Cahill v Saunders No. DCCIV-99-1095

CAHILL v SAUNDERS

[2001] SADC 14

Chief Judge Worthington
Civil

The plaintiff, John Vincent Cahill, brings this action for damages for personal injuries caused by a motor accident on 7 August 1996. Liability in negligence is admitted and the plaintiff claims damages for both physical and psychological injuries.
Just before 9.00am on Wednesday 7 August 1996, the plaintiff was driving his car north along Frederick Road, West Lakes. Because of traffic he had to stop. He left some distance between his car and the one in front. He looked in his rear vision mirror and saw the defendant’s car coming up behind him very quickly. He realised that this car would not stop before it hit his car. He thought: “Here we go again”. That was because he had been hit from behind previously in a rear end collision in March 1990. I shall return to that in due course. He braced himself and kept his foot on the brake. There was a heavy impact. His car was pushed forward and to the right, across a plantation about 3 metres wide and into the path of an oncoming large utility travelling in the opposite direction. It appears that both the plaintiff and the driver of the utility swerved to the left, thus avoiding a full head on collision; the impact was more of a glancing blow involving the front right side of each. Both vehicles were damaged significantly.
The plaintiff said that when he found himself pushed onto the wrong side of the road with the utility bearing down on him, he believed there was a good chance he would be killed. This is understandable. He said that this fear was very acute because of an awareness that only a short time before, a close friend of his had been involved in an accident in which her vehicle crossed to the wrong side of the road and caused the death of another person.
Immediately after the accident he was quite shaken and was not fully aware of his surroundings. At that time he had, as he described it, a bit of back pain and a bit of neck pain but he did not take too much notice of it. He was taken by ambulance to the Queen Elizabeth Hospital for observation and x-rays. His partner, Alison McLeod, came to the hospital. She helped by making some phone calls to tell those who needed to know, that the plaintiff had been in an accident, especially in so far as his appointments for the day were concerned. He remained at the QEH for about 4 hours. She then took him home and he went to bed. It seems clear from the combined effect of the plaintiff’s and Ms McLeod’s evidence that he stayed at home, mainly in bed, on that day and the following two days, Thursday and Friday.
I pause to deal briefly with the consequences of the accident in March 1990. He had been driving towards the city and was stationary in Goodwood Road facing north about 40 metres from the intersection of Anzac Highway, West Terrace and South Terrace. His car was hit from behind and he suffered soft tissue injuries, principally in the neck and low back. In addition, he had a psychological reaction that developed into a partial form of post traumatic stress disorder with significant depression. He also suffered anxiety, especially when travelling in a car, whether as a driver or a passenger. Treatment involved consultations with a psychiatrist, Dr J. E. Burvill, and anti-depressant medication. That condition was not helped by the break-up of his marriage during 1992, but he gradually improved. He settled a damages claim for those injuries in late 1992.
It seems clear that his psychological problems had mainly resolved by about late 1994, some two years before the subject accident at West Lakes. However, he was more conscious of traffic than he had been previously; some hyper-vigilance, but it was not of any consequence. The symptoms from his soft tissue injuries had also resolved by about the same time except for an occasional continuing problem with his lower back. As he described it, every so often, for no apparent reason, his back would “go out”. This involved a painful spasm in his back and it would be necessary for him to rest, probably for a day or two, to resolve the problem. Doing the best he could, he estimated that in the two years prior to the subject accident, this happened once or twice a year. In any event, by the time of the second accident, this was the only physical legacy from the first accident.
The plaintiff was sufficiently distressed on the day after the subject accident, 8 August 1996, to ask a general practitioner, Dr P. L. Werchon, to visit him at home. He had not slept overnight. He had a sore neck and pain in the L5 region of his lower back. Dr Werchon noted that he was agitated and very tense. On examination, the plaintiff had a full range of neck movement but there was soreness, without spasm, associated with those movements. He also diagnosed low back strain. Xrays that had been taken at the QEH showed no bony abnormality.
Dr Werchon saw him again a few days later, on 12 August, to treat him for shingles which had appeared on his chest. On the medical evidence, the probabilities are that these were a result of severe stress associated with the accident. Fortunately, they were discovered at an early stage and they responded quickly to treatment with Zovirax tablets. The plaintiff described his symptoms from shingles as being only some itchiness. However, in addition to shingles, he was still disturbed in his sleep and having flashbacks to the accident. During September, he continued to have difficulty sitting because of a feeling of lower back strain and he still had quite severe neck pain.
On 14 October 1996, the plaintiff consulted Dr Burvill, who had treated him after the first accident. Dr Burvill diagnosed post traumatic stress disorder arising from a traumatic event in which a patient perceives the possibility of his own death or that of another person. I accept that the plaintiff did suffer that fear for himself during the accident and the psychiatric evidence demonstrates that a trauma of that kind is a sufficient trigger for post traumatic stress disorder. Dr Burvill also diagnosed significant depression. Symptoms included sleep disturbance, nightmares about weird traumatic events, being woken thinking about the accident and, in particular, dwelling on how he might have been killed. Dr Burvill described the plaintiff as being pervasively pessimistic and negative. He prescribed an anti-depressant, Venlafaxine, and commenced regular consultations.
