Babic v Swindale
[2008] WADC 139
•18 SEPTEMBER 2008
BABIC -v- SWINDALE [2008] WADC 139
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 139 | |
| Case No: | CIV:1862/2006 | 11, 12 & 13 SEPTEMBER 2007 18, 19 & 20 MARCH 2008 | |
| Coram: | GROVES DCJ | 18/09/08 | |
| PERTH | |||
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Injuries sustained as a result of accident. Damages assessed. | ||
| PDF Version |
| Parties: | DINKO BABIC KENNETH SWINDALE |
Catchwords: | Torts Negligence Motor vehicle accident Lumbar and cervical spine injuries Adjustment disorder with depressed mood Physical deconditioning Covert Surveillance Disability enhancement Inability to return to work Assessment of damages 44 year old courier driver Turns on own facts |
Legislation: | Motor Vehicle (Third Party Insurance) Amendment Act 1994 |
Case References: | Den Hoedt & Anor v Barwick [2006] WASCA 196 Southgate v Waterford (1990) 21 NSWLR 427 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- 18, 19 & 20 MARCH 2008
- Plaintiff
AND
KENNETH SWINDALE
Defendant
Catchwords:
Torts - Negligence - Motor vehicle accident - Lumbar and cervical spine injuries - Adjustment disorder with depressed mood - Physical deconditioning - Covert Surveillance - Disability enhancement - Inability to return to work - Assessment of damages - 44 year old courier driver - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Amendment Act 1994
Result:
Injuries sustained as a result of accident.
Damages assessed.
(Page 2)
Representation:
Counsel:
Plaintiff : Mr T Lampropoulos SC
Defendant : Mr J R Brooksby
Solicitors:
Plaintiff : Simon Walters
Defendant : Williams Handcock
Case(s) referred to in judgment(s):
Den Hoedt & Anor v Barwick [2006] WASCA 196
Southgate v Waterford (1990) 21 NSWLR 427
(Page 3)
1 GROVES DCJ: The plaintiff sues the defendant for damages for personal injuries said to arise out of a motor vehicle collision on 7 June 2005.
2 The defendant admits that the collision was caused by his negligent driving and thus the matter becomes one for assessment of damages only.
3 The defendant denies however that the plaintiff suffered any injury or loss or damage as a consequence of the accident. The defendant further pleads that the plaintiff, in any event, suffered no economic loss as a consequence of the accident but sold his business on or about 15 August 2005 for reasons unrelated to the accident.
The plaintiff
4 The plaintiff was born on 22 March 1961. His country of birth was Bosnia where he was educated, worked as a locksmith for three years, spent some time in the army then returned to working as a locksmith until the Bosnian war in 1992 when he fled to Germany. In Germany he worked as a car detailer until 1998. In March 1998 he arrived in Australia and commenced to learn English. In 1999 he found employment as a sub-contract delivery driver for Salmat delivering pamphlets two days a week. In 2003 he took on a second job as a sub-contract driver for Courier Australia delivering magazines to supermarkets, hotels, video and fitness clubs. He worked Sunday, Tuesday, Wednesday and Thursday nights and Monday and Wednesday mornings. He continued working in both jobs until February 2005 when he ceased the Salmat deliveries. He worked alone and drove his own van which was subject to hire purchase. His working hours were irregular but apparently he averaged eight hours per day.
5 Prior to the accident the plaintiff says that he was in good health. In 1982 he had been national champion of Yugoslavia in kayaking. He played soccer on a regular basis and maintained a good level of fitness with regular gym work at a fitness club. He reported that he had no prior pain and no prior injury to his neck, back or leg and was free of any symptoms.
6 On 7 June 2005 the plaintiff was driving a van (not his own van but one on loan from a friend) when he was involved in a collision at the intersection of Guildford Road and Courier Road, Bassendean. He was travelling at about 50 kilometres per hour. It was early morning, still dark and raining. He was proceeding through a green light when a car
(Page 4)
- travelling in the opposite direction did a right hand turn across the front of him with the collision ensuing. The van he was driving was a write-off.
7 Following the accident he was able to alight from the van. He was shaken and in shock and felt pain in his neck and upper back and also in the lower back. He was able to arrange for a friend, Mr Benjamin Suhopoljac to come with a vehicle and complete the delivery of magazines later that day. The plaintiff drove whilst his friend loaded and delivered the magazines.
8 In the days and weeks following the plaintiff says that his pain was always with him. He tried to organise an appointment to see Dr Fatovich, who speaks his language and on whom members of his family had attended, but he was away. He did apply Voltaren gel to the painful areas and used a back support belt which he obtained from his soccer trainer. He continued his commitment to his deliveries with the assistance of Mr Suhopoljac on Tuesdays and Sundays and his wife on Wednesdays and Thursdays. They both confirmed their assistance in their evidence respectively. In July he took on Renato, the son of a friend to assist him and who eventually took over his van and delivery runs. The plaintiff drove the vehicle whilst those assisting did the loading of magazines and deliveries.
Did the plaintiff suffer any injury?
9 It was not until 28 June 2005, 21 days post accident, that he attended on Dr Anna Passlow at the Lockridge General Practice in the absence of Dr Fatovich. In a report dated 13 March 2007 of Dr Fatovich (Exhibit 5) he records that Dr Passlow was no longer with the practice and provided the following information from her record:
"He was seen on 28 June 2005. He described having driven into the back of car and he was experiencing low back pain worse on the right side. The pain was aggravated by prolonged sitting. It did not radiate into his lower limbs. Clinically he was tender from L3-5 and his lower limb reflexes were normal. He had aggravation of his pain when he flexed his spine to the left. He was diagnosed as having a musculo-skeletal strain and given non-steroidal medication and referral for physiotherapy."
- There was no reference to any neck complaint or being certified as unfit to work.
(Page 5)
10 In early July he saw Dr L Sam who referred him for x-rays. An x-ray of the cervical spine on 6 July 2005 (Exhibit 10) reported degenerative changes with bony lipping and loss of disc space height at C5/6 and to a lesser degree at C4/5. There were facet degenerative changes in the mid to lower cervical spine with some minor osteophytic encroaching of the foramina in the lower cervical region. An x-ray of the lumbar spine reported degenerative disc disease at L5/S1 with minor loss of disc space height at L4/5. There was minor to moderate facet joint degenerative change in the lower lumbar region bilaterally.
11 A CT scan of the lumbo-sacral spine on 15 July 2005 (Exhibit 10) reported moderately advanced osteo-arthric changes present at the L4/5 level with 1-2 millimetres forward shift of L4 on L5 and mild postero-lateral disc protrusion which abuts on the thecal sac and encroaches on the inferior aspect left outlet foramen. Moderate degenerative disc change at L5/S1 level was identified with small central intra-canal disc protrusion causing a shallow impression on the anterior thecal sac.
