Amos Aikman v Stephen Michael Howard
[2014] ACTSC 35
•6 March 2014
AMOS AIKMAN v STEPHEN MICHAEL HOWARD
[2014] ACTSC 35 (6 March 2014)
DAMAGES – personal injury – collision between motor vehicle and motorcycle – injuries to right ankle and knee requiring surgery – other injuries to the face and body leaving scarring – plaintiff PhD in geology – injuries preventing plaintiff from engaging in geological fieldwork – career as geologist foreclosed – substantial interference with physical activities resulting in loss of enjoyment of life – substantial impairment of earning capacity
Barak Pty Ltd v WTH Pty Ltd [2002] NSWSC 649
Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980
No. SC 488 of 2009
Master Harper
Supreme Court of the ACT
Date: 6 March 2014
IN THE SUPREME COURT OF THE )
) No. SC 488 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: AMOS AIKMAN
Plaintiff
AND: STEPHEN MICHAEL HOWARD
Defendant
ORDER
Judge: Master Harper
Date: 6 March 2014
Place: Canberra
THE COURT ORDERS THAT:
judgment be entered for the plaintiff in the sum of $1,232,000.00.
the plaintiff’s costs to be paid by the defendant.
the order as to costs be stayed for 21 days.
This is an action for damages for personal injury arising out of a motor vehicle collision. Liability is admitted.
The collision
The collision occurred on Wednesday 13 September 2006 at about 8:20 pm. The plaintiff was riding a Honda 110 cc motorcycle (described as a postman’s bike) in an easterly direction on Balmain Crescent, Acton, within the grounds of the Australian National University. The defendant was driving a Holden Rodeo four-wheel drive vehicle in the opposite direction. The defendant stopped in the middle of the road to make a right turn into the parking area of University House. Apparently because of lighting at about the same height in the grounds of University House, the defendant failed to see the approaching headlight of the plaintiff’s motorcycle, and commenced his right turn across the plaintiff’s path. The plaintiff braked hard and steered left but was unable to avoid a collision with the front bull bar of the defendant’s vehicle. The plaintiff’s recollection was that he was thrown over the bonnet of the vehicle to the road, and that the motorbike came in behind him and crushed his leg, which he described as scissored between the bull bar and the motorcycle.
Police and ambulance staff attended the scene. The plaintiff was taken to hospital and admitted.
The plaintiff
The plaintiff was born in December 1979. He was 26 at the date of the collision and is now 34.
He was born in England and grew up and went to school in Scotland. He studied geology at the University of Edinburgh, graduating as a bachelor of science with first class honours in 2002.
His interest in science and geology grew out of trips with his father, a schoolteacher, walking and mountaineering in the Scottish highlands. He was an avid distance runner, mountain biker and snowboarder. He regularly ran 10 km twice a week. He cycled long distances. He did some mountain bike racing in Canada. He went snowboarding in Scotland, Europe, Canada and New Zealand. He was an enthusiastic rock climber.
He worked in various casual jobs during his time at university.
He received offers from a number of universities to pursue postgraduate studies in earth science. He obtained two scholarships to study at the Australian National University, where he enrolled in 2003 to undertake doctoral studies based on fieldwork, some of it in Australia and New Zealand but most of it in Tibet. Apart from his field trips, he lived in Canberra from then until the accident. The field trips were for periods of about four weeks at a time, at high altitudes in the Himalayas. He and his colleagues were essentially investigating what had happened some 65 million years earlier when the Indian subcontinent collided with Eurasia, creating the mountain range. This involved scrutiny and collection of pieces of rock. He was working in very steep country which was accessible only on foot. He and his team might climb more than a thousand metres, and cover up to 10 km, in a day, returning with 20 to 30 kg of rocks in a backpack.
When the plaintiff was in Canberra between field trips, he had casual laboratory work at the University to supplement his scholarship income.
Oral evidence for the plaintiff
The main injury was to the plaintiff’s right leg. He suffered an injury to the base of the third metatarsal of the right foot, a fracture to the right patella involving the patellar tendon, contusions to the right leg and knee, abrasions to the face, and a laceration on the upper lip caused by his teeth. X-rays also revealed a comminuted fracture involving the base of the third metatarsal, and a small fracture involving the tip of the lateral malleolus.
The plaintiff underwent surgery the day after the injury in the form of debridement and washout of the right knee under general aesthetic. The cuts to his face were also treated and bandaged. He spent two days as an inpatient. He was discharged with the right leg in a half cast. He was unable to bend the knee or ankle and was in considerable pain. For the first couple of weeks after discharge his leg was very swollen and excruciatingly painful.
At the time the plaintiff was living in a rented house which he shared with others near the University. He spent the first two weeks on the couch, hardly able to move at all. He was then on crutches for about ten weeks, and had a series of different casts and braces on the leg. He regularly attended the fracture clinic at the hospital, where he was provided with physiotherapy treatment. He was later referred to a sports physiotherapy clinic at Braddon. During this period he had no movement in the knee and was unable to put any weight on the right foot.
About four months after the injury the plaintiff had an episode of extreme pain in his chest at night, which he attributed to the impact with his chest at the time of the collision. The chest pain cleared up after a time.
The motorcycle was damaged beyond repair. After about three months the plaintiff was able to drive again. A friend lent him a car with automatic transmission. He taught himself to operate the pedals with his left foot. A physiotherapist prescribed orthotics which he had worn inside his shoes since, and was still wearing by the time of trial. He found that these reduced the pain and made it easier to walk. He found that since the accident he had worn his shoes out more quickly than before, which he put down to a change in his gait.
