partially to a local corticosteroid injection…
Corey has been completely disabled for work since the accident…
His prognosis is uncertain, although spontaneous improvement in his brain and neck injuries is still possible. He has been severely physically, psychologically, emotionally and socially disadvantaged by the injuries…
Corey and his partner need empathetic and proactive advocacy and support from the insurer and continued timely, high quality medical treatment." (Emphasis added)
In quick succession Mr Clifton went to see Dr Booth and Dr Osborne. Both doctors expressed deep concerns.
Dr Booth saw him on 24 January 2006 at the Maitland Hospital Rehabilitation Clinic. It is worth observing that Dr Booth was on notice of doubts about whether Mr Clifton's problems were genuine, as he was told that "the NRMA got him on film". Nevertheless, the doctor assessed a soft tissue injury to the neck with a residual myofascial pain syndrome (with associated referred pain). The doctor was unsure about the aetiology of the right shoulder pain. He referred to the emotional consequences including depression and cognitive changes and made recommendations for ongoing management, described by Counsel as "prophetic":
"Management:
Dr Osborne saw Mr Clifton about 3 weeks later, on 14 February 2006. He gave a history of right-sided shoulder pain present since the accident. On examination he found tenderness and restricted movement in the right shoulder, a positive drop arm sign, and a Grade 5 supraspinatus. There was pain on forward elevation beyond 90 degrees. There were strongly positive signs of impingement. The ultrasound was consistent with bursal impingement. The doctor felt it reasonable to consider an arthroscopic acromioplasty, a procedure with a high success rate for impingement.
Following upon these opinions, Dr Matthews arranged a conference telephone discussion on 23 February 2006 involving the Claims Assessor from NRMA and Dr Booth. Dr Osborne's report and recommended surgery was discussed. The discussion was confirmed by Dr Matthews in a letter dated 24 February 2006:
"Thanks for talking about Corey's case on 23rd Feb 2006. As I told you there are management suggestions from several consultants for referrals and interventions to improve Corey's quality of life which is currently very poor, mainly due to pain and loss of function…
I have a recommendation from Dr Don Osborne that Corey's right supraspinatous impingement syndrome be dealt with by surgical decompression…
Dr Geoff Booth, the Director of Rehabilitation for Hunter New England Health, has made three recommendations:
These recommendations were given with Dr Booth's further opinion that time is running out to avoid Corey developing an intractable chronic pain problem…(emphasis added)
Corey Previously saw Dr Robert Kuru for his neck pain and was recommended referral to Dr Anthony Schwarzer for cervical apophyseal joint injections…"
Following these submissions the insurer approved payment for an arthroscopic acromioplasty, which was carried out on 3 May 2006 at Newcastle Private Hospital. Following this operation Dr Osborne reviewed Mr Clifton on 18 May 2006 when he described the wounds as well healed and found forward elevation to about 140 degrees. He saw him again on 25 May 2006 when he found forward elevation of 130 degrees, with no exacerbation of pain, and full elbow extension. However, Mr Clifton was complaining of "an interesting pain" in his elbow with radiation into his forearm and hand, described by Dr Osborne as "radiating paraesthesia into his hand along the radial aspect of the forearm". He was unsure of the cause and reported to Dr Matthews as follows:
"Chris, I am not entirely sure how to explain all of this. I guess it is possible that Corey has some form of neural entrapment around his cubital fossa and accordingly I have ordered nerve conduction studies of this today."
Dr Osborne next saw Mr Clifton on 20 July 2006. Whilst he reported improvement in shoulder pain, it had not completely resolved. He was also still complaining of the paraesthesia in the median nerve distribution. The nerve conduction studies showed no lesion or denervation, but did not entirely exclude nerve irritation or a radiculopathy.
The defendant sought to make much of Dr Osborne's note that Mr Clifton reported improvement in his shoulder following the arthroscopy. The reality is however, that the operation did not fully resolve the shoulder problem. Mr Clifton conceded that his arm improved, and he recovered some strength in his hand, but his shoulder did not improve (T 40). He confirmed this in cross-examination, describing how when Dr Osborne lifted his arm up above his head, that brought pain:
"A. He lifted me arm up above the point of where I could lift it. I was put into a lot of pain at that split second but it was settled back down to getting a nerve pain shooting down my hand, into my hand."
Dr Matthews remained extremely concerned. In a report dated 9 May 2006 he wrote to Mr Clifton's solicitors he again stressed the need for pain management and psychological assistance:
"...Corey...has been devastated by the pain, disability and loss of self-esteem caused by his involvement in this accident. I have witnessed the deterioration in his relationship with his partner and children over the past year that I have known them. He has been unable to work for nearly a year. He has physical disability in his neck and right shoulder...His depression and memory loss have persisted to 12 months past the accident, which is beginning to get past the normal expectation for spontaneous resolution of post-concussion syndrome...He is unlikely to ever completely return to his pre-accident physical and mental status...provision for early psychologist and pain clinic intervention are critical."
