| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CHURCHILL -v- BROWN & ANOR [2004] WADC 161 CORAM : YEATS DCJ HEARD : 3 & 4, 8-10 JUNE 2004 DELIVERED : 28 JULY 2004 FILE NO/S : CIV 1594 of 2002 BETWEEN : DAVID LESLIE CHURCHILL Plaintiff
AND
PHILLIP JAMES BROWN
First Defendant
ANTHONY JOHN WHITE
Second Defendant
Catchwords: Damages - Motor vehicle accident - Liability admitted - Two previous accidents in course of employment for which compensation was awarded - Assessment of damages suffered by an already injured plaintiff - General damages $62,250 - Past loss of earning capacity $20,250 - Future loss of earning capacity $244,350
Legislation: Motor Vehicle (Third Party Insurance) Act 1943, s 3C, s 3D, s 5
Workers' Compensation and Rehabilitation Act 1981, s 61
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Result:
Judgment for plaintiff
Total award assessed at $430,234 Representation:
Counsel:
Plaintiff : Mr D M Bruns
First Defendant : Mr K N Allan
Second Defendant : Mr K N Allan
Solicitors:
Plaintiff : Separovic & Associates
First Defendant : K N Allan
Second Defendant : K N Allan
Case(s) referred to in judgment(s):
Andjelic v Marsland (1996) 186 CLR 20
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Fitzgerald v Penn (1954) 91 CLR 268
Graham v Baker (1961) 106 CLR 340
Griffiths v Kerkemeyer (1977) 139 CLR 161
Husher v Husher (1999) 197 CLR 138
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McCann v Scottish Co-operative Laundry Association Ltd [1936] 1 All ER 475
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Murrell v Healy (2001) 4 All ER 345
Southgate v Waterford (1990) 21 NSWLR 427
Tran v Claydon [2003] WASCA 318
Van Gervan v Fenton (1992) 175 CLR 327
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Bowen v Tutte (1990) A Tort Rep 81043
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Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Fabo v Craig, unreported; DCt of WA; Library No 5023; 12 August 1996
Kars v Kars (1996) 187 CLR 354
Keen v MacKay [1999] WASCA 193
Redding v Lee (1983) 151 CLR 117
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
State Government Insurance Commission v Toomath, unreported; FCt SCt of WA; Library No 960218; 24 April 1996
Thomas v O'Shea (1989) A Tort Rep 80251
Villasevil v Pickering [2001] WASCA 143
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1 YEATS DCJ: The plaintiff claims damages for injuries he suffered in a motor vehicle accident on 8 March 1999. Liability is admitted. During 1998 he had been seriously injured in two work accidents. The plaintiff settled his claim against his employer for those accidents and I am now required to assess damages arising from the motor vehicle accident without any knowledge of the amount he has already been compensated for his work accidents.
2 The plaintiff had a very bad few years in 1998 and 1999 and things became much worse for him in 2000. While working as a trucking expediter for Fremantle Steel Fabricators ("Fremantle Steel") he fell off the back of a truck on 12 June 1998. His right knee was badly injured in that accident but he was able to return to work without losing any time and continued in his job as an expediter despite pain and weakness in the right knee. Disaster struck again in December 1998 again while he was working for Fremantle Steel when his right knee gave way while he was climbing a steel frame and he fell three metres landing on his right knee and his back. Even after that accident he kept working. 3 Then on 8 March 1999 the plaintiff was involved in a seven car motor vehicle accident for which he was entirely without fault. He stopped when a number of vehicles stopped in front of him only to be hit from behind by another car. He turned, grasping the steering wheel and looking to the right, to see where that vehicle had hit his car when another vehicle, moving much faster, slammed into his vehicle from behind causing him neck and left shoulder injuries. His claim for damages arises from that motor vehicle accident. 4 The plaintiff's troubles did not end there. His employment with Fremantle Steel was terminated in April 1999. He found another job two weeks later with Ultrafloor and he managed to keep working right through 1999 by taking Panadeine and anti-inflammatories to treat all of his symptoms from all of his accidents. He was under the care of Mr Hari Goonatillake, an orthopaedic surgeon, both for his continuing right knee problems and for his neck and left shoulder symptoms. On 21 December 1999 he underwent surgery on his left shoulder which was successful. Within six weeks his left shoulder pain had improved and he had regained a full range of movement. But that turned out to be the only successful treatment the plaintiff ever received for any of his injuries. His right knee continued to trouble him when he returned to work in mid-January 2000 and on 31 January he took unpaid leave from his job at Ultrafloor so that he could have surgery on his right knee. That is the last time the plaintiff
