Brown v Muir - [2003] WADC 200

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BROWN -v- MUIR [2003] WADC 200

CORAM: LA JACKSON DCJ

HEARD: 2-4 SEPTEMBER 2003

DELIVERED : 18 SEPTEMBER 2003

FILE NO/S: CIV 1768 of 2002

BETWEEN: JOHNNY MACK BROWN
Plaintiff
AND
ROSANNE MARGARET MUIR
Defendant

Catchwords:

Assessment of damages for personal injury arising out of a motor vehicle accident - 47 year old brick layer - Neck injury

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 s3C, s3D

Result:

Damages assessed at $214,237.70

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Simon Walters
Defendant: Talbot & Olivier

Case(s) referred to in judgment(s):

Jongen v CSR Ltd (1992) A Tort Rep 81-192

Case(s) also cited:

Nil

LA JACKSON DCJ: The plaintiff's claim is for damages for personal injury arising out of a motor vehicle accident.
The plaintiff was born on 30 June 1953 and was aged 47 at the date of the accident and 50 at trial.
On Sunday 17 December 2000 the plaintiff was driving a motor vehicle along Wellington Street, Perth. As he went through the intersection with Bennett Street on the green light his car collided with a vehicle driven by the defendant who had contravened a red traffic signal. The impact was severe causing the plaintiff's car to spin round and for the rear to collide with a traffic light pole. The defendant admitted liability.
The plaintiff said he was holding on to the steering wheel with his right hand at the time of impact. The force of the impact was substantial. He felt it was taken by his right hand causing immediate shoulder pain and pain in the chest and sternum. He said he felt as though his ribs had been broken and he was winded.
After police and, I presume, a tow truck had attended, the plaintiff was taken by a friend to Royal Perth Hospital. Exhibit 3 is a report of the hospital attendance. Save that it records he was discharged to home from the emergency department it is otherwise of little assistance. It appears to be inconsistent with some of the complaints made by the plaintiff to his general practitioner, Dr Simon Berns, but I consider that is a reflection on a busy emergency department rather than on the plaintiff's credibility.
The plaintiff was employed as a brick layer. He was unable to return to work the day after the accident but then returned and managed to work Tuesday and Wednesday but by lunch time on Thursday he was unable to continue. The next day he saw Dr Berns at his surgery in Huntingdale. Dr Berns recorded complaints ~~on Thursdayon Thursday~~ he of pain in the cervical and lumbosacral spine and the right thumb. Later the plaintiff developed pain down the right arm.
X‑rays showed considerable degeneration in the plaintiff's spine. An MRI scan revealed a disc protrusion at C5/6. Whilst it is possible such protrusion is degenerative, I am satisfied on the balance of probabilities it was accident caused. It accounts for pain down the right arm. The plaintiff who suffered what is described as diffuse ligamentous strain. This would explain his neck symptoms and headaches.
In his evidence the plaintiff said he was suffering from headaches from shortly after the accident. That is not recorded by Dr Berns until 26 February 2002 (Exhibit 13). I note Mr Peter Watson, a neurosurgeon, to whom the plaintiff was referred in June 2001 records the plaintiff's complaints of headaches but Dr Andrew Black, a rheumatologist, who the plaintiff saw in February 2001 and Dr Duncan Anderson, a pain specialist, who the plaintiff saw in March 2001 did not refer to them.
I accept that the plaintiff suffered from headaches from shortly after the accident and that on the balance of probabilities those headaches were caused by the accident but the failure to mention them seems to me to cast some doubt upon their severity at least at the early stages.
The plaintiff saw Drs Black and Anderson and Mr Watson to investigate possible treatments and also had some physiotherapy. Although various procedures were suggested as possibilities, none have occurred. The plaintiff has gained a considerable amount of weight since the accident. Physical rehabilitation and physical exercise were recommended to him but he has failed to undertake any such activities. He now, getting on towards three years after the accident, complains he is severely disabled and unable to carry out most household chores. He used to enjoy gardening, scuba diving and underwater photography. He claims to be unable to engage in these activities. Most doctors recommended rehabilitation. So did a rehabilitation specialist, Optima Health Group. The plaintiff has not undertaken any rehabilitation. His excuse was that he did not have a medical certificate permitting him to undertake such a course but he seems to have made no effort to obtain the certificate which would have enabled him to undertake rehabilitation. He seems to me to have adopted an essentially negative attitude and has