Aitkenhead v Kaufline (No 3)
[2014] ACTSC 83
•May 9, 2014
AITKENHEAD v KAUFLINE (NO 3)
[2014] ACTSC 83
TORTS – Contributory negligence – collision between two vehicles at the crest of a country road – where plaintiff was negligent in approaching the crest in the centre of the road – whether the plaintiff’s negligence was a cause of the accident – burden rests on the defendant to demonstrate how the plaintiff’s contributory negligence made a difference to the injury suffered – the plaintiff’s negligence did not increase the likelihood of the accident or increase the severity of the damage.
Civil Law (Wrongs) Act 2002 (ACT) s 102
Road Transport (Third-Party Insurance) Act 2008 (ACT) s 151(4)
Froom v Butcher [1976] QB 286
Hannan v MacLean (1989) 9 MVR 219
Hoare v Rudd (1989) 9 MVR 229
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
SC 275 of 2012
Judge: Master Mossop
Supreme Court of the ACT
Date: 9 May 2014
IN THE SUPREME COURT OF THE )
) No. SC 275 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:JONATHON AITKENHEAD
Plaintiff
AND:EVAN KAUFLINE and INSURANCE AUSTRALIA LTD trading as NRMA INSURANCE
Defendant
ORDER
Judge: Master Mossop
Date: 9 May 2014
Place: Canberra
THE COURT ORDERS THAT:
1. Judgment be entered against Insurance Australia Ltd in the sum of $722,687.
2. Insurance Australia Ltd is to pay the plaintiff’s costs of the proceedings.
3. Order 2 does not take effect if a party notifies my associate by email within 7 days of the date of this order that it wishes to be heard in relation to costs.
Claim
By originating claim dated 3 September 2012 the plaintiff has claimed damages for personal injury arising out of a motor vehicle accident. That accident occurred on 14 September 2009 on Woods Lane in the Australian Capital Territory. The plaintiff alleges that he suffered injuries to his back, neck and right knee. The claim in relation to his right knee was not pursued at trial.
The defendant has admitted that he breached his duty of care but does not admit the precise allegations of negligence made against him. The defendant alleges that the plaintiff was guilty of contributory negligence in that he was driving at excessive speed, did not keep his vehicle wholly or substantially on the left-hand side of the road when approaching the scene of the collision, failed to take of evasive action, failed to take care of for his own safety and failed to keep any proper lookout.
The accident
Woods Lane is a graded dirt road which runs from HMAS Harman through to Lanyon Drive. In 2009 it was in reasonable condition. It runs parallel to and immediately to the west of the railway line which forms the border between the Australian Capital Territory and New South Wales.
The accident occurred near the crest of a hill. Both the northern and southern approach to the accident site along the road had an uphill gradient. On either side of the crest the uphill gradient was approximately 8% although approaching from the south the gradient increased more rapidly compared to the gradient on the northern approach. As a consequence, northbound traffic had a steeper approach to the crest of the hill compared to the traffic on the southbound approach. The road surface was not of a dangerous nature. The general topography of the surrounding landscape made it obvious to any reasonable driver that the road was approaching a natural crest. There was therefore no suddenness or surprise to any driver maintaining normal awareness that the road was approaching a crest. This situation applied to vehicles going in either direction.
The plaintiff was travelling south along the road from Fyshwick to Conder. The plaintiff had travelled along the road on many previous occasions and he was familiar with it. He was driving a white Toyota Hilux that had a bull bar fitted. His evidence was that:
(a)he was travelling at between 55 and 60 km an hour as he approached the crest;
(b)he was pretty close to the left-hand edge of the roadway to the left of the notional centre line of the road;
(c)as he came over the crest he saw something coming towards him on his side of the road, fully in his lane;
(d)he tried to swerve right to go around it but the vehicles collided.
The defendant on the other hand was driving his father’s Ford Falcon “one tonner” north on Woods Lane in the direction of HMAS Harman. He had driven the road “maybe once” before. His evidence was that:
(a)he was travelling at an estimated 45 km an hour (the equivalent of 12.5 m/s);
(b)as he got to the top of the rise he saw another vehicle in front of him;
(c)his best estimate was that he saw the plaintiff’s vehicle for the first time approximately 10 metres from the point of impact;
(d)he was on his side of the road about 2½ tyre widths in from the edge of the road;
(e)when he first saw the plaintiff’s vehicle it was half way across the notional centre line.
If the plaintiff’s and defendant’s estimates of their respective speeds are accepted then the closing speed of the vehicles prior to the accident was at least 100 kilometres per hour or 27.8 metres per second. Adopting the defendant’s best estimate of the distance at which he first saw the plaintiff’s vehicle of 10 metres would give a time interval of 0.36 seconds for the defendant to react to the impending collision. If 20 metres was adopted instead the time would be 0.7 seconds.
The defendant drew a diagram illustrating the position of the vehicles at the point of impact. That diagram, which became Exhibit 27, showed the defendant’s vehicle on the left-hand side (west) side of the road pointed as though attempting to turn right to avoid the plaintiff’s vehicle. The plaintiff’s vehicle was shown substantially on the wrong (west) side of the road turning right towards the west as if attempting to go around the plaintiff’s vehicle on the western side. In other words both cars were turning to the right at the point of impact. This diagram was inconsistent with the suggestions that were put to the plaintiff by counsel for the defendant in cross-examination which were based on the proposition that the plaintiff was completely on the wrong side of the road and was turning left at the point of impact.
The plaintiff’s and defendant’s cars collided. Photographs taken at the scene of the accident show very extensive damage to the front of both vehicles. Both plaintiff and defendant were lucky to be able to walk away from the accident. The plaintiff hit the front of his head just above the windscreen and the back of his head on the back window. The defendant got out of his vehicle and asked the plaintiff whether he was okay. The defendant kicked his vehicle and swore loudly. The plaintiff got out of the vehicle and asked the defendant what speed he was doing. The defendant did not reply. The plaintiff also asked the defendant whether he had been drinking. The defendant said he had not. The defendant then asked the plaintiff whether he had been drinking and the plaintiff said he had not. The plaintiff called police who said that they would not attend unless an ambulance was required. He also called a friend of his, Shaun Borman who attended in his four-wheel-drive vehicle and took photographs. The defendant’s father also attended the scene within a few minutes of the accident.
Tow trucks came and removed the vehicles. The plaintiff went to Mr Borman’s house and the plaintiff’s parents came and collected him. He travelled with them to Tuggeranong police station to report the accident and then went to Cooma Hospital where he was x-rayed and given some medication. The next morning the plaintiff noticed significant pain in his neck which “just felt like a dead weight”. He had a lump on his head and a headache. In the week following the accident he also noticed pain in his mid to lower back.
In text message communications between the plaintiff and the defendant the next day, the plaintiff requested information about the defendant’s insurance status and the defendant indicated that he did not propose to report the accident to police because “we will both be charged with negligent driving”.