The plaintiff was given exercises to strengthen his leg, and he performed these exercises diligently. He hoped that he would be fully recovered within six weeks but this did not happen. As time went by he thought that it might be six months before he was back to normal, but this also proved far too optimistic.
The standard period for completing a doctorate of philosophy is three years. The plaintiff’s evidence is that extensions of the order of six months are not uncommon. He had applied for an extension prior to the injury, and had been hopeful of completing and lodging his thesis by the end of 2006. He had completed the fieldwork and had only to complete the writing up of the thesis. The extension covered his scholarship payments, which were also extended for six months, until the end of March 2007. The plaintiff had been awarded a standard scholarship as well as a top-up scholarship for excellence. Both of these were to run out at the end of March 2007. After the accident the plaintiff decided to move to Sydney and look for work to earn some income. He obtained short-term contract work with the University which he was able to do from a remote location, but he did not have any expectation of further university-based work after that.
The plaintiff obtained a further extension of three months by reason of his injuries. The extension applied to both scholarships as well as the time for completion of his thesis.
This meant that by the middle of 2007 he needed to find employment. He had been engaged in photography as a hobby, and had expensive photographic equipment. He had been able to use this skill during his fieldwork in Tibet and elsewhere. He found work as a freelance photographer, which he did while continuing to work on his thesis. He commenced as a sole business operator with various clients. He began to do some freelance work for The Australian newspaper.
By the middle of 2007 he was still finding it painful to walk any distance. He was able to cope with a ten-minute walk to work but only with some difficulty. His right foot was aching all the time, and he found his restrictions frustrating.
He eventually submitted his thesis in August 2007. There was then a process of external assessment of the thesis by professors at overseas universities. The thesis was found worthy of the award of the doctorate, which was conferred in April 2008.
In August 2007 the plaintiff was referred to Dr Martin Sullivan, an orthopaedic surgeon specialising in surgery to the foot and ankle. Although symptoms in the knee were continuing, and also by that time in the back, the major source of pain and other symptoms was the right ankle. This was not improving. The plaintiff’s desire to undertake exercises to strengthen his knee were impaired by the pain in his ankle, which prevented him from undertaking any serious physical exercise or carrying anything heavy.
In October 2007 the plaintiff was offered permanent full-time employment by The Australian which he accepted. His work involved news photography. As he explained it, he would be given an assignment and sent in a taxi to a venue where something newsworthy was happening. He would take photographs and return to the office, probably doing the same thing later in the day. In the same month he saw Dr Sullivan who recommended surgery in the form of arthroscopic debridement of the ankle.
The plaintiff was admitted to St Vincent’s Hospital in Sydney for this procedure in April 2008. The surgery was performed under general aesthetic. The plaintiff was in hospital for a day or so and was discharged with his ankle in a temporary cast. He had a few days off work, and went back on light duties for a time. During this period he needed some help from friends around the house. The surgery caused a considerable improvement in the ankle symptoms and in the range of movement. The plaintiff underwent a further course of physiotherapy after it, and found that he was able to get around on a day-to-day basis in a fairly normal way for the first time since his injury.
The plaintiff’s evidence was that he had originally moved to Sydney and taken on photography work in the expectation that this would be temporary and that he would eventually be able to get back to geological fieldwork. As it became clear to him that he would not be able to do that, he became rather depressed about it. He had devoted up to ten years of his life to geology and had a passion for it. He had done well and was looking forward to an academic career which would give him the opportunity to travel, teach and engage in further practical work. The work as a photographer was far less satisfying. It was novel in the beginning but became mundane after a time.
After rehabilitation following the operation to the ankle, it became clear to the plaintiff that he was not going to get back to normal, and would not be able to cope with the demands of fieldwork in mountainous terrain. He was also aware that time had passed since he had completed his fieldwork, and as he saw it, the door to academia was closing. It gradually dawned on him that he was probably never going to be able to get back to academic life as a geologist, but it took him a long time to come to terms with it. He said that the academic world was highly competitive, particularly in his area, with research budgets shrinking and a limited number of tenured positions available, as well as a constant supply of good graduates. He explained that the Australian National University was considered exceptionally good as a research institution generally, and particularly in the field of geology. His experience was that there was a great difference between universities in standards. His undergraduate honours degree at Edinburgh had been, he said, of a vastly higher quality than that of people he had met who had graduated through Melbourne University, although the latter was considered a top tier university in Australia. Not all Australian universities had schools of geology or earth sciences.
In November 2010 the plaintiff was offered, and accepted, a change of position with The Australian. He became a journalist as well as a photographer.
In July 2012 the plaintiff moved to Darwin to take up a position as the Northern Territory correspondent for The Australian. The appointment was for two years with the possibility of renewal. The Australian has no office in Darwin. The plaintiff works there with an experienced part-time journalist. The plaintiff expressed during his evidence some concern about the future of newspapers generally in the internet age.
In about July 2010 the plaintiff commenced attending a chiropractic clinic in Sydney for treatment for his back pain. He continued with this until he moved to Darwin. He found that the treatment helped. His back pain had returned after he ceased the treatment. He demonstrated that the back pain was between the shoulder blades, and to the right of centre.
By the time of trial the plaintiff continued to have a number of obvious scars from the collision itself, probably mostly from the impact between his body and the road surface. He also had operative scarring to the right knee and ankle, and a scar below his lower lip. His evidence was that the scars had not improved in the two years or so before trial. Photographs of the scars were tendered, as were photographs of spectacular scenery in the Himalayas which the plaintiff had taken during a field trip in 2004.
