Findlay v Queensland Folk Federation Inc and Ors [2016] QDC 87

Reid DCJ

The plaintiff was injured on the morning New Year’s Day 2008 at the Woodford Folk Festival in the Chai tent when stage lights toppled onto her. The plaintiff claimed:

(i)           a closed head injury with resulting concussion;

(ii)         bruising and lacerations to her face and forehead;

(iii)        post-concussional syndrome;

(iv)        an injury to the cervical spine; and

(v)         a psychological injury.

The defendants admitted breach of duty and that the plaintiff suffered a bruising and lacerations to her face and forehead (minor head injury), but denied causation and any brain injury/post concessional syndrome or consequential cervical spine or psychological injury claimed above.

The plaintiff claimed significant losses both in respect of lost earning capacity and gratuitous care.

The plaintiff’s claim was complicated by:

(a) a long standing and significant pre-existing psychiatric disorder.

(b) a significant lumbar spinal injury in 2006.

(c) the plaintiff having applied for a disability support pension (DSP) based on the effects of the lumbar spinal injury and psychological disorder in 2007.

(d) a subsequent motor vehicle accident on 9 May 2008 and suffering cervical spinal injuries, concussion, and aggravation of lumbar symptoms.

(e) chronic asthma and bronchiectasis.

(f) approved in 2008 for a DSP for reasons unrelated to the Woodford incident.

His Honour turned to consider the plaintiff’s medical history before the Woodford incident, which impacted her earning capacity. The plaintiff’s income for the five years before the Woodford incident was minimal:

 

YEAR Employer Net Earnings Annual Net
2003 James Chen Trust $2682.00 $2682.00
2004 Kholo Medical P/L $1129.00 $4629.00
Emerge P/L $3500.00
2005 Sport in Action $2195.00 $2195.00
2006 Sport in Action $4490.00 $11307.00
Gone Bonkers $6817.00
2007 Gone Bonkers $9713.00 $9713.00

 

The income for the periods of 2006 and 2007 was notably affected by the plaintiff’s lumbar spine injury. Importantly, on 1 August 2007 before the Woodford incident, the plaintiff was assessed by Anna Austin, an occupational therapist for a job capacity assessment, in support of her application for benefits from Centrelink.

The assessment was found by his Honour as follows:

[25] The job capacity assessment of Ms Austin, was based on face to face contact with the plaintiff and appears to be based largely on the plaintiff’s own report of symptoms. It records:

“The client reports other symptoms including restriction of driving … high levels of analgesics, irritation, frustration at her inability to complete necessary chores, nausea and light headaches, awakening during the night in pain … frightened to have surgery on her spine … however she can no longer tolerate this pain which has affected her appetite … not … able to sit or stand for long on a good day with medications … can stand or sit for approximately 15 minutes but less than this on a bad day … children assist with basic cleaning … and with getting themselves off to school some days … limited her ability to have a social life as the client is frightened to go too far away from home”.

Further medical attendances revealed the plaintiff attended various doctors about these prior conditions for pain relief, which culminated on 16 December 2007 when the plaintiff changed doctors because she was confronted with advice that she was becoming addicted to pain relief medication. On the same date, the plaintiff filled four prescriptions for Panadeine Forte.

His Honour concluded that the medical and Centrelink history also revealed a long history of depression, which at times worsened because of relationship issues or at other times by back pain.

The plaintiff claimed the Woodford incident caused her to sleep for extended periods and to be significantly incapacitated to such an extent that she could not care for herself, her children (then aged 13 and 15 years) or to return to work. The plaintiff claimed that she was not able to undertake even simple tasks, such as making a cup of coffee. On this basis, the plaintiff claimed significant gratuitous care and lost income.

To determine the veracity of the plaintiff’s claim, his Honour determined that her General Practitioner records following the incident were of critical importance. The clinical records noted for the initial period after the Woodford incident that the plaintiff attended upon the Coolum Beach 7 Day Doctors. Apart from the initial consultations with Dr. Ali wherein a scan was undertaken, which revealed no abnormality at all, the remaining consultations were unremarkable and involved other unrelated medical complaints.

His Honour found:

[64] It seems to me that an important feature of those consultations is that she saw four different doctors at the Coolum Beach 7 Day Doctors practice, and had also seen Dr Ali, but none of the doctors thought that her condition was so acute that she needed referral to a specialist for further treatment for or assessment of any effects of the incident on 1 January. If her condition was as she described in evidence before me I have no doubt that all – or certainly some – of the doctors would have been significantly concerned about her and have made such a referral. If she presented as she did before me when giving evidence I am also confident that any doctor would have noted that in their records. The fact that Dr Anderson, Dr Tufaga, Dr Goss and Dr Vogelpoel did not do so strongly indicates to me that her presentation was nothing like she has described in evidence before me. Her going swimming in the bush under a waterfall, as recorded by Dr Anderson, is entirely inconsistent with her condition at that time as described in evidence before me. So too, was the fact that she had resumed driving, albeit with some discomfort, as early as 22 January 2008.