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ever worked. His injuries and the treatment of them overtook him. During March 2000 Ultrafloor terminated his employment. 5 On 14 February 2000 Mr Goonatillake performed a right knee reconstruction but things went terribly wrong after that surgery. He was in plaster for six weeks but his pain was not alleviated and some three months later, in May 2000, x-rays revealed a fractured tibia so that his right leg was again immobilised in a splint for six weeks. During that period he developed a staph infection in his right leg. 6 During 2000 the plaintiff's problems began to compound. During his prolonged recovery period before his fractured tibia was diagnosed, he was told his pain symptoms were all in his head and, as a consequence, he became depressed so that by August 2002 he was diagnosed with major depression. From the time of the motor vehicle accident the plaintiff suffered increasing severe headaches. They were debilitating migrainous or tension headaches initially occurring twice a week during 2000 but, by the time of trial, occurring five or six times each week. The headaches were so severe as to affect his vision and make him nauseous. He treated them with a "cocktail" of powerful drugs including up to 12 Panadeine Forte tablets each day, Neulactil, a tranquilliser he used to "knock himself out" and Venlafaxine and later Cipramil (anti-depressants for his depression). Because he was unable to exercise he gained 20 kilograms in weight which he was unable to lose and developed Type 2 diabetes. 7 On 12 November 2003 the plaintiff settled his claim against his former employer Fremantle Steel but was unable to settle his claim arising from the injuries he suffered in the motor vehicle accident. That is the claim that now comes before me. My task is to assess damages for his injuries arising from the motor vehicle accident on 8 March 1999. The approach I will take to this problem is well set out by the Court of Appeal in Murrell v Healy (2001) 4 All ER 345 at [22]. "The question for the court assessing the damages against the second tortfeasor must be: what damage was suffered as the result of that tort to an already injured victim? If the answer to that was that Mr Murrell would in fact have been able to work following the first accident, but was prevented from working by the second accident, that would have to be the basis on which the damages should be assessed. … But in answering the critical question, it would seem to me that the court should start by asking in a much more focused way than the judge did, not only whether Mr Murrell would have been fit for light work but
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would in fact have found light work after the first accident if the second accident had not taken place. Indeed the question to be posed included whether, even if he would have found light work for some period, he would always have been in light work." 8 In this case the injuries the plaintiff suffered in the accidents are, for the most part, distinct injuries. In the first accident while working for Fremantle Steel he injured his right knee and lower back. In the motor vehicle accident he injured his neck and his left shoulder. He claims he aggravated his lower back but that is disputed. It will be necessary also to consider his weight gain, his diabetes and his depression and to determine what role, if any, the motor vehicle accident played in the aetiology of those incapacities. 9 I have not been asked to apportion damages between the accidents at Fremantle Steel and the subsequent motor vehicle accident. I have no information about the basis on which the plaintiff settled his claim in the first accident. My task is to carefully assess the damage the plaintiff suffered as a result of the motor vehicle accident taking the plaintiff as an already injured plaintiff at the time of that accident.
History 10 The plaintiff was born in England on 21 August 1955 and came to Australia in 1996 when the family settled in Sydney. He left school at age 15 and worked as an apprentice carpenter and joiner. When he completed his apprenticeship he came to Western Australia and worked in Myers for four or five years as a despatch hand and truck driver. After that he started at industrial galvanisers in despatch and worked his way up to production supervisor/manager. From there he worked with BCG as a fleet controller before becoming an expediter for Fremantle Steel. He was able to do that job because he could read building plans. The plaintiff explained that he received a list of the steel wanted by the builders and he ensured that the steel was loaded on the truck in the appropriate order so that the last piece needed on the construction site was loaded on the truck first. 11 The plaintiff spent about a year working with his wife in a carvery business but it was not successful. From there he was employed by BGC as a transport controller and in June 1998 at the time of the first accident he was 43 years old and working for Fremantle Steel. He injured his right knee and back on Friday but had no time off from work; he returned to work on Monday. Unfortunately, the knee slowly got worse over the next
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six months. He had surgery on the knee to repair cartilage and was back at work a month later. Also in December 1998 his knee gave way and he fell while climbing a steel frame and aggravated his knee injury and increased his low back pain.
