WCRA 2003: 1st Decision – G v K (s. 308 A & C)

Syben v Mackay TFS Pty Ltd [2009] QSC 367

His Honour Jones J considered for the first time section 308C of Workers’ Compensation and Rehabilitation Act 2003, in respect of “gratuitous services” under s 308A.

The decision is of interest in respect of the award of General Damages and gratuitous services. It highlights the difference in General Damages between the Civil Liability Act ISV’s and the common law:

[18] Dr Giles opined that the first scans showed only early marginal osteophytic reaction in keeping with the plaintiff’s age.[11] Dr Giles refers to the earlier incidents as contributing to the signs of degeneration demonstrated in the later scans. He also challenges a number of the assumptions about the effect of degeneration as relied upon by Drs Weidmann and English.[12]

[19] On balance I prefer the opinions of Dr Giles. His explanation of the injury is consistent with both the radiological signs and the onset of the plaintiff’s symptoms and the nature of his continuing symptoms. Dr Giles’ opinions about the effect of pre-existing degenerative changes in the plaintiff’s spine, is consistent with the unchallenged descriptions of the plaintiff’s work capacity and his general pre-accident physical fitness. The later increase in the degenerative signs was contributed to by the impact of the earlier injuries. As Dr Giles explains, the objective signs in the imaging do show that the disc changes “have not been of very long standing”.[13] The MRI findings of 9 July 2009 showed modic changes which Dr Giles opined was “evidence of degeneration due to a earlier injury”.[14]

[20] Dr Campbell, neurosurgeon, regarded the radiological signs as “normal age related change that any 50 year old man would have[15]…but the majority of any injury is going to be the cause of the disc protrusion not the normal age related changes that you find.”[16]

[21] By contrast, the opinions of Drs Weidmann and English to the effect that 50% of the plaintiff’s present spinal symptoms are attributable to natural causes, appear to be based on assumptions which do not accord with the MRI signs as explained by Drs Giles and Campbell. In cross-examination, Dr Weidmann conceded that the radiological sign of dehydration shown in the MRI scan of October 2005 was “consistent with having been caused in the time frame of November 02, September 03 or April 04.”[17] In addition, the imaging report of 14 April 2004 described the “early marginal osteophyte reaction is indeed very early at the L5-S1 level and is in keeping with this man’s age”.[18]

[22] Assessing the manner in which the symptoms have affected the plaintiff’s enjoyment of life and his capacity for work is not without some difficulty. The plaintiff presented in Court on crutches appearing to have more difficulty than one would have expected, even taking the description of his injury at its highest. The plaintiff does not require crutches for mobility. He is quite capable of walking. His resort to the use of crutches and walking sticks aroused suspicion in the minds of some examiners that he may have been exaggerating his symptoms. This was not helped by the plaintiff’s overt anger towards WorkCover and his hostility to the medical practitioners who examined him at the request of WorkCover. The plaintiff explains his use of crutches as giving support while standing and when changing his positional posture as he does constantly to alleviate pain.

[23] The plaintiff has three sources of pain in his lower back. Firstly, there is the effect of the lumbar disc protrusion putting pressure on the thecal sac. Secondly, there is the consequence of the tear in the disc which creates instability and pain. Thirdly, there are the consequences of the biomechanical stresses in the facet joints.[19] The pressure on the nerve in this instance is not at the site of the foramin but is within the spinal cord itself.[20] Whilst there is direct pressure on the nerve root, pain is unavoidable.[21] Whilst that pressure is there, there will be deterioration because of the interference with the blood supply to that particular nerve root.[22]Consequently, the plaintiff experiences varying symptoms on a daily basis. I regard the plaintiff’s use of crutches and walking sticks as providing assistance in ameliorating his pain and not as being indicative of exaggerating his symptoms. I find that the plaintiff’s physical symptoms and limitations are entirely due to the incidents, that they are likely to be ongoing and without much prospect of being lessened by treatment.

