McMillan v Kissick & Anor

[2] The plaintiff left school half way through year 11 in Victoria and appears to have had a difficult personal history. He was jailed in Victoria for three months charged with manslaughter when he was aged about 17. The charge arose out of the death of a three month old child of his then girlfriend. He was committed for trial but the prosecution was later withdrawn. He was later admitted to Glenside Clinic, a psychiatric clinic in Adelaide, when he was still a young man, apparently in the context of the break-up of a long term relationship. He stayed there about two weeks.

[3] In January 2000 he broke up with his then girlfriend. He was made the subject of a domestic violence order after he assaulted her. He told a doctor at the Royal Brisbane Hospital that she suffered a carpet burn to her face and bruises on her arms, apparently because of his treatment of her. He had also been the subject of a previous domestic violence order in Victoria.

[4] He also told a doctor at the Royal Brisbane Hospital in January 2000 that two to three years before that date he had had a motor vehicle accident in which he fractured his skull and nose after hitting a tree at 150 kms per hour after a "blackout". He said then he lost consciousness.

[5] The plaintiff was then aged 24 and claimed to have not used marijuana for the past year, to have engaged in binge drinking, but not frequently. He also said then that he had vague suicidal thoughts and had previously lacerated his wrists and taken an overdose. His evidence is that he smoked marijuana when at school but is not aware of having smoked it since, although he says he may have been exposed to it when under the influence of the pain killers he uses because some friends of his may have deluded him into using the substance under the guise that he was smoking normal cigarettes. He thought it possible that some of his friends put marijuana into his cigarettes, but this seems unlikely given the fact that he normally smoked ready made cigarettes. One of the doctors who tested him found a very high level of the active ingredients of marijuana in his blood. That doctor, Dr Chalk, thought that there was "not a hope" of him having ingested it accidentally or through having had it substituted by friends; T194 l8.

[6] In August 2001 he reported to his then general practitioner that he was depressed because of his treatment at work. He also referred to the episode when he was 17 involving his then girlfriend's 15 month old child. He said that he tried unsuccessfully to resuscitate the child and went on to say that "every time I tried to work I get sick again and get abused by the bosses and I get depressed". He said that he could not cope with stress anymore.

[7] He reported problems with his elbow and shoulder to that doctor in November 2001 arising from a work injury to which I shall refer later. By January 2002 he told that doctor that he was very depressed. He was given a prescription for drugs. Counselling was recommended by the doctor who diagnosed him as psychologically unfit for work.

[8] He denied any psychiatric history to Dr Chalk in October 2004. Nor did he mention to Dr Chalk the Victorian domestic violence order.

[9] On 18 June 2002 he told Dr Bruce Martin that his shoulder had not been sore but that he still had pain and his left shoulder felt less free with the result that he could not manage heavy lifting with his left arm as previously.

[10] He has shared a flat with a Mr Anthony Brereton from about June 2002, a month or so before the accident, until the present. Mr Brereton assists Mr McMillan with shopping, cooking, cleaning and washing their premises.

[11] In January 2006 he suffered another motor vehicle accident in northern New South Wales in Mr Brereton's car.

[12] His personal history referred to in a variety of medical and hospital reports also revealed episodes of binge drinking, suicidal feelings, use of marijuana, feelings of depression, laceration of his wrists and the taking of an overdose, all of which caused Dr Bell, a psychiatrist who had reported on his condition, to express the view that he would qualify for an adjustment disorder diagnosis and that he was a person who was prone to decompensate in life and who might have always had problems in obtaining and retaining employment, with personal relationships and drugs.[1] He also appears to have had some criminal history in South Australia.[2]

[13] Before the accident he had a consistent working history, starting with part time work on trawlers when he was young and still at school. His jobs included a variety of types of labouring work, particularly in abattoirs but also including work in a shipyard, as a bricklayer's labourer and in food preparation. He grew up in Victoria and had worked there, in South Australia and in Queensland on Hamilton Island and in Brisbane.

[14] In August 1999 his employment was terminated from one position with an employer in Brisbane, Mitchell Quality Foods, for what appears to have been a relatively minor matter. He retrieved a chicken piece that had fallen to the ground but placed it back with the ordinary pieces of chicken which had not been contaminated in that fashion. He had also been criticised there for an aggressive response and insubordination in the past.