The motor vehicle accident 12 On 8 March 1999, the date of the motor vehicle accident the plaintiff's right knee was still strapped and he was still experiencing low back pain. The motor vehicle accident happened when four cars stopped in front of the plaintiff and he managed to stop but was hit from behind by another vehicle. He was bracing with his left arm on the steering wheel and turning his head to the right to look back when he was hit again with much more force by another car. As a result of that impact his car was a write-off and he sustained a flexor extension injury to the spine (Dr Goodheart, consultant neurologist, exhibit 10). The plaintiff suffered immediate neck, left shoulder and lower back discomfort after the accident. He banged his head on the door pillar. He hit his right knee causing some swelling. 13 The plaintiff was given a lift home from the accident site and his son arranged for a neighbour to take him to the Tandara Medical Group where Dr De Galvez (not his usual doctor) saw him and diagnosed a soft tissue whiplash type injury to the neck. After that he was under the care of his own doctor, Antoine Saverimutto, a general practitioner. The plaintiff first saw Dr Saverimutto on 6 April 1998. From that time he complained of persisting pain in the interscapular region, pain in his left shoulder and headaches. On 4 August 1999 Dr Saverimutto referred the plaintiff to Mr Goonatillake the orthopaedic surgeon in relation to his shoulder pain. The plaintiff was already under Mr Goonatillake's care in relation to his right knee problems. 14 Despite his pain the plaintiff returned to work after the motor vehicle accident taking only one day off. He was treated with painkillers and anti-inflammatories for his injuries in the motor vehicle accident – the same treatment he was continuing to receive for his knee injury. After the motor vehicle accident, however, his use of painkillers increased. He became slower at his work as an expediter and in April 1999 he was retrenched from Fremantle Steel but, within two weeks was back in full time work with Ultrafloor as a transport controller and purchaser. His duties were lighter and he worked shorter hours than he had worked for Fremantle Steel but he was still limited in what he could do. He found he could not drive the company vehicle because he could not turn his neck;
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nor could he change gears because of left shoulder pain. Because of the continuing left shoulder pain Mr Goonatillake, the orthopaedic surgeon, operated on his left shoulder on 21 December 1999. Surgery was needed to correct an impingement syndrome, a superior anterior-labral tear and to correct an articular cartilage lesion. To his credit, the plaintiff arranged his shoulder surgery and recovery during the Christmas holiday break and returned to his work with Ultrafloor in mid-January. Mr Goonatillake reported that the plaintiff recovered well from the shoulder surgery (Medical Reports p 18) but he was only able to remain at work with Ultrafloor for two weeks because his pain and instability in his right knee worsened so that he took leave without pay in order to have knee surgery. I have already summarised the problems that emerged and began to overwhelm the plaintiff during 2000 following that knee surgery and I have already noted that the plaintiff never returned to his work at Ultrafloor. In March 2000 Ultrafloor terminated his employment. 15 Because his first accident involving his right knee was suffered in the course of his employment, the plaintiff received weekly workers' compensation payments of $570 gross/$450 net per week until 12 November 2003 when that claim was settled. I accept the workers' compensation insurers are obliged to continue those payments despite a supervening event such as the motor vehicle accident (s 61 Workers' Compensation and Rehabilitation Act 1981; McCann v Scottish Co-operative Laundry Association Ltd [1936] 1 All ER 475). The continuation of those weekly payments does not mean that the plaintiff's loss of earning capacity during that period is entirely attributable to the first accident. I must determine the extent to which the motor vehicle accident caused or contributed to the plaintiff's past and future loss of earning capacity and interfered with his enjoyment of life. The plaintiff's case is that he would have been fit to perform office duties as an assistant transport manager or similar from about July 2001 had it not been for the injuries he sustained in the motor vehicle accident – particularly the severe headaches.
Headaches 16 There was considerable evidence about the headaches suffered by the plaintiff. I accept that the onset of these headaches was the motor vehicle accident and the whiplash type injury suffered by the plaintiff. Although the plaintiff had had some migraine headaches prior to the motor vehicle accident the effect of that accident was to increase the severity of those headaches and to increase the occurrence of such headaches. The plaintiff
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complained of headache from the first visit with his general practitioner Dr Saverimutto in April 1999 (Medical Reports p 44). By 28 February 2000 the plaintiff had been referred to Dr Goodheart, a neurologist for treatment of the recurrent headache. At that time the headaches were occurring about twice weekly. I accept Dr Goodheart's opinion that the headaches were caused by his neck injury (Medical Reports pp 65 and 68). I accept Dr Goodheart's opinion that the severity of the symptoms experienced by the plaintiff while suffering a headache significantly impacted on his work capacity because he had to stop work, take medication and rest (Medical Reports p 70). 17 When Dr Goodheart reviewed the plaintiff in May 2004 the headaches had increased in frequency, duration and intensity. The plaintiff now suffered these debilitating headaches five or six times each week. The headache was constant or throbbing in nature often associated with nausea or photophobia, visual disturbance or flashing lights (Medical Reports p 71). During trial the plaintiff suffered a particularly bad headache while giving evidence and was unable to read documents handed to him by the defendant's counsel. 18 Another consultant neurologist, Professor Frank Mastaglia saw the plaintiff on two occasions – 22 August 2002 and 29 January 2004. Professor Mastaglia confirmed that the plaintiff suffered tension – vascular headaches – both migraine and tension headaches, both caused by his neck injury in the motor vehicle accident. Between those two occasions when Professor Mastaglia reviewed the plaintiff his headaches and neck pain worsened in the sense that he was having more pain so that Professor Mastaglia changed his assessment in relation to the permanent residual disability related to his neck injury and headaches from 10 per cent in 2002 to 40 per cent in 2004. 19 Another specialist who treated the plaintiff for his headaches was Dr Michael Kent, a consultant in pain management who saw the plaintiff for the first time on 30 July 2003. The plaintiff initially responded to cervical facet joint injections at C3/4 and C4/5 but within four or five days his full symptoms returned. Dr Kent advised that the headaches and neck pain were refractory to treatment (Medical Reports p 122).
