Weightman v Noosa Shire Council & Ors [2001] QSC 300

[2] The only matter outstanding for determination is one of the quantum of damages which the plaintiff is entitled to recover, all matters of liability, including the liability of the third and fourth parties, having been resolved.

[3] The plaintiff was assisting in the construction of a concrete dish drain into a stormwater pit. He was run over by a large grader being driven at the site by another employee of the defendant, one James Alfred Rule. The grader ran over his left ankle, thigh and lower abdomen, the plaintiff being pinned on his back for some time. As a result of the accident, the plaintiff claims to have sustained orthopaedic and psychiatric injuries as follows:

(c) crush type injury to the lower limb involving compound fractures to his talus and a fracture dislocation of his fourth and fifth metacarpals at the level of the metacarpal cuneiform joint;

(h) depression and post traumatic stress disorder (PTSD); and

[4] The plaintiff was treated at the Nambour General Hospital on 5 December 1991 for a fracture of the talus, dislocation of the 4th/5th metatarsals and a fracture of the 4th metatarsal. He underwent surgery for open reduction and internal fixation of the left talus fracture. Subsequently he attended hospital with a large necrotic area on the anterior left thigh and an infected haematoma. He had surgery for incision and drainage of the haematoma. He had further surgery for further debridement. Later, the plaintiff underwent left subtalar fusion.

[5] Dr Toft, an orthopaedic surgeon, examined the plaintiff on 7 January 1999. In his report of 8 January 1999, Dr Toft noted that a formal arthrodesis of the mid tarsal joints might be required due to further disability developing with the passage of time due to degenerative changes in these joints. Dr Toft rejected the view that the plaintiff's back disability resulted solely from injuries and physical stresses arising from his accident, instead considering that "the effects of the accident would have caused an aggravation and acceleration of his lumbar degenerative condition to the extent of 10% of his current degree of disability". Dr Toft referred to a noticeable limp on the left leg and stated:

"... I would estimate the total impairment of the left lower limb due to the ankle and foot injuries as being 15% of the lower extremity (including the subtalar fusion) or 6% of the whole person ... Pre-existing degenerative change would be expected in a man of his age and occupation. I would estimate that he would have approximately 2% impairment of the left lower limb of 1% of the whole person....He has a permanent impairment of the left thigh due to the haematoma and its consequences. There is a significant cosmetic disability and some permanent loss of muscle strength as well as numbness. I would estimate that the loss of muscle strength would constitute 4% impairment of the lower extremity, or 2% of the whole person."

[6] Dr Winstanley, an orthopaedic surgeon, examined the plaintiff on 5 November 1992. In his report of 9 November 1992, Dr Winstanley noted that the plaintiff's main symptomatology related to his lumber spine and ankle area and referred to the history of problems associated with his lumbar spine in 1989, for which he had conservative treatment, but did not require time off work. He considered that the lumbar spine discomfort was an aggravation of pre-existing change within his lumbar spine area, and that the symptomatology within his left foot was associated with his significant crush injury. Dr Winstanley stated that the plaintiff had significant disability associated with his injuries which might lead to further disability with the progression of arthritic change, and that the plaintiff was not fit to return to his pre-accident occupation.

[7] Dr Pentis, an orthopaedic surgeon, examined the plaintiff on 24 December 1992, 27 June 1995, and again on 7 December 1999. In his report dated 5 July 1995, Dr Pentis noted:

"...[the plaintiff] has developed degenerative problems in the mid-foot and hind-foot...long-term, there will be further degeneration ... and incapacity in the left foot. Currently it is approximately a 30 to 35% loss of the efficient function of the lower limb on the affected side. He has also had injury to the knee joint ... he may be a candidate for total knee joint replacement in the future...[which if necessary is more than likely] to be due to the fact that he had arthritis, rather than injury related. All that can be said is that the injury may have hastened the time when the total knee joint replacement may be required. The incapacity [to the lower lumbar and cervical spine] is a 5% permanent loss of the efficient function of his spine as a whole".

