Cosgriff v Powell
[1999] WADC 47
•27 AUGUST 1999
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: COSGRIFF -v- POWELL [1999] WADC 47
CORAM: MULLER DCJ
HEARD: 2-5 AUGUST 1999
DELIVERED : 27 AUGUST 1999
FILE NO/S: CIV 2431 of 1998
BETWEEN: SIMONE LISA COSGRIFF
Plaintiff
AND
KIM POWELL
Defendant
Catchwords:
Negligence - Collision at controlled intersection - Contributory negligence.
Damages - Assessment - Personal injury - 31 year old car detailer - Soft tissue injury of lumbar spine superimposed upon degenerative changes - Failure to mitigate - Damages for past and future loss of earning capacity - Award for non-pecuniary loss.
Legislation:
Motor Vehicle (Third Party Insurance) Act 1993 s3C.
Result:
Judgment for plaintiff : Damages reduced to 70 per cent to reflect plaintiff's share of the responsibility for the damage.
Representation:
Counsel:
Plaintiff: Mr K J Bradford
Defendant: Ms B Mangan
Solicitors:
Plaintiff: Bradford & Co
Defendant: Phillips Fox
Case(s) referred to in judgment(s):
Hercules Textile Mills Pty Ltd v KHT Textile Engineers Pty Ltd [1955] VLR 310
Kalavrouziotis v Howel and Kalavrouziotis, unreported; SCt of WA; Library No 980219; 1 May 1998
Pennington v Norris (1956) 96 CLR 10
Southgate v Waterford [1990] 21 NSWLR 2
Thomas v O'Shea (1989) A Tort Rep 68, 695
Wade v Allsopp (1976) 10 ALR 353
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Medlin v The State Government Insurance Commission (1995) 182 CLR 1
Mocevic v Prok Group Ltd [1999] WADC 6
MULLER DCJ:
Circumstances of accident
On 5 September 1995 the plaintiff was required to deliver a vehicle from Melville Motors to the Airport. She travelled east in Canning Highway towards the point where that road merges with and becomes the Great Eastern Highway. At approximately 1.00pm she approached the intersection of Great Eastern Highway and Craig Street. At the point where Canning Highway merges with Great Eastern Highway there are four traffic lanes for east bound traffic. A median strip located approximately 101 metres west of the Great Eastern Highway/Craig Street intersection separates the flow of traffic at the point where the two stretches of roadway merge. The plaintiff was travelling at approximately 65km/h as she reached the eastern end of the median strip approaching the intersection. She claimed to have begun to slow down as she passed the inverted V road mark at the end of the median strip shown in the photograph Exhibit 1. At this time her vehicle was in the outer or right hand lane approaching the intersection of Great Eastern Highway and Craig Street. She said she slowed down gradually and noticed the traffic lights at the intersection of Great Eastern Highway/Craig Street turn to amber for east bound traffic. As she got closer to the intersection she slowed to what she described as a "snail's pace". When asked to estimate her speed at the time she said it was no more than 5km/h. She also noticed a vehicle ahead of hers which had stopped in her traffic lane at the amber light facing east. She said she at first noticed this vehicle as she passed the median strip on her approach to the intersection. Since this vehicle was stationary she said she indicated her intention to change lanes and, when she was approximately two car's lengths from the stationary vehicle, she moved into the left or kerbside lane. In her evidence‑in‑chief she said she looked in her rear vision mirror before changing lanes but did not see any vehicle behind her car. After she had changed lanes she looked again in her rear vision mirror and saw a truck which she estimated was approximately 5 car lengths or 20 metres behind her vehicle. She gained the impression the truck was travelling slowly and she was not concerned at that time. When she changed lanes her vehicle was only approximately 8 metres from the intersection and the amber light changed to red. She stopped at the intersection and the truck she had previously seen in her rear view mirror collided with the rear of her vehicle. She claimed that the force of the impact propelled her vehicle forwards almost the length of the intersection. When her car came to a standstill she found that the doors were jammed and she was unable to get out. She had to remain in her car until assistance came and the doors could be forced from outside.
The plaintiff was cross‑examined as to when she first saw the truck. She initially repeated what she had said in her evidence‑in‑chief that she saw the truck in her rear vision mirror before she changed from the outside to the inside lane. Her attention was drawn to a statement she had made to the police on a date she believed was approximately two days after the accident. The following passage appeared in that statement:
"At about 1.00pm on Tuesday 5.9.95 I was driving a Commodore Sedan…east on Great Eastern Highway.
I was travelling at about 65km/h.
I was travelling in the middle lane and approaching the intersection of Craig Street which is controlled by traffic lights.
I noticed the lights had changed to orange and there was a car in front of me in my lane which was stopped at the lights. When I was about two car lengths from the lights I indicated and changed into the left lane. I saw the truck was about five car length's back in the left lane and slowing down."
When questioned on this passage in her statement to the police the plaintiff agreed that what she had said in her statement contradicted her earlier evidence. She agreed she had told the police she only saw the truck after and not before she had moved into the left lane. She also agreed she had made her statement to the police at a time when the accident was still fresh in her mind and that her memory of the incident at that time was likely to have been more reliable than her recollection at the date of trial. She continued to insist that the truck was approximately five car lengths or 20 metres behind her vehicle when she first saw it in her rear vision mirror. She was also adamant that she had indicated before changing from the right to the left hand lane.
The plaintiff was also cross‑examined as to why she had changed lanes only two car lengths or 8 metres from the intersection. She could not explain why she had not simply stopped behind the stationary car in the right hand lane instead of changing lanes at what would appear to have been a very short distance from the intersection itself.