Shoulder injury 20 There is no dispute that the plaintiff's shoulder injury was caused by the motor vehicle accident. It was a very painful and debilitating injury but the plaintiff was able to continue in employment until his shoulder
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surgery in December 1999. That surgery was successful and he returned to work. The shoulder injury did not cause any further loss of earning capacity. The plaintiff has, however, been left with left shoulder and neck pain and with weakness in his left arm that prevents him from driving a motor vehicle and impacts on his quality of life and creates a need for gratuitous services.
Low back injury 21 There is no doubt that the plaintiff injured his back in the two work accidents. This is acknowledged in the report of Mr Soo Tee Lim, orthopaedic surgeon (Medical Reports pp 107 – 108): "Low back pain had been felt ever since the first accident in June 1998. It was not severe then. After the second accident, following the fall in December 1998 his low back was said to be aggravated. The low back pain was not aggravated following the motor vehicle accident in March 1999." 22 Mr Lim, however, qualified his opinion to some extent in cross-examination when he said that the motor vehicle accident did not "immediately" aggravate the low back pain (T131). Mr Lim of course did not examine the plaintiff until 27 May 2003. His opinion was based on reports he had read. 23 There is no mention of low back pain in exhibit 1, Dr Burkett's report (Medical Reports p 134) about the plaintiff's initial examination on the day of the motor vehicle accident. The plaintiff's treating general practitioner, Dr Saverimutto, saw him a few weeks later on 6 April 1999 and reported (Medical Reports pp 42, 43) that he complained of pain in the interscapular region, thoracic spine and left shoulder/upper arm. Again there was no mention of low back pain. 24 Radiological examination of the plaintiff's lumbo-sacral spine confirmed the presence of degenerative disc disease of some substance at the L4/5 level (Dr John Kingsley Ker, rehabilitation specialist, Medical Reports p 99). The plaintiff said in evidence that he suffered injury to his back in the two work accidents but he also maintained that he suffered aggravation of his back injury during the motor vehicle accident. 25 While there is little medical evidence to support the plaintiff's evidence about this, I formed a very positive view of the plaintiff's credibility. He was a man committed to his work who initially tried very
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hard to stay in employment. He did not appear to me to be a man who overstated his symptoms. He tried to get on with his life. When account is taken of his awkward position in the motor vehicle accident at the time of the crash, the severity of the crash, and the severity of his neck and shoulder injuries, I am satisfied some aggravation of his low back would have been inevitable. I do not find it surprising that he did not complain of that injury but complained of the most severe injuries to his neck and shoulder. And, of course, he was already taking anti-inflammatories and painkillers for his knee injury at the time of the motor vehicle accident. Those medications would undoubtedly have masked immediate low back pain suffered in the motor vehicle accident. 26 For these reasons I accept the plaintiff's evidence that he did suffer low back injury in the motor vehicle accident. At the same time I accept that the work accidents and the degenerative disc disease were the primary causes of his low back pain. But I am satisfied that the motor vehicle accident contributed to that injury. Causation is essentially a question of fact to be resolved as a matter of common sense on the balance of probabilities. It is sufficient if the defendant's wrongful acts caused or contributed to the harm for which the plaintiff seeks damages (Bennett v Minister of Community Welfare (1992) 176 CLR 408 per Gaudron J at 412 – 413, McHugh J at 428; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 515 per Mason CH; Fitzgerald v Penn (1954) 91 CLR 268 at 277 – 278 per Dixon CJ, Fullagar and Kitto JJ).