[15] He then, in November 1999, obtained a position at Australian Meat Holdings Pty Ltd at Dinmore in Brisbane in the type of work he preferred, as a slaughterman in an abattoir. He resigned from there in September 2000. During the approximate period of 10 months he worked for AMH at Dinmore he was warned on nine occasions. He was also absent ill on a number of occasions and was warned for excessive absenteeism by letters dated 10 February 2000 and 29 August 2000. Three weeks after the second warning, effectively on 20 September 2000, he resigned. He said that he was sick of the time he was travelling to and from work but also wished to avoid "burning his bridges" with AMH. Obviously, he was concerned not to be terminated in his employment there.

[16] After leaving AMH he then found work on 1 November 2000 at a firm called Pacific Products (International) Pty Ltd in Brisbane, assembling taps. He left there, again after there had been dissatisfaction with his performance at work. He was told in an official warning that his constant irritation of staff had created a situation where the majority of production staff had requested they not be assigned to work with him. Shortly after that letter of 30 March 2001, on 9 April 2001, he ceased work there voluntarily. He had been in that position about five months.

[17] He then, on 12 April 2001, went to work at another abattoir run by a company called Australian Company Choice Pty Ltd. There he worked as a cattle slaughterman and did a wide variety of work up to levels three and four of the relevant Commonwealth award. That award deals with pay rates for slaughtermen at five levels of expertise.

[18] On 4 July 2001 a Mr Nick Carstens at ACC met him with a union delegate, Ms Jane Kerr. He was then given a written warning by ACC in July 2001. He said at the time he was having personal problems in a domestic relationship that was affecting his work. He told one of his superiors at ACC that, after 12 July 2001, he intended to stop work for a while to attend to his problems. On 13 July 2001 he was given a final warning for unsatisfactory attendance. In September 2001 he was told he would remain as a casual employee, although those casual employees who performed well and had a sound attendance record after three months were normally made permanent at that stage.

[19] In November 2001 he complained of suffering a shoulder injury from tearing a muscle in his left shoulder, said to have been caused by some of the repetitive heavy tasks he was performing. The symptoms from that injury persisted during a period of about eight months during which he performed level two duties at the abattoir. He received treatment which helped the condition to improve gradually and which probably would have allowed him to perform level 3 duties from some time in July 2002. He received another official warning from ACC on 20 December 2001 and again on 11 April 2002. Nevertheless he was made a permanent employee from 29 April 2002.

[20] Shortly before the motor vehicle accident he was sent a letter from WorkCover terminating his compensation benefits from 2 July 2002. It was around that time that he had been cleared to perform level 3 duties. That possibility did not eventuate because of the motor vehicle accident on which this action is based.

[21] After his accident on 5 July 2002, he went back to ACC to try to see a colleague on 15 August 2002 and may not have followed the correct procedures for entering and leaving the premises or have worn the correct clothes required for the parts of the premises he visited. That led to an encounter with some of his superiors who asked him to report twice a week if he was given more time off from work by doctors. He was also asked to inform ACC if he was cleared to return to work.

[22] He tried to return to work on 1 October 2002 as part of a return to work program. He was supposed to work for four hours but left after about three hours without then telling his supervisor. One of the managerial staff of ACC, Mr McKenna, visited his flat at Morningside to enquire after him on 4 October 2002. The encounter did not prove productive from either side. Mr McMillan took the visit as a threat, felt disturbed and angry and became agitated and abusive to Mr McKenna. His then solicitors corresponded with ACC on his behalf on 11 October 2002 and there was a later meeting on 16 October 2002 to discuss the possibility of him returning to work, but he was eventually terminated from his position there, it seems at least partly because of the difficulties he posed both before and after the accident with management. No doubt his physical condition after the accident would not have assisted him to remain either.

