Binns v Thomas Borthwick & Sons

[1] MULLINS J: The plaintiff was employed at the defendant's meatworks at Bakers Creek, Mackay when he was exposed to carbon monoxide between 4 and 12 June 2001 ("the incident"). The plaintiff claims to have suffered carbon monoxide poisoning, a chronic organic brain syndrome resulting in a 15% whole body permanent partial disability relating to ongoing cognition difficulties and a 15% whole body permanent partial disability relating to behavioural difficulties and a consequential psychiatric condition (a generalised anxiety disorder). He seeks damages for negligence and/or breach of contract of employment and/or breach of statutory duty.

[2] The defendant admitted in its defence that the plaintiff was exposed to carbon monoxide between 4 and 12 June 2001 and that the exposure to carbon monoxide was caused by the negligence and/or breach of contract and/or breach of statutory duty of the defendant. What is disputed by the defendant is the allegation that the plaintiff was exposed to high levels of carbon monoxide and suffered carbon monoxide poisoning as a result. The defendant also disputes the nature and extent of the personal injury which the plaintiff claims to have suffered as a result of the incident.

[3] The plaintiff gave evidence. He called evidence from his wife and from Mr David Peulen, Ms Helen Tanner and Ms Pamela Mills who were fellow workers at the meatworks. Formal evidence explaining why there had not been earlier disclosure of an attendance to obtain legal advice on 15 June 2001 was given by the plaintiff's solicitor Mr Gene Paterson.

[4] The medical witnesses who gave oral evidence for the plaintiff were psychiatrist Professor Basil James, neuropsychologist Mr Louis Salzman, thoracic physician Dr Robert Edwards and neurosurgeon Dr Francis Tomlinson.

[5] The defendant called neurologist Dr John Cameron, psychiatrist Professor Harvey Whiteford, psychologist Dervla Loughnane, job placement consultant Paul Gablonski and neurologist Dr Alison Reid.

Plaintiff's background

[6] The plaintiff was born in 1959. He left school when he was 13 years old. He worked as a farmhand over the next 5 years with his parents who did seasonal work picking vegetables. From 1979 he worked for 2 years as a dairy supervisor at the Queensland Agricultural College. He then was employed as a potato picker and field hand in the Gatton area for another 2 years. The plaintiff and Mrs Binns moved to Bowen in late 1983 where they worked tomato picking and packing. In the latter part of 1984 they returned to the Gatton area for a period of about 12 months, before returning to Bowen. Both in Gatton and Bowen the plaintiff did farm work. He then obtained seasonal work at the defendant's meatworks at Bowen. He worked as a slaughterman for a number of years. He also obtained work as a night cleaner at the meatworks. When not working at the meatworks, he worked as a farm labourer.

[7] The plaintiff and Mrs Binns moved from Bowen to Sarina in December 1995. The plaintiff obtained work at the meatworks at Bakers Creek as a slaughterman and Mrs Binns obtained work there as a packer. The plaintiff worked continuously at the meatworks as a slaughterman until the meatworks closed down in October 1997. The plaintiff and Mrs Binns then commenced a cleaning business, but when the meatworks reopened in April 1998, they both returned to working at the meatworks.

[8] In 1989 the plaintiff suffered an injury to his left wrist and left elbow as a result of repetitive work practices. He underwent carpel tunnel surgery and an ulnar nerve transplant. He did not work for a number of months. When he returned to work, he ceased working on the slaughter floor and commenced working as a labourer in the boning room. Prior to the incident, the plaintiff had a history of consistent employment.

[9] In early 2001 the plaintiff had been complaining of giddiness, if he turned or stood too quickly. He underwent an MRI scan of his brain and pituitary gland on 14 February 2001 which revealed ectasia of the left vertebral artery. The plaintiff's general medical practitioner, Dr Owczarek, referred him to a neurosurgeon, Dr Baker. The plaintiff had an appointment to see Dr Baker on 15 June 2001.

[10] Immediately prior to 4 June 2001 the plaintiff was working in the boning room when he was required to put the correct lids on cartons of meat packed in cryovac to correspond with what meat was in the carton. The plaintiff was competent in performing this role and got on well with his fellow employees. As of 4 June 2001, the place for performing the plaintiff's task was changed to a cold storage chiller room that had been recently converted from its prior use as a cold storage freezer. The plaintiff was training two employees to do his job.

