Ciolpan v Swan Transit Services (South) Pty Ltd
[2020] WADC 95
•20 JULY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CIOLPAN -v- SWAN TRANSIT SERVICES (SOUTH) PTY LTD [2020] WADC 95
CORAM: GILLAN DCJ
HEARD: 14-23 OCTOBER 2019
DELIVERED : 20 JULY 2020
FILE NO/S: CIV 2383 of 2017
BETWEEN: VASILE CIOLPAN
Plaintiff
AND
SWAN TRANSIT SERVICES (SOUTH) PTY LTD
Defendant
Catchwords:
Personal injury - Bus driver - Proper adjustment of seat - Failure to warn
Legislation:
Occupational Safety & Health Act 1984 (WA)
Workers' Compensation & Injury Management Act 1981 (WA)
Result:
Judgment in favour of the plaintiff
Damages assessed
Representation:
Counsel:
| Plaintiff | : | Mr T H Offer |
| Defendant | : | Mr D R Clyne |
Solicitors:
| Plaintiff | : | Vertannes Georgiou |
| Defendant | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Gould v Vaggelas (1985) 157 CLR 215
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
McGhee v National Coal Board [1973] 1 WLR 1; [1972] 3 All ER 1008
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
O'Donnell v McKenzie [1967] SC 58
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617
Roads and Traffic Authority v Royal [2008] HCA 19
Ross v Associated Portland Cement Manufacturers [1964] 1 WLR 768
Sidhu v Van Dyke [2014] HCA 19
The State of Western Australia v Watson [1990] WAR 248
Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41
Vincent v Atkinson [2017] WADC 155
Wilsher v Essex Area Health Authority [1988] 2 WLR 557
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
GILLAN DCJ:
On the night of 11 June 2015 the plaintiff was employed by the defendant as a bus driver. The plaintiff brings an action in personal injuries arising out of an injury to his cervical spine incurred while driving a bus for the defendant that night.
It is common ground that the plaintiff incurred an injury to his cervical spine and that he also has suffered a greater than 25% whole body impairment as a consequence of that injury.
The matters in issue at trial were whether the defendant was negligent in respect to its treatment of the plaintiff, whether the injury was caused by any negligence, the extent of any ongoing injury to the plaintiff and, if the defendant was negligent, the quantum of any damages. I will detail later in these reasons the specific particulars of negligence.
With respect to the issue of ongoing injury to the plaintiff, the more detailed issues are:
1.whether the plaintiff as a consequence of the cervical spine injury suffered urinary incontinence and sexual dysfunction;
2.whether the plaintiff's cervical spine injury remains symptomatic, in particular whether he has symptoms of numbness and weakness in his hands, an inability to properly turn his head and whether he still suffers from urinary incontinence and sexual dysfunction; and
3.the extent to which those injuries may still preclude the plaintiff from working or cause limitations in the type of work he might undertake.
There was also pleaded an issue as to whether the plaintiff was also negligent thereby causing or contributing to his own injury but the defendant's counsel conceded in closing that there was insufficient evidence to establish contributory negligence.[1]
[1] ts 447.
Particulars of negligence
The plaintiff's case, as pleaded in the further amended statement of claim filed 15 March 2019 alleged:
1.The plaintiff was employed by the defendant as a bus driver and, as such, the defendant owed the plaintiff a common law duty as employer:
(a)To take all reasonable steps to establish, maintain and enforce a safe system of work. This is admitted by the defendant;
(b)To take all reasonable care for the plaintiff's safety when carrying out his employment duties. This is not admitted by the defendant;
(c)To take all reasonable care not to expose the plaintiff to the risk of foreseeable injury in the course of his employment. This is not admitted by the defendant; and
(d)To take all reasonable steps to provide a safe place of work for the plaintiff. This is not admitted by the defendant.
Further, employers' duties under the Occupational Safety and Health Act 1984 (WA) were pleaded. Those duties related to maintaining a safe workplace, plant and system of work and providing adequate information, instructions, training and supervision. Those duties are not admitted.
In relation to the incident in which injury was sustained, it is alleged that the plaintiff drove Volvo bus number 1693 (TP 1693) bus over an uneven portion of road within the intersection of Cecil Avenue and Sevenoaks Street, Cannington which caused the driver's seat to violently bounce up and down and thereby caused an injury. The fact that the plaintiff was driving that bus and suffered an injury to his cervical spine on that date was admitted but the mechanism of injury is not.
It was further pleaded that the defendant, through its operations manager, Mr Murray, for Swan Transit Beckenham Bus Depot (Beckenham Depot), had been made aware by another senior bus driver of several major depressions and small potholes in the intersection and that buses were being violently rocked resulting in bus drivers and passengers being shaken. Mr Murray was pleaded to have advised the senior bus driver that he was aware of the hazards at the intersection, had advised Main Roads and the City of Canning of the hazards but that those parties were in dispute as to who was obliged to fix the roads. This is denied.
Mr Murray was also said to have driven buses through the intersection in the 12 months prior to June 2015 thereby being aware of the violent jolting that buses were undergoing. This is also denied.
The particulars of breach of duty owed as employer pressed at trial[2] were, by reference to par 6 of the amended statement of claim, that:
[2] Paragraphs 6.1 ‑ 6.5, pars 6.7 - 6.8 of the further amended statement of claim were not pressed.
(a)Paragraph 6.6: The defendant failed to instruct the plaintiff to adjust the driver's seat to a firm support setting prior to driving the bus;
(b)Paragraph 6.9: The defendant allowed or permitted the plaintiff to drive the bus with the driver's seat adjusted to the soft suspension setting;
(c)Paragraph 6.10: The defendant failed to identify and/or assess the hazard associated with the driver's seat 'bottoming out' whilst the plaintiff was driving the bus with the driver's seat adjusted to the soft suspension setting;
(d)Paragraph 6.11: The defendant failed to warn the plaintiff of the risk of injury from the driver's seat 'bottoming out' whilst driving the bus when the driver's seat was adjusted to the soft suspension setting;
(e)Paragraph 6.12: The defendant failed to instruct the plaintiff to refrain from driving the bus while the driver's seat was adjusted to the soft suspension setting;
(f)Paragraph 6.13: The defendant failed to take any or any adequate steps to ensure that the rough and uneven portion of the road at the intersection of Cecil Avenue and Sevenoaks Street Cannington was repaired or made good by the appropriate authority when the defendant was aware that the rough and uneven portion of the road constituted a hazard to bus drivers including the plaintiff;
(g)Paragraph 6.14: The defendant failed to warn the plaintiff of the risk of injury arising from driving the bus on the rough and uneven portion of the road at the intersection of Cecil Avenue and Sevenoaks Street;
(h)Paragraph 6.15: The defendant failed to instruct the plaintiff to refrain from driving the bus on the rough and uneven portion of the road at the intersection of Cecil Avenue and Sevenoaks Street Cannington; and
(i)Paragraph 6.16: The defendant failed to carry out any assessment as to the design of the driver's seat prior to it being placed into the defendant's vehicles to identify:
(i)whether the seat was suitable for use under the range of conditions that its drivers were likely to encounter during the course of their employment; and/or
(ii)what settings were or were not appropriate for use under the range of conditions that its drivers were likely to encounter during the course of their employment.
Each of those particulars of breach are denied. The defendant has also put in issue that, if any of the breaches as particularised are made out, that breach caused the injury.
By the close of the trial there had been uncontentious evidence that in the course of the seat moving, the type of injury suffered by the plaintiff could have occurred either when the plaintiff was travelling up in the seat or when the seat reached its lowest point. The defendant took the position that before I could find the defendant liable I would have to find that the plaintiff's injury occurred when the seat reached its bottom most point and that if the injury had occurred when the plaintiff was travelling up in the seat I could not find the defendant liable. The plaintiff agreed that this finding of fact was essential to the proper resolution of the action.
I will come back to this issue later in these reasons.
The plaintiff further pleaded that as a result of the accident he had suffered a neck injury, a back injury and a psychiatric illness.[3] The defendant put the plaintiff to the proof of those injuries.
[3] Paragraph 8 of the amended statement of claim.
Particulars of pain and suffering, loss of enjoyment of life, permanent residual injury, along with economic loss will be dealt with below.
Before turning to my findings about how the injury occurred and whether it occurred when the plaintiff was travelling up or down I will first of all set out my findings about the condition of the road and the state of the plaintiff's and the defendant's knowledge about the condition of the road and the appropriate settings for the seat suspension.
The condition of the road
It was common ground that this incident occurred when the plaintiff was driving through the intersection of Cecil Avenue and Sevenoaks Street in Cannington. That intersection is controlled by traffic lights. Sevenoaks Street is a main road running parallel to the Armadale train line. Cecil Avenue terminates at Sevenoaks Street directly across the road from the Cannington Station and a driveway entry point for buses entering the station. The Cannington Station is a train station and an interchange station for buses servicing the train line. Buses can turn into the Cannington station interchange from Sevenoaks Street or if buses are approaching along Cecil Avenue those buses can pass through the intersection and into the bus interchange. In this case the plaintiff did just that.
The plaintiff's evidence about the condition of the road on 11 June 2015 was that on crossing across Sevenoaks Street from Cecil Avenue into the bus interchange there was a rough patch about 1 m wide where the road went 'up and down' and had a step of about 12 cm (120 mm) high.[4] This area was about 5 ‑ 6 m from the centre of Sevenoaks Street. The plaintiff marked the position of the rough area on an aerial photograph[5] as being close to the entry to the intersection from Cecil Avenue.
[4] ts 40, ts 41.
[5] Exhibit 1.648 - 649 as marked up by the plaintiff.
The plaintiff was cross-examined about his workers' compensation claim form and he accepted that he had, in that form, described the rough piece of road as 'the road kind of goes up a bit and then down again' and that the road was slightly worn.
Two other witnesses were called by the plaintiff to give evidence about the condition of the road.
The first was Mr Martyn Powers who was a bus driver working for Swan Transit Services. He had worked as a bus driver for some 12 years and was based at the Beckenham Depot. He was familiar with the type of Volvo bus driven by the plaintiff on that night.
Mr Powers described going through the intersection of Cecil Avenue and Sevenoaks Street to enter the Cannington Station regularly, 6 ‑ 10 times per shift.
In mid‑2015 he recalled that workers had come and dug a trench across the intersection to lay pipes and, in his view, had not rehabilitated the road surface properly. This occurred three to four months before the plaintiff was injured.
Mr Powers said that a short period after the pipes were installed the road started to subside and over a period of time the road became a real hazard.
Mr Powers described how buses jolted when travelling through the intersection. He also described that the area of the road affected was about 3 m from the white line into the intersection from Cecil Avenue, basically in front of a pedestrian crossing delineated on Cecil Avenue.
Mr Powers described a distinct dip in the road within the intersection which he estimated to be over a span of 3 m along Sevenoaks Street and was about 900 mm wide. The dip was 100 mm deep at its worst point. Mr Powers marked up an aerial photograph showing the approximate area affected.[6] The area marked up by Mr Powers was generally the same as the area marked up by the plaintiff.
[6] Exhibit 5.
Mr Powers said that there was a time when the drivers would go through that area of rough road at a speed of no more than 5 ‑ 10 km per hour because to do otherwise would give a severe jolt to the driver and to any passengers on board.
Mr Powers said it was common to slow right down, even if the lights were green, to that very slow speed of 5 ‑ 10 km per hour.
Mr Patton also gave evidence. Mr Patton was also a bus driver, and a friend of the plaintiff. At the time of the plaintiff's injury, the plaintiff and Mr Patton were living in Mr Patton's house as housemates. Mr Patton was at the relevant time the after-hour's co‑ordinator at the Beckenham Depot.
Mr Patton had been a health and safety representative at various times and had when employed at a different depot at an earlier time been a union delegate and drivers' representative. He was familiar with the type of Volvo bus driven by the plaintiff on that night.