The plaintiff was born on 27 April 1940 and he has a high public profile. From 1958 to 1973 he played league football for Port Adelaide (the Magpies) and was its coach from 1974 until 1982. In 1983 and 1984 he was coach of Collingwood Football Club in the VFL. He then returned to the SANFL, coaching West Adelaide from 1985 to 1987. He returned as the Magpies coach in 1988 and continued in that position until June 1996 when he was appointed on a two year contract as Senior Coach for Port Power in the AFL. Port Power was due to play its first AFL season in 1997 but the plaintiff commenced full time duties in June 1996 to prepare the club for entry into the competition. He was coach of Port Power until the end of the 1998 season. Since then he has pursued various interests, including football commentaries on Adelaide radio station Triple M.
The plaintiff had other business interests. In 1966, he opened a car yard, John Cahill Toyota, at Queenstown, in partnership with Mr David Boyd. He continued in that business until the end of 1982, when he went to Collingwood. At about the time he became coach of West Adelaide in 1985, he bought a chicken shop in Military Road, Grange. Eventually he took in a partner, his then brother in law, John Rooney, and he stayed in that business for about 7 years. In about 1988, he also began working at Unley Mitsubishi. He stayed there until about 1993 when he started another car business, John Cahill Motors. That was in various premises but eventually it settled in freehold premises on Tapleys Hill Road, Hendon. As at the date of the accident, he was still involved in that business but it has since closed.
Because of his position as coach of Port Power, I accept that after the accident, it was necessary for him to disguise his true feelings from those around him, except for a few very close and trusted people. He said that his position required him to motivate players in a sport that does not accept weakness and that had his psychological condition became known, he would have lost credibility. Thus, at the time Dr Burvill diagnosed post traumatic stress disorder and significant depression, despite not feeling motivated, the plaintiff had to force himself to perform and to appear outwardly as though nothing was wrong.
In the weeks following the accident, the physical symptoms slowly improved. He regained most of his neck movement but there was still some pain. He continued to have pain in his lower back, similar to that which he had after the 1990 accident, but worse. He noticed it particularly when sitting for long periods (eg, travelling interstate on a plane) or bending. It restricted his ability to kick a football. About two months after the accident, he noticed pain in his right hip.
Two orthopaedic surgeons were called to give evidence, Mr Anthony Pohl, for the plaintiff, and Mr Peter Fry, for the defendant. Mr Pohl saw the plaintiff once, on 7 October 1997. Mr Fry had seen him in September 1991 regarding the first accident, and saw him again in October 1999 and October 2000. Thus, neither of them saw him until some time after the subject accident. When asked to express an opinion about the likelihood of a causal connection between the accident and the hip pain, Mr Fry said that because there were no symptoms for some two months after the accident, such a connection was most unlikely. Mr Pohl also thought that the delay in onset of symptoms complicated the picture, but he was not as categorical. He said that given the dynamics of the impact between the utility and the plaintiff’s car, the dominant force in the plaintiff’s car was rotational, in an arc to the left and tending to throw the plaintiff’s right leg out towards the right hand side of the car, which was the side that collided with the utility. Therefore, he said, it was quite possible that, although the plaintiff did not register it at the time, his right leg impacted with the right-hand side interior of his car with consequent transmission and dissipation of force into the soft tissues of his right leg, including his right hip.
There must have been some trauma to the general area of his lower back because there was pain in that area. The two collisions that happened in the accident involved considerable force. There is no suggestion of any right hip pain before the accident. There is no evidence of any other significant trauma between the time of the accident and the onset of the hip pain. The appearance of the hip pain is consistent with a likely scenario as described by Mr Pohl, even though the plaintiff may not have been conscious of it. I am satisfied on the balance of probabilities that, although no precise diagnosis of it can be given, the right hip pain resulted from the accident.
His physical injuries played a comparatively minor part in the sequelae to this accident. Although there was some inconsistency in the plaintiff’s evidence, to which I shall refer in due course, I am satisfied on the evidence as a whole that, although there has not been complete resolution of his physical symptoms, the residue is minor. He has some soreness and stiffness in his neck depending on the level of his activities. He has the occasional headache. He described both the neck problems and the headaches as “nuisance value”. Since the symptoms first appeared in his right hip there have been intermittent episodes of pain. His hip now gives him the occasional twinge.
The plaintiff also continues to complain of pain and discomfort in his lower back. I accept that the activities required of him as coach caused pain and discomfort in his lower back, especially in the early stages, but the evidence shows that this gradually abated. However, the plaintiff exaggerated his current back problems in his evidence-in-chief.
The plaintiff, with others, is involved in a turf growing enterprise on a property at Walkers Flat, a small settlement on the Murray River. I shall refer to that again in due course but for present purposes, it is sufficient to say that he normally goes there three times during the week and, in summer, he and Ms Mcleod are often there over the weekend. In evidence-in-chief, the plaintiff was asked whether he still has pain or discomfort from any of the injuries he suffered in the accident. He mentioned that he gets headaches and that there are occasions when he has stiffness in his neck or a dull ache in the lower back. This led into the following passage (Tx 114):
"Q.... Do you do any gardening.
A...... Yes.
Q...... What sort of things.
A...... I water, I dig, but I’m very careful, I might dig for 30 seconds then have a spell for 30 seconds, then dig again. So I’m very careful, I monitor what I do and how I do it. I get on all fours, and I can plant flowers, but if I weed I find the pressure of one hand, I find weeding harder than planting some plants, so I’m consistently stopping.”