[11] There was a door to the cold room that gave access to and egress from the cold room for the employees. It was usually closed while they were working. On the western side of the cold room there was another entrance to the load out area that had strips of plastic hung in the doorway to keep the cold air in. There was no window in the cold room. A forklift powered by LPG operated in the cold room. Through a fault in equipment on the forklift, the forklift emitted carbon monoxide. There was a build up of carbon monoxide in the cold room at the end of each day, but the employees including the plaintiff were unaware that this was happening.

[12] After working in the cold room each day, the plaintiff found he developed headaches. He put it down to the extreme cold temperatures. He felt particularly unwell after he finished work on 11 June 2001. He had a bad headache, felt sick in the stomach and was lethargic. He did not eat dinner, but took some Panadol and went straight to bed.

[13] He started work at around 6am on 12 June 2001. By 9am he was suffering from a bad headache. At 10am when the "lap" break was taken to give those who worked in cold areas a break for about 5 minutes, the plaintiff told the foreman that he was feeling really sick and that he felt like he was about to pass out. Mr Peulen confirmed that at this time the plaintiff was complaining of headaches, not feeling well, sore eyes and feeling lethargic and like vomiting. The plaintiff recalled falling over a pallet of lids, getting up and staggering out through the exit door into the palletising room where the quality control officer, Ms Tanner, helped him outside. Mr Peulen was able to confirm that the plaintiff staggered out of the cold room. The plaintiff does not remember anything else until immediately before being attended to by ambulance officers.

[17] The ambulance officers observed the plaintiff to be alert, lying supine on a stretcher and cherry red in colour. His Glasgow Coma Score was 15. His respiratory rate was described as normal and he was observed not to have shortness of breath or abnormal breath sounds. The ambulance officers administered oxygen from 10.56am. He was taken to Mackay Base Hospital where he was seen in the emergency department at 11.30am. On examination he was conscious and rational, but complaining of giddiness and headache and neurological examination revealed no neurological deficit. His COHb (carboxyhaemoglobin) level was 15.5%. (Mr Peulen's COHb level measured at the same time was 17.8% and Ms Clegg's was 19.3%.) The plaintiff was admitted to the medical unit for 100% oxygen to be administered over 24 hours. His COHb levels were monitored again that day at 2.15pm when they had reduced to 5.7% and at 9.19am on 13 June 2001 when they had reduced to 0.9%. The plaintiff was discharged from hospital on 13 June 2001 at around 11am.

[18] The plaintiff completed an application for workers' compensation on 13 June 2001 based on suffering carbon monoxide poisoning.

[19] The plaintiff consulted Dr Owczarek on 15 June 2001 when he was complaining of headache and insomnia.

[20] The plaintiff kept his appointment with Dr Baker on 15 June 2001. Dr Baker confirmed the diagnosis of an ectatic basilar artery fed by a dominant left vertebral artery which he assured the plaintiff did not require treatment and was unlikely to be the cause of the dizziness of which the plaintiff had been complaining earlier in the year. Dr Baker considered that the plaintiff should be treated for fluid in his sphenoid sinus.

[21] On 15 June 2001 the plaintiff and Mrs Binns attended on a solicitor, Mr Naylor, of Macrossan & Amiet to enquire about whether it was worthwhile for the plaintiff to make a claim for damages arising out of the incident. On the basis that the plaintiff informed Mr Naylor that the doctors were suggesting that there would be no permanent consequences from the incident and that the only difficulty he had at the time was with sleeping, Mr Naylor advised that claim would cost him more than it was worth.

[22] When the plaintiff consulted Dr Owczarek again on 18 June 2001 he was complaining of poor appetite and an inability to sleep. The plaintiff was waking at 1am or 2am in the morning. The plaintiff wanted to go back to work and Dr Owczarek provided him with a medical certificate allowing him to return to work on 19 June 2001. On that occasion Dr Owczarek diagnosed a very minor post traumatic stress disorder and expressed the opinion that it would settle.