Mr Clifton was seen on 26 June 2006 by Dr Anthony Schwarzer, a consultant physician specialising in musculoskeletal and pain medicine. He provided a report in which he noted the history. As to problems then current he noted that Mr Clifton was able to move his shoulder better since the arthroscopy, but that he had developed a shooting pain radiating from the right elbow to his forearm and wrist, particularly when lifting, which caused pins and needles over the volar aspect of the wrist and thumb. So far as the continuing neck pain was concerned, the doctor went on to record:
"Corey's major problem at present is constant severe mid to low cervical pain, more marked on the right than the left. The pain radiates to the posterior aspect of the trapezius. With extension of his neck he experiences pain in the scapular area...All movements tend to exacerbate his pain, especially rotation of his head to the right...His sleep is typically interrupted because of severe pain..."
Dr Schwarzer examined Mr Clifton and his finding included neck stiffness and cervical tenderness, reduced flexion and extension, with pain on rotation to the right. There was also some continuing shoulder pain with restricted rotation.
His opinion was that it was highly likely Mr Clifton had suffered an injury to one or more cervical zygapophysial joints, but was unable to exclude discogenic pain. He organised an MRI and suggested Mr Clifton might benefit from diagnostic blocks of the cervical zygapophysial joints. As to the shoulder and right arm he was uncertain as to the cause of the neuropathic pain, but considered it might be a result of minor median nerve injury caused by the arthroscopy. He recommended analgesics in the form of Endone.
Dr Schwarzer reviewed Mr Clifton on 7 August 2006. The pattern of pain was unchanged. The doctor noted that the MRI was normal. He further noted that the zygapophysial joint blocks he had recommended had not occurred, as the motor accident insurer had not given approval for payment of that procedure. In these circumstances he was unable to suggest any active treatment, and suggested an increased dosage of Endone, or Oxycontin if that did not work. He indicated that if approval was needed for the Oxycontin from the Department of Health, his letter could be used. He went on to note:
"Corey seems to be very distressed and anxious and concerned about his long term future. I told him it was unlikely that he will ever be able to return to a manual occupation but given effective treatment he might be able to go back to part time sedentary duties."
Dr Matthews continued to manage Mr Clifton's ongoing medical care as best he could in the circumstances. He saw him regularly through September, October and November 2006. In these months, his mental condition deteriorated. He started to experience severe depression, and in September expressed suicidal ideation in a letter, which led to him being hospitalised for 3 days during which he had an hallucinatory episode from the narcotic analgesics. He was subsequently seen by the Maitland Mental Health Service psychiatrist, Dr Ryan. He was also referred to the Cessnock Hospital to undergo treatment on a transcutaneous nerve stimulation device (TENS) in attempt to alleviate his pain and to reduce his constant high consumption of pain medication. This treatment had no effect. On 29 September 2006 Dr Matthews wrote:
"For the last week, he has had increasing activity with pressure of speech and ideas of reference. His relatives are worried by his behaviour, including the possibility of intracranial pathology..."
Dr Matthews was sufficiently concerned that he asked the police to confiscate various firearms in Mr Clifton's possession.
In January 2007 Dr Matthews reported that Mr Clifton continued to suffer pain in the neck, and continued to complain of dizziness, easy fatigueability and short-term memory loss. He was taking large doses of panadeine forte and sedatives prescribed by a mental health nurse. His medication was causing constipation and rectal bleeding. He was later diagnosed with gastrointestinal morbidity. In the meantime he continued on a regime of serious medication including oxycodone, maxolon, seroquel, epilim and aome. He even tried fentanyl skin patches. Dr Matthews discussed a regime of methadone, but he initially rejected the idea, fearing addiction and stigmatisation.
Dr Matthews persuaded Mr Clifton to undergo treatment at the Hunter Integrated Pain Service (HIPS). His treatment was undertaken by Dr Susie Lord. The first procedure was on 18 April 2007, a right C5-6 diagnostic branch block under a local anaesthetic. This resulted in short term relief, but also caused a migraine headache. A second procedure was administered on 23 May 2007, but this did not result in any pain relief. A third procedure took place on 18 July 2007. This only provided relief for some 7 hours. He was next seen by Dr Lord on 8 August 2007. On this occasion she injected his neck with Lignocaine and Bupivicaine, but this provided only several hours of relief. Dr Lord then turned her attention to possible radiofrequency neurotomy. She then performed a radiofrequency procedure on 19 September 2007 involving a right C5 and C6 median nerve neurotomy under image intensifier guidance. Mr Clifton was discharged the same day, but Dr Lord reviewed his post-procedure progress by telephone on a regular basis. In November 2007 she reported as follows:
"Corey's initial response during the period of local anaesthetic effect was of considerable pain relief. He reported by phone that for the first five days he had much improved pain, and improved range of movement and of an improved level of physical function including performing some mowing, whipper sniping and generally feeling much better. However, after day six he became more aware of his right shoulder pain and this has been problematic ever since...my general impression is that the procedure has not yielded sufficient pain relief to be a success in terms of functional improvement."
In the meantime, Mr Clifton was referred for psychiatric assessment by Dr Peter Klug, who saw him on 27 March 2007. The doctor provided a detailed report dated 15 May 2007. He diagnosed a chronic major depressive disorder with anxiety-based symptoms, requiring ongoing treatment and medication. Dr Klug was concerned that Mr Clifton might also be suffering from some form of traumatic brain injury and recommended an MRI scan and neuropsychometric testing.
