Chugha v Jansen
[2009] SADC 84
•14 August 2009
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CHUGHA & ANOR v JANSEN
[2009] SADC 84
Judgment of His Honour Judge Lovell
14 August 2009
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT
Liability - rear end collision - defendant negligent.
Physical and psychiatric injuries suffered by plaintiff - assessment where pre-existing condition asymptomatic at time of accident - loss of consortium
Wrongs Act 1936 (SA) s 35A(1)(g), s 35A(2), referred to.
Toohey v Hollier (1955) 92 CLR 618, considered.
CHUGHA & ANOR v JANSEN
[2009] SADC 84Introduction
On 13 December 2001 Mr Chugha, a rehabilitation consultant, was driving to his office at Kilkenny to start work. On Torrens Road, West Croydon, he brought his vehicle to a halt at a set of stoplights. A short time later the defendant accidentally drove his vehicle into the rear of the plaintiff’s vehicle. As a result of the collision the plaintiff suffered injury and now seeks damages from the defendant for the injuries suffered and losses arising from those injuries.
Background
Mr Chugha was born in India in the Punjab Province on 20 January 1959; he was the youngest of seven children. He attended the University of Punjab where he commenced degrees in Science and Medicine. As will be discussed later he did not complete either although he came very close to finishing his medical degree.
Due to political problems in the Punjab area Mr Chugha came out to Australia in 1987 and, due to the political unrest and potential danger, he decided to remain in Australia. He obtained a residency visa. I accept that there were genuine reasons for him to leave India.
In January 1992 he returned to India to get married; it was an arranged marriage. Mr and Mrs Chugha returned to live in Australia. There are two children of the marriage.
Upon returning to Australia he commenced studying to obtain a degree in “Rehabilitation” from La Trobe University. Whilst studying he worked part-time as a taxi driver and his wife, who is a university graduate, obtained work as a process worker.
After graduating he obtained employment as a Rehabilitation Consultant with Commonwealth Rehabilitation Service (“CRS”). Initially he worked at Port Augusta. After 18 months he obtained a job in the Kilkenny office of the CRS in February 1997; he still remains employed there. His job involved interviewing clients, preparing reports and plans and, to some extent, marketing the service offered. The job is sedentary and involved a reasonable proportion of time working at a computer.[1]
[1] See Exhibit P4 for Statement of Duties.
Prior to the motor vehicle accident Mr Chugha was in good health and had performed very well in his job. He was president of the Punjabi Association. In 1999 he and his wife built a house in the Rostrevor area.
Witnesses
The Plaintiff
Mr Chugha speaks with a pronounced accent and, when under pressure, very quickly. He was at times hard to understand and on occasions had to repeat his answers. Mr Chugha was on occasions discursive in his answers and also tried on occasions to justify some of his answers. They are observations not criticisms. There was, however, an aspect of his evidence that caused me concern.
As mentioned earlier Mr Chugha did not complete his medical degree in India. When attending many of the medical practitioners involved in this matter he told them he was a doctor. Indeed, he told Dr Davis his treating psychiatrist that he was a medical practitioner. Dr Kutlaca also noted the same information.
Mr Chugha was examined and cross-examined about this topic. In examination-in-chief Mr Chugha admitted that it was not true that he was a doctor. Mr James, counsel for the defendant, attempted to get Mr Chugha to admit that he told a lie to the various doctors. He was unsuccessful in that endeavour. Mr Chugha simply refused to admit that what he said to the doctors about that topic was a lie. He was extremely evasive in those answers.
Perhaps of more significance was the fact that he had, in his sworn answers in the Affidavit of Loss, stated he was a qualified doctor. Again, despite Mr James’ best efforts, he refused to admit that he had told a lie in those sworn answers. He admitted that he had said he held a Bachelor of Science and Bachelor of Medicine but when pressed about the fact that he didn’t hold those degrees he simply said, “I hold the knowledge of”.[2] His sworn answer in the Affidavit of Loss was tendered.[3]
[2] T 302.
[3] Exhibit D2.
It is difficult to understand Mr Chugha’s answers about this topic. It is likely that he has over the years in the Indian community referred to himself as “doctor”. No doubt this was an attempt to “promote” himself in the community. However that does not justify his sworn answers in the Affidavit of Loss.
Although there is no suggestion that he has practiced unlawfully as a medical practitioner, in his application for his job as a rehabilitation counsellor he had referred to himself as a doctor. Both Dr Davis and Dr Kutlaca considered that if he had lied (and I find he did) that was a matter that would make them look at his other statements more carefully. Mr James, counsel for the defendant submitted that, as Mr Chugha was a person who was prepared to lie if there was some advantage to him, I should treat his evidence very carefully. Indeed Mr James suggested that I should find that on occasions he deliberately exaggerated parts of his evidence.
I have considered carefully the submissions of Mr James. The issue of his lie in the Affidavit of Loss concerns me, as indeed did his answers on this topic before me.
I agree with the approach suggested by Dr Davis. I have to look at his answers carefully. However I cannot look at one aspect of his evidence in isolation. Much of the rest of the evidence called on behalf of Mr Chugha confirmed the consistency of his presentation and evidence generally. Mrs Chugha’s evidence was supportive as was the evidence of the other lay witnesses. Generally the medical evidence called on his behalf supported his evidence.
I have scrutinised his evidence with care and, despite the problems raised by Mr James, I consider it to be generally reliable. Why he persisted with the position that he was a doctor remains unexplained. However, despite that reservation, I generally accept his evidence.
Other witnesses
Mrs Chugha was an excellent witness and I accept her evidence without reservation. Indeed, as mentioned, she supported the evidence of Mr Chugha in many respects.
Dr Singla also was an excellent witness and I accept his evidence. He also supported the evidence of Mr Chugha.
Julie Russell and Thomas Monaghan, who gave evidence of the dealings with Mr Chugha at the CRS, were also excellent witnesses and I accept their evidence. From their evidence it is clear that both prior to and after the accident Mr Chugha was a good counsellor and performed the work that he was able to undertake to a high standard. Prior to the accident he had been a good employee.
Medical witnesses
All the medical witnesses gave their evidence in an objective and impartial manner. Generally there was little dispute between the witnesses.
Dr Davis and Dr Kutlaca disagreed on the psychiatric diagnosis. Dr Davis had the advantage of being the treating psychiatrist and therefore the greater opportunity of assessing Mr Chugha. In my view his opinion fitted more comfortably with the lay witnesses’ observations of Mr Chugha and therefore where there is conflict between Dr Davis and Dr Kutlaca I prefer the evidence of Dr Davis.
I will deal with the medical evidence that was tendered by the defendant later in the judgment.
The accident
On 13 December 2001 at around 8.50 am Mr Chugha was driving to work when he stopped his car at a red light on Torrens Road. He stopped his car leaving a space in front of him so as not to block access to a side road.
Mr Chugha said that after he had been stationary for about one minute the defendant’s vehicle struck the rear of his vehicle.