[48] The plaintiff has continued taking anti-depressant tablets and visits a doctor about once every 3 months for a new prescription. That medication has been successful in addressing the plaintiff's depression. The plaintiff and Mrs Binns have been living off Mrs Binns' wages, since the plaintiff ceased receiving workers' compensation benefits.

[49] Prior to the incident it had been the plaintiff's long term goal to acquire a small farm. That goal was achieved earlier than anticipated when the plaintiff and Mrs Binns purchased a house on 2.2 hectares on the outskirts of Sarina and relocated to that property on 5 June 2004. Mrs Binns made the decision to look for such a property. The property has a number of fruit trees. The plaintiff and Mrs Binns purchased 23 laying fowls, 11 turkeys, 2 cows and some pigs and sheep. Since moving to this property, the plaintiff occupies his day by tending to the fruit trees and the animals. The plaintiff is physically capable of doing the work required on his property to maintain the fruit trees and animals. Mrs Binns sells the eggs to her co-workers. They have sold fruit from their trees at the roadside.

[50] Since the plaintiff ceased working, he has left most of the driving to Mrs Binns. He can drive, though, when it is necessary, although he describes as one of his symptoms that he has lost confidence in driving. Mrs Binns refuses to drive when their boat has to be towed. The plaintiff therefore drives when he takes his boat to go fishing. He stated that he had been fishing three times this year.

[51] The plaintiff's activities are affected by the fact that he does not like many people to be around him. He described how Mrs Binns makes him do things to try and overcome that phobia. Mrs Binns makes the plaintiff accompany her when she goes shopping, even though the plaintiff does not want to do so.

[52] The plaintiff described how since the incident, he has suffered from headaches which come and go. He described that he might go three, four or five days without a headache and that he would then get a headache which might last two or three days. The plaintiff described his continuing symptoms at the time of the trial as headaches, sleep problems, loss of memory and that he still gets nervous around a lot of people. Mrs Binns' observations of the plaintiff confirmed these symptoms.

Whether plaintiff suffered an organic brain injury

[53] Both parties relied on an article entitled "Carbon Monoxide" by Edouard Bastarache obtained from the website www.ceramic-materials.com. The article provides a detailed discussion of the toxicity of the carbon monoxide in ceramics. It contains some information that was accepted by witnesses for both parties. The article stated that, at rest, the elimination half-life of blood carbon monoxide for a subject inhaling oxygen is approximately 20 to 60 minutes. The article set out a table that showed the progressive effects following acute exposure to carbon monoxide by reference to the percentage concentration of COHb. For a concentration of 30% to 40%, the probable effects were described as "Severe headache, nausea, vomiting, muscular weakness, confusion, eye and judgement troubles". For a concentration of 40% to 50%, the probable effects were described as "Convulsions, loss of consciousness". The article also contained a table setting out the probable effects following an acute exposure to carbon monoxide by reference to the parts per million of carbon monoxide. For a concentration of 200ppm, the probable effects were described as "Headache 2 to 3 hours after exposure" and for a concentration of 400ppm were described as "Headache and nausea 1 to 3 hours after exposure".

[54] Although Dr Edwards did not see or examine the plaintiff, he was provided with the test results from the Mackay Base Hospital and estimated that the level of carbon monoxide present at the time the plaintiff collapsed would have been between 30% and 35%. Dr Edwards arrived at a similar result by reference to a graph that estimated the percentage of COHb in the blood by reference to the length of time of exposure to carbon monoxide (in ppm). Dr Edwards expressed the opinion that with that level of carbon monoxide, the plaintiff could have been "quite severely hypoxic", even without losing consciousness.

[55] Dr Tomlinson examined the plaintiff for the purpose of a medico-legal report at the request of the plaintiff's solicitors on 6 April 2004. Dr Tomlinson expressed the opinion that it was "probable" that the plaintiff suffered neurological injury as a result of inhalation of carbon monoxide.