The plaintiff said that by the time of trial his right ankle remained painful. The pain fluctuated between a background awareness and what he described as very painful, causing him to take a break or modify his activities. He found that the pain was made worse by such activities as prolonged walking, walking on uneven ground, running and carrying heavy loads. He said that he still had a limited range of movement, and that he was conscious of crunching if he angled his lower leg too far forward. The crunching was accompanied by pain. There was also pain above the heel in the region of the Achilles tendon.
His right knee was weaker than the left knee and had a tendency to collapse inwards, but the knee was generally not painful.
He said that at times when the ankle was painful he walked with a visible limp. On other occasions he was not conscious of any limp. He persisted with exercises and activity, because he had been advised by his surgeon, Dr Sullivan, to use the right leg as much as possible.
He said that since his move to Darwin he had not yet had any treatment. He regularly massaged his right ankle. He expressed the intention of finding a physiotherapist, a chiropractor and a massage therapist in Darwin.
The plaintiff said that he had tried hard to regain his pre-accident level of fitness. He had persevered with running, both on a treadmill and around his neighbourhood, but he had found it too painful and had given it up. He had concentrated on cycling instead. The best he had achieved was to run 4 km or so. He had tried to do a long run once a week, and also to run a kilometre on a treadmill about three times a week. He found that he had to be very careful about avoiding hard surfaces such as bitumen, and about wearing the correct shoes with his orthotics fitted. He eventually came to the view that he was not really getting anywhere with the running, and was aggravating his ankle pain for no real benefit. The cycling seemed to be more effective. He had a bicycle which he rode in Darwin.
If it had not been for the accident, he said that he would have applied for a post-doctoral position in the United States. He would have started to make enquiries and applications after he had handed in his thesis.
At the time of the hearing he was not taking any prescription medication, except for some which he had left over from earlier prescriptions which he might take to relieve severe pain occasionally. Otherwise he sometimes took over-the-counter painkillers. He regularly took non-medical items which he believed were generally helpful in warding off arthritis, such as fish oil, glucosamine and multivitamins.
He had joined a gym in Darwin which he attended regularly, at a cost of about $500.00 a year.
The plaintiff accepted in cross-examination that during July 2007 he spent over $12,000.00 on camera equipment. He did not immediately remember the details, and said that he had spent a significant amount of money on photographic equipment over the years. He agreed that he had claimed depreciation in the equipment in his 2007-2008 tax return. He did not accept that he had purchased the equipment with the intention of pursuing a career as a photographer, but he agreed that the photography at that time gave him an income stream.
He agreed that during 2007 he had entered photographs in competitions, and that doing well in those competitions would help his reputation as a photographer, but he denied that he was at that time looking at pursuing a career in photography.
The plaintiff recalled, when probed, that his second thesis extension had been purely an extension for time for lodgement of the thesis, but had not involved an extension of his scholarship income. He said that he had not recalled this accurately when giving evidence in chief. Prior to moving to Sydney he had reached a point where his scholarship income was running out, and he needed to find another source of income. He got a part-time contract with the University for work he was able to do from Sydney, and he decided to earn income from freelance photography as well.
He was asked why, after handing in his PhD thesis, he did not put in train enquiries about a post-doctoral appointment in the United States. He said that at that stage he was still having treatment, and was unsure what his physical capacity would eventually be. He was conscious of the fact that he was at that stage unable to engage in fieldwork research of the kind he had done before his accident.
The plaintiff had not said anything in chief about overseas travel after his accident. He agreed in cross-examination that he had travelled extensively. He had been to Europe “once or twice”, and visited countries in South East Asia, including Bangladesh and Thailand. He said that the travel had not been particularly physically demanding. He had travelled with very little luggage and had mostly moved about by train, plane and bus.
He had also travelled a lot in remote areas of Australia as part of his work, but again this had not involved much strenuous activity on his part. He had generally flown to the destination and travelled on in a four-wheel drive vehicle. There had been little need to walk for lengthy distances, or over uneven ground.
He agreed that he had at times worked for very long hours with The Australian.
Counsel for the defendant put to the plaintiff that he had been told by a number of doctors that he was physically capable of returning to geological fieldwork. He said that no doctor had told him that in person, and that he had not read any medical report in which that opinion had been expressed. Counsel asked him whether that meant that he was not interested in knowing whether there were opinions of doctors to that effect. His response was “Well, look, doctors are welcome to have whatever opinion they have. I have an ankle which I walk on every day and I feel qualified to say what I feel I can do and what I can’t”.
The plaintiff was asked in re-examination what he had done with his existing photographic equipment when he had bought the new equipment in July 2007. His answer was that he had sold it. His recollection was that he had received something over $8,000.00 on that sale.
Evidence in the plaintiff’s case was given by Dr[name withheld from publication at witness’s request because of employment confidentiality agreement], a contemporary at the Australian National University put forward as a comparable earner in respect of the plaintiff’s claim for loss of earning capacity. The witness graduated as a doctor of philosophy in December 2007. He had been studying a similar topic to the plaintiff, and had used similar practical research methodology.