The evidence of the plaintiff was, in my view, tinged with uncertainty. She had difficulty recollecting some of the details of the incident and, at times, was simply unable to give an explanation in circumstances where one was clearly required. She was unable, for example, to explain why she made what appears to have been a last minute decision to change lanes when she was almost at the intersection and the traffic lights had already changed to amber. Given her admission that she was only travelling very slowly, and that the vehicle ahead of hers had stopped at the amber light, it would be reasonable to assume that she would simply have stopped behind the vehicle in front. Her decision to change lanes when only approximately 8 metres from the traffic lights must raise a more probable inference that she made a late decision not to stop behind the stationary vehicle in order to avoid being delayed by it when the lights turned green. There can, in my view, be no other probable explanation for her change of lane only 8 metres from the intersection when the lights had already turned amber.
I have already emphasised the inconsistency between the plaintiff's evidence and the prior statement she made to the police. The inconsistency related to a material point in issue and, in my view, was not explained at all by the plaintiff. Given the nature and significance of that inconsistent material I believe that her credibility and the reliability of her testimony is open to serious question.
The defendant, Kimberley James Powell, was a self‑employed truck driver who had been driving heavy vehicles for a period of 22 years. On the afternoon of 5 September 1995 he was driving a 38 tonne prime mover and semi‑tripper laden with building rubble east on Great Eastern Highway approaching the Craig Street intersection. He was travelling in the left or kerbside lane at the time and claimed to have just entered the straight section of road approaching the intersection after travelling through a sweeping left hand bend where the speed restriction was limited to 40km/h. On entering the straight section of road approaching the lights he said his speed was no more than an estimated 35km/h. When he was approximately 60 metres west of the intersection he saw the traffic lights change to amber and he began to break. He said he slowed down to a speed of approximately 10km/h when a vehicle suddenly and without indicating pulled into the kerbside lane 5‑6 metres in front of his truck from the adjoining lane. At this point he estimated his speed was approximately 10km/h and that the front of his vehicle was some 5‑10 metres from the intersection. While he believed he was travelling sufficiently slowly to bring his truck to a halt at the traffic lights he said that the movement of the driver of the other vehicle in front of his truck left him with insufficient distance to stop in time. He estimated the length of the other vehicle to be approximately 4½ metres and claimed he lost this distance which, had it not been for the sudden movement of the other driver into his lane, would have been available to him to bring his truck to a standstill. He claimed to have braked heavily travelling at a speed of 5‑10km/h but could not avoid colliding with the rear of the vehicle ahead of his. He agreed that the force of the impact propelled the stationary vehicle through the intersection although he was unable to say how far the car was pushed before it came to a standstill. Most significantly of all he admitted under cross‑examination that the front of his prime mover came to a standstill in the intersection. He asserted that if the driver of the other vehicle had not pulled in front of him and stopped he would have been able to bring his truck to a standstill at the red traffic light without entering the intersection.
Geoffrey Trevenen, a person licensed to drive articulated trucks and buses, described how at approximately 1.00pm on 5 September 1995 he was travelling east in Canning Highway towards Great Eastern Highway. At a point to the west of where the first photo in exhibit 1 was taken he noticed a truck emerging from the bend into the kerbside lane in Canning Highway. He also observed that the truck was laden and that it was travelling slowly. At the same time he noticed a red Commodore, which he later learned was being driven by the plaintiff, travelling east in the centre lane approximately 50‑100 metres ahead of his car. As he followed the Commodore towards the intersection of Great Eastern Highway and Craig Street he noticed the vehicle change lanes into the left or kerbside lane. As the vehicle changed lanes he also observed the traffic lights at the intersection change to amber. Having changed lanes the plaintiff had to stop quickly at the traffic lights which by then had turned to red. The witness estimated he was 30 metres from the intersection at the time the plaintiff stopped. He slowed down and stopped in the centre lane behind another vehicle. At this point he was able to see the plaintiff whose car was stationary in the kerbside lane. He estimated that between 3‑5 seconds elapsed between the time the plaintiff stopped and the collision that subsequently occurred. The truck collided with the rear of the Commodore and propelled the plaintiff's vehicle into the intersection. The cab of the truck came to a standstill in the intersection. Although the witness had made a statement to the police saying that the plaintiff had indicated before changing lanes he had no independent recollection at the time he gave evidence of her having done so.
Findings on liability
The common law duty to act reasonably in all the circumstances is paramount. The obligation of each driver approaching an intersection is to take reasonable care. I am not satisfied that the defendant did exercise reasonable care approaching the intersection. While I accept his evidence that the plaintiff's vehicle changed lanes in front of his truck when he was approaching the intersection I am unable to accept his estimate that he was only travelling at 5‑10km/h at the time this happened. I am satisfied he must have been travelling considerably faster. Had he been travelling at 5‑10km/h when he was almost at the intersection I do not believe that the subsequent collision, if it occurred at all, would have happened the way it did. There was no evidence as to the precise positions of the Commodore or the prime mover after the collision. The plaintiff, however, claimed her vehicle was pushed the length of the intersection. The defendant, while agreeing that the plaintiff's car had been propelled into the intersection, was unable to estimate the distance it travelled. I am satisfied on the evidence available that the vehicle driven by the plaintiff was pushed a considerable distance into the intersection. I am also satisfied that the force of the impact was such as to damage the plaintiff's vehicle sufficiently to prevent the doors from being opened from the inside. What is probably the most significant factor of all, however, is the defendant's own admission, confirmed by the evidence of Geoffrey Trevenen, that, following the impact with the stationary car, the front of the prime mover came to a standstill in the intersection itself. Had the defendant been travelling at a speed that would have enabled him to stop at the red traffic light, as he ought reasonably to have done, I am satisfied that, even if the plaintiff's vehicle suddenly pulled in front of his truck in the manner he described and a collision was unavoidable, the plaintiff's vehicle would not have been propelled the length of the intersection and the defendant's truck would not have gone through the intersection. What evidence there is as to the force of the impact, and the respective positions of the vehicles after the impact, lends itself to a more probable inference that the defendant was travelling at a much greater speed than he was prepared to admit. I am satisfied his speed was so high that he would have been unable to stop at the red traffic light. While there must be a strong suspicion that the defendant deliberately increased speed in order to pass through the intersection before the traffic lights changed to red, or even after they turned red, there is insufficient evidence for such an inference to be drawn. Having said that, however, I find that he approached the lights at an unreasonably high speed that would have prevented him from stopping at the intersection even if the plaintiff's car had not changed lanes immediately in front of his truck. By travelling at such speed he was in breach of the duty of care that he owed the plaintiff and other road users.