[56] Dr Tomlinson's opinion was strongly influenced by the plaintiff's COHb reading of 15.5% at 12:03pm and his knowledge of the different ways carbon monoxide can selectively affect different types of cells which are vulnerable to intracellular changes caused by carbon monoxide. The following passage in cross-examination was one of many statements made by Dr Tomlinson to similar effect:

"I believe that the effect of this - the level of his carbon monoxide would have interfered with both the delivery of oxygen to his cells and caused intracellular hypoxia which has - which is an ongoing process which has resulted in changes in his - his - reflected by his behaviour in his temporal lobes and amicula (sic) and hippocampus and is consistent with the injury he sustained."

[57] WorkCover requested an independent medical examination and report from Dr Reid. Dr Reid examined the CAT scan of the plaintiff's head performed on 9 April 2002 and described it as normal. The EEG that was done on 13 January 2004 at Dr Reid's request and the MRI scan of the brain done on 29 January 2004 also at Dr Reid's request were also described as normal. Dr Reid's clinical neurological examination of the plaintiff was entirely normal with no objective deficits. Dr Reid expressed the opinion that, based on the historical evidence, the clinical evidence and the results of investigations, there was no evidence that the plaintiff had sustained delayed organic brain damage.

[58] Dr Reid recorded five articles relevant to neurological sequelae in carbon monoxide poisoning as references in her report. Many statements in those articles formed the basis of cross-examination of Dr Reid and Dr Cameron. It was apparent from their responses that each was familiar with the literature and the concept that carbon monoxide can have a direct toxic effect at the cellular level in addition to the effect of hypoxia.

[59] Dr Reid emphasised during cross-examination that she had reached her opinion on the plaintiff by looking at the whole clinical picture and not by focusing on one aspect, such as the plaintiff's COHb level. Dr Reid noted that there was no protracted coma and the plaintiff was alert and cooperative with a Glasgow Coma Scale of 15 before he even started treatment with oxygen, there was the treatment with oxygen. Dr Reid noted further that there was a very unusual clinical course of breakdown and deterioration outside the normal period for delayed problems with carbon monoxide poisoning and that clinical examination and all investigations were normal.

[60] Dr Cameron examined the plaintiff at the request of the defendant on 30 November 2004. Dr Cameron estimated that the plaintiff's percentage saturation level of COHb around the time the plaintiff became distressed was around 30%. On the basis that the half-life of carbon monoxide for a person inhaling oxygen was between 20 to 60 minutes, he conceded that the plaintiff's saturation level of COHb may have been as high as 35%. On the basis of the Queensland Ambulance Service records, Dr Cameron expressed the opinion that it was unlikely the plaintiff had suffered any period of unconsciousness. Because a person who is significantly hypoxic increases the respiratory rate to get more air into his or her lungs, Dr Cameron would have expected the plaintiff to have a much greater rate of respiration than 16 (as found by the ambulance officers), if the plaintiff were significantly hypoxic. Dr Cameron noted that according to the record of observations made of the plaintiff at Mackay Base Hospital, there was no evidence that he had a central neurological disturbance and noted that the plaintiff recovered quickly on oxygen.

[64] Professor James reviewed the plaintiff on 13 January 2005 which was almost 2 years after his first examination of the plaintiff and prepared a report dated 4 February 2005. The plaintiff's account of his major symptoms at that time was similar to that which he gave at the trial. The plaintiff described his mood as being good and attributed it to the relative solitude of his small farm and the lack of pressure from the rural lifestyle. Professor James considered that the plaintiff's symptoms were genuine, but noted the plaintiff seemed disinclined to accept that his symptoms of poor concentration and memory were attributable to anxiety.

[65] In an addendum report dated 7 March 2005, Professor James expressed his opinion on the prognosis of the plaintiff's condition should it be determined as primarily psychiatric in nature that the plaintiff's symptoms should be considered "chronic, and largely indelible". This was on the basis that they had been present for three years and that appropriate psychological intervention had been unsuccessful. Professor James therefore did not consider that further psychological intervention was likely to have a beneficial outcome for the plaintiff, despite expressing an opinion in his first report that there was a reasonable prognosis for the plaintiff to return to work with a carefully planned return to work program and a period of supportive psychotherapy.

