Hiscox v Woods & Anor [2001] QSC 430

[2] The plaintiff was born on 23 August 1963. In 1983 he completed his apprenticeship as a carpenter and commenced work as a self-employed carpenter and sub-contractor. The plaintiff married in 1988 and has three sons born on 19 December 1990, 10 May 1993 and 30 August 1997.

[3] On 2 May 1994 the plaintiff injured his back doing heavy lifting and suffered from low back pain. A CT scan on 29 September 1994 showed a small disc bulge at L5/S1. On 17 November 1994, Dr Toakley did an interlamina laminectomy and removed a large protruding discal hernia at the L5/S1 level of the plaintiff's spine. He was discharged on 19 November and made a good recovery from this operation.

[4] The plaintiff was advised that as a consequence of the condition of his spine he should not continue in his previous employment. He set about qualifying himself to do less physically demanding work in the building industry. He therefore completed a supervisor's course conducted by the Housing Industry of Australia Association in 1995. In 1995 he commenced an Associate Diploma of Applied Science in Building at the Ithaca TAFE. This was full-time for a year then part-time for three years. In the event he has not completed the course.

[5] In 1996 the plaintiff commenced with Devine Homes, initially without pay and then on a paid basis as a trainee estimator. Towards the end of 1996 he accepted employment with Devine as a house and land coordinator on a gross salary of $45,000 with a $12,600 allowance. At some time during this period he commenced building a house at Mt Tamborine which was occupied by him and his family when the construction, he did much of it himself, was sufficiently advanced for this to occur.

[6] On 7 April 1997, while driving from his home at Mt Tamborine to his work at Devine Homes the plaintiff was run into by the first defendant's vehicle. He had what he described as a whiplash and niggling pain but went to work. Later in the day he saw his general practitioner, Dr Barker, at Victoria Point. Doctor Barker prescribed rest and analgesics. He ordered a CT scan which was carried out on the following day. This indicated mild generalised disc bulging at the L4/5 level with a possible minor compression. The plaintiff's back did not improve and was increasingly troublesome. Doctor Barker referred him to Dr Toakley, a neurosurgeon, who reviewed him on 13 June. Doctor Toakley thought the plaintiff should reduce weight, continue pain relief drugs and be reviewed again.

[7] On 15 June 1997 the plaintiff suffered an onset of acute, disabling back pain. His wife took him to the Gold Coast Hospital, he was kept under observation for some hours before he discharged himself. The plaintiff and his wife arranged to stay at the plaintiff's sisters at Victoria Point in order to be near Dr Barker and saw him on 17 June and again on the 18th. Doctor Barker prescribed Valium, Naprosen and MS Contin and ordered a CT scan which revealed a discal hernia at the L4/5 level. Doctor Toakley subsequently recommended surgery and after authority was obtained from WorkCover Queensland he carried out a decompressive laminectomy and removed a discal hernia at the L4/5 level on 17 July 1997. The plaintiff made slow progress, he developed infected shingles in the distribution of the right lateral cutaneous nerve which added to his woes and interfered with his recovery.

[8] The plaintiff was in severe and disabling pain during this period which was relieved by the drug regime. He developed an adverse reaction to MS Contin although it assisted in dealing with his pain. He was heavily dependant on his wife, who was pregnant with their third child, to do the routine tasks of daily life. He spent some time with his parents at Caloundra to give his wife some respite and returned to the house at Mt Tamborine. It is convenient to note here that ultimately the plaintiff's parents built a house next door so as to be able to provide assistance and support to the plaintiff and his family.

[9] Doctor Toakley reported to WorkCover on the plaintiff's progress in a letter of 25 November 1997. He had last seen the plaintiff on 28 October. Doctor Toakley considered that the plaintiff had made some improvement and was slowly but surely improving. He thought at that stage that the plaintiff could return to sedentary work in jobs not involving bending and lifting.

[10] In early October, the plaintiff was advised he had no job prospects with Devine Homes and on 27 November his employment was terminated and he was paid a redundancy package.