[8] Subsequently, Dr Pentis noted that the plaintiff might require removal of the fixation devices in his foot, to alleviate pain (costing in the area of $2,000 to $2,500) and stated that the accident had possibly brought the need for a total knee joint replacement operation forward by a period of three to five years (such a procedure costing in the vicinity of $10,000 to $15,000 and requiring physiotherapy thereafter for two to three months).

[9] During his stay in the hospital, the plaintiff was assessed as suffering from post traumatic stress disorder (PTSD). Dr Hutchinson saw the plaintiff on 7 September 1993. In his psychiatric report dated 8 September 1993, he disagreed with the diagnosis of PTSD, instead diagnosing a mild neurotic depression caused by the plaintiff's physical disability and new life stresses, such as his divorce and family problems.

[10] Dr Mulholland, a psychiatrist, examined the plaintiff on 22 May 1996. In his report dated 5 June 1996, Dr Mulholland considered that the plaintiff had a chronic major depressive episode (illness) and an associated chronic PTSD. He noted that the plaintiff was probably mildly depressive as a consequence of his separation from his first wife, but "that his mood had picked up considerably by the time of the accident". Dr Mulholland considered that the depressive illness and the chronic PTSD were the result of the accident. Dr Mulholland estimated that after about two years his condition would plateau out. As regards his chronic pain condition, Dr Mulholland understood this to be mostly the result of general medical causes, but noted that it may to some extent be aggravated by his psychiatric condition. He noted that as most of the plaintiff's chronic pain flowed from his ongoing physical problems, there was "no chance that his depression will be totally resolved but at least it will be improved".

[11] In his report of 3 February 2000, Dr Mulholland considered that the plaintiff's PTSD had resolved. The chronic depressive episode (illness) had partially resolved itself, leaving a chronic low grade depression for which he had continuing antidepressant medication. Dr Mulholland assessed the main reason for the depression as being the plaintiff's chronic physical symptomatology and its frustrations and effects on his life. Dr Mulholland also noted that some of the depressive features were a direct byproduct of the unresolved litigation. He suggested that approximately one-third of the plaintiff's depression would be associated with the incomplete nature of the case and the remaining two-thirds due to direct and indirect effects of the physical problems.

[12] The plaintiff was referred to Dr Bleakley for a pandendoscopy as part of an investigation of upper abdominal pains which had been present since the accident. An endoscopy revealed the plaintiff to be suffering from hiatus hernia and reflux oesophagitis. In his report, Dr Bleakley noted that although hiatus hernia was not usually the result of any specific injury, "any sudden increase in the intra-abdominal pressure such as would have happened when a heavy grader wheel passed on to his abdomen would certainly cause or contribute to the development of hiatus hernia." Dr Bleakley expressed the view that the history of abdominal symptoms commencing soon after the plaintiff's accident supported the possibility that there may be some connection between the accident and the development of his hiatus hernia with subsequent reflux oesophagitis.

[13] On behalf of the plaintiff it was submitted that an award in the sum of $90,000 was appropriate compensation for this head. On behalf of the defendant an award of $60,000 was submitted to be appropriate.

[14] The plaintiff suffered severe orthopaedic injuries, involving a major crush-type injury to his left groin, thigh and lower limb. These injuries required ten attempts at skin grafts as well as a complete fusion of the ankle. He required lengthy periods in hospital and extensive physiotherapy. Having observed him in the witness box, I do not consider that he has exaggerated his disabilities. I accept the plaintiff as a credible witness and accept his evidence as to his disabilities. With respect to the conflicting orthopaedic expert evidence concerning the extent and severity of the injuries suffered, I accept the evidence of Dr Pentis, who assessed the plaintiff as having a 35% loss of efficient function of the lower left limb and 5% in relation to the lumber spine. I also consider that, although there was evidence of pre-existing back problems, requiring episodic medical attention, it appears that the condition was not such as to cause interruption to the plaintiff's employment. As regards psychiatric disability, although the plaintiff had some pre-existing distress problems relating to his marriage break-up, I accept the medical evidence of the plaintiff's PTSD and depression as resulting from the accident. The PSTD appears to have now resolved, although Dr Mulholland suggests there is a need for ongoing referral to a pain clinic. In addition, I consider that the hiatus hernia condition was more likely than not to have been caused by the accident. Although the plaintiff had some prior minor abdominal discomfort, it was not of the nature experienced after the accident. I do not accept however that the hypertension was causally related to the accident. The plaintiff walks with a limp and has some significant scarring. His social activities have been substantially impaired because of his disabilities. In the circumstances, I consider an award in the amount of $75,000 to be appropriate for this head.

