Elliott v Spring [2009] QSC 118

[4] There was a time when this issue might have been seen by the parties as critical to the plaintiff's prospects of success in the action. Certainly at the time the two then apprentices who were called as witnesses would have been first asked about it this was the case. At the latest at the time the pleadings were delivered it would have been understood, I can infer, by the plaintiff as being critical also.

[5] The two former apprentices are still employees of the defendant with one of them now being a tradesman.

[6] I formed a positive opinion of the veracity of both the plaintiff on the one hand and the two witnesses on the other hand. It seems to me that the recollection of some witness or witnesses must be faulty. I resolve the matter in accordance with the onus of proof. The plaintiff has not satisfied me on the balance of probabilities that he had lifted the corner cabinet prior to the onset of the acute pain that I have referred to.

[7] The plaintiff was born on 8 December 1963. He was educated to Grade 10 standard.

[8] On leaving school he commenced an apprenticeship as a cabinet maker and joiner and completed that over a period of four years.

[9] Apart from a period when he was employed by a national chain as a kitchen salesman and designer he has been employed as a cabinet maker or carried on business in partnership with his wife in this field.

[10] For almost two years between early 2004 and early 2006 the plaintiff was in receipt of very little income but I accept his evidence that during that time his time was largely devoted to renovating a house which he purchased and which he subsequently sold at a substantial profit. He had borrowed moneys to carry out this work and to support his family. He was living at Port Macquarie at this time.

[11] After selling the property at Port Macquarie in mid 2006 he and his family (his wife and two children) travelled north. There was some issue as to whether he had intended at that time to make Mackay his home as he said in evidence. The family took some four months to come to Queensland making it something of a holiday and arrived in Mackay in about October 2006. I accept the plaintiff's evidence that he intended to settle in Mackay because of the opportunities which it offered.

[12] It appears the plaintiff and his wife home taught the two children during these periods. On arriving in Mackay he found employment with the defendant and had been employed for approximately six weeks or so when he was injured.

[13] I accept the plaintiff's evidence that he had had no symptoms in his lower spine prior to this date and that he has since that time suffered a good deal of pain and discomfort in the lower back with some involvement of both legs particularly the left leg.

[14] The plaintiff was recalled to give evidence after the case was closed and outlined in some details his symptoms since the accident and until the present. There is some suggestion in the evidence of Dr Labrom that he may overstate some of his symptoms but I reject any suggestion that he is a malingerer.

[15] There were a number of specialists called on behalf of each party.

[16] Dr Pentis, an orthopaedic surgeon was called on behalf of the plaintiff and Dr Labrom an orthopaedic surgeon was called on behalf of the defendant. In addition Dr Campbell, a neurosurgeon was called on behalf of the plaintiff and Dr Weidmann also a specialist in this field was called on behalf of the defendant. There were reports of other specialists including two orthopaedic surgeons placed before the court by the defendant. These were Dr Dorgeloh and Dr Shaw who saw the plaintiff at a relatively early stage of proceedings. In addition Dr Larder, a psychiatrist was called on behalf of the plaintiff and Dr Chalk, a psychiatrist was called on behalf of the defendant. The plaintiff has suffered a chronic adjustment disorder but his condition has significantly improved since he has obtained employment.

[17] The plaintiff sought employment as a cabinet maker and other positions following the accident but was not successful. He outlined these in his statement and in his evidence and I accept that he took reasonable steps to seek employment.

[18] His wife was and remains employed by the Salvation Army and the plaintiff obtained employment on 9 March 2009 as a manager of the Salvation Army's Family Store at Mackay. This is relatively light work involving staff training and serving customers. He works for a maximum of 30 hours and earns $450.84 net per week. The terms of his employment refer to overtime and a greater number of hours than the 30 he works but he says that he has only ever worked 30 hours and I think that it is likely that that is what will continue to be the case. I think that his wife's employment played some role in his obtaining employment and I think it is also a reasonable conclusion that there is some degree of empathy or sympathy on the part of the employer in the plaintiff's employment.

[19] Although there are significant differences between the specialists who were called to give evidence there is a good deal of agreement also.

[20] X-Rays and a CT Scan showed the plaintiff had degenerative changes in his lower spine. An MRI taken on the 9th November 2007 showed moderate posterior bulging causing narrowing of the lateral recesses at L2-L3 with a similar degree of bulging at L4-5 level and narrowing of the lateral recesses which could cause L5 symptoms as a result of pressure on the nerve. At L5-S1 there were hypertrophic degenerative changes of the facet joints with narrowing of the lateral recesses which could affect the S1 nerve route.

[21] The degenerative changes are significant and are more extensive than one would expect to find in the average person of the plaintiff's age but I accept the evidence of Dr Weidmann that the changes are not more than might be seen in the average cabinet maker's spine.

