Amin v Vidal
[2020] ACTSC 227
•29 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Amin v Vidal |
Citation: | [2020] ACTSC 227 |
Hearing Dates: | 20 to 24 July 2020 |
DecisionDate: | 29 October 2020 |
Before: | McWilliam AsJ |
Decision: | See [140] |
Catchwords: | DAMAGES – PERSONAL INJURY – Motor vehicle accident – low speed rear-end collision – whether any injury caused by the collision – whether any injury and disability has subsided or continues |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 45, 99 Court Procedure Rules 2006 (ACT) |
Cases Cited: | Baxterv Insurance Australia Limited [2015] ACTSC 273 Forge v Rewers [2017] ACTSC 179 |
Parties: | Imran Amin (Plaintiff) Ulises Vidal (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant) |
Representation: | Counsel D Campbell SC and D Crowe (Plaintiff) K Rewell SC (First and Second Defendants) |
| Solicitors United Legal (Plaintiff) Sparke Helmore Lawyers (First and Second Defendants) | |
File Number: | SC 563 of 2019 |
McWilliam AsJ:
The present proceedings involve a claim in negligence arising out of a low speed rear-end motor vehicle accident on Barry Drive, at the intersection with Marcus Clarke Street in Canberra City. The central issue is whether Mr Imran Amin (the plaintiff), seated in his stationary vehicle with advanced safety features, suffered any injuries from the collision. If so, the dispute shifts to the extent of those injuries and the damages claimed.
Some facts are uncontroversial. On 12 June 2018, at around 5:40pm, the plaintiff was seated in the driver’s seat of his Mercedes Benz E250 coupe vehicle (the vehicle). He had stopped the vehicle at the traffic lights on Barry Drive in one of the westbound lanes. Mr Ulises Vidal (the first defendant) was driving a Nissan ute in the same direction and in the same lane, behind the plaintiff’s vehicle. It appears the collision occurred when, through inattention, the first defendant applied the brakes of his vehicle too late to avoid his vehicle colliding with the rear of the plaintiff’s stationary vehicle.
The plaintiff claims to have suffered back, neck and shoulder pain and subsequent psychological injury as a result of the accident. He seeks damages, claiming, amongst other things, that his injuries have made him unable to complete full time or overtime hours in his job as a security guard.
Insurance Australia Limited trading as NRMA Insurance (the second defendant) is the compulsory third party motor vehicle insurer of the first defendant’s vehicle.
It is not in issue that the first defendant breached his duty of care owed to the plaintiff and that the breach caused the collision in question. What is in issue is whether the plaintiff suffered the injuries and disabilities alleged to have arisen from the collision, and if so, whether they have now completely resolved. That has consequences for the quantum of damages sought.
Did the collision cause any injuries and any disabilities claimed by the plaintiff?
For reasons that follow, the answer to that question is yes. Causation is to be determined by reference to s 45 of the Civil Law (Wrongs) Act 2002 (ACT) (the Act). That is, in establishing factual causation, the plaintiff must prove that the accident was a necessary condition of his injury.
The evidence relevant to assessing whether the accident was a necessary cause of the injuries and disabilities alleged broadly falls into three categories.
The first is the circumstances of the collision itself. In that regard, the plaintiff and the first defendant both gave evidence as to what happened. Each is from a non-English speaking background, although neither required an interpreter at the hearing. Dr Andrew McIntosh, a biomechanical engineer, was also called by the defendants and gave expert evidence on the collision and its impact.
The second category is the lay evidence of the plaintiff, his wife and a colleague as to how the plaintiff presented before and after the accident.
The third category comprises expert medical evidence relevant to what caused the plaintiff’s physical injuries and subsequent psychological injury and disability.
(a) The circumstances of the collision
Both the plaintiff and the first defendant gave evidence about the collision.
The plaintiff’s evidence was that he had turned onto Barry Drive from Moore Street. There was normal peak hour traffic on the road. There was another stationary vehicle in front of his vehicle at the traffic light intersection with Marcus Clarke Street. Once he had stopped behind that vehicle, he looked into the rear vision mirror. He kept looking in the rear vision mirror because he saw that another vehicle was approaching from behind and did not appear to be stopping. He knew the approaching vehicle was going to hit his car. To prepare himself for the anticipated impact, the plaintiff grabbed the steering wheel tightly. The effect of his evidence was that while holding the steering wheel, he had also moved his neck slightly to the left and was sitting a little forward and looking in the rear vision mirror when his vehicle was hit. He was wearing a securely fastened, lap sash design, seat belt.
The plaintiff described the collision as a “bang”. The airbags did not deploy, but the head rest of the driver’s seat released, in that it sprang forward. The plaintiff could not recall whether his head bounced against the head rest or whether the head rest moved with his head during the impact. He could not recall whether his body separated with the seat either at his head, shoulders or back. He stated that after the bang he was in shock, and that he got out of his vehicle, saw what had happened and spoke to the first defendant, who had also exited from his vehicle. The plaintiff and the first defendant relocated to a nearby car park in order to exchange details in a location away from moving traffic. Both the plaintiff and the first defendant took photographs of their vehicles.
The first defendant’s evidence was that he had turned onto Barry Drive from Northbourne Avenue. He was unsure as to how far behind the plaintiff’s car he had been travelling and for how long since turning onto Barry Drive the plaintiff’s vehicle had been in front of his own. The first defendant described the traffic at the time of the accident as “very heavy” and “a little bit heavy” and stated that the conditions were “a little bit rainy, a little bit dark” and the road was slightly wet.
The first defendant agreed that the plaintiff’s vehicle was stationary when the collision occurred. He stated that he was able to apply the brake before the collision. He believed that at the point when the collision occurred, he was travelling at 20 km/hr. He described the impact as “very slow”. His body did not move in his seat and when asked if his head moved, he said “not really, no”. He explained that when he spoke to the plaintiff following the collision, the plaintiff did not appear to be in any pain.
The first defendant said that his vehicle was used as part of his tiling and building business. At the time of the collision his tiling tools were in the tray of the ute, which included what was described as a “cutter” and “grinder”. The load in the tray also comprised some rubbish, which included tiles.
Dr McIntosh’s evidence
Dr McIntosh has specialist training in the area of motor accident reconstruction and has also undertaken research into motor vehicle safety devices. His evidence went to the issue of whether, given the special safety features of the plaintiff’s Mercedes Benz and the nature of the collision, the plaintiff could actually have suffered any injury at all as a result of the collision. His report was very thorough and was supported by a number of accident studies, the details of which he knew well. He did additional research specific to the safety features of the Mercedes Benz vehicle before preparing the report. He was impressive under cross-examination.
Dr McIntosh estimated that the collision speed was somewhere between 10 to 20 km/hr. That estimate was based on his experience in reviewing crash test data and real-world crashes, combined with an examination of the damage to the two vehicles and with regard to the type of vehicles involved. Dr McIntosh considered that on balance, the collision produced an impact severity (change in velocity) in the range of 4.6 to 9.3 km/hr.
On the basis of those estimates, Dr McIntosh considered that on balance, the mechanics of the collision could not have reasonably led to the injuries of which the plaintiff complained. Essentially, this was because the impact of the collision (described in terms of a change in velocity) was low and there were safety features built into the plaintiff’s vehicle to protect the driver from injury. This included the NECK-PRO active headrest system, which released in the present case. The purpose of the restraint releasing was to provide the driver with timely support and reduce the risk of whiplash injury through predictive technology. Dr McIntosh also considered that the seats used in the vehicle assisted to spread the impact load arising from a rear-end collision. His opinion was that the stress or loads placed on the plaintiff’s head and neck would have been comparable to vigorous physical activity, where injuries are not anticipated.