[15] On behalf of the plaintiff it was submitted that interest should be awarded on past pain and suffering of $35,000, for 9.5 years at 2% yielding $6,650. The defendant, relying on Serisier Investments Pty Ltd v English [1989] 1 Qd R 678 and Larken MacDonald v Mahoney, unreported, CA 24.6.92, submits that in view of the unexplained delay in the matter proceeding to trial, interest should be allowed only for 6 years. The defendant submits that interest should be allowed on $30,000, less the amount of the permanent partial disability settlement of $29,414.50[1] at 2% for 6 years making $70.26.

[16] I note that proceedings were issued on 31 August 1994. I do not consider there was any unnecessary delay in issuing proceedings in 1994, given the severity of the plaintiff's injuries and the importance of his condition stabilising, with the fusion operation only being undertaken in 1993. The statement of claim was delivered in February 1995 and the defence in July 1995. The plaintiff's first statement of loss and damage was delivered in June 1996. Accordingly, I am not prepared to limit the period over which interest is to be awarded. In April 1997 there was a change of solicitors for the defendant and in November 1997 those solicitors brought proceedings to issue a third party notice, with a defence to the third party proceeding being delivered in June 1998. In February 1998 a fourth party notice was issued, to which an appearance was entered in March 1998. In April 1999 proceedings for the determination of a special case were brought as to the obligation of the fourth party to indemnify the third party. That issue was determined on 14 December 1999. In April 2000 there was a further change of solicitors for the defendant, following which a settlement conference took place. In May 2000 the defendant's solicitors forwarded a signed Request for Trial Date to the plaintiff who forwarded it on to the third and fourth parties. In July 2000 the plaintiff's solicitors brought an application to have the matter entered on the Callover list. In September 2000 there was a change of solicitors for the third party. On 21 September 2000 a Request for Trial dates signed by all the parties was filed. In these circumstances, I do not consider that the plaintiff has been guilty of unreasonable delay in progressing his claim, especially given that the period from April 1997 (when there was a change of solicitors for the defendant) until September 2000, was largely taken up with matters which concerned the defendant and third and fourth parties. Further, I note that the matters of liability of the plaintiff, including contributory negligence, were in dispute after the commencement of the trial, an admission being made following reduction of the third party's liability after the first day of the trial. I consider that interest should be awarded for the full 9.5 year period claimed for by the plaintiff.

[17] I allow interest on $5,585.50, (being $35,000 less the permanent disability entitlements settlement of $29,414.50), at 2% for 9.5 years, making $1,061 (rounded off).

[18] The plaintiff attempted to resume work by returning to light duties. However, he was unable to continue and received medical advice to desist. The plaintiff adopts Helen Coles' evidence which shows that he is unemployable. I accept that evidence, which is supported by other medical evidence (for example that of Dr Pentice) as to his permanent disabilities, and which is also confirmed by his presentation in the witness box. The plaintiff gave evidence (which I accept) that he intended to continue to work until retirement age at 65 years and that he would have applied to progress to be a by-laws officer with the Shire Council. (He had previously worked as a by-laws officer with the Hornsby Shire Council.)