After completing his doctorate, the witness commenced employment with a company, working as a consultant to the minerals industry in a number of remote and rugged places, including places in Australia, Africa and Eastern Europe. His work has required him to maintain a high level of physical fitness and sometimes to walk and climb in rugged terrain for weeks at a time. He did not think that he could do this work unless his fitness was at its peak. He had spent about four months of the previous year in the field in remote parts of Zambia. He said that he would not be able to make similar earnings as a geologist if he did not engage in fieldwork. He thought that an office job as a geologist would attract a salary within a range of $80,000.00 to $120,000.00 depending on experience. By the time of trial he was earning a base annual salary plus a performance bonus, and stock options in the company, worth a gross amount of more than $US 250,000.00. His evidence was that the plaintiff had received a more favourable review as to his PhD thesis than he had.
His employer had made an approach to him, which he understood arose from the fact that a former University colleague of his was working for the company. He had earlier been approached by another potential employer but had declined this approach because at that time he had not yet finished his thesis.
The medical evidence
The medical evidence on both sides was in documentary form. None of the medical experts gave oral evidence. I draw no adverse inference from this. The only inference I think it reasonable to draw is that if the medical witnesses had been cross-examined they would not have departed from the opinions they expressed in their reports.
I have previously mentioned Dr Sullivan. The plaintiff was referred to him in August 2007 complaining of pain in the right ankle following the motorcycle accident a year earlier. On examination he had swelling in the ankle with tenderness along with anterior joint line. An MRI performed in October 2007 showed chondral damage over the central tibial plafond, and also an extra-articular talar calcaneal coalition.
In February 2008 Dr Sullivan performed an arthroscopic examination of the ankle under general anaesthetic, and debridement. He found a central tibial plafond lesion with synovitis and plafond chrondral loss.
After the surgery the plaintiff’s symptoms improved greatly but did not return to normal. He reported that he was able to walk more, and could run up to 4 km but no more. He had not returned to his pre-injury work. The range of movement had increased but was not full. There was pain in the right foot and discomfort in the right ankle, particularly with extra loading of the ankle, and he also complained of pain at the posterior aspect of the ankle.
Dr Sullivan saw him again in June 2010, apparently at the request of his solicitors. On examination he had a normal gait. There was some effusion of the right ankle, and minor tenderness across the central tibial plafond. However, the ankle was stable.
Dr Sullivan said that the plaintiff had sustained chondral damage as a result of the motorcycle accident and would be left with some permanent impairment as a result. He was unlikely to develop arthritis in the ankle. At that time (June 2010) the plaintiff was seeing an exercise physiologist every six weeks.
Dr Sullivan referred the plaintiff for a further MRI scan, which confirmed the chondral damage in the tibial plafond. This had healed with formation of fibrocartilage. There was some mild subchondral bone marrow oedema. The talocalcaneal coalition was observed, with a ganglion adjacent to it. Dr Martin said that there was no need for any further treatment at that stage.
He reviewed the plaintiff in October 2012, shortly before the hearing. The situation in his opinion had plateaued. The plaintiff continued to have problems with activity-related movements of the right ankle. He complained of pain on vigorous activity involving the ankle. Range of movement of the ankle remained restricted. Dr Sullivan expressed the opinion that the plaintiff would continue to have problems with uneven ground, carrying heavy loads and running more than 4 km. His fitness was unlikely to improve, but also unlikely to deteriorate. The right ankle problems were a direct result of the motorcycle accident.
The plaintiff’s solicitors sent the plaintiff to another orthopaedic surgeon in Sydney, Dr James Bodel, in November 2008 for a report. Dr Bodel obtained a history and conducted a physical examination. His opinion was that the plaintiff did not require further surgery or other specific treatment, but would need to continue indefinitely with an exercise-based program to strengthen the muscles of the right leg. He would benefit from continuing with physiotherapy for a further two to three months. He would be left with residual disability in the right knee and ankle, and would have difficulty undertaking fieldwork in remote or rugged terrain, which might have an effect on his long-term career options.
Dr Bodel reviewed the plaintiff in October 2012, just before the hearing. The plaintiff was by then working as a journalist in Darwin. He complained of pain in the interscapular region of the thoracic spine. He had continuing symptoms in the right knee and ankle, aggravated by kneeling, squatting, climbing, prolonged standing and walking on uneven surfaces. There was slight restriction of movement in the right ankle with some clicking, and Dr Bodel detected a mild flat-footed gait pattern on the right side.
His opinion was that the plaintiff had continuing pain and stiffness in the right ankle, and that this would go on indefinitely. He would probably require six to eight manipulative treatments a year, and should continue with his own exercise program, including cycling, swimming and gym-based exercises. Dr Bodel said that the intra-articular nature of the injury to the right ankle was “a poor prognostic sign from an orthopaedic point of view”, but as he did not give oral evidence there is no further explanation of this somewhat cryptic observation.
Dr Bodel said that the plaintiff would not be able to cope with geological fieldwork as the plaintiff described it to him, and that it was unlikely that this would change in the future.
Senior counsel for the plaintiff also tendered a large volume of medical documentation by way of hospital records and clinical notes, which it is unnecessary for me to detail in these reasons.