[23] The accident happened on 5 July 2002 when a four wheel drive vehicle hit Mr McMillan's vehicle from behind causing his head to "whiplash". He reported the accident to police and then visited a Dr Yoong. His main complaint was of soreness over the right lower anterior ribs. A chest x-ray proved normal, but he had continuing pain which Dr Yoong described as pain at the end of the range of movement when he was twisting his torso, more to the right than to the left. In his evidence in this trial he described other symptoms in his neck, shoulder and back than those reported by Dr Yoong. He also said that he coughed up blood, again not something reported on by the doctor.

[24] Since then the main general practitioner he has seen at the same practice as Dr Yoong was a Dr William Gabriel. He has seen other doctors at the same practice, but Dr Gabriel has been his main treating general practitioner.

[25] After the accident he attended a program at a gymnasium quite diligently and was assessed for a return to work program to perform work that, normally, he would have done easily. His evidence was that after attempting that return to work program he returned home feeling ill. Between two and three weeks later, in late 2002 and early 2003, he attempted another return to work program involving packing meat into boxes. He continued to try to do that work for a period of four to five weeks but says that he had persistent pain that he could not handle. He ceased that work and has not worked since then.

[26] He complains of a high level of pain, with stabbing pains in the neck and back for which he sees Dr Gabriel regularly. He takes morphine in the form of MS Contin and Antenex and tries to keep the quantity of the substance that he uses to between 180 micrograms and 240 micrograms per day. That is between three or four tablets of MS Contin a day. The significant concern from this amount of use of the drug is that he has become dependent on it which, in itself, seriously affects his ability to work and live normally.

[27] He finds the drug encourages him to do things he should not do in stressing his body, has trouble in sleeping and has lost, he says, almost 20 kilograms in weight. The evidence of such weight loss is difficult to reconcile with other evidence of his weight before the accident. He finds it difficult to urinate and has constipation.

[28] Two months before the trial he was in another motor vehicle accident in Lismore. That was a single vehicle accident that increased his pain over two weeks. He says that it then reduced to the previous condition from which he suffered. He was involved also in a minor motor vehicle accident in a shopping centre car park which he says occurred after the accident but which he says did not injure him.

[29] He told a number of doctors that he was unable to drive and that he was afraid of driving. He has driven, however, since the accident, taking himself to a local shopping centre and on the trip to northern New South Wales at least. His flatmate said he used to be driven to work over a period of 18 months, twice a week, whenever the plaintiff wanted the use of his car during the day.

[30] He told an occupational therapist in July 2004 that he could take care of himself by showering, dressing, cleaning and cooking when he wished to. He also said he could wash his clothes, shop for groceries but could not carry groceries without aggravating his symptoms. He said then that he only slept four hours a night and did not drive through fear and because of his disability. His driver's licence was, however, suspended in April 2004 for speeding. He says that he has hardly ever driven since the accident but there are four occasions at least on which he has admitted to driving. He also says that he drove his flat mate to work on a handful of occasions since the accident.

[31] He said that he has had difficulties since the accident on the majority of days. He said he tried to attempt riding a bicycle but found it very difficult and has not touched it since. However, on 15 October 2004 he was shown wheeling and riding a bicycle easily if briefly in a videotape. Videotapes taken of him on 20 and 27 July 2004 show him walking to his doctor. He appeared to be walking relatively freely on those occasions and more freely than he did in Court. He appeared to be holding his upper body reasonably still, however, and is also shown rolling his neck and stretching his shoulders sometimes in movements that can be interpreted as pain similar to the pain about which he complains.

[32] On 5 August 2004 he was also shown walking near his home. On 20 October 2004 he was shown walking again, climbing stairs reasonably freely, including taking the last two steps at once. He was also shown sitting in a train, again rubbing his neck, apparently in discomfort on his way to see Dr Chalk.

[33] In respect of that evidence he said that his use of morphine may have allowed him to behave with greater ease then than he can now. He said, however, that if he gets engaged in activities like that even with the use of morphine he suffers badly and often vomits during the period after such exertion. He saw a Dr Nave about that time on 30 November 2004. Dr Nave said that he was "slowly mobile" and undressed very slowly. His walking did not appear to be particularly slow in the video.

[34] The significant continuing problem he has now is the amount of morphine that he takes daily, which it will be difficult to wean him from and which has seriously affected his ability to work.