On 29 November 2007 he was assessed by Dr Wayne Levick, a neuropsychologist who carried out an assessment to examine the nature, extent and implications of any impairment of cognitive function resulting from the head injury. He found that Mr Clifton displayed a pattern of performance in which verbal episodic memory showed consistent impairment reflecting a genuine verbal memory deficit. He went on to say:
"I consider it most unlikely that Mr Clifton could have contrived such a result. The pattern of memory impairment displayed on assessment is rarely seen other than where there is some damage to areas of the brain responsible for episodic memory function."
Dr Levick noted that a recent MRI scan of the brain had failed to show any abnormality but stated that it is recognised brain abnormalities produced by closed head injury are not necessarily detected by such a scan. He said:
"Information available to me suggests that Mr Clifton suffered a relatively mild head injury. Most will recover from such an injury without significant long-term effects on cognitive function. A small proportion does have significant sequelae which could include problems with memory such as those experienced by Mr Clifton."
The doctor was unable to isolate any brain injury-related deficits other than the verbal memory deficit. He considered, however, that Mr Clifton may well have problems with executive function, not necessarily of traumatic origin, but possibly from the effects of depression, pain and medication. He concluded:
"As things stand, it appears that the combination of difficulties experienced by Mr Clifton following the accident will make further employment unlikely. Clearly, quality of life has been severely impacted for him and his family."
During 2008 Mr Clifton underwent a course of psychological counselling with Mr Graeme Dark under the Better Access to Mental Health Medicare program (BAMH). The referral was aimed at reducing his level of depression and assisting him to understand his memory loss and his symptoms of post traumatic stress. Mr Dark provided a report dated 4 January 2009 and recorded that there had been 7 consultations since March 2008. Mr Dark said that the memory problems were persisting. He was treating Mr Clifton with a combination of cognitive behavioural therapy (CBT), interpersonal therapy, and relaxation and stress management therapies. He described progress as "poor" and recommended a continuing program of counselling, but was unable to estimate the duration of treatment to enable Mr Clifton to progress:
"Corey Clifton is "stuck" and psychologically struggling to survive the present set of circumstances in his life. Being able to progress to a new stage in his life, even if to a less than ideal situation, would at least provide a sense of new direction for his future life."
Under the heading "Prognosis" of his report dated 4 January 2009 Mr Dark expressed the following views, which usefully summarise the present position:
"Corey's situation is very difficult for him to cope with. As a young man who worked as a bricklayer and doing other manual work, his life since the accident has been drastically changed. He has shown little improvement on the Hamilton Depression Scale or the DASS scales for Depression, Anxiety and Stress since I began treating him. Pain, physical restriction, psychological, emotional and memory issues continue to impact upon him. I can't see him returning to his former work as a bricklayer because of the physical fitness required for that profession, unless significant physical recovery eventuates and given the time since the accident that is appearing unlikely. In fact, given the level of improvement required, it appears very unlikely that it would be obtained in the future, and his present level of physical recovery may now, given the time since the accident, even be considered permanent.
I would expect that if this had been a workplace accident, rather than a road accident, Corey's rehabilitation may have taken a very different course. Light duties, retaining and a graded return to the workplace, all assist in the psychological recovery of the injured, unlike the situation he is in where he continually has to "prove" his degree of injury and incapacity. His inability to return to any workplace at this time greatly impacts on his sense of self-worth and self-esteem and exacerbates his depression and anxiety, and perhaps other symptoms. The fact that his injuries are "hidden" (no loss of limb etc.) also impacts upon his sense of embarrassment. The smallness of the community in which he lives, means there is no anonymity for him, and this adds to his sense of worthlessness.
The impact of the accident upon Corey's relationship within his family has been profound. His level of activity around the home and his ability to interact with his children within the normal range of physical activities remains diminished. His sporting and leisure activities have virtually ceased and he reports that supporting his son's sporting involvements is all that he can accomplish, and even that is with some degree of difficulty. His libido has also been adversely impacted up by the results of the accident. It is reasonable to attach responsibility for this to the accident, and for these other changes in his life, given that prior to it happening there is no record to my knowledge, of there being any of these difficulties present his is life and relationships...
The treatments for Post Traumatic Stress, depression and anxiety have varying response rates, but it needs to be said that there are no quick fixes to these complex psychological illnesses..."
The medico-legal opinions 59. Dr Paul Darveniza, a neurologist, provided reports dated 2 April 2007, 27 October 2008 and 30 March 2009 in respect of Mr Clifton following examination. He accepted Mr Clifton as suffering from genuine chronic neck and right shoulder pain, aggravated by lifting and bending, limiting his ability to sit, stand or walk for more than 30 to 60 minutes. The neck pain radiates to the back of the head about three times a week, becoming quite a severe headache, causing dizziness and positional vertigo with sudden head movement. He remains forgetful and vague. His concentration and attention remain poor. He sleeps poorly. Dr Darveniza regarded the cognitive dysfunction as secondary to the pain, medications and his psychiatric state. He assessed Mr Clifton as having permanent impairments of the cervical spine and right upper arm, with a permanent psychiatric condition causing cognitive deficits. His emotional behavioural impairments should be considered to be psychiatrically based rather than a result of any brain damage. His physical disabilities are permanent and he would only be fit for light duties work not requiring repetitive lifting, bending or stooping, or overhead tasks. He considered that the only likely helpful ongoing treatment is limited to a home based physical program and psychiatric counselling for his depression. The doctor also considered he should continue with his ongoing medication schedule.