There was an issue raised about whether the plaintiff’s posture would have affected Dr McIntosh’s opinion. At the time the collision occurred, the plaintiff was leaning forward slightly and with his head turned to the left and upwards, due to the fact that he was looking in the rear vision mirror.
Dr McIntosh explained that when a person is stationary and the car is hit from behind, the first movement of the body is in fact backwards, as the car is pushed forward. When the person comes forward, they are hardly moving, so there are no high forces acting on the shoulder during a rebound phase in the collision. The arm is not being thrown around anywhere, so there is no mechanism for injury. Elsewhere in cross-examination, Dr McIntosh described the load on the shoulder in a low severity rear-end collision as being virtually non-existent. The plaintiff was also wearing a seat belt, which would have assisted to control the momentum of the body.
Dr McIntosh accepted posture could be relevant. However, in this case, he considered that the plaintiff’s posture would not have affected the way the force would have moved through the body. This was because the load through the shoulders was not particularly significant, and would not have been changed by a slight variation in neck position.
Dr McIntosh said that in the body of reputable literature concerning biomechanics, there are very few ways that shoulder pain might arise in a rear-end collision. He gave examples, such as where there was referred pain in the neck to the shoulder, or a spasm of the trapezius muscle which might over time change the mechanics of the shoulder.
Dr McIntosh was also cross-examined about some of the underlying statistical data on which he relied. He acknowledged there were outliers in particular cases in which people reported symptoms after a relatively low severity car crash, but he said that the proper interpretation of the data included in his report was that there was a less than 5% risk that anyone who was in a rear-end collision with a change in velocity of 10 km/hr or less would have any symptoms six months later.
(b) The plaintiff before and after the accident
The plaintiff accepted that before the accident, he had experienced pain of a similar nature to that which he alleged he felt following the accident. He said there had been a couple of episodes when he had experienced a sore back, including once when he had been assisting to lift his father-in-law, who was a very large man and required assistance to be moved.
Medical records from February 2016, held by the plaintiff’s general practitioner (GP), Dr Buczynski, record the plaintiff complaining of a sore neck and lower back. The plaintiff confirmed that he had taken time off before as a result of this pain, but that the pain had resolved.
The plaintiff also recalled attending on Dr Buczynski in June 2017 in relation to left-sided neck pain. On that occasion, the onset of pain was felt after lifting a heavy wheelchair. He agreed that at this time, he also spoke to Dr Buczynski about stress he was feeling. After taking three days off he returned to normal duties.
The plaintiff’s evidence was that he had not experienced any further symptoms in either his neck or back leading up to the date of the accident. He did not have any pain in his left shoulder prior to the accident. Oral evidence given by the plaintiff’s wife, Ayesha Qureshi, corroborated that position. Ms Qureshi’s evidence was that in the period between January and June 2018, she never saw any signs of physical problems suffered by the plaintiff. She could not recall him making complaints of any pain during that time. She could not recall him avoiding activities and did not see any interference with his mood. I accept that evidence and accept that she would have observed the symptoms of pain in the plaintiff, had they been present.
In terms of employment, the plaintiff has worked with Sydney Night Patrol Security at the National Gallery of Australia (NGA) since 2011. Throughout his employment there, the nature and extent of his duties have remained the same. His work primarily involves patrolling different areas of the gallery on foot. One of his tasks includes opening and closing doors in the gallery. In doing so, he is required to bend down to unlock and lock the doors, which is said to be a difficult task due to the locks being stiff and the doors being old and heavy. The plaintiff stated that he had to do this once a week, or sometimes once a fortnight. His work included a significant component of overtime hours prior to the accident.
The plaintiff’s friend and colleague, Ms Zdenka Topic, gave oral evidence about the plaintiff before the accident. She met the plaintiff when he commenced work at the NGA about eight years ago. The job undertaken by herself and the plaintiff at the NGA involved walking all day. She stated that in the early days of their employment there were plenty of opportunities to sit down. At a later stage, however, the chairs available for the security guards to sit on were taken away. She outlined that now, if a security guard sits on a chair that is available for any length of time, that guard would “get in trouble”. Whilst the security staff are provided with a minimum of three breaks a day, the breaks can be short, meaning that it is difficult to visit somewhere in the gallery where it is possible to sit down, such as the tea room, due to the length of time it takes to walk to different parts of the gallery.
Consistent with the evidence of the plaintiff, Ms Topic described the work duties as including opening and closing gallery doors and moving heavy bollards. Opening the doors was said to be a difficult task (indeed, the hardest part of the job), because the doors are very old and difficult to close properly. Failure to close the door properly could result in a $500 fine. Moving the bollards was also said to be difficult, because the bollards weigh about 20 to 30 kgs each (as I understood Ms Topic’s evidence) and must be lifted on and off a trolley. The trolley is difficult to move when loaded with all the bollards.
Ms Topic was a cheerful witness with an endearing personality. She explained that due to her age, she stopped these more difficult tasks as they had become too difficult to carry out and she was not as satisfied with her work place as in the past years. Before the accident, the plaintiff would sometimes help Ms Topic lock up the doors and give her assistance with the bollards. On those occasions, she never noticed the plaintiff having any difficulty with these tasks.
Turning to when the accident occurred, the plaintiff’s evidence was that he felt shock while at the scene of the collision. He did not remember noticing anything else about his body at that time. He drove home afterwards, and according to his wife’s evidence, seemed “rather shaken” when arriving home. Later in the evening on the day of the accident, the plaintiff said he started feeling pain in the left side of his neck and his lower back. His wife’s evidence was that she enquired of the plaintiff whether he was in any pain, or whether he needed to see a doctor or call an ambulance. She gave evidence that the plaintiff responded by saying, “Yes, I am in a bit of pain”. Ms Qureshi thought her husband said that the pain was in his back and neck, but agreed that due to the passage of time she was not 100 per cent sure as to the full extent of what was said.
After the conversation, Ms Qureshi contacted CALMS, an after-hours medical service at the Calvary Hospital. The plaintiff drove to that clinic with his wife, where he was examined. Ms Qureshi confirmed that she was present for the examination at the CALMS clinic. She gave evidence that she saw the doctor touch and feel the plaintiff from his neck, down his back and down to his legs. The doctor provided the plaintiff with a medical certificate for his employer, recommending he take three days off work, and advised him to take Panadol and Nurofen.
The plaintiff recalled taking painkillers for a couple of nights after the accident and Ms Qureshi recalled providing the plaintiff with Panadol. She observed that during the night the plaintiff was “stiff and sore” and the plaintiff told her that was how he felt. She provided the plaintiff with heat packs to place on different parts of his body.
As a result of the accident, the plaintiff says he sustained the following injuries:
(a) impact injury to cervical spine;
(b) impact injury to thoracic spine;
(c) impact injury to lumbar spine; and
(d) psychological injury including but not limited to feelings of depression, anxiety and stress.
