Cummings v Edwards
[2003] WADC 28
•19 FEBRUARY 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CUMMINGS -v- EDWARDS & ANOR [2003] WADC 28
CORAM: COMMISSIONER EATON
HEARD: 23 & 24 SEPTEMBER 2002
DELIVERED : 19 FEBRUARY 2003
FILE NO/S: CIV 2917 of 2001
BETWEEN: ROBERT ARTHUR CUMMINGS
Plaintiff
AND
ELIZABETH MARIE EDWARDS
First DefendantBERYL MOULE
Second Defendant
Catchwords:
Personal injury - Assessment of damages - Moderate soft tissue injury to cervical spine
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Damages of $101,226 awarded
Representation:
Counsel:
Plaintiff: Mr A S Stavrianou
First Defendant : Mr P R Momber
Second Defendant : Mr P R Momber
Solicitors:
Plaintiff: Simon Walters
First Defendant : Peter Momber
Second Defendant : Peter Momber
Case(s) referred to in judgment(s):
Bowen v Tutte (1990) A Tort Rep 81-043
Husher v Husher (1999) 197 CLR 138
Seymour v Gough [1996] 1 Qd R 89
Spargo v Haden Engineering (1993) 60 SASR 39
Thomas v O'Shea (1989) A Tort Rep 80-251
Case(s) also cited:
Watts v Rake (1960) 108 CLR 158
Purkess v Crittenden (1965) 114 CLR 164
Randall v Dul (1994) 13 WAR 205
Foyster v Goynich [1984] WAR 80
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
COMMISSIONER EATON: In this action the plaintiff, Robert Arthur Cummings, sues Elizabeth Marie Edwards, the first defendant, and Beryl Moule, the second defendant for damages. In each case the cause of action is negligence. Each arises out of a motor vehicle accident in which the plaintiff was involved. The first occurred on 28 June 2000 on Nicholson Road, Canning Vale and the second occurred on 24 February 2002 at the intersection of Ranford Road and Lake Street, Armadale, both in Western Australia. Each accident involved a collision between a vehicle being driven by the plaintiff and another vehicle. In the first, the first defendant was the driver of the other vehicle and in the second, the second defendant was the driver of the other vehicle.
By his amended statement of claim the plaintiff alleges, inter alia, that the first accident was caused entirely by the first defendant's negligence and that the second accident was caused entirely by the second defendant's negligence. Each defendant, by their pleading, admits liability. The plaintiff claims to have suffered personal injury, loss and damage by reason of the negligence of both the first and the second defendants. The defendants, by their pleading, deny that the plaintiff sustained the injuries, loss and damage alleged or any injury, loss or damage. The defendants deny that the plaintiff is entitled to the relief claimed by him or to any relief at all.
In consequence, there being no issue as to liability in each case, the issues for trial were to what extent, if at all, the plaintiff suffered injury, loss or damage by reason of either or both of the two accidents and, if he did suffer injury, loss or damage by reason of either or both of the two accidents, the quantification of his compensation by way of damages.
In each of the two accidents the plaintiff was driving a vehicle owned by him. In each accident his vehicle was stationary and was struck from behind. In the first the plaintiff was driving a Ford Escort motor vehicle which was, as a result of the impact, thrown forward about one car length. His torso and head were thrown backward. The plaintiff felt stunned momentarily. He alighted from his vehicle and inspected the damage to each vehicle. He drove home after exchanging addresses with the first defendant.
The second accident was also a rear end collision. On this occasion the plaintiff was driving a much heavier vehicle, his Range Rover. The second defendant, who was a friend, was driving a much smaller vehicle which struck the Range Rover from behind. The plaintiff did not feel the impact.
The plaintiff's background
At the time of trial the plaintiff was a few days short of his 57th birthday having been born in the United Kingdom on 27 September 1945. In 1967 he married Joan Heather Cummings. There are two children of the marriage each now in their mid‑thirties. The plaintiff has grandchildren.
At the age of 15 years the plaintiff completed his secondary schooling and joined a motor company in Cheltenham taking up an apprenticeship as a mechanic. He completed his apprenticeship at the age of 21 years.
In 1971 the plaintiff and his young family arrived in Western Australia as immigrants. The plaintiff said that his sole intention in coming to Australia was to start his own business. He immediately obtained work as a mechanic but held to his purpose of starting his own business and after six weeks as an employee agreed to lease the workshop of an Ampol service station in Kelmscott where he began business in his own right as a mechanic.