Associate Professor Leon Kleinman, an orthopaedic surgeon, provided a report dated 5 July 2007 in relation to Mr Clifton. In respect of the right shoulder the professor found marked wasting of the supraspinatous muscle and wasting of the right trapezius muscle, weakness of external rotation, tenderness and stiffness. He had lost power in the grip of his right hand. As to the neck, he found stiffness, tenderness and restricted movement. He considered that Mr Clifton may well have a suprascapular neuritis associated with the traction in his neck.
Dr Stephen Buckley, a consultant physician in rehabilitation medicine, provided reports dated 12 March 2008, 4 June 2008 and 28 February 2009 in relation to Mr Clifton. He diagnosed traumatic capsulitis in the right shoulder with a marked reduction in movement. There were ongoing symptoms in the neck of pain and restricted movement, without a specific diagnosis, but consistent with the accident. He is unemployable for heavy work. Initially, Dr Buckley thought he might be able to perform light work or sedentary duties. However, by February of this year he considered that his psychiatric condition together with the regime of heavy analgesic medication including narcotics are sufficient to rule out employment in any capacity. He regards the shoulder injury as more significant than the cervical symptoms:
"In my opinion, it is unreasonable to doubt Mr Clifton's significant right non-dominant shoulder injury...Unfortunately, a poor outcome of surgery is a fact of life, and in so far as he has undergone surgery for the shoulder, while the majority of people would make a full recovery, Mr Clifton has not. He has, demonstrably, a physical alteration to the function of his shoulder joint..."
Dr Barry Bracken, an orthopaedic surgeon, provided reports dated 25 January 2007 and 11 February 2009 in relation to Mr Clifton. In his 2007 report the doctor found well marked muscular and ligamentous damage, particularly on the right side of the neck, resulting in a permanent impairment. His assessment of ongoing impingement and adhesive capsulitis in the neck was guarded. By 2009 his opinion relating to the neck was unchanged, but his view in respect of the right shoulder was that the reduced ranges of movement demonstrated on examination were doubtful, such that the level of adhesive capsulitis did not exceed the level noted in 2007. He went on to say:
"It is noted that he is taking addictive levels of opiate medication and methadone in addition which makes one wonder how he manages to function at all. He is patently not capable of undertaking any meaningful form of work and I would think his long term outlook in respect of physical and mental health is extremely gloomy."
Dr Mellick, a specialist neurologist, examined Mr Clifton on a number of occasions and provided a series of reports in 2007, 2008 and most recently on 24 April 2009. In the absence of objective signs establishing an underlying organically based cause linked to the trauma from the accident, Dr Mellick said in his report dated 27 June 2008:
"Although there is a continuum of symptoms, it is clear that the documents prepared by the general practitioner and others who saw him reveal a consensus that the accident resulted in soft tissue injuries without evidence of any deeply sited structural or spinal cause…My re-assessment today has once more drawn attention to evidence of psychologically based problems and no evidence of specific organically based spinal or neural disorder… I would regard the underlying cause of his chronic symptoms and incapacity to be a chronic pain syndrome determined by psychogenically based processes."
Dr Mellick was asked by the defendant's solicitors to express his opinion as to the plaintiff being a malingerer. In his report of 5 August 2008 he said:
"The possibility of malingering contributing to the clinical features now present does exist, however I do not believe it is possible for the neurologist to confidently establish the distinction between functional features psychogenically determined which are partly unconscious and similar functional features which are wholly consciously determined…The acknowledgement of that possibility does not, however, establish malingering as the probable cause of those features."
Dr Mellick was also asked by the defendant's solicitors to express his opinion about the plaintiff's use of narcotic medication. He said:
"The excessive use of narcotics is another example of less than optimal medical management. It is perhaps possible that some component of the functional features psychogenically determined has been added by the excessive use of narcotics.
It is regrettably common for individuals who have widespread symptoms, which do not have an underlying organic cause, to receive excessive treatment of various sorts, including excessive use of narcotics, because the doctors involved wrongly respond to the failure of the treatment provided by increasing the dose of narcotics." (Emphasis added)
In his most recent report dated 24 April 2009, prepared during the course of the trial, Dr Mellick introduced his comments with the following:
"During conversation with the barrister at the District Court this morning the possibility was raised of a contradiction being present in reports previously prepared by me. However, there is no contradiction."
He went on to deal with what he described as three interrelated issues of neurological consequence. The first concerned episodic vertigo, which he attributed to the concussive injury affecting the peripheral vestibular apparatus. Of that he said the normal natural history of that type of disorder was to full resolution. The second related to his opinion that Mr Clifton was unfit for work as a bricklayer which at the time in question (July 2007) he considered was due to both his episodic vertigo and continuing neck pain. The third related to "iatrogenic and psychologically based symptomatology". He expressed his views as follows:
"The increase in the psychologically based phenomena was also associated with marked increase in functional features on examination, such that the cervical movements were grossly but inconsistently impaired and associated with a pattern of impaired power in the right upper extremity, which was also not explicable as a result of an organically determined process.
The psychologically determined phenomena had clearly become markedly worse at the time of that last examination."