The defendant’s insurer sent the plaintiff in March 2009 to be seen by Dr G Papatheodorakis, a medical practitioner with a master’s degree in occupational medicine, who is described as an injury management consultant, accredited by WorkCover and the Motor Accidents Authority in New South Wales. Dr Papatheodorakis saw the plaintiff on 25 March 2009. He thought that the plaintiff would continue to improve, and that it might take up to the end of 2009 before stabilisation was achieved. The main problems were pain and stiffness about the right ankle and foot, and, to a lesser degree, the right knee. He concurred in the opinion that the plaintiff should continue with a self-directed exercise program, and that there was no indication for further surgery. He regarded the plaintiff as fit for work as a photographer, and thought that he would eventually be capable of resuming work in earth science. He did not think that the plaintiff required any personal or domestic assistance. He agreed that the plaintiff might have difficulty undertaking fieldwork in rugged terrain but thought that the plaintiff would eventually be able to undertake such work if he persevered with his exercise program. It is not clear from the report that the doctor appreciated precisely what had been involved in the plaintiff’s fieldwork in the Himalayas before the accident.
He also expressed the opinion that the plaintiff was not likely to lose income as a result of his injuries. I am not satisfied that this was something within the doctor’s experience or training, and I am not inclined to take much notice of it.
The solicitors for the defendant sent the plaintiff to an orthopaedic surgeon in Sydney, Dr John Cummine, who saw him in December 2011. Dr Cummine thought that the plaintiff had made a satisfactory recovery from his injuries, and that he should be able to resume a largely normal life with some minor limitations in sport. He accepted that the plaintiff had been inconvenienced for a considerable period of time and that this would have had an impact on his work as a geologist. However, he thought that the plaintiff would be able to walk on uneven and rough terrain although he might need to exert more caution than the normal person. He might benefit from an ankle guard or firm ankle strapping. No further surgery was indicated, and nor, in Dr Cummine’s opinion, was there any need for further physiotherapy, chiropractic or other treatment of any kind. The plaintiff might need to take over-the-counter painkillers. He described fish oil and glucosamine as “non-mandatory options”. He also commented that orthotics were optional and not mandatory. Dr Cummine concluded that the plaintiff had made the transition to journalism and that in these circumstances there might be some wisdom in his avoiding the potential problems of negotiating uneven terrain at altitude with loads as a geologist. He accepted that the plaintiff had some continuing impairment of the right ankle, with swelling and restriction of movement, caused by the motor accident. Dr Cummine thought that in addition there was some minor impairment to eversion and inversion of the hindfoot which was probably related to a tarsal coalition in the right foot, demonstrated by MRI studies. This was a congenital abnormality. He thought that this restriction of movement was possibly due to this cause although it would be difficult to prove. It is unclear whether he thought that this minor degree of restriction had been present before the car accident, or if not, whether it would have arisen regardless of the accident by the time he saw the plaintiff.
In January 2012 the plaintiff was seen by Dr Brian Zeman, a consultant in rehabilitation medicine in Sydney, pursuant to arrangements made by the solicitors for the defendant. Dr Zeman found the plaintiff cooperative but garrulous and a somewhat difficult historian. He found mild restriction of movement in the right ankle but full movement in the knee. He expressed the opinion that the chondral cartilage injury to the ankle would not have caused significant pain or functional problems following the surgery. He said that there was little evidence that the plaintiff had any significantly increased risk of arthritis developing from his injuries. He expressed some doubt about the benefits of vitamin supplements and medications such as glucosamine, and said that the use of maintenance chiropractic was not scientifically justified. He thought in any event that the back pain was not related to the accident, because it had not come on immediately. His opinion was that the plaintiff’s functional difficulties were much greater than he would have expected from the pathology. He suggested that the plaintiff use a walking stick on the left side if he needed to increase his walking distance. He noted that the plaintiff had been able to work as a photographer, which from his experience would involve carrying equipment, and also as a journalist. In his view the plaintiff’s complaints of pain and impaired function amounted to abnormal illness behaviour. The pain of which he complained was predominantly unrelated to the degree of underlying organic pathology. He said that the completion of the plaintiff’s PhD would not have been significantly delayed by his injuries. He did not require any personal care, physiotherapy or chiropractic. He did not require orthotics. He did not require any medication or vitamin supplements. He did not require any domestic assistance.
In June 2012 the plaintiff was sent by the defendant’s solicitors to a different occupational physician, Dr Philippa Harvey-Sutton. She saw him shortly before his move to Darwin. She noted that he had been in a de facto relationship for about four years (this was not something which emerged elsewhere in the evidence). She thought that he was fit to resume outdoor pursuits such as mountain bike riding, mountaineering and rock climbing but perhaps not at the same level as before the accident. She found no indication that he was unable to carry heavy loads or, as she expressed it, unable to travel in remote locations such as Tibet. She found no indication to put any restriction on his capacity to work as a geologist. She assumed from a guide to which she made reference that as a graduate geologist he would be supervising the work of technical officers, technicians and survey hands to do the physical work and that he would be responsible for studies and for analysis and interpretation of information. She thought that he did not require any further treatment. She accepted that it was widely recommended to take fish oil for a variety of conditions, and glucosamine for joint health. This might be considered reasonable and necessary in the circumstances, and might continue for the rest of his life.
In her conclusion, she repeated that she found no indication that the plaintiff would not be able to engage in high altitude mountaineering in the fullness of time. There should be no restriction to his work as a journalist or photographer or to his working as a geologist. She accepted that the injuries had delayed the completion of the plaintiff’s PhD by six to eight months. By the time she saw him he did not require any domestic or other assistance. His disabilities had improved since the accident, and she said that there was no indication that there would ultimately be any residual disability.
The further statements
There were statements of academics tendered in the plaintiff’s case, some of which were the subject of objection by counsel for the defendant which I said that I would deal with in these reasons.