Mr Patton gave evidence that from February or March 2015 the road at the intersection was visibly uneven. It became progressively worse.
Mr Patton gave evidence that he was concerned about the state of the road because he drove a bus through it frequently and he said in his evidence that the state of the road had deteriorated some six months before the plaintiff was injured. His evidence was that he thought he had first noticed the deterioration in the road in February or March but it got worse over time.
Mr Patton described that there were visible humps in the road running along Sevenoaks Street and driving over them was like surfing waves. The humps were described variously as being up to 120 mm high, between 4 ‑ 6 inches (100 mm ‑ 150 mm) and during his evidence Mr Patton held up his hands and indicated, I estimate, a height of about 9 inches (some 228 mm). Mr Patton thought at the time of the plaintiff's accident the humps were 4 ‑ 6 inches (100 mm - 150 mm) high. The humps ran along Sevenoaks Street and, he said, equated with the wheel tracks of vehicles travelling along that road.
Mr Patton also marked up the position of the rough section of road on an aerial photograph. His mark up showed two areas of corrugation, the first on the Cecil Avenue side of the road towards the middle of the intersection and a second area on the other side of the intersection. That position marked by Mr Patton was different to the position marked by the plaintiff and Mr Powers.
There were also photographs which were confirmed by Mr Murray, the Belmont depot manager, which showed the condition of the road at a time shortly after the plaintiff's injury was reported to him in about June 2015.[7] Those photographs were taken at the latest in August 2015.
[7] Exhibit 1.650 - 652.
Not surprisingly, given the passage of time, there were some differences between the witnesses about the state of the road and the exact position of the corrugations but I have no difficulty in finding that as at 11 June 2015 a subsidence of the road surface within the intersection had developed which had caused corrugations to form in the road.
To the extent that it is necessary to make specific findings about the state of the road as at 11 June 2015, I accept the evidence of the plaintiff and Mr Powers that the corrugations ran along Sevenoaks Street a metre or so inside the intersection and close to the pedestrian crossing. I also prefer and accept the evidence of Mr Powers that at June 2015 the last and largest of the corrugations was up to 100 mm different in height than the subsided area of road immediately adjacent to it.
I prefer Mr Powers evidence about the height of the corrugations, in particular the relative height of the highest point to the lowest, because the plaintiff did not purport to have a particularly good recollection of the exact height of the corrugations in the road as at June 2015 and Mr Patton's recollection of where the corrugations were was inconsistent with the photographs and internally inconsistent in his description of the height of the corrugations in the road. Further, Mr Patton did not impress with his explanation of why, if the road had been as bad as he said it was, he had not formally reported the state of the road to his employer. I will come back to whether Mr Patton discussed the state of the road with Mr Murray prior to the plaintiff's injury.
I also find, in accordance with Mr Powers' evidence, that after June 2015 the road continued to deteriorate until August 2015 when he submitted a hazard report. Mr Powers was a careful and considered witness and the person who ultimately took the step of making a formal report about the state of the road. Mr Powers' evidence about the position of the subsidence including the aerial photograph he marked up[8] was consistent with the photographs taken of the road surface in 2015.
[8] Exhibit 5.
I have mentioned Mr Powers' evidence that at some stage he and other drivers would only drive through the intersection at between 5 - 10 km per hour. Mr Powers could not say at what point in time he started that practice.
Mr Patton's evidence was that driving through the intersection at 5 ‑ 10 km per hour was not an approach followed by all of the drivers because buses arriving at the intersection at Cecil Avenue intending to cross over Sevenoaks Street into Cannington Station were usually met with a red light. If the drivers failed to travel at a reasonable speed through the intersection then dangerous situations could develop where insufficient buses would move along Cecil Avenue potentially causing a traffic jam or buses could be caught in the middle of the intersection on a traffic light change.
I cannot therefore be sure that the condition of the intersection as at June 2015, made it necessary or advisable for the speed through the intersection to be quite as slow as 5 ‑ 10 km per hour.
I have seen CCTV footage relating to the incident.[9] Some of the footage is from the front of the bus looking forward out to the road and showed the rough patch of the road and something of the movement of the front of the bus going over the corrugations with a considerable jolting movement.
[9] Exhibit 1.630.
Other footage is from the interior of the bus. Part of the footage is from cameras at the rear of the bus pointing forward and as the bus was driven over the rough part of the road the internal movement of the bus, again a considerable jolting, can be seen. Another part of the footage is looking from the driver's seat towards the door of the bus and as the bus goes over the rough part of the road, again, some considerable jolting can be seen.
I find that the size of the highest part of the corrugations in the road was up to 100 mm higher than the subsided part immediately adjacent to it and I am satisfied from the plaintiff, Mr Powers and Mr Patton's evidence and the CCTV footage that driving over the corrugations had the capacity to cause significant jolting to the bus, the driver and any passengers.
Was the defendant aware of the state of the road as at 11 June 2015?
The plaintiff's evidence was that the subsidence of the road started at least six months prior to 11 June 2015[10] but he later qualified that to 'around then'.[11] He recalled being jolted as he drove through the intersection prior to the 11 June 2015 but said that the seat did not bottom out or cause any injury on any of those occasions and he did not even consider that injury could be caused.[12] The plaintiff confirmed on cross‑examination that prior to the accident on 11 June 2015 the seat would jolt up and down but he did not get injured.[13]
[10] ts 40.
[11] ts 41.
[12] ts 41 - ts 42.
[13] ts 85.
Mr Powers' evidence, as mentioned above, was that the subsidence started after the roadworks which were some three to four months before 11 June 2015.
In about September 2015, Mr Powers became the health and safety representative for the Beckenham Depot. He explained that the health and safety representative was for the depot and not the bus routes but if drivers noted something extreme in the conditions along any route that they could make comment on it to someone at the depot. On 4 August 2015 Mr Powers provided to his Manager, Mr Glenn Murray, a hazard incident report with respect to that area of road.[14]
[14] Exhibit 1.644 - 645.
Mr Powers' evidence was he provided the report because by August 2015 the intersection had become worse and was getting worse by the day. Mr Murray's evidence was that he requested Mr Powers to provide the report. Given that the intersection was by then the subject of discussion between them, those positions are not inconsistent.
Mr Powers said in his evidence the report was given to Mr Murray and within a week or two the intersection was repaired.
On cross‑examination Mr Powers was not able to give an exact date when the deterioration in the road had started. He accepted the work done on the road which preceded its deterioration could have been in April or May and the deterioration only began from about the beginning of June.
He was, however, firm in his recollection that the condition of the road decreased over a period of time but was uncertain exactly when it got to the state that a hazard report should have been submitted.
Mr Patton gave evidence that the road at the intersection from February or March 2015 was visibly uneven and that it became progressively worse over time.
Mr Patton also gave evidence that prior to the plaintiff's injury he had spoken on two or three occasions with Glenn Murray the defendant's operations manager at the Beckenham Depot and had brought the state of the road to Mr Murray's attention.
Mr Patton indicated that he had not kept track of or made any record of the conversations he had with Mr Murray but he said they were in the two or three months leading up to 11 June 2015.
He said the first conversation was two months prior to 11 June 2015 and while he could not say when any later conversations occurred they could have been closer to 11 June 2015.
Mr Patton also said that after the injury to the plaintiff written notice appeared in the staffroom at the Beckenham Depot requiring the seats in the bus to be adjusted so that the travel of the seat was limited to approximately 2 cm.
In cross‑examination Mr Patton maintained his position that the changes in the road had become noticeable by February 2015 and got progressively worse. He did not make a written report at any time and said that the reason he did not make any written report prior to June 2015 was because he already had to do a lot of handwriting in his job at the time.
The Beckenham depot manager, Mr Glenn Murray, gave evidence about his knowledge of the intersection. The defendant accepted that, as depot manager, Mr Murray was the person to whom injuries and hazards were reported and that he was, for the purpose of these proceedings, a deciding mind of the defendant. The plaintiff accepted that the knowledge of individual bus drivers about the state of the intersection was insufficient to be knowledge of the defendant.
Mr Murray denied that he had received any information regarding the state of the intersection in the six months prior to 11 June 2015. He did not recall Mr Patton making any mention of the intersection at any time prior to 11 June 2015.
In cross-examination Mr Murray denied any discussion with Mr Patton about the intersection prior to 11 June 2015 but he said that he had know that the intersection was a little crazed and aged but did not, as at 11 June 2015, consider that it posed a safety hazard.[15]
[15] ts 288.
I accept Mr Murray's evidence that he was not told by Mr Patton that the intersection was hazardous before 11 June 2015. For the following reasons I am of the view that if Mr Murray had been told that the intersection was hazardous that he would have taken steps with respect to it.
Mr Murray took his position seriously. After hearing about the plaintiff's injury, Mr Murray gave immediate instructions to have the plaintiff collected from the Cannington Station and returned to the depot. After the plaintiff was taken to hospital Mr Murray visited the plaintiff and on 15 June 2015 had him fill in a document headed Incident Register.[16] Mr Murray's evidence was that as a consequence of his contact with the plaintiff he was not left with the impression that urgent action was required with respect to the intersection. I have read the Incident Register and while it refers to the uneven road surface and to the plaintiff being thrown up and down in his seat it also states that the plaintiff mostly adjusted his seat to the soft setting. Mr Murray's evidence was that at that time he thought that the cause of the injury was that the plaintiff had not adjusted his seat properly.
[16] Exhibit 1.632.
Consistently with this, a report initially completed by Mr Murray on 15 June 2015[17] suggested that a standard/recommended seat adjustment be obtained from the manufacturer, that further driving assessments should include seat adjustment and that the plaintiff would be re-inducted on seat adjustment on his return to work. That document was also reviewed and signed by the safety representative on 25 June 2015. Mr Murray signed the document on 15 June 2015 to record that his recommendations were based on the facts available at the time. He signed it again to further record that, by 30 June 2015, he had undertaken the action proposed by him on 15 June 2015 and that the plaintiff had been given feedback on 30 June 2015.
[17] Exhibit 1.642.
Mr Murray also arranged for the plaintiff to submit a workers' compensation claim on 24 June 2015.[18] That document refers to an uneven, not unsafe, road surface.
[18] Exhibit 1.641.
Mr Murray further arranged to have the safety committee deal with the incident at its next meeting. There were four meetings a year but he could not now identify exactly when the next meeting occurred but it must have been before 5 August 2015. The safety officer undertook an investigation, attended at the intersection and took some photographs and notified Main Roads and the City of Canning to have their people look at the intersection.
Mr Murray's evidence was that he asked Mr Powers to make the hazard report dated 5 August 2015 and that hazard report was used to prompt action by one of Main Roads or the City of Canning to repair the road.
Mr Murray also met with the plaintiff and interviewed him about the injury when the plaintiff was well enough to attend at the depot. This occurred on 13 August 2015.
Mr Murray was careful in carrying out his duties as depot manager. I am not satisfied that Mr Murray, and as a consequence the defendant, was aware that the intersection was hazardous at any time before 11 June 2015. I find that Mr Murray became aware of the plaintiff's accident immediately after it occurred but then did not consider the intersection to be hazardous. The intersection continued to deteriorate and at a later time, closer to 5 August 2015, Mr Murray became aware that the intersection was becoming hazardous.
The circumstances of the injury
The circumstances in which the injury was incurred are largely uncontentious although the mechanism by which it was caused was in contention.
Findings which I make about the mechanism by which the injury was incurred are important because it was the evidence of Professor Ackland, a defence expert who is qualified in applied anatomy and biomechanics, that the injury to the plaintiff's neck could have been caused either when the plaintiff's neck was subject to compression and was flexed as the seat travelled upwards and reached its highest point or when the plaintiff's neck was subject to compression and was flexed when the seat travelled downwards and reached its bottom point. Compression, means subject to loading, and flexion means with the neck bent forward.