Contributory negligence
Findings in relation to the accident
Colin Wingrove is a consultant transport engineer who has conducted a full-time consulting business since 1991. He holds a Bachelor of Science and Master of Engineering Science (Transport Engineering) from the University of New South Wales. He has experience with assessing motor vehicle accidents and accident reconstruction including as a consultant to the New South Wales police. He prepared two reports in relation to the accident dated 17 February 2012 and 24 March 2014 and was cross-examined. In his first report he explained the difference in rigidity between the plaintiff’s and the defendant’s vehicle, namely, that the plaintiff’s four-wheel-drive was substantially more rigid compared to the defendant’s Ford Falcon. As a consequence the plaintiff’s vehicle would pivot about its nearside front corner when the collision occurred whereas the less rigid defendant’s vehicle would sustain a greater degree of compression or compaction damage. He expressed the view that the photographs showed a situation which offered no other explanation than that the defendant’s vehicle was completely on the incorrect side of the road immediately prior to the collision. In his second report he made it clear that although he had made reference to a proof of evidence of Shaun Borman, that material was merely corroborative of his conclusion based on the other material that was available to him. He also recorded that in his opinion neither motor vehicle moved forward or backward any significant distance from the location of the initial collision and that the energy of the collision was consumed, in the case of the defendant’s vehicle, by the compaction or compression of the panelling whereas on the plaintiff’s four-wheel-drive the energy was consumed in the bending of the bull bar and chassis rail as well as in the counter clockwise rotation of the vehicle.
The evidence of Mr Wingrove was inconsistent with the proposition that had been put to the plaintiff in cross-examination that the plaintiff was attempting to turn to the left so as to move from the wrong side of the road to the correct side of the road immediately prior to the accident. Mr Wingrove was of the opinion that the vehicle damage was inconsistent with such a proposition. That was because the pattern of damage indicated that the vehicles struck each other while travelling in directly opposite directions. He did not accept the proposition that the position of the wheels of the plaintiff’s vehicle shown in the photographs indicated that the plaintiff had turned the wheels so as to direct the vehicle to the left. His evidence demonstrated that the wheel position shown in the photographs was as a consequence of the left-hand side of the axle being pushed back rather than as a consequence of the turning of the steering wheel.
His evidence was that the impact damage and the vehicle tracks left by the plaintiff’s vehicle which were visible in the photographs were consistent with the plaintiff’s vehicle travelling, immediately prior to the accident, in substantially a straight line. Exhibits 19 and 20 were marked up photographs showing those tyre marks.
Although he could not say anything about the position on the road of the two vehicles more than two seconds prior to the accident, he could say that there was no lateral movement in that period or at least insufficient movement for the defendant’s vehicle to have travelled from the correct side of the road to the incorrect side of the road where the collision occurred. Had there been such lateral movement he said that it would have shown up in the pattern of damage that occurred and it was not evident. He explained the crease mark in the bonnet of the defendant’s vehicle caused by the plaintiff’s bull bar which was consistent with the vehicles colliding head on without significant lateral movement. Similarly any such lateral movement of the plaintiff’s vehicle would have produced different tyre marks than those observed.
His evidence was that the reaction time of a normal driver was 1.5 seconds and that a vehicle moving laterally across the road in the manner required to, for example, change lanes, would take one second to move one metre laterally regardless of speed.
In my view the evidence of Mr Wingrove in combination with the photographic evidence in Exhibits 1, 19, 20, 21 supports the plaintiff’s case and is inconsistent with the defendant’s evidence. That is because Mr Wingrove’s evidence, which I accept, indicates that:
(a)The vehicles were travelling in a straight line at the point of impact.
(b)There was no lateral movement in the 1.5 seconds prior to impact as this did not show up in the pattern of damage or the visible tyre marks.
(c)At the point of impact the defendant’s vehicle was positioned on the right hand (east) side of the road and upon impact the rear of the defendant’s vehicle displaced slightly to the east.
(d)At the point of impact the plaintiff’s vehicle was positioned in the middle of the road and upon impact, the plaintiff’s vehicle rotated counter clockwise so that the rear of the vehicle was substantially displaced to the west.
(e)That the difference in rotation of the vehicles upon impact was due to the difference in rigidity of the two vehicles.
(f)The apparent turning of the wheels on the plaintiff’s vehicle was caused by displacement of the axle during the crash and not by the turning of the steering wheel prior to the collision.
These findings are inconsistent with the defendant’s evidence in so far as the defendant said:
(a)that he was on the left hand (west) side of the road at the point of collision;
(b)that he was in the process of turning to the right at the point of collision; and
(c)that the plaintiff was attempting to turn right at the point of collision.
The findings are also inconsistent with the evidence of the plaintiff who said that he was completely on the left hand side of the road when he first saw the defendant. Given that, on the evidence of Mr Wingrove, there was limited opportunity for lateral movement and that the pattern of damage was not consistent with lateral movement, it is more likely that at the point where he first saw the defendant’s vehicle the plaintiff’s vehicle was travelling down the middle of the road.
In accepting Mr Wingrove’s evidence as to the position and direction of the defendant’s vehicle immediately before the accident I have also had regard to my observations of the defendant in the witness box which, consistently with the document he drew and his explanation of how his vehicle came to rest in the position that it did, was not such as to inspire confidence in the reliability of his recollection.
As a consequence I accept the plaintiff’s evidence that when he first saw the defendant’s vehicle it was travelling on the right hand (east) side of the road. It was travelling along the road with its wheels in the position on the road shown by the front wheels in photograph 1 of Exhibit 1, namely, with the right hand wheel at the right hand edge of the drivable surface of the road. It was thus driving over a crest on the wrong side of the road when it struck the plaintiff’s vehicle.
Conclusion on contributory negligence
Crests on country roads are not unusual. In the present case the landscape around the crest would have made it obvious to any reasonable and prudent driver that a crest was approaching and that care should be taken. It is not uncommon on dirt roads of the width of this one for vehicles to be travelling in the middle of the road so as to follow the most worn area and avoid the loose gravel on either side. Thus any reasonable driver would have approached this crest with caution having regard to the possibility that another driver might approach them along the middle of the road.
In the present case the defendant has alleged, and bears the burden of proving that, the plaintiff’s injury was contributed to by his own negligence. Section 102 of the Civil Law (Wrongs) Act 2002 provides:
102Apportionment of liability—contributory negligence
(1)If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of someone else’s wrong—
(a)a claim for the damage is not defeated because of the claimant’s contributory negligence; and
(b)the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant’s share in the responsibility for the damage.
(2)However, if the claimant suffered personal injury and the wrong was a breach of statutory duty, the damages recoverable by the claimant for the personal injury must not be reduced because of the claimant’s contributory negligence.
The only particular of contributory negligence that was pursued by the defendant was that the plaintiff failed to keep his vehicle wholly or substantially on the left-hand side of the roadway on his approach to the scene of the collision. There was no evidence or submissions directed to the other particulars, namely, travelling at excessive speed, failing to take evasive action, failing to keep a proper lookout or failing to take care for his own safety.