My finding that the defendant approached the traffic lights at a speed far greater than he was prepared to admit, and that such speed was a cause of the collision that occurred, is confirmed by the evidence of Geoffrey Trevenen. He described how he was approximately 30 metres behind the plaintiff's vehicle when she suddenly stopped at the traffic lights in the kerbside lane. He went on to describe how he slowed to a standstill behind a vehicle already stationary in the outside lane at the traffic lights. Having come to a standstill he was able to look at an angle of 45 degrees and observe the plaintiff seated in her stationary car. It was at this point that the truck collided with the rear of the plaintiff's vehicle and pushed it through the intersection. When asked to estimate the time that had elapsed between the plaintiff having come to a standstill at the red traffic light and the moment of impact the witness said he thought 3‑5 seconds had elapsed. If this estimate is correct the more probable inference is that the plaintiff had been stationary at the traffic lights for some time before the moment of impact. This, in turn, lends itself to the inference that she did not change lanes 5 to 6 metres ahead of the truck as the defendant claimed. It also lends support to my earlier finding that the truck must have been travelling at a speed in excess of what the defendant claimed. Even after making allowances for an error in the estimate of time given by the witness, the fact remains that from the moment the plaintiff stopped in the kerbside lane Trevenin was able to travel a distance of approximately 30 metres and bring his own vehicle to a standstill before the collision occurred. The time this manoeuvre would have taken also lends itself to the more probable inference that the plaintiff was stationary at the lights for some time before the moment of impact and that the defendant must have seen her stationary car but was simply going too fast to stop in time. While Trevenen expressed the opinion that, when he first saw the defendant's truck travelling east in the kerbside lane, it was going slowly, his estimate of its speed related to a point in time when the truck was travelling parallel with the median strip well over 100 metres from the intersection.
The next question I have to decide is whether the defendant has established contributory negligence. The onus of establishing contributory negligence rests on the defendant. Hercules Textile Mills Pty Ltd v KHT Textile Engineers Pty Ltd [1955] VLR 310. I am satisfied that the plaintiff also failed to take reasonable care approaching the intersection. She did not look in her rear vision mirror before changing lanes. Had she done so she would have seen the defendant's truck in the adjacent kerbside lane behind her own vehicle. This late movement on the part of the plaintiff was a contributing cause to the accident. Having said that I am still of the view that it was the negligence of the defendant that was the dominant cause of the collision. Given these findings it becomes necessary to apportion responsibility between the respective parties. This exercise involves a comparison of their respective degrees of culpability. The approach to be adopted was described in Pennington v Norris (1956) 96 CLR 10 at 16:
"What has to be done is to arrive at a 'just and equitable' apportionment as between the plaintiff and the defendant of the 'responsibility' for the damage. It seems clear that this must of necessity involve a comparison of culpability. By 'culpability' we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man."
The failure of the plaintiff to keep a proper lookout by checking in her rear vision mirror before changing lanes, and her late movement from the outside to the kerbside lane in front of the defendant's truck so close to a controlled intersection, contributed to the collision. Had the plaintiff looked in her rear vision mirror before changing lanes I am satisfied she ought reasonably to have seen the defendant's vehicle travelling immediately behind her car in the adjacent kerbside lane towards the intersection and she ought to have remained in the lane in which she was travelling. The defendant, however, was travelling at too great a speed and could not have brought his laden truck to a standstill at the intersection even if the plaintiff's car had not entered the lane in front of him. By travelling at such an unreasonably high speed, which would have left him with no option but to go through, or at least partially enter, the intersection notwithstanding the red light, I am of the view that his culpability was higher than that of the plaintiff.
Having reached these conclusions I find that the plaintiff is entitled to recover only 70 per cent of the damages that she would otherwise have been entitled to recover from the defendant.
Plaintiff's work history
The plaintiff, who was born on 12 April 1968 and is now aged 31, left school in 1984 at the age of 16 after completing year 10. After leaving school she began work in a child care centre in 1984 where she remained for approximately 2 years. When that centre closed she moved to another child care centre until that also closed. Over the next 3 years she continued working in child care centres until the last centre in which she was working closed and she was forced to leave. She remained unemployed for approximately 3‑6 months before going overseas at the age of 21 on a working holiday. She remained overseas for 4 years. During this time she worked periodically as a nanny.
The plaintiff returned to Australia in 1993 and looked for work. After unsuccessfully trying to find work as a nanny she was offered a position as a vehicle detailer at Melville Motors. The initial offer of temporary employment subsequently became one of permanent employment. She worked between 7.30‑5.00pm daily and on occasions remained at work until 6.00pm working overtime. Her duties included vacuuming offices, emptying bins, cleaning the toilets and tea room, wiping vehicles and cleaning the windscreens and washing and detailing cars that were being sold. She was required to wash and dry cars manually and vacuum and dust the vehicles' interiors. She was also required to polish vehicles. She said that detailing some vehicles, particularly 4‑wheel drive vehicles, required her to bend and stretch in order to insert the vacuum head between and under the seats of the vehicle. Apart from these cleaning duties she was also required to drive and deliver cars to various outlets. At the time of her accident she was earning a net weekly wage of $319 increasing to between $350‑$400 with overtime.