That evidence was accepted by Dr Chew, a mechanical engineer and ergonomist, who gave evidence for the plaintiff.[19] Both witnesses also agreed that the setting of the suspension, whether hard or soft, of the seat would have no impact on the speed at which the seat travelled upwards.[20]
[19] ts 156, ts 157 (Dr Chew).
[20] ts 161 (Dr Chew).
Because the setting of the seat had no impact on the speed of the seat travelling upwards, counsel for the defendant contended that I would need to be satisfied that the injury occurred when the plaintiff's seat travelled down before I could find for him. Counsel for the defendant also contended that the evidence did not allow for me to make such a finding principally because the plaintiff was unable, by reason of the speed of events, to say exactly when the injury occurred.
Counsel for the plaintiff accepted that I would have to find that the injury occurred when the plaintiff's seat travelled down but said that the evidence allowed me to resolve that issue in favour of the plaintiff.
The uncontentious evidence was that on 11 June 2005 the plaintiff started his shift at around lunchtime.[21] He was allocated Volvo bus number 1693. The plaintiff did his usual pre‑driving check of the inside and outside of the bus before adjusting his seat and starting his allocated runs.[22]
[21] ts 39.
[22] ts 84.
The seat on the Volvo bus was adjustable in a number of respects.[23] Some of those adjustments were made mechanically and others by using a system of air suspension. The seat could be adjusted mechanically forwards and backwards vis a vis the position of the steering wheel of the bus, as to the seat height and tilt, as to the seat cushion position and angle as well as for lumbar, and shoulder and back support. Importantly the seat could be adjusted for shock absorption using air suspension.
[23] Exhibit 1.660 ‑ 662.
On this day, as for every shift, the plaintiff adjusted the height of his seat so that his feet were flat on the floor of the bus.[24] This meant that the seat was about 5 cm up from the lowest setting, a medium position consistent with his height.[25]
[24] ts 83.
[25] ts 84.
With respect to the suspension or support of the seat, the plaintiff had the seat on the softest setting which was the one which he, personally, found the most comfortable for driving a long shift.[26]
[26] ts 83, ts 84.
At about 8 o'clock in the evening the plaintiff was driving the bus along Cecil Avenue in Cannington heading towards the intersection with Sevenoaks Street.
The plaintiff approached the intersection of Cecil Avenue and Sevenoaks Street. The traffic light was red. He slowed to a stop pulling up behind another bus.
The plaintiff was driving the bus on route 507 to Cannington Station which is the terminus of the route. This required him to drive across the intersection of Cecil Avenue and Sevenoaks Street and immediately after crossing that intersection to turn right into the driveway of the bus depot.
When the lights changed green the plaintiff accelerated the bus and passed through the intersection going over the area of rough road within it.
The plaintiff's evidence, which I accept, is that when the light turned green he was no more than 50 m from the intersection. He accelerated and entered the intersection and as the bus hit the rough piece of road his seat went up and 'jogged him up and down or jogged him out and that was the moment [he] felt the big pain in [his] neck, in [his] back and [his] hands started to be numb'.[27] The plaintiff managed to complete the right turn into the bus station and then called for assistance.
[27] ts 43.
The plaintiff clarified in his evidence in chief that he was 'thrown up and then down and [the seat] bottom out and I felt a big shock when I felt no cushioning to my chair'. He then said 'it's no cushion, just bang on, a big bang and then sit there, nothing, don't absorb the shock pretty much'.[28] The plaintiff estimated that the seat travelled at least 20 cm or more.[29]
[28] ts 44.
[29] ts 49.
The plaintiff was only briefly cross-examined about the circumstances of the injury. He was taken to a written statement he made on 13 August 2015 in support of his claim for workers' compensation where he described the incident[30]. It was put to the plaintiff by reference to what he had said in that statement that he had driven over a rough piece of road:[31]
[30] Exhibit 2.111 - 120.
[31] ts 88.
CLYNE, Mr:This caused the seat to bounce up and then back down again. ?
CIOLPAN:Yes.
CLYNE, Mr: When the seat bounced up and down, I felt a big pain in my back and neck, I felt all my weight in my stomach. ?
CIOLPAN:Yes.
CLYNE, Mr:Was that both up and down or was it too quick that you don't remember?
CIOLPAN:Look what can I say? It happened just in a fraction of a second, so - - -
CLYNE:You then say, 'I don't think I left the seat and I'm not sure how far the seat went up and down. It could be 20 centimetres or maybe more.' ?
CIOLPAN:Yes.
CLYNE:'I wasn't expecting the seat to go up and down as it did. It happened in a fraction of a second and I didn't have time to react.' Is that fair?
CIOLPAN:That's correct.
The plaintiff also said in the written statement he made on 13 August 2015 that he had no idea why the accident happened because he had driven the intersection on numerous occasions without incident, and that he did not think the accident had anything to do with speed as he was not travelling very fast having just pulled away from a standing start. The plaintiff agreed in cross-examination that his earlier statement was correct in those regards and that at the time of making the claim he had thought that the seat was faulty.
The plaintiff's statement[32] was tendered, without objection, as a prior inconsistent statement. In my view the statement was possibly inconsistent with respect to the plaintiff's description of the road which was not as detailed and was more benign than his evidence that the corrugations were more than 100 mm in height, and, with respect to whether the plaintiff left the seat when travelling upwards. The defendant also relied on it for the fact that the plaintiff did not specifically say that the seat had bottomed out when it reached the lowest point.
[32] Exhibit 2.111 ‑ 120.
The use to which an earlier out of court statement can be put is to call into question the plaintiff's credibility in respect to his evidence at trial. Those inconsistencies were insufficient to cause me to doubt the plaintiff's evidence about the road surface, the circumstances of how he incurred the injury or generally. I also note that the plaintiff is Romanian by birth and while his English is very good, it was not his first language. I have kept that in mind when assessing his evidence and any documents he completed, including this one.
I am of the opinion that the evidence is sufficient for me to make a positive finding that the injury occurred as a consequence of the compression to and flexion of the plaintiff's neck when the driver's seat travelled down and abruptly reached its bottom point.
I reach that view, on the balance of probabilities, because:
(a)The plaintiff's evidence-in-chief as outlined above was that on reaching the rough part of the road his seat went up and 'jogged me up and down or jogged me out and that was the moment when I felt the big pain in my neck, in my back and my hands started to be numb';[33]
(b)He was 'thrown up and then down and [the seat] bottom out and I felt a big shock when I felt no cushioning to my chair';
(c)'It's no cushion, just bang on, a big bang and then sit there, nothing, don't absorb the shock pretty much';
(d)He was asked 'So you've gone up?' and he responded 'And down and I was expecting chair to do a bit of cushioning, but it's just bottom out and that was it';
(e)In the passage reproduced at par 86 above, it was not put to the plaintiff in cross-examination that the injury had been caused when the seat was travelling upwards and the question was not clear as to whether the plaintiff was being asked about the action of the seat or the timing of the onset of pain;[34]
(f)I have already referred to the CCTV footage from the bus on the evening of 11 June 2015. None of the footage shows the plaintiff but the plaintiff can be heard on the audio of the footage and the movement of the bus can clearly be seen. The bus was empty and the plaintiff was driving along and whistling up until the point where the bus had entered the intersection and was going over the corrugations in the road;
(g)On my viewing of the footage, in particular the view from the front of the bus and that showing the side door, the bus went up and then down heavily at which point the plaintiff called out 'Ayee'. The bus then went up again and the plaintiff drove on immediately starting to puff or breathe heavily. The heavy breathing continued until the bus had passed through the intersection and turned right on the other side of the intersection into the Cannington Station;
(h) I have seen and listened to the CCTV footage from the bus of the incident which occurred in a split second but I am satisfied from that footage along with the plaintiff's evidence in chief that the sound made by the plaintiff, 'Ayee' was a sound which was consistent with breath being expelled by the plaintiff, the sound was made when the injury was incurred and the sound and the heavy breathing came after the plaintiff's seat had reached the bottom most point of its travel; and
(i)Professor Ackland, an ergonomist, agreed that if the plaintiff described the onset of pain as at the time of his seat reaching its lowest point of downward travel this would lead to greater certainty that injury occurred on reaching bottom.[35]
[33] ts 43.
[34] ts 88.
[35] ts 351.
Descriptions the plaintiff gave in contemporaneous document are consistent with his evidence. By way of example in the Incident Register dated 15 June 2015[36] he said 'Because of the uneven surface of the road chair throw me up and when I came back it felt a big pain in the back next as I felt no cussion [sic] resistance from the chair.'
[36] Exhibit 1.632.
In his statement of 13 August 2015[37] at par 49 the plaintiff said:
When the seat bounced up and down I felt a big pain in my back and neck. I felt all my weight in my stomach.
[37] Exhibit 2.111 - 120.
Part of exhibit 1.630 is footage showing GPS readings from the bus which enable the speed of the bus through the intersection to be estimated. That material recorded the speed at the point at which the bus went over the corrugations as 27 km per hour.
It is clear that the downward travel of the seat ended abruptly and with sufficient compression and flexion for injury to have occurred. I will deal later in these reasons with my findings as to whether the seat reached the bottom point of its range of travel, or whether it hit the floor and bottomed out, and whether there is a distinction without a relevant difference between those two possibilities.
I note here that it was Dr Chew's opinion that the injury was incurred as a consequence of the seat travelling hard downwards.[38] That opinion was based on Dr Chew having understood the plaintiff to be asserting that the seat had hit the floor and bottomed out.
[38] Exhibit 1.32 - 1.56, page 16, lines 398 ‑ 402; Exhibit 1.64 - 66, page 2, lines 48 ‑ 56; Exhibit 1.69 - 70, page 1, lines 20 ‑ 24.
The setting of the suspension on the seat and how that would affect the seat's performance
The plaintiff's evidence was that he always set the suspension of the seat to the softest setting as that was what he found most comfortable when driving over the long period of a shift.
He gave evidence that on the commencement of his employment with the defendant he had undertaken instruction and induction. That instruction and induction had taken place over a number of days and during the course of his induction he had been shown how the bus seat could be adjusted in each of the buses that he was going to be driving including the Volvo bus. The seat should be adjusted in accordance with each driver's preference.[39]
[39] ts 34.
Mr Murray also gave evidence about the suspension setting for the seat, and the defendant's usual process of instruction with regard to the seat. His evidence was that as part of the induction process, presented by the training school, inductees were told that the seat required some sort of resistance, as a precautionary measure, so they were not sitting on a hard floor. This was to prevent injury.[40]
[40] ts 297.
The plaintiff in his evidence was adamant that he had never been told what suspension setting should be used or that there was any possibility that the seat could bottom out if the suspension was on the softest setting.[41]
[41] ts 34.
Further, the plaintiff's evidence was that during his employment he had been regularly reviewed by other more senior bus drivers working for the defendant. In the course of review the plaintiff would show senior bus drivers how he would undertake mandatory safety and start procedures at the start of his shift including how he would check the bus for defaults and how he would adjust his seat. The plaintiff's evidence that he was never told by any senior bus driver not to set his seat on the softest setting.
Mr Powers also gave evidence to the effect that when he drove the buses, including the Volvo bus, he would adjust the seat. Mr Powers chose to use a harder or the firmest seating for suspension of the seat.
Mr Powers would also have his seat at the maximum height as well as the maximum pressure of support. At the time he weighed about 101 kg.
Mr Patton also described the way that the adjustable seats worked when going over a corrugated road. He said the seat would respond to the movement of the bus so that if the bus went over a bump the seat would respond but there was a small delay. This meant that if the bump was a large one the seat would still be going up while the bus was heading down. Mr Patton used a heavy or hard suspension and the maximum height setting for his seat when he adjusted it and he said that when it was adjusted at the softest suspension the seat moved differently to when it was on a firmer setting.
Mr Patton was some 5 foot 9 inches or 175 cm and weighed 140 ‑ 144 kg.