Section 102 requires the claimant to have suffered damage “partly because of the claimant’s failure to take reasonable care”. This involves a causal link between the claimant’s failure and the suffering of damage. In relation to the failure to keep the plaintiff’s vehicle wholly or substantially on the left hand side of the roadway, the defendant therefore bears the onus of proving both the breach of duty and the causal connection between that breach and the damage suffered by the plaintiff. Adopting the words of Wright J in Hannan v MacLean (1989) 9 MVR 219 at 226: “the onus rests upon the defendant and it is necessary to show a causal connection between the conduct complained of and the injury sustained.”
I am satisfied that the plaintiff failed to take reasonable care when approaching the crest by driving in the centre of the road. In my view a reasonable driver approaching an obvious crest would ensure that his or her vehicle was positioned on the left-hand side of the road as close as reasonably possible to the left-hand edge so as to permit another vehicle approaching from the opposite direction the maximum opportunity to pass safely. In the present case the plaintiff failed to move to the left of the road but approached the crest at least partially over the notional centre line of the road.
The issue then becomes whether the defendant has proved that the plaintiff suffered damage “partly because of” his own failure to take reasonable care. In other words, did the fact that the plaintiff drove in the centre of the road rather than the left of the road contribute to the damage that he suffered? That may be either because the plaintiff’s negligence was a cause of the accident or because, even if not a cause of the accident, the damage suffered by the plaintiff was increased by reason of his negligence. That distinction was illustrated in relation to contributory negligence due to failure to wear a seat belt by Denning LJ in Froom v Butcher [1976] QB 286 at 292.
In most accidents on the road the bad driving, which causes the accident, also causes the ensuing damage. But in seat belt cases the cause of the accident is one thing. The cause of the damage is another. The accident is caused by the bad driving. The damage is caused in part by the bad driving and ... in part by the failure of the plaintiff to wear a seat belt.
Was the plaintiff’s negligence a cause of the accident? This must be assessed in the light of my finding of fact that the defendant was driving on the incorrect side of the road. Had the plaintiff been driving as far as possible to the left of the road then, because of the position of the defendant’s vehicle on the same side of the road the likelihood of a collision would have been increased. As a consequence the fact that the plaintiff was driving closer to the centre of the road did not increase the likelihood of an accident. Rather it tended to reduce it because of the increased likelihood that the vehicles may have been able to avoid a collision notwithstanding the defendant’s negligent driving.
Was the plaintiff’s negligence a cause of the damage? The negligence of the plaintiff meant that the collision between the two vehicles was an offset head-on collision in which only part of the front of each vehicle struck the other. Had the plaintiff been travelling as far as possible on the left-hand side of the road the collision would have been a head-on collision in which a greater proportion of the front of each vehicle collided. There is no evidence that the fact that the collision was an offset head-on collision increased the damage to the plaintiff when compared to a complete head-on collision. In a more common case where the allegation of contributory negligence relies upon the failure to wear a seatbelt it has been held that it is incumbent on the defendant to lead precise evidence as to how wearing a seat belt would have made a difference: Hoare v Rudd (1989) 9 MVR 229 at 234 per Meagher JA. In my view the same approach is applicable to the circumstances of this case namely that if damages were to be reduced on account of contributory negligence the burden was on the defendant to demonstrate how the plaintiff’s contributory negligence made a difference to the damages suffered. He has not done so.
In summary, I am not satisfied that the defendant has proved that the plaintiff’s negligence in approaching the crest in the middle of the road increased the likelihood of the accident or increased the severity of the consequences of the accident. As a consequence I am not satisfied that the plaintiff has suffered damage “partly because of” his own negligence for the purposes of s 102. Therefore I am not required under that section to reduce the damages that are recoverable.
Damages
The plaintiff was born in 1982. At the end of 2000 he completed high school in Cooma. He commenced an apprenticeship to become a mechanic and worked for the Perisher Blue Ski Resort while attending Cooma TAFE. In January 2003 he moved to Goulburn and enrolled in Goulburn TAFE. His apprenticeship was transferred to Fieldtech Industries and he was engaged in repairing the diesel engines and hydraulics of heavy plant, equipment and trucks. He completed his apprenticeship in February 2004 and was employed by Divall’s Earthmoving as a diesel mechanic. In early 2005 he lived on the south coast, obtaining work repairing trucks and machines as well as labouring work involved in demolitions. In October 2005 he moved back to Canberra and was employed with Capital Truck & Track which was located in Hume. He was involved in heavy mechanical work on trucks and large earthmoving machines. The work involved personally lifting weights of up to 80kg. It also involved working in confined spaces under or in the machines. In February 2006 he left Capital Truck & Track and worked for Pirtek in Goulburn. That company specialised in hydraulic hoses and mechanics. In mid 2006 he was sent by Pirtek to Cobar to work as an underground fitter in a mine. The mine was an underground iron and copper mine. He was placed there as a result of a sub-contract between Pirtek and another entity involved in the operation of the mine. He worked there as an underground fitter for around six months. Initially it involved working underground in the workshop on just regular maintenance of machines but he was promoted to being a breakdown fitter, dealing not only with routine maintenance but also fixing machines that had broken down in the field. The work involved keeping the underground loaders and face drills operating 24 hours a day. It involved moving heavy weights and getting into confined spaces. It was not unusual for an individual to be moving weights of 50 kg. When he was there he met David Caldwell who was a senior diesel fitter leading hand as well as a workplace trainer at the site. The plaintiff and Mr Caldwell worked closely together and were friendly with each other. They lived at the same motel. Mr Caldwell made a positive assessment of the plaintiff saying “he’s extremely competent in his field. Physical-wise he’s extremely fit and healthy, which is what we look for because it’s a very physically demanding job…”.
When the work ran out in Cobar the plaintiff had a couple of months off and then returned to the Canberra region and obtained work with Mr Geoff Wallace. Mr Wallace ran a business relocating whole houses. The plaintiff started working with Mr Wallace in November 2007. The process of relocating houses involved using hydraulic jacks that would have to be manoeuvred into place and then using those jacks to support heavy steel beams under the house which were then jacked up. The house was cut into sections and then moved to its new location on the back of a truck. The process involved using a bobcat to pull the steel beams so as to separate the sections of the house as well as for clearing up the site. The plaintiff became proficient at driving a bobcat. The plaintiff lived in a caravan on Mr Wallace’s property at Murrumbateman. He was paid at an hourly rate of around $17 per hour. The plaintiff took the opportunity to obtain short term highly paid work on shutdowns of major industrial undertakings. This was hard, short-term work but paid very well. In July 2008 he went to Kwinana in Western Australia to work on the shutdown of a site there. He later worked on a project in Victoria.
In April 2009 he left Mr Wallace’s employment and went to Brisbane to provide some assistance to his brother’s family as his brother, who was in the Defence Force, had been deployed to East Timor and his wife and kids needed assistance. While the plaintiff was in Brisbane Mr Caldwell rang him and asked whether he was interested in working on a mine in Mt Isa as a breakdown fitter for a salary of around $120,000 per year. The plaintiff explained that he would have loved to have gone but could not do so at the moment because he was helping his brother’s wife and kids.
In August 2009 the plaintiff returned to the Canberra area. He contemplated joining the army and completed a medical questionnaire as part of an application to do so. However for reasons which are not disclosed by the evidence that application either was not pursued or did not result in him joining the army. He did not take any steps to pursue employment in mining either through Mr Caldwell or otherwise.