[19] Two reports were compiled by Vincents, one dated 15 February 2001 and one dated 17 April 2001. The first report calculated past and future economic loss on the basis of retirement at 60 years of age and the second report did so on the basis of a retirement age of 65. Each of the reports dealt with two scenarios. Scenario 1 involved calculations on the basis that the plaintiff would have been continuously employed by the Noosa Shire Council until retirement age with the plaintiff's career path having progressed as follows:

[20] Scenario 2 envisaged that the plaintiff would have been continuously employed by the Noosa Shire Council until retirement age with a career path as follows:

[21] In the report of 17 April 2001, past economic loss as calculated to age 65 on scenario 1 yields $179,402 and on the basis of scenario 2 yields $160,966.

[22] On behalf of the plaintiff, it was submitted that a discounting for contingencies (by accepting scenario 2 rather than 1 of the Vincents' report dated 17 April 2001) would suggest a past economic loss of $160,000 as appropriate.

[23] However, on behalf of the defendant it is submitted that the plaintiff's prospects of obtaining a job as a by-laws inspectors were speculative and his chances of obtaining such a position over someone doing a very similar job and/or the person who actually obtained the position were remote. Further, it is said that the plaintiff's back condition would have told against him in terms of continuing to perform heavy labouring tasks and that the prospects of some contingency interfering with the plaintiff's continued earning capacity was high. A discount for contingencies of 25% is contended for by the defendant. It is therefore submitted that using the figures in the Vincents' report, the claim on the basis of scenario 2 should be reduced to $120,000 as the appropriate amount.

[24] Whilst there is medical evidence of prior back complaint by the plaintiff in respect of which the plaintiff sought medical treatment, it appears to have been episodic and I do not find it to have been such as to have precluded the plaintiff from continuing to work. However, some discounting should be imposed to take into account the contingencies which may have interrupted the plaintiff's employment, given, in particular, the plaintiff's pre-existing back condition. I consider in the circumstances that it is appropriate to work on the basis of scenario 2 of the Vincents' report dated 17 April 2001 (as I consider the prospects of progressing to a by-laws inspector of similar position to have been slim), and to discount the figure of $160,966 for past economic loss by 15% to $136,821 (rounded off) to appropriately reflect contingencies.

[25] The parties agree that interest should be awarded at 5% on the amount awarded for past economic loss less $85,336 (being the net statutory benefits received from WorkCover of $28,336 (which I have rounded off) and Social Security benefits agreed at $57,000). On behalf of the plaintiff interest is claimed for a period of 9.5 years. The defendant submits that interest should only be awarded for 6 years.

[26] I consider that interest should be awarded at 5% for the period of 9.5 years on $51,485 (being past economic loss of $136,821 less $85,336). I therefore award interest on $51,485 at 5% for 9.5 years yielding $24,455.

Future Economic Loss and Loss of Earning Capacity

[27] The claim under this head is made to age 65 years. The plaintiff clearly had an excellent work history having had three employers throughout his whole life prior to the Noosa Shire Council. He was at no stage unemployed prior to the accident.

[28] On behalf of the plaintiff, it is submitted that his pre-accident back pain was not significant and that in any event, the plaintiff had good prospects of progressing to be a by-laws officer, which clearly involved lighter work. It is conceded that some discounting for contingencies should occur, but it is said that given the plaintiff's impeccable work history and the fact that there was no contest that he intended to work to age 65, it should be small. In effect, the plaintiff contends that the question of discount is sufficiently addressed by taking the scenario 2 figure in the Vincents' report of $158,461, instead of the scenario 1 figure; ie so that the discounting factor is based on the plaintiff not progressing beyond being a labourer.

[29] The defendant submits that given the plaintiff's prior back condition, the prospect of his reaching age 60 in a manual position was remote and that age 55 was more likely. It is also submitted that the prospects of the plaintiff being redeployed to a clerical job within the council were at best speculative and that a significant discount in the region of 40% should be made on the Vincents' report figure for scenario 2.

