MVA: Drs Pentis and Campbell preferred to Drs Fraser and Cameron

Kelly v Glover & Australian Associated Motor Insurers & Smith [2011] QSC 114

Issues: Liability (intoxication and seatbelt) and quantum (previous injuries and poor work history)

The motor vehicle incident occurred on 21 November 1996 and the court proceedings went for 13 years, without an acceptable explanation for the delay. The plaintiff was injured as a passenger when the vehicle swerved so violently to miss a bike in front of it changing direction, and in so doing overturned.  There was some dispute as to whether the first or third defendant was the driver of the vehicle. The dispute arose because the third defendant and the plaintiff had been drinking at a local hotel. The plaintiff claimed not to know who the driver was, but to have relied on the police report. The first defendant nominated himself as the driver, however, subsequently changed his version. There was also some dispute as to whether the plaintiff was wearing a seatbelt.

Cullinane J found the driver to be the third defendant and that the plaintiff knew. However, there was no evidence as to the degree of intoxication and on this basis liability was apportioned 80/20% in favour of the plaintiff. There was no finding against the plaintiff in respect whether a seatbelt was not worn.

As to quantum, the plaintiff was aged 56 at trial. He had a poor work history. During the last 27 years he had not worked for some 18 years. For the 12 years prior to the accident he worked only for some 3 years.  

The plaintiff’s quantum was further complicated by a past motor cycle accident in 1986 having suffered a compression fracture in the thoracic spine, requiring 2 years recuperation, an assault in 1993 requiring surgery to his hand and in 1995, he slipped on a step and sustained an injury to his right wrist. He was not working at the time of the incident. The plaintiff claimed, but for the incident he was ready to return to work.

The plaintiff claimed injuries to his cervical spine, the thoracic spine and his left shoulder, as well as an injury to his lumbar spine. The plaintiff did not disclose to his doctors his earlier 1986 injury and only disclosed it late in his quantum statement to the court. Prior to its disclosure, the specialists had assumed that the fractures were the result of the incident. Dr Pentis and Dr Fraser, orthopaedic surgeons, and Dr Campbell and Dr Cameron, neurologists gave evidence. Dr Pentis and Dr Cambpell were called on behalf of the plaintiff, whilst the other specialists were called on behalf of the defendant.

There was some divergence in the medical opinions:

[62] Dr Pentis’ view when he first saw the plaintiff was that he had an incapacity of some 15% of the whole person due to the soft tissue injuries he had sustained with restricted range of movement and the fractures to the thoracic spine which at that time were understood as being related to the 1996 accident.

[63] Subsequently he altered this assessment expressing the view that the plaintiff has an overall disability of some 12% of the body of which some 5% is attributable to the 1996 accident.

[64] In a statement (exhibit 6(a)) Dr Pentis expressed the view that the plaintiff was capable of returning to work at the time of his accident in 1996. He had earlier expressed the view that any work would be light duty work or work in which he was self employed because of his multiple spinal problems. The effects of the accident in Dr Pentis’ view “tipped him over the edge” as far as employment is concerned.

[65] In his evidence Dr Pentis under cross-examination, expressed the view that the injury which the plaintiff had sustained in 1984 to his thoracic spine would have been likely to have deteriorated as time went on and that a time would have been reached when he would not have been capable of carrying out heavy work. When asked to nominate that age, he said that by the mid-50s people with such a disability should change to something lighter, even if they are still at that time coping with the heavy work “because you’re going to keep paying for it, as I said, in the long term”.

[66] Dr Campbell considered that the plaintiff had sustained soft tissue injury to the spine and soft tissue muscular ligamentous injury to the cervical and thoracic spines which had left him with a disability of some 15% of the whole person.

[67] In an addendum statement (exhibit 7) he expressed the view that the plaintiff’s prospects of re-entering the workforce are poor. He apportions the cause of his current spinal disabilities equally between his pre-1996 condition and this accident.

 Cullinane J found:

[70] In 1996 when injured, he had a disability of his dominant hand and a spinal condition which undoubtedly limited what he could do. The hand injury limited this capacity to perform certain work. I am satisfied the plaintiff has a disability of the spine and I accept that it is generally of the order which Drs Pentis and Campbell describe in their reports.

[72] The plaintiff is now at an age when he would be unlikely to re-enter the workforce, given his disabilities. He may have been in this position in any case either now or within a few years.

[73] Any assessment of damages must necessarily be approached cautiously given the unreliability of much of the plaintiff’s evidence and his failure to make full disclosure. He has been out of the workforce for substantial periods of time.

[74] The plaintiff appears to be a knock-about type who has had a series of injuries. His failure to provide tax returns (and his unsatisfactory attempt to explain this by reference to his belief that PPS returns were sufficient) make it impossible to attempt any accurate assessment of his loss. This must be largely a matter of impression.

[75] I assess the plaintiff’s general damages at $25,000. I allow interest at the rate of 2% on $15,000 for 5 years (which I think is a reasonable period instead of the wholly unexplained 14 years that has passed since the proceedings were instituted) producing a figure of $500.

[76] As far as past economic loss is concerned, there must be serious doubts about the extent to which the plaintiff would have earned any substantial income during this time, had he not been injured. I accept that it is likely that he would have at least for some period, sought to engage in the work of a sandblaster and waterblaster but the extent to which this may have generated an income for him given the paucity of the evidence as to the past is problematical. I allow a global figure of $40,000 in respect of past economic loss which will include an allowance for superannuation upon the basis that he may have been an employee rather than a contractor during at least some of this time. No interest is allowable given the amount received from the Department of Social Security.

[77] Future economic loss poses similar difficulties. I have already referred to the fact that the plaintiff may have reached or been coming to the time when quite apart from the impact of the injury sustained in this accident he would have been likely to have a limited working life ahead of him. Normal vicissitudes and contingencies have to be allowed for.

[78] I again allow a global sum of $30,000 for future economic loss.

In relation to gratuitous care

[86] There are claims for care and assistance. These claims are based upon the report of Catherine Purse, an occupational therapist.

[87] The parties have agreed upon $18 per hour for past care and assistance and $23 per hour for future care and assistance.

[88] Miss Purse’s assessment is that the plaintiff has a requirement of about 3 hours per week assistance and has had this need since the time of the accident.

[89] The effect of the plaintiff’s evidence was that he was able to do all of the tasks associated with living in a caravan that he lives in at Millmerran and to look after himself. However, it seems that some of the these tasks would undoubtedly cause him pain and discomfort and I accept Miss Purse’s assessment that it would be reasonable for him to have 3 hours per week of assistance for help with the tasks which he describes in her report. The effect of her evidence is that he tends to neglect some of these tasks and they go undone or he obtains help intermittently from neighbours and friends.

[90] Not all of this need can be ascribed to the consequence of this accident, given the previous accident in 1984 and its consequences and the impairment of his dominant hand. Significant discounting is necessary.

[91] Doing the best I can, I allow in respect of past care and assistance, the sum of $20,000 with interest at 5% for five years producing an amount of $5,000.

[92] In respect of the future, and on the same basis, I allow $25,000 for future care and assistance.

There were also significant claims for past and future special damages. Total damages were assessed at $203,437.50 and 80% being $162,750.00.

Brisbane Barrister – David Cormack


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