About 10 days before the accident which occurred on 14 September 2009 the plaintiff said he was contacted by Mr Wallace who enquired about whether he was looking for work. A more senior employee of Mr Wallace, Mr Wayne Stewart, had said that he wished to cease employment with Mr Wallace and return to live in Parkes, where his family lived. Mr Wallace said that he had a few jobs starting in Lyneham in Canberra and that he was prepared to employ the plaintiff for between $1,200 and $1,300 net per week as well as provide him with a ute and a mobile phone. Mr Wallace’s evidence was that he offered him “90 odd thousand a year plus vehicle, phone”. In the financial year ending 2009 a gross salary of $90,000 per annum would have resulted in an after tax income of $67,000 or $1,288 per week. The evidence of the plaintiff and Mr Wallace was therefore consistent and I accept it. There was no clear evidence of the value of the vehicle and the mobile phone or whether provision of the vehicle also involved provision of fuel. The plaintiff’s evidence was that he was due to start on 15 September 2009 although Mr Wallace’s evidence was that it was two or three days after the date of the accident. However he was due to start with Mr Wallace within a small number of days after the date of the accident.
The taxation records of the plaintiff indicate that the taxable income of the plaintiff in the financial years ending 2005, 2006, 2007, 2008 and 2009 was as follows.
Financial year ending Taxable income 2005 $32,465 2006 $36,354 2007 $55,048 2008 $15,778 2009 $37,191
The pattern of income reflects the fact that on some occasions there was a lack of continuity in the plaintiff’s employment but also the fact that the plaintiff was gaining significant experience as a diesel and hydraulic mechanic. In the financial year prior to the year of the accident the plaintiff was working for Mr Wallace but was able to perform shutdown work in Victoria and Western Australia earning on average between $1,300 and $3,200 per week.
Following the accident, on 23 September 2009 the plaintiff returned to his GP. He was not an enthusiastic visitor to the doctor but his mother suggested that he go. He was given some painkillers and told to get some physiotherapy. He was prescribed Panadeine Forte and made a claim on the NRMA for physiotherapy treatment. He went back to see his general practitioner on 9 October 2009 and his neck was “still bad”. The pain in his lower back had got a bit worse. The headache associated with where he had hit the windscreen had gone. He had difficulty moving his neck and it was very stiff if he tried to turn it from side to side or up or down.
About three weeks after the accident he attempted to get back to work with Mr Wallace. There were some inconsistencies between the evidence of the plaintiff and Mr Wallace as to exactly what work he was doing. However the evidence was that the plaintiff attempted to perform some work but only lasted about half a day. The plaintiff said that he tried to drive the bobcat but bouncing around on rough ground was too painful for his back and neck. Instead he did some work on the wiring of the bobcat. Mr Wallace observed that he was unable to move hydraulic jacks without assistance, less able to move the 20 kilogram wooden pallets that were used, less able to tighten the tie down chains and was less agile when getting in and out of buildings and trucks. These observations indicated to Mr Wallace that the plaintiff was less able than prior to the accident. He said: “He just wasn’t the person he was. It was quite a shock.”
The plaintiff had received some physiotherapy in Cooma and in December 2009 some physiotherapy was approved and he received that from Jac Cousin at Canberra Physiotherapy. At that stage the plaintiff’s complaints were of neck and back pain as well as intermittent paraesthesia of his right hand and intermittent headaches. Although he applied for treatment of his back that was not approved by the NRMA which had funded treatment of his neck.
In early 2010 he made a further attempt to do work for Geoff Wallace over a couple of days. This may have been the occasion which Mr Wallace also recalled but his recollection of what occurred was sketchy.
At this stage the plaintiff had lower back and neck pain. He was receiving benefits from Centrelink. He had been prescribed Panadeine Forte, Tramadol and Mobic by his general practitioner. He also received medication for his headaches, namely, Isoptin. He applied for a number of jobs and in each case made disclosure of his neck and back pain. He was not successful in obtaining work. By mid-2010 he had seen a number of doctors at the request of his solicitor including Dr Brooder and Dr Conrad.
In May 2010 he was contacted by Mr Caldwell once again who was ringing from Mount Isa. Mr Caldwell was ringing to check whether he was available for work in the mines. Mr Caldwell’s evidence was that because of the very favourable impression that he formed of the plaintiff’s work capacity when working at Cobar he continued to chase him when there was a recruiting drive at the mine on which he was working to see if the plaintiff wished to be employed. Mr Caldwell’s evidence was:
You did have the opportunity of seeing Mr Aitkenhead work in a mine at Cobar for a number of months? --- Yes.
Did you make any observation as to whether he appeared to enjoy it?---He loved it. That’s one of the ‑--
Well, what did you observe ‑--? --- reasons why we liked him.
I’m sorry? --- He loved it. In my opinion, he loved it. It’s one of the reasons why we were chasing him.
How did you come to know he loved it? --- Whenever there was a breakdown he was the first one up out of the crib room. If there were problems in the mine, like specialist positions, I commonly go down and do the harder problems. He’d be the first one into the breakdown unit. I mean, to be honest with you, for want of a better term, he was a bit like Ricochet Rabbit when I knew him before.
I don’t understand that? --- So very active.
Right? --- Not hyperactive, but just very active.
Ricochet Rabbit was a cartoon character who was, as his name suggests, known for his speed in moving from one place to another. Ricochet Rabbit & Droop-a-Long was a segment of Hanna-Barbera’s The Magilla Gorilla Show first screened in 1964 but the character subsequently appeared in a number of other cartoon shows. Consistently with the explanation given by Mr Caldwell, the reference to the plaintiff being like Ricochet Rabbit was therefore a complementary one, suggesting the plaintiff was an energetic, quick and enthusiastic worker.
The plaintiff told Mr Caldwell that he was not able to take up the offer because he was having pain in his lower back and his neck and that he would not be able to go back to work as an underground fitter at that time. That was because he could not be constantly on the go for 12 or 14 hour shifts, standing for hours at a time, getting into tight spots in machines or doing the heavy lifting required as part of the job. The plaintiff’s evidence was that if he had not had the car accident he would have “jumped at” the offer of work from Mr Caldwell. He was asked what he liked about working in the mine:
What is it about the work in the mine that attracted you?---Being underground, not being contactable by anyone, just the work that we did, working on the big machines.
What about the money?---It’s a bonus.
Towards the end of 2010 the plaintiff obtained his truck driver’s licence because he had been told by a friend that if he did he would be able to obtain work with a Luca Pratazina. He was able to get his licence with assistance from the Commonwealth Rehabilitation Service (CRS). Once he had obtained his licence he was engaged by Mr Pratazina as a subcontractor. When he started work he wore a back brace provided by the CRS and used some seat supports. He did heavy rigid tipper truck driving work around Canberra. Very occasionally he did bobcat work but that aggravated his back pain. His general practitioner continued to prescribe him Tramadol, Panadeine Forte and Panadol Osteo. He was able to get out of the truck every hour or so and have a stretch. He was not required to service the vehicles or load the truck.