At the time of the collision Mr Chugha was holding the steering wheel of his vehicle. His knee may have come into contact with the dashboard. Mr Chugha did not see the defendant’s vehicle prior to the collision and was not able to estimate the speed of the defendant’s vehicle at impact.
Mr Chugha got out of the car and exchanged particulars with the defendant. He noted some damage to the front of the defendant’s car. He was somewhat vague about the damage to the defendant’s vehicle.[4]
[4] T 146.
It was suggested to Mr Chugha that the impact occurred whilst his vehicle was still moving but slowing down. He denied that proposition and no evidence was called to substantiate it. At best for the defendant there may have been some inconsistency in his version of events.[5] I accept Mr Chugha’s evidence as to how the accident occurred.
[5] T 141.
Whilst it is not possible to say what speed the defendant’s vehicle was travelling at the time of impact I find that the collision was not minor and of sufficient force to cause the injuries alleged.
Liability was not admitted although not contested. The defendant was clearly negligent. Contributory negligence was not alleged. I find the defendant acted negligently. There will be judgment for both plaintiffs against the defendant.
Symptoms after the accident
Some time was spent at the trial on the issue of the pre-existing conditions (as shown on radiological investigations of Mr Chugha) and the onset of symptoms particularly left upper arm symptoms. There was little or no dispute that Mr Chugha currently does and has for some time suffered from symptoms in the neck and left upper arm. There are three possible reasons for the symptoms.
First, that the accident caused the immediate onset of the symptoms (as he was vulnerable due to the pre-existing changes).
Secondly, that the impact caused injuries which included the acceleration of the underlying degenerative changes. The onset of the symptoms after about six months from the impact was due to this aggravation and acceleration of the underlying problems.
Thirdly, that the development of the upper arm symptoms after six months from impact was simply the consequence of the progress of the pre-existing degenerative changes and therefore unrelated to the impact.
I reject this third explanation, as there was little or no acceptable evidence to support such a position. In relation to the first two explanations the resolution of the issue does not make a significant difference to the assessment of damages if, as I have found, the Pain Syndrome suffered by Mr Chugha is related to the accident.
Before turning to the evidence regarding the onset of symptoms I repeat what I said earlier about Mr Chugha. He spoke quickly and with a pronounced accent. At times he was discursive and did not always address the issue contained within the question. This is likely, in part at least, to be a product of English being his second language. These are not criticisms of Mr Chugha rather just observations. The fact that the medical witnesses obtained differing histories can in my view be attributed in part to these issues.
Mr Chugha said that after the accident he felt pain in his neck, left elbow and wrist, pain in the base of his neck and low back.[6] He initially went to work but eventually left and went to see his general practitioner Dr Mutton. He said that his “back was stiffening up and his neck was stiffened up with pain and elbow and here was pain in the back too and something itching and tingling something”.[7] Mr Chugha filled out “Claim for Rehabilitation and Compensation” addressed to Comcare.[8] In answer to Question 16, which asked for a description of the injury he stated “Neck and back and left arm pain, tingling back and Pain in left wrist”.
[6] T 46.
[7] T 46, T 150.
[8] Exhibit P2.
In evidence Mr Chugha stated that at that time he had tingling in the left arm.[9] Mr Chugha in January 2002 had travelled to India for about five weeks on a prearranged holiday. Whilst in India he said he suffered neck pain, back pain and a burning pain between his scapulas and the bottom of his neck. He also said he had the pain in his left arm.[10]
[9] T 49.
[10] T 50.
Mr Chugha noted that upon his return to work in February 2002 his right hand became very shaky. He continued to see his general practitioner Dr Mutton. In May 2002 he saw Dr Dundas and Mr Vrodos.
Mrs Chugha gave evidence that when he came home on the day of the accident he complained of pain in the neck, back and left arm.[11]
[11] T 377, T 396, T 397.
Dr Mutton gave evidence of her consultations with Mr Chugha using her notes to refresh her memory. She stated in her report[12] that Mr Chugha had within half an hour of the accident developed soreness and stiffness in his neck and upper back; also he developed pain and stiffness in his left elbow. Over the next few days he developed a burning type of pain in his lower back.
[12] Exhibit P13.
Dr Mutton diagnosed soft tissue injury involving his cervical, upper thoracic and lumbar spine as a result of the motor vehicle accident. She thought he had bruising to his left elbow.
In cross-examination Dr Mutton agreed that there was not a reference in her notes to radicular like symptoms until 22 February 2002 and then it was a reference to a tingling down the lateral aspect of the left leg.[13] Dr Mutton agreed that if there had been a reference by Mr Chugha to paraesthesia or referred pain in the arms she would have recorded that fact. The development of such symptoms would have concerned her.[14] She did say however that the “burning pain” he described often related to nerve irritation as well.[15]
[13] T 260.
[14] T 261.
[15] T 260.
On 18 March 2002 Dr Mutton noted “right arm increasing pain paraesthesia hand” and “heaviness hand”.[16] In September 2002 he complained of paraesthesia in both hands.[17] Interestingly she said that she received a letter from Dr Dundas of 19 June 2002 that mentions left upper symptoms as well as right scapula symptoms and also “bilateral positive upper limb nerve tension tests”. Dr Mutton thought that description accorded generally with Mr Chugha’s condition that she noted at the time although she still made no note of any such symptoms. Dr Mutton thought there was a nerve irritation component to his condition from an early stage in the neck and back.[18] This was consistent with the description given by Dr Morrison.[19]
[16] T 262.
[17] T 265.
[18] T 230.
[19] T 522 and T 531
Mr Vrodos first saw Mr Chugha in late May 2002 on referral from Dr Mutton. At that time Mr Vrodos recorded that Mr Chugha “complained of posterior neck pain and pain extending to the right scapular with heaviness of the right upper limb since then”.[20] Mr Vrodos did not record a complaint of left sided upper limb symptoms. He conceded he may not have taken an accurate history.[21]
[20] Exhibit P16 page 1.
[21] T 344.
Mr Vrodos stated that if Mr Chugha did not suffer any left upper limb symptoms until six months after the motor vehicle accident then the onset of those symptoms later were, on balance, more consistent with the natural history of degenerative change.[22] He raised the issue of left sided symptoms with Mr Chugha at a later consultation. The response by Mr Chugha was that the “right side was more predominant but as that settled the left side symptoms became more symptomatic to him”.[23] He had accepted that at face value as a possible “medical” explanation.
[22] T 358.
[23] T 359.
Mr Vrodos referred Mr Chugha to Dr Dundas, a rehabilitation occupational physician, who first saw him on 19 June 2002, some three to four weeks after Mr Vrodos. Dr Dundas reported to Mr Vrodos by letter on 19 June 2002.[24] He stated:
On working through the symptoms history in a fairly detailed fashion, it seems he does in fact have left upper limb symptoms as well as right scapula symptoms and I noted that he had bilaterally positive upper limb nerve tension tests. I think he is probably getting some radicular symptoms from the cervical spine.
[24] Exhibit P18 (19 June 2002).
