McLean v Nominal Defendant [2012] QDC 73

Issues: both liability and quantum were in issue.

Overview: the plaintiff was injured whilst walking home intoxicated by an unidentified vehicle on 08/03/2009 at 7pm. The accident was not witnessed and there were conflicting versions provided. However, McGill DCJ ultimately accepted by the nature of the injuries to the plaintiff’s feet that the accident happened. In doing so His Honour noted in relation to the different versions provided in the medical reports:

“[11]…medical specialists are generally not very reliable at obtaining and recording accurate factual histories of matters of this nature.”

In so doing, McGill DDJ found that it was not matter of an intoxicated plaintiff walking into a vehicle. His Honour formed the opinion there was nothing obstructing the unidentified driver’s view and the possibility of a pedestrian crossing the roundabout was foreseeable and accordingly, some attention to that risk should have been given by the driver. [19] – [20]

As to a reduction for contribution negligence McGill DCJ noted the defendant had exclusively pleaded s. 47 of the Civil Liability Act 2003 (CLA) and not the common law. In such circumstances, by reference to the wording of s.47 His Honour found that the plaintiff’s intoxication did not contribute to the breach in duty, namely the failure to maintain a proper lookout on the part of the driver had nothing to do with the intoxication of the plaintiff. [22]

However, had the defendant pleaded contribution His Honour would have allowed 20% reduction in terms of common law principles. [24]

Turning to quantum, McGill DCJ was unimpressed with the assessment of Dr Steadman, orthopaedic surgeon which was not helped by him not being provided with a CT scan until cross-examination. His Honour noted that Dr Steadman largely disregarded the plaintiff’s complaint’s pain because of his suspicions as to the plaintiff. However, given the concession Dr Steadman made on reviewing the CT scan, McGill DCJ preferred Dr Pentis, orthopaedic surgeon who attributed 6% whole person impairment to each foot. I refer to my earlier posting regarding the decision of Nudd v State of Queensland [2012] QDC 64 and the acceptance of by McGill DCJ of Dr Pentis as well.

The plaintiff’s significant injury was his psychiatric condition. Dr Leong, psychiatrist examined the plaintiff for the defendant. McGill DCJ was singularly unimpressed with Dr Leong, firstly on the basis of his proposition that the plaintiff’s intoxication at the time of the accident prevented him from appreciating the extent of his injuries or the collision so as to develop a post-traumatic stress disorder. Secondly, with the manner in which the PIRS assessment was undertaken in finding that the assumed level of psychiatric impairment was not made out and furthermore the assessment was not in accordance with the requirements in the regulation. [37] – [43]

By contrast Dr Bythe, psychiatrist for the plaintiff was preferred. Dr Bythe considered the pre-existing psychiatric condition fluctuated and was mild, which included periods of depression, hospitalisations for detoxification and a long history of alcohol dependence. Dr Bythe agreed that the plaintiff’s pre-existing condition would have contributed to him not working in any event. However, it had caused him to now suffer from a post-traumatic stress disorder, which symptoms were moderately severe and depressive symptoms resulting in additional diagnosis of adjustment disorder with depressed mood.

Furthermore, he suffered from a substance abuse disorder. By way of treatment Dr Bythe recommended additional psychiatric treatment over 2 years ($6,000). Dr Bythe assessed 16% on PIRS based on post-accident 22% and pre-accident 6%. [34]

The plaintiff was also assessed by Mr Hoey, an occupational therapist as to his employability, who took into account his criminal history, periods of imprisonment and alcoholism. Nevertheless, he assessed the injury would make him significantly more vulnerable on the open labour market. [31] – [32]

General Damages

The plaintiff’s (39 years) dominant injury was assessed to be his psychiatric injury (item 11) with an ISV range of 11- 44.  His feet injury (item 149) were found to be within an ISV range of 4 -8. An award of $35,000 was made based on an ISV of 25 within the range and no uplift.

Loss of income

The plaintiff had an appalling work history. His counsel submitted $10,000 at trial over a period of 2 and half years and the defence counsel submitted $5,000. The plaintiff’s pre-accident earnings were sporadic and only evidenced in reporting’s to Centrelink, which were inconsistent and intertwined in this period was a period of imprisonment and hospitalisation for alcoholism. McGill DCJ was heartened by change in the likely return to alcoholism because the plaintiff had agreed to orders for access to his children, which included him not drinking.

Ultimately, MCGill DCJ took the view the injuries had effectively been destroyed by the accident. In so doing, he considered he would have more than he did before the accident and allowed $9,000 inclusive of superannuation for a period of 3 years. [53] – [55]

This translated to $70,000 for his future loss. It was premised on a global loss of $45,000 for economic loss and $30,000 for the “loss of opportunity of getting back on his feet” and discounted for vicissitudes. Likewise, McGill DCJ took into account the prospect of his alcohol consumption moderating because of his access orders to see his children. His Honour conceded it was impossible to quantify the loss after having considered a number of scenarios, but that some allowance must be made for it in terms of Ballesteros v Chidlow [2006] QCA 323. The usual award for this was in the order of $45,000 – $50,000. [58] – [59]

A somewhat similar global ‘tariff’ was adopted by McGill DCJ in Nudd v State of Queensland [2012] QDC 64.

Brisbane Barrister – David Cormack

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