The consequences he alleges are:
(a) headaches;
(b) reduced quality of sleep;
(c) reduced concentration;
(d) weight gain;
(e) suicidal ideation;
(f) chronic pain in left arm;
(g) reduced motion in left shoulder and left elbow;
(h) reduced tolerance for standing and walking;
(i) restricted ability to drive; and
(j) restricted ability to undertake the domestic activities he often completed pre-injury, such as vacuuming, making the bed, gardening, home maintenance, cleaning and hanging out the washing.
The plaintiff further alleges a restricted ability to participate in pre-injury employment, including a significant reduction in overtime hours, and recreational activities.
When asked how he felt in the weeks following his return to work, the plaintiff said he still had pain in that period, but he worked with that pain. He further stated that the pain would go up and down. He decided to report the incident to the police because the pain was increasing a little bit and a friend suggested he should report the incident.
The plaintiff initially attended a chiropractor. After a number of sessions, the plaintiff decided the chiropractor was not really helping. He then commenced physiotherapy with an organisation called ‘Active Recovery’. He was prescribed Panadeine Forte for a few weeks after the accident, which he took for a couple of months. The plaintiff also saw other specialists during this period, but I will deal with the medical opinion evidence in more detail separately.
After the plaintiff returned to work, Ms Qureshi observed that he was more tired than previously when he came home. She stated that he would request Panadol and heat packs and that he mentioned that he was still a bit sore. He would come home from work and just “chill out on the sofa”. He was lethargic and irritable. Ms Qureshi stated that this was different to his behaviour prior to the accident, when he would look around the house and do any work which needed to be done, such as doing the dishes or putting dishes away. She also recalled that during this time the plaintiff was not sleeping properly. His tossing and turning would keep her awake. During this time, the plaintiff took longer to get out of bed. He continued to take Panadol and use heat packs. This evidence appeared to relate to the period approximately a month or so after the accident. Ms Qureshi further stated that the plaintiff’s condition remained much the same when he commenced treatment with the allied health professionals.
Ms Topic’s observations of the plaintiff after he returned to work were that he “slowly went downhill”. The plaintiff did not give Ms Topic any assistance with the heavy tasks in her work (moving the bollards and opening and closing the heavy doors). She said that “he couldn’t do any of that stuff”. When asked what she noticed about the plaintiff after the accident, Ms Topic stated:
First of all, he was not as agile. He can’t walk. He was complaining about his feet hurting, his back hurting, his neck. Then he would get headaches and he wasn’t as well as he was before the accident. That’s what I noticed.
Before the accident, Ms Topic socialised with the plaintiff and his wife at their residence or at her own, including going out for dinner a number of times. She described the plaintiff as “happy and bubbly and very sociable”. After the accident, Ms Topic said there was change in the plaintiff’s nature:
He became quite depressed and very quiet. He didn’t speak to other people as much, and you could see he was depressed…
Ms Topic said the plaintiff would speak with her about the accident, and in particular about his inability to do things anymore and about how tired and sore he gets. This was something which she noted was really bothering the plaintiff. Whilst Ms Topic said she socialises with the plaintiff at his or her home outside of work less often now, when they do visit each other he is definitely different to how he was before the accident. He was said to be quieter, less engaged, laughs and jokes less and is more subdued.
In relation to the period following February 2019, the plaintiff stated:
My pain is going through too much, ups and down so much and having sore back. My sleep thing is going – is totally changed, my sleep thing. And then my anxiety, my depressions, they are, like coming up together, so build up too much pressure.
It was put to both the plaintiff and Ms Qureshi that if the plaintiff ever suffered any pain after the accident, he had recovered from that in a matter of months. Ms Qureshi denied that was the case. The plaintiff did not appear to understand the question, as he answered: “I don’t remember”.
In any event, as at the date of the hearing, the plaintiff’s position appeared to be different, in that it had improved. The plaintiff had been assisted by undertaking a mindfulness course. The course helped him with regard to both his pain and his sleep. He now felt more positive about going back to work. The plaintiff accepted that he was able to go shopping as and when he needed different goods, and that he was able to carry full shopping bags and load them into his car. That was different to having to spend hours on his feet at work, but he accepted that he was now capable of working in the same manner as how he had worked before the accident. It was unclear whether that answer included working extra overtime hours.
With regard to the plaintiff’s lifestyle, the plaintiff was no longer able to run for leisure a couple of times a week. Ms Qureshi confirmed that since the accident, the plaintiff has not been running. She also noted that since the accident, she and the plaintiff are less socially active. She gave examples, such as visiting friends’ places and going out to dinner less.
(c) The medical evidence
There was expert evidence from two orthopaedic surgeons, namely Dr Anil Nair for the plaintiff and Dr Iain Kelman for the defendants. There was also evidence for the plaintiff given by a general surgeon, Dr W G D Patrick.
Dr Nair assessed the plaintiff in November 2018 and again on 5 March 2020. His view was that the plaintiff had sustained “an aggravation of pathology both in the cervical and lumbar spine”. He referred to medical imaging of the plaintiff’s cervical spine, thoracic spine and lumbar spine. With regard to the cervical spine, Dr Nair noted multilevel neuroforaminal narrowing due to uncovertebral and facet join hypertrophy. The changes were anatomical and permanent. There was a mild loss of disc height at l3/4 in the lumbar spine. The thoracic spine appeared normal.
Dr Patrick’s opinion was that the symptoms described by the plaintiff were genuine, consistent with, and significantly consequent upon, injuries sustained by him at the time of the accident. He did not consider the injuries to be major. Dr Patrick thought there may be a gradual improvement over time. While deterioration was a possibility, it was not considered a probability here. Dr Patrick expected in the three to five years post-accident that there would likely be flare ups of symptoms, but he did not consider that this would significantly shorten the plaintiff’s effective working life.
Dr Kelman assessed the plaintiff on 30 January 2020. His opinion was that the plaintiff may have received minor ligamentous sprain to his cervical spine at the time of the accident, but no injury to his thoracic and minimal effect to his lumbar spine. His view was that the effects of the motor vehicle accident have now resolved. There were no current features of significant cervical spondylosis or neurological deficit to the plaintiff’s upper limbs. There was no evidence of lumbar spine pathology.
Dr Kelman said there was no pathology in the plaintiff’s cervical, thoracic or lumbar spine which would prevent the plaintiff from carrying out his work at the NGA. He believed the plaintiff would have become physically able to carry out the work at the NGA three months after the motor vehicle accident. There was no musculoskeletal injury that might affect the plaintiff's future work capacity.
In terms of the plaintiff’s mental health following the accident, there was evidence from Dr Paul Ruefli, psychologist for the plaintiff, and from Dr Catherine Oelrichs, psychiatrist, for the defendants. Although Dr Ruefli initially had a different diagnosis, at the conclusion of the evidence, both experts were agreed that the plaintiff’s condition was best described as adjustment disorder with anxiety and depressed mood secondary to chronic pain.
The plaintiff also led evidence from Dr Evan Dryson, occupational physician. Dr Dryson’s view was that the plaintiff had suffered an aggravation of a pre-existing cervical spondylosis and an aggravation of lumbar spondylosis, although the MRI changes in the lumbar spine were minor. With regard to the plaintiff’s shoulder, Dr Dryson considered there was the possibility of a supraspinatus tendon injury, or a subacromial bursal injury. Another alternative was that the pain in the plaintiff’s shoulder was referred pain from the plaintiff’s cervical spine injury.