[35] The inconsistencies in the evidence about how much he was able to drive, his use of marijuana, his coughing up blood after the accident, his weight loss, his ability to walk easily and ride a bicycle and his failure to reveal his previous psychiatric and criminal history to some of the doctors examining him all affect his credit enough to make me very cautious in accepting much of what he says about his existing abilities. I have to take into account, however, his situation as it is affected by the use of morphine. It may make it easier for him to perform tasks that he should not and may also affect his mental processes and reliability when giving evidence. As Mr Morton submitted he is also "angry with the process" involved in the assessment of damages.

[36] It is significant that the defendants accept that the "major effect of the accident was that, because of the plaintiff's background and psychological makeup he became focused on his pain which assumed chronic proportions resulting in him becoming addicted to prescription narcotics which now significantly hinders his recovery and return to work."[3] In other words, the defendants accept that his dependence on narcotics was caused by a subconscious pain syndrome caused by the accident, but also submit that his perception of pain is influenced by psychological factors and that his evidence is tainted by untruths aimed at inflating his damages claims. I accept that approach and agree that the plaintiff was an unreliable witness. Nevertheless he has suffered significant problems from the accident.

• The effect of his injuries on his current condition;

• How much of his condition is psychiatric rather than physical or caused by an unusual reaction in his nerves;

• Whether he was predisposed to psychiatric problems or otherwise vulnerable to an injury of the type he suffered in any event;

• Whether he was a reliable employee who would have continued in similar employment;

• What his prognosis is particularly in respect of his ability to work.

The effects of his injuries on his current condition

[38] The orthopaedic injuries that assumed most significance from the medical reports were a cervical and upper thoracic ligamentous strain with associated headaches that, normally, one would have accepted could have resolved without affecting his employability completely. Dr O'Sullivan, a consultant neurologist, did not consider he had suffered a permanent neurological impairment. Dr Gabriel, his general practitioner, believed that there may be an organic neurological basis for his pain stemming from " a problem with the nerves"[4] but not one that could be seen on an X-ray. That view was not supported otherwise and I prefer the conclusion of Dr O'Sullivan on that issue.

[39] Dr Gabriel's belief that the plaintiff suffered chronic pain syndrome was supported, however, by Dr Chalk's diagnosis that he suffered from a pain disorder and that he was increasingly dependent on narcotic analgesia. Dr Gabriel was concerned about the amount of morphine that the plaintiff was taking but was not able to wean him from its use himself and was concerned that the plaintiff might suicide without it. The plaintiff was unable to afford to attend a pain clinic for treatment and the consensus was that he would not be assisted by that course.

[40] Dr Nave, an orthopaedic surgeon, assessed the orthopaedic component of his injuries in the region of 5 per cent loss of bodily function and varied that later, after he had seen the videos of the plaintiff, to the view that he may be suffering a 5 per cent loss or a 0 per cent loss. He also said in his original report, from which he did not resile:

"In theory from the orthopaedic point of view alone, the patient may have been fit for some sedentary work or light physical demand level work but he does not have previous experience in that type of employment. However, with optimal control of pain, he may be able to retrain to obtain qualifications in a less labour intensive employment."

[41] It seems more appropriate to me to work on the basis that the plaintiff was suffering a 5 per cent loss of function on that evidence as the video evidence was not, on my assessment, compellingly different from the plaintiff's evidence of the effect of his disabilities on him, especially when he was using morphine. It is also relevant that physiotherapist who treated him found that he had a protective muscle spasm that was worst in the thoracic spine and which could not be faked on Dr Gabriel's evidence.

[42] The main issue on this aspect of the case related to the possibility of appropriate treatment at a methadone clinic being used to wean him from narcotic dependency using psychiatric treatment and monitoring. Dr Chalk believed he had a significantly better than 50 per cent chance of succeeding in such a program if he were committed to it and that his previous good work history suggested that he had the persistence to do quite well in such a program.[5] If he did succeed he believed he would be able to return to remunerative employment in due course.