The pattern of the plaintiff’s back pain was that it got gradually worse during the week and was better at the end of the weekend than on the previous Friday. He found it manageable even on a Friday but took painkillers of one sort or another each day. He did not like taking pills and avoided taking them if possible.
His evidence was that when he was working for Mr Pratazina he could not have gone back to work as a diesel mechanic or in the mines because all of the lifting and climbing would have been too difficult.
In April 2011 he left his job with Mr Pratazina and commenced working for Capital Hydraulics and Drainage as a truck driver. He drove a Volvo heavy rigid tipper. In March 2012 he was asked to assist with servicing some of Capital Hydraulics’ vehicles but this aggravated his back and he was no longer required to do it. In giving his evidence he volunteered that he probably would have been able to continue doing it if he kept taking painkillers. In August 2012 he upgraded his truck licence to a truck and trailer licence. In this job he was able to get out of the truck and walk around and stretch when he needed to. If he was unable to, his back would get stiff and sore. Once again, his back was worse on a Friday afternoon than on the following Monday after a quiet weekend. In 2012 he sought very little attention from his general practitioner who had prescribed painkillers for him. In June 2013 he changed general practitioners and received some chiropractic treatment. His back was aggravated by trying to lift anything heavy or standing up for long periods of time or bending or twisting.
On occasions as part of his job he is required to load vehicles or plant on the back of the tipper that he drives. That aggravates his back but he does not complain about it for fear of making himself a less attractive employee. He is generally reluctant to take painkillers unless absolutely necessary and his evidence was that “I’m nearly in tears before I’ll take it”. He currently takes Panadol Osteo, Panadol Rapid and Nurofen Plus.
He currently works full time. He uses a lumbar support brace and has a good seat in his truck. He lives in Goulburn and travels from Goulburn to Mitchell each day a round trip of 187 kilometres.
As a result of the accident he has limited some of his recreational activities, in particular paintball, but has been able to continue to go shooting and been able to undertake boxing related exercise program known as “boxercise”.
The picture painted by the plaintiff was of a worker who was able to do a full time job as a driver with manageable aggravation of his back pain. That back pain is at a level where it does not significantly impact upon his capacity to perform employment as a truck driver but which precludes him from undertaking heavier skilled work for which he was trained and previously employed.
The plaintiff relied on expert medical opinion from:
(a) Dr Ronald Brooder, consultant neurologist;
(b) Dr Peter Conrad, surgeon;
(c) Dr Alan Searle, consultant orthopaedic surgeon;
(d) Mr Jac Cousin, physiotherapist.
The defendant relied upon the report of Dr Virginia Pascall, occupational physician.
The most useful starting point is the report of Dr Brooder, who was not required for cross-examination and whose reports the defendant largely accepted. He examined the plaintiff in November 2009 and January 2012. Both reports were prepared on the erroneous basis that the plaintiff’s pre-accident occupation was as a bobcat driver. In his report of January 2012 Dr Brooder considered that the plaintiff suffered a musculo-ligamentous injury involving the supporting structures of his mid lumbar and lower lumbar spine involving particularly the ligamentous support of the facet joints. As a consequence he has also developed secondary muscle spasm involving the lumbar paraspinal muscles. He also suffered a ligamentous injury involving the cervical interspinous ligaments and the ligamentous support of the facet joints. That lead to secondary muscle spasm involving the cervical paraspinal muscles. The plaintiff also suffered secondary migrainous headaches. He considered that the plaintiff’s prognosis was reasonably favourable and that there was a reasonable prospect that in time there would be further improvement in his current symptoms.
Dr Conrad examined the plaintiff in February 2010 and again in October 2013. In his 2013 report he concluded that the plaintiff would have difficulty returning to full on heavy labouring work and says that he is able to work as a truck driver or excavator operator so long as he is able to sit or stand at will and not lift anything more than five kilograms in weight and not perform repetitive lifting or bending. He did not consider he would be able to return to heavy work in the mining industry in the future. He suggested his prognosis was guarded.
Dr Searle saw the plaintiff in March 2010, January 2011, October 2011 and October 2013. Dr Searle considered that the plaintiff’s neck and back injuries were persistent and permanent and caused a moderately severe degree of disability. He considered that treatment would continue to be conservative. He maintained his opinion that the plaintiff was permanently fit for light work only and unfit for activities requiring sustained neck flexion posture, repetitive movements of the head and neck, prolonged sitting or prolonged standing, lifted or repeated bending, twisting movements of the trunk or regularly travelling a moderate distance.
Mr Cousin recorded the results of his examination in December 2009 which showed cervical movements as mildly restricted and lumbar movements restricted and painful.
Dr Pascall examined the plaintiff on 26 March 2012. Dr Pascall recorded that although the plaintiff’s neck was not 100% it was a lot better than after the accident. She considered that the paraesthesia in the plaintiff’s hand was part of the cervical injury. The central and lower pain in his back was not constant. She was of the opinion that the plaintiff’s restrictions on his neck and lower back were attributable solely to the motor vehicle accident. She recorded that the undertaking of a fitness program by the plaintiff has provided him with great improvements but that he may need to concentrate more on his core lumbar muscles than on general fitness. She did not consider that any difficulties relating to his right knee were attributable to the motor vehicle accident. She considered that targeted strengthening of lumbar core muscles was appropriate but that specialist intervention was not required. The report seems to have been based on the misunderstanding that the plaintiff was previously a bobcat operator. She recommended reducing the intake of strong analgesics.
There was, in substance, little relevant difference between the opinions of the doctors. Each accepted that he had suffered an injury to his back and neck as a consequence of the accident. Each accepted that his back injury was causing him ongoing pain. There was a difference in view as to his prognosis although that difference was a matter of emphasis because each accepted that treatment would remain conservative. None of the medical evidence indicated that the plaintiff would be capable of returning to the very heavy work that he was engaged in when working as a diesel fitter underground or the kind of heavy work involved in the house moving business that he had previously done for Mr Wallace.
The defendant raised a number of issues in relation to the credibility of the plaintiff’s witnesses and the extent of the disability suffered by the plaintiff in order to support its case in relation to contributory negligence and to reduce any damages which were to be awarded. While I have taken these matters into account in the findings I have made above I will specifically address the principal grounds of attack below.
Medication: The defendant submitted that notwithstanding a number of requests from the defendant’s solicitor for documents evidencing the purchase of prescription medication, the plaintiff had not provided any prior to the commencement of the hearing. The only actual evidence of the purchase of medication were the boxes for Mersyndol, Orudis and Cymbalta, showing purchase price, date and location which became Exhibit 23. They were only purchased on 12 March 2014 at a time when Exhibit 16 discloses the solicitors for the defendant were pressing solicitors for the plaintiff to produce some evidence of the purchase of prescription medication. Counsel for the defendant submitted that the plaintiff’s evidence that he had purchased prescription medication should not be accepted and that he was not in fact required to take prescription medication in order to be able to carry out his current work.