[66] At the request of the defendant's solicitors, Professor Whiteford examined the plaintiff on 28 June 2004. Professor Whiteford considered that the plaintiff reported symptoms and displayed signs of clinically significant anxiety that were consistent with a diagnosis of generalised anxiety disorder. Professor Whiteford expressed the opinion that the plaintiff did not have post traumatic stress disorder. Professor Whiteford also considered that the plaintiff could not be diagnosed as having a chronic adjustment disorder as, by definition, such a disorder could not be diagnosed if the symptoms persisted for more than 6 months after the stressor (in this case the exposure to the carbon monoxide) had terminated. Professor Whiteford conceded in oral evidence that his diagnosis of a generalised anxiety disorder was much the same diagnosis as a chronic adjustment disorder with anxiety. Professor Whiteford expressed in his report dated 30 June 2004 the belief that the plaintiff's current symptoms had risen in response to the expectation and perception that he had cognitive impairment or brain damage from the carbon monoxide which had developed as a result of the first specialist he saw, Dr Schneider, telling him that he had cognitive deficits from the carbon monoxide and that had been reinforced over time in other consultations. Professor Whiteford therefore was suggesting that the plaintiff's anxiety had developed in response to the belief that he had carbon monoxide induced brain damage. Professor Whiteford moderated these views when giving oral evidence. It was pointed out to him that the plaintiff was referred to Dr Schneider only after he had suffered the breakdown in early April 2002. Professor Whiteford accepted that the plaintiff's adjustment disorder developed as a result of the incident, but considered it was maintained and exacerbated by the information the plaintiff was given by the various medical personnel on whom he attended and the stress of being involved in this litigation.

[67] The prognosis expressed by Professor Whiteford in his written report was that the anxiety disorder was not permanent and that it would resolve after the legal action had been completed. Professor Whiteford clarified in his oral evidence that, with the stress of the litigation removed, the plaintiff's current level of disability should be able to be improved significantly, if he had the opportunity to avail himself of treatment for his symptoms of anxiety. Professor Whiteford spoke in terms of "a good chance of significant improvement and recovery". Professor Whiteford recommended a treatment program at Toowong Private Hospital that runs for three days each week for a period of four weeks and which involves follow up consultation three, six and twelve months later for one day on each occasion. An alternative suggested by Professor Whiteford was an intensive course of treatment with a psychologist in Mackay daily over a period of six weeks. Professor Whiteford stated that in his experience programs of either type would result in 70% of those who undertook them responding positively to the treatment. Professor Whiteford also expressed concern that the plaintiff was comfortable and content in living and working on his small farm which would make it harder for the plaintiff to return to making the effort of working outside his own property. Professor Whiteford acknowledged in cross-examination that it would be hard for the plaintiff to respond positively to further treatment in that the plaintiff appeared to find it difficult to accept explanations of symptoms in psychological terms and understand those concepts.

[68] Professor James provided a report dated 8 March 2005 in which he differed from Professor Whiteford on whether the plaintiff's incapacity would resolve, when the legal action was completed. Professor James relied on the "longitudinal course" of the plaintiff's symptoms as being consistent with being caused by and attributable to the incident rather than to the medico-legal process. Professor James therefore considered that it was most unlikely that the symptoms would resolve after the legal process was completed.

[69] In considering the opinions expressed by Professors James and Whiteford and the written reports of the other psychiatrists and many psychologists who had examined or assessed the plaintiff, it was helpful to have had the opportunity of observing the plaintiff during the course of his giving evidence. The plaintiff was clearly anxious whilst giving evidence. During cross-examination, when Mr Campbell of counsel was asking him about specific attendances on his lawyers and some of the doctors, the plaintiff started responding "I can't remember" to a number of questions. When he was being asked about the difference in detail between the draft of his quantum statement and that which he signed, the following exchange took place:

"Why didn't you?-- I don't know? I'm afraid the questions you're asking me I don't remember. I mean, I don't even remember what I had for breakfast this morning.

Yes. Now, are you going to be able to answer any further questions from me?-- No, probably not.

-----you're just going to say, "You don't remember"?-- No.

I see?-- I'm trying to be as helpful as I can but I just don't remember."

[70] The plaintiff became tearful and was unable to continue at that stage. Other witnesses were interposed, before the plaintiff was able to return and complete his evidence. In re-examination he described that at the time that he took a break from giving evidence he felt "Just terrible, just felt really nervous" and that he "was emotional and very upset".