Use of schedules 27 The defendant tendered into evidence (exhibits 3 and 4) copies of the plaintiff's schedules of damages prepared for the pre-trial conference for this case and for Action No 1652 of 2002, the plaintiff's claim for damages for his work accidents. As I understand it both cases were considered at a pre-trial conference on 13 November 2003. Action No 1652 of 2002 against Fremantle Steel settled on that day. This action did not settle. The defendant tendered the schedules during cross-examination of the plaintiff and suggested his claim was the same in each case and suggested that his claim for the motor vehicle accident therefore had no credibility. 28 The defendant relies for this line of cross-examination on the recent decision of the Full Court in Tran v Claydon [2003] WASCA 318 where McClure J at [51] found no error in principle in the trial Judge's approach in drawing an adverse inference against a plaintiff based on schedules of
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damages produced by the plaintiff's solicitor. Johnson J at [58] and [59] did not entirely concur. She said: "It is not in every case where the evidence adduced at trial falls short of that required to prove the quantum claimed that an inference adverse to a plaintiff should be drawn. In my view, such an inference should only be drawn in cases where there is a marked and unexplained disparity between the evidence and the quantum set out in the schedules. When preparing schedules of damages, solicitors should be constantly mindful of the fact that they are acting as the agent of the client and it is the client who will bear the consequences of any attempt to claim damages for which there is no prima facie evidentiary basis. Schedules should not be in the nature of an 'ambit claim'. " 29 In Tran's case the court was not considering schedules of damages prepared for a case other than the one before the Court. The rule in Tran's case applies with respect to the schedule of damages prepared by the plaintiff's solicitor for the trial Judge for use in the trial. 30 But there is an even greater objection to the tendering at trial of schedules prepared for a pre-trial conference. Order 5 r 6 of the District Court Rules makes it clear that negotiations at a pre-trial conference are to be without prejudice. For that reason the schedules exhibits 3 and 4 are, in my opinion, not admissible at trial. It was improper for the schedules to be tendered. I will not consider them further or take any account of the cross-examination based upon them.
Loss of earning capacity 31 In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings. An injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. (Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 16 per McHugh J. 32 Since at least Graham v Baker (1961) 106 CLR 340 it has been recognised that it is convenient to assess an injured plaintiff's economic
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loss by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial to attempt some assessment of his future loss. (Husher v Husher (1999) 197 CLR 138 at 143.) The evidence at trial satisfies me that the plaintiff's knee injury arising from his work accident and the complications of his knee surgery prevented him from returning to work, even to light duties, until January 2001 when he was declared fit for light duties by Dr Duck. Ms Nussbaum's reports (exhibit 18) show that prior to this time, in November 2000, the plaintiff managed to successfully complete a three-day "Train the Trainer" course despite enduring coccygeal pain by the end of the day. At this time the plaintiff was eager to return to work and he gave it his best effort. 33 The plaintiff had impressive work experience, training and skills and Ms Nussbaum tried to place him in an appropriate work trial. He commenced a work trial as operations assistant with Crown Locations in Kewdale in March 2001. His employer was pleased with his efforts but the position was not challenging for the plaintiff. The plaintiff suffered considerable knee pain and low back pain during the work trial but he managed to complete four hours work each day until the work trial ended on 10 May 2001. 34 The plaintiff was also experiencing headaches during this time but during 2001 I am satisfied it was his right knee that rendered him again totally unfit for work. That happened on 6 August 2001 when he completed four hours on his first day of another work trial, this time with WridgWays Removalists in Kewdale when he suffered a fall at home after is right knee gave way. The increased knee and back pain prevented him from continuing with that work placement and Dr Duck declared him totally unfit for any further work. 35 Dr Ker, the consultant physician in rehabilitation medicine, saw the plaintiff in 2002 and again in 2004. In 2002 Dr Ker found that 90 per cent of work incapacity was attributable to his right knee injury but that changed over the years. In 2004 Dr Ker found the plaintiff's intermittent and intrusive headache and increased low back pain now significantly impacted on his capacity to work and, in the total picture, the knee injury was less than the 90 per cent. In his 2004 report Dr Ker said (Medical Reports p 103): "At this time, I see little prospect of your client returning to any form of gainful work without resolution of his headache and
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neck pain symptoms. I am of the view that when headache is present, it would not be possible for this man to undertake work of any kind. … Clearly when headache is present, it constitutes for your client a very substantive disability." 36 Dr Ker's evidence is supported by that of Dr Kent a pain management specialist who thought that the plaintiff's neck pain and headache were the most significant symptoms the plaintiff complained of in 2003 when he visited Dr Kent (Medical Reports p 115). Dr Kent's opinion was that the debilitating headaches in particular rendered the plaintiff unemployable when he assessed him in February 2004 (Medical Reports p127). 37 The plaintiff gave evidence that at the moment his headaches are what trouble him the most and stop him from working. What I need to consider is the extent to which those headaches brought on by the motor vehicle accident incapacitated the already injured plaintiff. That requires consideration of the extent to which the injuries suffered in the work accidents prevented the plaintiff from working. In that regard I found Dr Ker's evidence of considerable assistance. I am satisfied that until the end of 2002 the plaintiff's work capacity was 90 per cent attributable to the knee injury. But, since that time I am satisfied that the headaches have come to dominate. 38 On behalf of the plaintiff it is submitted that but for the injuries sustained in the motor vehicle accident the plaintiff would have been fit to perform office duties as an assistant transport manager or similar from July 2001 earning approximately $600 net per week. I do not accept that his work accident injuries had resolved by that date. It is contradicted by Ms Nussbaum's evidence of serious knee problems in August 2001 that ended his second work trial. By 2003 when Mr Lim treated him the most severe pain was his neck pain and headaches although he continued to suffer lesser low back pain and right knee pain. I am satisfied that by July 2003, were it not for the neck pain and headaches, the plaintiff would have been able to work as an assistant transport manager or similar. He was skilled and experienced in that sort of work and I am satisfied he could have managed it despite his continuing knee and low back pain. I am satisfied such employment would be primarily desk work but would allow the plaintiff to move about enough to cope with his low back pain. At the same time it would not have required him to move around so much as to aggravate his knee injury. From July 2003 I am satisfied it is the headaches that have entirely removed any capacity for such work and would now and in the future render him totally incapacitated.