He appeared to be referring here to the garden of the home in which he and Ms McLeod live in the metropolitan area. His attention was then directed to the turf growing venture (Tx 115):
"Q.... What do you do at Walkers Flat.
A...... The main thing for me to do is to turn the sprinklers on and off which is a metal - I turn the pump on which is just a switch, then we have four bays that we water, half an hour each bay, so I just keep rotating, and that goes for two hours, shut it off, and then five hours later on, turn them on again.”
There is no doubt from what the plaintiff said and the manner in which he said it, that at that point in the trial, he was impressing on the court that his range of physical activity in these undertakings is still very limited. I compare that with what he said three days later in cross-examination.
As the plaintiff was being cross-examined, it seemed from the questions that counsel for the defendant, Mr Day, was in possession of some information about the activities of the plaintiff since the accident. It was equally clear from some of the plaintiff’s answers that he thought that at least some of that information was accurate. After that had become apparent, Mr Day was asking the plaintiff about his level of activity and, in particular, whether over the last few months he had started doing some training while he was at Walkers Flat. The plaintiff answered that he would not have trained for more than five minutes on any single occasion at Walker’s Flat and the exchange continued (Tx 376-377):
"Q.... So five minutes would be the maximum that you trained at Walkers Flat.
A...... I would think so, at Walkers Flat. I work hard physically up there.
Q...... Well you described the duties associated with the turf farm as turning on a switch.
A...... No, first of all, I put on the switch and the sprinklers go for half an hour. We have four banks, three banks at the moment, four next week, so after half an hour, I change those to the second bank, to the third bank.
HIS HONOUR
Q...... You do that with a switch.
A...... With a little lever, it has a lever you turn on, turn off, that’s what I do, then I would whipper snip, we have overhead snippers (sic). I whipper snip those. A couple of the - we’ve changed our water switches in the ground where the pipes are and I’ve dug about four holes of those - that is nice sandy loam, good loam, we are filling right around the taps just with sand to make it easy because Darrell, he is the one who does most of that. I’ve cut some limbs of trees down with a friend. We’ve cleaned the gardens, we’ve whipper snipped.
Q...... What do you mean you’ve cleaned the gardens. What does that involve.
A...... Whipper snip, bit of shovelling; we’ve trimmed back some trees. Also I pick up stones, I have a thing that I bend and put into a bucket and sometimes I bend down and pick up some stones to make each - what are we trying to talk about? - each bay, stone free for the turf.
Q...... How big are those stones; it’s not sort of rock.
A...... No, might be talking about 10 cent piece, might be talking big as a hand.
Q...... You’re actually doing some reasonably heavy garden duties.
A...... Not heavy, physical, I enjoy the physical work.”
[It should be noted that I asked only the one question: “You do that with a switch”. Although the transcript does not record it, the ensuing questions were from Mr Day.]
Mr Day then put to the plaintiff (Tx377-379) that he had painted a very different picture in evidence-in-chief about the extent of gardening work he could do at home and at Walkers Flat. His explanation was not credible. In my opinion, the plaintiff realized during cross-examination that Mr Day had some information, and he was therefore more candid than he had been earlier.
On a fair reading of the evidence, the plaintiff’s current physical condition is that he can probably do most things but sometimes, depending on the degree, exertion will cause him discomfort in the lower back. I accept also that there are occasions when, for no apparent reason, his back will seize up and he needs to rest it for a day or so. That is the same problem he had before the subject accident but it probably happens a little more often; a few times a year instead of a couple of times a year.
X-rays taken after the first accident, and seen by Mr Fry in September 1991, showed some degeneration at the L3/4 disc space. It was submitted for the defendant that this degeneration is a sufficient explanation for the low back pain and that it would not be appropriate to attribute the continuation of that complaint to the subject accident. When cross-examined about this, Mr Pohl acknowledged that these degenerative changes may have been caused in the first accident, or they may have already been there and been aggravated by the first accident. However, he pointed out that there had been a considerable period before the subject accident when, apart from the occasional muscular back seizure, the plaintiff had been free of ongoing pain in his lower back. On that basis, it was his opinion that the plaintiff’s current condition reflected the effect of the second accident on pre-existing degenerative change in his back. There is no evidence to support an inference that, were it not for the second accident, the plaintiff would nevertheless have suffered symptoms in his lower back because of degenerative changes at the L3/4 level. It is common medical knowledge that sometimes, such changes can remain asymptomatic unless there is some intervening event. In this case, there was a traumatic intervening event, the accident, and there was low back pain within a very short time. There is good reason to accept that there is a causal connection between the accident and the plaintiff’s low back problems.
The plaintiff’s psychological injuries have been more pervasive. I have already referred to the difficulties he faced as a coach because he had to hide how he really felt. In late November 1996, Dr Burvill referred him to Mr Michael Burvill, a psychologist, for treatment of his post traumatic stress disorder and related depression and anxiety. By then the plaintiff had developed a phobia about traffic. He had become hyper-vigilant to the extent that he began avoiding right hand turns if that required traffic travelling behind him to stop. Although he drove when he had to, he would avoid it if he could. In November 1996, the plaintiff still had significant headaches, pain in his back and tension in his neck and shoulders. He was sleeping badly, his mood was depressed and his libido was significantly reduced. Mr Burvill assessed the plaintiff as being a high achieving man for whom control of his life was important, and to some extent that had been taken away from him because of the accident. This added to the psychological problems. Mr Burvill was not surprised by the plaintiff’s hyper-vigilance about traffic approaching from the rear because he had been involved in two rear-end accidents.