[71] Throughout the course of giving his evidence the plaintiff showed that he was frustrated by the changes in him and how that had affected his life since the incident. The plaintiff acknowledged that he had read every medico-legal report that had been produced in respect of him and was confused about what was causing his symptoms. It is consistent with the plaintiff's endeavour to understand what is wrong with him that he has read all the reports about himself. The plaintiff was pessimistic about his prognosis. When the plaintiff was cross-examined about his anti-social behaviour in the sense that he wished to avoid people, the following exchange took place:

"You see, I suggest if you told the doctors about that condition or phobia, it's easily treated. They would recommend that you be treated for it?-- But that's not the only problem.

Right. Your memory problems?-- Yes. My headaches, my lack of sleep. Not just one problem. And I think you know that. You've asked me these questions over and over. I'm sorry, but I'm just getting sick to death of hearing the same things over and over. I'm sorry, but if I can't remember anything-----."

[72] Since the plaintiff's breakdown in early April 2002, there has been a consistency in his reporting the symptoms from which he felt he was suffering to the various medical personnel, whether in connection with this litigation or otherwise. There was independent verification of his suffering from Mrs Binns who impressed as a person who has been most supportive of the plaintiff, but frustrated at the same time about the effects of the plaintiff's suffering on both the plaintiff and herself. After evaluating the evidence, I have no hesitation in accepting that the plaintiff suffered and continues to suffer from the symptoms that he has described from time to time. In this context, Professor Whiteford's optimism for the plaintiff being able to make a full recovery is not borne out by the course of suffering that was revealed by the evidence and the lack of success of the psychological treatment undertaken by the plaintiff. I accept Professor James' prognosis that the plaintiff's anxiety disorder will be permanent and will not resolve on the completion of this litigation. I therefore find that the plaintiff suffered a generalised anxiety disorder as a result of the incident which is permanent. I also find that he suffered from depression as a result of the incident, but that has been successfully controlled by the anti-depressant medication and the relocation to the small farm.

[73] In his oral evidence Professor James expressed the opinion that it was very unlikely that the plaintiff would get back to any sort of employment to which the usual expectations apply. This was because it was beyond the plaintiff to fulfil tasks according to set timetables. Professor James stated that the plaintiff would need to work at his own pace, in his own way and have breaks and days off when he needed them. Professor James considered that the work he did on his small farm was "operating like very good occupational therapy".

[74] Professor Whiteford's opinion expressed in his written report that he believed there would not be any long-term restrictions on the plaintiff's employability was clearly dependent upon the plaintiff's responding positively to further treatment.

[75] The defendant required the plaintiff to undergo a vocational assessment on 18 March 2005. The plaintiff was assessed by Ms Loughnane who was assisted by Mr Gablonski for the labour market analysis included in the vocational assessment report (exhibit 14). The report suggested employment options of sailor and park ranger, because of the interest shown by the plaintiff in those occupations, and also suggested other options consistent with his training, education, interests and experience of farm hand, fruit and vegetable picker, meat worker and butcher. The option of a butcher was on the basis that the plaintiff would require further training and, in all the circumstances, is not a realistic suggestion.

[76] Ms Loughnane had noted in the course of administering the psychological tests to the plaintiff that he was enjoying the current work that he was undertaking on his own farm and he did not seem to have any desire to actually return to the outside workforce, raising the obstacles of his depression and anxiety, memory and concentration problems and his phobia of being around people. Professor Whiteford expressed a similar view.

[77] The plaintiff's anxiety disorder restricts his capacity to engage in paid employment. On the basis of the symptoms that the plaintiff was still suffering at the time of the trial, the plaintiff has no capacity to engage in employment outside his small farm. The plaintiff has a need for further psychological treatment for his anxiety and associated phobias. There is only a chance that such further treatment may improve the plaintiff's capacity for employment.