On 9 May 2008 the plaintiff was involved in a motor vehicle accident and attended upon Dr. Karen Sander on 13 May 2008, wherein she made a complaint about the motor vehicle accident and her long-standing lumbar spine problems and asthma. The plaintiff continued to attend upon Dr. Sander for a further five consultations over three months without complaint about the Woodford incident.

His Honour found:

[70] Thus, after seeing Dr Sander for the first time on 13 May she saw her on five occasions over a period of about three months and made no reference whatsoever to the incident at Woodford or to any of the debilitating life changing consequences which she described in evidence to me. Dr Sander noted no such debilitating condition. I note also her use of Panadeine Forte declined very significantly after she started attending Dr Sander’s practice. It is in my assessment impossible to reconcile the fact that she has not told Dr Sander of the Woodford incident with the description that the plaintiff gave of her symptoms, and also that given of her friends and children about her lifestyle in the immediate aftermath of the Woodford incident.

The plaintiff continued to see other doctors without complaint about the Woodford incident. The lack of complaints to the doctors was in contrast to the alleged debilitating effects of the Woodford incident. His Honour again highlighted this by reference to the later Centrelink application in 2008 for the DSP and the ancillary job capacity report:

[73] On 4 November she saw Dr Mason Stephenson, another GP at the same practice. He noted chronic pain and bronchiectasis and prescribed Aropax and morphine patch. She was “much better” when he saw her on 18 November. He continued to prescribe morphine patches on that date and also on 15 December 2008. She did not mention Woodford.

[74] That history of consultations must also be seen against the background of her receipt of social security. I have referred already to her application in about July 2007 and the fact that it had been approved for a period of 12 months. In late 2008 she sought a DSP. A medical report of Dr Stephenson of 18 November 2008 was signed and submitted by the plaintiff to Centrelink (see Exhibit 9, Tab 13, pp 97-104). Since Dr Stephenson had only commenced seeing her on 4 November his report must largely have been based on her report of symptoms to him on that date and when he next saw her on 18 November, and perusal of the medical records of the practice.

[75] He refers in his report to three medical conditions supporting her claim. What was said to have “most impact” was described as “chronic lumbar backache – L5/S1 disc degeneration with L sciatica” dating from February 2006. Her lower back pain was described as constant with left sciatica and permanent left leg numbness. She was described by Dr Stephenson as having limited ability to sit or walk or to lift or bend.

[76] Her second condition was said to be bronchiectasis and asthma and her third was said to be “major depression”. There is no reference to the Woodford incident or to any effects in Dr Stephenson’s report.

[77] Of even greater importance are two job capacity assessment reports completed in 2008. The first is of a Karla Milner of Maroochydore Centrelink of 8 August 2008 (see Exhibit 9, Tab 13, pp 19 ff). Ms Milner refers to the plaintiff’s spinal injury and depression. She refers to the medical certificate of Dr Sander of 7 August 2008 (Exhibit 9, Tab 13, pg 24) which lists a diagnosis of “motor vehicle accident back injury” and “depression”. Ms Milner sets out that the plaintiff indicated she was suffering chronic spinal pain “following repetitive heavy lifting in her previous employment”. She says in relation to the reported depression:

“Elizabeth reported she had been suffering from depression as a result of her constant pain and the restrictions her condition causes. Her symptoms include low mood, emotional ability, social avoidance, disturbed sleep, loss of motivation and irritability. She stated she has commenced a course of antidepressant medication. Elizabeth reported being motivated to undertake counselling.”

The only reported pain elsewhere in the report is the plaintiff’s low back pain.

[78] Nowhere is it recorded that the plaintiff mentioned the Woodford incident or what she now says are the consequences of it.

[79] A further job capacity report was completed by psychologist, Lisa Gordon (Exhibit 9, Tab 13, pp 5 ff). The assessment, like that of Ms Milner, was described as “face to face”. Ms Gordon’s report is dated 22 December. Ms Gordon’s report says:

“Major depression with panic attacks – Despite very long-term treatment Ms Findlay continues to experience regular symptomology which can be easily exacerbated by stress due to the constant focus she has on her chronic pain. The condition has been fully treated and stabilised, but goes through regular cycles causing greater incapacity than usual. Ms Findlay reported having particularly poor concentration and memory and is currently unable to read as she normally might. She can also experience panic attacks and low mood which leads to some social withdrawal.