really made little or not effort to help himself. As Mr Kerry Jones, a director of Optima, said, the plaintiff was adopting an "all or nothing approach". Mr Jones explained this to mean an injured person because he or she did not think they were well enough to do what was suggested would simply not try to do it. Sometimes if such a person had a good day they would try everything and overdo it and become disabled again but this is not what the plaintiff has done in this case. The plaintiff seems to me to have adopted the "nothing" approach. It may be that his attitude is one encouraged by the prospect of obtaining an award of damages. Certainly that possibility is consistent with the examination of him by Mr Nicholas Batalin and by Mr Jones both of whom observed that the plaintiff's performance on formal examination was much worse than upon casual observation.
All of the experts except Dr Andrew Harper said the plaintiff should engage in initially physical rehabilitation so as to regain fitness and to lose weight. Dr Harper's view was that the plaintiff's pain level is too great for him to attempt such activities at this time, although he thought at some time in the future he would be able to undertake such activities. It is the pain that is the inhibiting factor not any other significant physical limitation. Dr Anderson took a different point of view to that of Dr Harper. He said that a person will be distracted from pain by other activity. A person who is working will have the tasks to perform and the people around him or her to relate to and this will take the person's mind off the pain state which in the absence of such distractions can dominate.
I prefer the evidence of Dr Anderson to Dr Harper with respect to this aspect. The management of pain is more Dr Anderson's speciality than Dr Harper's. The plaintiff should in the past have engaged in activities which would distract him from concern about his own physical well-being. It is clear the plaintiff has been advised to do this but whether sufficiently firmly is perhaps doubtful.
Because the plaintiff has not undertaken any significant physical rehabilitation, it is difficult to say what effect it might have. His physical limitations are not great. Whilst it may be speculation to say precisely what would occur, I do not think a plaintiff can come to the Court and advance the proposition that I should assume there will be little or no improvement. In view of the relatively limited physical aspects, I consider I should act on the assumption that there will be a significant improvement in the plaintiff's well-being when he becomes physically fit. That should take some months but certainly within 6 to 12 months I think it reasonable to assume the plaintiff's position will have improved markedly. It is likely he will be able to do most of the normal activities in the garden, although occasional exceptionally heavy work would be beyond him. His ability to engage in scuba diving and underwater photography will probably increase. His general well‑being should be enhanced.
The defendant has not pleaded a failure to mitigate and does not argue I should make a finding adverse to the plaintiff because of any failure by him to engage in either physical or vocational rehabilitation up to trial. She does, however, argue that there is no reason why the plaintiff should not forthwith engage in rehabilitation which both in its physical and vocational aspects would be concluded within two years.
X‑rays of the plaintiff's spine indicate significant degeneration. There is obviously the likelihood that as the plaintiff got older his degenerative spine would become symptomatic either through natural causes or because of some other trauma.
The plaintiff's entitlement to damages for what would otherwise be general damages is limited by s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. Subsections (2) and (3) 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 be awarded only in a most extreme case."
"Non‑pecuniary loss" is defined as meaning:
"(a)pain and suffering;
(b)loss of amenities of life;
(c)loss of enjoyment of life;
(d)curtailment of expectation of life; and
(e)bodily or mental harm."
The plaintiff is entitled to an award of damages for the non‑pecuniary loss he has suffered as a result of the motor vehicle accident. When assessing that loss the Court should take into account the plaintiff's pre‑existing condition and what would have been likely to have happened to him or her in the future. When considering the non‑pecuniary loss the Court must also take into account what is likely to happen to the plaintiff assuming he or she engages in proper medical and other treatment.
Taking into account the likely effect of rehabilitation and the pre‑existing degenerative spine, I am of the opinion that 15 per cent of a most extreme case is appropriate. Calculated in accordance with s 3C the amount to be awarded for non‑pecuniary loss is $24,850.