Mr Burvill treated the plaintiff with regular monthly consultations from November 1996 until June 1997. Treatment included relaxation therapy and desensitisation, especially directed to his anxiety and traffic phobia. There were some more consultations in October 1997, May 1998 and August 1998. Mr Burvill said in evidence that he did not think there was any significant improvement in the plaintiff’s condition during that time. However, he formed the opinion that up until he last saw him in August 1998, the plaintiff seemed determined to overcome his problems and that he was making every effort to do so. Mr Burvill thought that this was a good indicator for the future.
Ms McLeod and the plaintiff have been in a relationship since late 1992 and have been living together since 30 June 1996. She said that prior to the subject accident, the plaintiff appeared to enjoy driving and was certainly not an anxious passenger. She was unaware that he had suffered any adverse reaction with regard to traffic from the first accident in March 1990. That is consistent with the medical evidence which indicates that that had gradually resolved over time, the only legacy being a heightened awareness of traffic travelling behind him. She said that since the 1996 accident, he prefers her to drive and that even as a passenger, he becomes agitated quickly about the perceived faults of other drivers. To her, he now seems withdrawn when he is in public, whereas she did not think he was like that before the accident. Ever since the plaintiff first saw Dr J. E. Burvill in October 1996, he has been taking anti-depressant medication. I accept that Ms McLeod is the one who has the scripts filled at the pharmacy so that the plaintiff is not seen getting the medication. She said that the plaintiff normally takes his medication in the morning and that if that is delayed, “You can tell that he needs his pills”. Whereas his sleep was extremely disturbed in the early days after the accident and for some time thereafter, she described his present sleeping pattern as waking occasionally and not appearing to sleep as soundly as he did before the accident.
Evidence was given by two psychiatrists, Dr David Ash, who was called by the plaintiff, and Professor Robert Goldney, who was called by the defendant. It is unnecessary to go through their evidence in detail because in the end it became clear that, although there were some differences in diagnosis, there was very little between them. For example there is the unresolved question of whether the plaintiff’s anxiety has been part of, or separate from, his depression, and whether both of them are products of the post traumatic stress syndrome or adjuncts to that condition. In practical terms, this is of no consequence. The plaintiff still has some psychological disability. The evidence shows that, because of the accident, for some time he suffered a form of post traumatic stress disorder combined with a major depressive disorder. However, there has been significant improvement. His condition can now be described as the residue of a gradually resolving post traumatic stress disorder with features of depression and some anxiety. The probabilities are that although his symptoms will continue to improve, they will never resolve entirely.
Professor Goldney said that his depressive disorder has been severe. He pointed out that the plaintiff having suffered major symptoms of depression after the 1990 accident, this is his second quite severe depressive illness and it has required significant doses of anti-depressant medication over a period of several years. In his opinion, the best that could be hoped for is that the plaintiff will need medication for another two years. However, given the plaintiff’s residual vulnerability, he considers, on balance, that he will need anti-depressant medication indefinitely, at least as a prophylactic.
Dr Ash is his treating psychiatrist. He explained to the Court that he has recently changed the plaintiff’s medication to a combination of an anti-depressant, Efexor-XR and, for the time being, an anxiolytic, Buspirone. Although Dr Ash does not think that the plaintiff will need psychiatric treatment indefinitely, he considers that it would be advisable for him to continue seeing the plaintiff every couple of months, say 6 times a year, for the next 3-4 years. He too, considers that the plaintiff should continue to take long term medication to ensure control of depression, probably for the rest of his life.
There are a couple of matters relating to causation that I must deal with.
The defendant pointed to the evidence of Professor Goldney who said that once a person has had a major depressive illness, there is a 70% likelihood of that person suffering a recurrence within a period of 10 years. While it is appropriate to bear in mind as a contingency that the plaintiff may have suffered a recurrent episode of major depressive illness for reasons unconnected with the accident, it cannot be taken any further than that on the evidence. The plaintiff made virtually a full recovery from the earlier depression. The subject accident triggered a serious psychiatric condition including depression and that has left some permanent residue. There is no evidence to show that even if the plaintiff had had an unrelated recurrence, it would have been as severe. Mr Day quite properly conceded that the defendant has not discharged the necessary evidential onus so as to permit the court to take any greater account of the evidence about a recurrence, other than as a contingency (Watts v Rake (1960) 108 CLR 158).
The plaintiff said that one of his sisters committed suicide when she was about 30. Professor Goldney said that from a clinical point of view, 70% of those who commit suicide have depressive illnesses, and there is probably a 12-15% chance of a first degree relative of such a person developing a depressive illness. It was submitted for the defendant that this too, should be taken into account, at least as a contingency. I do not accept that submission. Assuming for present purposes that the plaintiff’s sister did take her own life, the evidence does not establish what her condition was at that time. Suspicion is not enough. She may well have been one of the 30% outside those statistics. The submission draws too long a bow and does not have the necessary evidentiary base.
