WCRA: Drs Gillett & Mulholland preferred to Dr Fraser and Prof Whiteford

Bagiante v Bunnings Group Limited [2012] QDC 120

Dorney DCJ was required to assess damages of a 50 year old female customer service officer who had sustained a closed undisplaced fracture of the left ankle with ongoing chrondral pathology on 26/08/2008 then aged 47 years of age.

His Honour preferred Dr Greg Gillett over Dr John Fraser because Dr Gillett’s view accorded more logically with Dr Greg Stirling, the treating surgeon’s view of the plaintiff’s pain and observations:

His Honour’s findings in this respect were:

[24] Working from that basis, I accept that:

• the plaintiff is presently suffering a significant amount of pain, particularly at the end of a working day (where that invariably requires her to be predominantly on her feet) – although there are many other instances of pain, as set out in paragraph 12 of the plaintiff’s Schedule of Damages;

• the measurable restriction she has is in the range of a 10° to 12° range of dorsiflexion movement, where normal movement is 20° and where less than 10° gives rise to an AMA assessment of a 7% impairment of lower limb function;

• the plaintiff has a distinct loss of motion of the left ankle in comparison to the right ankle; and

• the prospect of needing an arthrodesis, which would potentially leave the plaintiff free of pain but with a limitation of movement, being an operation which would only be undertaken when the pain became “pretty severe”, is rated as a 20% chance of occurring and, if it did occur, it would be over the next 10 to 20 years (according to Dr Gillett) – a conclusion that I have reached even though Dr Fraser’s revised prognostication shows a likelihood of 10 years for the osteoarthritis to develop and a less than 20% chance that it would require an arthrodesis before 20 years – since I have preferred the overall approach of Dr Gillett to the multiple orthopaedic matters that have arisen because such an approach logically accords with the treating surgeon’s observations and conclusions made and reached over the whole of the post-accident period.

In addition the plaintiff suffered from a chronic adjustment disorder, with mixed anxiety & depression.

Dr Mulholland assessed the conditions – PIRS 5 and AMA 6 – 10% and Prof Whiteford  assessed under AMA 4 and PIRS – 5%. Following cross-examination His Honour considered there was no material difference in diagnosis as to the “secondary depression” and the need for psychiatric care, but preferred Dr Mulholland’s view.

His Honour allowed $45,000.00 and in particular noted:

 

[54] On behalf of the defendant, two cases were brought to my attention. The first is Micallef v Collier[5]. There, the plaintiff had suffered a grade 1 compound, comminuted fracture of the left tibia and fibula. He was aged 50 when injured and was aged 56 at trial. The plaintiff there was left with residual disabilities, expressed in whole person terms, as being from 17% to 19%. General damages were in the sum of $35,000.00.

 

[55] The second case relied upon is Cooper v Gladstone City Council[6]. At trial, this plaintiff was aged 43 and had suffered a 10% to 12.5% permanent impairment of the function of the left leg which was opined to increase by 5% over the following 8 to 10 years as a result of progressive post-traumatic arthritic changes. He, again, was awarded $35,000.00 for general damages, it being held to be significant that his injury was associated with a weight bearing limb and that he had relatively constant pain of one form or another.

 

[56] Given the era of the cases relied upon by the defendant, and the age of the plaintiff herself, and noting that the plaintiff now can no longer continue a daily routine of running and recreational touch football (which she stated she had very much enjoyed), I assess general damages in the sum of $45,000.00.

 

The more controversial item was loss of earning capacity.  

His Honour considered the effects of the psychiatric condition did not materially add to the lost earning capacity. In considering the capacity of the plaintiff His Honour rejected the evidence of Ms Anne White, an occupational therapist in preference to the orthopaedic evidence.

In calculating the plaintiff’s loss of earning capacity His Honour considered the likelihood of undergoing an arthrodesis as near certainty. His Honour calculated it would take place in 10 years’ time and have a 50% chance of success. His Honour also took into account her inability to comprehend computer systems so as to transfer into a sedentary capacity, together with 20% contingency that the ankle would stiffen. An award of $173,831.00 was made.

Damages:

Head of Damages Damages
General Damages $45,000.00
Interest on General Damages $1,687.50
Special Damages $21,179.20
Interest on Special Damages $731.25
Past loss of income $11,176.79
Future loss of income $173,831.51
Future loss of superannuation benefits $15,644.84
Future surgical expenses $7,680.20
Future psychiatric treatment $8,000.00
Future pharmaceutical expenses $7,628.75
Future medical expenses $2,000.00
Future travelling expenses $2,000.00
Subtotal Less WorkCover refund TOTAL $296,560.04 $26,915.34

$269,644.70

 

 

Brisbane Barrister – David Cormack

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