12 On 4 August 2005 the plaintiff passed his delivery run over to Renato who paid $2,000 for the van and took over the hire purchase payments on it. At that time the plaintiff's symptomatology comprised lower back pain with radiating pain down both legs and numbness and neck pain which was improving. Since that day the plaintiff has not sought and has not engaged in any paid employment.
13 Dr Sam referred the plaintiff to Dr M Adonis for ongoing management and to Mr Michael Lee, neurosurgeon for specialist review.
14 The plaintiff attended Dr Adonis on 22 August 2005. In his report of 20 September 2005 (Exhibit 8) to the plaintiff's solicitors Dr Adonis reports his findings on examination as:
"In respect to his lower back, some restriction in the movement of his lower back was present.
Straight leg raising was limited on the right side some 60 degrees with a reduction in flexion and extension of the lumbar spine."
- He also reported that the plaintiff:
"… demonstrated extreme concern at his inability to resume his employment as a courier, which was substantially affecting his financial situation and his psychological welfare. … he
- appeared extremely anxious, somewhat agitated and generally overtly concerned."
15 The plaintiff also complained of some cervical discomfort, particularly in relation to the C5/6 segment again affecting him on the right side. It was Dr Adonis' impression that the plaintiff's treatment would be mainly conservative and that no invasive or surgical intervention was likely to occur. He considered at that time that the plaintiff was incapacitated from attending to work duties as a courier and expressed the hope that:
"… with the introduction of a more active management plan, he will be able to resume some form of employment in the near future, but this has yet to (be) determined."
16 Mr Lee saw the plaintiff on 24 August 2005. He recorded a history given of low back pain following the accident and distress about ongoing symptoms and inability to work and the consequences that have ensued for his family life and financial commitments. Mr Lee's report (Exhibit 3) to Dr Sam records:
"Examination revealed no neurological deficit but certainly there was restriction of lumbar movement in all directions with loss of lumbar lordosis and flexion was limited with the outstretched fingers reaching to a level of his knees. I note the CT scan suggesting a degree of disc protrusion at L4/5 and L5/S1 but I suspect, clinically his story is more in keeping with rotational lumbo-sacral strain."
17 An MRI of the lumbar spine on 1 September 2005 (Exhibit 10) reported degenerative changes at the L4/5 and L5/S1 levels. There was a small left foraminal disc protrusion at L4/5 with a small posterior disc protrusion at L5/S1. Following the MRI Mr Lee reported:
"… basically, there is nothing to be seen that would suggest that his interests would best be served by surgery at this time. I have warned him that with this type of injury, it may take a while before his symptoms improve but that the best form of treatment is one of symptomatic relief and exercise."
18 In his later report of 13 March 2007 Mr Lee expressed the belief that potentially, the best chance for the plaintiff to improve his situation was to embark on a supervised exercise programme as outlined by Dr Michael Ponchard in his report of 18 May 2006 (referred to later in these reasons).
(Page 7)
19 Upon referral by the Insurance Commission of Western Australia ("ICWA") the plaintiff attended on Mr D B Gope, consultant orthopaedic surgeon on 25 August 2005. On physical examination Mr Gope's report of 29 August 2005 (Exhibit 13) notes:
"Head/neck: Examination of the head and neck revealed tenderness over the C5/6 segment, particularly to the right para-spinal region. He was able to flex his cervical spine to 45 degrees and extend to 30 degrees, laterally flexed 30 degrees to either side and rotate to 60 degrees to the right and 45 degrees to the left. He complained of discomfort during rotation and lateral flexion of the cervical spine.
Back/spine: Examination of the lumbar spine revealed tenderness at L4/5 and L5/S1 segment and over the facet joint region at this level. He bent forward so that he was able to reach the proximal third of the tibia with his fingertips and showed sign of discomfort when attaining the erect posture. He had extension of 20 degrees, lateral flexion of 30 degrees to the right and 20 degrees to the left, associated with discomfort and rotation of 30 degrees to either side.
Lower limbs: Examination did not reveal any abnormality. Straight leg raising was 60 degrees on the right and 80 degrees on the left with complaint of pain in the lumber region on extreme flexion. Straight leg raising was normal 90 degrees in the seated position."
- In response to specific questions Mr Gope reported:
Q4: "Mr Babic particularly stated that he did not experience any neck or back symptoms prior to this accident and hence, the current disability complained of would be attributable to the motor vehicle crash. (Please note answer to question 6)."
Q6: "There was pre-existing medical condition in the form of degenerative change, both in the cervical and lumbar
- spine as stated above. These factors would be contributing towards the patient's continuing symptoms."
- Q8: "Mr Babic would not be fit to return to his pre-crash profession of courier at this stage."
Q9: "In case non-operative treatment was decided upon, he may benefit from a L5 nerve root sleeve injection and subsequent follow up active fitness and exercise program under the supervision of exercise physiologist in a gymnasium."
Q10: "Mr Babic appeared to be a very worried gentleman and may benefit from counselling regarding his future management of both physical and financial aspects."
20 Mr Gope's report also records that the plaintiff commenced physiotherapy on 6 July 2005 for approximately 10 sessions until he ceased attending from 15 August 2005 since he did not find much benefit from the treatment.
21 In his subsequent report of 29 December 2005 Mr Gope noted that the plaintiff had stopped attending Mr Tony Pullella, physiotherapist, and instead had been attending Mr Steven Edminston in Shenton Park since late October 2005. The plaintiff was apparently receiving treatment every 7 to 10 days and had been advised on exercises. He noted also that the plaintiff was going for hydrotherapy and sauna at the Bayswater Wave Pool two to three times per week on his own.
22 In that report Mr Gope expressed the opinion "that Mr Babic has over valued his symptoms but nevertheless he still suffers from persistent discomfort mainly in his lower back." In response to specific questions from ICWA he reported:
Q3: "The diagnosis is chronic degenerative disc disease at L4/5 and L5/S1 with minimal disc protrusion."
Q5: "It appears that Mr Babic tends to over value his symptoms at presentation. Nevertheless I am convinced that he has some residual persisting pain symptoms particularly in the lumbar region."
Q7: "It is my opinion that Mr Babic should undergo an active exercise and fitness program along with hydrotherapy to
- improve his core muscle strength and exercise tolerance also enabling to lose so weight (he has gained 5 kg since my last assessment."
- Q8: "As far as future medical treatment is concerned I consider that Mr Babic will benefit from being referred to a pain specialist for a multi-disciplinary approach to his physical problem as well as mental anxiety problem."
23 Following Dr Sam the plaintiff attended on general practitioner ("GP") Dr Luke and then on 16 January 2006 on GP Dr Aminder Singh. To clinical examination the plaintiff had tenderness of the cervical and lumbar paraspinal muscles and had limitation of lumber movements. In evidence, and consistent with how other doctors made their assessments, he said that he made his diagnosis on the basis of history, what was found on clinical examination and what the radiological findings and investigational findings are. He also noted that the plaintiff was very anxious and had depressed mood. In his assessment the plaintiff was totally unfit for work.