[78] The defendant calculated the plaintiff's damages for loss of future earning capacity on the basis of three alternative scenarios. The first was that the plaintiff presently had a nil residual earning capacity but would recover his earning capacity in full within 12 months. The second scenario was that the plaintiff's current residual earning capacity enabled him to earn $350 net per week (approximately two-thirds of what he would be able to earn if still employed at the meatworks) and that it would take 3 years for full recovery. The third scenario was that his current residual earning capacity enabled him to earn $250 net per week (under half of what he would be able to earn if still employed at the meatworks) and that it would take 5 years for him to recover. The difficulty with these scenarios is that there was no evidence to support either estimated existing partial residual earning capacity or any of the timeframes for full recovery. At best the scenarios are based on Professor Whiteford's generally optimistic outlook for the plaintiff, if he were to respond positively to further treatment, but even Professor Whiteford did not suggest that the plaintiff retained a presently existing capacity to earn income. Realistically, these scenarios represent what the defendant hopes will happen over time rather than a reflection of the evidence.

[79] To the extent that the defendant's witnesses treated the plaintiff's relocation to the farm as demotivation for him to return to paid work, that disregards the fact that the relocation was undertaken by the plaintiff and Mrs Binns to address the plaintiff's symptoms and has been successful in assisting in the control of his depression.

[80] I find that Professor James' opinion on the future employability of the plaintiff is consistent with the plaintiff's history since the breakdown in early April 2002 and his symptoms at the trial. On analysis, Professor Whiteford's opinion is concerned with the possibility that the present restrictions on the plaintiff's capacity to work in paid employment may change in the future. I therefore consider that I should accept Professor James' opinion on this issue.

[81] Loss of earning capacity should therefore be assessed on the basis that the plaintiff is unemployable in the future, but that calculation should be discounted to reflect the chance that future psychological intervention (or even the effluxion of time) may improve the plaintiff's symptoms to such an extent that he may be able to engage in some paid employment. The discount also needs to take account of the possibility that, irrespective of the incident, the plaintiff may have elected to retire earlier than the usual 65 years of age, in order to pursue the dream of having the small farm. When these additional matters are taken into account with the usual vicissitudes, the discount applied to the calculation of the loss of future earning capacity must be significant. I have decided that a discount of 40% is appropriate in the circumstances.

[82] It was contended on behalf of the plaintiff that an appropriate award for pain, suffering and loss of amenities, if the finding were that there were no organic brain injury, would be the sum of $65,000. Reliance was placed on an assessment by Jones J in Gallagher v Queensland Corrective Services Commission (unreported, Sup Ct (Q), No 1302 of 1995, 30 July 1998) of $60,000 when the plaintiff had developed a stress related condition, as a result of alleged mismanagement at the defendant's prison. The appeal on liability in that matter was successful, so that there was not an actual award for that amount. It was contended on behalf of the defendant that an appropriate award for this head of damages would be the sum of $30,000.

[83] A recent award for a psychiatric condition is found in Hirst v Nominal Defendant [2004] QSC 272. The plaintiff in that case was a police officer who was involved in a motor vehicle accident. He sustained a whiplash injury to his neck which resolved in a few months, but developed a post traumatic stress disorder that resulted in his retiring from the police force 16 years earlier than he would have otherwise been obliged to. The psychiatric condition, though triggered by the accident, was contributed to by a number of experiences prior to the accident. The assessment for damages for pain, suffering and loss of amenities was $40,000.

[84] In view of my conclusion that the plaintiff has suffered a permanent injury in the nature of a generalised anxiety disorder and has suffered from depression which is controlled, I assess damages for pain, suffering and loss of amenities at $40,000.

[85] There was little difference between the parties in the calculation of past economic loss to the date of trial. The plaintiff's calculation was $77,122.32. The defendant's calculation was $76,649.91. The defendant tendered a calculation of putative earnings to the date of trial (exhibit 20) on which there were handwritten additions made on behalf of the plaintiff to show the plaintiff's calculation. These indicate that the difference between the parties on the calculation of earnings was confined to the calculation of leave paid for the entire pre-trial period. In bringing the calculations that are shown in exhibit 20 up to date, I have redone the calculation for the period shown as 7 September 2004 to 13 April 2005, so that it applies from 7 September 2004 to 1 September 2005. That is a total period of 50 weeks, with an 8 week shutdown period, making a total of 42 weeks' production. On the basis of a total net weekly earnings of $535.70 per week, the total net loss of earnings for 42 weeks is $22,499.40. That makes a total net earnings for the pre-trial period, before leave pay, of $79,742.40. The method of calculation of leave pay by each party results in an estimate only. There is little difference between them. I will use the plaintiff's method of calculation. That results in the putative earnings of the plaintiff from 9 April 2002 to the date of judgment being $88,389.45.