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39 The defendant's case is that the severe limitations on the plaintiff's earning capacity were due to the knee injury. I accept the defendant's submission that the knee injury prevented the plaintiff from returning to his work at Ultrafloor and prevented him from working as an expediter at Fremantle Steel. But I do not accept the defendant's submission that his knee and low back pain would reduce his sitting tolerance to the extent that he could not do the work of an assistant transport manager as he had done at BGC. In that job he would work at a desk with a telephone and two-way radio but would be free to get up and move around. Mr Svilicich had spent some 14½ years in the transportation industry and worked as a operations assistant/payroll clerk and a fleet controller. Mr Svilicich said that for a sedentary role as a fleet controller controlling say, 11 pieces of equipment, somewhere between $45,000 and $50,000 is currently being paid. In 2001 when Mr Svilicich worked as a fleet controller he was paid $44,000 per annum. These are sedentary jobs in the transport industry for which the plaintiff is well qualified.
40 The defendant led evidence from Mr Roy William Reginald Mellor, the general manager of BGC Transport, who said that the plaintiff was dismissed from his employment as a transport controller in February 1998 due to unsatisfactory work performance. Under cross-examination it became apparent that Mr Mellor's testimony was based extensively on hearsay accounts that caused Mr Mellor to believe that the plaintiff had a bad telephone manner with customers and that he did not always get the bricks to the work sites on schedule. 41 In his evidence the plaintiff admitted he was sacked by BCG but he maintained it was because of office politics and he denied that he could not do that job. I accept the plaintiff's evidence about that. It is corroborated to some extent by the plaintiff's ability to subsequently gain employment at Fremantle Steel and at Ultrafloor in similar work. I do not find as the defendant suggests that the plaintiff is totally unsuitable for work as an assistant traffic controller. On the contrary, his experience and training qualify him for this sort of work. 42 As the plaintiff received workers' compensation payments until that claim was settled on 13 November 2003 I award damages of $150 net per week for 19 weeks from 1 July 2003 until 13 November 2003 = $2,850. From 13 November 2003 to 3 June 2004 (29 weeks) I award the full $600 net per week - $17,400. Therefore past loss of earning capacity is assessed at $20,250.
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43 Interest on that amount is calculated $20,250 x 3 per cent x 2.9 years = $1,761.75.
Future loss of earning capacity 44 The plaintiff's headaches have not responded to treatment by neurologists or pain specialists and I am satisfied they will continue to trouble him for the rest of his working life to age 65. The starting point for calculation is $600 net per week to age 65 (multiplier 543) = $325,800. But that figure needs to be substantially discounted because of the plaintiff's serious degenerative disc disease at L4/5 which would, in any event, have shortened his working life. I have found the work accidents and the degenerative disc disease were the primary causes of his low back pain but there was some contribution from the motor vehicle accident. I accept Mr Lim's evidence (Medical Reports p 110) that the level of disability arising from the knee injury and lower back injury will progress with the passage of time. The degree and severity is difficult to predict. Considering all of these factors I would reduce the award for future loss of earning capacity by 20 per cent. There is also a need to make allowance for contingencies. In this case a reduction of 5 per cent would be appropriate. Future economic loss is therefore assessed at $325,800 less 25 per cent = $244,350.
Superannuation 45 Past loss of superannuation benefits are calculated at the rate of $12.54 per week from 1 July 2003 to 12 November 2003 (19 weeks) = $238.26. From 12 November 2003 to 3 June 2004 (29 weeks) superannuation benefits are calculated at $48 per week = $1,392. Total past loss of superannuation benefits is assessed at $1,630.26. 46 Future loss of superannuation benefits at the rate of $48 per week to age 65 (multiplier 543) less 25 per cent = $19,548.
Travelling expenses 47 The parties have agreed travelling expenses should be calculated at $.30 per kilometre. But no schedule of expenses has been agreed. Working from the plaintiff's schedule, and doing the best I can, I allow travel expenses for treatment by Dr Kent, Dr Krishnan, Mr Lim, Dr Loke, Dr Goodheart, Mr Goonatillake, Dr Saverimutto and the radiologists being a total of 2,300 kilometres at $.30 = $690. Future travelling
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expenses will involve trips to his general practitioner and one trip a year to his psychiatrist. I allow $100 under this heading.