24 The plaintiff continued to attend on his GP approximately fortnightly for review and prescriptions. In his report of 20 June 2006 Dr Singh recommended:
"… alternative treatment in the form of supervised exercise program and physiotherapy to help strengthen his back and neck muscles for improving his symptoms. I would also advise counselling sessions with a psychologist to help treat his depression and insomnia."
25 In cross-examination it was suggested the plaintiff could be shown some exercises to do and join a gym to which Dr Singh, tellingly, in my opinion, responded:
"True, but to ask a person who has got physical injuries, anxiety and depression to go to the gym by himself and do exercises is highly improbable. It will never happen."
26 Dr Singh has, and continues to prescribe medication in the form of Naprosyn, Voltaren gel and Perskindol gel and anti-inflammatories, Panadeine Forte and Mersyndol Forte for pain relief and Lexapro for depression and Stilnox for his insomnia.
(Page 10)
27 At the request of the plaintiff's solicitors Mr Andrew Harper, occupational physician reviewed the plaintiff on 14 August 2006. In his report of 15 August 2006 (Exhibit 7) he reports on physical examination that the plaintiff:
" … appeared depressed and at times was emotionally labile and tearful. He did not appear to be in physical distress. … on examination of the lumbar spine I found power, reflexes and sensation to be normal. He was able to squat slowly and with some difficulty. Hip flexion while standing was 80 degrees bilaterally. Straight leg raising was 60 degrees bilaterally in the sitting position being limited by tight hamstrings and low back pain. In the lying position straight leg raising was 45 degrees bilaterally with tight hamstrings and a negative stretch test. Range of back movement was reduced in all directions. In forward flexion his hands reached his knees. Extension was limited by low back pain and side flexion and rotation were also reduced to some degree. On palpation there was generalised tenderness across the neck extending into the trapezius muscles and along the medial border of both scapulae. There was spinous tenderness extending along the full length of the cervical and thoraco lumbar spine. Spinous tenderness was maximal in the low lumbar segments. There was also muscular tenderness extending into the legs which was identified laterally in both buttocks and in the thighs and calves. The axial pressure test was positive. Shoulder movements were normal. Neck movement was 75 per cent of normal."
28 In response to questions he opined as follows:
Q1: " … He has sustained strain injuries to the cervical and thoraco lumbar spines. His condition has been complicated by development of fibromyalgia type symptoms with generalised muscle tenderness and symptoms of anxiety, depression and general stress. The combined effect of pain and stress has resulted in impaired adaption to his disability."
Q3: "Current work capacity is significantly reduced. At present I feel he is incapacitated for gainful employment."
(Page 11)
- Q9: "From a medical point of view I feel it would be appropriate to postpone finalisation in order to implement psychological and physical rehabilitation and to observe his response to this treatment. At present his condition has not stabilised. If funding for treatment is not available then there is no medical reason to postpone finalisation."
Q10: "Residual disability of the cervical and thoraco lumbar spine is mild but superimposed disability from generalised musculo-skeletal pain is of moderate severity and psychological impairment is mild to moderate in severity.
Q11: "Initial injuries were mild to moderate."
Q12: "He requires physical and physiological rehabilitation. I feel an appropriate option would be to pursue the programme with Dr Ponchard and follow this with a gym programme."
29 The reference to Dr Ponchard was in the context of that doctor's letter dated 18 May 2006 to the plaintiff's solicitors (Exhibit 9). Dr Ponchard is a clinical exercise physiologist. In that letter he states that for some 10 years he had had a special interest in delivering 'whiplash' type pain management and rehabilitation programmes. He said:
"It appears to me that too many patients simply go to the gym in the hope of overcoming their pain. In many circumstances, a more specific home based exercise programme will provide better outcomes."
- He then went on to outline the programme including consultations, supervised training sessions, resource materials and follow up and the cost of such a programme.
30 ICWA's solicitors referred the plaintiff to Dr John Rosenthal, physician in rehabilitation medicine. He saw Dr Rosenthal on 5 September 2006 and a comprehensive and consistent history was provided and a clinical examination undertaken. In reply to questions Dr Rosenthal reported as follows:
"3. Your diagnosis of the patient's continuing symptoms.
- It would appear that Mr Babic has symptomatic degenerative change in the lumbar and cervical spine with no neurological features. There are however, inconsistencies on clinical examination, which I consider to be behavioural. They are suggestive of disability enhancement.
- 4. Are you satisfied that any current disability complained of by the patient is attributable to the motor vehicle crash?
I believe this accident may have aggravated degenerative change in his cervical and lumbar spine but I do not accept that he is disabled to the extent that he purports. That opinion is based on the inconsistencies present on examination. There has been considerable doctor shopping and I think there needs to be further investigation into his pre-accident history.
9. The prognosis to include if any further medical treatment is required and if so, what would be the required extent and duration of any such treatment?
His prognosis should be satisfactory. That is not to say that he will not have some ongoing neck and back pain associated with his degenerative change but there is scope for considerable improvement, particularly if he modifies his behaviour. The thrust of further management should be reassurance, exercise and the judicious use of simple analgesics."
- I pause here to note that there was no evidence of any further investigation into the plaintiff's pre-accident history. The plaintiff's evidence that he had no prior pain or injury to his neck or back was uncontradicted. As to further management Dr Rosenthal agreed that Dr Ponchard's programme would be suitable for that purpose.
31 ICWA's solicitors next referred the plaintiff to Consultant Neurosurgeon Mr Richard Vaughan. The plaintiff saw Mr Vaughan on 31 October 2006 and his report of that date (Exhibit 14) responds. Again a consistent history and current symptomatology was given. On examination of the spine:
(Page 13)
- " … I noted in the cervical region that he had painful motion in extension though the movement was full. In the lumbar area he had very limited motion, noting that the flexion motion was reduced not going beyond the level of the knee with the arms outstretched and that he could not achieve full extension because of apparent pain exacerbation. He did not complain of leg symptoms during either motion nor in rotation.
I found facetal tenderness across the lower lumbar area and also in the cervico dorsal areas. He complained of a specific area of tenderness over the T1 spinus process."
32 In response to specific questions Mr Vaughan reported:
"3. Your diagnosis of the patient's continuing symptoms.
A post straining incident when he was belted and his van crashed and, from his history, ongoing symptomatology from that time and no preceding history.
4. Are you satisfied that any current disability complained of (by) the patient is attributable to the motor vehicle crash.
Yes.
5. Whether in your opinion there is any discrepancy between the patient's symptoms and his presentation of complaints and symptoms.