[43] Dr Bell also believed that such treatment would have a good prospect of reducing the plaintiff's dependence on analgesics and of assisting him to get back to work from the psychiatric point of view.[6]

[44] The overall effect of the psychiatric evidence was, as Dr Bell agreed, that the plaintiff was a person who was prone to decompensate in life and who might have always had problems in obtaining and retaining employment, with personal relationships and drugs. Dr Chalk's evidence was similar.[7] He also noted the number of issues about which the plaintiff had been untruthful to him and concluded that he was likely to have had continued episodes of depression, problematic future employment and that he may well have become drug dependent in any event.

[45] The evidence on this issue which I have addressed earlier was that he seems to have been an energetic and effective worker but to have had a difficult personality, unlikely to have endeared himself to management or, even, many of his fellow workers. His presentation as a witness reflected some of those traits as he was both unnecessarily defensive and aggressive at times, perhaps reflecting some of the communication difficulties common in a courtroom and in someone of his limited education.

[46] Mr Morton, however, submitted validly that it would not be uncommon for successful slaughtermen to share some of those personality traits. Mr McMillan's difficult personal history and his varied and rather tempestuous working history suggest, however, that his future career would have had significant problems from time to time in any event, quite apart from the effects of the accident. In his favour is the fact that he liked work and persisted in seeking and obtaining employment.

[47] It is difficult to predict what would have happened to the plaintiff in the absence of the accident and what may happen to him if he undergoes the recommended course of treatment at a methadone clinic.

[48] In my view, but for the accident, he would probably have continued in employment but in a variety of positions for a variety of employers. It is also likely that he would have been unable to work for some significant periods during his life in any event because of his psychological problems and difficult personality. Those problems may well have produced similar problems of drug dependency and inability to work or sustain relationships in any event. In Dr Chalk's view, his personality was such that these sorts of problems were not precipitated by the accident but already affected the plaintiff. That seems to me to be correct. In the circumstances it is my view that the assessment of damages suffered by the plaintiff because of the accident must be reduced significantly because of his pre-existing condition.

[49] The evidence that treatment at a methadone clinic may help him back to work permits some optimism about his future prospects but the prolonged period that he has been away from work already and the reasons for that absence are likely to make him far less employable than would otherwise have been the case. If he is asked for the reasons why he has been away from work for five years or more, the story he has to tell of injury in a motor vehicle accident followed by narcotic dependency, even if he weans himself off the use of morphine, is unlikely to appeal to many prospective employers. It is with those general considerations in mind that I shall address the various components of the damages claimed.

[50] The plaintiff's physical injuries were not, objectively, in the worst category but he has clearly suffered real pain for a long time and developed a narcotic dependency that creates great difficulties for him, including depression, anxiety and significant restrictions in his day to day activities. He believes he is permanently incapacitated and lives in reduced circumstances because of his problems. Depending on the effect of the recommended treatment at a methadone clinic he is likely to suffer significant problems of this nature for the foreseeable future. Even if he is weaned off narcotics he will probably continue to suffer some pain.

[51] The submissions in respect of this head of damages ranged between $40,000.00 and $65,000. In my view an appropriate award, given the significance of the effects of the accident on the plaintiff, is $60,000.00, half of which I would apportion to past loss over the last 4.12 years. The interest on the past loss assessed at 2 per cent for 4.12 years is $2,472.00

[52] The defendants submitted that an appropriate figure to use to calculate the plaintiff's past economic loss was an average figure of $440.00 per week, increased from but based on his previous average earnings as disclosed in his tax returns, discounted by 20 per cent for the predisposition to decompensation or psychological problems referred to by Dr Bell and Dr Chalk and possible continuing problems with the injury to his shoulder which had practically resolved itself before the car accident. There was little reliable evidence about any likely continuing effects of his shoulder injury.

[53] Mr Morton submitted that his past loss was more appropriately calculated by reference to comparable employees at ACC at an average of $612.00 per week. Even if he did not continue working there he submitted it was a reasonable measure of his past economic loss for work for which he was qualified and experienced. There is a good deal of merit in adopting those figures as a starting point. The period from his accident until the date of this assessment is 215 weeks. The figure of $612.00 does not include any allowance for overtime work but nor does it contain an allowance for the periods the plaintiff was not working between jobs in the past or take account of the risks of decompensation referred to above. In my view an appropriate award for past economic loss would be one based on the wages of comparable employees but discounted by 15 per cent to take into account the risks that the plaintiff would have had problems affecting his ability to work independently of the injuries he had suffered. That figure is $111,843.00. Because of the plaintiff's relative youth I see no need to discount that figure further for the other vicissitudes of life that may have affected his employability during this period.