As to the episodic vertigo, Dr Mellick's view is:
"The clinical features that were present and the history which I obtained when I examined Mr Clifton in 2008 included nothing which suggested that the concussive injury was continuing to produce organically determined unsteadiness, as it had done previously. There had been a marked increase in psychologically determined phenomena at the time of the later examination and the continuing complaint of dizziness was associated with panic and nervousness, especially when in a vehicle. There were no symptoms of a true vertiginous nature and nothing to suggest continuance of the concussive injury to the vestibular apparatus."
"As indicated previously, there is some evidence of a cervical spine lesion determined by the injury, producing permanent impairment. The evidence is indicative of a minor lesion."
"To summarise, Mr Clifton was unfit for employment, as indicated in my first report, because of a combination of spinal symptomatology and a concussive injury to the peripheral vestibular apparatus occasioned by the injury. The vestibular lesion, in particular, rendered him unfit to resume all work then….A cervical impairment justified the comment that he was fit for reduced duties and not fully employable.
However, it is sufficient to render Mr Clifton incapacitated for heavy work. He would be fit for light or moderately heavy work, such as light carpentry or lawn mowing, both of these activities having been performed by him prior to the injury in May 2005. He would also be fit to drive a vehicle and perform light delivery work.
I do not think it would be appropriate for him to perform work such as driving tractors or other heavy equipment which might subject his neck to frequent jarring."
"A prominent aspect of his presentation is his heavy dependence on opiates…without doubt this combination of drugs is likely to be having a significant impact on his mental state. He takes the view that by using these drugs he is able to remain active."
"Mr. Clifton requires ongoing and comprehensive pain-management in conjunction with psychiatric treatment. Clearly his current state has been caused by, and is being perpetuated by, multiple factors both physical and psychiatric."
The impact of the accident on Mr Clifton 75. It is the plaintiff's case that the evidence comfortably establishes that Mr Clifton has severe ongoing and permanent disabilities caused by the injuries sustained in his accident on 20 May 2006. Superimposed on his initial but persisting physiological symptoms there also exists a significant psychiatric condition. He now suffers from an intractable illness that affects his capacity for work and his ability to care for himself.
Causation 81. It is the defendant's contention that the plaintiff's current level of pain and incapacity is solely due to a regime of haphazard and excessive use of opiate analgesia prescribed over a lengthy period by his general practitioner, Dr Matthews. This has rendered him dependent on opiates and causes a chronic adjustment disorder with depressed and anxious mood. This regime, and its continuation without any attempt to provide detoxification and alternative forms of treatment, departed from appropriate treatment the consequences of which were unforeseeable such that causation has not been established.
The contention was developed in the written submissions (at paragraphs 19 - 26 and 31 - 34) and in the oral submissions, as follows (T 490):
"…it is our respectful submission that your Honour will find that it is not foreseeable that a person will continue to be prescribed narcotic medication in the circumstances we have described and the evidence to which we point heartily in support of that is the opinion of Dr Buckley that this man has a serious problem with overuse. Your Honour, it is simply not foreseeable in our respectful submission that in the circumstances of this case a man would continue to have prescribed for him medication which is potentially addictive and which we would respectfully submit your Honour would infer he was overusing and that the person administering or issuing the prescriptions knew he was overusing.
It is our respectful submission against that background that your Honour would find that the treatment diagnosed over a long period and it would be difficult to say when that period would start. But it has been a problem as your Honour will see from the submissions for a long time. Your Honour will find that even if the commencement of the treatment was foreseeable, the circumstances in which it continued were not and especially were not when one bears in mind that the doctor said in the witness box that he had had recommendations as to other forms of treatment. Those recommendations it appeared dated back to 2007. But he had never acted on them because according to his answer he was a person who could not say no when someone was suffering symptoms and medication might have relieved them.
In the overall circumstances, I could develop that a great deal more but it would be insulting to your Honour's intelligence to do so because it's all in the reports. It would be our respectful submission that your Honour would find that those prescriptions were something that is not a foreseeable consequence of this injury in all the circumstances of this case. That fact in our respectful submission is clearly recognised by a number of doctors…"
It is not true that the medication regime prescribed, including the opiate analgesia, was a product of "haphazard" prescription. Nor was it the outcome of Dr Matthews acting either unprofessionally or alone. Most of his treatment was forced by the exigencies of the plaintiff's personal circumstances and a reluctance on the part of the insurer to approve recommended treatment and investigations. Much of the medication prescribed occurred in consultation with or on the recommendation of other more specialised practitioners. Dr Matthews' dilemma is encapsulated in this piece of evidence (T 302):
"Q. You were asked a question which involved the use of the phrase as far as his drug regime about reasonable benefit and harm. Do you consider that the prescription of drugs by you to this man achieves a balance of reasonable benefit and harm to him? A. I believe so."
The defendant's contention was strenuously opposed by Senior Counsel for the plaintiff, who submitted:
"We would say it's not pleaded, nor have any particulars ever been provided, and that, in essence, is not surprising given, as far as the pleading is concerned, a solicitor has an obligation to sign a s 347 Legal Profession Act Certificate to say that the defence, in their professional opinion, is proper; and absent evidence... (T 475).
…there is this outrageous and without foundation attack on Dr Matthews, without joining him as a cross-defendant. If there was the slightest merit in these allegations, that this plaintiff's injuries have been caused in the sense of Dr Matthews' negligent treatment of him, as is alleged, then the plaintiff could also have joined Dr Matthews, or sought contribution from him…(T 475).