In addition to the bus drivers, Mr Pattullo gave evidence. Mr Pattullo is employed by Swan Transit Services as a vehicle body builder. He works at the workshop in the Beckenham Depot.
Mr Pattullo has worked for Swan Transit since 2002 and after the injury to the plaintiff he inspected the seat in the bus in question and found that there was no issue with the seat and that it was operating normally. Before me, the trial was conducted on the basis that the seat was operating normally.
As a vehicle body builder Mr Pattullo would test drive buses and other vehicles and would typically drive them along Seven Oaks Street to Cecil Avenue and turn into Cecil Avenue (in the opposite direction from buses arriving at the bus depot), drive down Cecil Avenue to Albany Highway and then come around and back to the depot. He was familiar with the state of the road at that intersection.
Mr Pattullo undertook an experiment with the assistance of an apprentice working at the Swan Transit Beckenham Depot.
His apprentice weighed 116 kg. Mr Pattullo and the apprentice set the Volvo bus seat to the softest setting and while the apprentice drove the bus at a low speed over a speed‑hump in the depot, Mr Pattullo crouched alongside it to observe the movement of the seat. Mr Pattullo measured that while the apprentice was sitting on the seat, and the bus went over the speed‑hump, in the vertical plane the seat travelled up to 65 mm.
During the experiment there was an occasion when the seat travelled a greater distance than 65 mm but on that occasion there was no‑one sitting on the seat.
Mr Pattullo described that the purpose of the suspension was that when going over a hump in the road the seat would glide up and down and, depending on the strength to which it had been adjusted, the suspension would slow the glide. Mr Pattullo only weighed some 60 kg so, he said, the seat responded differently to him than it would to a person with a greater (or lesser) weight.
Mr Pattullo's evidence about the experiment he undertook is of limited relevance in the resolution of this matter but I do draw from it confirmation that the weight of the driver and the settings of the seat will affect the extent to which the seat could travel when going over a bump in the road.
Dr Chew and Professor Ackland also undertook some investigations into the way in which the seat on the Volvo bus operated and Dr Chew and Professor Ackland each offered expert opinion. Neither of those witnesses attempted to exactly reproduce the circumstances in which the plaintiff found himself on the evening of 11 June 2015 and nor could they.
Accordingly, their evidence was of assistance in the most general of respects and in some ways was reflective of common experience. Evidence that a moveable object (the seat) which is subject to less resistance is likely to travel a greater distance than one which encounter a greater resistance, is simply an example of Newton's First Law of Motion.
The evidence of each of Dr Chew and Professor Ackland along with that of Mr Pattullo supports findings that:
1.The height at which the seat was set and the weight of the driver had an effect on the seat's movement in the downward direction;[42]
2.The setting to which the seat suspension was set made a difference to its resistance and therefore the extent of its travel in the downward direction;
3.In the softer setting the seat would move over a larger vertical displacement when subject to changes in weight on the seat and in the firmest setting the displacement would be smaller; When the plaintiff moved up in the seat his weight on the seat was reduced;[43]
4.The seat could reach its lowest point abruptly[44] but a firm shock absorption setting will increased the dampening effect of the seat shock absorption mechanism and the seat would have a better chance of absorbing downward forces reducing the risk of injury;[45]
5.If the plaintiff was wearing a seatbelt that would have limited the plaintiff's upward acceleration;[46]
6.The rate of acceleration of the seat in the vertical plane and hence the force on the plaintiff was dependent on the motion of the bus as it went over the corrugations.[47] The force on a driver, in this case the plaintiff would be affected by how the bus went over the corrugations, the speed the bus was travelling along with the weight of the driver, the height of the seat and the suspension setting. A change to any of those variables would have altered the outcome for the plaintiff;[48]
7.The faster the seat decelerated at either the top of its range of movement or at the bottom the more aggressive the shock will be to the spine. If the seat bottomed out then the last amount of downward acceleration could not be attenuated and the full impact of the force would be transferred through the bottom of the seat;[49] and
8.Compression forces alone could not cause damage to the spine's processes and it was most likely that it was the combination of compressive forces (caused by deceleration) plus the shear loads caused by the flexion of the neck and head.[50]
[42] ts 129 ‑ ts 130 (Mr Pattullo); ts 142, ts 155 (Dr Chew); Exhibit 1.32 - 56, pages 14 and 15.
[43] Dr Chew, Professor Ackland and Mr Pattullo; Exhibit 2.72 - 93, pages 10 ‑ 12; ts 355.
[44] ts 155 - ts 156, ts 164 - ts 165 (Dr Chew); Exhibit 2.72 - 93, page 9 (Professor Ackland).
[45] ts 143, ts 152, ts 160 - ts 161 (Dr Chew).
[46] ts 157 (Dr Chew); ts 354 (Professor Ackland).
[47] ts 159 (Dr Chew).
[48] ts 161 (Dr Chew); Exhibit 2.72 - 93, pages 10 - 11, ts 358 (Professor Ackland).
[49] ts 355 (Professor Ackland).
[50] ts 355 - ts 356.
I have already set out my reasons for finding that the injury occurred when the plaintiff's seat was travelling down.
In his report, Professor Ackland made the point that in testing he was only able to make the seat 'bottom out' when it was on its softest suspension setting and the height of the seat was on the low setting. That testing was undertaken while the bus was running but stationary and he conceded that the movement of the bus would substantially impact on the forces on the seat.[51]
[51] ts 335 (Professor Ackland).
The Professor's evidence was also that the way in which the suspension system was designed to operate was that it would dampen the downward motion and it would do so over a longer distance in the softer setting.[52] If the force of downward travel was over a longer moment, the compressive shock could be less ie if the seat glided to a stop over a long distance. In an abrupt deceleration (as when the seat reached the floor and bottomed out) the full force of impact was transported through the body.[53]
[52] Exhibit 2, pars 72 - 93, pages 12 - 13.
[53] ts 355 (Professor Ackland).
That evidence is, in my view, consistent with the plaintiff's evidence that when the seat reached the bottom there was a big bang and the seat did not absorb the shock.
I find that the plaintiff was not told on induction that the seat required some form of resistance in the suspension to ensure that the seat was not 'on a hard floor', so that it had sufficient resistance to avoid large movement of the seat under force culminating in an abrupt stop and so as to militate against the risk of injury.
I also find that the plaintiff's injury occurred not only when the seat reached its bottom most point of travel but when it came to an abrupt stop, or to use the colloquial term, when it ‘bottomed out' when the seat hit the hard floor. I note this finding as it is consistent with the plaintiff's evidence and with the expert evidence I have set out that a soft setting would have allowed the seat to glide to a halt unless it came to an abrupt halt.
In this case the distinction between the seat coming to a halt and it coming to an abrupt halt is not a distinction without a difference. The event of the seat coming to an abrupt halt is one which would cause the most compressive force on the plaintiff and be the most likely to cause injury.
The injury suffered by the plaintiff
As I have already said, it is not in issue that the plaintiff suffered an injury to his spinal cord at the C5/C6 level which required surgery and that he has a greater than 25% whole body impairment as a consequence of that injury.
The plaintiff described, as outlined above, that after going over the corrugations he immediately felt a 'big pain' in his neck and his hand started to be numb.[54]
[54] Paragraph 91(a), ts 43.
The plaintiff continued through the intersection and brought the bus to a halt in the terminal. He called for help on his radio and was taken to the depot.
Later the plaintiff sat in his car and continued to have pain, mainly in his neck and in his back and numbness and pain in both shoulders and hands. He was then taken to hospital.
The plaintiff required immediate admission to the Armadale Hospital Emergency Department for injury to his spinal cord at C5/C6 level. Investigations in the form of a CT scan and X‑rays were undertaken before he was transferred to Royal Perth Hospital in the early hours of 12 June 2015.
The plaintiff stayed in hospital until 13 June 2015 and during that time he was kept immobile to prevent possible further and catastrophic injury to his spinal cord.
The plaintiff was reviewed by Dr Jeffs, a consultant neurosurgeon, on 26 June 2015 and was then found to have a very prominent, large disc/osteophyte complex at C5/C6 with an element of disc protrusion confirmed on MRI scan. Dr Jeffs diagnosed the plaintiff to be suffering from central cord syndrome which is an incomplete spinal cord injury usually resulting from trauma.
The MRI scan of the plaintiff's spinal cord confirmed that there had been an intrinsic cord signal change which was consistent with both swelling associated with the acute injury and injury to the cord itself.[55] A signal change means a disruption to normal nerve transmission in the spine.
[55] Exhibit 1.147.
On 26 June 2015 Dr Jeffs thought that the acute injury to the plaintiff's spinal cord would remain inherently unstable and degenerate over time and that there was a possibility of future catastrophic loss of function in the event of a later fall or other accident.[56] Dr Jeffs proposed that the plaintiff be treated with an anterior cervical discectomy and fusion.
[56] Exhibit 1.147.
Dr Jeffs then also expressed the view that notwithstanding the plaintiff had pre‑existing chronic degenerative but asymptomatic changes in the nature of osteophytes in the spine,[57] the plaintiff would not have developed the acute disc protrusion, the cord injury or certain other symptoms but for travelling over the bump in the road.[58]
[57] Bony protrusions associated in this case with age related deterioration of the spine.
[58] Exhibit 1.148.
Dr Jeffs reviewed the plaintiff again before surgery on 25 August 2015. At that time the plaintiff's clinical picture had improved with the swelling around the cord reducing but the large disc protrusion persisted and there was evidence of foraminal stenosis at the C5/C6 level and continued cord distortion.
In August 2015 there remained a subtle signal change (reduced from the earlier MRI) but overall the signs were encouraging[59] however there remained, in Dr Jeffs' view, a significant risk of catastrophic deterioration or possibly quadriplegia if the plaintiff were to suffer a second injury at the same level.[60] For this reason Dr Jeffs still recommended surgery to stabilise the plaintiff's neck and prevent further injury.
[59] Exhibit 1.148 ‑ 149.
[60] Exhibit 1.148 ‑ 149.
The plaintiff underwent an anterior cervical discectomy and fusion performed by Dr Jeffs on 3 October 2015.
The plaintiff was again reviewed by Dr Jeffs on 9 December 2015 at which time the plaintiff had made a good but partial recovery. He was still experiencing subtle weakness of C6 ‑ T1 enervated muscles and this was restricting power in his arms.[61] Dr Jeffs reported that the plaintiff then complained of some other symptoms such as difficulties with bowel function, incontinence, double vision, balance and tinnitus and he suggested a follow up MRI of the cervical, thoracic and lumbar spine to see if there was a persisting loss of cord signal at the cervical area or some other problem.[62]
[61] Exhibit 1.153.
[62] Exhibit 1.153.
Dr Jeffs last reviewed the plaintiff on 26 October 2018 and reported that the plaintiff then reported ongoing symptomology including numbness in his upper limbs and discomfort in the neck. Further imaging (then recently undertaken) showed a solid union at C5/C6 with no compression of the cord or nerves. Dr Jeffs said:
The radiologist is content that there is no ongoing signal change in the cord and I am inclined to accept this, although initially I thought that there may have been some subtle cord signal change at the 5/6 level. [63]
[63] Exhibit 1.158.
Neither Dr Jeffs nor the radiologist were called to give evidence about the existence of a subtle ongoing cord change or its absence as at October 2018 and other medical evidence which I will set out below was supportive of Dr Jeffs' initial thought that there was a subtle cord change.
Dr Jeffs then expressed a view that the plaintiff had made a satisfactory neurological recovery with the treatment resulting in the cord being safe and stable and not showing dramatic sequelae. Dr Jeffs recorded that the plaintiff was reporting ongoing numbness in his hands exacerbated at night time and this was thought be Dr Jeffs to be related to carpel tunnel syndrome. I pause here to note that the plaintiff later underwent surgery for carpel tunnel syndrome. After that surgery he still had symptoms consistent with the injury at C5/6.[64]
[64] ts 89 ‑ ts 90.