The plaintiff saw Dr David Champion (also an Associate Professor at the University of New South Wales), a pain specialist, on 16 January 2019 and again on 23 June 2020. It appears Dr Champion had been provided with the full history of medical reports relating to the plaintiff. He referred to the MRI imaging, confirming mid-cervical disc space narrowing. His view was that such pathology does predispose a person to adverse consequences including chronic pain from trauma. He noted that the plaintiff’s reporting of pain intensity and related interference with activities has been relatively high. Dr Champion’s view was that this may have been due to the plaintiff’s experience of pain before the motor vehicle accident being very limited, and so what the plaintiff reported as being at the upper end of a pain scale would in fact relate to a lower level of pain. He considered the plaintiff’s chronic pain and related disability will have been substantially influenced by impaired sleep and by psychiatric injury and adjustment symptoms, including stress, anxiety and depression.
Other treatment records and emails reporting on rehabilitation services provided were in evidence. This included the plaintiff seeking the advice and treatment of Dr Romil Jain, a pain specialist at the ACT Pain Centre. Dr Jain considered there was nothing physically wrong with the plaintiff, highlighting that the plaintiff’s psychological symptoms manifested physically as the reported discomfort.
The plaintiff’s complete physiotherapy record was also in evidence. It confirms the plaintiff attended frequently between September 2018 and April 2019, at which point the physiotherapy clinic formed the view that there was unlikely to be any significant benefit to continuing physiotherapy and the plaintiff was discharged.
A medico legal report was also obtained from Ms Nancy Stephenson, Senior Occupational Therapist. I will return to her evidence below.
It is unnecessary to set out further details of the medical reports and clinical records here, but I have had regard to the totality of that medical evidence when forming a view about causation.
Consideration
I have not found it necessary to make a finding as to the exact speed the first defendant was travelling at the time of impact, nor do I think it is possible on the evidence before the Court. On any view, this was a low speed collision.
Dr McIntosh was not told that the first defendant’s ute had a load of rubbish and tools in the back. The first defendant did not consider the ute to be full, or that the tools were individually heavy, but there was insufficient evidence about how much extra weight the ute was carrying as a result, which may be relevant to the force on impact.
Further, photos of the damage to the two vehicles were relied upon by Dr McIntosh as part of the factual matrix on which his opinion was based. However, the report did not descend to a level of detail as to how the photos were used and Dr McIntosh was not asked specifically what inferences he drew from the photos in coming to a view about specific speeds or the force at the point of collision.
The Court must be cautious about using photos to draw factual conclusions. In this case, at best, the photos really only provide a general indication of whether the collision was at high speed or low speed, but I do not see how they might assist, for example, with discerning a difference between a ute carrying an unspecified load at 20 km/hr or 30 km/hr and the research relied upon by Dr McIntosh (referred to in detail in his report and under cross-examination) does suggest that even 10km/hr with a heavier load might change the impact felt. Presumably, different vehicles exhibit different characteristics after a collision, so that a car with apparently minimal physical damage in a photo may belie the true impact of a collision. The evidence in this case did not deal with those types of questions. This is not a criticism of the material that was before the Court. It is simply to illustrate why I am not convinced the position as to speed and force or impact can be stated with precision or as a definitive opinion that the collision here could not have, or would not have, caused the injuries complained of by the plaintiff.
Dr McIntosh’s evidence is that it is very unlikely that any injury would result from an accident of the type that occurred, and that it is even less likely that injuries with lasting disabilities would result from the collision. That is consistent with the medical evidence of the orthopaedic surgeons, in that, in the unlikely event that there was any injury to the plaintiff’s neck, back and shoulder, that injury would be expected to resolve within a short period of time.
Dr McIntosh’s opinion is founded on thorough, scientifically based research. His evidence is cogent and deserving of significant weight. Based on the research and data, in his view, the accident could not have caused the injuries of which the plaintiff complains. The medical imaging does not show anything more than a spondylosis in the plaintiff’s cervical spine, which both the orthopaedic surgeons agreed was not caused by the accident. It would have been pre-existing.
However, despite Dr McIntosh’s evidence as to the improbability of injury, and despite imaging demonstrating a lack of traumatic damage to the spine, I have seen and heard evidence from the plaintiff, his wife and a colleague, as to the plaintiff’s injuries and disabilities commencing from the date of the accident and continuing, although with significant improvement as at the date of hearing.
It is true that the plaintiff saw a solicitor on 3 July 2018, very soon after the accident had occurred, completing a notice of claim form. The plaintiff was cross-examined about that, but it was left for the Court to potentially draw the inference that the plaintiff saw the collision as an opportunity to claim money that was, for him, more of a windfall than compensation payable as a result of any genuine injury.
There was also some suggestion in the evidence that the plaintiff exaggerated his symptoms. Dr Jain, for example, referred to the plaintiff claiming that his walking and sitting tolerance is around 10 to 15 minutes, but the plaintiff sat comfortably during the whole consultation time of more than half an hour. Dr Kelman also records that when examined on 30 January 2020 and performing a grip strength test, the plaintiff only managed 8 kg on the left hand. This was considered to be “abnormal behaviour”, which the defendants submitted reflected the plaintiff exhibiting almost no effort. The further inference was that the plaintiff was deliberately underperforming, in order to exaggerate the disability. Dr Champion did not find any evidence of the plaintiff misrepresenting his symptoms for monetary gain, although could not rule it out.
Nevertheless, the fact that experts do not infer causation on the balance of probabilities does not mean that a court may not: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [143]-[144]; Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 (Stamoulis) at [138] and the cases there-cited.
The reference to the civil standard of proof in this context received further attention in Stamoulis at [139]-[141], to the effect that a fact is probable where a person, judging the probability of that thing, has the appropriate degree of confidence in its existence or correctness, based on or judged according to reason. If the Court is left to speculate about possibilities as to the cause of the injury, the plaintiff must fail.
Here, I have seen and heard from a plaintiff who says that he has suffered pain in his neck, back and shoulder since the accident, and he generally presented as a credible witness. He was prepared to make concessions in the witness box, particularly as to aspects of his injuries resolving (being the left shoulder injury and more recently, the lessening of pain in his lower back and neck), his current ability to work (including, it seems, an acceptance that if overtime was offered, he would now be in a position to accept the request), and the domestic tasks that he can perform. He has corroborative evidence from two witnesses, being his wife and his friend and colleague. He has also made significant efforts in terms of regular treatment and trying different forms of therapy. That contributes to the plaintiff’s evidence having the ring of truth about it, because obtaining medical treatment, attending appointments and undergoing courses is itself a significant and often arduous time commitment. He has a very involved GP who plainly accepts the plaintiff is still experiencing pain. The MRI imaging shows degeneration, which Dr Champion, in particular, viewed as creating a predisposition to chronic pain.
For these reasons, I am not persuaded that the plaintiff was untruthful, nor that his wife, colleague and GP were untruthful, or alternatively, that they were misled or mistaken in their observations of the plaintiff over such a significant period of time. Accordingly, on the preponderance of the evidence, and notwithstanding that the medical evidence and biomechanic evidence makes it unlikely, I accept that there was some form of injury suffered by the plaintiff in his back and neck.
I find that the accident has aggravated a pre-existing degenerative condition in the cervical spine, which was asymptomatic as at June 2018, along with an aggravation of lumbar spondylosis, which has possibly precipitated a pain syndrome. This is the common thread of the medical evidence of Dr Kelman, Dr Nair, Dr Patrick, Dr Dryson and Dr Champion. The medical evidence did not establish that in the absence of the accident, degenerative processes in the plaintiff’s cervical spine would have led to the same pain and disabilities as those reported by the plaintiff following the accident.