Because of the plaintiff’s high profile, the consequences of his accident have attracted publicity. In particular, he complains that a front page article giving details of his physical and psychological complaints in The Sunday Mail on 19 November 2000 has caused him considerable anguish and embarrassment, alleging that the newspaper was being vindictive. Mr Britton, for the plaintiff, submitted that the effect of this article on him should be included in his damages. I do not accept that submission and, in those circumstances, I need not deal with the unaddressed question of whether the defendant could be liable for this independent act of a third party.
It appears from the evidence that at the time it happened, the accident itself received some brief publicity but that there was no mention of its consequences. The Sunday Mail article contains a significant amount of information that is said to have come from “court documents”. It is clear from reading the article that the personal information about the plaintiff appears to have come from the Statement of Claim filed by his solicitor in this action. Mr Britton does not suggest otherwise. In assessing non-economic loss, while I take into account the distress the plaintiff has suffered generally in bringing his action against the defendant, it is not appropriate to increase that assessment because of that article. A pleading, such as a Statement of Claim, is in the public arena and unless there is some form of suppression, the whole of the proceedings is public. There can be no doubt that the community has a right of access to that information (s54(1) of the District Court Act 1991) and the media, therefore, has the right to publish it. The plaintiff has not demonstrated any basis upon which damages should be increased because that happened.
It was submitted for the defendant that there has been a number of incidents since mid 1997 that could either account for the plaintiff’s continuing symptoms of depression or, at least, have prolonged them. I can deal with those matters fairly briefly.
The first was a dispute with the club’s Football Operations Manager, Mr Moylan, in May 1997 that became very public. The plaintiff said that this was a most unfortunate incident but once it had been resolved it was of no further moment.
The second was the fact that in mid 1998, the plaintiff was told that, contrary to his wish, he would not be coaching Port Power after the 1998 season. He said that he found this a great disappointment but at the same time, there was a feeling of relief.
The third was a highly publicised allegation in June 1999 by Port Power that the plaintiff had leaked sensitive information to other AFL clubs. In particular, this involved conflict between himself and two long term associates at Port Adelaide, the President, Mr Bolton, and the Chief Executive, Mr Cunningham. He said that this was false and that it was a most hurtful allegation. He said he felt a sense of betrayal. It happened during his testimonial year and it resulted in his bringing defamation action in the Supreme Court.
The fourth occurred in October 1999. The John Cahill Medal is awarded each year to the best and fairest player at Port Power and was usually presented by the plaintiff. A decision was made in October 1999 that for that season, it would be presented by the current coach of Port Power, Mr Mark Williams. The plaintiff said this was upsetting but not particularly so. He took it as a personal slight at the time because he had donated the medal. He thought, in light of all the circumstances, it was vindictive.
Some other lesser matters were put to the plaintiff as having occurred during that generally turbulent period but they are not of sufficient moment to detail separately. Suffice it to say, that while I accept that these matters upset the plaintiff in varying degrees, I am not satisfied that any one of them, or indeed, all of them taken together, would be sufficient to have caused a depressive illness. On the contrary, the evidence as a whole shows that the depressive illness arose as at least an adjunct to, and perhaps part of, a post traumatic stress disorder which was caused by the accident. The probabilities are that he felt each of these disputes and knock-backs more acutely because of his condition. That does not assist the defendant who caused the fragile condition in the first place. If the plaintiff has suffered more from the ordinary vicissitudes of life because of that condition, that effect is to be included in the assessment of his damages.
The plaintiff complains that his psychological condition has caused loss of earnings and that it will adversely affect his earning capacity in the future. There is no evidence to suggest that his psychological condition played any part in the non-renewal of his contract as senior coach of Port Power. Nor is there any evidence to suggest economic loss resulting from the accident in the eventual closure of John Cahill Motors, and no claim is made in that regard. Indeed, in July 1999 the plaintiff started trading in cars again in a joint venture with Mr Ken Eustice. That came to an end in early 2000 for financial reasons. Notwithstanding the plaintiff’s problems with traffic, the evidence does not show a connection between the accident and the cessation of John Cahill Motors.
The plaintiff finished as coach of Port Power in October 1998. In December 1998 he commenced broadcasting with Triple M. He still does this. The arrangements are that in the football season he does special comments during games on Saturday and Sunday, usually one home game and one interstate. Year round, he does some studio work which occupies Thursday morning, until just after lunch. His connection with Triple M goes back over some 7 years, when he used to do a spot on the breakfast show while he was coach of the Magpies and later, Port Power. However, that was minor compared to the present arrangements. In 1999 he was also involved in a weekly program called the Grill Team. Part of his duties at Triple M require him to do some public speaking, both entertaining and motivational, and also to mix at special functions with the station’s clients and listeners.
Apart from what is required of him through Triple M, the plaintiff has done other public speaking. The details are not completely clear but it seems that this has also involved both entertainment and motivational talks. He said that over the last couple of years he only does this if he is requested by friends, or if it is for charity, in which case he either takes no fee or a reduced fee.
In addition to all this, the plaintiff is involved in the turf farm at Walkers Flat with a brother, Mr Darryl Cahill, and Mr Jim O’Shaughnessy. They are growing turf for use on ovals and as instant lawn in the domestic market. As mentioned earlier, the plaintiff goes to Walkers Flat, normally 3 days during the week and, in summer, for the whole weekend. He said, however, that this commitment varies. For example, he expected to be there six days per week during the harvest season which was due to commence the week after the trial.