[11] The plaintiff did not improve and Dr Barker again referred him to Dr Toakley who saw him in January 1998. This time Dr Toakley was concerned about the plaintiff's condition and his lack of progress. He arranged for an MRI scan which showed that the plaintiff had peridural scarring with entrapment of the L5 nerve root. Doctor Toakley considered this was the cause of his pain and that there was no indication for further surgery.

[12] Despite physiotherapy, an exercise program, use of a TENS machine and an analgesic regime, the plaintiff's condition did not improve. Doctor Barker referred him to Dr O'Callaghan a specialist in pain management who saw him initially on 3 March 1998. Doctor O'Callaghan was of the view that the plaintiff had a mixture of neuropathic pain and mechanical lower back pain. The results of the MRI scan ordered by

Dr Toakley had not been obtained at that time and Dr O'Callaghan deferred further consideration of the plaintiff's case until they were to hand.

[13] Doctor O'Callaghan saw the plaintiff again on 14 July 1998. He thought the best options would be a caudal epidural steroid injection and some facet joint injections of the lower back. The treatment however did little to relieve the plaintiff's pain.

[14] At the review of 5 November 1999, Dr O'Callaghan considered that the plaintiff was "very depressed" and suffering from an adjustment disorder. He suspect the plaintiff required considerable psychological assistance to manage his ongoing chronic pain. Doctor O'Callaghan contemplated another attempt to relieve the plaintiff's pain by epidural steroid injection and participation in a pain clinic education program.

[15] The plaintiff participated in a back stability assessment program conducted at the Mater Hospital in May 2000. From 5 February to 23 February 2001 he participated in a multi-disciplinary chronic pain management program at the Wesley Hospital. Neither of these programs proved to be of much assistance in dealing with the plaintiff's chronic pain and its consequences.

[16] Doctor Pentis, an orthopedic surgeon, saw the plaintiff on 30 March 1998 for the purpose of a medico legal report. He was of the opinion that the plaintiff had developed scarring and fibrosis following the operation to the L4/5 level on 17 July 1997. Doctor Pentis examined the plaintiff again on 3 May 2001. He thought the plaintiff was settled "as best as he will", that the scarring and fibrosis would remain a long term problem and it was unlikely that further surgical intervention would be of great benefit. Doctor Pentis thought that if the plaintiff was able to work it would be in light, sedentary work not involving lifting, repetitive bending or twisting activities.

[17] Doctor Toakley died during the events being canvassed. Doctor Weidmann, a neuro surgeon, examined the plaintiff on 25 August 2000 for the purposes of a medico legal report. He thought the plaintiff's ongoing symptoms could be partly explained by the significant scarring around the site of the disc herniation but that the consequence demonstrated by the plaintiff was rather greater than the physical signs indicated. He considered that the plaintiff had developed a chronic pain syndrome. The condition was stable and stationary, further attempts at rehabilitation were not likely to be beneficial and future management could best be coordinated through a pain clinic.

[18] Exhibit 72 and 75 are videos, taken without the plaintiff's knowledge, of his activities at times on 15 and 17 August 2000 and 25 and 26 January 2001. The videos show the plaintiff apparently moving more freely than was indicated by his behaviour in the courtroom and than his evidence indicated; although his movements on the videos might fairly be described as guarded. The discrepancy is most notable on the plaintiff's climbing or descending stairs. The discrepancy between the plaintiff's behaviour in the courtroom, his evidence about restrictions on his activities and what is depicted in the videos is not completely disposed of by saying the plaintiff has good days and bad days, although no doubt he does.

[19] The opinions of the experienced health care professionals which are in evidence are necessarily reliant in varying degrees on the plaintiff's account of his capacities. Each of them who was required for cross-examination was rigorously questioned about the plaintiff's account of his capabilities, his presentation and the prospect of the plaintiff overstating his disability.

[20] Doctor Weidmann was the only one to report pain behaviour in terms of symptoms in excess of what might be expected from the physical aspects of the plaintiff's injuries. He thought the plaintiff's activities exhibited in the videos differed from his examination findings but whether it was consistent or inconsistent was "hard to say". In Dr Weidmann's view in cases of abnormal pain behaviour questions arose about whether there was a conscious or subconscious desire to influence an audience. Both categories could co-exist and it was difficult to disentangle them when this occurred.