I am not satisfied that there was a specific injury to the plaintiff’s shoulder. In that regard, I accept Dr McIntosh’s evidence that the load on the shoulder would not have caused a direct injury, which was consistent with the medical imaging and medical evidence referred to above. However, I accept the plaintiff’s reporting of pain in the shoulder as genuine. I do not know whether the cause of that pain was referred pain from the neck injury, or the plaintiff carrying stress or tension in that area which manifested as pain, or whether the shoulder pain the plaintiff felt was psychological.
However, having accepted the accuracy of the plaintiff’s reporting of neck and back pain, which was not present immediately before the accident, and the history of his condition since that time, and taking into account both that the impact of the collision may have been greater due to extra weight carried by the first defendant’s vehicle and that the plaintiff had an underlying vulnerability, I consider it more likely than not that his current condition, including shoulder pain, was caused by the accident, in the sense that the accident was a necessary condition of the happening of the injury (s 45 of the Act).
The consequences of the accident for the plaintiff’s mental health are also accepted. There were plainly a number of stressful life events occurring shortly before, or at the time of, the accident. The plaintiff’s wife lost both her mother and father within a short period of time in 2016 (discussed further below, with regard to domestic arrangements) and the medical notes record that the couple were unsuccessfully trying to have a baby. The stress involved was plainly showing in the plaintiff (as seen in the plaintiff’s discussions with his GP), but it was not overwhelming the plaintiff. However, the accident introduced recurrent or chronic pain, with a consequent lack of sleep and lack of ability for the plaintiff to live life as he had previously. The accident was a material factor in the plaintiff’s development of anxiety and depression in the terms described by Dr Oerlichs and Dr Ruefli. The opinion of Dr Oerlichs was that the factors relating to changes in the plaintiff’s emotional state with the impact of anxiety and depression related to the accident. I accept that evidence.
To the plaintiff’s credit, he has managed to address both the pain and the psychological consequences with a degree of success. He considers there to have been significant improvements regarding his physical symptoms, although he does experience occasional discomfort in his lower back, especially on days when there are low temperatures in Canberra. That is likely to continue, and he has residual fear about flare ups of his symptoms if he undertakes long working hours in the future, due to the nature of the job being entirely on his feet for long periods of time. In relation to the plaintiff’s psychological injuries, they are also much improved. Again, while his outlook is more positive, the plaintiff’s treatment providers also recommend periodic psychological counselling sessions in the future years, to manage any ongoing mental health issues.
Non-economic loss claim (general damages)
The plaintiff claims $100,000 in non-economic loss, and $2,000 in interest on those damages. Senior Counsel for the defendants submitted that if the entirety of the plaintiff’s case is accepted, the award for general damages should not exceed $60,000.
The assessment of general damages relies very heavily on the impression made by the plaintiff on the finder of fact: Tsueneaki v Stewart [2013] ACTCA 34 at [30]. The compensation payable is for pain and suffering and loss of enjoyment of life, as to which see Young v Rothin [2009] ACTSC 71 at [200] and the cases there-cited.
In the present case, the plaintiff has suffered a whiplash injury, which has caused chronic pain and had a psychological impact as discussed above. The impression given by the plaintiff is that of someone who, as best as he can, attempts to push through with the day to day activities of life, despite the discomfort that he experiences in doing so. Outside the workplace, the plaintiff previously ran 10 to 15 km a couple of days a week, for a duration of 45 minutes to an hour, before the collision. He does not run anymore. He was also involved in domestic chores and household maintenance. The plaintiff appears to be a person who finds satisfaction in taking responsibility for completing domestic tasks, but who now finds that such responsibilities are more burdensome. (A more expansive consideration of the plaintiff’s domestic situation is set out below.) I accept the plaintiff is no longer as physically and socially active as once before.
However, there has also been significant recent improvement to the plaintiff’s condition, so that the majority of the award for general damages should compensate the plaintiff for the past. While his improved condition sounds in less monetary damages by way of compensation for future loss of amenity, that is because the plaintiff’s prognosis is better than it was, which is obviously a good thing for the plaintiff. He is to be commended for the steps he has taken to treat his injuries and ameliorate his pain. In the future, he is nevertheless more likely to have intermittent flare ups with regard to back and neck pain and I accept that he will at times be working while feeling discomfort, which will exhaust him by the end of the day.
The parties were invited to provide comparable cases from which the Court might be guided in terms of an appropriate range for general damages, pursuant to s 99 of the Act. Both parties eschewed that course on the basis that comparing cases is an activity that should be discouraged, as no two cases will ever be similar enough to render any comparison fair and the Court must take into account the particular plaintiff and the actual effects on that individual.
It may be the case that at times, providing sufficiently comparable authorities proves difficult. In Utting v Clarke and Insurance Australia Limited t/a NRMA Insurance [2016] ACTSC 168, for example, Elkaim J was of the view (at [71]) that the authorities to which the Court was referred by way of assistance under s 99 of the Act were not sufficiently comparable, and instead accepted the parties’ competing submissions as reflecting an appropriate range of general damages. His Honour’s judgment was affirmed on appeal: see [2017] ACTCA 22.
The purpose of s 99 was discussed by Mossop AsJ (as his Honour then was) in Baxterv Insurance Australia Limited [2015] ACTSC 273 (Baxter) at [26], relevantly as follows:
Section 99 of the Civil Law (Wrongs) Act 2002 (ACT) permitted the Court to take into account earlier decisions of courts in deciding damages for non-economic loss. The purpose of s 99was to give effect to recommendation 46 of the Ipp Report: Explanatory Statement, Civil Law (Wrongs) Amendment Bill 2003 at p 5. Recommendation 46 of the Ipp Report included recommendations that in assessing general damages a court may refer to decisions in earlier cases and counsel may bring to the court’s attention such awards of general damages (see Ipp Report at p 188). The intention of this was to reverse the decision of the High Court in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 (‘Planet Fisheries’) which precluded reliance upon all reference to previous decisions in order to establish the appropriate award for general damages. (The same result appears to have been reached without reference to s 99 by the Court of Appeal in Vulin v Cox [2005] ACTCA 22). The intention of the Ipp Report was to promote, over time, consistency of awards for non-economic loss. … Section 99 is a facultative provision designed to assist the Court and promote uniformity of awards rather than one which permits counsel to inflict a further burden upon trial judges in relation to the provision of reasons. A trial judge may find it appropriate to discuss comparable awards: see for example Davies v Grgic [2006] ACTSC 14, but is not obliged to do so.
The assessment of general damages is neither scientific nor normative: see Franklins Ltd v Burns; Burns v Franklins Ltd [2005] NSWCA 54 at [52], cited in Scuderi v Raskurasingham [2017] ACTSC 41 at [44] per Mossop J. That does not mean that reference to earlier cases is unhelpful or inherently productive of unfair comparison. I accept at once that no two cases are alike, however the search is not for identical cases. In circumstances where the legislature has enacted a provision to assist the Court, legal representatives for parties are as well placed as the judge, and in some cases better resourced, to distil points of similarity and of difference from the authorities, and it is how an ‘appropriate’ range develops. Section 99 helps the Court over time to ensure that figures for general damages have some consistent, loosely guided basis as to an ‘appropriate’ range, and that the figures are not simply plucked out of the air.