Plaintiff's injury following accident
After the collision the plaintiff said she felt shaky, upset and had a sore neck. She was taken to Royal Perth Hospital where she complained of a very sore neck and said her back was also slightly painful. She remained at the hospital for 3‑4 hours before being taken home.
She awoke the following morning with considerable back pain. She saw her medical practitioner on that day and was certified unfit for work. She rested for several days and underwent physiotherapy for both her neck and back injury. Her neck pain settled within 1‑2 weeks but the pain in her back increased and began radiating down both legs to her feet. At the time she was on medication and continuing to undergo physiotherapy.
She described how she attempted to resume work under trial conditions on several occasions. The trial programmes were organised by Western Rehabilitation. The first attempt at rehabilitation occurred in December 1995 when she returned to work at Melville Motors doing light detailing duties and working for 4 hours a day on 3 days a week. She claimed that she managed to continue doing this for 3‑4 weeks but in the end had to stop because her back pain increased.
In February 1996 she again returned to light duties at Melville Motors. On this occasion she worked for 4 hours a day on 5 days a week for a period of 4 weeks. Her work was again supervised by Western Rehabilitation. She said she managed to do the work assigned to her but was in a lot of pain. She claimed her pain increased to the point where she was unable to continue.
At this stage Western Rehabilitation recommended that she re‑train in another field. She underwent a typing course and in August 1996 worked on a trial basis for 2 weeks as a medical receptionist. She said she suffered from pain during this time but was able to sit and stand when required in order to reduce her level of discomfort. Her work at a medical centre continued for 2 weeks and consisted of filing documents, recording patients' names and answering the telephone.
After this work trial she worked under supervision at another medical centre but did not feel comfortable because of the degree of scrutiny and supervision exercised over her.
In February 1997 she underwent a work trial at K‑Mart for a period of 3‑4 weeks. On this occasion she worked as a sales assistant in the clothing department but found that standing for prolonged periods led to increased pain in her lower back.
Her stint at K‑Mart was followed by 2 month work trial at Toy World in Subiaco. This work involved packing shelves and serving customers. She worked for 4 hours a day on 5 days a week under supervision. She claimed to have suffered considerable pain but said she enjoyed the work and was able to reduce the level of her discomfort by standing or sitting when she wanted.
After this work trial her rehabilitation allowance under the workers compensation scheme was exhausted. She said she looked for part‑time work and prepared a resumė which she circulated to various toy stores, large departmental stores and clothing shops. She claims she was unable to return to work as a car detailer because the constant bending, prolonged standing and other awkward physical postures required to be adopted when detailing cars would aggravate her back pain.
In cross‑examination the plaintiff agreed that she became engaged in August 1998. She said she intended eventually to marry and, but for her injury, would have worked periodically as a car dealer to help support the family she hoped to have. She claimed she would have stayed at Melville Motors for as long as her employers allowed her to. Her plans for the future, however, were somewhat vague. When cross‑examined about her performance under the trial work programme she participated in the plaintiff's answers were, in my view, less than convincing. She claimed to have been unaware of any inconsistencies in her physical performances while under supervision but conceded it was possible she might not have been able to lift as heavy a weight on one day as she did on the preceding day. She denied she was unwilling to make a genuine effort while on trial work although she agreed that she stopped working on one occasion at K‑Mart because she had cut her hand and did not believe it was appropriate for her to serve customers with a bandaged hand. She also agreed she terminated her work trial at K‑Mart prematurely because, in her view, there was insufficient work for her to do. She claimed in cross‑examination that her symptoms had only improved slightly since the accident.
I found the plaintiff to be hesitant, indecisive and uncertain in her evidence particularly when testifying under cross‑examination. She was distinctly uncomfortable when asked to explain the alleged inconsistencies in the assessment of her physical performance at her work evaluation session. Her explanation as to why she brought her work trial at K‑Mart to an end because of her bandaged hand was, quite clearly, contrived and unconvincing.
The medical evidence
Dr Thomas Berrigan, a consultant in pain management, first saw the plaintiff on 4 December 1997. On that occasion she complained of low back pain and occasional neck pain and headaches. His examination of the plaintiff revealed that the tenderness was not localised to one segment but spread through a number of segments of the spinal cord. Given the generalised nature of her pain Dr Berrigan performed a series of lumbar blocks. This treatment, however, produced no positive results and, according to the plaintiff, led to an exacerbation of her back pain. The negative result of this treatment led Dr Berrigan to conclude that she had not suffered any bone or facet joint injury. When he last saw the plaintiff on 15 July 1999 he found no substantial change in his symptomatology. Although he was uncertain as to the diagnosis of her injury, and was unable to find any objective pathology to explain her claim of tenderness over the entire lumbar spine, he expressed the view that her condition was likely to resolve with time and, while she was still suffering pain 4 years after the accident, a resolution of her symptoms was likely within a period of 6 years from the date of the accident. He did not believe she required any further medical treatment and, while he did not believe there was any chance of her returning to work in her present condition, he concluded her condition should in the future settle to the point where she would be able to undertake relatively light work, such as that of a sales assistant, on a full time basis. He did not believe she would be able to return to her former work as a car‑detailer.
