Doctors Maguire and Campbell preferred to Drs Toft and Cameron

Girone v Denholm and Allianz Australia Insurance Limited [2010] QSC 420

Issues:

Personal injuries – quantum only – pre CLA

There was no dispute the plaintiff had sustained a significant right distal fracture of the tibia. However, there was dispute as to the cervical, thoracic and lumbar injuries and its impact on his earning capacity.

Cullinane J preferred the evidence of Drs Maguire and Campbell, as opposed to Drs Toft and Cameron, on the basis that Drs Maguire and Campbell took into account the back complaints:

[22]

The plaintiff, on each of the occasions he was seen by Dr Maguire was observed to have muscle spasm. This is a condition which cannot be simulated. It can vary from time to time which might explain why others did not observe it on their examination of him.

[23]

Dr Maguire assessed the plaintiff’s disability as being some 27% of the whole person. However, it would seem that he might have made an error in the application of the guides to the evaluation of permanent impairment which he used. However, it is not the disability in terms of percentage loss of function which I regard as being of critical importance for the purposes of assessing damages but the nature of the disabilities that he suffers from and their impact upon him.

[26]

Dr Campbell, a neurosurgeon called by the plaintiff, gave evidence that the plaintiff complained to him of symptoms in the upper spine, with pain in the right arm and also a pain in the right leg and lower back. Dr Campbell assessed definite weakness in the grip of the right hand. He diagnosed the plaintiff as suffering from:

(a) Chronic soft tissue muscular ligamentus injury to the cervical spine; and

(b) Chronic soft tissue muscular ligamentus injury to the lumbar spine.

His Honour found Drs Toft and Cameron had not proceeded on a history of back complaints:

[28]

It is plain that Dr Toft and Dr Cameron proceeded upon the basis that the plaintiff had made no complaints of upper or lower back symptoms at the time of this accident or thereafter until a further motor vehicle accident in August 2004. Dr

Campbell, in cross-examination, was asked to assume this history.

[29]

The evidence however in my view, clearly demonstrates that such an assumption is not correct.

[30]

It is true that in the initial stages following his injury, no reference appears to complaints about the upper or lower spine. I accept the evidence that has been given on this subject that at that time, it could be expected that the focus would be on what was a very serious injury to the leg.

[31] In the records of the Ingham Hospital (to which the plaintiff was admitted following his accident) there appears a document signed by the Registrar to the effect that the plaintiff was now “six weeks post compound fracture right distal tibia” and a sketch showing the plaintiff suffering from a back problem appears. It appears that the Registrar was referring the matter to the physiotherapy department of the hospital.

[32]

Commencing at page 252 of exhibit 26, is the medical file of a massage therapist, one Shannon Kemp. These commence in February 2002 and as will be seen between February 2002 and November 2002, the plaintiff attended many times for treatment of back and neck complaints.

[33]

Counsel for the plaintiff took Dr Cameron to a number of references in the plaintiff’s general practitioner’s records in which it is clear that it was not the case that the plaintiff first complained in August 2004 of symptoms in the spine. In some of the references to these symptoms, the complainant refers to them having been present since the motor vehicle accident out of which this action arises.

[34]

Dr Toft and Dr Cameron both acknowledged when confronted with these records that the plaintiff must be taken as having complained about such matters before August 2004. The assumptions upon which they have proceeded in this regard were wrong.

His Honour concluded on the point:

[35]

Dr Maguire had, of course, seen him prior to the 2004 accident and detected muscle spasm and restriction of movement in the spine.

[36]

I am satisfied that the plaintiff sustained injuries to the cervical, thoracic and lumbar spines in the accident and that the symptoms of which he complains are the consequence of those injuries.

[38]

I accept the evidence of Dr Maguire in relation to the orthopaedic aspects of the plaintiff’s condition case and I accept that of Dr Campbell in relation to the neurological aspects of his condition.

Surveillance and presentation:

[40]

I should mention a couple of specific attacks upon the plaintiff’s voracity. I have in reaching the conclusions I have just expressed taken into account, the evidence as a whole. Of particular importance is the existence of objective symptomology detected by Dr Maguire in the plaintiff’s spine. The muscle spasm he referred to had not been detected by others. However I accept his explanation that this will vary from time to time and will not always be present.

[41]

The plaintiff walks with a limp, although he says that this is not always present and on a good day he may have no limp if I understand what he says correctly. The defendants contended that the plaintiff adopted the limp when attending medical

practitioners but only those who were to assess the disability of his leg. It was argued he did not adopt such a limp when he attended other medical practitioners. Dr Campbell said that when he saw him he appeared to walk normally. Although he saw him for medico legal purposes, he was primarily concerned with his spinal complaints.