Further, when legal representatives for parties make submissions about an ‘appropriate’ award for general damages, although they may not consciously turn their minds to particular cases, they implicitly use their own experience in submitting what is appropriate. That experience itself derives from cases in which legal representatives have been involved, as well as cases they have read. However, the Court does not know what has been considered by a particular counsel in presenting the case it is called upon to decide. Section 99 simply provides the gateway for ensuring that there is at least an opportunity for some dialogue between the parties and the Court as to what has informed the parties’ submissions when considering an appropriate award for general damages.
Having regard to what was said in Baxter, set out above at [85], it is not necessary to discuss and analyse each of the numerous authorities dealing with whiplash and psychological injuries arising from rear-end collisions. I have accepted the range provided by the parties as between $60,000 and $100,000. Two recent cases fall within that range: Forge v Rewers [2017] ACTSC 179 (Forge) and Pidcock v Milosis [2019] ACTSC 209 (Pidcock).
Forge involved a rear-end motor vehicle collision in which Mossop J found that the plaintiff had suffered a whiplash injury, which led to the plaintiff suffering an ongoing chronic post-traumatic pain disorder. That was particularly in relation to the plaintiff’s cervical spine, but also in his lumbar spine to a lesser extent (see Forge at [46]). In Forge, the plaintiff was not able to work at all as a truck driver. Mossop J assessed general damages at $100,000, apportioning 50% for the past and 50% for the future.
The physical injuries of the plaintiff in this case appear to be less serious, but the psychological injuries appear to be very similar, manifesting as depression, with family members in both cases making similar observations about the respective plaintiff’s reduced desire to do much more than relax in front of the television and compromised enjoyment of life generally.
Pidcock is another rear-end collision case. Whilst the plaintiff’s lower back and neck pain was found to be pre-existing, the collision affected a Haglund’s deformity in the plaintiff’s left heel. Murrell CJ assessed non-economic loss at $95,000, apportioning 50% to the past. The injury in that case appears to have had a greater impact on the plaintiff than the injury in the current case. In Pidcock, the plaintiff experienced difficulty with walking, could not run at all, and could no longer drive a manual car.
To these may be added the judgment of Utting, itself a rear-end collision case, where the plaintiff was stopped at traffic lights and a vehicle travelling behind her failed to stop and collided with her car. The plaintiff suffered a cervical spine injury, a minor thoracic spinal pain disorder, a chronic lumbosacral spinal pain syndrome and psychological consequences (see Utting at [49]). She had three years of significant pain and suffering, requiring her to amend her work regime. She was deprived of activities such as picking up her young daughter. She continued to work and do domestic chores but that was because she had no choice. She endured a good deal of pain in order to maintain her independence and support her daughter. Elkaim J awarded general damages in the sum of $75,000 with half that sum payable for the past (see Utting at [72]-[73]).
The above authorities and the submissions of the parties, each represented by experienced counsel, do assist in establishing the broad range of applicable damages to this case. Taking into account the specific features of this plaintiff and the impact the collision has had on his life referred to earlier in these reasons, general damages should be awarded in the sum of $45,000 for the past and $15,000 for the future, bringing the total general damages award to $60,000.
Interest should also be awarded on the sum of $45,000, calculated at a rate of 2% for 2.25 years, resulting in $2,025. The total award of general damages is therefore $62,025.
Past and future out-of-pocket expenses claim
In the event that the Court found the plaintiff’s injuries and disabilities were attributable to the accident, the sum of past out-of-pocket expenses was agreed between the parties at $32,506.31.
With regard to future out of pocket expenses, the plaintiff claims $20,000. Counsel for the defendant submitted that the most the plaintiff will need in the future is some occasional counselling, so that even half the sum claimed would be generous.
I accept that the plaintiff will require counselling sessions from time to time. Dr Ruefli considered that ongoing psychological treatment would be necessary, for at least a year. Beyond that, it was difficult to say. Dr Oerlichs considered that a further six sessions are required, to assist in maintaining the plaintiff’s improvement, sustaining his stability and in further addressing some residual anxiety. I also consider that there may be a need for occasional physiotherapy or other allied services in relation to the plaintiff’s cervical spine, and more probably than not, a requirement to take some form of pain medication on an occasional basis.
Accordingly, $32,506.31 is awarded for past out-of-pocket expenses. An award of $15,000 is an appropriate buffer for future out-of-pocket expenses.
Past wage loss claim
With regard to past wage loss, the plaintiff claims $23,575, comprising the following items:
(a) amounts paid by QBE Workers Compensation (QBE) for the plaintiff’s ordinary hours (including additional damages pursuant to the principle in Fox v Wood (1981) 148 CLR 438), in the sum of $6,375;
(b) compensation for loss of wages for overtime: $15,000; and
(c) compensation for loss of superannuation: $2,200.
I will deal with each in turn. If liability was established, it was accepted that the plaintiff suffered a loss of $6,375 for the ordinary hours paid by QBE, including Fox v Wood damages.
The claim for loss of overtime was contested on the basis that the reduction in overtime hours post-accident was not in fact due to any injury arising from the accident.
The first issue raised by the defendants was that from April 2020 to early June 2020, overtime hours were not available because the NGA was not operating at its usual hours. Functions were not being held at the NGA because of the restrictions operating as a result of the Covid-19 Pandemic. Counsel for the plaintiff accepted that the plaintiff could not claim a loss of overtime during that period.
The second issue raised by the defendants was that since October 2019 and more particularly in the weeks leading up to the hearing, the plaintiff had been prevented from attempting to complete any overtime work. not because he was limited by his injuries, but because the plaintiff’s GP, Dr Buczynski, had refused to certify the plaintiff as being fit for overtime work until he was able to “regain his self confidence in engaging in his pre-injury duties at his pre-injury worksite through a trial of pre-injury duties with overtime”. The plaintiff’s employer required certification that the plaintiff was fit to work overtime before it would offer him overtime hours. The effect of a lack of certification by the plaintiff’s GP was that the employer could not offer a trial which included overtime. This created somewhat of a stalemate in the plaintiff’s progression back to his pre-injury work hours, which included a significant component of overtime.
I have accepted that the plaintiff’s psychological state was attributable to the accident. That was the reason the plaintiff’s GP was concerned about the plaintiff’s confidence levels and why he was reluctant to certify the plaintiff as fit to undertake any overtime without an initial trial.
I am not persuaded that the GP’s cautious approach was an unreasonable one in the circumstances of this particular plaintiff. The plaintiff’s psychological state has been improving through the successful treatment by Dr Ruefli. The allied health medical team may have been at cross-purposes with the plaintiff’s GP in the four to six weeks leading up to the hearing, and this has probably prevented the plaintiff from actually recommencing overtime before the hearing, assuming it had been available, despite the plaintiff giving evidence that he was fit to do so. However, the evidence did not establish that overtime was actually available during June and July 2020 (following the reopening of the NGA), and in any event, that is a relatively small period. The key period where overtime was really lost is the time from June 2018 to April 2020.
The second defendant suggested that if liability for harm is established, it is impossible to be precise about loss of overtime and that a buffer of $10,000 would be appropriate. Given the unpredictability of overtime being offered, including the recent unavailability of overtime as a result of restrictions related to the pandemic, I accept that figure as appropriate.