In cross‑examination Dr Berrigan's attention was drawn to an MRI scan undertaken on 12 March 1996 which revealed degeneration in L4‑5 and L5S1 discs with posterior annulus tears and mild broad‑based posterior disc bulging. While conceding that he had been unaware of these findings at the time of his examination and prognosis, Dr Berrigan expressed the view that the disc abnormalities revealed by the MRI scan were minor in nature and quite a common feature in many persons of the plaintiff's age. Notwithstanding these results he did not believe the plaintiff's pain was discogenic in nature. In his view discogenic pain was usually localised and not, as in the plaintiff's case, widespread throughout the length of the spinal cord. While expressing reservations about the plaintiff's pain being discogenic in nature Dr Berrigan did not exclude the possibility that the plaintiff might have suffered from a pre‑existing condition of degeneration that was rendered symptomatic by the motor vehicle collision in which she was involved. While he did not favour this possibility, and continued to believe her injury was in the nature of a spinal strain, he conceded that disc injury could lead to permanent problems and that his prognosis as to when the plaintiff might return to work did not take into account this particular feature.
Dr John Salmon, another specialist in pain management, began treating the plaintiff in October 1988. She complained of severe lumbar pain extending down both legs to her feet with tingling in her toes. Dr Salmon referred to the results of a CT scan of the lumbar spine in 1995 and the MRI examination in March 1996 which revealed disc degeneration, posterior annular tears and disc bulging at the L4‑5 and L5‑S1 levels. He formed the opinion the plaintiff's symptoms were consistent with discogenic pain. Although he conceded in cross‑examination that the plaintiff's pathology was only tenuously linked to her symptoms, and that such symptomatology might occur without associated disc abnormalities, he was of the view that her low walking, sitting and standing tolerances were genuine and that at the time he initially saw her she was not capable of doing any work at all. Dr Salmon went on to describe how the plaintiff participated in an intensive exercise and cognitive behaviour pain management programme which he partially supervised. He noticed an impressive improvement in her condition at the end of the 10 day programme. He expressed the view that she would be unfit to return to any moderate or heavy manual work but that the potential for an improvement in her condition with proper self‑management was favourable. He believed her capacity to work would improve over time but that at present she was only fit for non‑strenuous part‑time work. He also expressed the view that within a period of approximately 12 months she could possibly be capable of working full time.
Dr John Hearne, the general practitioner whom the plaintiff went to see after she had initially been to medical practitioner Dr Jayaraman, initially certified her unfit for work in December 1995 but later arranged for her to take part in supervised work programmes. Dr Hearne, like Dr Salmon, was of the view that the pathology at the L4/5 and L5/S1 levels provided an explanation for the plaintiff's back pain and the radiation of that pain to both buttocks and legs. While believing that these disc injuries were likely to cause ongoing symptoms Dr Hearne also expressed the view that her condition was likely to improve with time provided she exercised and underwent physiotherapy. In relation to her capacity to work he had reached the conclusion by February 1996 that she had a residual capacity limited to a restricted number of hours each week doing work of a non‑manual nature. He continued to approve her participation in various work programmes and by July 1997 said he considered her fit for work 5 hours a day on 5 days a week as a sales assistant in a toy shop.
Dr Patrick Hanrahan, a specialist rheumatologist, saw the plaintiff in March‑April 1996 and, having arranged for the MRI examination, concluded that the degeneration in the lower two lumbar discs must have been caused by the accident. He explained his diagnosis by pointing to the fact that the plaintiff was asymptomatic before the collision, that there was no evidence of any prior degenerative change before the accident and that her symptomatology after the collision was consistent with damage to her lumbar spine. When he first saw her in the period March‑April 1996 he was of the opinion that she was unfit for work although he hoped that, with an appropriate exercise programme, she would be fit to return to some lighter form of work within a period of 3 months. He did not see her again for several years. When he next saw her on 22 June 1999 she complained that her pain had persisted with no overall improvements. Given his initial diagnosis of disc abnormality Dr Hanrahan was of the view that the plaintiff's case should follow the normal pattern and that she would gradually recover over time.
Mr Bath, an orthopaedic surgeon, saw the plaintiff on 21 November 1995, 6 April 1999 and again on 14 July 1999. On the first occasion he saw the plaintiff in November 1995 he found her to be tender in the lower lumbar spine extending down over the sacrum. This finding, in his view, was unusual and inconsistent with underlying pathology in the lower part of the lumbar spine. He was unable to find any definitive neurological signs to explain the cause of the pain. He said he presumed she had suffered a soft tissue injury to her back but there was nothing about her condition to indicate that she was unlikely to improve with time.
When he next saw the plaintiff 3 years later she complained of pain in the low back affecting both legs on an alternate basis. She also claimed that her spine was too sore to touch on examination. An examination revealed what Mr Bath described in his report as diffuse and quite superficial tenderness to palpation of the lumbar spine extending to the top of the sacrum. In his evidence he said the finding of pain in both legs on an alternate basis was most unusual and the diffuse nature of that pain was unexpected and led him to question whether the plaintiff's reaction to palpation was in keeping with any underlying pathology. In his opinion there was no sign of impingement of the nerve roots and the degenerative changes at two separate levels revealed by the MRI scan undertaken only 6 months after the collision led him to conclude that these abnormalities existed before the collision. He also explained how he arranged for further x‑rays to be undertaken on 6 April 1999. These revealed minor changes which, in his view, were not consistent with any ongoing or progressive symptomatology that might have been expected if the changes in the plaintiff's lumbar spine had been caused by the accident. In his view the symptoms and disabilities complained of by the plaintiff were disproportionate to any supposed degenerative changes in the lumbar spine. In relation to the plaintiff's capacity to work Mr Bath, like the other medical practitioners before him, concluded that she could be expected to work in a sedentary position although her symptomatology would probably exclude any tasks involving bending or lifting.