[42]

Particular reliance was placed upon a DVD (exhibit 24) of 2 June 2008. This was a day on which the plaintiff came from Ingham to Townsville to be examined by Dr Toft. The DVD is quite brief and not of particularly good quality. Very little can be seen of the plaintiff’s movements in entering and leaving the premises where Dr Toft examined him. However later in the day he is shown at a shopping centre walking normally without any detectable limp. It is a perhaps a little surprising that surveillance has not produced something more obvious and covering a longer period.

[43]

I do not find attractive the contention that the plaintiff adopts a selective form of deception so far as the limp is concerned confining it to those who are to examine his leg but apparently quite prepared to demonstrate no limp to those who are not specifically concerned with that part of his body. This is a high risk form of deception it seems to me.

[44]

I accept the evidence that the plaintiff’s limp is variable and it is more or less pronounced according to what he has been doing. I also accept that it is not always present.

Other medical practitioners:

[52]

The plaintiff was cross-examined at considerable length about the records of a number of persons who saw him for various purposes. The records were tendered but the makers of them were not called. An occupational therapist, who saw the plaintiff for the purposes of these proceedings, was called by the defendants and an occupational therapist was called by the plaintiff.

[53]

Various persons concerned saw the plaintiff for various reasons. CSR Limited, the owner of Victoria Mill, engaged a physiotherapist and an occupational therapist to examine persons for the purposes of employment. General practitioners also provided reports for these purposes and some reports were provided for Centrelink. The plaintiff says that in a number of instances, the examinations were very brief and the reporting involved the completion of forms which he said were partly based upon earlier information that had been provided.

[54]

Whilst I do not overlook this evidence, in my view the preferable evidence on the subject of what injuries the plaintiff sustained in the accident, his present disabilities and their impact upon him, falls within the province of the orthopaedic surgeons and the neurologists and I prefer their evidence on this subject. Each side has called witnesses from these specialties, as I have already indicated.

[55]

For the reasons I have already given, I prefer the evidence of Dr Maguire and that of Dr Campbell.

Employability:

[57]

He is not capable of the sort of employment that he previously engaged in, nor any other employment of a physical or manual nature. As I have said, his lack of training or experience in any other sort of field that he might be capable of engaging in within his physical limitations imposes a significant restriction upon his capacity to re-enter the workforce.

[58]

He has lived in Ingham all of his life. It is a matter of notoriety that this is a community which draws its economic lifeblood essentially from the sugar cane industry, with some support from the timber and tourist industries. There is not the variety of work which would be available for persons like him in suburban areas.

[59]

It is possible that the plaintiff may have obtained year round employment with CSR as he hoped. Whilst the loss of his employment may have occurred in any case, there is no reason why he could not have obtained employment in the sugar industry, perhaps with another mill or even at Victoria Mill in the future. Given Dr Reimer’s latest report, it would seem that the history of his seizures should not have had an adverse impact upon his ability to re-enter the workforce.

[62]

So far as past economic loss is concerned, some allowance has to be made for the vicissitudes and contingencies of life given the time involved. If the plaintiff was working in the sugar industry in a manual position he would have been exposed to some risk of injury. There is however the contingency that he may have obtained year round employment. As an able bodied person he would have been capable of engaging in a variety of jobs in the cane industry or in some other field from which he is now excluded.

[63]

The plaintiff returned to work at the mill for some seasons, interrupted by the injuries and condition to which I have already referred. However it would seem clear from the opinions of Dr Maguire and Dr Cameron that he should not have been doing this work. Dr Maguire refers to the difficulties which the plaintiff said he was having at the time in his first report.

 Age  Injuries  ISV  Uplift  Occupation  Past Loss  Future Loss  G-v-K
31 (M) Fractured right distal tibia. Soft tissue injuries to the cervical, thoracic and lumbar injuries.[1]Dr Maguire assessed 27% whole person based on muscle spasms.[2]Drs Toft and Cameron were not to have based assessment on history of back complaints. Preferred evidence of Macguire and Campbell.$75,000.00 n/a n/a Pointman at sugarmill and welder $450/week over 6 years discounted -$140,400 $400/week over 25 years, discounted -$297,750 $10,000 past and $22,500 for the future based on $25 a week for 40 years, discounted.[3]

NB:

Allianz Australia Insurance Limited v Girone [2011] QCA 245 and the adjusted past and future of loss of earning capacity

 

 Past Loss  Future Loss
$93,500

Interfered with the $450/week loss –

$350 net per week over six years – $110,000. Discounted by 15%

$225,000

 

Interfered with the $400/week loss –

 

Adoption of a multiplier of 25 years to cater for contingencies. Applying the 5% tables and a loss of $300 per week over 25 years (age 56)


[1]Pre CLA – 29/10/2001.

[2] Paragraph [23] error in mathematics of the impairment, but impairment characteristics relied upon.

[3] Previous section 55D (1) of the Motor Accidents Insurance Act 1994.

Brisbane Barrister – David Cormack

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