[21] Mr Stoker, a clinical psychologist, considered that the plaintiff's continuing pain increased his depression, anxiety and anger and that the process enhanced his perceived pain levels. Doctor Chittenden, a psychologist, in the context of apparent disparity between the plaintiff's actual and demonstrated disability stated that in people such as the plaintiff "many psychiatrists would see this as a sort of cry for help". It is convenient to defer further consideration of these particular issues for the moment.

[22] I am satisfied that the plaintiff suffers ongoing disabling back pain because of fibrosis and scarring which impact on a nerve root. This was caused by the operation of 17 July 1997 which was a consequence of the 7 April 1997 accident.

[23] The plaintiff's physical condition has psychological consequences. Although there is some difference between the relevant experts as to its characterisation, there is no doubt that the plaintiff is suffering a major psychological disorder and exhibiting depression, anxiety and anger. This substantially inhibits his capacity to function in the context of his family, employment and generally.

[24] The plaintiff's pain and his psychological condition are interrelated. He is caught up in a self-perpetuating cycle in which the pain, having triggered the psychological condition, interacts with and makes worse the psychological condition. This either increases the plaintiff's perception of pain or decreases his capacity to deal with it.

[25] The plaintiff's psychological condition is a consequence of the 7 April 1997 accident. It was precipitated in the following circumstances. The plaintiff had a good result from the 7 November 1994 operation. He had accepted and was successfully accommodating the restrictions the condition of his back imposed on his capacity to work in the building industry. His qualifications and experience were all in that industry and he enjoyed working in it. He was retraining to a less demanding work profile and had obtained a job with Devine Homes. The plaintiff's marriage was stable; he was happily involved in family, work, the completion of a new home and the development of the garden at Tamborine. He felt in control of his life and that his efforts were being rewarded.

[26] The accident of 7 April 1997 then occurred. The plaintiff suffered severe physical pain and disability particularly after 15 June. The operation of 17 July 1997 was unsuccessful, in fact he is worse off after the operation. This outcome is in stark contrast to what followed the 1994 operation. The plaintiff's earning capacity is much more restricted than was the case after the earlier operation. The plaintiff became and continues to be distressed by his loss of control over his life, financial instability, his inability to support his family and function as he previously had and as he wished to continue doing.

[27] The plaintiff's prognosis appears to be bleak. There is no prospect of spontaneous remission. Further operative intervention is not indicated, epidural injections, participation in a back stability assessment clinic and a multi-disciplinary chronic pain management program have not afforded significant relief. The evidence does not indicate that any other form of intervention offers the prospect of reversing his condition to any significant extent.

[28] The plaintiff's pain needs to be managed with a proper drug regime and counseling. It appears that he continues to use MS Contin because of its powerful pain relief capability, notwithstanding adverse side effects. His overuse of Panadeine Forte at times is potentially dangerous. The plaintiff also needs treatment for his psychological condition involving anti-depressant medication managed by a psychiatrist and psychological counseling. The prospect of this improving the plaintiff's ability to function however is directly related to how effectively his pain can be reduced. As I have indicated the prospects of that are not promising.

[29] Put shortly, the probability is that the plaintiff's future lies in accepting and managing his condition. Although such a regime may reduce the consequences of the 7 April 1997 accident, it is difficult to predict the extent and doubtful that it will effect any marked improvement. Apart from restrictions on his earning capacity the plaintiff will always, to some extent, be dependant on others to do things for him which he would have been able to do himself had the accident of 7 April 1997 not occurred.

[30] I return to the issue of the apparent disparity between the plaintiff's evidence of physical disability, his behaviour in court and the activities depicted in the videos. The position seems to me to be as follows. There is objective physical evidence justifying the plaintiff's complaints of disabling back pain. Attempts to relieve it have failed. The pain and disability have triggered a psychological reaction and set off the cycle referred to earlier. This is accepted by the expert witnesses who have examined the plaintiff, evaluated his account and assessed him.