The plaintiff tendered, with the consent of the defendant, a book of medical reports prepared by another orthopaedic surgeon, Mr David Wright. Like his colleague Mr Peter Bath, Mr David Wright, after noting the results of the MRI scan in March 1996, indicated in his report that he was not prepared to find a connection between the plaintiff's disc degeneration and the motor vehicle accident. He expressed the view in his report that it was more likely the degeneration existed before the accident and that the collision resulted in soft tissue injury to the lumbar and cervical spine. In a later report dated 12 July 1999 Mr Wright repeated his earlier diagnosis and assessed her disability as being in the region of 7.5 per cent of her lumbar spine. He also believed that, while there was some prospect she would improve, 4 years had elapsed since the accident and he believed her current level of incapacity could be considered to be permanent. Having reached that conclusion he expressed the view that she was only fit for light work of a sedentary nature.
Dr Paul Graziotti, another specialist in pain management, saw the plaintiff as a treating specialist in November 1996. After examining her he concluded there were gross discrepancies between her physical movements during the examination which, in his view, tended to suggest some unknown factor affecting her behaviour other than pain in the lumbar spine. He also found that she was extremely sensitive over the lumbar spine and that palpation of this area was largely impossible. He did not believe there was any connection between her complaints of pain and the pathology in her lumbar spine. Although at the time of that examination he was unaware of the MRI scan that had been undertaken he said he had since seen the results and they made no difference to the opinion he expressed at the time. It is significant that at the time of his initial examination he believed the sooner the plaintiff returned to the work place the better off she would be.
Dr Graziotti did not see the plaintiff again until she was referred to him by the insurer in March 1999. Upon examination on this occasion he found her condition largely unchanged. His opinion remained the same as it had been earlier. He was not convinced of any causal link between her state of pain and the pathology in her lumbar spine. In his opinion she is currently capable of returning to what he described as her normal level of functioning. He said his examination led him to conclude that she had an 80‑90 per cent chance of returning to full time employment although, judging by her presentation, he believed her capacity to work will be limited to tasks that did not involve lifting, repetitive bending or other activities that might trigger or aggravate her back pain.
Findings on medical evidence
The medical evidence was divided as to whether there was any causal link between the plaintiff's lumbar pain and the pathology in her spine. It is significant, however, that both Mr Bath and Mr Wright, while acknowledging the existence of degenerative alterations in the plaintiff's spine as revealed by the MRI scan, did not attach significance to these findings but concluded that the plaintiff's pain was more likely to be related to a soft tissue injury to the lumbar region. This conclusion was consistent with the view of Dr Graziotti. As against these views, however, Dr Salmon, Dr Hearne, Dr Hanrahan and, to a lesser extent, Dr Berrigan, expressed the view that there might be a causal link between the plaintiff's condition and the degenerative alterations in her lumbar spine.
I am unable to make any specific finding as to the aetiology of the plaintiff's painful condition. In the end I do not believe such a finding is necessary. I am satisfied on the medical evidence as a whole that the plaintiff suffered a soft tissue injury in the accident superimposed upon degenerative changes in the lumbar spine. This injury was, on the medical evidence, the cause of her past and current levels of pain.
The degree of the pain suffered by the plaintiff was also brought into question by the defence. It was submitted by counsel for the defendant that the plaintiff had exaggerated the seriousness of her condition upon examination by the various medical practitioners she saw and that she had consistently shown a marked reluctance to apply herself diligently in the rehabilitation programme organised for her. There was certainly evidence to support this submission. The testimony of Dr Graziotti and Dr Berrigan, in particular, cast doubt on the consistency of the plaintiff's symptoms with the known pathology discovered upon examination. I accept that the plaintiff may have exaggerated her symptoms. The question is whether she did so deliberately or subconsciously. In his report dated 11 March 1999 (exhibit 10B) Dr Graziotti conceded that it was difficult to differentiate between deliberate misrepresentation of symptoms and the presentation of unexpected symptoms triggered by heightened anxiety, fear avoidance or simply a low pain threshold. Given this ambiguity surrounding the presentation of unusual symptoms I do not believe it is open to me to find that the plaintiff deliberately exaggerated her level of pain when seen by her medical advisers. While I found the plaintiff to be hesitant, indecisive and uncertain in aspects of her testimony, particularly her evidence under cross‑examination, I am not prepared to go as far as to find that she was the kind of person who was likely to have deliberately misrepresented her symptoms in the hope of furthering her claim against the defendant. It is equally probable that any apparent exaggeration in the presentation of her symptoms, or inconsistencies in her physical movements upon examination, were the product of uncertainty, fear and a real anxiety as to her condition and the future she faced.