I think there is adjustment disorder present, almost catastrophisation of the symptomatology. Mr Babic no doubt explains what he feels but there is an absence of correlation with the investigations with no hard facts in relationship to the severity of injury. I am able to put what the patient complains about and of the examination findings and my belief that there is an adjustment disorder present with catastrophisation of symptoms notwithstanding there may be underlying depression, anxiety and stress.
6. Whether any pre-existing medical conditions or other factors may be attributable to or contributing towards the patient's continuing symptoms and if so, please specify.
- I would think it more likely than not there were degenerative changes prior to the crash but apparently non-symptomatic. All the current symptoms now present were denied being in existence before the crash."
Findings as to injury
33 Not one of the medical practitioners or specialists whom the plaintiff saw or was referred to disputes the plaintiff's claim that he has suffered an injury consequent upon the happening of the accident. They each attribute some degree of disability complained of by the plaintiff to the motor vehicle crash. The radiological evidence suggests that it is more than likely that there were degenerative changes in the lumbar and cervical spine prior to the crash. The plaintiff maintains that he had no prior discomfort or injury to his neck or back. Consistently the medical opinion is that there was pre-existing degenerative changes that were apparently non symptomatic. The impact of the collision albeit that the plaintiff was wearing a seat belt, rendered the degenerative changes symptomatic.
34 Mr Vaughan reported that there were many uncertainties – in particular the timing of seeking medical attention and advice and what does appear a significant delay from the crash to seeking medical attention. The plaintiff's response to that was that he did not want to stop work, he was self employed and needed to keep working and maintain his job with Courier Australia. He had a family to support. His response was to self-medicate with Voltaren gel, utilise a back support belt and be assisted in the weeks following the accident with his deliveries by Mr Suhopoljac, his wife and Renato. Ultimately, 21 days post accident when his back pain had not resolved, he did seek medical attention from Dr Passlow who diagnosed musculo-skeletal strain in the low back and prescribed non-steroidal medication (Naprosyn) and referral for physiotherapy. In my opinion no significance attaches to the fact that the doctor did not certify him as unfit for work then because he was self employed and had the need to keep on with his work duties but with assistance. He did attend physiotherapy sessions but did not derive benefit from the treatment. He attended on Dr Sam who referred him for x-rays and a CT scan and subsequently for specialist referral. That was the situation at 4 August 2005 when the plaintiff passed over his delivery business to Renato. At that stage he was not able to continue even in a driving capacity.
(Page 15)
35 Notwithstanding that subsequently it was considered that there were "inconsistencies on clinical examination suggestive of a disability enhancement (Dr Rosenthal) and an " … adjustment disorder present, almost caterstropherisation of the symtomotology" (Mr Vaughan) I am satisfied to the requisite standard and do find that the plaintiff did sustain injury as a consequence of the accident. The plaintiff's delay in presentation to a doctor following the accident is not and cannot, in the light of specialist medical evidence be suggestive that no injury was sustained.
36 It is my finding that as a consequence of the accident the plaintiff sustained:
(i) a strain injury to the cervico-thoracic spine causing aggravation of degenerative change in the mid-cervical region which had pre-existed the accident;
(ii) strain injury to the lumbar spine which aggravated degenerative change in the lower to lumbar segments which pre-existed the accident;
(iii) a minor left foraminal disc protrusion at L4/L5 and L5/S1.
(iv) radiated pain in the left shoulder with initial restrictive movement; and
(v) low back pain radiating into both buttocks.
I also find that as a result of his accident related injuries that the plaintiff was at 4 August 2005 unfit to carry out his pre-accident occupation as a subcontract courier.
Defendant's allegation that the plaintiff "sold his business on or about 15 August 2005 for reasons unrelated to the accident".
37 Following the accident the plaintiff continued his deliveries with the assistance of Mr Suhopoljac and his wife and in July he took on Renato the son of a friend to assist. In July his pain "… was stronger and stronger and sometimes I told you I couldn't go out from the van …". His main problem was the lower back as well as the neck and shoulders and he was not able to do any lifting. As a consequence he passed his business over to Renato who took over hire purchase instalments on the van. He did not sell the business as he was only a subcontractor and this type of delivery business he said "… you can find easy in the newspaper for nothing."
(Page 16)
38 In cross-examination it was his evidence:
"So you decided to get out of the business. You decided you couldn't ever work again in that business? … I tried to work because I wanted to work and I love my job because I was working around my house. So, you know, it was very hard to find things like that to work around your area. But after all the pain that I have been through, I came to the conclusion that I can't do it any more. My medical problems actually brought that decision unfortunately.
…
During the two months you worked, you had, as I understand it, assistance from Benjamin. Is that right? … Yes, from Benjamin, from Renato, from my wife.
Well, Renato didn't come on the scene until later did he? … Yes, Renato is later, yes.
When you were going to give him the business? … Yes, actually Renato came on the scene before. I told him, 'come and have a look with me and, you know if you like it' – because he said to Renato, 'I don't think that I will be working in this business any longer. So if you like, I'll give it to you."
When was this? … July when I had lots of problems and lots of pain.
So did you decide you wouldn't get better, or did you just want to leave the business? … Of course I didn't want to lose my business, but I didn't decide it just because I felt like it. The reason I decided to do this was because of my medical problems."
39 That was the extent of the evidence as to the reason for the plaintiff giving up his business. Despite the defendant's plea that the plaintiff sold his business for reasons unrelated to the accident no evidence was led to support that assertion. The plaintiff's evidence was unambiguous. It was uncontradicted. The reason he gave up the business "… was because of my medical problems". I have no reason not to accept his evidence as to that.
(Page 17)
40 Accordingly I find that there is no substance in the defendant's pleading that the plaintiff sold the business for reasons unrelated to the accident.
Surveillance and subsequent medical opinion
41 The plaintiff was subject to covert surveillance on at least 29 separate days. There was surveillance on nine days between 13 September and 20 December 2005 and then on 22 December 2005, 12, 14, 19 and 21 March 2006, 8, 21 and 22 September 2006, 18 October 2006, 26 and 29 March 2007, 1, 2, 10, 12 and 16 April 2007, 28 July 2007 and 4, 5 and 11 August 2007. It is unknown to me whether these were the only dates on which the plaintiff was under surveillance or whether there is other surveillance footage of the plaintiff other than that which was tendered (Exhibit 15). In the circumstances I think I am able to presume that the surveillance footage shown to doctors and tendered is the most illustrative of the plaintiff's activities and thus the most favourable to the defendant's case.
42 Surveillance in September 2005 shows the plaintiff at an ATM and walking with a normal gait. He puts one foot up onto a ledge and makes as if to tie a shoe lace. He enters a motor vehicle with no apparent signs of difficulty.
43 Surveillance in December 2005 shows the plaintiff alighting from a car and walking away with normal gait. He then sits in the car making several telephone calls. He shows normal motion during conversation and alighted from the car without any signs of discomfort. On 20 December 2005 he is seen alighting from a car and walking with normal gait across a dual carriage way to an office and then returned to the car without any signs of difficulty.