On this issue I accept the evidence of the plaintiff that he does need to take prescription and non-prescription medication when his back is causing him pain at work. I also accept his evidence that he is reluctant to take prescription medication and only does so occasionally when absolutely necessary. That is consistent with his stoic attitude and dislike for stronger medication. It is also consistent with the evidence of his partner that he took both prescription and non-prescription medication and the continuing, albeit variable, prescription of such medications by his doctors. The fact that he has not been able to keep records proving his medication expenses in the past is consistent with him only taking it occasionally and means that he will not recover those amounts. That is his loss. But his lack of forensic diligence or organisation is not something which in my view indicates that he does not need such medication on occasion.
Wallace job offer: The offer from Mr Wallace is significant in that it demonstrates the confidence that Mr Wallace had in the plaintiff who was, at that stage, only 26 years old. Mr Wallace gave evidence that he was capable of running a crew of people moving a house, capable of making judgments about whether a house was suitable to move and knew every aspect of the physical work involved in moving houses.
The defendant submitted that there was an inconsistency between the evidence given by the plaintiff and the evidence given by Mr Wallace about the content of his offer of employment that was to have commenced shortly after the accident. The plaintiff’s evidence was that he would take home between $1,200 and $1,300 per week as well as getting a unit and a phone. Mr Wallace’s evidence was that the salary would be between $80,000 and $90,000 a year but that the precise amount would be something that would need to be sorted out with his wife who ran the administrative side of the business. The defendant’s submission was based on the proposition that both witnesses gave evidence of the gross wage however the evidence of the plaintiff was that the $1,200 and $1,300 per week was a take-home figure. As I have pointed out above, the evidence given by the plaintiff and Mr Wallace was in fact consistent and this evidence supports rather than detracts from the reliability of the plaintiff’s evidence.
Mr Wallace’s evidence about the plaintiff’s condition: Mr Wallace gave evidence that on one of the occasions when the plaintiff attempted to return to work shortly after the accident he observed him undertaking activities which he could have readily performed prior to the accident and noticed his difficulty in doing them unassisted. His evidence is summarised at [39] above. This was significant evidence because it provided corroboration of the significant change in the capacity of the plaintiff before and after the accident. An unsuccessful attempt was made to undermine this evidence having regard to the absence of any reference to that comment in a statement previously prepared by Mr Wallace. However, the defendant ultimately conceded that the statement taken did not cover the period after the accident and hence no adverse inference could be drawn from the absence of any reference to the conversation in the statement.
Next it was submitted that the evidence was unreliable because it was not lead in examination-in-chief. I do not accept that submission. One of the hazards of a probing cross-examination is that questioning elicits answers which damage the cross-examiner’s case. This was such a situation. I found Mr Wallace to be a credible witness doing his best to give honest evidence to the Court to the full extent of his recollection and without any temptation to go beyond that. I therefore accept his evidence of his observations of the plaintiff and the conversation that occurred.
Job offers by Mr Caldwell: The plaintiff gave evidence that he had been offered an underground mining job by his friend and previous workmate David Caldwell on two occasions, one when he was in Brisbane in 2009 and again in May 2010. That evidence was corroborated by Mr Caldwell. The defendant submitted that there was serious doubt as to whether the offers of employment had been made. He pointed to a letter written by Mr Caldwell in 2011 which became Exhibit 25. He also pointed to the existence of the application to join the army and suggests that had Mr Caldwell said to the plaintiff that he should call him if he ever needed employment then it was unlikely that the plaintiff would have completed this form or sought work from Mr Wallace. I do not accept that either of these points cast any doubt upon the evidence of Mr Caldwell which convincingly corroborates the evidence of the plaintiff. Mr Caldwell’s evidence was impressive and there was not an inconsistency between the general material in his letter and his oral evidence that specific offers were made. Similarly, the precise reasons for contemplating applying for entry into the army as opposed to pursuing employment in the mines at his own initiative was not explored in cross-examination and does not, in my view, provide a basis for doubting the evidence of the plaintiff or Mr Caldwell.
Suspension of licence: The defendant cross-examined the plaintiff in relation to whether his licence was suspended at the time of the accident. This appeared to be purely a credit point. It was not pursued to any degree in final submissions. In my view the evidence did not establish that the plaintiff had a driver’s licence which was suspended at the time of the accident. A charge of driving while suspended had been proved but dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That appears to have been on the basis that the plaintiff had been in Queensland when the notice of the suspension was given and was hence unaware of it. The evidence did not establish the period during which the licence was suspended and the plaintiff’s subsequent renewal of the licence (Exhibit 7) did not demonstrate that it was suspended up until that date.
Video evidence: The plaintiff was cross-examined upon video evidence taken on 20 December 2010 and 14 January 2011. That showed him cleaning a truck at a car wash. He was spraying degreaser on the vehicle and washing it down with a high-pressure hose. He could be observed bending over, crouching down and reaching up to flick the hose across the top of the vehicle. There was also a film of him undertaking some work on one of his employer’s trucks. He is shown opening a panel at the front of the vehicle and doing some indistinct work on it including work using a hammer. He is observed to be getting up and down from the cabin of the vehicle without any difficulty and bending down to pick items up and to move around the door of the cabin. He can also be observed doing some work on the lining of the roof of the cabin although precisely what is unclear. He did not appear to be suffering any pain or restriction of movement during the course of the video and accepted as much in cross-examination.
In my view the video evidence did not undermine the credibility of the plaintiff or his case more generally. It related to only two days out of a period of four years and seven months since the accident. It did demonstrate that doing the relatively light work of a truck driver, the plaintiff was unconstrained in his movements and able to move normally and without pain. That was consistent with the plaintiff’s evidence. The video evidence did not undermine the proposition that prolonged sitting or standing undertaken as part of his job would cause him back pain. In particular it did nothing to undermine his and his partner’s evidence that the effects of back pain would accumulate over the week as a consequence of doing his job. Nor was it inconsistent with the evidence that he was not able to perform the kind of heavy work which he had previously undertaken for Mr Wallace or at the underground mine in Cobar.
Inconsistency of reporting to doctors: Counsel for the defendant pointed to the inconsistency of reporting to doctors, particularly as at 2011 when the video was taken. Only six days after that video was taken the plaintiff saw Dr Searle on 27 January 2011 and reported that his back had become worse and that he had pain in his right knee. Dr Searle reported an almost normal leg raising capacity. The plaintiff could raise his leg 90 degrees on the left side and 80 degrees on the right side. On 2 October 2011, the plaintiff saw both Dr Conrad and Dr Searle. Dr Conrad reported: “he continues to have ongoing headaches and in particular pain and stiffness in his neck”. Dr Conrad reported with respect to straight leg raising, 45 degrees for the left leg and 45 degrees for the right leg. However, when he saw Dr Searle on that day his straight leg raising was normal and in relation to his neck ache the doctor reported that it was “not really a problem now”.