When he gave evidence, Dr Dundas elaborated on that part of his report. He said that Mr Chugha had complained of left upper limb symptoms from “the time of the accident” (my underlining).[25] Dr Dundas stated in evidence that he realised that his history did not “fully accord with other people’s history”[26] but that he had spent an hour with Mr Chugha on the first consultation and was a believer in obtaining from a patient “what they are complaining of” before examining him/her.[27] He thought that “surgeons don’t always spend quite as long with their consultations”.[28]
[25] T 434.
[26] T 434.
[27] T 433.
[28] T 433.
Dr Dundas, who impressed me as a careful physician, also took a history of the treatment Mr Chugha had received from a physiotherapist at the Eastern Sports and Spinal Care Physiotherapy practice. Dr Dundas’ interpretation of the treatment provided was consistent with referred pain to the limb rather than a separate direct traumatic injury.[29] Neither Dr Mutton nor Mr Vrodos referred to that aspect.
[29] T 435.
The notes from the physiotherapy practice were tendered.[30] A letter from the physiotherapist, Ms Karran, to Dr Mutton of 20 February 2002 confirms the original complaint by Mr Chugha on 14 December 2001 included a “stretching sensation on the anterior aspect of his left elbow.”
[30] Exhibit D14.
Discussion
It is clear that Mr Chugha initially presented to his treating general practitioner and physiotherapist with a wide range of symptoms. To Dr Mutton there was no report of left sided radicular symptoms until after June 2002. Dr Mutton treated his complaint of a sore left elbow as being a bruise. It is likely that there was no complaint to either Dr Mutton or Mr Vrodos by Mr Chugha about left sided upper limb symptoms.
However, there is a clear report by Mr Chugha to Dr Dundas in June 2002 of left upper arm “symptoms” having their onset at or near the time of the accident. This was only 3-4 weeks after his consultation with Mr Vrodos. I accept that Dr Dundas took time with Mr Chugha to identify what symptoms he had and their duration. That is an approach that Dr Mutton and Mr Vrodos did not have the time, in their particular practices, to do.
Whilst the failure of a general practitioner to record a patient complaining of particular symptoms can be indicative of the fact that there were, at the time of the consultation, in fact no symptoms, there are convincing reasons here not to follow that reasoning.
First, Mr Chugha does speak quickly and with a pronounced accent. He was, when he gave evidence, sometimes quite difficult to understand. I accept that he had a wide range of symptoms in the early months after the accident. I accept that the other injuries and symptoms may well have dominated the discussions in the earlier consultations and it wasn’t until they settled to some extent that the focus came onto the left sided symptoms. It would have been challenging, difficult and time consuming for any medical practitioner to have obtained a detailed history from Mr Chugha.
Secondly, Dr Mutton has a busy medical practice and would not have had the time to devote to recording all of the symptoms mentioned by Mr Chugha. I accept that if upper arm radicular symptoms were prominent at the time of a consultation she would have made a note of them. However, Mr Chugha may not have mentioned such symptoms if other symptoms were worrying him. The same applies to Mr Vrodos.
Thirdly, Dr Dundas specifically took the time to obtain a thorough and detailed history from Mr Chugha about six months after the accident. He obtained the history that left sided upper arm symptoms had been present since the time of the accident. That history, being within approximately six months of the accident, is very consistent with the evidence of Mr Chugha.
Fourthly, Mr Chugha gave evidence about the onset of the left sided upper arm symptoms being close to the time of the accident. His wife, who I have found was a very good witness, confirmed that he complained about left arm pain after the accident. I accept their evidence about that.
Findings
Whilst it is not without some doubt, I find on balance that Mr Chugha did suffer, amongst other symptoms, left sided upper arm symptoms within a short time after the accident most likely within twenty-four hours. I find that he did not mention that problem to either Dr Mutton or Mr Vrodos at the time but that other symptoms were more troubling to him at that stage. When a medical practitioner, Dr Dundas, had the opportunity and time to discuss all of the problems arising from the accident Mr Chugha complained of the problem and that it had been there since the accident.
Whilst it is not necessary for my assessment I note in passing that had I not accepted Dr Dundas and Mr Chugha’s evidence as to the onset of the symptoms the most likely scenario was that the accident caused the acceleration of his pre-existing changes such that they led to the early onset of neurological symptoms.[31] As mentioned earlier given my later findings in relation to his psychiatric condition and it’s onset there would not be a substantial difference in the assessment of damages even if I had found that the symptoms came on around six months after the accident. Clearly Mr Chugha had significant injuries to both his neck and back independent of any upper arm symptoms.
Medical evidence
[31] See evidence of Dr Dundas T 452ff and Mr Vrodos T 361ff.
Physical injuries
Mr Chugha was treated by Dr Mutton, Mr Vrodos and Dr Dundas. In addition, he was assessed for medico-legal purposes by Mr Morrison. They all gave evidence before me.
In addition a large number of reports of various medical practitioners were tendered by the defendant. They were not called to give evidence. I have had regard to them and have taken them into account when considering the question of findings in relation to the medical evidence. I do not intend to go through the medical reports.
By way of general observation, in parts some opinions were consistent with Mr Chugha’s case; in other parts they were not. In those latter cases the opinions expressed were based upon assumptions relating to the credibility of Mr Chugha. Given my findings in relation to the credibility of Mr Chugha and my findings as to the credibility of his complaints the foundation of those opinions has not been established. I therefore reject those opinions expressed in the reports that are not consistent with my findings on credibility or where they clash with the opinions expressed by the medical witnesses called by Mr Chugha.
In relation to the medical evidence called by Mr Chugha, whilst there was a difference in emphasis as to what may have been the major cause of his symptoms at any given time, the evidence was consistent that Mr Chugha had a genuine organic cause for his complaints. In general I accept their evidence as to the physical injuries suffered by Mr Chugha.
The evidence demonstrated as a whole that Mr Chugha suffered injuries to his neck and back.
Mr Chugha presented to Dr Mutton’s surgery on 13 December 2001. Dr Mutton diagnosed him as having sustained a flexion/extension type injury to his neck, upper back and lower back. Initially she thought he had suffered soft tissue injuries to his cervical, thoracic and lumbar spine as a result of the accident.
Dr Mutton treated him conservatively at the time by recommending physiotherapy and analgesia. She noted his problems at work and provided certificates to his employer noting restrictions to his working capacity. Unfortunately, the physiotherapy was not beneficial. Due to the persistence of his symptoms, Dr Mutton referred Mr Chugha to the neuro surgeon, Mr Vrodos.
Mr Vrodos was an impressive witness. I accept his evidence. On the assumption that Mr Chugha’s upper limb symptoms arose very shortly after the accident (which I have found) he considered that his ongoing complaints relating to his neck and upper limb symptoms (both right and left) were related to the motor vehicle accident.
Mr Vrodos viewed CT scans taken on 19 March 2002 of his lumbar and cervical spine. He noted that the scan of the cervical spine showed some mild degenerative changes. On the left side at the C5/6 level there were osteophytes and a disc bulge with significant foraminal stenosis. The CT of the lumbar spine showed a diffused disc bulge at L4/5 with facet hypertrophy also at the L4/5 level.