44 Surveillance on 10 March 2006 shows the plaintiff removing something and then putting it back in a car, getting into a car and driving to a coffee shop where he sits with others for about 45 minutes. He is noted to turn around and move in his chair comfortably during this period and stand up from his chair without any apparent difficulty following which he drove to a swimming pool. He enters the pool and walks in the water for approximately four or five minutes. He then walks around the complex, opens a locker and reaches into the bottom of the shelf to get a bag out. He does not show any signs of apparent discomfort on bending down. On 21 March he is seen again sitting at the coffee shop talking with friends after which he returns to his car and drives away.
(Page 18)
45 Surveillance in October 2006 shows the plaintiff in a hardware store where he purchases several articles loaded in a trolley. His activities involve walking around and looking for materials in a cupboard including reaching for an overhead cupboard. He appeared to be agile in his movement which included neck movements. The articles purchased were placed in the back of a vehicle. A baby and toddler were secured in the vehicle with the plaintiff bending forwards to reach inside. The vehicle was moved a little distance. Other items were loaded into the back of the vehicle by others. During this period the plaintiff appeared to walk briskly back and forth from the shop showing no apparent signs of distress.
46 Surveillance in April 2007 show the plaintiff driving a station wagon, getting in and out of the car, walking, standing, moving both arms freely and holding a cup and saucer while drinking tea/coffee all without apparent discomfort. He is seen walking briskly into a shopping centre where he shops holding a basket mainly with his left hand and reaching for articles with both left and right hands above shoulder level. Later in August he is seen alighting from a car, walking briskly holding a bag initially with his left hand and then on his right shoulder and swinging both arms. He walks to a coffee shop where he sits around a table interacting with others for approximately 60 minutes before driving away.
47 In none of the surveillance footage is the plaintiff seen to do any heavy lifting or repetitive bending or any activity where he might be described as having extended himself. Nor do I know whether he may have medicated himself on any of those days or if they were "good days" or "bad days" as he described.
48 The general consensus of medical opinion of those to whom the surveillance was shown was that the plaintiff's presentation in their respective rooms upon review was sometimes at variance with the range of movement displayed by his activities in the community.
49 Mr Michael Lee, in his report of 29 August 2007, reported after having viewed surveillance over the period 9 December 2005 to 11 August 2007 as follows:
"I was not able to detect any significant difference between the physical activities seen on 9 December 2005 and 11 August 2007. There was a fair amount of walking involved, at times slowly ie after hydrotherapy on 14 March 2006, however, he bent down quite freely to pick clothes out of his locker on that
(Page 19)
- occasion. At other times he walked more rapidly with a normal gait consistent with his physique. Certainly there was more movement demonstrated than he described and was observed during my consultations …
The surveillance has not demonstrated any activities of lifting significant weights nor has it demonstrated sustained physical activities. ... There is no suggestion as to what he might do with the rest of the day and there is no information of course as to whether or not he has taken medications before his activities.
His history is one of continuing back pain without neurological deficit and this cannot be measured by observation. However, he does have a degree of mobility beyond that noted on examination, which suggests a degree of elaboration of symptoms.
… I believe he has the physical capabilities of some work capacity, the nature of which would be best assessed by an occupational physician.
I am less convinced that he is totally restricted from competing in the open workforce though I believe that it would be difficult.
I do not believe that the surveillance film is totally convincing that he is not experiencing chronic low back pain but I think that I would reassess his impairment of the whole person to 6% or 8% impairment of his lumbar spine on the basis of the difference of mobility seen on surveillance as compared to that seen on consultation."
50 Mr Andrew Harper reviewed the plaintiff on 29 August 2007 and also viewed surveillance films. In his report of 3 September 2007 he states:
" … these films showed him doing a number of casual activities, none of which were physically demanding. Much of the time he was seen sitting drinking coffee with friends, but otherwise he was seen shopping, pushing a shopping trolley with a child in it, walking, driving, getting in and out of his vehicle. Walking in a pool and exercising. His range of movement, rhythm of movement, gait and posture were all the same as I have observed on physical examination. The films did not identify him doing activities which vary significantly
(Page 20)
- from what he reports. However, the films did show him being an active communicator with his friends and him talking a lot, gesticulating, moving about as he talked and frequently using his mobile phone. In the films he did not appear or act depressed.
…
I do not feel his clinical presentation represents findings inconsistent with the diagnosis I have made and I have not identified any voluntary exaggeration, but rather his emotional presentation is consistent with his psychological condition (adjustment disorder) and the perception he has of the severity of his injury.
…
Work capacity is significantly reduced. I feel he has retained work capacity for light duties on a part time basis initially provided there is concurrent supportive rehabilitative treatment. He is incapacitated for manual work.
I anticipate rehabilitation being protracted and it is most likely that work capacity will remain compromised for beyond two years.
…
In my opinion the severity of Mr Babic's condition has been made worse by being subjected to video surveillance and the stress of the process of the claim. The surveillance filming appears to have contributed directly to cessation of exercise and retardation of physical reconditioning."
- The plaintiff reported to Mr Harper that he had been aware of being followed by "insurance investigators and filmed" and although he liked to walk he had discontinued walking because of the surveillance.
51 Mr Gope after viewing the surveillance film from September 2005 to October 2006 reported on 17 January 2007:
"After viewing the videos and DVD, I was of the opinion that Mr Babic is able to walk quite briskly and with agility without showing any signs of distress, either in his neck or back. He bent down on one occasion to reach the bottom of a locker.
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- I did not see him carrying any heavy loads or do any repetitive bending.
… It is my opinion that Mr Babic's pain symptoms were much less than he stated them to be."
- Mr Gope explained his earlier reference that "he tended to overvalue his symptoms on presentation" in saying that by the word "overvalue" he meant that the plaintiff might have some symptoms of less intensity, which he exaggerated during the examination.
After viewing video surveillance from April and August 2007 Mr Gope on 20 February 2008 reported:
"In summary … it is my opinion that Mr Babic did not show any sign of discomfort arising from his cervical or lumbar spine. He showed a normal range of movement of both shoulders and the neurological examination of the upper extremity was within normal limits."
"The activities seen on the video film clearly demonstrate that this man has unimpeded cervical movement. I am of the view that his behaviour in the examination room was contrived.
The film clearly demonstrates his ability to get in and out of, and drive a motor vehicle. He has no difficulty sitting for reasonably extended periods and I would suggest he is capable of working as a courier."
- Dr Rosenthal viewed the later surveillance video and on 6 July 2007 reported that it reinforced his opinion that the plaintiff's response to clinical examination is not genuine and exaggerated and confirmed his view that the plaintiff had a retained capacity to work as light courier.