While there are some inconsistencies between the doctors’ reports, I do not place significant weight on those inconsistencies. The recording of muscle spasm or guarding in the lumbar region by Drs Conrad and Searle provided more objective indications of there being a genuine underlying complaint. The manner in which the doctors record the history given to them can reasonably differ in its emphasis. It appears to me that if the plaintiff was attempting to overstate or exaggerate his injuries in a deceitful manner then his reports of incapacity to doctors reporting to the plaintiff’s solicitors would at least have been consistent. In other words if he was feigning difficulty with straight leg raising or exaggerating his complaints to Dr Conrad then he would also have feigned an equivalent disability and made a similar complaint to another doctor on the same day. To do otherwise would require the plaintiff to be both deceitful and stupid. I do not accept that he was either.
Boxing exercise program: The plaintiff participated in what was referred to in the evidence as a “boxercise” program. This was a program run by a Mr Stone which involved fitness activities related to boxing including punching mitts and heavy bags. It involved some bending and twisting. The plaintiff described that he had participated in the program on two or three occasions. The evidence was somewhat unclear about precisely how long in total he had participated in the programs although on the first occasion the program ran for eight to twelve weeks and the plaintiff described the program to Dr Pascall as having extended over 18 months. He said that there were some activities which he was unable to undertake because of his back. Participation in the program was disclosed to Mr Cousin in December 2009, Dr Searle in January 2011, Dr Azoury in March 2011, and Dr Pascall in 2012. When a description of the activities involved was put to Dr Conrad, he accepted that those activities would be inconsistent with the sort of restrictions he considered the plaintiff was subject to although Dr Searle was less unequivocal in his answer. I do not consider that the evidence about the plaintiff’s participation in this program detracts from the plaintiff’s claim. Precisely what the program involved, its degree and duration of violence, and the amount of bending and twisting remained unclear. The program as it was described to Dr Pascall and recorded in Exhibit 28 gives a somewhat different complexion to the exercise program than the evidence selectively elicited from the plaintiff in cross-examination. The plaintiff’s engagement in a fitness program is consistent with the plaintiff having made significant efforts to rehabilitate himself and those efforts being largely successful. The capacity to engage in such a program remains consistent with the plaintiff suffering an ongoing lower back condition which removes his capacity to exploit what would otherwise be his earning capacity.
General damages
The plaintiff submitted that an appropriate award of damages was in the range $80,000-$90,000 whereas the defendant submitted $60,000-$70,000. The plaintiff was involved in a significantly violent motor vehicle accident and suffered injuries to his back and neck. He continues to suffer from intermittent back pain and limitations on what he is able to do without significantly aggravating that pain. His back pain is likely to continue permanently. He is still able to undertake significant work activities as a truck driver as well as fitness related activities such as the boxercise program. He was 26 at the date of the accident and his life expectancy is 54 years. In my view, having regard to the length of time during which the plaintiff will suffer his ongoing back condition and award of $80,000 is appropriate with 50% of that attributable to the past. That gives an award of interest of $3,664 (2% x $40,000 x 4.58 years).
Economic loss
The evidence discloses that between the ages of 21 when he completed his apprenticeship and 26 when the accident occurred the plaintiff had performed a number of different jobs. He was, however, using his qualifications as a mechanic. He was introduced to underground mining when he was working for Pirtek and made the important connection with Mr Caldwell. After the initial offer from Mr Caldwell when the plaintiff was in Brisbane, the plaintiff did not pursue the possibility of working in the mines with Mr Caldwell. He contemplated joining the army but ended up working for Mr Wallace. The precise motivation for taking on this kind of work rather than working as a mechanic or pursuing further work in underground mining is not clear. However, he was still interested in that kind of highly paid major project work as is demonstrated by his short term work on project shutdowns undertaken in Western Australia in July 2008 and Victoria in September 2008.
In relation to past economic loss, the plaintiff is likely to have been employed by Mr Wallace at the rates that he was offered, commencing shortly after the date of the accident. There is some uncertainty as to the security of that employment having regard to the fact that Mr Wallace was in the process of moving the base of his business back to Forbes. However Mr Wallace’s evidence, which I accept, was that had he been able to employ the plaintiff he would have remained doing business in the ACT. Had he commenced in that employment his net income would have been approximately $1,250 (the midpoint between $1,200 and $1,300) per week plus the value of the phone and a vehicle. While there was no precise evidence as to the value of the phone and vehicle it would have added approximately another hundred dollars per week giving a total of $1,350. Had the plaintiff taken up the offer made by Mr Caldwell in May 2010 he would have been earning not less than $120,000 per annum. That would result, in the financial year ending in 2011, a net figure of not less than $89,000 or $1,650 per week. There can be no certainty that the plaintiff would have taken up Mr Caldwell’s offer but, having regard to his previous enthusiasm for underground work and the absence of any family commitments at that stage, it is likely that he would have accepted Mr Caldwell’s offer. Given Mr Caldwell’s position it is likely that had the plaintiff accepted the offer he would have been employed in the mine where Mr Caldwell worked.
Recognising, as did the High Court in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 639-640, 642-643, that there is inevitably some speculation and imprecision even in relation to past economic loss in a case such as this, I consider that an appropriate rate at which to base past economic loss is a gross rate of $90,000 per annum which equates to approximately $67,500 net per year or $1,300 net per week. This takes account of the possible insecurity of employment with Mr Wallace, the prospect that the plaintiff would not have immediately accepted Mr Caldwell’s offer or that there would have been enforced or voluntary periods between mining contracts. While I recognise that Mr Caldwell’s evidence was that continuity of employment and income could be maintained, the work history of the plaintiff suggests that he may not have chosen to maintain continuous employment even if he clearly shifted the focus of his work to underground mining.
In order to assess the loss that he actually suffered it is necessary to take account of the income that he actually managed to earn in the period up to the hearing. That is disclosed by his tax returns and assessments. The figures in those documents indicate the following losses in the period since the accident.
Financial Year Ending After tax income Loss ($67,500/annum minus after tax income) 2010 (41 wks) $12,900 (assume all earned post accident) $40,321 2011 $19,939 $47,561 2012 $39,859 $27,641 2013 $47,848 $19,652 2014 (45 wks) $41,406 (based on 2013 rate) $17,007 $152,182.00
Interest on past loss of wages at the rates prescribed by the Court Procedures Rules is $33,125.
Superannuation on this amount at 11% is $16,740. No interest was claimed on this amount.
In relation to the future, the uncertainties involved in assessment of economic loss are necessarily even greater because of the plaintiff’s relative youth (31 at the conclusion of the trial). I consider that adopting a figure of $90,000 per annum as a gross wage takes into account the uncertainties as to what the plaintiff would have chosen to have done with his skills and experience in the long period into the future having regard to the fact that he did not have a long term track record in the mining industry and had not commenced working at that rate with Mr Wallace.
In adopting the figure of $90,000 per annum for the plaintiff’s expected working life and adopting only a conventional discount for vicissitudes I have taken account of the evidence from two different sources, Mr Wallace and Mr Caldwell, of the plaintiff’s likely future earning capacity. Both the witnesses made it clear that having had direct experience of the plaintiff as an employee or work colleague, his skills and personal qualities were valued and suitable for promotion. Had there only been evidence from Mr Wallace, an award of damages based on a long-term earning capacity of $90,000 per annum would have been subject to too many uncertainties to make it appropriate. However where two potential employers involved in different occupations have both identified the plaintiff as having the abilities and motivation that make him suitable for promotion to or in employment in jobs with at least that earning capacity that provides an appropriate basis for an award of damages for the future in the terms that I will make. The rate of $90,000 incorporates within it a very substantial discount from the amount that the plaintiff could earn as an underground fitter in a mine. Mr Caldwell’s evidence was that currently the base salary was $134,000. The $90,000 figure adopted is 67% of that figure.