Past treatment expenses 48 The failure of the defendant to agree to past treatment expenses has wasted a good deal of the court's time. The defendant justified its position on the basis that the plaintiff must prove in the case of each medical treatment that it was exclusively treatment for injuries arising from the motor vehicle accident and not for injuries arising from the work accident. While that approach has validity it is also the case that individual doctors' notes were not always legible and the doctors could not recall each visit. The difficulties were further aggravated by the defendant taking a very narrow view of the injuries suffered in the motor vehicle accident. I have already found that the motor vehicle accident contributed to the plaintiff's lower back pain. I am also satisfied that the motor vehicle accident contributed to the plaintiff's depression and contributed to his lack of exercise and consequent weight gain which in turn brought on Type 2 diabetes. The evidence satisfies me that the medical practitioners did their best to keep treatment of the motor vehicle injuries separate from treatment of the work accidents and that the plaintiff, in good faith, prepared a schedule based on those records. In the circumstances I find the defendant's approach unhelpful and unrealistic. It would seem to penalise this plaintiff for the fact that he has through no fault of his own been injured by more than one tortfeasor. Therefore I allow the full amount claimed in the schedule being $1,151.50 for past medical expenses.
Future medical expenses 49 Future medical expenses include payments for a psychiatrist at $150 per hear for five years = $750. That amount needs to be reduced by 50 per cent. I believe his future psychiatric expenses will be 50 per cent attributable to his work accidents. The present value of that sum ($375 x .74726) = $278.48. 50 I also accept that the plaintiff will require 12 visits to a general practitioner at a cost of $40 per attendance over a 10-year period (multiplier 395.5) = $3,650. 51 The plaintiff's need for future medications is based on his present use of Panadeine Forte, Neulactil and Cipramil. The plaintiff's use of Panadeine Forte was well beyond the recommended dosage. Sometimes
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he took 12 Panadeine Forte in one day and Dr Loke noted that those tablets contained codeine and such a dose could not only lead to codeine dependency but could itself cause a rebound headache on the part of the plaintiff. But I do not think the plaintiff should be blamed for this. He was trying to cope with excruciating headaches and it was for his doctors to manage that dosage. 52 The plaintiff's claim is for one packet of Panadeine Forte per week at $19.95 per packet, one packet of Neulactil every two months at $11.75 per packet and one packet of Cipramil per month at $24.20 per packet. The total annual cost of these prescription drugs would be $1,398.30. However, the National Health Act 1953 (Part VII) limits the extent to which a person is obliged to pay for pharmaceutical benefits. The effect of this legislation is that a person is required to pay a maximum of $726.80 per year for pharmaceutical benefits plus $3.80 for each prescription thereafter. 53 The plaintiff will spend approximately $26.90 per week on these medications so that after 27 weeks he would only need to pay $3.80 per prescription during the remaining 25 weeks. He uses approximately 1.35 prescriptions each week or approximately 34 prescriptions over the 25 weeks x $3.80 = $95. The plaintiff's annual costs for prescriptions can then be calculated at approximately $821.80 per year or $15.80 per week for a 10-year period (multiplier 395.5) = $6,248.90. Total future medical expenses are allowed of $10,177.38.
Gratuitous services 54 The true basis of the High Court's decision in Griffiths v Kerkemeyer (1977) 139 CLR 161 is the requirement that there must be proof of the plaintiff's need for gratuitous services. The real loss for which damages are awarded is the loss which gives rise to the need for care or services. Compensation for that need must be calculated by reference to the value of the services concerned (Van Gervan v Fenton (1992) 175 CLR 327 at 333 and 347). 55 In this case the plaintiff gave evidence that he can no longer drive himself around because of his neck and shoulder pain that prevents him from looking left and the pain in his left shoulder which prevents him from gripping the steering wheel. The plaintiff also has weakness in his left arm and is unable to grip things so that he cannot use power tools. When the plaintiff has a headache he is unable to lean over and unable to do the housework. When he has a headache he needs to take tablets and
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lie down. The plaintiff relies on his son John to do the housework, the maintenance and to prepare meals. He also relies on his son to drive him. The plaintiff estimated his son provided an average of 18 hours of assistance to his father each week. 56 The plaintiff's son John gave evidence that he moved in with his father at the beginning of 2001 when he was just 16 years of age because his dad was not capable of living by himself. John gave evidence that he did basic things like cleaning and driving his father to medical appointments, driving him to pick up prescriptions and driving him to do shopping. John also occasionally drove to Merriwa to collect the plaintiff's two sons for access visits, a two hour round trip. John receives a carer's allowance to look after his father. He said the hours he spends caring for his father had increased since 2001 up to an average of about 18 hours per week. 57 The defendant submits that there is no medical or other cogent evidence as to the plaintiff's need for services of care. Reliance is placed on the cross-examination of Dr Krishnan (T97, 112 – 113) where Dr Krishnan