Loss of earning capacity

The plaintiff claims loss of earning capacity both past and future.
At the date of the accident the plaintiff was employed by a brick laying firm called Laybrick. His gross weekly wage was $880.
There was some controversy as to how much down time would be common in the building industry. The plaintiff's claim is based on $880 per week for 52 weeks in the year less some for contingencies. The plaintiff agreed there was down time when he could not work due to inclement weather. The proprietor of Laybrick, David Hedger, explained there was lost time for a number of reasons. Bricks could not be laid when it was raining. When the temperature exceeded 37 degrees he would send his brick laying teams home rather than keep them working because it was too hot and productivity fell. There were delays when a job was not ready for the bricks to be laid. There were delays due to the failure of delivery of bricks. Hedger estimated he would only get 35 to 40 weeks from his brick laying teams per year. The plaintiff's income tax returns were tendered. The plaintiff said that for most of the years prior to the accident he had been a self‑employed brick laying subcontractor and he claimed to have earned on average about $1,000 per week. The tax returns would tend to indicate a slightly higher rate of working than that claimed by Hedger. The figure of $1,000 given by the plaintiff is clearly not a precise figure. Taking all these matters into account I consider the plaintiff would have been able to work for about 40 weeks per year; that is he would have lost about 20 per cent of working time.
The plaintiff's income tax returns for the four years up to the accident indicate an average net weekly wage of a little less than $430 per week. That is income earned after deduction for overheads and it seems to me to be a reasonable basis to use for calculation when the plaintiff was a subcontractor.
The plaintiff said he had worked for Laybrick for a couple of months before the accident. A letter prepared by Hedger would indicate it was perhaps a shorter period than that but nothing much turns on it. The plaintiff said he expected to continue working for Laybrick until age 65 as an employed brick layer. He agreed, however, that due to the very heavy nature of brick laying work brick layers over 55 were scarce. Hedger said brick layers tended to stop actually laying bricks at age 50 or thereabouts. Hedger also said that the plaintiff was not a regular employee of his. He said he had a number of regular employees and then would employ the non‑regulars from time to time when work required it. He said the plaintiff was employed by him for the purpose of a retirement village in Guildford Road. He said that contract finished in about March or April 2001 and that the plaintiff would not have been retained thereafter.
The plaintiff said that even if he was unable to continue as a member of a brick laying team he would be able to perform smaller more specialised work such as letter boxes or screen walls. Whilst he said the earnings doing that type of work were comparable to that of working in a team, there is little evidence to support it. No brick layers aged 50‑65 were called to support the claim.
The best evidence before me of the plaintiff's earnings in a capacity other than as an employee of Laybrick comes from his income tax returns and I prefer them to any subjective of assessment given by the plaintiff.
As to the future, it is agreed that the plaintiff does not have a capacity to work as a brick layer and even if rehabilitation is highly successful he will no longer have that capacity. Rehabilitation was strongly recommended but as I have already explained the plaintiff did not engage in that activity. In my opinion there is no reason why he should not now do so. If he was to do so there is a strong likelihood that his physical situation would be significantly benefited. He would be able to undertake vocational training which would suit him for sedentary work or light work of a clerical nature and work of that kind is available. There is strong evidence that it is unlikely the plaintiff would in fact be able to obtain such work because at his age and with a disability he would be at a significant disadvantage in the workforce. I accept that evidence. I accept that whilst there is a possibility that the plaintiff would be able to obtain such work the possibility is not high.
I assess the plaintiff's loss of earning capacity both up to trial and in the future in the following manner.
From the date of the accident until mid‑April 2001 I accept the plaintiff would have been employed by Laybrick at a net of $674 per week. That is some 18 weeks. From that there should be a deduction of 20 per cent to allow for down time.
$674 x 18 weeks      =       $12,132
Minus 20 per cent    =      $ 2,426
Balance      =      $ 9,706
From mid‑April 2001 until judgment in mid‑September 2003, a period of some 126 weeks the plaintiff would have earned at a rate of $430 per week. There are both positive and negative contingencies to consider for this period of in excess of two years. There was the possibility that the plaintiff would have continued working for Laybrick for some of that time or indeed for some other employer. There was also the possibility that because of the pre‑existing degenerative changes in his spine and because of the general exigencies of life he might have been unable to earn as much as that. In my opinion for that period those contingencies balance themselves out.
$430 x 126 weeks = $54,180
The plaintiff has been advanced $55,800 by the insurance commission and this sum needs to be deducted from his past loss of earning capacity.
I therefore assess damages for his past loss of earning capacity as follows:
Loss to mid‑April 2001  $ 9,706
Loss from mid‑April 2001 to judgment         $54,180
$63,886
Less advance  $55,800
Balance  $ 8,086
The plaintiff is entitled to interest at 3 per cent from the accident until judgment some 2.8 years.
$8,086 x 3% x 2.8 = $679
Total loss for past earning capacity $8,086 + $679 = $8,765.
I do not accept the plaintiff would have continued working full‑time as a brick layer whether as an employee or a subcontractor after the age of 55. Accordingly the first calculation should be up to 30 June 2008 being his 55^th birthday. The figure of $430 per week is also appropriate for that period.
Within two years after judgment the plaintiff should have completed physical rehabilitation and vocational rehabilitation. His chances of obtaining future employment are not great but nonetheless it is a contingency to be taken into consideration. There is also the contingency that with the plaintiff's pre‑existing degeneration of his spine and the general exigencies of hard physical work there was the possibility that the plaintiff might not have been able to continue work. I think 15 per cent is an appropriate allowance for those contingencies.
The defendant has suggested a multiplier of 125. The plaintiff did not quarrel with that figure.
$430 x 125   $53,750
Less 15% contingencies  $ 8,062
Balance  $45,688
After the plaintiff turns 55 I consider his position to be highly uncertain. He might have ceased altogether. He might have done casual small jobs at rates which are uncertain and the availability of which is uncertain. He might have given up brick laying and taken up some alternative occupation. His rehabilitation and vocational training might result in his being gainfully employed in some other occupation altogether. Because of these uncertainties, I do not think it possible to do any mathematical calculation of the post 30 June 2008 time. Doing the best I can I would allow the plaintiff a global sum of $100,000 to take into account the period of 10 years after his 55^th birthday.
The plaintiff is therefore entitled to an award of damages for loss of earning capacity in the future as follows:
Up to 30 June 2008  $ 45,688
After 30 June 2008  $100,000
Total  $145,688