Mr Vrodos was of the view that Mr Chugha was suffering from a combination of muscular ligamentous injuries as well as nerve root irritation both to his lumbar and cervical spine. These problems related to the motor vehicle accident.
On 14 June 2007 Mr Chugha underwent a left C6 nerve root block, which gave him significant relief of his left upper limb pain. Mr Vrodos regarded this as supporting evidence for the fact that the left C5/6 foraminal stenosis and left C6 nerve root compression account for the bulk of his left upper limb and neck symptoms. In light of the disabling nature of his symptoms and the positive response to the nerve root block, Mr Vrodos thought that Mr Chugha should consider a C5/6 anterior compression, interbody fusion and plate fixation.[32]
[32] Exhibit P16.
As Mr Vrodos stated in his report of 20 June 2007:
I believe his left upper limb symptoms are due to the result of the motor vehicle accident in 2001 causing aggravation of his neck condition. The foraminal stenosis, which has been confirmed on a number of occasions, is largely bony. The patient clearly denies any presence of these symptoms prior to the motor vehicle accident. I believe the motor vehicle accident caused significant irritation of the nerve to cause these symptoms. Initially on review, he had predominately right-sided symptoms, which may well have been due to the major problem at that time being the musculo ligamentous injuries. Certainly once the acute musculo ligamentous injuries settled, the left upper limb symptoms have become more prominent and in fact persist to this day from the motor vehicle accident.
In line with Dr Dundas, Mr Vrodos and Mr Morrison, there are really two components to his injury. First, there was the musculo ligamentous injury of both the neck and back. Secondly, there is the nerve root irritation. With a discogenic injury leading to nerve root irritation the neurological symptomatology can vary from side to side.
As described by Mr Morrison, a nerve being irritated is a complex process. A nerve can become irritated without necessarily being “squashed” by mechanical forces. The absence of “hard” neurological signs such as a loss of reflex, loss of sensation or muscle tone, are indications that the nerve itself is not compressed just irritated.[33]
[33] T 522.
With true nerve root compression quite specific areas of the body are affected. When there is an irritation the areas affected are much less precise because there is an overlap of dermatomes and it is harder to be precise as to the anatomical distribution.
Dr Dundas in February 2004[34] noted that his lumbar pain and left leg pain continued although the left leg pain was less frequent than the left upper limb symptoms. In late 2005 Mr Chugha underwent facet joint injections of the lumbar spine. The results offered some support for diagnosis of a facet joint problem.[35]
[34] Exhibit P18 (report 5 February 2004).
[35] Exhibit P18 (report 11 January 2006).
Psychiatric evidence
The precise onset of any psychological problems is of course impossible to determine. However it is clear that by the end of 2002 Mr Chugha was psychologically struggling. Dr Mutton prescribed Temazepam on 1 November 2002 as he was not coping well.[36]
[36] T 265.
Initially Dr Mutton referred Mr Chugha to the psychologist Mr Calabrese. He first saw Mr Chugha on 10 February 2003. At that stage Mr Chugha complained of pain in his neck, back and leg. Mr Calabrese noted that:
He had built up a lot of agitation and anger because of ongoing symptoms and because these symptoms prevented him from functioning as well as he did prior to the accident. Subsequently he became depressed because of chronic pain and limited functioning.[37]
Mr Chugha consulted with Mr Calabrese for a time but then discontinued further treatment.
[37] Exhibit P 24.
Dr Mutton later referred Mr Chugha to Dr Davis. As mentioned earlier I accept his evidence.
Dr Davis was of the opinion that Mr Chugha suffered from a Pain Disorder with both Psychological Factors and a General Medical Condition. Dr Kutlaca and Dr Blakemore diagnosed Mr Chugha as suffering from an adjustment disorder. Dr Davis described a pain syndrome as a complex condition associated with various pre-disposing events such as traumatic injury and can be perpetrated by a number of factors in one’s life including personality, stress factors and positive reinforcing factors. Dr Davis thought that an adjustment disorder was a diagnosis of exclusion; in other words to diagnose an adjustment disorder one has to exclude first the diagnosis of a Pain Disorder. As mentioned I prefer the evidence of Dr Davis.
The diagnosis of a Pain Disorder implies a gap between the degree of physical disability as assessed by examinations and investigations and the description of the symptoms by the patient and the disability, which stems from it. It was difficult for Dr Davis to say when that “gap” first arose.
Quite properly Dr Davis was cross-examined about the issue of whether, if no accident had occurred, he may have developed the condition simply related to the onset of symptoms from the pre-existing degenerative changes in his neck and back. Given his lack of any history of mental illness pre-dating the accident Dr Davis was of the opinion that the Pain Syndrome was likely to have been directly related to the motor vehicle accident and would not necessarily have occurred as a result of a natural progression of his underlying medical problems.
Further Dr Davis stated that if Mr Chugha was in pain after the accident and then the symptoms related to his underlying and pre-existing degenerative changes in the cervical spine appeared six months after the accident, then Mr Chugha would have been already psychologically compromised and it would have been harder for him to adapt to the later onset of symptoms.
As I mentioned earlier in this judgment even if the left upper arm symptoms relating to his pre-existing degenerative changes came on after about six months it would make little difference to the assessment of damages as the Pain Syndrome that he developed would have developed as a result of the accident.
As mentioned earlier however I have found that Mr Chugha has had symptoms related to his neck and upper arm since the accident. On the evidence of Dr Davis the Pain Disorder is related to the motor vehicle accident even if there was a long delay in its onset. He accepted that there may have been some improvement in the early part of the treatment but unfortunately it did not continue.
Dr Davis has continued to treat Mr Chugha by means of psychotherapy and the prescription of various antidepressant drugs. Dr Davis was of the opinion that the antidepressant drugs had assisted his condition. He thought he would need to take them for at least another two years.
I accept the treatment regime as proposed by Dr Davis in his report of 26 March 2008 as being both appropriate and reasonable.[38] He considered that Mr Chugha needed psychotherapy on a monthly basis for a period of at least two years.
[38] Exhibit P19.
Findings in relation to the medical evidence
Mr Chugha, prior to the accident, had pre-existing degenerative changes in both his cervical and lumbar spine. He suffered no symptoms in the neck and back related to these changes.
I find that, as a result of the motor vehicle accident, Mr Chugha suffered injuries to his neck and back. He consulted Dr Mutton who treated him reasonably and appropriately. There are, from a physical point of view, two components to his injuries. First, there are the musculo ligamentous injuries to his neck and back. Secondly, he suffers nerve root irritation or possibly compression relating to his neck: there may be a component of nerve irritation in relation to his back.
Initially his musculo ligamentous injuries and the symptoms related to those injuries predominated. Once those symptoms began to settle, the nerve irritation symptoms, particularly relating to his neck, became more prominent. I find that within a few years from the accident his musculo ligamentous injuries had largely, although not entirely resolved.