Chronic neck and lumbar pain – Ms Findlay has participated in extensive rehabilitation work. However her condition further deteriorated in 2008 due to two separate injuries. She is currently experiencing chronic pain and is using morphine patches to control this. Despite her strong medications Ms Findlay reports a constant awareness of pain and experiences difficulties sitting comfortably for more than 10 to 15 minutes, or standing for more than five minutes. She reports a loss of at least ¾ her normal range of movement.”

[80] Thus, in all of the recorded information over the 12 month period from early May 2008 – in her doctor’s records and in the Centrelink file – the only reference I have been able to find in relation to the Woodford incident is the single reference in Dr de Jager’s note of concussion in January 2008 during a consultation of 2 September 2008 and, possibly, the reference in Ms Gordon’s report to “two separate injuries” in 2008. This may of course not have been a reference to Woodford, but to some other unknown event, but certainly could have been about Woodford.

[81] In my view one can only conclude that the plaintiff herself did not, after about March/April 2008, ascribe any significance to the incident of 1 January. Her failure to have mentioned it is otherwise inexplicable.

The plaintiff’s explanation for the lack of corroboration in the clinical records was the doctors failed to record her condition and the debilitating effects of it. The plaintiff’s evidence was that it was their decision not to do so and that she had constantly told the doctors of her complaints. His Honour found this to be deliberately dishonest. In support of these findings, apart from the above, his Honour was not persuaded by the records of Mr Ivan Chandler who was called in support of the plaintiff’s contention.

His Honour found further support as to the plaintiff’s dishonesty from her evidence and response in cross-examination over her Facebook account. The plaintiff, when confronted with various Facebook posts, which revealed a far more active and social plaintiff, was to delete the posts. The plaintiff, however, denied deleting the posts and blamed the posts and their deletion on her children and friends, all of whom denied it in cross-examination.

His Honour preferred their denials rather than the plaintiff’s dishonest evidence:

[140] That is not to say that other factors did not influence me in coming to the conclusions I have about the plaintiff. For example, the plaintiff was extensively cross-examined about her Facebook account. It was suggested that the account showed that the plaintiff was having a much more sociable and enjoyable existence than she was prepared to accept. That is likely to be so but in my view the real importance of the evidence about her Facebook account was that, when confronted with it, the plaintiff sought to excuse the operation of it by saying others had put photos and comments on her account and had taken them down when it was apparent the defendants’ solicitors were to have access to it. She suggested her children and friends, and in particular Aishah Ali, had accessed her account and had done so. All denied having access, or doing so. I accept those denials. I find it was the plaintiff who deleted items from the account and also that it was she who operated the account, placing photos of herself at various social occasions on it.

[141] Such findings militate against the plaintiff’s credit in two ways. It is contrary to what she says about the level of her cognitive ability for her to have operated the account as I find occurred. It also strongly suggests her answers about the operation of the Facebook account by others were deliberately dishonest.

[142] Such dishonesty was, in my assessment, also manifested in her statement that the principal focus of her complaints to doctors at Suncoast Medical Centre after May 2008 and for 12 months thereafter and to Centrelink staff who assessed her for a DSP on two occasions in late 2008, was the Woodford incident. She said it was the doctors and Centrelink staff who made a choice not to record what she had said to them. In my view that is clearly false. I think the plaintiff was dishonest in giving the answers she did to questions about that issue. Even if that were not so and her answers were the product of her psychiatric illness, they indicate the unreliability of her evidence which in any case undermines the worth of medical reports which rely on her reliability and honesty.

While his Honour was conscious of the observations of McMeekin J in Schneider v Smith & Anor [2016] QSC 47 (para 17) when dealing with plaintiffs with alleged psychological or psychiatric injuries:

“One of the difficulties in assessing a person who claims to have a psychiatric impairment is that, if the claim is true, it is unlikely that the person will behave or react ‘normally’.”

It did not overcome the plaintiff’s dishonesty.

His Honour preferred the opinion of Dr Chalk that any psychiatric condition was “transiently aggravated” by the Woodford incident.

Likewise, his Honour preferred Dr Saines to Dr Campbell because of the findings made that the plaintiff did not have any symptoms after April 2008. This finding was corroborated by his Honour’s conclusion that when Ms. Debbie Anderson, neuropsychologist examined the plaintiff, she was “feigning the extent of her capacity”. Similarly, his Honour found that the reports to Dr. Boys by the plaintiff about her level of activity before and after the motor vehicle accident, only highlighted the plaintiff’s unreliability when providing a history.

His Honour was not persuaded by the lay evidence of the plaintiff’s children or friends.

As to damages, his Honour allowed Item 9 – minor head injury ($5,000.00) of the Civil Liability Regulations 2003 which was described as “appropriate perhaps generous in my view having regard to the temporary effect of the injury.”

Otherwise, his Honour allowed $1,000.00 in special damages. There was no allowance for gratuitous care, lost income or capacity, or for future special damages.

David Cormack – Brisbane Barrister & Mediator.

 

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