Failure to mitigate damages
I have already described how, following the accident, the plaintiff underwent a series of work trial programmes under the supervision of Western Rehabilitation. She was cross‑examined at length on her level of performance at these work trials. It was suggested that she did not apply herself with any degree of diligence on these occasions and was simply a passive participant in a programme that was organised for her by others. This alleged unwillingness to commit herself, together with what was said to have been the exaggerated presentation of her symptoms, constituted material from which it was submitted it could be inferred that she had failed to mitigate her damages. I have already dealt with the claim by the defendant that the plaintiff deliberately exaggerated or misrepresented her symptoms. As to the claim that she did not apply herself diligently during the trial work programmes that were organised for her I agree that some of the apparent decisions she made during the rehabilitation process were rather unusual. On one occasion, for example, she terminated the work programme prematurely because she was not content with the type of work she was asked to do; on another occasion she did not attend work as required because she had a cut hand and felt it would have been inappropriate to attend work. Apart from these rather unusual features, however, there is no evidence to suggest that she performed unsatisfactorily at any of the work trials organised for her. It is significant that the defendant did not call any witness who was able to comment on her level of performance during the work trials. There is no material before the Court from which an inference that the plaintiff failed to mitigate her loss can be drawn. My attention was drawn to the decision in Kalavrouziotis v Howel and Kalavrouziotis, unreported; SCt of WA; Library No 980219; 1 May 1998. In that decision the injured workman, who had suffered a soft tissue injury superimposed on a pre‑existing degenerative change to the cervical spine, never returned to work and refused to undergo a programme of "work hardening" that the experts prepared for him. The trial judge found that the injured person's refusal to participate in the programme did not constitute a failure to mitigate his loss. That decision, of course, turned on the particular facts of that case. In this instance the plaintiff did participate in the programme and, apart from failing to complete one of the work trials, apparently completed all the others. Given this material, and the fact that there is no evidence reflecting adversely on her performance at the work trials she was required to undertake, I do not believe it is open to me to make the finding that counsel for the defendant submitted I should make.
Past loss of earning capacity
The accident occurred on 5 September 1995. The plaintiff returned to work on medical advice on 9 October 1995 but had to stop because of increased back pain. It was not until 13 December 1995 that she resumed light duties working approximately 4 hours per day for 3 days a week at Melville Motors. She managed to work 3‑4 weeks but her back pain increased and she was certified unfit for work. Following that she took part in the various work trials I have already described. She said she was in pain during most, if not all, the trials she participated in. The last trial she took part in was at Toy World between 4 April 1997‑16 June 1997. She agreed this was the most successful of the trials and that she enjoyed her work. Following that trial she prepared a resume which she circulated to various toy stores, large departmental stores and clothing shops. She also sought part‑time work. Her efforts to find work were unsuccessful. She has remained unemployed until the date of her trial.
The plaintiff is a person of limited skills. Given her lack of any higher educational qualifications, or experience in any particular trade or occupation, the range of employment options open to her is very narrow. While the majority of the medical practitioners who gave evidence at the trial believed she was capable of returning to some form of non‑manual work at or about the time of her work trials, all were agreed that she could not return to her former occupation as a car detailer. Given the very narrow range of employment open to the plaintiff it is not surprising that she has been unable to find work up to the date of trial. There is no evidence to contradict her assertion that she has actively sought work. The problem is that she is not qualified or equipped to find work readily. Even the typing course she underwent while on rehabilitation was very limited. Lacking, as she does, educational qualifications or specific job skills I am satisfied that she is entitled to be compensated for a total loss of earning capacity from the date of accident until the date of trial. In calculating that loss I must have regard to the plaintiff's earnings as a vehicle detailer at Melville Motors. I was told by counsel that she was paid an amount of $50 over the award rate but there was no evidence that this would have continued to the date of trial and I propose to work from the actual award rates applicable during the period in question.
| Date | Number of Weeks | Hourly Rate | Gross Weekly Wage | Total |
| From 5.9.95 To 11.6.96 | 41 | $8.77 | $333.20 less tax $305.00 | $12,505 |
| From 11.6.96 | 34 | $9.36 | $355.50 | $11,118 |
| From 4.2.97 | 21 | $9.51 | $361.50 | $6,888 |
| From 1.7.97 | 17 | $9.73 | $369.90 | $5,695 |
| From 1.11.97 | 34 | $9.90 | $376.40 | $11,560 |
| From 1.7.98 | 17 | $10.49 | $398.60 | $6,069 |
| From 1.11.98 | 17 | $10.67 | $405.60 | $6,178 |
| From 1.3.99 | 22 | $10.86 | $412.60 | $8,096 |
To this must be added the tax paid by the plaintiff on workers compensation payments (Fox v Wood) $12,602.70.
I award the plaintiff $80,711.70 damages in respect of her past loss of earning capacity up to the date of trial.
There is no certainty that work as a car dealer would have been available to the plaintiff throughout this period but, in the absence of any evidence to the contrary, I presume she would have been able to continue with her former employer throughout that time. There are no particular contingencies that need to be taken into account and I do not propose to discount the amount I have awarded.
Future loss of earning capacity
I have already analysed the medical evidence which overwhelmingly points towards the plaintiff having a current residual capacity to perform work of a non‑manual nature which does not involve heavy lifting, bending, standing or even sitting for prolonged periods. I have also expressed the view that the only practical work open to the plaintiff in the future will be that of a shop attendant. While she has applied for work she has been unable to find it. Since she has proved she has lost her pre‑accident earning capacity and has been unable to find alternative employment, an evidentiary burden now lies on the defendant to show what alternative employment opportunities are open, including the state of the labour market and the likely earnings. Thomas v O'Shea (1989) A Tort Rep 68, 695. While it is arguable that the defendant has not discharged this burden it is common cause that the plaintiff has a residual capacity to work as a shop attendant or in some similar field not involving manual labour. The plaintiff's Schedule of Award Rates reveals that the current weekly wage of a shop assistant or sales person is $433. This compares with the weekly wage of $412.60 for a vehicle detailer. It appears there is little, if any, differential between the two wage rates. While I am satisfied the plaintiff has the capacity to begin work immediately as a shop assistant, or in some other field involving non‑manual labour, I accept that she might continue to find it difficult to find a suitable position. She is entitled to be compensated for the difference between the earning capacity as it would have been if there had not been an injury and the earning capacity as it now is. Wade v Allsopp (1976) 10 ALR 353. Although she is likely to find work in the future at the same or even a higher rate than what she previously earned as a car detailer she is still entitled to be compensated for the loss of her capacity to do work of a physical nature. Making allowances for the time she will possibly require to find employment I believe the best method of compensating her for her future loss of earning capacity is to award her a global amount reflecting one year's net income under the Shop Assistant's Award Rate. It is reasonably to be expected that she will find work in this area within 12 months of the date of trial. I do not believe any amount should be deducted from this award to reflect adverse contingencies. While many of the medical practitioners who testified at the trial believed she would in time return to her former level of functioning there were some, including Mr Wright, who believed her current level of disability would be permanent. Given this conflict in opinion I am unable to predict with any certainty whether she will recover completely and regain the capacity she has lost through the accident. For this reason I do not propose to make any deductions.