The symptoms suffered by Mr Chugha have varied in intensity and frequency over the years since the accident. Generally I accept Mr Chugha’s evidence about the symptoms and problems he has suffered since the accident. The symptoms generally are also recorded in the medical reports and evidence provided by the medical experts called by Mr Chugha. I do not intend to repeat them here other than in a general way.
I find that Mr Chugha continues to experience pain in the neck with a burning sensation into both scapula regions. I also find that he experiences occasional numbness in parts of the left hand. He also experiences some numbness to the lateral aspect of his left foot. I find that these injuries and symptoms, with some variations, have continued to cause pain and to some extent incapacity.
I find that he is suffering cervical and lumbar symptomatology with some nerve root irritation from some compromise to exit foramina.
He suffers aching in the lumbar region and has suffered and to some extent continues to have “tingling” in the left leg sometimes to the toes. Whilst the back pain troubled him initially it has largely although not entirely resolved; his neck injury and symptoms are currently his major problem.
He has experienced headaches although these appear to have lessened in frequency over time.
Over time his neck symptoms have become more prominent. He has followed many of the recommendations of his treating medical practitioner as to treatment such as physiotherapy and medications. Unfortunately he has suffered many side effects relating to his medication that have caused problems. He was resistant initially to any suggestion that there was any psychological aspect to his problems but eventually he accepted that and consulted and has continued to consult with Dr Davis.
Mr Chugha refused to attend a pain clinic as recommended and his attitude to that suggestion is also likely to be related to his resistance to there being any psychological dimension to his problems. Whilst it may have been better for him to have attended a pain clinic, given his mental state and injuries, it was not unreasonable for him not to attend.
Imaging taken since the accident confirms the presence of foraminal stenosis, which explains largely his upper limb symptoms. The left C6 nerve block performed on 14 June 2007 supports the suggestion that the C5/6 foraminal stenosis and nerve root compression account for the bulk of his left upper limb and neck symptoms.
Mr Vrodos has suggested that Mr Chugha consider undergoing a C5/6 anterior decompression, interbody fusion and plate fixation. I find that such a suggestion is reasonable and appropriate medical treatment.
I also find that whilst there is an organic basis for the symptoms complained of, there is a difference between the degree of physical disability as assessed by examinations and investigations and the description of the symptoms by Mr Chugha and his level of disability. I accept that Mr Chugha suffers from a Pain Disorder with both Psychological Factors and a General Medical Condition. It is not possible from the medical evidence to be precise about when that first developed but I accept Dr Davis’ evidence about that. I accept that Mr Chugha has sought appropriate treatment from both Dr Mutton and Dr Davis for his psychological and psychiatric problems.
Mr Chugha obtains relief from the medication Gabapentin and I accept that it is reasonable for him to continue to take that particular medication.
I find that his medical condition generally (including both organic and psychological conditions) have interfered with his work capacity in addition to it affecting his life generally.
I accept Dr Mutton’s evidence (as evidenced by the medical certificates) as to his work capacity since the accident. I find that Mr Chugha was incapacitated for work to the extent established by those certificates provided by Dr Mutton (and supported also by Dr Dundas, Mr Vrodos and Dr Davis). I accept that he has attempted to work to his capacity since the accident. Whilst his hours have varied from time to time that simply reflects the fluctuating nature of his injuries.
I accept that at the time of the accident Mr Chugha had pre-existing changes in both his cervical and lumbar spine. The medical evidence was unequivocal about that. I accept that Mr Chugha was asymptomatic in relation to those degenerative changes prior to the occurrence of the accident.
Mr Vrodos was of the opinion that given the extent and nature of the underlying problems in relation to his cervical spine there was a high chance that Mr Chugha would have developed symptoms related to those changes in any event. The pre-existing changes seen in the radiological investigations are more prominent in relation to the cervical spine compared with the lumbar spine.
Other than put it as “a probability that he would have”[39] developed symptoms Mr Vrodos was unable to be more precise.
[39] T 352.
Dr Dundas was of the opinion that Mr Chugha would probably not have become symptomatic at all for a period of a few years at least and that he would not have necessarily become dramatically symptomatic for 5–10 years.[40] He conceded it was unpredictable.
[40] T 454-455.
It is not possible to be precise about what may have happened in relation to Mr Chugha’s underlying condition if the accident had not occurred. On balance I find that it would have eventually become symptomatic most likely within the 5-10 year time period mentioned by Dr Dundas. It is likely that the symptoms initially would have been a nuisance rather than causing any incapacity. However over time it is likely that the symptoms would have become more disabling. It is not possible to say whether they would have caused any significant periods of time off work. That however is a contingency that must be recognised.
In relation to his incapacity for work I find that such incapacity is largely related to his psychiatric condition.
Assessment
Non-economic loss
Mr Chugha was aged 43 at the time of the accident. He had been in good health and enjoyed a good relationship with family.
The injuries suffered by Mr Chugha in the accident have affected him significantly. I accept that he has suffered and continues to suffer from back and neck pain as well as upper limb pain related to his neck injury. He also suffers from intermittent symptoms in his legs as a result of his back injury although as mentioned earlier this has largely resolved.
In addition he suffers from a Pain Disorder as diagnosed by Dr Davis. The combination of both the physical and psychiatric components of his injuries has had a significant affect on Mr Chugha’s ability to enjoy life. Prior to the accident he was generally healthy, enjoyed a good relationship with his wife and children and was physically reasonably active. All of those matters have been affected.
Mr Chugha’s relationship with his wife has been significantly affected. He is now bad tempered and irritable and focused on his symptoms. Mr Chugha is unable to physically play with his sons. He is unable to assist much around the house including housework and gardening activities jobs that he previously enjoyed. As mentioned previously he has suffered from many troubling side effects from his medication.
The physical symptoms and disabilities suffered by Mr Chugha are permanent. However, consistent with my earlier findings I must take into account that his enjoyment of life and his ability to perform various activities is likely to have been affected by the likely onset, gradually, of symptoms related to his pre-existing neck problems.
Also consistent with my findings in relation to his psychiatric condition there will be some improvement in relation to his psychiatric disability. That will lead to improvement of his perceptions of his physical symptoms. The gap between his actual symptoms and his perception of them will diminish. I accept that his physical symptoms are permanent.
Taking into account the evidence of Mr Chugha and my findings in relation to the medical evidence I assign 17 points for his non-economic loss. It was agreed that the multiplier for an accident occurring in 2001 is 1650 and I therefore allow $28,050.00 under this head of damage.
Past loss of earning capacity
At the time of the accident Mr Chugha was working for the Commonwealth Rehabilitation Service at Kilkenny. He was classified as an “RC1” at that time. His duties included interviewing clients, report writing and developing plans for clients. Marketing was part of his duties and he would visit local general practitioners to promote the service.[41]
[41] See Exhibit D1.
Mr Monaghan gave evidence about Mr Chugha’s pre-accident work. Mr Monoghan commenced work at Kilkenny as a Senior Rehabilitation Consultant in 1997 and was therefore senior to Mr Chugha. Mr Monoghan said that Mr Chugha was competent in his job and always making his targets. [42]
[42] See Exhibit D3.