The plaintiff calculated his superannuation claim at 11% of $20,000. I accept the convention on past superannuation at 11% rather than the statutory 9.5%, to take account of the fact that the statutory figure is payable on a person’s gross salary. 11% of $16,375 (being the amount paid by QBE plus the buffer for loss of overtime) is approximately $1,800 and I allow that sum.
Interest is also payable in respect of the lost overtime and superannuation. However, the loss of overtime and superannuation was not an economic loss immediately following the accident. The loss accrued over the ensuing 2.25 years (approximately). To award interest for that entire period would overcompensate the plaintiff. The plaintiff appears to accept this as he has claimed a rate of 3% over the period. I consider it appropriate to award interest from 1 July 2019 to 1 July 2020, but using the pre-judgment interest scale provided for by the Court Procedure Rules 2006 (ACT) (5.25% for 2019 and 4.75% for 2020).The amount of interest payable on $11,800 (being the $10,000 loss of overtime and $1,800 for loss of superannuation) is $591.02. Given the somewhat arbitrary time period produces an approximation of what would be just compensation, and the overtime amount is a buffer rather than a precisely calculated amount, I will allow a round figure of $600 in interest.
Future Economic Loss / Loss of earning capacity
The plaintiff claims $150,000 as a buffer in respect of future impairment to earning capacity. Compensation for future superannuation loss in the sum of $19,500 is also claimed.
The relevant principles are as follows:
(a) A plaintiff is compensated for loss of earning capacity, not loss of earnings: Medlin v State Government Insurance Commission; (1995) 182 CLR 1 (Medlin) per McHugh J at 16.
(b) Deciding what value is to be ascribed to the loss of future earning capacity of an injured plaintiff requires close attention to the facts of each case. The enquiry is about what could the plaintiff have done in the workforce but for the accident and what sum of money would the plaintiff have had at his or her disposal: Husher v Husher [1999] HCA 47; 197 CLR 138 (Husher) per Gleeson CJ and Gummow, Kirby and Hayne JJ at [23].
(c) The Court must have regard to all those contingencies of life that might reasonably be expected to affect the course of events in the future: Husher at [23].
(d) A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless two distinct but related requirements are satisfied: (1) that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury; and (2) that the diminution of earning capacity is or may likely be productive of financial loss: Medlin at [3], citing Graham v Baker (1961) 106 CLR 340 at 347, per Dixon CJ, Kitto and Taylor JJ in respect of the second requirement.
(e) Earning capacity is an intangible asset. Earnings are evidence of the value of earning capacity, but they are not synonymous with its value. A comparison between pre-accident and post-accident earnings will be relevant, but attention should also be paid to that part of the plaintiff’s capacity to earn that was not exploited before the accident: Medlin at 16.
There was really no discussion or evidence specific to establishing that the plaintiff’s earning capacity would have extended above the job he had undertaken for the seven years prior to the accident. I have proceeded on the basis that the plaintiff’s past earnings carry significant weight in assessing any diminution of earning capacity separate from future loss of earnings.
The plaintiff now accepts that he is ready to undertake fulltime employment in his current employment, including overtime. This relatively recent improved condition means that the claim for future loss of earnings and superannuation is now reduced.
The defendant claims that as a result, this component of the claim should be reduced to $0 and Dr Kelman’s report supports that submission. Dr Kelman considered that, from a musculoskeletal point of view, any injury sustained in the accident had now resolved and would not affect the plaintiff’s future work capacity.
However, the plaintiff’s medical evidence is that he is likely to suffer from flare ups of his injuries, both physical and psychological, which will affect his capacity to work. Dr Champion states that it will not take much – for example, a fall or upgraded physical work or added stress – for the plaintiff to experience setbacks such that could interfere with the plaintiff’s work and activities of daily living. Dr Champion’s unchallenged view was that there remained a long-term risk of exacerbation of the plaintiff’s condition, whether they be mechanical or psychological setbacks. Those setbacks could lead to reduced working hours. His advice was for the plaintiff to keep in touch with his clinical psychologist, physiotherapist, and GP, and for the plaintiff to maintain exercises as instructed.
The plaintiff is now in his mid-thirties. There was some medical evidence from Dr Dryson that those flare ups will likely become less bearable as the plaintiff gets older, and that the plaintiff’s condition was likely to reduce his working life to age 55. Dr Nair agreed that it was likely the plaintiff would have to retire early because the plaintiff’s job is a security officer and his symptoms are provoked by standing.
Even with the assistance of the competent and cogent expert medical evidence before the Court, it is plainly a difficult task to make a factual finding as to what may happen in the future where the plaintiff is presently a fit man in his mid-thirties with a supportive wife and a positive attitude to working full time, but with an increased vulnerability which, if it materialises may have significant consequences for ongoing employment, given the plaintiff’s current nature of work.
In my view, the plaintiff has given himself the best chance he can of continuing in full-time employment through generally following his medical advice to date, in terms of treatment and allied therapies that might assist him. However, taking the matters referred to by the plaintiff’s medical practitioners into account, I consider it more likely than not that from time to time, there will be an impairment to the plaintiff’s earning capacity from now until retirement productive of financial loss. This will probably include reduced working hours on occasion, a reduced ability to undertake overtime, and a reduced ability to take on a higher paid job which carries with it heavier duties or higher stress. I accept that the plaintiff may have to scale back his hours as he ages, but I am not persuaded the injury sustained in the collision will cause an early retirement at age 55. I consider it appropriate to award $70,000 as a buffer over the next 25 to 30 years, which includes the lost opportunity to earn superannuation (claimed at 13% to take account of legislated statutory increases) and then a modest discount for any intervening vicissitudes of life.
Past and future domestic care and assistance
The plaintiff claims $17,600 for past domestic care and assistance, calculated at a rate of $40 per hour, for four hours a week. The plaintiff claims $132,600 for future domestic care and assistance (three hours per week at $40 per hour with a multiplier of 1300 less 15%) to reflect the need for assistance with age irrespective of injuries. He relies on the reports of Dr Dryson and Ms Stephenson.
Domestic arrangements between the plaintiff and his wife before the accident
In 2009, Ms Qureshi ceased paid employment in order to provide full-time care to her ageing parents. Her mother suffered from emphysema, various heart conditions and what was described as a condition in which two nerves in her back touched each other and could not be operated on. Her father was a very large, bedridden man who suffered from depression. Her parents passed away in 2016, within six months of each other. During the period in which Ms Qureshi was her parents’ principal carer, the plaintiff worked full time and was the ‘sole breadwinner’ in the relationship.
Ms Qureshi gave evidence that during the period in which she was caring for her parents full-time and the plaintiff was working full-time, the plaintiff did “quite a lot” of domestic work around the house. That domestic work was described as including laundry, washing the dishes, general cleaning (including the vacuuming and loading and unloading the dishwasher) and shopping. Prior to the accident, Ms Qureshi cleaned the bathroom, but sometimes they would call a cleaner to do so. This happened on average about once a month, with the cleaner undertaking the heavier cleaning tasks.
With regard to maintenance outside the home, Ms Qureshi said that it “was basically his forte”, and that he undertook tasks such as cutting the hedges and general gardening. With regard to inside maintenance, Ms Qureshi said that the plaintiff did this when required, such as changing light bulbs and painting. He also looked after the cleaning of their cars, a task that involves washing and vacuuming.
