MVA: dominant psychiatric injury preventing return to work despite pre-existing injuries

Marshall v Girard and Ors [2010] QSC 454

Issues:

Motor vehicle accident – liability and quantum were in dispute. Both parties contended they had a “green light” to proceed on the road. With respect to quantum the plaintiff’s pre-existing injuries were of particular interest together with its impact on his work history.

Ann Lyons J

The determination of liability largely resolved on the acceptance of the plaintiff as a witness as opposed to the defendant driver, together with conclusions that could then be drawn as to the sequencing of the traffic lights.

Contributory negligence was dismissed on the basis of:

[42] Accordingly it is clear that I accept that Girard has proceeded through a red light. Counsel for the third defendant argues that Marshall has nonetheless failed to keep a proper lookout as he turned the corner and changed lanes. This argument is based on the fact that he should have had a clear view of the garbage truck bearing down on him from the right as he turned into Annerley Road. Marshall concedes that he did not observe the approaching garbage truck before the collision occurred.

[43] Marshall was completing the turn from Cornwall Street in to Annerley Road and he was still required to exercise due diligence and care and keep a proper lookout. I accept that he was travelling at a moderate speed and that he was coming onto a major road from what was a non major road. Furthermore, the evidence was that he was moving over a lane to get over to the lane closest to the centre lane in order to execute a right turn further along Annerley Road. The decision of Eva (Joseph) Ltd v Reeves[13] however establishes that a motorist entering an intersection when the lights are in his favour is not bound to assume that others may illegally attempt to. Scott LJ held:

“Nothing but implicit obedience to the absolute prohibition of the red – and indeed of the amber, subject only to the momentary discretion which it grants – can ensure safety to those who are crossing on the invitation of the green. Nothing but absolute confidence in the mind of the driver invited by the green to proceed, that he can safely go right ahead, accelerating up to the full speed proper to a clear road in the particular locality, without having to think of the risk of traffic from left or right crossing his path, will promote the free circulation of traffic… Nothing again will help more to encourage obedience to the prohibition of the lights, than the knowledge that, if there is a collision on the cross-roads, the trespasser will have no chance of escaping liability on a plea alleging contributory negligence against the car which has the right of way.”

[44] I am not therefore satisfied that contributory negligence on the part of Marshall has been established.

Quantum:

[45] There is no doubt that Marshall had a number of pre-existing injuries at the time of the accident. I consider that Marshall has been very forthright about those injuries. They included injuries to his spine, shoulders, left wrist, right hand and left knee. He had also experienced a depressive illness which at the time of the accident was in remission.

[46] There was clear evidence that Marshall returned to work in January 2006 after his recovery from his shoulder surgery in June 2005. It is also clear that he was working well in the eleven months post surgery. He had achieved a supervisory position within Higgins Coatings who were pleased with his work. He was considered as suitable for promotion in the future. There is no evidence before me that any of his pre-existing injuries were having any impact on his actual functioning at the time of the accident. It would seem clear to me however that long term the number, nature and extent of those injuries would necessarily have had an impact on his long term work prospects. In my view, the nature and extent of those pre-existing injuries are factors which must be taken into account in determining how long Marshall would have been able continue to work on a full time basis into the future.

[47] I have no doubt however that despite the pre-existing injuries Marshall then sustained a number of injuries in this accident. Those injuries have resulted in serious consequences for him. The medical reports support such a conclusion.

[48] I accept that he sustained the injuries set out in the Statement of Claim, the details of which are as follows.

Fractured hand

[49] Marshall suffered a fractured hand which initially was placed in plaster but later required surgery in December 2006. He subsequently developed an infection. Further surgery by Dr Couzens was required to remove screws as the tendon had wrapped around a screw which had become loose in July 2007. There was a further surgical intervention in September 2008 to remove a bone chip. Marshall ultimately will need a joint replacement on his third metacarpal bone.

[50] Dr Gillettt is an orthopaedic surgeon and he gave evidence in relation to Marshall’s injuries. He also made reference to two reports he had prepared in that regard dated 14 April 2008 and 8 December 2008 and his assessment of whole-person impairment in accordance with AMA5 methodology.

[51] In relation to the left hand, he considered that a 2 per cent impairment was appropriate given the pain and discomfort associated with the left hand fracture. He considered that equated to a 3 per cent loss of upper extremity function.

Bilateral knee injuries

[52] Marshall also sustained an injury to both knees when his knees hit the dashboard. The orthopaedic surgeon, Dr Johnson, performed surgery on both knees on 24 April 2007, but within days Marshall developed a deep vein thrombosis (DVT) as a direct result of that surgery. I accept that he was in excruciating pain and was hospitalised for four days and needed to take Warfarin for a period of time. Marshall also considers that his surgeon failed to diagnose his DVT, despite continual complaints by him, and showed him a callous lack of care which nearly caused his death.

[53] Dr Gillett indicated that all the documentation support injuries due to the accident. His assessment in relation to the right knee was a 7 per cent impairment of lower limb function reflecting partial menisectomy and patello femoral changes. He considered this equated to a 3 per cent impairment of lower limb function. Similarly in relation to the left knee he assessed a 10 per cent lower limb function reflecting partial medial and lateral menisectomy which gave a 4 per cent whole person function.

Right shoulder injury

[54] Marshall continued to experience shoulder pain and was referred to orthopaedic surgeon Dr Nutting. He suffered an injury to his acromioclavicular joint and underwent surgery in November 2007, with further surgery in May 2008, where he was an in-patient for 3 days and had his arm immobilised in a sling for 10 days.