Future medical treatment

The plaintiff claims a global sum of $40,000 for future medical treatment. The claim is particularised in a schedule most helpfully prepared as follows:
"(i)facet joint injections to the neck and right shoulder ($260.00 per injection); as per Dr K Fitch's medical reports dated 7 June 2002;
(ii)nerve root sheath injection as per Dr A Black's medical report dated 28 February 2003;
(iii)right sided occipital nerve block as per Professor F Mastaglia's report dated 6 August 2003;
(iv)surgical intervention to alleviate nerve root compression or spinal cord dysfunction at a cost of $15,000.00 as per Dr P Watson report dated 7 August 2003;
(v)exercise physiologist supervised physical rehabilitation program ($1,200.00) as per Dr Harper's report dated 28 October 2002;
(vi)fitness and weight reduction program as per Dr K Fitch's Medical Report dated 7 June 2002;
(vii)psychological counselling at a cost of $2,000.00 as per Dr Harper's report dated 28 October 2002;
(viii)electromyography and nerve conduction studies as per Professor F Mastaglia's report dated 6 August 2003;
(ix)on‑going follow‑up with a family doctor every two months as per Dr P Watson's Report dated 7 August 2003 and per Dr Harper's report dated 28 October 2002;
(x)further pain specialist treatment ($1,000.00) as per Dr Harper's report dated 28 October 2002;
(xi)the continued consumption of medications including Temazepam (2 at night), anti‑depressant (Endep – 1 at night), analgesic (Panadeine Forte – 6 per day) and anti‑inflammatory (Mobic, 15mg, 1 a day) medication as stated in Dr K Fitch's report dated 12 August 2003 for the remainder of his life.

With respect to these I make the following comments.
(i), (ii) and (iii) the plaintiff did not claim he was likely to undergo any of those procedures and accordingly I do not consider any allowance should be made for them.
(iv) is unlikely unless there is a further disc protrusion which could happen any time over the next 10 years. This is highly speculative and if it did happen well in to the future it would be difficult to show that it was caused by the accident. Nonetheless some allowance ought to be made for it.
(v), (vi), (vii) and (x) are all expenses I would have thought included in physical rehabilitation and should not be separately accounted for.
(ix) Dr Berns' evidence was that he thought he might need to see the plaintiff four or five times per year but he acknowledged he would even without an injury have seen the plaintiff at least a couple of times. An additional two or three visits per year is the most that could reasonably be allowed.
(xi) The current level of medication taken by the plaintiff is quite high although the defendant does not dispute the necessity for it at the moment. As far as the future is concerned, I would have thought a successful physical rehabilitation would be most likely to significantly reduce the need for medication.
In the light of these comments, and without any attempt to be precise, I would have thought a sum of $10,000 for future medical treatment would be more than adequate.