The plaintiff said that because of his depression, he does not find it easy to mix with people publicly and he prefers to withdraw. He claimed that this has affected his earning capacity because, were it not for his psychological condition, he would take on other engagements including more fee-paying public speaking, attending functions to mix with people for a fee, and writing newspaper articles on football. The plaintiff said that he finds it difficult to fraternise and pointed to the fact that because of that, he chose not to go to the presentation of either the Brownlow Medal or the Magarey Medal in 2000. He said that there were other functions he did attend but he felt ill at ease and left as early as he thought was decent, and went home. He said that this reduced ability to fraternise affects other opportunities in the media. He said that his inability to concentrate has affected his capacity to do radio advertisements and product endorsements, especially as it is necessary to do many “takes” before advertisements are ready to go to air. He said that he does radio advertisements for Triple M because that is part of his job but that otherwise, he would not do them. He added that before the accident, he had no intention of retiring at age 65 but now believes he will only go to that age, perhaps not even that far.
Allegations of psychological or emotional disability cannot usually be tested by objective means. One must rely very much on the accuracy of the description given by a claimant. Before a defendant can be called upon to compensate for such an incapacity, the court must be satisfied as to both its existence and the degree of its severity. If a claimant shows a lack of candour or there are inconsistencies in that person’s evidence, the court has reason to be cautious about the extent to which it can rely on that evidence. The plaintiff has shown that he is prepared to exaggerate his symptoms for his own benefit. I need not repeat my earlier reference to the evidence about what he does in the garden generally and, in particular, at Walkers Flat.
Another inconsistency arises from his visit to Mr Pohl on 7 October 1997. He told Mr Pohl that he avoided things that might aggravate his lower back, such as playing golf. He told him that he had tried playing golf once since the accident but found that bending over to putt had caused his back and legs to give way. During the course of the trial, however, it became clear that only a few months before that, in February 1997, (6 months after the accident) he had played three rounds of golf while he was at Laguna Keys in Queensland with a number of other senior members of Port Adelaide Football Club. When he was cross-examined about this discrepancy, he said that he had completely forgotten about that when he was talking to Mr Pohl.
It is clear from Mr Pohl’s evidence that during that consultation in October 1997, the plaintiff described how he was limited in his ability to enjoy playing tennis and golf like he had previously, pointing out how he had not been able to play tennis at all since the accident, and what had happened when he made one unsuccessful attempt at playing golf. His explanation to the court that these were Ambrose rounds and, therefore, not too strenuous, is beside the point. It is clear from Mr Pohl’s report of 5 November 1997 and from the thrust of his oral evidence that the plaintiff was complaining about the effect of certain movements and, in so far as it was relevant to golf, this included twisting and bending; so much so that on the one solitary occasion he tried, his back and legs gave way on him. That is a very specific complaint. Even if he did forget about Laguna Keys, and I have some doubt about that, what he told Mr Pohl was simply not true. To put it at its most moderate, that evidence is not reliable.
These two instances, one about a year after the accident and the other at trial, are telling. They show that the accuracy of the plaintiff’s description of his limitations and disabilities is questionable. It follows that I cannot accept at face value his assertions about what he would have done were it not for the accident. That becomes even more evident when one looks at the overall picture.
Since the accident, there has been no sign of the plaintiff’s earnings decreasing. If anything, they have increased. He did not present any figures for the fiscal year 1999/2000, but in the preceding years since 1993, the income declared in his tax returns was as follows. The figures are rounded off:

FISCAL YEAR	TAXABLE INCOME
93/94	$33,000
94/95	$44,000
95/96	$67,000
96/97	$101,000
97/98	$105,000
98/99	$258,000

It is to be noted that in the 1998/1999 year, gross earnings included $150,000 which was a one-off termination fee from Port Adelaide Football Club. To enable a yearly comparison of income from exertion to be made, that should be deducted, leaving a notional taxable income of $108,000. Thus, for that year, taxable income from exertion was about the same as the previous year. In some years, taxable income is reduced by a small loss on a rental property but this does not make any material difference. In the absence of any evidence from the plaintiff to suggest a change in this trend, I must assume that there was, at the least, no reduction in taxable income during 1999/2000 or since then.
Until June 1998, the plaintiff’s principal source of income was Port Adelaide Football Club. In 1998/1999, leaving aside the termination payment of $150,000, there was an amount of about $34,000 from Port Adelaide Football Club but the balance came from other sources, with the largest single component being from radio work. Because the plaintiff produced no evidence of earnings after 1998/1999 no account can be taken of the turf farm venture. When asked what his current contract with Triple M was worth, the plaintiff said that it was somewhere around $75,000, plus a substantial allowance for advertising which he was reluctant to discuss, although he said that initially it was to be up to a value of $100,000. He said that during the 1999 football season he appeared on Channel 7 each Friday night to talk for 2 minutes about the game coming up on Saturday and was paid $10,000 for that.

Before I refer to the evidence which was given about the prospects of his earning extra money from public speaking and mixing with clients/guests of various organisations at functions, I need to make some general comments about these two matters. In fact, the plaintiff does both, even though he sometimes finds it difficult. As I have already found, there has been a significant improvement in his psychological condition and even though it is likely that there will always be some residue, his condition will continue to improve.