In calculating the plaintiff’s future loss over the whole of his working life I take into account, in particular, the following matters:
1. No basis was laid in the expert medical evidence and no submission was made that due to the physical nature of the plaintiff’s areas of employment the plaintiff’s earning capacity would have declined or disappeared prior to retirement age.
2. There was specific evidence from Mr Caldwell of the capacity of older workers to continue to work in the aspects of underground mining with which he was involved. He also gave evidence of the fact that the mining company with which he was involved sought to retain older workers because of the value of their experience. His evidence was that he was, at age 41, one of the youngest in his crew and that there were people working on the mine over 60 years old and up to 70.
3. Mr Caldwell gave evidence that older workers who were unable to continue working underground were employed as trainers or in planning roles. Mr Caldwell himself also fulfilled a training role. That evidence indicated that there was the prospect that the plaintiff, had he been able to consolidate his experience in the mining industry, would have been able to maintain his earning potential through to retirement age in a less physical training or supervisory role.
4. My impression of the plaintiff, consistent with the evidence set out at [45] and the evidence of Mr Caldwell set out at [43], was that he was the type of man who derived real satisfaction from solving the practical problems posed when doing the kind of work involved in being an underground fitter.
In his written summary of submissions on damages, one of the matters upon which the plaintiff relied was the proposition that average weekly earnings for an adult male were currently the equivalent of $83,512 per annum. The plaintiff did not take the relatively simple step of tendering material from the Australian Bureau of Statistics to prove that contention. While it might be open to take judicial notice of the current figure for male average weekly full time earnings available from the Australian Bureau of Statistics pursuant to s 144(1)(b) of the Evidence Act2011, having regard to the fact that the point was only raised in final submissions and not the subject of any oral elaboration, in reaching the figure of $90,000 above I have relied upon the evidence given and have not taken judicial notice of an average weekly earnings figure.
Based on his net income in the year ending 30 June 2013, the latest for which tax returns are available, the plaintiff earns approximately $920 per week after tax. That is a reasonable estimate of the plaintiff’s post accident earning capacity although it does incorporate some assumptions. Adopting that rate of earning obviously assumes that the plaintiff will indefinitely be able to continue working in a job that generates income at the rate that he earned in 2013, in particular that the levels of pain which he endures over the course of the week remain manageable and that there is no deterioration in his condition. It also takes no account of the unusually high expenses that the plaintiff incurs in getting to and from work. On this point the evidence of the plaintiff was that he drives 187 kilometres a day to get to and from work and that this costs him between $200 and $240 per week in fuel. That cost is not deductable for tax purposes. He has been unable to find employment closer to home. Had the plaintiff been uninjured, the range of employment in which he might be engaged would be broader and he would be less likely to incur such an unusually high non-deductable expense. Even if confined to driving a truck, if he was uninjured he would not be constrained to take a job involving only short haul work, not involving loading or unloading or mechanical work and where the truck had a suitably designed seat. Because the earning capacity of $920 per week does not take account of such factors, adopting that rate will tend to reduce the assessment of the plaintiff’s overall loss. However, given the inevitable uncertainties of the assessment process $920 per week appears to be an appropriate figure.
If he was employed at a rate of $90,000 per annum the plaintiff would be earning $1,300 net per week. Comparing that figure to $920 gives a net weekly loss of $380. Having regard to all the upside and downside uncertainties I will base the assessment of future economic loss on a weekly rate of loss of $380. Working until retirement gives a period of loss of 36 years. A loss of $380 per week over 36 years at a 3% discount rate gives a multiplier of the 1156 and a total of $439,280. Allowing 15% for vicissitudes gives a figure of $373,388.
Superannuation on this amount at 13% is $48,540. Although there was no evidence to establish the accuracy of this percentage, the defendant did not submit that adoption of the 13% of net wages was inappropriate having regard to changes in the law relating to compulsory superannuation contributions.
Past out-of-pocket expenses are $1,395.20 which is agreed, $76 which is proved and an additional amount paid for by the NRMA of $1,539.50. That gives a total of $3,011 and I make no award of interest on that amount.
In relation to future out-of-pocket expenses the plaintiff submitted that an amount for physiotherapy and medication was appropriate. It is likely, in my view, that the plaintiff will require occasional physiotherapy to deal with aggravations of his lumbar back pain. He has had very little such treatment in the past however he is working future is very long and I consider it appropriate to allow a sum of $5,000 which equates to approximately 50 sessions of physiotherapy. He is also likely to require pain relieving medication. His out-of-pocket expenses have been inadequately proved as a consequence of his failure to keep any proper records of the amounts of prescription medication that he has actually purchased. His approach to taking prescription medication has been to take it only when he cannot otherwise bear the pain. In my view it is appropriate to allow two dollars per week for non-prescription medication (based on the evidence of the plaintiff’s partner that she purchased it at the supermarket where she worked) and three dollars per week for prescription medication (equivalent to $150 per year or the plaintiff filling prescriptions of equivalent cost to those in Exhibit 23 on two occasions each year). The plaintiff’s life expectancy is 54 years giving a multiplier of 1407.5. That results in future medication of $7,037. This gives a total of $12,037 for future out-of-pocket expenses.
No claim was made for Griffiths v Kerkemeyer damages.
In summary the damages I have assessed are as set out in the table below.
| General damages | $80,000 |
| Interest on past general damages | $3,664 |
| Income loss - past | $152,182 |
| Interest on past income loss | $33,125 |
| Income loss - future | $373,388 |
| Superannuation - past | $16,740 |
| Superannuation - future | $48,540 |
| Past out-of-pocket expenses | $3,011 |
| Interest on past out-of-pocket expenses | $0 |
| Future out-of-pocket expenses | $12,037 |
| Griffiths v Kerkemeyer | $0 |
| Total | $722,687.00 |
Orders
Under section 151(4) of the Road Transport (Third-Party Insurance) Act 2008 any judgment is required to be entered against the defendant’s insurer only and not the defendant personally. As a consequence the orders that I will make are:
1. Judgment be entered against Insurance Australia Ltd in the sum of $722,687.
2. Insurance Australia Ltd is to pay the plaintiff’s costs of the proceedings.
3. Order 2 does not take effect if a party notifies my associate by email within 7 days of the date of this order that it wishes to be heard in relation to costs.
I certify that the preceding ninety four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.
Associate:
Date: 9 May 2014
Counsel for the plaintiff: I D M Roberts SC, A R Muller
Solicitors for the plaintiff: United Legal
Counsel for the defendants: J Pappas
Solicitors for the defendants: DLA Piper Australia
Date of hearing: 8 November 2013, 14-17 April 2014
Date of judgment: 9 May 2014
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