Ms Qureshi recommenced paid employment as a carer in January 2018. She was employed on a casual basis. She estimated that between January 2018 and the time of the accident, June 2018, she worked between four to ten hours a week. During that period the plaintiff worked normal and overtime hours, but he spent about the same amount of time doing the above-mentioned domestic tasks as he had done before Ms Qureshi’s parents had died.
The central theme of Ms Qureshi’s evidence was that in the period prior to the accident, the plaintiff did significantly more of the household domestic work than she did. Elsewhere in the evidence, Ms Qureshi described herself as the “lazier” one in the relationship and I infer this comment also applied to the sharing of domestic work.
Consistent with that evidence, the plaintiff identified that he had previously undertaken the vacuuming and laundry (including hanging out the washing), maintaining the garden, house maintenance such as painting, minor repairs such as changing light bulbs and cleaning one car once a week. Grocery shopping was a shared task.
After the accident
Ms Qureshi’s evidence was that after the accident, because the plaintiff’s work hours were reduced, she increased her own working hours. She worked full time for about four to five months, but currently works 15 hours or less a week. It was understood that the reduction in her hours was due to the current Covid-19 pandemic.
After the accident, Ms Qureshi began to undertake the chores the plaintiff would previously do, such as the dishes, general cleaning, vacuuming or mopping. She therefore was in a position in which she did more domestic work after the accident than beforehand. She estimated that she gained an additional three to four hours of domestic tasks each week. She also noted that the garden is no longer tended to and the cars are cleaned less frequently. The couple has also not been able to continue to employ a cleaner on a regular basis.
The defendants’ submissions
The defendants submitted that the claims for domestic care and assistance, both past and future, should be wholly dismissed. First, even if the Court found there were injuries suffered that were attributable to the accident, any such injuries were never substantial enough to impair the plaintiff’s ability to undertake domestic tasks. The plaintiff has been attending work since the accident. In those circumstances, the defendants submitted that it is “illogical” that he is incapable of undertaking domestic tasks.
Second, the plaintiff’s wife has not spent any additional time undertaking domestic tasks since the accident because the plaintiff is unable to perform the domestic tasks he used to carry out. It was submitted that the effect of the plaintiff’s evidence was that he still performed a share of domestic tasks, that he and his wife had “simply come to an appropriate and equitable allocation that suited their respective circumstances”, and that such arrangement would persist.
Third, the defendants submitted that the evidence of Ms Qureshi was unsatisfactory and should be rejected. No receipts for cleaning services were in evidence and Ms Qureshi’s evidence about employing cleaners was not freely forthcoming. Senior Counsel for the defendants argued that on any view of the evidence, the cleaner was employed on the same basis before and after the accident. If the Court found that the plaintiff was the person in the relationship who primarily undertook the domestic tasks, and therefore that such tasks simply did not get done after the accident, then no compensation should follow. The same was said for the circumstance of dividing the tasks between the pair.
Fourth, it was argued that given the plaintiff is now ready to commence full time employment plus overtime hours, there was no basis for the plaintiff maintaining the claim for domestic assistance. Even if the Court were to find past domestic assistance was provided, the aspect of the claim pertaining to future domestic assistance should be dismissed.
Findings
In light of the evidence that the plaintiff’s wife was working four to 10 hours a week before the accident and the plaintiff was working full time, the defendants’ submission that it is hard to believe the plaintiff did most of the housework prior to the accident is understandable.
However, I accept the evidence of the plaintiff and Ms Qureshi, that the plaintiff was the individual in the relationship who undertook the greatest share of domestic tasks prior to the accident, despite working greater hours than his wife before the accident. I found both witnesses to be credible in this respect of their evidence, which was consistent and corroborated between them to a great extent without any suggestion of collusion.
The evidence about who performed cleaning and maintenance chores must be viewed in context and when it is viewed as a whole, I accept that to have been the case. The plaintiff’s wife did not undertake a great share of cleaning type activities, but she evidently spent time fulfilling other important roles in the relationship. Ms Qureshi was clearly the cook in the household (the plaintiff noted this), and she was primarily responsible for buying the groceries, even though the plaintiff shared that task from time to time. She also took responsibility for the paperwork and administrative side of running the household. She looked after insurance, paperwork and bills. These are not small and insignificant tasks. Cooking in particular is a task which must be undertaken, every day, often multiple times a day. Personal administration can itself feel like a full-time job for which there are never enough hours in the day. I could see from the combined evidence of the plaintiff and Ms Qureshi that the plaintiff did more of the domestic cleaning chores because he placed higher importance on a tidy and clean house and Ms Qureshi preferred to exert her labour in other ways such as cooking.
I also accept the evidence of the plaintiff and his wife that following the accident Ms Qureshi has been required to spend more hours completing domestic tasks than before the accident, although it is clear that some tasks have simply been neglected and I do not accept that the plaintiff has required four hours of domestic assistance per week since the accident. The plaintiff’s condition has also improved over time. I will allow $8,320 for past domestic care and assistance, which is two hours per week at $40 per hour for a two-year period.
Interest is also payable on past domestic care and assistance. Again, as the domestic assistance was provided over time, the loss accrued over time. Appreciating that the compensation in this regard is already by its nature inexact, awarding interest over a shorter period (again, 1 July 2019 – 30 June 2020) is one way to account for the circumstances in which this aspect of loss and damage accrued. The plaintiff submitted a longer period of time with a lower interest rate. Given the amount in question, it makes little difference. Using the pre-judgment interest scale provided for by the Rules (5.25% for 2019 and 4.75% for 2020), the award of interest rounded to the nearest dollar is $220 for the period in 2019 and $197 for the period in 2020, with the total sum being $417.
In terms of future domestic care and assistance, the plaintiff’s position has clearly changed since Ms Stephenson’s careful report was obtained. Consistently with the findings in relation to the other heads of damage, I consider that the plaintiff has generally recovered from his injuries but that he will have flare ups from time to time, and that it is more likely than not that during those periods, he will be unable to undertake domestic and gardening chores to maintain his house at a standard that he would have kept absent the pain and any impact to his mental health.
I make an award of $20,000 by way of a buffer only for future domestic care and assistance.
Conclusion
The plaintiff has succeeded in establishing the claim. Drawing together the findings above, the award of damages is as follows:
General Damages (inc. interest) $62,025 Past Out-of-Pocket Expenses $32,506.31 Future Out-of-Pocket Expenses $15,000 Past Economic Loss (inc. interest) $18,775 Future Loss of Earning Capacity $70,000 Past Domestic Care and Assistance (inc. interest) $8,737 Future Domestic Care and Assistance $20,000 TOTAL $227,043.31
I will order that the defendant pay the plaintiff’s costs, on the basis that costs follow the event. If either party wishes to seek a variation of the costs order due to matters presently unknown by the Court, they are to notify the Court in writing within seven days of judgment being handed down, in which case the order in relation to costs will be stayed until further order.
Accordingly, the orders of the Court are as follows:
(1) Judgment is entered for the plaintiff in the sum of $227,043.31.
(2) The defendant is to pay the plaintiff’s costs.
(3) Order 2 is stayed for seven days, and in the event either party seeks to vary order 2 within that time, is stayed until further order.
| I certify that the preceding one hundred and forty [140] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
************
Amendments
04 November 2020 Replace “$224,043.31” with “$227,043.31” Paragraph: [140]
3
11
2