53 Mr Vaughan viewed the surveillance tapes of September and December 2005 and March 2006 and in his supplementary report of 31 October 2006 reported:
"In the videos seen I did not identify any of the losses that were seen here in my rooms.
In summary the picture portrayed in the rooms was very different from that found on the video examination. In normal
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- life then he appears much more active, indeed normal, and very different to the invalid presentation in my rooms.
I remain of the view that it is best then to proceed with settlement as I don't believe that any further treatment will help Mr Babic at this time. When the legal processes are finalised there well may be symptomatic improvement. I believe in the longer term he will recover but will not do so whilst there remain medico-legal issues."
- After viewing the surveillance film onwards from 11 April 2007 Mr Vaughan in his report of 22 January 2008 reported:
"I reflected on Mr Babic's appearance and then on a long series of filming, and with his appearance in my rooms. On the film, which shows Mr Babic in the context of the community, he does not display any loss. In the examining room, he displays a loss but my summation is that his appearance seen in the outer community is that which is 'the norm' for him. In the examining room, there is a different display but I am influenced most by what is seen in the outside world not in the doctor's examining room …
In the filming Mr Babic is stated as seen talking animatedly with others and in those series, not displaying any impression, that is activity, which would indicate a removal by him from normal social intercourse – he is seen apparently enjoying the company of others and with social intercourse in varying postures, standing, walking and sitting, all indicating that in time of the surveillance, Mr Babic had not shown suffering."
54 At the instigation of his solicitors the plaintiff attended on consultant psychiatrist Dr Nick De Felice on 26 October 2006. In his report of that date (Exhibit 6) Dr De Felice noted that the plaintiff " … was somewhat anxious and down but his affect seemed to be reactive, and he was able to smile through the interview. There were no psychotic features." Dr De Felice took a detailed and again consistent history. The plaintiff reported to him that he was very distressed at having been under surveillance and that on one occasion he had challenged the person who he thought was following him and had alerted the police. As well by reason of having to cease work secondary problems with financial difficulties had arisen and this was very stressful to him. Additionally he
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- was not able to be active as he had been pre-accident and he found it difficult to be sent to "so many insurance doctors". With all of this, "Mr Babic said that he was sad and unhappy all the time." It was Dr De Felice's opinion that:
" … Mr Babic's dysphoric symptoms are best labelled as an adjustment disorder with depressed mood. I considered the diagnosis of a major depressive disorder, but in the end concluded that the reactivity of his mood, his preservation of social relationships, and his affect during the interview was more consistent with an adjustment disorder rather than a major depressive disorder. In my opinion Mr Babic's adjustment disorder with depressed mood has been precipitated by the pain and limitations subsequent to his MVA. I will leave it to my colleagues to comment on the association of his pain and limitations to his June 2005 MVA. To the extent that these are linked, so to is his adjustment disorder linked to the June 2005 MVA."
"It is a recognised psychiatric condition. Adjustment disorder refers to a situation where a person has emotional symptoms in response to some life stressor and has been provoked by that stressor but these symptoms need to be clinically significant in that they are very distressing to the person or they have interfered with some aspect of his social occupational or interpersonal functioning so they do need – there is a level of symptomatology that one would consider normal in response to life stressors and there's a level that interferes with the function that psychiatrists then consider as a psychiatric condition."
56 Dr De Felice encouraged finalisation of the legal proceedings:
" … to at least remove the stressor of the medico legal process. I am cognisant that there is some possibility of a worsening of psychiatric symptoms in the event of continued pain and limitations, but I think it is more likely that his psychiatric symptoms will continue at about the same level or perhaps improve. Hence, on the balance of things I think that proceeding to finalisation would be in the best interests of Mr Babic's mental health."
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- He assessed that Mr Babic would be left with a psychiatric disability in the order of say 7.5 per cent.
57 Dr De Felice maintained his opinion in subsequent reports. He expressed concern that the diagnosed adjustment disorder with depressed mood was being perpetuated by the stressors of his ongoing pain and limitations, and the various associated consequences, including his financial constraints. He opined that Mr Babic could benefit from psychological treatment aimed at the management of, inter alia, helping him with anxiety. In commenting on the video surveillance wherein he noted that the plaintiff appeared to enjoy the company of his friends he reported that there was nothing in that which substantially changed his opinion from the psychiatric point of view.
58 Dr Julia Reynolds, clinical psychologist, saw the plaintiff on referral from his general practitioner on 4 October 2006. She took a consistent history. The plaintiff reported experiencing difficulties with his nerves including severe onset and maintenance insomnia, compulsive eating, feeling generally agitated and stressed and family conflict as a result of this stress which in itself was a source of further stress. She did not consider that the plaintiff's work capacity had been compromised specifically by his psychological difficulties. Psychological treatment of his stress tolerance, insomnia and possibly pain management was recommended as well as to encourage further pursuit of an exercise programme. His deconditioning since the accident was said to have been likely to have contributed to his vulnerability to stress.
59 Upon review by Dr Reynolds in July and August 2007 and after administering various assessments she concluded that the plaintiff's reported concerns were consistent with the diagnosis of adjustment disorder. She reported that in her view active treatment and rehabilitation were desirable interventions to provide symptom relief and improve the plaintiff's sense of self efficacy and optimism by allowing him to take active steps to improve his situation. These, she said, "are key psychological tasks for him at the present time".
Where the problem does lie
60 I have gone to some length insofar as various aspects of the medical evidence are concerned. That has been necessary so as to have an appreciation for and an understanding of the matters over-arching the plaintiff's claim.
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61 It is instructive to have particular regard to the earlier medical reports and in particular those of Mr Gope to whom the plaintiff was referred by ICWA. He first saw the plaintiff approximately 10 weeks post accident. Three weeks prior to that, the plaintiff had given up work. Mr Gope was satisfied that the plaintiff's disability complained of was attributable to the accident. He did not then detect any significant discrepancy between objective findings and subjective presentation. He was of opinion that the plaintiff was not fit to return to his pre-accident occupation. Significantly he recommended a follow up active fitness and exercise programme under the supervision of an exercise physiologist in a gymnasium. Furthermore his report noted that the plaintiff "… appeared to be a very worried gentleman and may benefit from counselling regarding his future management of both physical and financial aspects."
62 Instead of pro-active steps being taken in line with Mr Gope's recommendations the plaintiff became the subject of covert surveillance over a period of six days in the following month and also on four occasions in December. Following reassessment by Mr Gope on 20 December 2005 the opinion was expressed that whilst the plaintiff tends to overvalue his symptoms at presentation, nevertheless "I am convinced that he has some residual persisting pain symptoms particularly in the lumbar region". Mr Gope noted weight gain, feelings of anxiety on the part of the plaintiff regarding his future as well as disturbed sleep. He reiterated his opinion that the plaintiff:
" … would benefit from conservative treatment with an active exercise programme, hydrotherapy and diet restriction. In other words he requires a multidisciplinary approach to his problem and this would best be served by referral to a pain specialist who would be able to organise all his treatment."
