Bowles v Kamath
[2000] WADC 6
•21 JANUARY 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BOWLES -v- KAMATH [2000] WADC 6
CORAM: LA JACKSON DCJ
HEARD: 22 DECEMBER 1999
DELIVERED : 21 JANUARY 2000
FILE NO/S: CIV 598 of 1999
BETWEEN: PETER JEFFREY BOWLES
Plaintiff
AND
NEETA KAMATH
Defendant
Catchwords:
Assessment of damages for personal injury - Decided on own facts.
Legislation:
Motor Vehicle (Third Party Insurance) Act, s3C.
Result:
Judgment for the plaintiff for $34,325.20.
Representation:
Counsel:
Plaintiff: Mr K Bradford
Defendant: Mr P R Momber
Solicitors:
Plaintiff: Bradford & Co
Defendant: Peter Momber
Case(s) referred to in judgment(s):
Graham v Baker (1961) 106 CLR 340
Purkess v Crittenden (1965) 114 CLR 164, 168‑9
Case(s) also cited:
Nil
LA JACKSON DCJ: The plaintiff's claim is for damages for personal injuries arising out of a motor vehicle accident on 8 July 1996. Liability is not in issue and this is therefore an assessment of damages only.
As the accident occurred on 8 July 1996 the assessment of damages is subject to the amendments to the Motor Vehicle (Third Party Insurance) Act 1943, introduced by Act No 17 of 1994. Section 3C(2)(3) and (4) provide:
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded.
(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is Amount A, but the maximum amount may only be awarded in a most extreme case.
(4)If the amount of non‑pecuniary loss is assessed to be Amount B or less, no damages are to be awarded for non‑pecuniary loss."
As at trial Amount A was $219,000 and Amount B $10,500.
I should say at the outset I found the plaintiff to be an entirely credible witness.
The plaintiff was born on 16 December 1950 and was therefore aged 45 on the day of the accident and 49 at trial.
The accident occurred when the plaintiff was driving a motor vehicle which was struck on the right hand side by a vehicle driven by the defendant. The plaintiff's vehicle spun several times and rolled several times before hitting a lamp post. The car was a write‑off.
General Damages (Non‑Pecuniary Loss)
The plaintiff suffered injuries to his neck, his right shoulder and his right knee. The knee injury did not last long and is not significant in the assessment of the plaintiff's incapacity.
The neck injury is a soft tissue injury which the plaintiff described as "a bit of a sore neck". The neck symptoms have continued up to trial. The right shoulder continues to cause some discomfort. The pain in the neck radiates to the left shoulder from time to time.
The symptoms cause pain, particularly after work. They do not restrict the plaintiff's social activities. He is able to continue to play golf and ten pin bowling although he did recount an occasion when he was unable to complete a round of golf. His neck causes some problems with sleeping.
The plaintiff says he has physiotherapy about once every 6 to 8 weeks because the neck tightens up. He finds that the physiotherapy frees up his symptoms which gradually increase before the next physiotherapy session. I consider the physiotherapy to be reasonable. He takes analgesics from time to time.
The neck injury suffered by the plaintiff can be described as no more than a mild to moderate injury.
There are two issues which I need particularly to address. Firstly the effect of a pre‑existing degenerative spine and secondly whether on the evidence symptoms suffered by the plaintiff continue to be caused by the accident.
The plaintiff had a history of some previous neck problems but they had been some considerable time ago and the symptoms were described as a pain in the middle of his shoulder blades which would last for a couple of days. The plaintiff recounted particular incidents in 1969, 1982 and 1990. They did not restrict the plaintiff's work. X-rays showed normal degenerative changes for a man of his age.
The plaintiff has by his own evidence and evidence from medical practitioners called on his behalf made out a prima facie case that his incapacity has resulted from the defendant's negligence. That being the case the onus of proving that the ongoing incapacity was caused by some pre‑existing condition falls upon the defendant. Purkess v Crittenden (1965) 114 CLR 164, 168‑9. The defendant has failed to demonstrate that the pre‑existing condition caused or contributed to the current symptoms suffered by the plaintiff. That being the case such pre‑existing condition is only a contingency to be taken into account.
Two specialist orthopaedic surgeons gave evidence. Mr Barrie Slinger accepted that the plaintiff's symptoms were caused by the accident. On 4 December 1998 Mr Slinger noted the plaintiff continued to have some pain in his neck and some restriction of movement. He accepted that the symptoms were aggravated by working. He noted that the plaintiff had employed an extra person partly due to his disabilities and partly due to an increase in the work of his business as a painter. He noted there was no tenderness and little restriction in movement. On 20 September 1999 Mr Slinger noted little change.
Mr Stewart Brash was of the view that the plaintiff's disabilities were no longer as a result of the accident. He expressed the opinion that neck injuries of a soft tissue type, generally of a whiplash nature, fix themselves within about 6 weeks and that any symptoms suffered thereafter are not as a result of the accident but as a result of either psychological factors or the legal processes seeking damages. His opinion was based, not only on his experience but on information from an international conference. He referred to the situation in Germany, Lithuania and Singapore where, I gather, damages are not payable for personal injury and where experience shows a rapid rate of recovery from whiplash neck injuries.