Dr Frederic Herman was born in March 1978 in Belgium. He undertook his bachelor degree in that country, and later studied in the United Kingdom, undertaking research. In 2002 he commenced PhD studies at the Australian National University in the Research School of Earth Sciences. His focus was on the Southern Alps of New Zealand. He met the plaintiff in 2003. They worked together on a number of projects, including some in the Himalayas. They worked together in 2004 for about five weeks in Tibet. They climbed to an altitude of about 5,600 m to conduct their fieldwork. Dr Herman gained his PhD in geology in 2005, and moved to the United States as a post-doctoral scholar with the California Institute of Technology. In 2007 he commenced employment as a geologist with the Swiss Federal Institute of Technology in Zurich. His work included fieldwork in mountainous terrain including the Himalayas and the Alps. This required that he be in excellent physical condition. To keep fit he ran, played hockey and skied. He travelled to various destinations around the world to present papers at conferences.
He said that Professor Timothy Harrison, with whom the plaintiff undertook his PhD, was one of the most prominent scientists in his field. Dr Herman’s opinion was that the plaintiff had the capacity to move on to post-doctoral positions to further his research within the field of earth science.
Professor Harrison signed a statement in November 2011. At that time he was a professor in the Department of Earth and Space Sciences at the University of California, Los Angeles. He stated that in early 2003 he had been a professor, and director of the Australian National University Research School of Earth Sciences. The plaintiff applied to him to study at the ANU. He formed a high opinion of the plaintiff. He counted the plaintiff as among the three or four brightest of the thirty or so graduate students he had supervised over the last thirty years. The plaintiff gathered data in a timely fashion with an eye to statistical rigor that Professor Harrison had previously seen in only one of his graduate students. He saw the plaintiff’s thesis as a masterful piece of work, among the best any of his students had produced. He had come to appreciate fully some aspects of the thesis only recently, well after it had been handed in. Before the plaintiff’s injury, they had arranged that the plaintiff would come to Los Angeles for several months in late 2006 to reach agreement on a structure for his thesis and discuss the emerging interpretation of his research. Because of the accident, the visit was postponed. The plaintiff stayed with Professor Harrison’s family because of his limited mobility. It was apparent to Professor Harrison that the injuries had had a significant impact on the plaintiff’s confidence and sense of wellbeing. Professor Harrison thought that the accident had caused a delay in completion of the thesis of the better part of a year, and forestalled publication of the thesis by many years.
Professor Harrison said that a high degree of physical mobility was required to undertake the kind of research that the plaintiff specialised in. If it had not been for the accident, he was certain that the plaintiff could have built a promising career in field-based geochemistry. The accident prevented this from happening, and also restricted the plaintiff’s prospects of employment in Australia. It would have been possible for the plaintiff to change direction in his research but this would have placed him at a significant competitive disadvantage. The overall effect of the injury was to render the plaintiff effectively uncompetitive in relation to an academic career in geology. He would have remained able to find employment at a second tier university, but this would have had a negative impact on his earning potential and his international mobility.
Professor An Yin is a professor in the Department of Earth Sciences at the University of California, Los Angeles. He was an external examiner for the plaintiff’s PhD thesis. He said in his statement that the plaintiff’s work had revolutionised current understanding of the tectonic evolution of the Himalayan mountain range. The plaintiff’s observations had established a new mechanism for mountain-building processes applicable around the world. His opinion was that if it had not been for the accident, the plaintiff would have produced about three papers a year and secured a top job at an academic institute. Professor Yin said that the plaintiff’s thesis had been one of the two best theses of about forty that he had read in the last twenty years.
Counsel for the defendant objected to the admission of Professor Harrison’s statement on the basis that he had not made reference to the code of conduct for expert witnesses in the statement, and that he did not do so until many months later. I was taken to the decision of Einstein J in Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980, 24 October 2002, in the commercial list of the Equity Division of the Supreme Court of New South Wales. In that matter Einstein J declined to admit into evidence a statement of an expert witness who had not signed an acknowledgement as required by the code of conduct in the Supreme Court Rules of that State. In that decision, Einstein J referred to a decision of Barrett J in Barak Pty Ltd v WTH Pty Ltd [2002] NSWSC 649. In Barak the expert witness had given evidence that he had been aware of the requirements of the code of conduct at the time he swore his affidavit, and had complied with the code. In contrast, the expert in Cassegrain had given no such evidence. The ratio of Einstein J’s decision seems to me to have been that it is in the interests of justice in complex commercial litigation for the court to insist on compliance with the rules about expert opinion evidence, and not to admit such evidence in the absence of an acknowledgement by the witness as to compliance with the code without exceptional cause. His Honour nevertheless went on to say: “Naturally, every case in terms of the proper exercise of the discretion would have to be determined upon its own facts, matters and circumstances”.
Cassegrain was a case about investment banking. It was undoubtedly a piece of complex commercial litigation. The decision is one of a single judge in an interstate Supreme Court. I do not suggest that it is not entitled to a considerable degree of respect, but it does not seem to me that I must regard it as binding upon this Court.
The purpose of the acknowledgement is to ensure that expert witnesses understand that their primary duty is to the Court and not to the party who engaged them.
In the present case, unlike Cassegrain, there was no conflicting expert evidence called by the other side.
Part of Professor Harrison’s evidence was factual and part was in the category of expert opinion. It seems to me appropriate to exercise my power under rule 6 to dispense with compliance with rule 1203 of the Court Procedure Rules 2006 in relation to Professor Harrison’s evidence, which was unchallenged and does not seem to me to have been susceptible to challenge.
For the same reasons, I admit the statement by Professor Yin.