seems to agree that he measured the plaintiff's need for gratuitous services by the number of hours the son provided to his father as a carer. The defendant suggests Dr Krishnan made no independent assessment of the plaintiff's need for the services provided by his son. I accept that there is merit in the defendant's submission; Dr Krishnan gave no independent medical evidence of the plaintiff's need for gratuitous services. But I do not accept that the principle in Griffiths v Kerkemeyer and Van Gervan v Fenton requires proof of the need for gratuitous services to be given by a medical practitioner. There is consistent medical evidence of the plaintiff's pain in his neck and shoulder, weakness in his left arm and excruciating recurring headaches. I am satisfied those symptoms give rise to the need for gratuitous services such as those provided by the plaintiff's son. 58 At trial the plaintiff claimed 10 hours of gratuitous services per week at $12 per hour ($120 per week) from January 2001 to 3 June 2004 (178 weeks) = $26,760. Ten hours of weekly services for 10 years at $120 per week (multiplier 395.5) =$59,325 was claimed for future gratuitous services. 59 The award for the value of gratuitous services that have been provided to the plaintiff by a member of his family is limited by the provisions of s 3D(1) of the Motor Vehicle (Third Party Insurance) Act 1943. If the services are provided for not less than 40 hours per week
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s 3D(3) and s 5 apply. The amount claimed by the plaintiff does not exceed those requirements. It is also the case that the damages are not less than $5,000 and therefore I am entitled pursuant to s 3D(7) of the Act to make this award. 60 In this case I am satisfied on the evidence in this trial that the plaintiff has the need for the services provided by his son. I consider the amount claimed to be reasonable in all the circumstances. I also consider it takes account of the fact that some of the gratuitous services, that is, up to 18 hours a week, have been provided in relation to his knee injury. Taking all of these matters into account the only change I would make in the plaintiff's claim is to exclude the two years from January 2001 to January 2003. I consider during that period he was more likely to have required services because of his injuries in the work accidents. Therefore I would allow an award for gratuitous services from January 2003 to 3 June 2004, a period of 75 weeks at $120 per week = $9,000 for past gratuitous services. I accept that the plaintiff's headaches have increased substantially now and that his need for gratuitous services in the future will be greater than it was earlier and therefore I consider the amount sought for future gratuitous services to be quite reasonable and I allow $59,325.
General damages 61 The plaintiff was involved in a significant motor vehicle accident and, unfortunately, he was in an awkward position with his head turned to the right at the time of the greatest impact. His shoulder and neck injuries have been painful and debilitating. He underwent shoulder surgery and regained full movement in his shoulder but has been left with weakness in his arm and with the onset of severe, debilitating migraine headaches. The aggravation of his low back injury was a less serious but painful result of the motor vehicle accident. These injuries have contributed to his depression and his weight gain which led to his Type 2 diabetes. 62 The injuries received in the motor vehicle accident have had a serious effect on the plaintiff's lifestyle. I accept the plaintiff's evidence that when he has a headache it is so severe he cannot even walk without throbbing pain. His shoulder and headaches stop him from playing with his children, from water skiing – even from engaging in computer games. His severe headaches affect his vision. I accept his evidence that the headaches occur five or six times a week and can only be alleviated by taking medication and resting.
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63 Because of the shoulder injury, the neck injury and headaches he can no longer drive his car. Nor can he engage in gainful employment. For a man who had been gainfully employed, who enjoyed working and who was skilled in the work he did these changes substantially reduced his quality of life and are matters for which he should be compensated. The amount of damages to be awarded for non-pecuniary loss is to be a proportion of the maximum amount that may be awarded in a most extreme case (Motor Vehicle (Third Party Insurance) Act 1943 s 3C(2)). The maximum amount is at present $249,000. In order to arrive at an award in accordance with s 3C of the Act I must assess the plaintiff's non-pecuniary loss and determine what percentage it is of a most extreme case (Southgate v Waterford (1990) 21 NSWLR 427; Andjelic v Marsland (1996) 186 CLR 20; Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997).
64 The application of the formula in s 3C requires me to use the following figures: Amount A = $249,000 Amount B = $12,500 Amount C = $38,000 65 In this case I assess the plaintiff's pecuniary loss at 25 per cent of a most extreme case = $62,250. As that amount is more than Amount C and more than the sum of Amounts B and C the plaintiff is entitled to the full award of $62,250 with no reduction imposed by the statutory formulas in s 3C(5) or s 3C(6). Summary of damages award General damages $62,250.00 Past loss of earning capacity $20,250.00 Interest at 6 per cent $1,762.00 Future loss of earning capacity $244,350.00 Past loss of superannuation benefits $1,630.00 Future loss of superannuation benefits $19,548.00 Travelling expenses $790.00 Past medical expenses $1,152.00 Future medical expenses $10,177.00 Past gratuitous services $9,000.00 Future gratuitous services $59,325.00 Total award $430,234.00
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