Dr Jeffs also expressed the view[65] that the plaintiff had then made the maximum physical recovery from the injury he had suffered and from the surgery that followed. Dr Jeffs at that time also expressed the view that psychiatric and mood related issues appeared to be a greater impediment to the plaintiff returning to work than any neurological symptoms.
[65] Exhibit 1.158.
The extent of any residual injury
Dr Jeffs' view was that the plaintiff had made the maximum physical recovery from his injury and the surgery does not mean that the plaintiff had made a full recovery with no ongoing symptoms or residual injury.
The plaintiff's claim is that he has symptoms of ongoing pain in his neck and back, along with an inability to properly turn his head, numbness and weakness in his hands, urinary incontinence and sexual dysfunction, along with psychological injury.
The defendant put the plaintiff to the proof of all of these impairments while admitting a 25% whole of body impairment[66] and so jurisdiction for the plaintiff to proceed with his claim.
[66]That figure arises as I understand, as a consequence of the necessity and undergoing of a cervical discectomy and fusion.
Before addressing each of those matters in turn I note that the plaintiff appeared to me to be a witness of truth who was trying, to the best of his ability, to give his evidence about all matters including his ongoing symptoms.
I have no doubt that the immediate aftermath of the accident was very traumatic for the plaintiff and, for reasons I will set out below, I find he does have considerable residual symptoms and he was not deliberately overstating his injuries.
Pain in his neck and back and inability to properly turn his head
The plaintiff's evidence was that he had constant pain in his neck and back and limited movement in his neck.
His evidence was that he had developed a technique of turning his torso and using his shoulders to compensate for the limited movement[67] but also that his movement had continued to improve up until trial especially with physiotherapy.
[67] ts 61.
The plaintiff's evidence was also that he could not lift heavy objects or squat down properly.[68] The plaintiff was not cross‑examined about his pain or his ability to lift heavy objects or squat down properly.
[68] ts 61.
He was however cross‑examined about his range of movement in his neck.
In his evidence‑in‑chief the plaintiff was asked to demonstrate the limited movement in his neck. I pause here to note that the limitation on movement was in turning his neck from side to side and it was not suggested by the plaintiff that he had any difficulty with nodding his head or any particular difficulty with other movements of his neck. It was put to the plaintiff in cross‑examination that the demonstrated movement of the plaintiff's neck was a range of about 45 degrees from centre on each side but the plaintiff did not agree with that.[69]
[69] ts 82.
My observation was that the plaintiff demonstrated a movement of more than 45 degrees and less than 90 degrees but his movement after about 45 degrees was more restricted.
When the plaintiff was asked in cross-examination if he could turn his chin to his shoulder, ie to 90 degrees, to look across his shoulder the plaintiff responded that he was too afraid to do so because when he did there was a noise and it terrified him.[70]
[70] ts 82.
The defendant relied on surveillance video showing the plaintiff undertaking various mundane tasks such as shopping, waiting for public transport and catching it. The plaintiff was asked in cross‑examination about his ability to reach for things in the supermarket and he confirmed that he could reach for things but only to a certain height.[71]
[71] ts 98.
The defendant pointed to certain other actions which it said demonstrated the plaintiff did not have significantly limited movement in his neck. For instance on a number of occasions in the surveillance video the plaintiff bent his neck forward to use his mobile phone and send text messages and, while he was travelling on a bus, there was an occasion where he looked over his shoulder while his arm was across the back of the bus seat.
The plaintiff was cross‑examined about him turning his head on the bus and the plaintiff pointed out that while he appeared to make a full (90 degree) movement of his neck, he was sitting on the seat with his torso at an angle to the seat.[72]
[72] ts 98.
I have reviewed those videos and in my view none of them show actions that are inconsistent with the plaintiff's evidence.
Dr Overmeire confirmed that pain in the neck and shoulders could be caused by a number of things including the original injury but also a subsequent onset of muscle tightness in the area leading to pain. Muscle tightness would also restrict movement. Dr Overmeire also confirmed that pain was a subjective thing and that there were no radiological signs which would indicate either the presence or absence of pain.
I also find from my observations of the plaintiff in the witness box and on the video, along with his evidence and the evidence of Professor Stokes, Dr Cordova and Dr Overmeire that the plaintiff does still suffer from a degree of impairment in the movement of his neck.
Whether that impairment is caused by the original injury or by subsequent muscle tightness following on injury as described by Dr Overmeire, is of no import. It is not necessary for me to find the specific range of movement that the plaintiff now has but I do find in accordance with Dr Overmeire's evidence, along with the plaintiff's own observations, that continued physiotherapy would allow the plaintiff to maintain a better range of movement in his neck without succumbing to the pain or fear now associated with that movement.
In regard to whether the plaintiff is suffering restricted movement and pain in his neck I have preferred the evidence of Professor Stokes, Dr Cordova and Dr Overmeire over that of Dr Grainger who noted in June 2019 in his report,[73] good cervical movements and no pain over the cervical spine.
[73] Exhibit 2.23 - 32.
Regrettably Dr Grainger was not taken to that comment in cross‑examination or in examination‑in‑chief so I am left with an incomplete understanding of what he meant or how he reached those conclusions. Dr Grainger expressed doubt in his reports and in his evidence about the extent of the plaintiff's reported symptoms and in doing so he put a great deal of reliance on the lack of radiological findings on MRI scan.
In my view, Dr Grainger was too ready to discount what he considered to be subjectively reported symptoms where he considered them to be inconsistent with radiological findings. This was notwithstanding that Dr Grainger had agreed in cross‑examination that people could have quite significant symptoms with relatively modest changes radiologically and that a majority of the studies find a relatively poor correlation between findings on scans and the level of symptomology.[74]
[74] ts 394.
Further, Dr Grainger had himself observed marked weakness in finger flexion and loss of pain sensation along the whole of the lateral arm and to the first, second and third fingers on the right hand and left hand, along with a lack of pain around the perineal region which I will come back to, each of which could be said to be inconsistent with the MRI scans.
In the circumstances I find it difficult to place much weight on what Dr Grainger had to say in this matter when it was inconsistent with the plaintiff's evidence and the evidence of other doctors.
I find that the plaintiff does suffer restricted movement in turning his neck and is restricted when raising his arms above a certain height.
I accept the plaintiff's evidence that he continues to suffer pain in his neck. There was other evidence that he has been taking painkillers for some time and there was no objective evidence that would lead me to conclude that he was not in pain.
Ongoing weakness in the plaintiff's hand
Immediately after the accident the plaintiff described numbness down both arms into his hands.
At trial the plaintiff continued to complain of numbness in his arms and in his hands and weakness in his hands. He was not cross‑examined about the ongoing weakness in his hands and it was a feature of the plaintiff's presentation that was commented on and confirmed in August 2018 by Professor Stokes,[75] Dr Overmeire,[76] Dr Cordova,[77] and Dr Grainger.[78]
[75] Exhibit 1.302 ‑ 306.
[76] Exhibit 1.169 - 181.
[77] Exhibit 1.87.
[78] Exhibit 2.23 - 32.
The plaintiff described that his fingers do not want to listen to him. If he holds things for long he gets cramps,[79] he cuts himself and burns himself when cooking because he cannot feel things properly with three of his fingers on each hand.[80]
[79] ts 54.
[80] ts 61.
He also said that while he was in Romania between December 2015 and August 2018 he had 20 sessions of remedial massage therapy[81] and saw a neurologist there. He had a further 10 sessions of remedial massage, physiotherapy and exercise physiotherapy at the gym and that helped him with his pain[82] but that he remained clumsy[83] although more recently the drug Lyrica had assisted to some extent with those symptoms.
[81] ts 580.
[82] ts 60 - ts 61.
[83] ts 67.
I have already mentioned that in his report of 26 October 2018 Dr Jeffs[84] bowed to the opinion of the radiologist as to whether there was an ongoing signal change at C5/6 but Professor Stokes[85] noted that an MRI scan on 7 June 2019 showed a very faint spinal cord signal.
[84] Exhibit 1.158 - 159.
[85] Exhibit 1.316 ‑ 321, page 2.
The ongoing nature of the plaintiff's symptoms of pain and loss of function in his hands along with numbness and weakness are consistent with there being a continued subtle signal change at the site of the plaintiff's injuries. In other words, the insult to the plaintiff's spinal cord has not completely resolved.
I find that that there is an ongoing neurological cause arising from the injury for the weakness and numbness in the plaintiff's hand.
Urinary incontinence and sexual dysfunction
The plaintiff's evidence was that he had developed urinary incontinence soon after the accident and a little later he said it was from the first day.[86] He confirmed that it was ongoing.
[86] ts 53 - ts 54.
The plaintiff said that his urinary incontinence took the form of being unable to empty his bladder.[87] He had to wait for his bladder to empty. He had also suffered unexpected and uncontrolled episodes of urination.[88]
[87] ts 53.
[88] ts 61.
He gave evidence that he saw an urologist on two occasions in Romania and that also he had seen Dr Thavaseelan in Perth.
With respect to his sexual dysfunction the plaintiff said that since the accident he had been unable to have an erection or maintain it[89] and he had an ongoing problem with sexual dysfunction.[90]
[89] ts 53.
[90] ts 61.
The plaintiff was not cross-examined about the existence of his urinary incontinence or his sexual dysfunction and so I can accept that he suffers from those deficits.
The defendant relied on the evidence of Dr Grainger and Dr Overmiere that the symptom of urinary incontinence and sexual dysfunction were unlikely to be related to injury at C5/C6 level.
Dr Grainger's view was that the plaintiff's urinary problems and the numbness or lack of pain response in the plaintiff's perineum were likely to be caused by conus medullaris or cauda equina lesion, which occur in the lumbar spine. On MRI neither of those conditions were shown to be present.
It was also the evidence of Dr Overmiere[91] that the plaintiff's perineal numbness and bladder symptoms were more likely to be by reason of nerve damage at the lumbar sacral level of the spine and he found it difficult to attribute those injuries to a cervical spinal cord injury.
[91] ts 237; Exhibit 2.23 ‑ 32; Exhibit 2.33 - 36.
Dr Grainger supported his view by reference to what he understood to be the absence of any mention of urinary problems to a Dr Weeks (whose report was not relied on in this matter) or to Dr Jeffs and only, at a late stage, to Professor Stokes.
Dr Grainger was mistaken in his belief that the plaintiff had made a late disclosure. The plaintiff made an early disclosure of the problems of urinary incontinence and also sexual dysfunction in a statement which he gave to the defendant on 13 August 2015.[92] That statement was tendered by the defendant for other purposes but at par 74 these symptoms were disclosed only shortly after the plaintiff had suffered the accident and before he had undergone surgery to stabilise his spinal injury.
[92] Exhibit 2.111 - 120.
Further, Professor Stokes is clear in his various reports, starting with his report of 17 May 2017[93] that a reduction in sensation in the perineum, the relevant area, was most likely reflected a minor central cord lesion and that, consistent with this, the plaintiff was still showing signs of bilateral C6 radiculopathy. At that early stage Professor Stokes thought that this may improve over time.
[93] Exhibit 1.246 ‑ 252; Exhibit 1.257 ‑ 259, Exhibit 1.263 ‑ 265; Exhibit 1.268 - 273.
On 16 August 2018[94] Professor Stokes was still of the view that there was elements of central cord syndrome still present and on 27 September 2018 he maintained his view that there was no change.
[94] Exhibit 1.302 - 306.
The last review by Professor Stokes was on 4 September 2019. In his report dated 5 September 2019 Professor Stokes described the plaintiff's ongoing disabilities including urinary incontinence and faecal incontinence for which the plaintiff was seeing Dr Thavaseelan and referred to an MRI on 7 June 2019 that showed a very faint spinal cord signal.[95] While Professor Stokes commented that the fusion operation appeared sound he confirmed his view that the plaintiff's symptoms arose from the accident which was still materially contributing to his symptoms.