There was no real challenge to the other documentary evidence in the plaintiff’s case.
The plaintiff’s tax returns and assessments establish that he earned a gross amount in 2007-08 of $65,209.00, increasing to $72,387.00 in 2011-12. Tax was deducted from the gross income by his employer in each year. After lodging his tax return and establishing his entitlement to deductions, he received tax refunds in 2008-09, 2009-10 and 2010-11. He had not lodged his 2011-12 tax return by the time of trial. For the last two years for which figures are available, tax was deducted of something under $17,000.00, of which he subsequently received a refund of the order of $5,000.00 to $5,400.00.
Also in evidence were schedules of salaries for various academic positions at a number of universities. By way of example, for the University of Sydney, an enterprise agreement was in force. By January 2012 the salary for a professor was $168,000.00. The range for an associate professor was $130,400.00 to $143,700.00. The range for a senior lecturer was $108,000.00 to $125,000.00. The lecturer range was $88,400.00 to $105,000.00. It appears that generally loadings were paid in addition to these base salary levels, which varied according to numerous possible circumstances.
Consideration of the issues
The plaintiff was, as Dr Zeman said, a little garrulous. His answers to many questions were lengthy and sometimes went well beyond what was necessary to answer the question. He readily acknowledged that his memory of some matters of detail was sketchy. He was, after all, giving evidence six years after his accident, and, it follows, rather longer since events during the years leading up to the accident.
Nevertheless I found the plaintiff a credible witness. Unlike many plaintiffs in personal injury actions, he did not overplay his injuries or disabilities. On the contrary, he tended if anything to underemphasise their significance. He came across to me as honest and truthful, and I generally accept his evidence.
Other than a challenge to admissibility on the basis of non-compliance with the Rules, there was no real challenge to the statements of Dr Herman, Professor Harrison or Professor Yin. Nor was there any real challenge to the telephone evidence of his fellow student now working in Africa.
A major focus in the defendant’s case was on whether the plaintiff made a decision during 2007 to move from a career as a geologist to a career as a photographer and journalist. I accept that the plaintiff has made that decision, and that he will not return to work as a geologist, either in industry or in academia. I am satisfied that he has made the decision because of the impact of the injuries, and that if he had not been injured he would have pursued a career as a geologist. How that career would have worked out would have depended on what offers were available to the plaintiff. There is a degree of speculation about this. If he had been offered work in industry he may well have accepted it, and worked in the commercial sphere, either for the rest of his working life or for a period of years. If he had obtained a post-doctoral fellowship in the United States, which seems to me quite likely, he may have progressed to a professorial career. I can take judicial notice of the availability to academic geologists of consulting work in industry and for government concurrently with their academic commitments, as a source of additional income.
It seems to me so unlikely as not to require consideration, that the plaintiff might have decided to work as a photographer and journalist if he had not been injured.
There is no real challenge to the opinions expressed by the treating surgeon, Dr Sullivan. I accept the evidence which emerges from his reports. In particular I accept his evidence that the plaintiff is likely to continue to have problems with uneven ground and carrying heavy loads.
His opinion is corroborated by that of Dr Bodel, whose view is that the plaintiff would have difficulty undertaking fieldwork in remote or rugged terrain, and that he could not cope with geological fieldwork of the nature described by the plaintiff to him.
The orthopaedic surgeon qualified for the defendant, Dr Cummine, was a little more optimistic but conceded that the plaintiff would need to be more cautious than the normal person in walking on even ground or in rough terrain. He acknowledged that there might be some wisdom in the plaintiff avoiding the potential problems of working at altitude and carrying loads as a geologist.
I prefer the evidence of the orthopaedic specialists to that of the occupational and rehabilitation specialists about this issue, which I see as primarily an orthopaedic one.
Of those specialists, Dr Papatheodorakis agreed that the plaintiff might have difficulty undertaking fieldwork in rugged terrain. He thought that the plaintiff should eventually be able to get back to that kind of work, but as I said earlier, I am not satisfied that the doctor had a full appreciation of the nature of the plaintiff’s pre-accident fieldwork in the Himalayas.
I thought that both Dr Zeman and Dr Harvey-Sutton were unjustifiably optimistic about the plaintiff’s physical capacity, and I prefer the other medical evidence to the opinions they expressed as to the plaintiff’s capacity to carry heavy loads and engage in mountaineering.
It follows that I am satisfied on the medical evidence that the plaintiff has made a justified and sensible decision not to pursue geological fieldwork in mountainous terrain, and that the accident has prevented him from pursuing the career he wanted to pursue, and in which I have no doubt he would have been highly successful.
I am also satisfied that the injuries have severely restricted his ability to engage in physical activities from which he gained pleasure and satisfaction, such as long-distance running, mountain biking and snowboarding. He has worked hard, through exercise programs, at maintaining a capacity to engage in physical activity to the extent he can. This probably takes him to a level beyond most men of his age, in running, swimming and cycling. But he had an extraordinary capacity to engage in physical activity before his injuries, and that has been greatly reduced and in some areas lost to him. I accept that this amounts to a serious diminution in his enjoyment of life.
Damages
Counsel for the defendant submitted that an appropriate range for general damages was $80,000.00 to $100,000.00. I note, however, that that was put in the context of my accepting the defendant’s medical evidence, and adopting a number of reservations about the plaintiff’s evidence arising from cross-examination. Senior counsel for the plaintiff seeks an amount of $150,000.00 for general damages.