[86] The significant difference between the parties is on whether a discount should be applied to the calculation of past economic loss to reflect contingencies such as domestic accidents/unrelated illnesses etc. The defendant also brings into account under this heading the sum of $1,200 which the plaintiff has estimated as income earned by his wife and him in the period of 6 months prior to the trial from produce sales from his property. As this amount was included in the plaintiff's quantum statement (exhibit 6), it is appropriate to make an allowance for the plaintiff's half of that income.

[87] During submissions Mr Clifford of Queen's Counsel who appeared with Mr Crow of Counsel for the plaintiff conceded that, in the circumstances, it would be appropriate to discount past economic loss for contingencies that could have otherwise affected the plaintiff's income, but for the incident, in the pre-trial period. I accept that a discount of 10% should be applied. I therefore calculate past economic loss as $79,000. The calculation of interest on past economic loss has to take into account that the plaintiff received the sum of $41,166.61 net by way of compensation payments until 3 March 2004. The interest should therefore be calculated at 5% per annum for 1.5 years on the sum of $37,833.39 which is the sum of $2,837.50. The parties submitted slightly different figures for the Fox v Wood factor. I will use the defendant's figure of $9,120.

[88] This was calculated by the plaintiff at 9% and by the defendant at 8%. As the relevant figure for most of that period was 9%, that is the percentage that should be applied for this calculation.

[89] The parties differed as to what net weekly sum should be used for the calculation of loss of future earning capacity. The plaintiff had stated in his quantum statement (exhibit 6) that if he were presently working as a labourer in the meatworks, he believed that his income would be not less than $550 net per week. He was not challenged on that calculation. It appears that estimate took into account overtime, but did not take into account that for at least 2 weeks of the year, the plaintiff would not have received any income due to the shutdown. Allowing for 3/4 hour for overtime each day, applying the current tax scales and allowing for 2 weeks per year without pay still makes $550 net per week an appropriate figure to use for calculating future economic loss.

[91] It was common ground that the special damages that had been paid by WorkCover were $17,558.36. It was also agreed that the refund to CRS was $3,301.20. There was agreement that the special damages paid by the plaintiff were $1,294.08. The plaintiff is entitled to interest on the special damages paid by him. I have used the method of calculation for that interest that was used by the defendant, as that takes into account that some of the medical expenses that were paid by the plaintiff have to be the subject of a refund to the Health Insurance Commission.

[92] An allowance needs to be made for the cost of future psychological treatment to assist the plaintiff in dealing with his anxiety and his phobias. The estimated number of sessions that the plaintiff would require for such treatment is not clear. The estimates range from 30 treatments to 100 treatments. As the latter estimate is related to a concerted program to assist the plaintiff in returning to work which is not required on the basis of the findings that I have made, it makes sense to adopt the defendant's suggested allowance of $12,500 for future psychological treatment that allows for treatment in the range between 30 and 100 treatments at $176 per treatment.

[93] Future visits to the doctor should be calculated on the basis of one visit for every three months at an average cost of $50 per visit. That averages to $3.85 per week. On the basis of the plaintiff's current age, he has a life expectancy of approximately 32 years. The cost of those anticipated visits to his doctor should therefore be calculated for the rest of his life, but discounted by 20% for vicissitudes.

[94] The future cost of anti-depressant medication should be calculated on the basis of the anticipated expenditure of $28.60 per month for the remainder of the plaintiff's life. An allowance for vicissitudes should also be made in respect of this calculation.

[95] It was common ground between the parties that the amount of the refund to WorkCover is $67,844.97. The assessment of damages can be summarised as follows:

[96] It follows that the defendant should be ordered to pay the plaintiff the sum of $333,680.20. I will hear submissions from the parties on the question of costs.