Psychiatric Injuries

[55] Marshall developed psychiatric problems as a result of the accident and was referred to a psychiatrist, Professor Barry Nurcombe, who prepared a report dated 19 April 2007. Professor Nurcombe considered that Marshall had an adjustment disorder with depressed mood as well as litigation stress. At that time the psychiatric condition was in remission as he was receiving appropriate anti-depressant medication. In particular, the report noted that Marshall felt upset about the accident given he could have been killed. He was also disgruntled because his knee problems were not diagnosed for a month. That report was prepared prior to the development of the DVT in late April 2007.

[56] It is clear that the continued pain and the traumatic circumstances surrounding his DVT have further compounded his psychiatric injuries. Dr Curtis Gray, psychiatrist, in his report dated 11 March 2009, states that Marshall said he had “gone further down” since the DVT and that he considers he has “cheated death twice’. He noted Marshall’s view was that every time he has an operation he seems to go backwards. Dr Gray confirmed a diagnosis of a severe Adjustment Disorder. He stated that Marshall suffered psychologically in the face of physical injury and he had a lot of distress about the accident. He considered that he was unemployable when he saw him in 2009 and would accept Dr Bell’s opinion as to his current functioning.

[57] Due to the exacerbation of his symptoms, he has seen Dr Bell for psychiatric treatment and also received psychological assistance from a WorkCover psychologist. Dr Bell has provided a number of reports and gave evidence that he has been Marshall’s treating psychiatrist since 2008. He indicated that he was aware that Marshall had seen Dr Gartrell after the 1985 accident and, accordingly, he considered he had a pre-existing psychiatric condition, which was in remission at the time of this accident.

[58] Dr Bell acknowledged that Marshall showed a lot of anger towards his treating medical practitioners after both the 1985 accident and after the current accident. Dr Bell stated that there are a number of factors which account for his Adjustment Disorder, including his anger toward Dr Johnson, as well as “chronic pain, severe chronic pain, the physical restrictions that he now has”.[14] He considered Marshall would need medication long term, given he had suffered “another significant knock to his self-confidence and self esteem”.[15] He agreed, however, that the stress of litigation was also a contributing factor and that his psychiatric condition may well improve after the case has concluded, but “not to the extent that he will ever be anything like he was prior to the accident”.[16]

[59] Dr Bell indicated that he doubted that Marshall could return to any work. He stated:

“Well, if – if you look at the range of his symptoms, his problems, very big problems, with his mood and that’s on a daily basis. You know, he is easily moved to tears. It is very changeable. Five minutes later he could be – instead of tearful he could be totally apprehensive and tense and then he won’t talk to anyone. Five minutes after that he could be very angry. His energy levels are very poor. His motivation is very poor. He doesn’t sleep well, which factors into the problems with his mood and so on. His concentration and memory are very poor. They do vary, they go up and down, but they’re always unsatisfactory in terms of doing any sort of work. For example, a clerical administrative desk-type job, he couldn’t do that. Socially he is very withdrawn. He doesn’t relate well to people because of his psychiatric problems. Yes?– I think it really would be very, very difficult to see what he could do in the way of employment in the future.

How was it that he managed to recover and return to full-time work after that eight-year period off work during which he saw Dr Gartrell for a period of about five years?– Well, I mean, that’s eight years you say that it took him on that occasion. I think he is worse now and if he took another eight years, he’d be 58 before he could consider going back to work. It is just not very likely at all.

But when Dr Gartrell was seeing him he was suicidal, he wasn’t coping well at all, was he?– Well, that’s – that’s very similar to how he is now.”

[60] Dr Bell also carried out a PIRS assessment and allocated a rating of 17 per cent. He also stated:

“I am aware that Mr Marshall sustained a serious physical injury in the 1980’s long before the accident currently under discussion. However, there was no pre-existing psychiatric impairment of any significance prior to the accident on 17.11.06. No consideration therefore needs to be made for any pre-existing psychiatric impairment in the current PIRS assessment.”

 Age  Injury  Dominant  Uplift  Occupation  Past loss  Future loss  G-v-K
50 (M) (a) Fracture of the third metacarpal of the left hand requiring open reduction and internal fixation.

(b) A torn rotator cuff in the right shoulder requiring arthroscopic surgery as well as decompression and excision of the acromio-clavicular joint.

(c) Medial meniscal tears of the left and right knees requiring bilateral surgery.

(d) Consequential deep vein thrombosis.

(e) Psychiatric injury diagnosed as Chronic Adjustment Disorder with mixed anxiety and depressed mood.

Psychiatric – PIRS rating of 17

Item 11

ISV 36

$58,400.00

Painter/truck driver $185,814.75

$216,592.75 for 4 years minus $30,778 earnings and 15% discount.

Discount based on work history of 9 years off over a period of 30 years, together with pre-existing injuries, despite the test in Purkess v Crittenden[1] not being met. The work history “speaking for itself”.[2]

$431,887.89

$1,217.34 per week[3] net for 16.5 years discounting at 5% per annum (multiplier 591.3) yields a figure of $719,813.14 with a 40% discount.[4]

Past $12,000 having met the threshold and then future care at 45 minutes per week at 22.70 per hour discounted at 5% (multiplier 822) for 30 years

$14,000.00

 


[1] [1965] HCA 34; (1965) 114 CLR 164.

[2] At [76] of her Honour’s judgment.

[3] Based on $65,000 gross with a range up to $85,000.00.

[4] Luntz, at p 322 of footnote 116.

Brisbane Barrister – David Cormack

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