[95] Exhibit 1.316 - 320.
Finally, in respect to the urinary incontinence, Dr Thavaseelan gave evidence and his report was admitted into evidence.
Dr Thavaseelan is a specialist urologist and from his initial assessment he was of the view that the plaintiff had a neurogenic bladder. A neurogenic bladder means that a person lacks bladder control due to a spinal, brain or nerve problem. In that regard he has not been able to undertake the sort of testing that he would like to undertake to confirm that position because of a failure of the insurer in this case to meet the cost.
It was clear from Dr Thavaseelan's report and his evidence that in his view it was not unusual to see persons who had suffered from a central cord syndrome presenting with urological symptoms of this type although with proper treatment they would usually, eventually, see a good recovery.
Dr Thavaseelan's evidence was that interruption in the signal through any part of the spinal cord, whether transient or permanent, could cause damage at the bladder site resulting in a neurogenic bladder. In this case I have already found that the interruption to the signal has not completely resolved.
In a person developing urological difficulties soon after a spinal injury, once the interruptions were established, the patient may not have a return to ordinary bladder function although with neurogenic patients receiving the right treatment they may do so.
He also explained that with any patient suffered a neurogenic bladder, their symptoms could come and go and that they therefore needed ongoing review with the urologist in the years going forward.
Dr Thavaseelan further said that bladder dysfunction could also occur as a side effect of pain relief or of antidepressant medication and that anxiety could also have a role but that the plaintiff's symptoms fit with what he would expect from a neurogenic overactive bladder however without performing a specific test, urodynamics, he could not definitely tease out cause and effect in this case.
I accept the plaintiff's evidence that he has had both ongoing urinary incontinence, and sexual dysfunction from a time soon after the accident and surgery. There is medical evidence to support the plaintiff's case that those injuries can be caused by the central cord syndrome he suffered by reason of the accident.
The evidence of the plaintiff as to the onset of symptoms which is consistent with his August 2015 statement when taken together with the evidence of Professor Stokes and Dr Thavaseelan are sufficient to cause me to infer that the accident was the cause of the plaintiff's urinary incontinence and sexual dysfunction notwithstanding the evidence of Dr Grainger and Dr Overmiere.
This is particularly so because Dr Grainger acknowledged there was no other obvious cause established on MRI and that the unusual was not impossible.[96]
[96] ts 387.
The emotional state of the plaintiff and the effect of depressive illness
The plaintiff's evidence was that when he initially attended at the hospital he was told he would have to lie still because if he moved he might become a quadriplegic.[97]
[97] ts 49.
He was then in total confusion and very anxious about 'what's going to be and how it's going to be'.[98]
[98] ts 49.
The plaintiff's evidence was that he still wakes up at night and cannot sleep, thinking about 'what if' and he described repetitive thoughts.[99]
[99] ts 50.
He described recently having had a panic attack when travelling in a car passing through the intersection at which the accident occurred.
Finally the plaintiff described that all of his energy was gone 'like boonk' and he has been in a pretty deep depressive state.[100] He isolates a lot.[101]
[100] ts 53.
[101] ts 61.
He also said that all of his plans had gone including a plan to marry his Romanian girlfriend and to buy a house in Willetton and since the accident he has remained in a depressive state.
The plaintiff has had treatment with Dr George who prescribed antidepressants and also psychological counselling sessions with Dr Atartis and Ms Ebbs.
I have read the report of Dr Laugharne,[102] who is a psychiatrist and who diagnosed the plaintiff with a major depressive disorder arising out of the accident. In addition I heard the evidence of Dr Gemma Edwards‑Smith, another psychiatrist, and read her reports.[103]
[102] Exhibit 1, pages 160 - 168.
[103] Exhibit 1, pages 112 - 126.
Dr Gemma Edwards‑Smith was of the view that the plaintiff had suffered a major depressive episode which had developed as a condition secondary to the physical symptoms he was then undergoing.
Dr Edwards-Smith said that the plaintiff had made a partial recovery including some positive responses to recent treatment. In her view the plaintiff was likely to improve over time after these proceedings are finalised and if he can return to work part‑time, but, he is likely to be left with residuary secondary psychological symptoms of low and anxious mood.
I am satisfied that as a consequence of his injuries the plaintiff has suffered and continues to suffer from a major depressive episode which has significantly impacted on him in terms of his enjoyment of life and his ability to concentrate,[104] and which includes an ongoing feeling that all of his manhood has gone.[105]
[104] ts 62.
[105] ts 62.
Notwithstanding his depression, the plaintiff is a man who has taken considerable steps to improve his lot. In particular he undertook treatment while he was living in Romania after the accident, after he was told he was able to undertake part‑time work in May ‑ June 2019 he attempted to find work,[106] he undertook a life coaching course in an effort to address his depression and potentially develop a new career[107] and he remains of the view that he would like to work.
[106] ts 63.
[107] ts 65.
The plaintiff has been a very hard worker. He has an engineering degree and worked in mining in Europe before immigrating to New Zealand where he worked in a variety of different industries including as an air‑conditioner engineer and installer in New Zealand and in the purchase and renovation and sale of homes while in New Zealand before he came to Australia.
He had long‑time work as a mining engineer and has worked with both his professional skills and regularly he would work manually alongside the labouring staff when he was working as a mining engineer. He was ambitious and considered that but for his accident could have worked as a depot co‑ordinator or an operations manager in the bus driving industry.[108]
[108] ts 69.
While it is the plaintiff's strong preference to return to work, it would appear that all of his doctors were of the view that he would be limited in some of the work that he could undertake both because of his ongoing physical injuries and the effects of depression on him. He has recently had his qualifications as an engineer recognised in Western Australia but the medical opinion is that he would still be prevented from working on a full‑time basis, at least in the immediate foreseeable future, because of the nature of his injuries and ongoing symptomology including the depressive illness that he is still suffering from.
Evidence of Professor Stokes, Dr Cordova and Dr Overmiere as to residual capacity to work
Professor Stokes' evidence was led by the tendering of his reports of his consultations with the plaintiff. He was not cross‑examined.
Professor Stokes was consulted by both the defendant's insurer and also the plaintiff.
When Professor Stokes first met with the plaintiff on 17 May 2017 and undertook a clinical examination of the plaintiff.
Professor Stokes was specifically asked at that time whether the plaintiff was exaggerating his symptoms either consciously or subconsciously and was of the view that the plaintiff was not.[109]
[109] Exhibit 1.263 - 265.
In August 2017 Professor Stokes reviewed surveillance footage of the plaintiff taken on 11 and 17 May 2017 and provided a further report[110] with respect to that footage in which Professor the plaintiff showed reasonable movement to his neck when buying fruit and vegetables. Professor Stokes said of that video 'in all of the footage, [the plaintiff] did nothing extraordinary, although he did have more movement of his neck than he had explained to me'.
[110] Exhibit 1.282 - 284.
Professor Stokes also indicated that a slight limp in the right leg and the walking on the ball of the right foot indicated that there may be some spasticity in the plaintiff's right leg which he seemed to attribute to the accident. The plaintiff does not complain of loss of function related to that although he, while in consultation with a number of doctors, referred to occasional right leg pain.
Professor Stokes was then of the view that there was some work that the plaintiff could undertake and suggested a return to work program for work in an administrative capacity but was firmly of the view, which he has maintained till his final report, that the plaintiff could not return to work as a bus driver.[111]
[111] Exhibit 1.287 - 288.
I have already set out above the evidence from which I can conclude that the plaintiff's injury occurred when the seat came down. Further the plaintiff's evidence was that when the seat came down it went 'bang'. It reached an abrupt halt and did not glide to a stop. I find that the seat bottomed out.
From the whole of the evidence already outlined, including the expert evidence that there was a greater force on an abrupt deceleration, I infer that the fact that the plaintiff had the seat in the softest suspension setting was a substantial cause of the injury.
In this situation it was accepted by both Dr Chew and Professor Ackland that it was unlikely that the seat would have come to an abrupt halt had it been on a firmer setting. In my view those circumstances allow me to be positively satisfied that I can draw the inference[139] that the injury occurred when the seat abruptly came to a halt rather than this matter being left in a state of conjecture in the sense described by Kiefel J in Roads and Traffic Authority v Royal.[140]
[139] See McGhee v National Coal Board [1973] 1 WLR 1; [1972] 3 All ER 1008; Wilsher v Essex Area Health Authority [1988] 2 WLR 557, along with The State of Western Australia v Watson.
[140] Roads and Traffic Authority v Royal [2008] HCA 19 [135], [139].
I reach that conclusion notwithstanding the evidence that the nature of the plaintiff's pre-existing degenerative disk change meant he was susceptible to injury by reason of a relatively small application of force and where injury could have been caused by an otherwise innocuous actions such as sneezing or by as little as 10 cm of movement of the seat. I will come back to this later.
I reach this conclusion by process of inferential reasoning. I reached the conclusion that the defendant's failure to take the precaution of warning the plaintiff together with its failure to reinforce its warnings on the various occasions that the plaintiff was thereafter assessed means that the failure to warn caused or materially contributed to the plaintiff's risk of injury. Where, as here, the risk to be warned against has eventuated it is appropriate the favourable inference is drawn on the plaintiff's case: Ross v Associated Portland Cement Manufacturers;[141] O'Donnell v McKenzie.[142]
[141] Ross v Associated Portland Cement Manufacturers [1964] 1 WLR 768, 775.
[142] O'Donnell v McKenzie [1967] SC 58, 63.
Turning now to the second issue on causation. The defendant took the position that there was no evidence from the plaintiff that, had he been told about the risk of injury, would have adjusted the seat to a firmer setting and this meant that causation could not be established.
In the absence of the express evidence of the plaintiff about what he might have done in that circumstance it is open to the court to consider if the inference can be drawn from the whole of the evidence.[143]
[143] Sidhu v Van Dyke [2014] HCA 19 [64]; Gould v Vaggelas (1985) 157 CLR 215 [238] - [239].
There was ample evidence from which I can conclude on the balance of probabilities that the plaintiff would not have left his seat on the softest suspension setting. That evidence is:
1.The plaintiff faithfully followed the instructions he had been given at his induction in regard to setting up the bus and its seat as confirmed on his regular assessments during his employment;[144]
2.The plaintiff adopted appropriate safety precautions when driving, such as wearing his seatbelt;
3.The plaintiff had no reason to believe that the seat would not operate to cushion his travel across that intersection as it had on previous occasions[145] and in the absence of any warning it had not occurred to him that that could occur and he could be injured.[146] This means that no inference to the contrary could be drawn simply by him having been jolted when driving across the intersection on a day prior to the 15 June 2015 or earlier in the day;
4.As at 11 June 2015 he had no ongoing medical problems, he was well and looking forward to his future.[147] In regard to those matters I also note that:
(a)The plaintiff had a varied work history. He described in his evidence that he had always brought to his work, even as an engineer working as a quarry manager, or production manager at a mine a physical contribution to the manual labour in various demanding ways.[148] He clearly valued and used his physical prowess; and
(b)Prior to the accident he was physically active would walk in the mountains and go skiing;[149] he had a girlfriend and was able to be intimate with her; he cooked and lived independently.
5.It was not put to the plaintiff in cross-examination that he would have put concerns about safety to one side and adjusted the seat for comfort had he been aware of the risk. Both Mr Patton or Mr Powers adjusted their seats for their own comfort[150] but in each case their comfort led to a harder suspension setting being chosen.
[144] ts 34 - ts 35.
[145] ts 40.
[146] ts 42.
[147] ts 42, ts 62.
[148] ts 25 - ts 32, ts 56.
[149] ts 62.
[150] ts 118, ts 108.
It is reasonable to expect that a person like the plaintiff who valued his physical prowess and his job would not have put himself at risk of injury without a good reason to do so.