[54] The amount on which interest should be allowed is $50,409.00, being $111,843.00 less $61,434 agreed to have been received from the Department of Social Security and WorkCover.

[55] This figure is assessed at 9 per cent of the past loss to reach a figure of $10,065.87.

[56] I propose to commence from the same figure of $612 per week in respect of the calculation of the plaintiff's future loss but to discount the amount not only for the risks from the conditions which the plaintiff already suffered, but also for the general vicissitudes of life, commonly assessed as a 15 per cent discount, coupled with the chance that he will successfully regain some capacity for employment by undergoing treatment through a methadone program. It is impossible to be precise about the approach. Mr Reid suggested a number of possible approaches, partly in reliance on Dr Chalk's view that the plaintiff had a significantly better than 50 per cent chance of succeeding in such a program That does not necessarily translate into such a chance of regaining employment, however, and I am rather less sanguine about the plaintiff's prospects of regaining employment even if he succeeds in such a programme. In my view an appropriate overall discount on the plaintiff's future loss to the age of 65 is approximately 40 per cent, which gives a figure for future loss of $317,995.20.[8]

[57] Again I have calculated this at 9 per cent of the future loss of earning capacity.

[58] Mr Morton submitted that the plaintiff could need up to 7 hours per week care based on the unchallenged evidence of Mr Hoey. There was, however, evidence from Ms Pearson inconsistent with his needing so much help, and the cross-examination of him and his flatmate made me sceptical that he needed anything like that amount of help at this stage. This was so particularly because of the evidence about his driving, which was likely to have been much more regular and frequent than he admitted initially. The hourly figure claimed is $18, a rate that is not challenged. For the reasons expressed above I believe that any figure should be discounted by 15 per cent to reflect the possibility of the plaintiff decompensating in the last few years in any event. The result is a loss over 215 weeks of what I estimate to be a need for care at the rate of about 2 hours per week for that period, amounting to $6,579.00.

[59] On the assumption that his need for care is likely to decrease if he is treated successfully through a methadone programme and that his needs after the accident were more than now and into the future and because he may have suffered some such problems in any event, it seems appropriate to assess his future loss under this head at approximately 1 hour per week but for approximately 40 years into the future, when he would most likely need such care anyway. That loss of $18 per week over that period amount to $16,524.00.[9]

[60] These are agreed and total $22,919.00 including amounts paid by HIC ($4,737.00), WorkCover ($12,270.80), for travel ($400.00), pharmaceuticals ($442.20) and pursuant to the decision in Fox v Wood ($5,069.00). What is not agreed is whether that figure should be discounted for the risk of decompensation. Consistently with my approach above I believe that a 15 per cent discount should apply leading to a figure of $19,481.15.

[61] Mr Morton submitted that an allowance should be made for future medical treatment both for the methadone programme and for the need for continuing treatment and supervision otherwise. There is sense in that although there is not much evidence on which to base an informed view. The cost of the methadone programme will be in the region of $5,000.00. One also has to take into account the likely need for future pain relief if the methadone program does not work. Mr Morton's submissions were that an extra $15,000.00 should be allowed for future medical treatment on top of the cost of the methadone program and a further $20,000.00 for future pharmaceutical treatment based on already significantly discounted figures for the likely future cost of such treatment. Those figures appear to be reasonable to me given the plaintiff's present condition and the uncertainties about his future.

[62] The total under this head of damages is $40,000.00.

[64] There will be judgment for the plaintiff for $620,560.07. I shall hear further submissions as to costs.

[3] Para. 7 of their written submissions.

[8] $367.20 being 60 per cent of $612.00 by the multiplier of 866 for 34 years to age 65 on the 5 per cent tables.

[9] $18.00 by 918, the multiplier for 40 years on the 5 per cent tables.