These opinions were not set out in Mr Brash's medical reports which had been sent to the plaintiff's solicitors. Mr Slinger was not asked in cross‑examination about them. Order 36A of the Supreme Court Rules requires the substance of expert opinion to be given to the other side. Clearly in this case it was not done. In the circumstances I am not prepared to accept Mr Brash's opinion. It may, of course, be that it is right but such a determination will need to wait until the matter is properly argued upon proper notice being given of such expert opinion.
I therefore find that the plaintiff's ongoing symptoms are caused by the accident and that they are not as a result of any pre‑existing degenerative changes. Those degenerative changes should, as I have noted, be taken into account as a contingency. It is well known that people can go through life with degenerative changes which remain asymptomatic. Similarly degenerative changes can become symptomatic without any apparent stimulus. It is a contingency to be taken into account when assessing the degree of the severity of the plaintiff's symptoms as a proportion of a most extreme case.
In my opinion 7 per cent of a most extreme case is the appropriate proportion of the plaintiff's disabilities. The damages to be awarded for 7 percent of Amount A after deduction of Amount B is $4830.
Loss of earning capacity
I accept that the plaintiff was off work for about a week following the accident and is entitled to compensation for that period. The plaintiff claims 6 days x 8 hours per day x $18 per hour and I am prepared to allow that sum of $864.
The plaintiff claims he is partially incapacitated for work in that he is unable to do the work of painting above his head, such as for ceilings, because that brings on neck symptoms. He describes his general performance at work as being 40‑50 per cent down. I accept the plaintiff's evidence of such disability for work. The plaintiff quantifies this loss at $560 per week until age 65 being the cost of employing another painter to do this work. I do not accept that claim. The evidence of earnings shows the plaintiff's business has increased considerably and no actual loss as a result of the plaintiff's incapacity has been demonstrated except for the period initially after the accident. The plaintiff's loss of earning capacity must be shown to be productive of economic loss. Graham v Baker (1961) 106 CLR 340. The plaintiff having failed to prove the economic loss he has actually suffered cannot recover as though he had. However I accept that as a painter with an inability to paint above his head for lengthy periods of time he is at a disadvantage in the labour market. In the building industry between the date of accident and the date of trial there is no evidence of an actual loss. However the building industry is notoriously fickle and I accept that an award of damages ought to be made for the plaintiff's loss of the capacity to earn which may be productive of economic loss in the future should the volume of work available to him decrease.
In my opinion a reasonable assessment of the value of the plaintiff's loss of future earning capacity is $25,000.
Medical and ancillary services
The plaintiff's solicitors presented a schedule of past medical expenses. This was accepted by the defendant's counsel. No explanation was otherwise provided. I would allow for these expenses proved by the evidence but not otherwise. I note Marmion Physiotherapy charges exceed the amounts paid on behalf of the defendant. There being no evidence to justify the higher charge I would not allow it. I would allow physiotherapy charges at $34 from "Janet B Spiby". I note most of the doctor's charges have been paid by Medicare. Those recovered would, of course, need to be repaid. The schedule did not refer to any pharmaceutical expenses and the plaintiff did not give evidence of any cost incurred.
I would therefore allow the following:
08.07.96 Dr J W Valentine $20.85
19.08.96 Dr P M Gorman $20.85
15.08.97 Dr P D M Kiely $20.85
02.09.97 Dr P D M Kiely $20.85
04.12.98 Dr I Tidbury $71.00
27.12.98‑01.12.99
Janet B Spiby $34 x 14 $476.00
$631.20
Although the plaintiff claims interest on past losses, the amounts involved are so small as to make any allowance trivial and I therefore do not include any assessment of interest.
The plaintiff uses physiotherapy from time to time. I accept that it is reasonable for that to continue although, of course the progression of his degenerative changes need to be a factor. Similarly the analgesics taken from time to time should be taken into account with the appropriate discount. The plaintiff claims he needs physiotherapy every 6‑8 weeks, that is about seven times per year. Ms Spiby's charges are $34 each. That is $238 per year. Some analgesics should be included. There is no evidence that the plaintiff will need any medical treatment in the future. Allowance should be made for the contingency that the plaintiff's degenerative spine may have become symptomatic in any event. After normal retirement the exacerbation of symptoms caused by work will be alleviated. In my opinion a sum of $3000 is an appropriate allowance for future physiotherapy and pharmaceutical expenses.
I would accordingly assess the plaintiff's damages as follows:
Non‑pecuniary loss $4,830.00
Past loss of earning capacity $864.00
Future loss of earning capacity $25,000.00
Past medical and physiotherapy expenses $631.20
Future physiotherapy and pharmaceutical expenses $3,000.00
$34,325.20
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