[30] In my opinion, although the plaintiff intended to apply to work as a by-laws inspector, his prospects of such employment were slim. Accordingly, it is more appropriate that scenario 2 rather than scenario 1 be used in calculating future economic loss. Having considered the medical expert evidence as to the likelihood of the plaintiff continuing to work until age 65 in a labouring position, I consider that a discount on the figure based on scenario 2 should be made. Given that the plaintiff's previous back condition was likely to become more of an issue as time progressed, I consider that a greater discount than the 15% I have allowed for past economic loss should be made. Although the plaintiff might not have continued to work in a labouring position until age 65, I consider it likely that he would have worked in some capacity until age 65. I consider that a discount of 25% for contingencies should be made on the figure of $158,461, thus yielding $118,846 (rounded off).

[31] A loss of superannuation is claimed by the plaintiff as per the Vincents' report on the basis of scenario 2 to age 65, ie $46,152. There is no breakdown as to what portion is attributable to past and what portion is attributable to future superannuation. I consider it appropriate that the figure of $46,152 be discounted by 20% for contingencies, yielding $36,922 (rounded off).

[32] A claim for special damages totalling $37,147.70 is made as follows:

[33] The defendant agrees to all the items claimed as special damages except for the following:

[34] As regards the claim for expenses of $316.10 relating to the hernia condition, I am prepared to allow this as I consider that the plaintiff has made out a case that this condition was the result of his injuries.

[35] As regards the expenses of $83.15 relating to Dr Cavaye and the expenses of $243.55 relating to the plaintiff's blood pressure, I do not consider that there is sufficient evidence that these are accident related. I disallow those expenses.

[36] I consider it appropriate to allow the claim for the recliner chair and for the lambswool, on the basis that, although some proportion of the public may have such items, in the plaintiff's case they were purchased in order to alleviate his symptoms caused by the accident. I consider that the claim for a ride-on mower should not be allowed.

[37] Accordingly, I disallow $326.70 and allow the claim for $36,821 (rounded off) for special damages.

[38] There is no dispute that the plaintiff is entitled to interest at 5% on expenses of $20,000 for physiotherapy, pharmaceuticals, aids and travelling. However the defendant submits that interest should only be allowed for the period of 6 years and not for 9.5 years as claimed by the plaintiff. I allow the plaintiff's claim for interest at 5% for the period of 9.5 years and award $9,500.

[39] The plaintiff claims for various future medical expenses, including physiotherapy, the possible need for orthotics, and expenses to do with the prospect of orthopaedic surgery to his ankle; e.g. Dr Pentis refers to the possible need to remove fixation devices and Dr Toft refers to possible formal arthrodesis. The plaintiff also currently incurs about $20 monthly for Capadex and will continue to require anti-depressants. For this head the plaintiff makes a global claim of $15,000.

[40] The defendant submits that as regards pharmaceuticals, an adequate allowance would be $20 per month ($4.60 per week) for 22 weeks on the 5% tables, reduced by 30% for contingencies making $2,266.56. As regards surgery, the defendant notes that critical issues are whether the surgery is accident-related and the likelihood of the plaintiff undergoing it, the plaintiff having given no evidence of the likelihood of undergoing surgery. Assuming $10,000 for surgery, to be undertaken in 10 years, the defendant's submissions note the current value as $6,139, which it is contended should be significantly reduced for the prospect of the surgery not being undertaken.

[41] I consider that given the difficulties involved in calculation of this head of damages a global award is appropriate and I allow $10,000.

[42] Ms Helen Coles, an occupational therapist, assessed the plaintiff on 30 November 1999 and in her report of 17 January 2000 concluded that the plaintiff experiences deficiencies in his functional capacities relating to reduced tolerances and measurable capacities, and to his subjective pain experience. She noted that he was limited in his mobility, agility and gross body positioning tolerance and that his gait was impaired, which was likely to place unusual strain on other joints of his left leg and also his spine. Ms Coles stated that the plaintiff could be expected to have had need for assistance, both with personal care and domestic chores, and the care of his children. On discharge from hospital, he could initially have needed a minimum of six to eight hours of assistance daily, later reducing to three hours. Following surgery this need for assistance could have increased again to four to six hours per day, then reduced again to the current level. Ms Coles assessed his current need for domestic assistance at approximately six to eight hours per week on average, more at times of heightened pain. He could have need of assistance with yard, car and house maintenance amounting to about three or four hours per month.