[22] It is the opinion of Dr Pentis, Dr Weidmann and Dr Labrom that the plaintiff's current condition is a result of the combined effects of the accident and a pre-existing degenerative condition and each of these contribute equally to that condition.

[23] Dr Pentis thought that the plaintiff had suffered a derangement to the lower disc and that the disc at L2-L3 had been torn and aggravated in the incident.

[24] Dr Campbell whose views differed somewhat from those of the other specialists called thought that the plaintiff's current position was entirely due to the accident and that the degenerative changes played no role in that condition and would not have been likely to have prevented him from working in the future. Dr Campbell is thus at odds somewhat with the other witnesses and I prefer their evidence on this subject.

[25] Dr Labrom expressed the view that the plaintiff had a condition known as facet joint trophism with asymmetry of the facet joint alignment at L4/5 and at L5/S1 as well as other degenerative changes in the lower spine. Dr Labrom specialises in the spine and it appears he has some qualifications and has developed an interest in the biomechanics of the spine. His view is that the plaintiff's condition (facet joint trophism) involves some mal-alignment and asymmetry of the facet joints and that in the same way where a wheel is out of alignment, wear and tear is caused at the joints of the spine which will become at sometime symptomatic and this is what would have happened with the plaintiff and he would have developed significant symptoms between 45 and 55.

[26] Dr Labrom was inclined to emphasis the condition as being of a particular nature which he had a special interest in but which was generally not widely understood and was under diagnosed.

[27] On the other hand Dr Weidmann saw the condition as simply part and parcel of the regularly encountered degenerative processes in the back.

[28] Dr Pentis accepted that the plaintiff has problems in the facet joint and I do not understand him to strongly disagree with the opinion of Dr Labrom that the plaintiff had the condition Dr Labrom refers to. However he had reservations as to whether the plaintiff was pre-destined as Dr Labrom suggests to develop degenerative changes as a result of this condition in the way Dr Labrom suggested.

[29] Dr Pentis's view was that it was not possible to be dogmatic about the biomechanical problems that Dr Labrom refers to in the case of a human being. He referred to research which showed that there does not appear to be any necessary correlation between degeneration in the spine of a person and the presence of trophism in that person's spine from an early age. Most of the work in the biomechanical area is done, he said, on a cadaver or on an animal.

[30] Perhaps more important is the fact that a facet joint injection had been performed on the plaintiff and this, according to Dr Pentis, did not relieve his pain and Dr Pentis suggested that the facet joint abnormality may not be the cause of the plaintiff's current problems as opposed to the discs and the soft tissues which had been injured.

[31] Whilst I am inclined, given his special interest in the area, to accept that the plaintiff has the condition which Dr Labrom speaks of, I am inclined to accept the evidence of Dr Pentis to which I have just referred which suggests that there is a real doubt as to whether the plaintiff was pre-destined to develop the problems as a result of this condition which Dr Labrom suggests. I should emphasise that Dr Labrom was of the view that the condition of the facet joint trophism was not alone the cause of the degenerative back problems.

[32] Nonetheless I accept that the evidence as a whole suggests that the plaintiff would probably have suffered significant symptoms as he got older which would have limited his capacity to work in his trade at some time.

[33] There are imponderables associated with any attempt to make an assessment as to when this might have been. It may have occurred suddenly and at a relatively early time, it may have developed gradually in which case the plaintiff would have had the opportunity to make appropriate adjustments and adaptations to his work and to his work arrangements which may have enabled him to remain working in his trade for a longer period within the developing limitations. There is the possibility that he may have continued to work to the end of a normal working life.

[34] Given the state of the evidence in this case, it seems to me that the court is required to make an appropriate allowance for the likelihood that the plaintiff at sometime during his working life would have developed symptoms in the spine which would have limited his capacity to work and precluded him from working in his trade. In addition the court has to make allowance for the ordinary vicissitudes and contingencies. There also has to be made allowance for the plaintiff's residual earning capacity.

[35] The plaintiff has been assessed by Dr Larder as having a chronic adjustment disorder. There is no dispute between the psychiatrists about this. The plaintiff's psychiatric problems have however significantly improved with his obtaining work and do not now have the serious impact on the plaintiff's life that they previously did. There is always the risk of a relapse particularly in the event the plaintiff lost his employment or as a result of other adverse circumstances. The effect on the plaintiff of the psychiatric condition he suffers from was, I am satisfied, prior to the recent improvement with his re-entering the workforce serious.

[36] He presented as a somewhat sad man and his disabilities appear to weigh heavily upon him.

[37] Dr Labrom expressed the view that the plaintiff was overstating his symptoms to some extent although he accepted that there may be some psychological component to this. I note that Dr Chalk, the psychiatrist called by the defendant spoke of the plaintiff exhibiting some pain behaviour which I understand from the context in which it was referred to as being part and parcel of the psychiatric problems which he suffered from.