If the plaintiff says, "You have broken my leg and as a consequence of that I have developed brain damage," then causation in that context is available to the defendant, but in the context of this case the defendant cannot say, "I agree I have caused you damage to your neck and your right shoulder for which you went to a doctor and obtained treatment, for some of which we paid." The defendant cannot take that one step further and say, "The condition from which you now suffer as a result of the doctor's treatment of you is not reasonably foreseeable and thus," - as I understand the argument - "and thus it is not caused by the accident," because for your Honour to allow that argument to be put forward there would need to be, as I mentioned before lunch, a re-pleading of the case. It is a novus actus interveniens. This ruse, to call it the cousin of a novus actus interveniens, as my learned friend adroitly endeavoured to do, is just plainly unacceptable, unallowable and is significantly to the detriment of the plaintiff. It would deny him the opportunity of, firstly, seeking medical advice as to whether there was any truth in the allegation, firstly by putting it to Dr Matthews (T 495).
Well, of course it wasn't put to Dr Matthews, "You, sir, are the author of this young man's misfortune, because you, and you solely, are responsible for his present condition." Not put. Not put in any guise whatsoever. The plaintiff would be entitled to join Dr Matthews as a defendant were that the case. The plaintiff would be entitled to seek specialist advice as to what damage, if any, he has suffered as a result of the so-called negligence of Dr Matthews, but the case, as my learned friend has articulated it orally to your Honour, is not quite that. The submissions in writing go much further than my learned friend's oral submissions to your Honour; but it smells like it, it looks like it, and the inference is, if you accept my learned friend's submission, it is a novus actus interveniens, and it ought not be permitted, in our submission. That is in addition to what I have said before lunch as to our objections to allowing this to go forward, those are the further matters we wish to put. I don't want to rehash what I said before lunch (T 495)."
I do not need to deal with the question of pleading: 3WJ Pty Ltd v Kanj [2008] NSWCA 321 at [33]-[34].
There was no intervening cause such as to break the chain of causation. There was no conduct on the part of Dr Matthews that was "inexcusably bad", or "completely outside the bounds of what any reputable medical practitioner might prescribe", or "so obviously unnecessary or improper it is in the nature of a gratuitous aggravation of the injury": Mahony v J Kruschich (Demolitions) Pty Limited [1985] HCA 37 at [8]. Rather, in this case, the defendant's wrongful act generated the very risk of the medical treatment that in fact eventuated: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 518-519. I am satisfied that the plaintiff's use of medication by way of response to his predicament, including opiates to which he has become addicted, is the very kind of eventuality that was likely to occur as a consequence of the injuries caused by the defendant's breach of duty: McGroder v Maguire [2002] NSWCA 261 at [34].
For these reasons I find that the totality of the consequences of the injuries sustained by the plaintiff in the motor accident were caused by the defendant's breach of duty.
The occupational therapy evidence 88. A considerable amount of hearing time was consumed by reason of what I might generically describe as the defendant's occupational therapy evidence, firstly as to its admissibility and secondly by way of cross examination of the providers. In the end result, having regard to my findings, I placed no weight on any of this evidence. But even if I had formed different views on the medical evidence, I would have placed little, if any, reliance on this evidence. Overall, I had some sympathy for the submissions of Senior Counsel for the plaintiff as to the unsatisfactory nature of these reports. I do not propose to set out here the detail of the objections taken to the reports of these providers, as it is dealt with in considerable detail in the transcript. Each of the reports was admitted subject to relevance and subject to weight. In the result, most of the facts or assumptions relied upon by the authors were not established, and the opinions were left without any evidentiary basis. But they were unsatisfactory for other reasons as well. The reports involved are unnecessarily long. They contain excessive detail most of which is either repetitive or is unhelpful. They barely comply with the strictures for the presentation of expert evidence required in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA305. They venture into areas of opinion best left to the medical experts, beyond the expertise of the makers, and they rely on statements or opinions of other medical witnesses either taken out of context or which are cherry-picked to advance propositions most favourable to the defendant. The reports were not objective, not well-reasoned and poorly structured.
Out-of-pocket expenses 91. The plaintiff claims out-of-pocket expenses totalling $18,611.95, made up of medical expenses of $16,811.95 and the cost of odd jobs paid for by his mother totalling $1,800.00. The mathematics of the claim was not disputed.
Economic loss 95. The plaintiff claimed a total amount of $113,775.00 for past economic loss to 1 May 2009, being $102,500.00 plus $11,275.00 for superannuation. It was conceded that his tax returns and working history do not reflect the full potential of his earning capacity.
However, the unchallenged evidence was that he was about to go into partnership with his uncle, from which he would have been capable of earning significantly higher remuneration. He was a good and skilful worker and there was plenty of work opportunities for him to work as a bricklayer.
The evidence given by Mr Phillips established that bricklayers in his employ now earn more than $800 net per week. It was submitted:
"Were it not for his injuries $800 net per week is a reasonable measure of his lost economic capacity as at the date of trial. However, at the date of the accident his wage as a bricklayer would have been $452 per week net. On the not unreasonable assumption that in the four years since the accident wage rates would have increased uniformly over that time, it would be appropriate to average this out at $625 per week net… It would be fair to say that, based upon his pre-accident employment history, he may not have exercised that earning potential to the fullest degree. It would be appropriate, giving weight to these competing considerations to apply a discount of 20% to that which, from an economic perspective, the Plaintiff has lost as a consequence of the accident."
