Hodge v CSR Limited

Hodge v CSR Limited - [2010] NSWSC 27 - NSWSC 2008 case summary — Zoe

[66]

60 In February 1996 he bumped his right elbow which became swollen and ached. He felt very tired and fatigued at the time. Tests detected the presence of HLA-B27 antigen. The elbow problem caused him to stop work for some months but eventually settled. At that time he also complained that the stiffness and neck pain had continued intermittently over the last three years. 61 In May 2000 he consulted a general practitioner complaining of the neck and back conditions of which he had previously complained. He was referred to the rheumatologist Dr Baume. He told Dr Baume he was getting intermittent attacks mainly in the neck and lumbar spine. The attacks would last about four weeks and occur approximately six monthly. In the last three months he had developed pain in the low lumbar region which had been fairly consistent and involved intermittent shooting pain right down to the ankles. He also complained of increased pain in his neck that seemed to radiate from the left shoulder. 62 Dr Baume diagnosed ankylosing spondylitis based upon his interpretation of radiological evidence. 63 On 3 November 2000 the plaintiff complained to Dr Baume of intermittent neck and back pain associated with up to three hours of early morning stiffness with intermittent radiation of pain down his legs particularly with walking. He was taking Salazopyrin and Naprosyn and told the doctor that if he missed any of these medications he was significantly worse. 64 On 16 September 2003 the plaintiff was referred for these problems to Dr Bak, a rheumatologist who had practiced as such since 2002. The plaintiff acknowledged a history of his parents being affected by osteoarthritis to Dr Bak. 65 The rheumatologists who had previously examined the plaintiff had noted the stiffness in his spine particularly in the lower back. The plaintiff had a marked and observable stiffness in his spine when moving about the court room during the hearing. 66 In 2006 the plaintiff saw Dr Richmond, general practitioner, complaining of fatigue that had come on over a few months. 67 Dr Potter, gave evidence he examined the plaintiff on 25 January 2008. He found the major feature on examination was significant back stiffness chiefly localised to the lower back. He considered the diagnosis rested between ankylosing spondylitis and undifferentiated spondyloarthropathy. 68 Ankylosing spondylitis is an ascending, slowly progressive spinal stiffness in which the vertebrae are fused as a result of bony bridging between them caused by the development of syndesmophytes. The inflammatory process causes pain and in its ultimate form the condition results in the fusing of the entire spine.

[73]

78 The first defendant also submitted the plaintiff suffered from an unrelated concurrent condition, most probably undifferentiated spondyloarthropathy which, of itself, had the potential to become increasingly debilitating and incapacitating. The plaintiff's damages should be significantly reduced to reflect this condition and the underlying degenerative condition each of which impact upon all aspects of the plaintiff's claim and will continue to do so in the future. 79 The plaintiff relied upon evidence of Dr Spittaler that some people have degenerative changes such as the plaintiff but no symptoms, that the plaintiff had been asymptomatic prior to the subject injury and stressed that Dr Spittaler's evidence was that the underlying degenerative condition may have manifested itself in ten years, not would. The plaintiff contended that there should be no reduction in his damages by reason of the underlying degenerative condition. The plaintiff submitted there was no ongoing inflammatory condition or if there was it was capable of being treated. The condition was unpredictable in its course and may be quiescent for periods. 80 In my opinion the plaintiff's current neck and left arm problem are due to further osteophyte formation in the cervical spine. I accept Dr Spittaler's evidence that the disc injury in 2002 has accelerated development of the osteophyte by some years maybe in the order of 10 years. I accept that persons can have severe, but asymptomatic degeneration in their spine though having regard to the work in which the plaintiff engaged it seems to me unlikely that the plaintiff's underlying degenerative condition would have remained symptomless had there been no injury. 81 I also accept that the spondyloarthropathy is a distinct and separate condition and that it, independently of the subject injury may progressively incapacitate the plaintiff to a level exceeding any incapacity resulting from the work injury. There is a possibility that the plaintiff will become totally incapacitated by this condition although there is also the possibility of remission or successful treatment which must be factored in. 82 In my opinion the pre-existing degenerative condition and the spondyloarthropathy give rise to significant adverse contingencies for the plaintiff which must be taken into account when assessing his damages. The plaintiff's likely situation but for injury

[96]

92 The plaintiff claimed, as a one off cost, specialist consultations with a neurosurgeon on four occasions at a total cost of $720. The first defendant submitted that this claim should be rejected as the need for these costs was supported only by the medical evidence of Dr Davis in his report dated 5 September 2006, which report did not explain the need and medically indicated reason for these costs. On the basis it is a "one off" cost and not a recurrent expense I allow this claim at $720. 93 The plaintiff claimed for the cost of a future pain management course, the cost of which was agreed mathematically at $7500. The first defendant submitted this item should not be allowed as the medical evidence did not support the need for it. There is some support from Dr Davis and, it would seem, from Centrelink. The plaintiff said he would undergo a course of pain management if recommended. There is a low possibility that the plaintiff may be advised to and undergo a course of pain management in the future which I compensate at $2000. 94 The plaintiff claimed $22,675 for future surgery, being $25,000 deferred for two years. The first defendant accepted the costs of the surgery at $25,000 but submitted that any sum allowed under this head should be heavily discounted as the surgery may never take place and that in any event any further surgery was most likely brought forward by reason of the alleged accident and the surgery was likely to be deferred for some period. 95 Dr Spittaler gave evidence that the requirement for surgery is based on persisting arm pain and its severity. He said "When I saw Mr Hodge in January of this year [2007] his major problem appeared to be neck pain rather than arm pain. If the arm pain escalates, surgery will be required. I think the likelihood of this is reasonably high, for argument's sake over 50%. That would therefore make it more likely than not. The cost of surgery, specifically a cervical foraminotomy, would be in the order of $20,000 to $25,000 inclusive of practitioners and hospital costs. It is likely that surgery would be required within the next five years."

[112]

112 The plaintiff was working in the Country Comfort Kennel business at the time of the hearing. He was not searching for any other work but said that if a job came up and he could do it he would do it. He had not made any enquiries for work as he thought it would be unfair to start a job and then have to take time off for court. 113 The plaintiff and his father have a great deal of experience in relation to the breeding, training and care of greyhounds. The property at Gooloogong has facilities for many greyhounds and is licensed to accommodate 300 greyhounds and family pets. The plaintiff since, the acquisition of the property, has built further kennels. The facilities are underutilised at present. However It appears to me probable that the business will, in time, become profitable though I am unable to say to what extent or precisely when. 114 It may be the income generated by the business in time will exceed the salary which the plaintiff would have earned as an employed concrete agitator truck driver. It may be the income of the business will be less than that of an employed concrete agitator truck driver and the plaintiff's impairment of earning capacity will cause him financial loss. He may wish to leave the business particularly if it is unsuccessful, in which event it is likely there will be financial loss due to the impairment of his earning capacity. 115 The present net weekly earnings of an employed concrete agitator truck driver are calculated at $930 net per week in the accounting evidence before the Court. 116 The calculation of damages for impairment of future earning capacity in this case involves the weighing of many imponderables and mathematical precision is impossible. In my opinion the appropriate allowance for future impairment of earning capacity is $400 net per week to age 65 less 30 per cent for contingencies being the conventional 15 percent allowance for contingencies and an additional 15 per cent in respect of the pre existing medical conditions earlier discussed. Accordingly the damages under this head are $206,612.

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Judgment (125 paragraphs)

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Cases Cited (9)

Cited By (2)