I am satisfied that I can draw the inference that the plaintiff would not have had his seat on the softest suspension setting had he thought that would put his health at risk and had the plaintiff been told about the risk of injury associated with having the seat on too low a suspension setting, I am satisfied that it is probable that he would have set it to a firmer setting but still one consistent with comfort.
Accordingly, I find the plaintiff's claim made out.
Assessment of damages
Turning now to the assessment of damages. The heads of damages and the methodology I should follow in the assessment of damages was uncontentious between the parties. The parties have not however agreed to the damages suffered by the plaintiff and therefore damages must be assessed.
The calculation as to damages proceeded upon the following assumption of multipliers:
1.Multiplier to end of life (6%): 785.6
2.Multiplier to two years (6%): 98.5; and
3.Multiplier to 17 years deferred for two years (6%): 562.9 x 0.890.
The principles that apply in the assessment of loss of earning capacity is neatly summarised by Stavrianou DCJ in Vincent v Atkinson:[151]
[151] Vincent v Atkinson [2017] WADC 155 [307] - [312].
307The principles in relation to assessment of loss of earning capacity may be shortly stated by reference to accepted authority which I apply.
308In Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 [3], the High Court identified that a court in assessing loss of earning capacity must be satisfied as to two matters. The first of those requirements is the predictable one, that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injuries. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damage for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is the 'diminution of ... earning capacity is or may be productive of financial loss' (Graham v Baker [1961] HCA 48; (1961) 106 CLR 340, 347).
309Lord Diplock, in Paul v Rendell (1981) 34 ALR 569, 471, expressed the matter of assessment of economic loss as follows:
... The assessment of economic loss involves the double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured.
310 In Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, the approach to the assessment of the likelihood of future or potential events occurring was dealt with by the High Court. Deane, Gaudron and McHugh JJ in their joint judgment said (642 - 643):
... When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred.
If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9% - or very low - 0.1%. But unless the chance is so low as to be regarded as - say, over 99% - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51% probability of occurring, but to ignore altogether a prediction which has a 49% probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.
The adjustment may increase or decrease the amount of damages otherwise to be awarded: Mallett v McMonagle [1970] AC 166, 174; Davies v Taylor [1974] AC 207, 212, 219; McIntosh v Williams [1979] 2 NSWLR 543, 550 - 551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.
311Brennan and Dawson JJ stated that the ascertainment of future earning capacity involves an evaluation of possibilities as distinct from establishing a fact as a matter of history. Their Honours said (639 - 640):
Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.
312The assessment of damages for personal injuries in an action for negligence is not an exact science. The process must be governed by considerations of practical common sense in the context of the facts of the particular case. Damages for financial loss likely to result from personal injury can only be an estimate, often a very rough estimate, of the present value of the prospective loss. Montemaggiori v Wilson [2011] WASCA 177 [28] - [30].
I adopt and accept the principles outlined above.
General damages for pain and suffering and loss of amenities
I have already set out my findings about the injury suffered by the plaintiff. In the immediate aftermath of the accident the plaintiff experienced significant fear and distress about his spinal injury. Since then he has lived with ongoing pain, the loss of function in his arms and hands, difficulty in urinary function and loss of sexual function. He developed a major depressive illness and continues to suffer a loss of enjoyment of life, ongoing anxiety and struggles with mental health.
There has also been an impact on the plaintiff's personal life arising out of his inability to return to work despite his inability to undertake some recreational activities he previously enjoyed, such as hiking and cooking. His relationship broke down. He has not lived alone. These matters are expected to improve over time but he will not return to his pre-accident physical or mental condition.
In my view these impacts on the plaintiff's enjoyment of life have been considerable. Accordingly, I assess general damages in the sum of $130,000.
Past loss of earnings
The plaintiff's position is that the plaintiff became totally unfit for work as a full‑time bus driver or at all as a consequence of the accident. Further, he remained unfit for work until the date of trial and he should be compensated for the whole of that period of lost earnings on the basis that he would have be paid $85,000 gross per annum ($1,6335 gross weekly/$1233 net weekly) during that period.
The defendant's position is that the plaintiff travelled to Romania not long after the accident and did not return until August 2018. The defendant said the evidence of Dr Jeffs was that he would have expected the plaintiff to recover sufficiently to return to work within 8 ‑ 10 months of the accident[152] but by staying in Romania after the plaintiff should have seen the effects of recovery the plaintiff made himself unavailable for work.[153]
[152] ts 490.
[153] ts 490.
In a report dated September 2016 Dr Jeffs had predicted a return to work by the plaintiff within 8 ‑ 10 months and certainly within a year.[154] At that time it would appear that Dr Jeffs had not seen the plaintiff since December 2015.
[154] Exhibit 1.154 - 156.
Once Dr Jeffs reviewed the plaintiff again 26 October 2018 Dr Jeffs recorded that the plaintiff had ongoing symptomology but expressed the view that there was a satisfactory neurological recovery because the injury had been treated, the cord was safe and stable and did not show dramatic sequelae.
Dr Jeffs was then optimistic in respect to the plaintiff's physical health that the plaintiff could return to a fairly normal duties in his working life but that a return to work was then complicated by psychological factors like depression.
As might be expected other doctors held different views. They were as follows:
1.Professor Stokes: who when he first saw the plaintiff in May 2017 considered him unfit for work at all.[155] Professor Stokes last saw the plaintiff on 5 September 2019 at which time Professor Stokes was of the view that the plaintiff then had the capacity to be given a work trial;[156]
2.Dr Overmeire: who formed the view at 15 August 2018 and as at September 2019[157] that the plaintiff was then fit for rehabilitation consisting of 12 weeks of physiotherapy instruction and supervision and thereafter suitable for a graduated return to work. The plaintiff remained unfit for work as a bus driver but would be fit for full‑time sedentary, semi-sedentary and light physical occupations after physiotherapy and graduated return to work program;
3.Dr Laugharne, a consultant psychiatrist who was not called to give evidence but whose reports were tendered by consent diagnosed the plaintiff in September 2018 as suffering from a major depressive disorder which then made him unfit for work at all;[158]
4.Dr Cordova: as at 30 September 2019, was of the view that the plaintiff had improved to the point of being able to participate in a paced and graduated return to work but prior to that date had been incapable of working;[159] and
5.Dr Edwards-Smith: who was of the view as at 2 May 2019 that the plaintiff was suffering from a major depressive episode and had not recovered sufficiently to work as a bus driver. Dr Edwards-Smith did consider that the plaintiff had then improved to the point that he was fit for part-time alternative duties once he had completed a rehabilitation and return to work program.[160]
[155] Exhibit 1.246 - 252.
[156] Exhibit 1.316 - 320.
[157] Exhibit 1.169 - 187; Exhibit 1.220 - 229 page 7.
[158] Exhibit 1.160 - 166.
[159] Exhibit 1.87 - 97; Exhibit 1.104 - 109.
[160] Exhibit 1.112 - 133.
From those reports and the evidence of each of Dr Cordova, Dr Overmiere and Dr Edwards-Smith set out above, I conclude that the plaintiff was unfit for work at all until such time he saw Dr Edwards-Smith in early May 2019 when he was first certified as fit to return to work on a part‑time basis.
This finding is consistent with Dr Jeff's opinion, which acknowledges the plaintiff's psychological difficulties and Dr Stokes opinion in September 2019, in other words at the date of trial, and consistent with the plaintiff's case at trial which was that he had then recovered sufficiently to return work and he wanted to do so. The plaintiff said he had participated in a return to work programme with a rehabilitation company Freshstart. There had been no jobs eventuate.[161]
[161] ts 63 ‑ ts 64.
There is no evidence that the plaintiff was fit for work in the period of time he spent in Romania. The plaintiff's evidence was that during that time he continued to access health services and took action to enhance his rehabilitation including his depressive illness.
Regrettably, the defendant terminated the plaintiff's employment and so there is no prospect of employment there and he has been unsuccessful in finding part‑time work elsewhere. His payments of workers' compensation insurance having been stopped on 16 April 2019. Further the plaintiff was not cross‑examined as to whether he had taken any further physiotherapy rehabilitation as recommended by Dr Overmeire.
Subject to a contingency to accommodate the plaintiff's family and other likely commitments in Romania, the plaintiff should be compensated for his past loss of earnings up until the date of trial at the rate of a full‑time bus driver. I will set out the evidence and make that calculation below.
The plaintiff had, over the several years between coming to Australia in August 2011 and the accident in June 2015 spent reasonably lengthy periods of time in Romania. He was in Romania for a year from April 2012 and returned in April 2013. Thereafter he was on unpaid leave between December 2013 and 20 May 2014 most of which time was spent in Romania, on unpaid leave for two month in July 2014 and August 2014 part of which was in Romania and for a further three weeks in February 2015. On those occasions he had returned to Romania to see his mother and girlfriend.
Following the accident, on 15 December 2015 the plaintiff returned to Romania and stayed there for the majority of the following 2 ½ years first of all because of concerns with his mother's health and later because he had difficulties associated with leaving because of some legal matters pertaining to his son. The plaintiff returned briefly to Australia in April 2016 and while here his mother died. He returned to Romania. The evidence established that his son left Romania for New Zealand in December 2016, but the plaintiff remained in Romania and tried to administer his mother's estate.[162]
[162] ts 66.
I am satisfied that the plaintiff would have returned to Romania at some stage between December 2015 and February 2016 because of his mother's health condition. Her health condition had been properly assessed by the end February 2016. He would have returned when his mother died in April 2016 and taken some time to administer her estate.
I am satisfied that while the plaintiff was entitled to paid leave after taking up full‑time employment in May 2015, there is a strong prospect that he would have taken unpaid additional time off work during those periods to assist his mother and settling her affairs in Romania. I am not satisfied that he would have stayed as long as he did if he had a full‑time job to come back to.
My finding that the plaintiff was likely to take additional time off is consistent with the plaintiff's evidence that when he worked overtime the overtime would be credited towards leave entitlements.[163]
[163] ts 70.
The plaintiff's evidence was that as a full‑time bus driver as at the date of the accident he worked a 37.5 hours work week but sought out overtime and would often work as much as 48 ‑ 50 hours a week,[164] including one shift on the weekend for which penalty rates were paid.
[164] ts 39.
The plaintiff's evidence was that once he became a full‑time worker he would earn about $1,400 per week in his hand,[165] and this was essentially about $85,000 ‑ $90,000 a year. As I have said his evidence was that he would attribute some of his overtime towards leave entitlements.[166] The plaintiff was not cross-examined about any of those assertions. The defendant submitted those figures were inconsistent with the plaintiff's tax returns before and after the accident.
[165] ts 68.
[166] ts 70.
Prior to May 2015 the plaintiff was employed on a casual basis and had spent unpaid time away from work. This explains the differences prior to the accident.
After the accident for instance, the taxation assessments of the 2015/2016 year, consisted largely of workers' compensation payments. They show a taxable income of $56,854 and for the 2016/2017 year, again consisting largely of workers' compensation payments, a figure of $62,954. On my calculation the average salary based on the tax returns was about $74,000 per annum.
The Workers' Compensation and Injury Management Act sets up a complicated regime of payment of weekly earning's depending on different variables: see sch 1. This was not the subject of any explanation or detailed submissions by the parties and so I am left in the situation where the plaintiff's evidence, was that he was earning somewhere in the region of $85,000 gross a year. This is supported by, Mr Patton, another bus driver who gave evidence, he was earning $85,000 gross a year as a full-time driver.
Accordingly, doing the best that I can I resolve that $85,000 gross per annum is what the plaintiff would have earned had he kept up his usual working hours including overtime. Based on that figure the plaintiff asserted in his written submissions that $85,000 per annum equates to a gross weekly figure $1,635 and a net weekly figure of $1,233. No objection was taken to those figures by the defendant.
The plaintiff's mother's condition was diagnosed in February 2016 and she died in April 2016. I find that the plaintiff would have likely to have returned to Romania for additional unpaid periods of weeks for her care and then to make arrangements after her death which I estimate to be about 7 weeks.