On this approach the claim may be calculated from the date of the accident to the present, as follows:
209 weeks x $625 = $130,625.00 reduced by 20% = $104,500.00.
The defendant, on the other hand, stressed the intermittent nature of Mr Clifton's work history, and that his tax records reveal considerable periods on Centrelink benefits in the 3 years preceding the accident. It was submitted that Mr Clifton gave no evidence that this pattern would ever have changed, and that it cannot be assumed the proposed business with his uncle would have commenced, let alone prospered. It was contended that his most likely circumstances, but for his injuries, was a continuation of the pattern of the previous few years.
Furthermore, the defendant submitted, Mr Clifton has been physically fit for full time work as a bricklayer, or some similar role, since shortly after the accident or at the latest from September 2006 after his recovery from the arthroscopy performed by Dr Osborne. Alternatively, he could have worked from that time in some alternative lighter or sedentary occupation as described in the various occupational therapy reports. The defendant submitted that a maximum of about $21,000.00 would represent appropriate compensation for past economic loss.
As to the future, the plaintiff's claim was put on the basis of a net weekly loss of $800 per week from the present for about 5 years of total unemployment, to allow Mr Clifton to benefit from a pain management program, counselling and possibly retraining. Thereafter, for the remaining 30 years of his working life, a small allowance might be made to take account of a possibility he could re-enter the workforce in a meaningful productive capacity taking into account the geographic exigencies, including the absence of public transport and his incapacity to drive. On approach arithmetic was presented calculating future economic loss of some $595,000,00 plus superannuation of some $65,000.00, producing a total amount for future economic loss of $ $660,000.00 after discounting for vicissitudes.
The defendant's contention was that Mr Clifton is now fit for his pre-accident duties, or for work equally if not more lucratively remunerated. Alternatively, the allowance for the future should be calculated by reference to a detoxification program and alternative treatment, with a graded return to some form of work over a period of time. On this basis a maximum allowance of some $72,000.00 would be appropriate, including superannuation and allowing for vicissitudes.
I turn then, to consider Mr Clifton's likely career path but for his injuries, and the earnings it is likely he would otherwise have derived over the balance of his working life.
I am satisfied that from about the middle of 2005 Mr Clifton would have gone into business with his uncle. There would no doubt have been a graduated start up of the business and he could not have expected to earn immediately as much as he had been earning with Mr Phillips the previous year. As he matured and the demands of family responsibilities developed, I am satisfied that Mr Clifton would have achieved a pattern of full-time employment on a regular and consistent basis, earning income at around a similar rate to the multi-skilled bricklayers that Mr Phillips now employs at a rate of the order of $800.00 a week net. He would have continued in that or similar heavy manual work till about the age of 50. Thereafter, particularly as his children became adults, he would probably have worked less strenuously and less assiduously, such that his net weekly earnings till retirement at the probable age of 67 would have been lower.
The amount of the award of damages for future economic loss that would have been sustained by Mr Clifton would in the ordinary course be adjusted by reference to an 85% possibility that the events concerned might have occurred but for his injury. However, having regard to the additional factors, specific to him, referred to above, I find that the amount of the award should be adjusted by reference only to an 80% possibility. The discount for vicissitudes will therefore be 20% rather than the usual 15%.
Having regard to my findings above as to the medical evidence and the impact of the accident on Mr Clifton, I am satisfied that he has been totally incapable of gainful employment since the accident and this situation will continue into the future. There is a small chance that if he undergoes a detoxification program in respect of his opiate dependence on medication, in conjunction with an appropriate pain management program and ongoing psychiatric counselling, he may recover some residual earning capacity in the future and for the balance of his working life, but only to a limited extent. In my view, however, the plaintiff will never recover more than 20% of his future earning capacity.
Applying these considerations, I generally accept the approach for which the plaintiff contends as to the calculation of past economic loss, being an average of his capacity to earn in 2005 and the earnings of bricklayers currently in the employment of Mr Phillips, discounted for the factors discussed. However, in my view a fairer discount to reflect the additional matters to which I have adverted is 25%. The calculation to the present time is:
209 weeks x $625 net = $130,625.00 reduced by 25% = $97,968.75
To this amount superannuation should be added at 11% of net being $10,776.56, giving a total of $108,745.31.
I therefore find that Mr Clifton has suffered past economic loss in a total amount of $108,745.31.
For the future, I calculate his lost earning capacity as follows:
32 years (845.0) x 80% of $800 ($640.00) = $540,800.00 Less deferred for 5 years (.784) = $423,987.20 $609,187.20
To this amount should be added $53,608.47 for superannuation, giving a total for future economic loss of $540,958.23.
I therefore find that Mr Clifton has suffered a future loss of earning capacity in a total amount of $540,958.23.
Domestic care 113. The plaintiff's claim for past care is based on Ms Sweetman's evidence that she spent more than 40 hours a week attending to those matters previously undertaken by Mr Clifton, such as mowing, collecting and chopping wood, performing household and other outdoor tasks, and in addition, driving him wherever he needed to go, in particular to all of his medical appointments and treatment commitments. There is further support for the claim in the report of the occupational therapist.