As far as the future is concerned, I am not satisfied that he could not do as much of that type of work as he chooses, subject to offers being made, and for reasons I will come to shortly, the plaintiff has not shown any other areas of work where he has been deprived of the capacity to earn income. If one looks at the whole picture, namely, the improvement in his health, especially the lessening of his psychological problems; the degree of activity he undertakes; the levels of his income from year to year; the demands made upon him by his job with Triple M; his involvement in the turf farm; the enjoyment he gets out of his work, particularly at Triple M; and his other general interests, I am not persuaded that there are now, or will be in future, commercial opportunities which he will be obliged to pass up because of the sequelae of the accident. The plaintiff has not established a loss of future earning capacity.
As far as the past is concerned, I accept that during the time when his problems were more acute, there probably have been some occasions where, but for his psychological condition, he could have taken up such an opportunity. However, his evidence makes it clear that until October 1998, he would not have been available because of other commitments as coach of Port Power. Between then and trial is a period of about two years. But he would not have suddenly reached his present level of functioning. Dr Ash’s evidence indicates that his condition had improved only slightly by May 1999 but there appears to have been noticeable improvement by early 2000. While one cannot be precise, I consider it reasonable to say that there was a period of about 18 months or so after October 1998 when, if he had been otherwise available to do so, his psychological condition would have interfered with his capacity to take advantage of commercial opportunities outside Triple M for public speaking and mixing with clients/guests for a fee. Notwithstanding that there are a number of hypotheses involved, the court must do what it can to put a value on those opportunities (Sellars v Adelaide Petroleum N.L. (1992-1994) 179 CLR 332).
The evidence about potential earnings for public speaking and mixing with guests for a fee is fairly vague. The plaintiff asserted that normally he is paid a fee of $1,000 for a speaking engagement but he said that he does not always accept that amount. No primary evidence was produced on this.
Evidence was given by Mr Phillip Dowse. He is the Programme Director of Austereo which operates two radio stations in Adelaide, SAFM and Triple M. He is also a director of a company which operates a business called Seeing Stars. He said that this business was in its infancy as it had only been fully operative for the previous 4-5 months. Its aim is to tap the potential for people who want to have access to personalities: media, sporting and music. This can be done in various ways, eg. supplying personalities as guests for functions such as a dinner, a convention, an informal gathering, a golf day, etc., or supplying them for speaking engagements. He said that the fee payable for such a service could be anywhere between $200 and $5,000 depending on the talent of the personality and what was required. His firm would take a commission from the personality for organising the engagement and that would be negotiated on an individual basis.
In his evidence-in-chief the plaintiff said that in the first year after he finished as coach of Port Power he was very busy at Triple M and was unable to accept many speaking engagements - if any; he was not sure. He thought that after that, he accepted about 6 engagements in 6 months and declined about the same number because he did not feel up to it. In cross-examination he said he thought he had done between 9 and12 in 12-18 months. He said that Ms McLeod kept records of when he had spoken. None of these were produced, although some of those occasions were described in cross-examination. The evidence only permits me to make approximations.
The total period under consideration is about 18 months or so. He would not have been available in 1999 because he was very busy at Triple M. I therefore look at lost chances in about the first 6 months of 2000. Taking his evidence as a whole, it is reasonable to say that he has been accepting a speaking engagement once every 1-2 months. However, some have been part of his contract with Triple M, for which he gets no additional fee. Looking at the overall pattern, it is unlikely that he would have been declining invitations any more frequently. During the relevant period of 6 months, therefore, I find that he was denied the chance of 3 fee paying opportunities for public speaking because of his condition.
Mr Dowse spoke in glowing terms of the plaintiff and the potential for Seeing Stars to get paid engagements for him to mix with guests at functions. However, it was only in the most general terms and without any hard information about the business to back it up. I am not critical of his evidence - he answered everything that was asked of him - but I could not safely use it as a base for any findings about frequency of opportunity for the plaintiff. Furthermore, his business was only just getting under way late in the 6 month period under examination. In the circumstances, I allow for 2 missed opportunities as a paid guest during the first half of 2000.
In all, therefore, there are 5 lost opportunities for which I am to assess a value in his hands. Although it may not necessarily be so, it is reasonable to expect that because more preparation is required for a speaking engagement, it would attract a higher fee than being paid to mix with guests at a function. I must also take into account that any such fees would be earnings on top of other income and be subject to income tax at the highest marginal rate. To cover the 5 opportunities, an overall award in the range of $1500 - $2000 would be appropriate. I fix a figure of $1750.
In addition to lost opportunities in public speaking and mixing with guests at functions for a fee, the plaintiff pointed to four other areas where he has suffered loss.
The first was a claim that because of his inability to concentrate, he has been deprived of the opportunity to write a regular newspaper column. There was some evidence about an offer that was made in February 1997 by The Sunday Mail for him to write a weekly column during the football season. He refused that offer but the evidence does not support an inference that this was because of the accident. There is no mention of the accident being involved in that decision at all. The only other evidence of previous experience that comes anywhere near writing a column of that type concerns articles published about the 1997 and 1998 AFL Grand Finals which were won by the Adelaide Crows. He went to Melbourne for each of these two premiership games, gave his thoughts on each game by telephone to a journalist in Adelaide, who then wrote the story in the newspaper acknowledging the plaintiff as the source. The evidence suggests that, depending on proficiency, it could take a couple of hours for someone to prepare a football column. The plaintiff said that he cannot do that because he could not concentrate for long enough; in other words he could not cope because of the legacy of the accident.