$433 ‑ $80 (tax) = $353
$353 x 50.7 (multiplier) = $17,897.10
I award the plaintiff $17,897.10 in respect of her future loss of earning capacity.
Pain and suffering and loss of amenities
I have already described how, following the accident on 5 September 1995, the plaintiff underwent a range of treatment including physiotherapy and hydrotherapy. The only invasive treatment she underwent was a series of local anaesthetic injections in her back which, she claimed, aggravated her pain. She also had to wear a TENS machine during her waking hours. Although she feels her position has improved she continues to suffer low back pain which, she claims, radiates down the legs. She also suffers neck pain although this is incidental to her main problems. I have referred earlier to the effect her pain has had on her normal activities. While she is able to cook and wash, she is no longer able to hang up the laundry to dry or do any household chores which involve bending or adopting any form of awkward posture. She has had to abandon sporting pursuits she enjoyed before the accident and she now rarely goes to the cinema because she is unable to sit for prolonged periods. The prognosis for her continuing improvement is, by and large, favourable although, as I have emphasised earlier, Mr David Wright, an orthopaedic surgeon, expressed the view in one of his reports that she has a 7.5 per cent permanent disability of the lumbar spine.
It is difficult to make any finding as to how the plaintiff's injury will affect her future. While she has undoubtedly lost the capacity to perform work of a manual nature it is open on the medical evidence to infer that she will continue to improve and possibly regain that capacity at some later time. While her social and sporting life has to some extent been disrupted, an improvement in her condition is likely to allow her to resume some, if not all, her former activities. There is no evidence that her plans to have a family have in any way been adversely affected.
I do accept that the plaintiff has suffered from ongoing back pain for a period in excess of 4 years and that this pain, though slowly improving, is still present. I also accept that her quality of life has been impaired by her injuries.
The plaintiff's injuries arose from a motor vehicle accident after 1 July 1993. The provisions of s3C of the Motor Vehicle (Third Party Insurance) Act 1943 govern the amount of damages to be awarded to the plaintiff for non‑pecuniary loss.
Non‑pecuniary loss is defined in the Act to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. Subsection (2) of s3C of the Act provides that:
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded."
The maximum amount of damages that may be awarded under the Act for non‑pecuniary loss is currently set at a figure of $219,000. ("Amount A").
Subsection (3) of s3C provided as follows:
"(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case."
A useful guide to the interpretation of these provisions is to be found in Southgate v Waterford [1990] 21 NSWLR 2. The New South Wales legislation under consideration in that case was set in somewhat different terms to s3C of the Act but, as it stood at the time, provided that damages for non-economic loss were only to be awarded in cases where there had been significant impairment of an injured person's quality of life and required the court to assess the amount of damages to be awarded for non-economic loss as a proportion, determined according to the severity of the non-economic loss, of the maximum amount to which the legislation permitted to be awarded.
In their joint judgment Gleeson CJ, Kirby P and Meagher JA said at 440:
"There are a number of ways by which trial judges could approach the task of apportionment required by s79(2) and s79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s79(2). But clearly, because the task in hand is that of awarding damages for 'non-economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000, but in a radio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'."
See also Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997.
Having identified the evidence relevant to those heads of damage that customarily fall within an award of general damages, the next step I am required to take is to postulate what might be a most extreme case in which the maximum amount of damages, currently standing at $219,000, may be awarded for non-pecuniary loss, and then apportion damages by comparing the severity of the plaintiff's non-pecuniary loss with that likely to be suffered in a most extreme case. When the plaintiff's injuries and associated symptoms are compared with what may be regarded as a most extreme case, for example, quadriplegia, it seems clear that the plaintiff's initial injuries and symptoms, their progression and treatment, the prognosis for their improvement and the effect they have had on her enjoyment of life place her case at no more than 15 per cent of a most extreme case. 15 per cent of $219,000.00 is $32,850.
Section 3C(5) provides that:
"If the amount of non -pecuniary loss is assessed to be more than Amount B but not more than amount C, the amount of damages to be awarded for non-pecuniary loss is the excess of the amount so assessed over amount B."
Amount C is $32,000. Amount B is $10,500. The non-pecuniary loss of $32,850 is more than Amount B but not more than amount C. This means the following formula applies:
$32,850 ‑ $10,500 = $22,350.
I award the plaintiff $22,350 for non‑pecuniary loss.
Special damages
It has been agreed between the parties that, in the event of liability on the part of the defendant being established, the plaintiff will be entitled to the following amounts by way of special damages:
(i) $25,064.38.
(ii) $13,100.39 (rehabilitation expenses).
(iii) $626.15 (outstanding special damages).
Future medical expenses
The parties have agreed upon a figure of $1,000 for future medical expenses.
Summary of award
Past loss of earning capacity $80,711.70
Future loss of earning capacity $17,897.10
Non-pecuniary loss $22,350.00
Special damages $38,790.92
Future medical expenses $1,000.00
$160,749.72
In view of my findings on the issue of contributory negligence the plaintiff is entitled to 70 per cent of the aggregate award reflected in the above summary which amounts to $112,524.80.
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