The hourly rate for the provision of care was agreed at $22. The plaintiff's claim was, therefore:
The defendant's first contention was that the evidence did not establish a need for care in the past that would satisfy the threshold requirement of 6 hours per week. It was submitted that Mr Clifton is fit to use a ride on mower and that the driving required of Ms Sweetman was less extensive than claimed. Having regard to my findings about Mr Clifton, and the evidence of Ms Sweetman, I am satisfied that there has been a weekly need for assistance exceeding 40 hours.
I therefore find that Mr Clifton is entitled to compensation for past care in a total amount of $183,920.00.
Turning to the future, the plaintiff's claim is calculated as follows:
$23 x 14 hours per week x 55 years (996.4) = $320,840.80
The 14 hours relates to ongoing driving needs, massaging, laundry and meals. There is support for such a level of care in the reports of Dr Buckley and Ms Abel. Viewed as a whole, an allowance of 14 hours is in my view reasonable, at least for the next 5 years. However, having regard to the prospect of Mr Clifton undergoing a detoxification program, and having regular pain management and psychiatric counselling, I am not persuaded that is a permanent requirement.
In my view, a close reading of Dr Klug's most recent report suggests that Mr Clifton's phobia for car travel is both mild and an outcome of his generalised anxiety disorder. It is also clear that the episodic vertigo is no longer a post-concussive symptom, but is also psychogenically determined. I am not satisfied that his present inability to drive will not resolve in conjunction with a detoxification program and psychiatric counselling.
In my assessment a more appropriate allowance for future care, after an initial 5 year period, is 10 hours a week averaged over the balance of the plaintiff's lifetime. The calculations are:
$23 x 14 hours per week x 5 years (231.5) = $74,543.00
$23 x 10 hours per week x 50 years (976.2) = $224,526.00 Less deferred for 5 years (.784) = $176,028.38 $250,571.38
I therefore find that Mr Clifton is entitled to compensation for future care in a total amount of $250,571.38.
Travel costs 122. The plaintiff makes a claim for past and future travel costs, particularised in his Further Amended Statement of Particulars in a total amount of $15,843.76.
Future expenses (non-medical) 126. The plaintiff's next claim is for future expenses of a non-medical nature. He claims for firewood ($16,769.41), lawn-mowing ($40,234.63) and equipment and home modifications ($11,198.74), a total of $68,202.00. The claims for firewood and mowing are clearly established by the evidence and the need for them is established by the findings I have already made. It remains only to consider whether the amounts are appropriate. The other claim presents some difficulties to which I will come.
5 tonnes a year x $175.00 = $16.83 per week Allowed for 55 years (996.4) = $16,769.41
20 times a year x $105.00 = $40.38 per week. Allowed for 55 years (996.4) = $40,234.63
Future medical treatment and pharmaceuticals 132. The final head of damages requiring consideration is future medical treatment and pharmaceutical costs. The plaintiff puts his claim into several categories: medical care, physiotherapy, pain management, psychiatric counselling, and pharmaceuticals.
The first part of the claim relates to expenses for visits to the general practitioner, pain management and physiotherapy. The details are set out in the Further Amended Statement of Particulars. The cost over the plaintiff's expected lifetime is calculated as follows:
$206.03 per week for 55 years (996.4) = $205,288.29
Upon analysis, the claim is consistent with my findings and is supported by the evidence. I consider it reasonable.
The second part of the claim is for psychiatric counselling. A conservative global claim of $5,000.00 is made, and on the basis of my findings the amount is unquestionably reasonable.
More difficult to assess is the claim for the cost of future pharmaceutical, made in a total amount of $39,937.29. The estimated weekly cost of the drug regime recommended by Dr Matthews is $65.07. Senior Counsel submitted that "it is hoped, rather than anticipated, that this polypharmy will decrease as the pain management program and psychiatric care take effect over the next 5 years".
The claim is therefore structured on the basis of need at the full weekly rate for the first 5 years reducing to $32.50 for the balance of the plaintiff's life ($24,873.58).
$65.07 per week for 5 years (231.5) = $15,063.71 $32.50 per week for 50 years (976.2) = $31,726.50 Deferred for 5 years (0.784) = $24,873.58 $39,937.29
Viewed this way, in my view the claim is consistent with the views I have expressed and the findings I have made, and is reasonable.
I therefore find that Mr Clifton is entitled to compensation for future medical and pharmaceutical expenses in a total amount of $250,225.58.
I come then to the overall calculation of the total damages.
Total damages 139. The calculations as to the damages are set out in the Table below. The table sets out the individual heads of damages as I have found them, in summary form, having regard to the total amounts for each.
Table Heads of Damage Amount Past out-of-pocket expenses $ 18,611.95 Past economic loss (including superannuation) $ 108,745.31 Future economic loss (including superannuation) $ 540,958.23 Past care $ 183,920.00 Future care $ 250,571.38 Travel costs $ 12,400.00 Future expenses (non-medical) $ 65,428.26 Future medical and pharmaceutical expenses $ 250,225.58 Non-economic loss Not applicable Total damages $1,430,860.50
Disposition 141. There will therefore be a verdict for the plaintiff for the amount of total damages found.
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