[31] The plaintiff's condition is permanent and his prognosis bleak. It may well be that there is an element of conscious exaggeration of the effect of his injuries on occasion; for this reason his evidence should be approached with caution. It is however difficult to identify when that occurs and to disentangle it from the consequences of the injury, physical and psychological. These considerations bear on the plaintiff's credibility, but in the end are peripheral to determining the extent of his disability. The whole of the evidence founds the conclusion that the plaintiff is permanently and seriously disabled by the consequences of the 7 April 1997 accident even allowing for the fact that on occasions he may deliberately overstate them.

[32] There is a further matter to be disposed of before turning to the assessment of the plaintiff's damages in terms of the conventional damages headings. The plaintiff suffered disability as a consequence of the 1994 incident which restrict his earning capacity and place him at some risk of future degeneration. The major cause of the plaintiff's disability however is the 7 April 1997 accident. It is the origin of his physical disability, his ongoing pain and of his psychological condition. Bearing these considerations in mind the plaintiff's ongoing disability from the 1994 incident is in my view of the order of 10 to 12 percent. I now turn to the assessment of the plaintiff's damages caused by the 7 April 1997 incident in terms of the conventional headings for the assessment of damages.

[33] Pain, suffering and loss of amenities: On the basis of the considerations canvassed earlier, I allow $65,000

Interest on half at two percent for 4.5 years. $ 2,925

The plaintiff has sought work and exercised his earning capacity to the best of his ability up to trial. He was supported in his efforts by WorkCover and Suncorp, his income protection insurer. As a result of these efforts he obtained employment from 3 February 1998 with Berela Constructions as a contract estimator. This was a temporary position with the prospect of its becoming permanent subject to the company continuing to obtain sufficient work to support it. On the short term basis the plaintiff apparently coped with the work but with varying degrees of difficulty. He manifested signs of pain and needed to constantly change his position. It became more difficult for him to cope. The plaintiff left because of his difficulties in carrying out his work, before his employer terminated his employment. The plaintiff also obtained some intermittent work with Solutions Engineering in the period immediately following this, but this did not last.

The methodology and components of the calculations of lost earnings in exhibit 56, an accountant's report, were not particularly controversial. It takes the plaintiff's entitlements ($45,000 gross salary and $12,600 gross benefits) from Devine Homes to arrive at a figure of $719 per week net. As a matter of calculation this gives an earnings loss to trial of $141,538. Had the plaintiff remained at Devine Homes it is however likely that he would have been retrenched towards the end of 1997 because of the downturn in the building industry, a risk of general application in that industry. In the present case this is appropriately reflected by a 15 percent discount. I allow $120,000.

A deduction must be made for the expenditure involved in exercising his earning capacity which the plaintiff no longer incurred in travelling to and from work; Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 133 ALR 154, Delaney v Shepherd & Shepherd (Unreported Queensland Court of Appeal, [2000] QCA 107). This amounted to $260 per week, which for four years is $59,000, which leaves $61,000 for past economic loss.

The plaintiff received $14,409 from WorkCover and $69,654.57 from Suncorp under an income protection policy. I therefore make no award for interest under this head.

The plaintiff's claim for future economic loss was advanced on the basis of $719 net per week to 65 (27 years) reduced by 40 percent. That is as realistic an approach as any. The base weekly figure is conservative in that it makes no allowance for increases in earnings as a consequence of the plaintiff's progressing to better paid positions during his working life.

The 40 percent reduction is made up of 10 percent for contingencies and 10 percent for the consequences of the first accident. Twenty percent reflects that the plaintiff has some residual earning capacity. The approach gives an unrealistic air of precision to what is essentially an informed estimate. The question of the plaintiff's residual earning capacity is problematic. On the view I take of the evidence he can work intermittently in light work in occupations where he can work at his own pace, be free to take breaks and move around for relief. The extent to which he is able to work will depend on how successfully the plaintiff's pain and psychological condition are managed. He is not likely to be competitive on the open labour market. I allow $300,000 under this head.