Future non‑medical treatment and gratuitous services

It is convenient to deal with these two heads of claim together.
The plaintiff claims substantial sums for domestic assistance in the house and in the garden. The plaintiff was a very keen gardener and used to do a great deal of work in his own garden. He and his wife are separated. For a time he lived with his three children but I am not sure of the current position. The plaintiff claims he used to do all of the housework up to the date of the accident and thereafter has been almost unable to do the work. He claims the work done by his children and a neighbour in a total of $6,645. Section 3D of the Motor Vehicle (Third Party Insurance) Act 1943 provides limitations on an order of gratuitous services. Subsections (i) and (ii) provide:
"(i)This section limits the damages that may be awarded for the value of gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance that have been or are to be provided to the person in whose favour the award is made by a member of the same household or family as the person.
(ii)No damages are to be awarded for the value of the services if the services would have been or would be provided to the person even if the person had not suffered the bodily injury."
I am of the opinion that services of a domestic nature include ordinary home gardening. The gratuitous services must be provided by a member of the same household or family as the plaintiff. The claim with respect to gratuitous services provided by any friends or neighbours cannot therefore be counted. Gratuitous services are services provided to the plaintiff.
The claim is based on the way in which the plaintiff's home worked. The plaintiff and his wife were separated and from time to time the plaintiff's children lived with him. They did so prior to the accident. His evidence was that effectively no assistance was given to him by any of the children prior to the accident. The children were all in their teens and although I think it unlikely they did as little as is claimed it is perhaps unnecessary to make any specific finding. After the accident the plaintiff claims that his three children performed considerable work around the house because he was unable to do so. A couple of comments should be made about that aspect. Firstly, I would have thought that children as they become older would in any event have done more work about the house and subsection (2) excludes such work from being included. Importantly, however, is the fact that clearly the work done by the children is not in the main work provided to the plaintiff. The work of a domestic nature done around the house is done for the benefit of all of the residents of the house. The cooking and cleaning and washing is for the benefit of all of them. It might be that gardening work is more beneficial to the plaintiff but a nice garden provides a better environment for the children as well as for their father. In my opinion only at most one quarter of the domestic services provided by the children can properly be said to be provided for him as distinct from himself and his children.
Section 3D provides no award for domestic services can be made unless the domestic services have a value of at least $5,000. In my opinion the gratuitous services provided for the plaintiff either in the past or in the future do not and will not reach that sum and accordingly the claim for gratuitous services is dismissed.
The plaintiff claims that he will need internal domestic assistance for four hours per week at a rate of $22 per hour for the next 29 years, a total payment of $64,257.60. The plaintiff also claims he will require two hours per week of assistance in the garden at a rate of $25 per hour a claim over the next 29 years of $36,510. I do not accept the validity of claims anywhere near this level. I do not accept that the plaintiff is unable given time to perform most of the necessary household chores and the bulk of gardening chores required. A lawnmowing service may from time to time be needed and the evidence is that a neighbour mows his lawns and is paid for them. I was not told how much the neighbour is paid for that service. No receipts or other documentary evidence have been provided. Further to that, the plaintiff after having completed physical rehabilitation is most likely to be considerably more fit than he is now and therefore considerably more able to cope with domestic and gardening chores. In addition to that the plaintiff because of his degenerative spine was always likely in the future to need some assistance anyway.
In my opinion an award of no more than $5,000 is justified under this heading.
In his schedule the plaintiff also claims $928 in paid services being for a house cleaner and a gardener. There was no evidence given by the plaintiff of any such services provided and there is no other documentary or other evidence to support it. This claim should therefore not be allowed.

Physical and vocational rehabilitation

Mr Jones assessed the costs of physical and vocational rehabilitation at $9,412. The defendant did not quarrel with the need for or the cost of such rehabilitation. It should therefore be allowed.

Superannuation

The plaintiff claims loss of superannuation benefits. I presume employer's contributions were 8 per cent up to 30 June 2002 and 9 per cent thereafter as set out in the plaintiff's schedule. In accordance with the decision of Jongen v CSR Ltd (1992) A Tort Rep 81-192 the calculation should be as follows.
Loss of earnings to mid‑April 2001  $ 9,706
April 2001 to 30.6.02 $430 x multiplier say 70        $30,100
Less 5% contingencies  $ 1,505
$28,595
The loss from the date of the accident to 30 June 2002 is therefore $9,706 plus $28,595, total $38,301 x 8% = $3,064.
1.7.02 to 3.6.08 $430 x multiplier 264   $113,520
Less 10% contingencies  $ 11,352
Balance   $102,168
9%   $   9,195
The total of superannuation payments would therefore be $3,064 plus $9,195 = $12,259, less 15% taxation $1,839, balance $10,420.
I would round this up to $10,500 to make an allowance for interest on the small amount to trial.

Special damages

The parties are agreed the sum of $22.70 is outstanding in special damages.
The plaintiff is therefore entitled to a judgment as follows:
Non‑pecuniary loss  $ 24,850.00
Past loss of earning capacity                $   8,765.00
Future loss of earning capacity            $145,688.00
Future medical treatment  $ 10,000.00
Domestic assistance  $   5,000.00
Rehabilitation allowance  $   9,412.00
Superannuation  $ 10,500.00
Special damages  $       22.70
$214,237.70