[38] As I have said the plaintiff was recalled to give evidence about his symptoms from the time of the accident until the present. I did not form an adverse impression of him and reject any suggestion that he is a malingerer. The degree of pain in his lower back with involvement of his legs, particularly his left leg is substantial and I am satisfied that this has limited his activities generally, something which he finds hard to accept.

[39] So far as general damages are concerned, I assess the plaintiff's general damages at $50,000 and I allow interest at two per cent on $20,000 for 2.42 years using a figure of $968.

[40] The plaintiff was earning approximately $850 per week net with the defendant. There was evidence of the rates of pay which the defendant pays his tradesmen now in a somewhat more difficult market.

[41] The plaintiff gave evidence that he was using a motor vehicle provided by the defendant which he would have been able to use on an ongoing basis and for unlimited purposes. The defendant denied that the plaintiff was entitled to use such a vehicle indefinitely and says that it had been provided only on a temporary basis whilst a vehicle owned by the plaintiff was brought up from the south. There is nothing to suggest that the defendant's employees obtained vehicles and I think that the plaintiff has misunderstood the basis upon which he was allowed to use the vehicle at the time he was injured. I am not persuaded that he should have his damages assessed on the basis that he would have had this on an ongoing basis.

[42] It is a matter of common knowledge that the Mackay region has experienced boom conditions in the period between the time of the plaintiff's accident and the present. The plaintiff has been in employment since 9 March 2009, receiving a little over $450 per week net. I am not satisfied that he has unreasonably failed to seek employment since the accident. Indeed the evidence suggests that he has actively sought employment.

[43] I assess the plaintiff's past economic loss at $100,000.

[44] I allow loss of superannuation on the past loss of income in the sum of $9,000.

[45] So far as interest on past loss of income is concerned, I have evidence of the payments which the plaintiff has received by way of income substitution from WorkCover and Centrelink. These total $42,466.84.

[46] I allow interest at five per cent on the difference, namely $57,535.16 for 2.42 years producing a figure of $6961.74.

[47] The plaintiff has a capacity to work but he is incapable of working in his trade or in any other position which involves heavy tasks such as lifting or bending. There was evidence including evidence from an occupational therapist that the plaintiff would be suitable for light work, that is light work of a full time nature. Helen Coles thought that he would require an employer who would accept his condition. Some of the skills which he has in his trade would be transferable to certain types of light work

[48] Whilst I accept that he must be regarded as capable of some types of full time employment his capacity in this regard should not be overstated as the type of work which he can perform is restricted and would need to match or be tailored to the limitations which his disabilities impose upon him.

[49] His present employment appears to be according to Helen Coles, ideal for his situation. As I have said he seems to be with a sympathetic employer in a place where is wife is also employed.

[50] The plaintiff's calculation is based upon a loss of $600 net per week for 20 years with a discount of 25 percent for contingencies. The defendant on the other hand contends for 20 years at $200 per week with a 30 per cent discount applied.

[51] The plaintiff currently earns some $450 net per week for the part time work he performs and it is suggested that his earning capacity now would probably exceed $1,000 per week had he not been injured.

[52] I think allowance has to be made for a somewhat greater earning capacity than the plaintiff has assumed for the purposes of the calculations placed before me but I think that his recurrent loss is greater than that which the defendant has adopted.

[54] Future loss of superannuation benefits will be allowed at $16,200.

[55] There is a good deal of agreement about all other heads of damages except for two.

[56] Special damages met by WorkCover amount to $12,854.83.

[58] The difference between the parties in relation to the claim for special damages arises because the plaintiff includes a claim for a bed. He says that the bed was necessary to enable him to sleep, his sleep having been greatly impaired since the accident because of the pain he suffered. There is no medical evidence in support of this claim and there is nothing in the evidence which would enable the court to make an assessment of the extent to which the expenditure on the bed exceeded that of a normal bed. I therefore reject the claim and allow the special damages in the sum of $2,300 with interest at $278.30.

[59] The claim for future recurring expenses is also the subject of some dispute. The plaintiff takes substantial quantities of medication and will continue to do so. The psychiatric evidence called for the plaintiff suggests that the plaintiff would benefit from ongoing psychiatric treatment which would cost a substantial sum of money. This is not contended for in the amount claimed by the plaintiff although presumably some allowance is made for some treatment in this regard in the future.

[60] I think that the evidence supports a substantially higher claim than the defendant has allowed although the total can be little more than an assessment of the lump sum figure based upon one's impressions of the plaintiff's ongoing needs. I allow $12,500 under this head.

[62] From this has to be deducted the sum of $46,388.83 producing a figure of $ 351,967.04

[63] I give judgment for the plaintiff against the defendant in the sum of $351,967.04

[64] I will hear the parties as to the question of costs.