Ms Russell was his manager from July 2002 until she retired in December 2005. When she first met Mr Chugha he was already working part-time.
Whilst there were some minor matters she had to speak to him about she found that he was able to meet the targets they had agreed. She thought that he appeared to be in pain at times and somewhat distracted. Mr Chugha had already been promoted to an “RC2” at the time she met him.
Performance Achievement Plans tendered [43] showed that Mr Chugha either met or exceeded all the criteria set for him.
[43] Exhibit D4.
Mr Chugha consulted Dr Mutton very shortly after the accident. Dr Mutton managed his return to work. She has provided certificates relating to his work capacity to Comcare since the accident.
As mentioned Dr Mutton was an impressive witness: she was a thoughtful and careful general practitioner. Mr Chugha presented with what developed into complex problems and Dr Mutton has continued to manage them in a professional and competent manner. Dr Mutton has referred Mr Chugha to appropriate specialists as well as monitoring his progress herself. I am satisfied, taking into account the evidence not just of Dr Mutton, but also the evidence of the other medical practitioners called by Mr Chugha that the medical certificates provided by Dr Mutton to Comcare reflect the capacity for work of Mr Chugha.
I find that due to a combination of his physical and psychiatric injuries Mr Chugha has not been able to return to work on a full-time basis since the accident. Due to the pain in his neck and back in addition to his psychiatric problems Mr Chugha has suffered difficulties in performing his work. Currently he works from 9 am to 12 noon seeing clients and writing reports. He feels exhausted by that time and then returns home. That has been the position for some time. I note that Dr Mutton stated that Mr Chugha was happy to try and increase his hours.[44]
[44] T 280.
I find that Mr Chugha has to the date of trial tried his best to work to his capacity. I reject the suggestion of some conscious element of exaggeration by Mr Chugha. It was suggested that Mr Chugha’s performance and promotion after the accident indicated that he was not particularly disabled at work. I do not accept that submission. The evidence shows that Mr Chugha worked to his then physical and mental capacity. The fluctuations in the hours worked by Mr Chugha simply reflect the variation in his physical symptoms and the fluctuation of his mental state. The fact that he performed well at work does him credit rather than the reverse.
Mr Chugha has received payments from Comcare for the time that he has had “off work”. However it was submitted by the plaintiff that Comcare did not pay him his full entitlements. This was not disputed by the defendant. The Comcare payments do not therefore reflect the total amount lost by Mr Chugha.
During the course of submissions a number of matters were agreed.
1.Mr Chugha will continue to receive payments of compensation at the rate of $588.48 gross pursuant to the Safety Rehabilitation and Compensation Act.[45]
2.The current gross salary of Mr Chugha is $1321.50 and $1021.50 net.
3.Pursuant to s 48(4) of the Safety Rehabilitation and Compensation Act upon recovery of damages his entitlements cease.
4.That the weekly payments of compensation made pursuant to that Act are not a true measure of his loss. His payments are approximately 80 percent of his entitlements.
5.From the date of submissions to the date of judgment his loss is $762.48 per week. This sum reflects the amount per week he receives from Comcare and has to be repaid (gross) and also the (approximate) 20 percent differential (net).
6.From the date of judgment into the future, if he continues to work 15 hours per week his net weekly loss is $541.05.
7.His net hourly rate is $27.80.
[45] T 673.
I acknowledge that whilst Mr James agreed those figures on behalf of the defendant, he made it clear that the defendant did not resile from the earlier arguments that significant discount should be made to any calculations based on those figures.
First the defendant argued that Mr Chugha had not worked to his capacity. It was submitted that there was “conscious embellishment” of his symptoms and he therefore was capable of working more hours than he did. For the reasons already articulated I have found that there was no conscious embellishment and I therefore reject that argument.
Secondly, it was submitted on behalf of the defendant that the past loss of earning capacity claim should be discounted significantly to allow for the fact that Mr Chugha would have developed symptoms particularly neck symptoms due to his underlying degenerative condition and unrelated to the motor vehicle accident and that such symptoms would have impacted on his work capacity.
As already articulated I accept that Mr Chugha had underlying degenerative changes. However, as I have already stated, the medical evidence, on balance, does not support the proposition that up to the date of judgment any such symptoms would have impacted significantly on his capacity to work. Although there may have been some minor incapacity relating to his physical injuries it is largely his psychiatric condition that contributes to his incapacity. I generally reject the argument although I accept some small discount should be made to reflect that possibility.
Mr Possingham relied upon Exhibit P12. Mr James, as previously discussed, did not suggest the figures were inaccurate.
I accept the figures in Exhibit P12 as the starting point to calculate damages for past loss of earning capacity.
Exhibit P12 establishes that, as at 7 August 2008 the amount paid by Comcare to Mr Chugha by way of compensation for incapacity was $160,891.24. This is a gross amount and is repayable in full upon receipt of a damages award. Subject to the question of contingencies Mr Chugha is entitled to be compensated on a “gross” basis in relation to this amount.
In addition Mr Chugha has suffered approximately a 20 percent loss of wages over that same period of time, as Comcare did not have an obligation to pay his full wage entitlement. As at 22 August 2008, the 20 percent loss is $174 per week net.
Mr Chugha is entitled to, subject to the question of contingencies that difference between what he would have earned and what he has actually earned (received) by way of incapacity payments. The accident occurred on 13 December 2001. He almost immediately received Comcare payments and returned to work on a part-time basis relatively quickly. The number of hours worked varied but of more recent times became regularly three hours per day. It was, from time to time, more than that (hence his differential was a lesser amount). It was submitted that up to around August 2008 his net loss was around $40,000. Whilst not necessarily agreeing with that figure, Mr James did not seriously quarrel with the calculation. As previously mentioned he argued that any such figure should be subject to significant reduction to allow for contingencies.
I accept that $40,000 is Mr Chugha’s approximate loss (on a net basis as there is no liability to repay the amount) up to 22 August 2008.
Since 22 August 2008 the agreed weekly loss, including payments from Comcare on a gross basis and the 20 percent loss on a net basis, is $762.48. I allow $39,000 for the period of time from 22 August 2008 to the date of judgment. That must be added to the previous two figures.
Comcare payments to 7/8/08 160,891.24 Differential 40,000.00 Loss since 7/8/08 39,000.00 $239,891.24
The starting figure in terms of actual loss is $239,891.24.
Mr Possingham submitted that I should make no allowance for contingencies. I reject that submission. In my view the evidence does establish that there was a possibility, although not a strong possibility, that he may have developed some symptoms due to his pre-existing degenerative changes that may have affected his work capacity. It is not possible to be precise. Mr Chugha is not entitled to his first week loss of wages. I allow $215,000 under this head of damage.
Future loss of earning capacity
Mr Chugha currently works three hours per day. I accept the evidence of Dr Davis that the finalisation of litigation, by itself, is not going to provide a cure for his Pain Disorder. It will however remove one stressor from his life.
The Pain Disorder diagnosis means an acceptance of a gap between the degree of physical disability as assessed by examinations and investigations and the description of the symptoms by the patient and the disability which stems from it.