[24] The plaintiff has suffered a psychological reaction to his injuries and this has wrought changes in his life. Professor Basil James who saw the plaintiff on one occasion in May 2006, opined that the plaintiff suffers from an adjustment disorder with depressed mood “of a severity which could be described as moderate to severe”.[23] Professor James rates the plaintiff’s function level as having been reduced from 80 to 50 on the Global Assessment of Functioning (GAF) scale. With treatment his functioning might be improved to the 60 level. Dr Lotz who saw the plaintiff on one occasion in February 2007, agrees with that assessment of the plaintiff’s functioning but assessed the plaintiff as having a narcissistic personality which underpins his complaints. Dr Lotz however ultimately accepted a diagnosis of adjustment disorder with mixed emotions.[24]

[25] The plaintiff gave evidence of having suicidal thoughts at different times. Professor James found that the plaintiff’s thought contents were generally depressive but there was no evidence of psychiatric anomalies. Other medical practitioners spoke of depression secondary to chronic pain. The plaintiff for the past three years has been receiving visits from a community funded psychologist, Ms Sharon Jones, who unfortunately was not consulted about the plaintiff’s condition. The plaintiff’s own evidence, however, was to the effect that he received considerable benefit from Ms Jones’ counselling in dealing with his depression[25]. Given that there is little likelihood of any significant amelioration of his chronic pain, the plaintiff will have to deal with the effects of secondary depression to which he is prone.

[26] In summary then, the plaintiff suffers with moderate to severe pain in his lower back which is likely to continue in the future. He is offered little hope of the pain being relieved in any significant way. He has a life expectancy according to the recent tables of 31 years. The limitation on his mobility, his activities and general enjoyment of life is quite profound having regard to the level of his pre-accident physical activities. I assess general damages at $100,000 of which $30,000 should relate to the past period. Interest will be allowed on $30,000 at 2% for 5.5 years, totalling $3,300.

I refer to my earlier posting in respect of proposed amendments to the Civil Liability Act, which will do little to address this disparity.

The award of future gratuitous services on the basis the plaintiff had not received such services in the past and:

[46] The issue remains whether s 308C precludes the court from awarding these damages which but for the section would be allowable. The intention of the legislature to reduce common law rights for this type of claim has been evident since the 1996 Act where, by virtue of s 315, claims of this type were restricted. This prohibition was continued by s 308 of the WCRA when it passed into law. That intention to further reduce those common law rights is evident in the November 2004 amendments to the WCRA. The Explanatory Note to the Bill by which these amendments were proposed, states the amendment “clarifies the circumstances in which a court is prevented from awarding a worker damages for the value or cost of domestic, nursing and caring services where those services have been provided to the worker by a member of the worker’s family, household or friend. It also confirms the original intention of s 308 that awards for damages for future paid domestic, nursing or caring services are unable to be made if a worker has been in receipt of the services gratuitously in the past.” The Explanatory Note also refers to the provision of statutory compensation benefits under Chapter 3 of WCRA for payment in lieu of awards under the common law. The plaintiff in this case, like the vast majority of injured workers, was not eligible for the statutory compensation provided under WCRA.

[47] The earlier enactments have been the subject of judicial comment, but I am informed by counsel that there has not yet been any reported case dealing specifically with s 308C or the cognate sections introduced by this amendment.

[53] Adopting the approach which found favour with Carrothers JA, I am not satisfied on the material before me that any of the adult males who remain unidentified and whose relationship is undefined was a member of the plaintiff’s household as contemplated by the definition of gratuitous services.

[54] The result is that the defendant has not made out a case for the application of s 308C(2) and the prohibition against the awarding of damages contemplated by the subsection does not apply in the circumstances of this case. I propose therefore to make the allowance in the assessed damages for the costs of future services as assessed above.

 Age  General Damages  CLA  Uplift  Occupation Past economic loss Future lost earnings  Gratuitous care
54 (M) $100,000 (back injury – L5/S1 disc protrusion back injury and adjustment disorder with mixed emotions)

Preferred the evidence of Dr Giles as opposed to Drs Weidmann and English, ie. that the pre-existing degeneration and earlier injuries had not impacted on his DLA or ability to work. Likewise, Dr Campbell was similarly accepted.

Noted the plaintiff appeared on crutches and he was angry towards WorkCover arousing suspicion that he was exaggerating to some of his examiners.

 

n/a Farm labourer $200,000 $360,000; $950 a week for 6 years, then $600 a week until age 67 less 10% contingencies) Domestic Services = $90,000 (consideration of s. 308C WCRA, Plaintiff lived alone prior to accident and was independent in daily activities. After accident moved in with 2 adult males and shared domestic duties, Plaintiff performing most indoor duties while adult males did outdoor duties, but no past gratuitous services provided).

Held that as Plaintiff had not required assistance with indoor duties and would require assistance in the future, entitled to future gratuitous assistance for those tasks because not precluded by past gratuitous services being provided by a family member.

 

The decision comes at time when it was reported to parliament on 12 November 2009 of the impact of the Global Financial Crisis on WorkCover Queensland.

Brisbane Barrister – David Cormack

 

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