I am satisfied on the evidence that the plaintiff will be left with a degree of pain, at fluctuating levels, for the rest of his life, and that his enjoyment of life has been significantly affected. It seems to me that a reasonable figure for general damages on all of the evidence is $130,000.00.
Senior counsel for the plaintiff suggested that the general damages figure should be apportioned equally between the past and the future. Counsel for the defendant did not argue with that proposition. I apportion the general damages accordingly. The past proportion attracts interest. The past proportion is to be seen as notionally spread over the period from the accident to the date of judgment, but weighted more heavily towards the early part of the period. The interest rate to be adopted is 4% per annum. For interest on the past portion of general damages I allow $12,000.00.
As to treatment expenses, the defendant’s insurer has paid $27,409.91. That sum should not form part of the plaintiff’s damages. In addition, the plaintiff claims for expenses he has paid. He claims the cost of gym membership, but the evidence is that he had belonged to a gym before the accident. I have no doubt that he would have continued with his gym membership if he had not been injured, and hence I am not satisfied that he had suffered any loss in that regard.
There are other expenses claimed of about $1,400.00 to the date of trial. The plaintiff will have had some other expense since trial, but of a fairly modest amount. I allow $2,000.00 for past expenses paid by the plaintiff, plus interest at commercial rates of $500.00.
On the evidence the plaintiff will have future expenses caused by the accident, for painkillers, physiotherapy, chiropractic and massage. In the absence of precise evidence about the cost of these modalities I can do no more than award a generalised and rounded figure for future expenses. I allow $10,000.00.
There is a claim for services provided by way of assistance to the plaintiff when he was unable to do much for himself. He required this help during the early period after the accident, and again after his operation in 2008. The hourly rate conventionally allowed ranges between $20.00 and $25.00. The evidence is a little vague as to how much help was provided and for how long. I am satisfied that an allowance ought to be made for it. I allow $10,000.00, plus interest of $2,500.00.
I am satisfied that the injuries have caused an impairment of the plaintiff’s earning capacity. He is entitled to be compensated for that impairment, to the extent that it has been and is likely in the future to be reflected in actual loss of earnings.
There is no question that the injuries put the plaintiff out of the workforce for about six months. That is to say, if he had not been injured, he would have started to earn income six months earlier. I take account of the evidence of the earnings of Dr Herman and of the other PhD colleague who gave evidence by telephone. It seems to me reasonable to allow $50,000.00 for that loss, plus interest of $20,000.00.
For the period since then, it is not possible to make precise findings as to what the plaintiff would have done and how much he would have earned if he had not been injured. In any event, the correct approach is not to attempt a factual finding of what the plaintiff more probably than not would have done and what he would have earned, but rather to look at the possibilities and to arrive at a figure based on those possibilities.
Approaching the matter in that way, it seems to me that after the first six months, it is reasonable to adopt an annual figure of $50,000.00 nett as the measure of the difference between what the plaintiff would probably have earned if he had not been injured, and what he has earned. For loss of earning capacity for the period from the first six months after the accident until judgment I allow $350,000.00, plus interest at commercial rates which I assess at $75,000.00.
I propose to adopt that same differential figure of $50,000.00 nett per annum for the future. The plaintiff is now 34. The 3% multipliers for a man of 34 are 924 to age 60, 1024 to age 65 and 1249 to death. I propose to adopt a multiplier of 1000. It is conventional to reduce such a figure by 15% to take account of the vicissitudes of life. In the present case it seems to me that a much greater reduction is justified by reason of the imponderables of what the future might have held, and might now hold, for this plaintiff. One of the factors to be taken into account is that field work in the Himalayas is extremely rigorous and probably not the sort of work that an older man would engage in. I propose to apply a reducing factor of 40%. For loss of earning capacity for the future I allow $570,000.00.
Counsel for the plaintiff seeks additional damages for loss of superannuation benefits. For a member of the workforce who would otherwise have worked as an employee in Australia, that allowance is generally regarded as justified. I am far from satisfied that the present plaintiff, if it had not been for his injuries, would have worked as an employee in Australia and been eligible for employer superannuation contributions. To the extent that this might have been the case, any such loss should be regarded an encompassed within the allowance for loss of earning capacity.
The individual components of the award are as follows:
General damages $130,000.00
- interest on past proportion $12,000.00
Expenses – past $2,000.00
- interest $500.00
- future $10,000.00
Domestic assistance – past $10,000.00
- interest $2,500.00
Loss of earning capacity
- first six months $50,000.00
- interest $20,000.00
Past (after first six months) $350,000.00
- interest $75,000.00
Future $570,000.00
____________
1,232,000.00
That total seems to me upon consideration to represent a fair reflection of the impact of the defendant’s negligence upon the plaintiff. There will be judgment for the plaintiff for $1,232,000.00. That figure is in addition to the treatment and other expenses already paid by the defendant’s insurer.
I propose to order that the defendant pay the plaintiff’s costs but that the costs order be stayed for 21 days in case there are matters to be taken into account of which I am unaware. Either party may apply informally for a different costs order by giving notice by email to the Court and the other party within 21 days. If such notice is given the stay will be extended until further order.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 6 March 2014
Counsel for the plaintiff: Mr G A Stretton SC & Mr I D Bradfield
Solicitor for the plaintiff: Colquhoun Murphy
Counsel for the defendant: Mr W M Fitzsimmons
Solicitor for the defendant: Sparke Helmore
Date of hearing: 29, 30 & 31 October 2012
Date of judgment: 6 March 2014
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