63 Surveillance video was apparently not shown to Mr Gope at that time. Again that recommendation was not acted upon. A proposal was made for the plaintiff to undertake the rehabilitation programme offered by Dr Michael Ponchard. Funding to enable him to do this was refused and the plaintiff's own financial circumstances did not permit him to fund the programme himself.
64 In my view, from the time when the plaintiff first saw Mr Gope, things thereafter were allowed to go from bad to worse. His anxiety was apparent. He was worried about financial matters and providing for his family, other creditors were pursuing him and clearly this contributed to a state of stress and anxiety. He was continuing to suffer back pain for
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- which he was taking prescribed medication which in turn troubled him with unwanted side effects causing him to not take medication for pain relief. There developed the onset and maintenance of insomnia and experience of multiple awakenings during the night, compulsive eating and experience of a great deal of stress about his financial situation and about his prognosis. He was aware that he was under surveillance and being followed with the consequence that as a result of ceasing walking he became physically deconditioned and substantially overweight. For a person who had been fit and active in his life pre-accident this too was distressing. All of this was also impacting on his family life and there were domestic difficulties.
65 He was denied the opportunity to participate in Dr Ponchard's rehabilitation programme. He was not offered counselling regarding his future management of both physical and financial aspects.
66 Against that background it is little wonder that both Dr De Felice and Dr Reynolds concurred in a diagnosis of adjustment disorder with depressed mood overlaying his physical impairment. Mr Harper also mentioned the possible existence of a fibromyalgia type syndrome. As noted by Dr Reynolds fibromyalgia is often associated with persistent insomnia.
67 Mr Michael Lee, after viewing the surveillance footage, suggested "an elaboration of symptoms". Mr Rosenthal described inconsistencies on clinical examination suggestive of "disability enhancement". Mr Gope very early on identified that the plaintiff tended to "overvalue" on presentation. By overvalue Mr Gope meant that the plaintiff might have some symptoms of less intensity which he exaggerated during examination. None are saying that there were no symptoms at all. Mr Vaughan also identified an adjustment disorder and described an almost "catasthrophisation" (not a word known to the Oxford English or Macquarie dictionaries) of the symptomology. Dr Rosenthal and Mr Vaughan did not see the plaintiff until 15 -18 months post accident by which time the concatenation of all the catastrophic events impacting on his life were practically overwhelming him. Since then there was undoubtedly further stress and anxiety for the plaintiff with progress towards the trial.
68 Whilst I accept that the plaintiff may have elaborated, exaggerated or overvalued his symptoms and he may have been capable of a much greater level of activity than that claimed by him that cannot be understood to be saying that he does not have any ongoing symptoms at
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- all. Nor is his level of physical activity indicative of his mental state and his perception of his condition. I do however view his evidence more critically in those circumstances.
69 In my view, on the balance of probabilities, the plaintiff's symptoms, accepting that they may be of less intensity than indicated during examination were substantially exacerbated by the overlay of the factors contributing to the adjustment disorder with depressed mood.
70 The consensus of medical opinion over the time of this claim has been that the best treatment would be for the plaintiff to be assessed by an occupational physician and that he embark on a supervised exercise programme as outlined by Dr Ponchard and also be provided with some counselling. In my opinion, had that course of action been undertaken one could have been optimistic in concluding that the plaintiff would have been assisted on the path to "reconditioning" both physically and psychologically with the result that the catastrophic events which have impacted his life as a consequence of the accident might have been earlier resolved. Regrettably this opportunity was let pass by and the plaintiff has not been assisted in his rehabilitation.
General damages
71 The plaintiff is entitled to general damages for the accident itself and for the consequent pain and suffering, inconvenience and other matters generally referred to as the loss of amenities.
72 The award of damages for loss of enjoyment of life and amenities requires a consideration of s 3C of the Motor Vehicle (Third Party Insurance) Amendment Act 1994 ("the Act"). This section imposes limitations upon an award of damages for non-pecuniary loss and it applies to the present case. Section 3C(3) provides that the maximum amount of damages that may be awarded for non-pecuniary loss is, at the present time, $309,000 and that that amount may be awarded "only in a most extreme" case.
73 The proper approach and methodology required to be taken by the Court when applying s 3C of the Act is set out in Den Hoedt & Anor v Barwick [2006] WASCA 196. In that case their Honours adopted the approach described by Gleeson CJ, Kirby P and Meagher JA in Southgate v Waterford (1990) 21 NSWLR 427 at 440 – 441 where the Court said:
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- "But clearly, because the task in hand is that of awarding damages for 'non-economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'.
If the resulting amount on the scale so conceived is $15,000 or less, no damages are to be awarded by reason of S 79(4). … The only criterion for the apportionment prescribed is the comparison of the severity of the non-economic loss, as disclosed by the evidence, suffered by the injured person in the case before the judge and that suffered in 'a most extreme case'. The statutory maximum may only be awarded in the latter case. The judge must then assign the case as found somewhere along the resulting scale.
… It is likely that, over time, experience will develop in assigning cases on the scale, just as earlier it did in the apportionment required for contributory negligence. But each case will necessarily depend upon its own facts. At least in the first instance, the determination of the 'proportion' is committed by law to the trial judge. He or she has the outside parameters which are fixed by the legislation. The task of determining the 'proportion' which follows may not be scientific or normative; but it is not wholly at large. A wide measure of discretion has always existed in fixing damages for non-economic loss. All that this legislation does is to require that the damages under this head be fixed in harmony with the fact that Parliament has determined that a maximum will be laid down, varied from time to time and reserved for 'a most extreme case'."
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74 It is necessary that I make findings of fact consistent with my assessment of the evidence adduced. Accordingly I find that the plaintiff did suffer physical injury as a consequence of the motor vehicle accident in which he was involved on 7 June 2005. He sustained strain injuries to the cervico-thoracic and lumbar spine and left foraminal disc protrusion at L4/L5 and L5/S1. As a result of the accident injuries the plaintiff has sustained a partial disability of the cervical and lumbar spine together with a psychological impairment and onset fibromyalgia which disabilities have produced:
(i) pain, stiffness and tenderness and lower back with pain radiating in to the shoulders, both buttocks and both legs;
(ii) limitation of movements of the neck, lower back, both legs and shoulders; and
(iii) headaches and discomfort together with sleep disturbance.
(iv) weight gain;
(v) psychological symptoms including depressed mood, anxiety and depression.
75 I accept that as a consequence of the accident related injuries the plaintiff's quality of life, in so far as his ability to engage in pre-accident activities has been diminished and that his social, family and personal life has been disrupted and that he has been greatly inconvenienced thereby.