As at the 23 October 2019 the plaintiff had been off work for a total of 227 weeks and as at the date of this judgment there is a further 38 weeks taking that figure up to 265 weeks. After deducting 7 weeks as a contingency for additional time in Romania I calculate the plaintiff's loss as being $1,233 net per week x 258 weeks = $318,114 net. From that sum the plaintiff will have to repay the amount of workers compensation payments he received.
In reaching that figure I have rejected the defendant's contention that the plaintiff had not made himself available for work by remaining in Romania as it appears to me that is quite inconsistent with the evidence that shows that he was not fit for work until he was certified as being fit for part‑time work in May 2019 which, together with his evidence of attempts to find employment, brings him to the commencement of the trial.
Past loss of superannuation
The plaintiff has not received any superannuation contributions from the defendant since the accident on 11 June 2015. The plaintiff claims a loss of 9.5% x $1635 gross per week x 258 - 15% administration tax which = $34,062 in lost superannuation contributions.
Interest on past loss of earning and past superannuation
The plaintiff claims interest on past loss of earning and past loss of superannuation at the rate of 3% per annum. Interest is calculated on the difference between past loss of earnings on a net basis less the amount of workers compensation payments.[167] The calculations is 3% x ($318,114 ‑ $183,710 + $34,062) x 258 weeks ÷ 52 = $25,075.
[167] An amount of $179,404.
Fox v Wood
The plaintiff has paid total tax on his workers' compensation benefits of $48,202 which should be recovered.
Future loss of earning capacity
There has been a loss of earning capacity. The plaintiff says that there has been a loss of earning capacity for the remaining years of the plaintiff's working life. The plaintiff is now 48 years old and so his remaining working life is 19 years. The plaintiff says his loss of earning capacity is 100% of his pre‑accident earnings as a bus driver less any retained earning capacity which I should assess.
All of the experts agree that the plaintiff cannot work as a bus driver but should be able to return to work in jobs of a sedentary or administrative character.
I have already outlined my findings that the plaintiff suffers ongoing pain, restricted movement of his neck, an inability to lift heavier objects, over 3 kg, an inability to squat, suffers numbness in his arms and hands. He cannot hold things for long, has occasional incidents of incontinence, is depressed, has difficulties in concentrating and remains anxious.
I accept that the plaintiff cannot undertake work involving vibration, prolonged sitting, walking on uneven surfaces in a bent posture or sitting at a computer for too long. He is unsuitable for jobs requiring fine dexterity, heavy lifting, pushing or pulling or strength of grip.
A number of the experts gave their opinions of examples of jobs that the plaintiff could do, by way of example, as a receptionist or in administration. There is no evidence that jobs of the type they outlined are available. The jobs the experts referred to in their reports are largely theoretical. I note that the Australian Bureau of Statistics average weekly earnings as at May 2019 for a full‑time adult was $1,695.20 which is a little over $85,000 per annum that the plaintiff was earning but there was no evidence about what a person in those theoretical jobs might earn.
Despite his ongoing deficits, the plaintiff does retain a residual working capacity.
There was evidence that the plaintiff's qualifications as an engineer have now been recognised in Australia. As I have said above the plaintiff is obviously a motivated and hardworking man who even while incapacitated for work undertook a life coaching course in Romania to assist him with his depression but also to develop thoughts on what work he might do in the future.
To be balanced against this the plaintiff has had at the time of trial some four years and three months out of work, had not been able to find part‑time work at the time of trial and the evidence is that he continues to suffer a depressive illness but one that it is hoped should resolve over time with further physiotherapy, the resolution of these proceedings and proceeding through with the rehabilitation program and a return to work.[168]
[168] Evidence of Dr Edwards-Smith, Exhibit 1.112 - 128; ts 274.
It was suggested that the plaintiff's return to work would be on the basis, initially, of 20 hours per week and would take a graduated approach to full‑time over some three months. New employers prepared to employ a person with known deficits on a graduated return to work as against a person with none of those deficits are likely to be difficult to find.
The perimeter of the plaintiff's employment has been restricted by his injuries. He may need retraining to make him competitive against younger physically fit candidates with English as a first language for the administrative or more sedentary professional jobs he will be competing for.
Doing the best that I can I estimate that the plaintiff will likely require 2 years to obtain secure continuous employment.
Thereafter, the plaintiff loss of future earning capacity falls to be calculated by reference to a contingency for future loss of ability to work and his retained earning capacity.[169]
[169] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Bowen v Tutte (1990) Aust Torts Reports 81-043 and Falkingham v Hoffmans (a firm) (2014) 46 WAR 510 [315].
There was evidence that the plaintiff's pre‑existing degenerative changes made him susceptible to injury of the type he had suffered in this accident. I am of the view it is appropriate to apply a contingency against his loss of future earnings. The range of usual contingencies is between 2% ‑ 6%[170] and 3% - 6%.[171] In any event, the usual range is too low considering the possibility of injury of the same type. I consider a contingency of 10% should apply.
[170] Black v Motor Vehicle Insurance Trust [1986] WAR 32.
[171] Bowen v Tutte.
On my calculation his future loss of earning capacity for two years using net weekly figures of $85,000 per annum is $1,233 net weekly x 98.5 = $121,450 per annum and deducting the 10% contingency is $1233 x 98.5 x 90% = $109,305.
Further, doing the best I can, I estimate the plaintiff's retained earning capacity as at 50% after taking into account the deficits outline above.
On my calculation, the loss of earnings using the plaintiff's retained working capacity of $616.50 (50% of $1233) and the appropriate multiplier for the period of 17 years commencing in 2 years $616.50 x 562.9 x 0.890 = $308,854.
From this I will deduct 10% for contingencies the calculation of future loss becomes $308,854 x 90% = $277,969.
This is a figure which properly reflects any future economic loss of earning capacity which when added to the loss for 2 years makes $387,274.
In addition there is a further loss of superannuation for the first 2 years this is calculated at $1635 x 9.5% x 98.5 = $15,299.
For the second period of 17 years commencing in 2 years, the loss of superannuation is calculated at $1635 x 50% x 9.5% x 562.9 x 0.890 = $38.907. The total loss of superannuation is therefore $15,299 + $38,907 = $54,206. From this, I would deduct 15% administration tax for a total loss of $46,075.
Past medical costs
The past medical and travel costs have been agreed between the parties and are set out in a schedule which is exhibit 7. The total amount claimed is $25,932.32 which is net of additional medical and rehabilitation costs paid by the Workers’ Compensation Insurer.
Those costs demonstrate the steps taken in rehabilitation at the plaintiff's own cost while in Romania.
Future medical and pharmaceutical treatment expenses
The plaintiff is aged 48 and his natural life expectancy is a further 35.96 years. The 6% multiplier for 35.96 years is 785.6.
There is evidence to support a claim for future medical and pharmaceutical expenses associated with:
1.Six psychology sessions at a cost of $241 per session over a 12 month period[172] being 6 x $241 = $1,446.
2.Three consultations with a pain specialist every 6 months over 18 months and for pain medication[173] at a cost of $2,000.
3.The cost of supervised hydrotherapy physiotherapy program in the sum of $1,250.[174]
4.The cost of GP consultations. In my view given that the plaintiff is expected to continue to recovery once he returns to work then the likelihood of consultations associated with his condition will drop over time. The plaintiff claims four consultations per annum at a cost of $70 per consultation for an indefinite period in the sum of $4,226. But in my view a more accurate sum, consistent with Dr Edwards-Smith's views is four appointments for 3 - 4 years being, I would estimate, $980.
5.The plaintiff claims the cost of medications including painkillers and antidepressants of $200 per month for the next 5 years which is calculated at $10,445. I have already provided for the cost of painkillers. With respect to the cost of antidepressants I would estimate a lump sum at $2,000.
6.The plaintiff claims the cost of psychiatrist appointments and the parties have agreed this figure at $3,992.89.
7.There is a further claim for the initial cost of urological treatment including urodynamics and cystoscopy at $3,630 and of annual renal ultrasounds at $180 per annum which by applying the 6% multiplier for the term of the plaintiff's natural life amounts to $2,719.
Each of those claims is made out. They total $18,017.
[172] Exhibit 1.112 - 128, page 12.
[173] Exhibit 1.104 - 109, page 4.
[174] Exhibit 1.87 - 90, page 2
There is a further claim for annual urodynamic assessment at $1,505 per annum but Dr Thavaseelan's evidence was that further reviews would be required but he did not say on an annual basis or its cost accordingly while there is likely to be some ongoing need for further review doing the best I can I would calculate that assistance as being something in the order of $5,000.
There is a claim for Vesicare medication for treatment of incontinence at $50 per month which the parties have agreed as being at a cost of $9,064.62.
The total for future and medical pharmaceutical expenses is $32,081.
Past and future gratuitous services.
The plaintiff claims an allowance for the gratuitous services received from his son for heavier domestic and household tasks in the period from the plaintiff's discharge from hospital to 15 December 2015 when they left for Romania to 16 December 2016 when his son left Romania at three hours per week = $5,148. I will make an allowance from the time that they left together for Romania but there is no evidence that the plaintiff received similar services prior to that date. That calculation will be on the basis of the cost of services in Romania. 3 hours per week x $9 per hour x 52 weeks = $1404.
Further the plaintiff's claim for the assistance of a paid housekeeper for heavier household and domestic chores in Romania after he had returned to live at his mother's house. The difficulty with this is that the claim is made on the basis of $33 per hour but it is clear from the plaintiff's own evidence that he was paying the Romanian housekeeper significantly less than that. The plaintiff claims for some 5 hours per week which is greater than the amount of assistance that his son had previously provided.
The plaintiff's evidence was that the work associated with the mother's house was much greater than the work that was required to assist the plaintiff when he was living in an apartment and it included assistance for wood chopping. I am not satisfied that the plaintiff's choice to move to his mother's house should justify an increase in the number of hours. Further, it is clear that in Romania the services could be obtained at a much lower rate. In my view for the period between 17 December 2016 ‑ 12 August 2018 when the plaintiff returned to Perth it would be appropriate for him to have an allowance of five hours per week at $9 per hour x 86 weeks which comes to $3,870.
From the time that the plaintiff return to Perth until the date of trial the plaintiff was living with his aunt and uncle for some period of 62 weeks and I assume that has continued to the date of judgment.
During that period the plaintiff's evidence was that he has received gratuitous assistance from his aunt and uncle with a performance of heavier household and domestic chores. The claim is for 5 hours per week but that again is in more than what his son was providing at 3 hours a week and in circumstances where his condition has improved and will continue to improve. Dr Overmiere and Dr Cordova were of the view that by taking things slowly the plaintiff could return to his own domestic chores. I will allow 3 hours per week at $33 per hour x 98 weeks = $9,702. The total past gratuitous services claimed therefore is $14,976.
The parties have agreed interest on past gratuitous services at $1,464.21.
The plaintiff claims he will continue to require assistance with heavy domestic and household chores for the foreseeable future at 3 hours per week. I am not sure that is correct given the expectation of further improvement. Doing the best I can I will allow a lump sum of $10,000.
In total the total amount of damages are $1,073,255.
General damages
$130,000
Past net loss of earnings
$318,114
Past loss of superannuation
$34,062
Interest on loss earnings and superannuation
$25,075
Tax – Fox v Wood
$48,202
Future loss of earning capacity
$387,274
Future loss of superannuation
$46,075
Past medical costs
$25,932
Future medical and treatment costs
$32,081
Past gratuitous services
$14,976
Interest on past gratuitous services
$1,464
Future gratuitous services
$10,000
Total damages
$1,073,255
The plaintiff has received weekly payments under the Workers' Compensation Injury and Management Act weekly payments that amount to $231,575.34. That amount will need to be deducted from the past loss of earnings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ED
Associate to her Honour Judge Gillan20 JULY 2020
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