[36] Past and future superannuation loss: $29,500

As a consequence of his disabilities caused by the accident of 7 April 1997, the plaintiff was and continues to be dependant on others to perform tasks which he would otherwise have been able to perform unaided. This assistance is provided by his wife and by his parents with a small contribution by his brother. The relevant rates are agreed but the time involved is contentious. The claim is advanced in exhibit 70. The plaintiff, his wife and his mother and father gave evidence in support of it. Exhibit 70 is broken into categories in terms of past and future and the claim for past assistance is divided into categories in terms of domestic assistance, maintenance of the garden and driving to and from appointments. The evidence sustains an allowance of $9,250 up to 31 December 1997 for domestic assistance, indeed I did not understand that to be controversial.

[38] The tables in exhibit 70 give an unrealistic air of precision to the services required to satisfy the plaintiff's needs consequent upon the accident of 7 April 1997. They probably reflect an unduly rigid view of the application to the circumstances of the questions posed in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 at 338. In any event they were not sustained by the evidence. The witnesses did not "come up to proof". The imprecision of the supporting evidence may reflect the effect of the 7 April accident on the plaintiff and his family, as was submitted on the plaintiff's behalf. The fact remains however that he bears the onus of making out his case.

[39] The tables in exhibit 70 in my view overstate the plaintiff's needs in a number of respects. They are prone to equate whatever was done by the plaintiff's wife or parents with the satisfaction of a need of the plaintiff, consequent on the accident. Moreover given that in a domestic environment the plaintiff can work at his own pace and take breaks as he requires them, he can do more for himself and hence is less dependant on others than the tables suggest.

Given his difficulty with driving, it was reasonable for the plaintiff to be driven to and from his medical appointments. It is not, however, reasonable to allow for his being driven from his home at Mt Tamborine to his general practitioner, Dr Barker, at Victoria Point. That the plaintiff would wish to see and be treated by Dr Barker, his long-standing general practitioner is understandable, there were, however, competent general practitioners much closer to his home at Tamborine.

Doing the best I can I allow $18,000 for past care.

The same considerations apply as I have canvassed in respect of past care. I allow $20,000.

[41] Special damages (out of pocket expenses):

These are advanced by exhibit 69 while exhibit 74 reflects a recalculation of the travel expenses at the agreed rate. It is no longer contentious that the component for parking should be $100. The travel expenses have to be adjusted to reflect that it was not reasonable for the plaintiff to travel to see Dr Barker given that other competent general practitioners were in close proximity. I do not accept the submission from the defendant that labour costs claimed in exhibit 69 should be disallowed because the plaintiff's disability as a consequence of his earlier injury would have in any event precluded him doing the work. I therefore allow $9,160 under this head and I also allow $500 for readjustment of the plaintiff's income tax return. I allow $916 for interest.

It is not contentious that the plaintiff is obliged to make the following refunds:

* Fox v Wood in respect of WorkCover claims $4,353.20

In my view the rehabilitation outlay by Suncorp under the plaintiff's income protection policy are not recoverable since they were not benefits payable to the plaintiff, but were paid to professional health care providers either to assess the extent of the plaintiff's disability or an in endeavour to rehabilitate him, hence reducing Suncorp's liability under its policy. They are therefore outside the terms of clause 3 of the policy terms dealing with refund.

These are dealt with in Exhibit 71. The claim for future pharmaceutical expenses of $14,099.16 for future medication is justified by the evidence. It is also reasonable to allow $8,510 for counseling and management. The plaintiff's future treatment otherwise is problematical but I think it is likely, notwithstanding his history, once his condition is being managed by medication and counseling, that he may receive further treatment in the context of a pain clinic or similar. I allow $5,000 in respect of this. I accept the defendant's submission that the evidence does not sustain a claim for assistive devices based on the report of Miss Cantwell, an occupational therapist, beyond $290.72 and I therefore allow $27,899.86 under this head.

1. Pain suffering and loss of amenities $ 65,000.00

2. Loss of earning capacity - to trial $ 61,000.00

4. Superannuation loss past and present $ 29,500.00