[43] A schedule was compiled setting out the care and assistance provided by her (see exhibit 3). For the period from 5 December 1991 to 7 September 1993, a total of 1,925 hours is specified.

[44] The plaintiff in written submissions initially claimed $92,960 for the period from 8 September 1993 to 8 August 2001. However, in supplementary written submissions, the claim for this period which comprises 2890 days, was modified to one of $77,050. The basis of this claim is that the evidence as shown in exhibit 3 establishes that 2 hours per day of care were provided, making a total of 5780 hours. The plaintiff's claim therefore is 7705 hours at a rate of $10 per hour, ie $77,050.

[45] The defendant agrees that up to 8 September 1993, care should be allowed as per exhibit 3, ie 1,925 hours. Thereafter, instead of the two hours per day claimed, the defendant submits that one hour a day is appropriate; that is 7.66 years x 52 weeks x 7 hours making 2,788 hours. In this regard it is submitted that it should be noted that the plaintiff's evidence varied between estimates of 2 hours a day to ¾ of an hour to 1½ hours for care. The total thus arrived at by the defendant is 4,713 hours, making an allowance of $47,130, which it is said should be rounded down to $47,000.

[46] It appears therefore that it is agreed that from the date of the accident (5 December 1991) to 8 September 1993, a total of 1925 hours of care were provided as per exhibit 3. The area in dispute is in respect of the period from 8 September 1993 to 8 August 2001, for which period the defendant concedes one hour per day of care as opposed to the two hours claimed by the plaintiff.

[47] For the period from the accident to 8 September 1993, I allow $19,250 as agreed by the parties. For the period remaining to trial of 2890 days, I consider that the provision made for care should be on a reducing basis. I consider that for the initial two thirds of that period (1926.6 hours), care should be allowed on the basis of two hours per day, reducing to one hour per day for the balance (963.33 hours). Accordingly, for that period from 9 September 1993 to trial, I allow $48,165 being the total of $38,532 (2 hours x $10 x 1926.6 hours) and $9,633 (1 hour x $10 x 963.33 hours). The total award for past care is therefore $67,415.

[48] The parties agree that interest should be allowed on past gratuitous assistance[2] at 5%, but differ as to whether it should be allowed for 9.5 years or 6 years. I allow interest at 5% for 9.5 years on $67,415, yielding $32,022 (rounded off).

[49] The plaintiff claims future gratuitous assistance at 14 hours per week (2 hours per day) at $15 per hour, making $210 per week, for 23 years to age 78, which on the 3% tables totals $182,868. The plaintiff makes a claim for $15 per hour as the appropriate rate. The plaintiff relies on the Disability Support Workers' Award to support this, not on the basis that that award is applicable here, but rather that it is an indication of the amount payable to a person in commercial employment who does what Mrs Weightman does in accordance with the test set out in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327.

[50] The defendant on the other hand submits that an allowance of 6 hours per week should be made, at a rate of $10 per hour on the 3% table for 22 years making $50,640, which should be discounted by 30% for contingencies, yielding $35,448.

[51] As regards the rate at which future care should be allowed, the defendant provided no adequate argument as to why the figure of $10 per hour was more appropriate than the figure of $15 proposed by the plaintiff. On the basis of the approach in Van Gervan v Fenton, I consider that it is appropriate to allow future care at the rate of $15 per hour. I consider that care should be allowed for 23 years, for 7 hours per week, which on the 3% tables[3] amounts to $91,434 (rounded off).

1. Pain, suffering and loss of amenities $ 75,000.00

11. Interest on past gratuitous assistance $ 32,022.00

[53] Accordingly, I award judgment for the plaintiff against the defendant in the sum of $571,843. I shall hear the parties as to costs.

[1] See for example Mahoney v GEC [1994] 1 Qd R 397.

[2] See Grincelis v House [2000] HCA 42; (2001) 201 CLR 321.

[3] See Mott v FAI [2000] Qd R 34.