The medical practitioners all accepted that the Pain Disorder suffered by Mr Chugha was impacting on his work capacity. Opinions as to what his capacity would be if the Pain Disorder was not present differed. Mr Morrison thought he would be capable of full-time work. Dr Dundas was of the view that he could work up to six hours a day. Mr Vrodos did not specify a particular work restriction relating to his physical injuries but I infer from the whole of his evidence that there was likely to be one. I find that the major problem affecting his capacity to work is the Pain Disorder. If that was not present he would be capable of working, as at the date of trial, close to full hours if not full hours.
The medical evidence also accepted that from a physical point of view there was unlikely to be any improvement. Improvement will only come from Mr Chugha’s psychiatric condition improving or resolving.
Dr Davis was of the view that removal of the role of Comcare would assist Mr Chugha respond positively to psychotherapy. This, argued Dr Davis, would enable his confidence to improve and assist him to push through the pain barriers and increase his physical and psychological fitness.[46]
[46] T 480.
Dr Davis did not see Mr Chugha getting back to work in the foreseeable future. By that he meant “for the next 5 years”.[47] He thought ideally Mr Chugha would benefit from a graduated return to work.
[47] T 502.
I accept the evidence of Dr Davis. Mr Chugha has clearly formed a good rapport with Dr Davis and will accept his advice about undergoing further treatment.
I find that after judgment in this case and with the appropriate treatment from Dr Davis there will be a gradual improvement in Mr Chugha’s psychiatric condition. It is likely he will have the capacity to perform more hours per day at work. I find that his employer will allow him to gradually return to more hours per week. I accept Ms Russell’s evidence that the CRS has a policy to assist injured people whilst at work. Their treatment of Mr Chugha to date is evidence that they attempt to comply with that policy. Further Ms Russell stated that if Mr Chugha was unable to continue in his job as a Rehabilitation Consultant his status as a Commonwealth Public Servant would enable him to be re-employed elsewhere. It is highly unlikely therefore that Mr Chugha will lose his employment.
I find on balance that it is likely that Mr Chugha will gradually increase his hours and by about five years he will have returned to full-time work or close to full-time work. Of course I cannot be certain of that and some allowance must be made for the possibility that the treatment proffered by Dr Davis will not be as effective as he hopes. I accept that his prospects of further promotion may have been affected by his inability to date to work full-time.
Allowance must also be made for the fact that any continuing incapacity (from a physical point of view) may in some part have occurred in any event due to his pre-existing degenerative changes.
As mentioned, in looking at future earnings it was agreed that if Mr Chugha remained working at three hours per day he would suffer a wage loss of $541.05 net per week. His net hourly rate as agreed is $27.80. I accept that he would have worked until age 65.
Mr Chugha is now 50 years of age. Exhibit P25 establishes that as at May 2008 the future payment of $1 per week until age 65 is $559.00.
Assuming that Mr Chugha never improved and he remained on three hours per week his loss would be $541.05 x $559.00 = $302,446 to age 65.
However as stated, I find it is likely that he will in due course return to full-time work or something close to it. I also factor into my calculations the possibility that his condition does not improve and the fact that he may have lost some capacity for work in any event.
It is not possible to be precise. The multiplier would be slightly lower as at judgment date. He may have lost the opportunity for promotion. It is remotely possible that his condition may deteriorate. He may improve more quickly. Contingencies are of course both positive and negative.
I allow $125,000 for future loss of earning capacity.
Loss of superannuation
I accept the evidence of Mr Chugha that upon retirement he would choose a pension rather than a lump sum. I accept the report of Brett & Watson dated 16 May 2008 relating to his prospective retirement and the present value of the loss of superannuation.[48] The report states that the loss calculated in relation to a “Pension” of $89,000 is based on a “total loss of future superannuation. Should a partial loss be required, it would be reasonable to apply the percentage loss to the above amounts.”
[48] Exhibit P25A.
It is not possible to be precise. I allow the sum of $35,000 under this head of damage.
Gratuitous Services
Both Mr and Mrs Chugha gave evidence in relation to this aspect. In general terms I accept their evidence. In addition I have the reports from Ms Anne Morgan[49] and Mr Ross Tippett.[50] Whilst both authors deal with an assessment of physical capacity Ms Morgan’s dealt more specifically with home and Mr Tippett’s with work. I accept in general the assessment of Ms Morgan when taken in conjunction with the evidence of Mr and Mrs Chugha.
[49] Exhibit P22.
[50] Exhibit D11.
Ms Morgan performed two assessments, one on 20 July 2006 and more recently on 7 April 2008 when she performed a home assessment.
I note the following matters from Ms Morgan’s report.
1.Her visit and assessment was a subjective assessment of his needs as it was not possible to measure objectively an individual’s level of discomfort.
2.Mr Chugha demonstrated perceived high level of pain and self-limited during testing. As a result the testing was not able to clarify his abilities in a definitive way.
3.Whilst Ms Morgan accepted some demonstrated clinical pathology in his back and neck which would result in him being unable to undertake heavier chores, she was of the opinion that he did have some capacity to do, on a graded self paced basis, some of the lighter activities such as getting meals, folding washing, ironing and light cleaning.
I note that in forming her opinions Ms Morgan had the benefit of the report of Dr Davis dated 26 March 2008.
In relation to the question of past gratuitous services there is the further matter that at least some of the services were provided by his mother-in-law and some by his sister-in-law. Also a niece has recently done some work. Further some paid assistance has been provided by Comcare.
Mrs Chugha stated that she does a lot of the domestic chores. If she cannot do it she just leaves it. Currently she is working most days of the week at her shop.
I accept the evidence of Mr and Mrs Chugha that the instructions on Mr Chugha’s ability to perform domestic chores occurred as a result of the accident and arose almost immediately after the accident. It is clear from the evidence that Mr Chugha prior to the accident was a keen gardener and took pride in his house. Certainly up to the time of trial the combination of his psychological and psychiatric injuries have prevented him from attending to those duties.
I have considered the opinion of Ms Morgan concerning the capacity of Mr Chugha to perform the lighter duties. In light of Dr Davis’ opinion I find that the Pain Disorder has impacted on the capacity of Mr Chugha to perform even those lighter duties.
As the accident occurred on 13 December 2001, s 35A of the Wrongs Act (as it was then known) is applicable. This now repealed section applies to all accidents occurring before 1 December 2002.
I am satisfied (and indeed it was accepted by the defendant) that Mr Chugha’s ability to lead a normal life was significantly impaired for a period in excess of seven days.
Pursuant to s 35A(1)(g) no damages shall be awarded for gratuitous services except services provided by a parent, spouse or child of the injured person.
I am satisfied pursuant to s 35A(2) that notwithstanding the limits imposed by s 35A(1)(h) the gratuitous services rendered by Mrs Chugha has saved Mr Chugha the cost of engaging another person to provide those services. That will continue into the future.
I note that Comcare paid for household assistance at the rate of $40 per week from 15 December 2003 to 3 January 2007.[51]
[51] Exhibit P12.