The plaintiff has not established this claim. He has no history of ever having done that type of writing before. He acknowledged freely that his inclination is to be outdoors rather than sitting at a desk. Ms McLeod has had the opportunity to observe the plaintiff before and after the accident. Although they did not commence to live together until June 1996, their relationship was such that he regularly stayed at her house before that. When asked in her evidence-in chief whether she had ever seen the plaintiff sitting at a desk, either reading or writing, for 2 or 3 hours at a time, she said she had not. The evidence does not support an inference that the plaintiff would have been likely to be a regular columnist if there had been no accident.
The second relates to the plaintiff’s claims about radio advertisements and product endorsement that I mentioned earlier. I am not satisfied that there have been any lost opportunities in the relevant period. The plaintiff said that he does radio advertisements for Triple M and there is no useful evidence about any other opportunities. The evidence of Mr Dowse is that he envisaged the plaintiff promoting Seeing Stars and that when he asked him if he was interested in working with Seeing Stars, he refused, but he could not recall more than that. As I have said, that business is comparatively recent, and there is nothing in the evidence about when that approach was made. I am unable to find that it was within the relevant 18 months or that, whenever it was, the plaintiff declined because of a difficulty related to the accident. In relation to product promotion, the plaintiff was asked if he had ever taken up offers to promote businesses. In answer, he said that he had not because he is careful what he puts his name to.
The third was in relation to a football coaching clinic for children. An analysis of the evidence shows that this was, at best, something to which he had given only preliminary consideration. He had never done anything about it. There is no basis for taking it into account as a lost chance.
The fourth was a suggestion that were it not for the accident, he would have gone back to the SANFL as a coach. He said that he was offered the position as coach of Norwood Football Club in 1999. However, the evidence about it is very vague and he does not appear to have given it any serious consideration. That is consistent with his earlier evidence that, at the time he retired as coach of Port Power, he had no intention of returning to the SANFL as a coach. Other than vague evidence about Norwood in 1999, there is nothing to show that he ever seriously considered a return to coaching. The plaintiff has not established that he has been deprived of an opportunity to coach.
In assessing non-economic loss, the plaintiff is entitled to have account taken of the fact that although he has done many things that have produced income, he has, at times, done so with some difficulty. He continues to have some minor physical discomfort, a psychological residue that includes some anxiety, and a lessening of his libido. A figure must be fixed on the scale of 0-60 (Wrongs Act 1936-s35a). I make a modest allowance for the contingencies to which I have referred. In my opinion, the appropriate numerical value for past and future non-economic loss is 10. The relevant multiplier is $1,520, producing a figure for non-economic loss of $15,200.
Some of the plaintiff’s special damages have already been paid but there are additional amounts. Figures are rounded off. There is an amount of $711 owing to Dr Ash. From October 1996 to June 1999, a period of 2 years 9 months, the plaintiff was using Venlafaxine as an anti-depressant at a cost of $20.30 per month, amounting to $670. In July 1999, his medication was changed to Efexor-XR ($41.20 per month) and Buspirone (no cost). Thus the cost of medication from July 1999 to the date of trial is $444. I add $82 to cover the ongoing cost of Efexor-XR since trial, making a total of $526 for pharmaceutical expenses during that time.
Outstanding special damages are therefore as follows:
Dr Ash               $711
Venlafaxine       $670
Efexor-XR        $526
$1907 - say $1910
There must be an allowance for the cost of future treatment and medication. As has been mentioned, the plaintiff will need consultations with Dr Ash every couple of months for the next 3-4 years, ie between 18 and 24 consultations at $133 each. That produces a calculated range of between $2,394 and $3,192. A small adjustment should be made for the fact that the plaintiff is receiving a capital benefit now in advance of expenditure over that period. An appropriate allowance for that future treatment is $2,500.
Subject to a modest reduction for contingencies, the plaintiff is entitled to be compensated for the ongoing cost of anti-depressant medication. The current cost is $41.20 per month. In calculating the lump sum value of an ongoing weekly cost, the multiplier should be at a discount rate of 5% and take into account mortality. The whole of life multiplier for the plaintiff, who turned 60 last April, is approximately 555. The average weekly cost of that medication is about $10, thus producing a calculated lump sum of $5,555. After reduction for the contingencies to which I have referred, I allow a figure of $5,200.
Interest is payable on past economic loss and for pharmaceutical expenses paid by the plaintiff. In general terms, past economic loss ($1750) was incurred in late 1999 and early 2000. An appropriate interest rate is 6% and to take account of the gradual loss and when it accrued, I allow interest on $1200 for 1 year, namely $72. Pharmaceutical expenses, accruing monthly since October 1996, a period of 4 years 5 months, are $670 + $526 = $1196. Since July 1999 however, the monthly cost has been double what it was before that. To take these matters into account, I allow interest on $600 for 4 years at 6%, namely $144. Therefore, the total calculation for interest is $72 + $144 = $216, say $220.
In summary, damages are as follows:
Non-economic loss  $15,200
Past economic loss  $ 1,750
Loss of future earning capacity  ----------
Outstanding special damages  $ 1,910
Cost of future psychiatric consultations       $ 2,500
Future medication  $ 5,200
Interest  $     220
Total  $26,780
The plaintiff will have judgment for $26,780.

[2001] SADC 14

14 February 2001