76 As to the extent of any physical residual disabilities as a result of the accident injuries there is a reasonable consensus between the medical experts. Using the guide of "Evaluation of Permanent Impairment" 5th Ed by the American Medical Association Mr Lee initially believed that the plaintiff had an 8 per cent impairment of the whole person or 10 per cent impairment of his lumbar spine from a physical perspective. After viewing the video surveillance he reassessed his impairment of the whole person to 6 per cent or 8 per cent of the lumbar spine. Using the same guide Dr Adonis assessed an 8 per cent impairment of the whole person or 10 per cent of the lumbar spine from a physical perspective. Dr Adonis did not believe that any residual disability could be attributed to the cervical region.
77 Without reference to any particular guide Mr Gope assessed a permanent disability of 5 per cent of the thoraco lumbar spine and did not consider that any residual disability could be attributed to the cervical region. Dr Rosenthal, without reference to any guide, before viewing any surveillance video assessed an 8 per cent cervical impairment and a
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- 10 per cent lumbar impairment which could be expressed as a permanent loss of function. Mr Vaughan did not make any assessment in percentage terms.
78 Dr De Felice in his reviews was of the opinion that the plaintiff's psychiatric impairment rating was in the order of ten, using the Commonwealth Social Security rating of impairment. In his earlier report he expressed the view that if the plaintiff's pain were to fully resolve then his psychiatric symptoms would also resolve completely. However, if his pain and its associated limitations were to continue that would provide a factor perpetuating his adjustment disorder symptoms. In that event Dr De Felice then taking into account disability rather than impairment was of opinion that the plaintiff would be left with a psychiatric disability in the order of five to 10 per cent, say 7.5 per cent. Dr Reynold's characterised the plaintiff's psychological injuries at the time when she saw him as being moderate to severe.
79 The legislation requires me to assess general damages by relating the plaintiff's case to a "most extreme case". To do this I have considered the plaintiff's physical injuries, the discomfort which he has endured and his prognosis. I cannot base my consideration of his physical injuries on the level of his complaints about them or his perception of them.
80 It has to be appreciated that the percentage disability of say the lumbar spine cannot be understood to be or necessarily equate to the same percent of "a most extreme case". If a most extreme case was that of a young person who had been rendered a quadriplegic and was totally incapable of either doing anything for oneself or knowing what was going on around them then the plaintiff's complaints in this case are by comparison relatively less significant. In my view it is reasonable to assess the plaintiff's case as 15 per cent of a most extreme case or $46,350 (15 per cent of $309,000). Section 3C(5) provides that if the amount of non-pecuniary loss is assessed to be more than Amount B but not more than Amount C, the amount of damages that is to be awarded is the excess of the amount so assessed over Amount B. The amount of Amount B is prescribed to be $15,500 and Amount C, $47,000. Therefore the Act fixes the amount of the plaintiff's award of damages for non-pecuniary loss at $30,850.
Special damages
81 Special damages (over and above amounts already paid by ICWA) have been agreed in the amount identified in the Schedule of Special Damages, namely $194.80.
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82 Special damages will be allowed in the sum of $194.80.
Future medical/treatment expenses
83 In line with the earliest recommendations made eg. Mr Gope, 29 August 2005 the plaintiff is in need of an active fitness and exercise programme under the supervision of an exercise physiologist. Given his physical decondition this will now require an extended program to address his physical state. Clearly there is also need for psychological treatment. Dr Reynolds has recommended that provision be made for 24 sessions at what was the current fee of $192.00 per hour. She proposed that treatment should occur in parallel with the plaintiff's participation in his rehabilitative exercise programme. She also recommended that provision be made for a neuropsychological assessment and anticipated the cost would be in the region of $2,000. Dr De Felice indicated 10 to 12 appointments with a clinical psychologist at the then cost of $180 per appointment would be appropriate. Coupled with that he proposed ongoing use of anti-depressant medication for perhaps a further 18 months. Whilst the view was expressed by some that the plaintiff might now be capable of undertaking light courier duties Mr Lee believed that assessment of his physical capabilities of some work capacity should be assessed by an occupational physician. I accept the medical evidence of his GP Dr Singh that the plaintiff will require future treatment in the form of medication, Naprosyn, Voltaren gel and Perskindol gel and anti-inflammatories. The plaintiff will also require Panadeine Forte and Mersyndol Forte for pain relief and Lexapro for depression and Stilnox for his insomnia. Dr Singh expects that he will require this treatment for one –two years. This will in turn require reasonably frequent attendances upon medical practitioners.
84 The plaintiff claims a global amount of $15,000 for ongoing treatment and medications. I am satisfied that this amount is modest and not unreasonable. Thus I will allow $15,000 for future medical expenses.
Past loss of earnings
85 In the 2003 – 2004 financial year the plaintiff had a taxable income of $53,721.
86 In the 2004 -2005 financial year the plaintiff had a taxable income of $53,680. In February 2005 he ceased deliveries for Salmat and was able to take on extra deliveries for Courier Australia and was thus able to maintain his level of income. His evidence as to that was not challenged by any evidence to the contrary.
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87 The plaintiff ceased work on 4 August 2005 and has not engaged in any paid employment since then. I am satisfied, on the balance of probabilities, that he has not been fit to engage in his pre-accident employment and will be precluded from doing so until such time as his needs for both physical and psychological treatment have been addressed and overcome.
88 Based on a taxable income of $53,680 gross (after expenses) less tax and the Medicare levy results in a net $40,598.80 or $781 net weekly earnings.
89 The plaintiff has not worked since 4 August 2005, a period up to the date of judgment of 164 weeks. The plaintiff's past loss of earnings is thus $781 x 164 = $128,084.
90 I am informed that ICWA has advanced the plaintiff $23,500 against his past loss of earnings. After deducting that amount the plaintiff's past loss is $104,584.
91 Interest on the past loss of earnings is allowed, calculated as $104,584.00 x 3% x 3.2 years = $10,040.00.
Future loss of earning capacity
92 It will take some time for the "multidisciplinary" approach to the plaintiff's rehabilitation to be effective and enable him to secure employment at or near his pre-accident rate of earnings. Mr Harper suggests that it may take in excess of two years. As against that it may well be that as part of his rehabilitation there will be a graduated return to work albeit undertaking lighter duties for fewer hours per day. It would not be unreasonable to expect that there will be earning capacity complementary to his rehabilitation programme and that contingency must be reflected.
93 Accordingly I am of opinion that 18 months would be a reasonable allowance for future loss of earning capacity at his pre-accident earning rate which has inbuilt an allowance for contingencies. On this basis the plaintiff's future loss is $781 x 78 = $60,918.
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Summary
94 In summary therefore damages will be allowed as follows:
General damages $ 30,850.00
Future medical and other expenses $ 15,000.00
Past loss of earnings $104,584.00
Interest on past loss of earnings $ 10,040.00
Future loss of earning capacity $ 60,918.00
Special damages $ 194.80
Total $221,586.80
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