When considering the evidence in particular Ms Morgan’s report as to what is reasonably “needed” by Mr Chugha I bear in mind that some of the tasks have simply not been undertaken. For example there is no evidence that Mrs Chugha cleaned the motor vehicle or performed home maintenance. Her evidence was confined to what could be described as “household” tasks. Even then Mrs Chugha simply did not have time to do some tasks.
The evidence led by Mr Chugha as to what gratuitous services had been provided was general in nature. I intend no criticism by that observation, as any attempt at specificity would almost inevitably smack of reconstruction. However it does mean that a court can only award damages under this head of damage in a general way.
Bearing in mind all the factors discussed I allow $20,000 under this head of damage.
Future gratuitous services
I do not intend to repeat the findings I have made earlier in relation to future loss of earning capacity. In my view, over time, there will be significant improvement in his Pain Disorder. The need for some of the gratuitous services will diminish over time. It is likely that after about five years he will be capable of most if not all of the “light” household tasks described by Ms Morgan. However, his physical injuries will preclude him from the heavier tasks. For example his physical injuries will preclude him from performing the heavier gardening activities. I bear in mind however that he may well have been restricted in that type of activity in any event.
I note from Exhibit P25 that as at May 2008 the current value of a future payment of $1 to Mr Chugha for the whole of life is $843.
When assessing damages I bear in mind that there are both positive and negative contingencies.
I allow $25,000 under this head of damage.
Past medical, pharmaceutical and other expenses
As mentioned Mr Chugha received payments from Comcare for his loss of income (incapacity payments). In addition Comcare have paid his medical expenses, pharmaceutical expenses and also some of his household and gardening assistance expenses.
The expenses paid by Comcare are set out in Exhibit P12.
Mr James accepted that Exhibit P12 set out the amounts paid by Comcare. He did not dispute that the cost of the individual items were reasonable. However he submitted that Mr Chugha had not proved that all of the expenses were necessary or reasonably incurred.
As part of his submissions he put before me two schedules, which “broke down” the treatment costs (including all services) between 1 May 2004 and 21 April 2008 and two further schedules for the period 1 May 2007 to 21 April 2008.
Mr James submitted that the claim for past physiotherapy expenses should be significantly reduced as Mr Chugha himself claimed little benefit from it.
In general terms I agree with Mr James. Whilst some allowance for physiotherapy treatment should be made the evidence does not support it all being reasonably incurred. It provided little or no benefit.
The evidence also does not support the prescription of the drug Somac as being related to the motor vehicle accident.
The parties have also agreed items totalling $4,500 should not be allowed (eg for Australian Magnetic Therapy). No evidence was led to support the efficacy of massage treatment. Mr James also submitted that some allowance should be made for the fact that he may have developed symptoms by this time in any event related to his pre-existing condition. Consistent with my earlier findings any deduction for that possibility would be minor.
Exhibit P12 establishes that as at 7 August 2008 the amounts paid on behalf of Mr Chugha for “out of pocket expenses” totals $60,927.62. I accept that since that time to the date of judgment, it is likely that Mr Chugha continued to incur some medical and chemist expenses. I note for example that he would most likely have continued to incur significant chemist expenses (eg Gabapentin and antidepressant medication) as well as expenses for consultations with Dr Davis and Dr Mutton (amongst others).
Once again I can only adopt a general approach to the assessment of damages under this head.
I allow $50,000.
Future medical and chemist expenses
Currently Mr Chugha takes antidepressant medication at a cost of approximately $33.50 a month. He takes Gabapentin for relief of pain from his physical injuries at a cost of $257.20 per month. A Norspan patch for pain relief costs approximately $31.30 per month. In addition he takes on an irregular basis Temazepam.
Mr Chugha stated he intended to continue with physiotherapy and hydrotherapy. Whilst some allowance should be made for occasional visits to the physiotherapist and some hydrotherapy such allowance should be modest.
I accept Dr Davis’ estimates regarding the need for ongoing regular psychiatric treatment for at least two years. After that time attendances should decrease. Some allowance should also be made for consultations with Dr Mutton, Mr Vrodos and possibly Dr Dundas.
In my view the need for medication is likely to decrease with time particularly his antidepressant medication. He will certainly require it for some time however. Once his Pain Disorder is treated it is likely that his need for pain relief will be diminished although he will still require some. Also, some of his pain relief would have been required due to the likely onset of symptoms due to his pre-existing condition. His reliance on Gabapentin is likely to be substantially reduced.
As to the need for a cervical fusion operation, I accept the costings as suggested by Mr Vrodos. Some allowance must be made for the possibility that he will need that procedure. However, in my view it is most unlikely that Mr Chugha will undertake such an operation without a serious deterioration in his condition. Of course he may have reached that position in any event due to his pre-existing condition. Any sum allowed for a future operation should be discounted to a current figure but I have not been provided with an actuarial calculation regarding that aspect. It would have been difficult to provide such a calculation without knowing my findings as to the likelihood of Mr Chugha undergoing such an operation and when it would be necessary to undertake it.
I allow $30,000 under this head of damage.
Non-economic loss 17 x 1650 28,050 Past loss of earning capacity 215,000 Future loss of earning capacity 125,000 Loss of Superannuation 35,000 Past gratuitous services 20,000 Future gratuitous services 25,000 Past medical and other expenses 50,000 Future medical and other expenses 30,000 Total $528,050
Claim for Loss of Consortium
Mrs Chugha is entitled to recover damages for loss or impaired comfort, society and fellowship provided by Mr Chugha, which is lost or impaired by reason of the negligence of the defendant. The compensation is confined to “material or temporal loss capable of estimation in money”.[52] She is not to be compensated for her suffering or distress as a result of the injuries to Mr Chugha. Included in the loss is the deprivation of and/or diminution in the quality of sexual relations.
[52] Toohey v Hollier (1955) 92 CLR 618.
The injuries suffered by Mr Chugha, including his psychiatric condition, has had a significant impact on the relationship between him and his wife. I do not propose to traverse the evidence in any detail as the effect on Mr Chugha has already been discussed. The relationship became so strained that Mrs Chugha contacted Dr Mutton to inform her of Mr Chugha’s behaviour. There was a suggestion that in fact Mr Chugha may have pushed her. Whatever happened there was certainly conflict at home. This led in part to Dr Mutton referring Mr Chugha to a psychiatrist.
The psychiatric problems suffered by Mr Chugha have changed his personality and this has led to change in their relationship and it also has changed their sexual relationship. All of these problems have impaired the comfort, society and fellowship that was enjoyed before the accident.
Consistent with my earlier findings it is likely that there will be improvement in Mr Chugha’s psychiatric condition. It follows that there will be, on balance, an improvement in their relationship.
I award $10,000 to Mrs Chugha.
In relation to the first plaintiff interest has been agreed at $12,000.
There will be judgment for the first plaintiff in the sum of $528,050 and costs to be agreed or taxed.
There will be judgment for the second plaintiff in the sum of $10,000 with costs to be agreed or taxed.
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