After about two years in the business at Kelmscott the plaintiff approached the Shell Oil Company with a view to taking over a Shell service station. He undertook a course in service station management and eventually established himself in a business known as the Keystone Service Station on the corner of Loch Street and Stirling Highway in Claremont. The plaintiff managed the service station and ran the workshop, doing mechanical work in the form of general automotive service, brakes and clutches and the like. His wife was able to assist as the children were, by that stage, at school. The plaintiff remained in that business for seven to seven and a half years. Changes in the arrangements with Shell Oil Company led him to look elsewhere.
The plaintiff leased two light industrial units in Willetton, one being devoted to mechanical repair and motor vehicle restoration and the other to motor vehicle car radio and air‑conditioning installation, the latter being run by an employee and the former run by the plaintiff and his wife. At that stage or shortly after the plaintiff established, by a deed of trust, the Cummings Family Trust with Kepra Pty Ltd as the trustee of that trust. The plaintiff and his wife became directors and shareholders of the company. After a while the employee left and the plaintiff slowly wound down the air‑conditioning and radio installation business. Kepra Pty Ltd acquired a nearby property known as Unit 6, 32 Gympie Way and moved the business to it. There the business was carried on by Kepra Pty Ltd t/as "R A & J H Cummings Motor Engineers" as trustee for the Cummings Family Trust. At the new premises the plaintiff continued for a while with air‑conditioning installation but also undertook vehicle repairs and servicing and, to a lesser extent, motor vehicle restoration.
In that business, as in the past, the plaintiff's wife continued to assist on the clerical and bookkeeping side. As new motor vehicles increasingly were produced with factory fitted air‑conditioning that side of the business fell away. As I understand the plaintiff's evidence he continued with the automotive repair and restoration business and was building a reputation and a client base in the field of classic motor vehicles an area which, for him, had been something of a passion for a number of years. He and his wife settled into a pattern whereby they worked from Monday to Thursday of each week from about 8.30 in the morning until about four o'clock in the afternoon. On Fridays they tended to stay at home and do the books for the week. He wrote out the job cards for the work currently being done and answered any questions that his wife might have concerning invoices.
The effects of the motor vehicle accidents
At the time of the first accident on 28 June 2000 the plaintiff was driving home at about four o'clock in the afternoon. Immediately after the impact caused by the first defendant's car ploughing into the back of his vehicle he was stunned but felt all right. He drove home. He went to bed that evening with a slightly stiff neck and woke next morning with a headache and a sore, stiff, neck. He attended Dr Dobromirska at the Champion Drive Medical Centre who concluded that he had suffered mild to moderate whiplash to his neck and upper back. She prescribed analgesics. It appears that the plaintiff did not return to work and on 3 July 2000 attended again at the Champion Drive Medical Centre, this time upon Dr Cecilia Ha. She recommended physiotherapy which commenced on 7 July 2000. The plaintiff stayed away from work, because of his condition, for about a week. Towards the end of his week away the stiffness in the neck began to abate.
The plaintiff persisted with physiotherapy through July, August and September, his last attendance being on 8 September 2000. He ceased because it was having no effect.
The plaintiff's evidence was that, at this time, he was having persistent head pain which so frustrated him that he decided to change general practitioners. In her report of 29 September 2000 Dr Ha said:
"This patient has been to physiotherapy since 6 July 2000. He has been going there approximately two times per week. It has reduced his tingling and headaches and has improved the tenderness in his neck muscles.
(a)The desired effect is to have no pain at all.
(b)The number of treatments that is necessary to achieve this result is about one perhaps 2 sessions per week for the next six months.
(c)He was reviewed yesterday and he said it has helped considerably with his condition and may be able to stop it, to see if he can manage it."
In her report of 19 February 2001 Dr Ha said that when she saw the plaintiff on 18 October 2000 he was "mostly asymptomatic". She said that he would only develop sore neck muscles when he lifted objects or mowed the lawn after a full day at work.
The plaintiff did not attend upon Dr Ha again. Instead, on 20 November 2000, he attended upon Dr Hawkins of the Beechboro Family Practice. The plaintiff knew Dr Hawkins because he owned a Jaguar motor vehicle which had been maintained by the plaintiff. In his report of 20 November 2000 Dr Hawkins noted:
"Currently the patient suffers a great deal of pain in the neck, with recurrent headaches and stiffness in the neck. Additionally there are symptoms of intermittent parasthesiae in both hands. The patient finds particular problems with mowing his lawn as well as having to perform any lifting at work."
In his report of 20 January 2001 Dr Hawkins said:
"Chief amongst his symptoms is neck pain and associated headache. He finds that whenever he does any work requiring even modest physical effort, that he suffers from crippling headaches which are often so debilitating that he will have to leave work, go home, take painkillers and lie down, often for the rest of the day."
He further reported: "Mr Cummings feels that he will have no choice but to close down his business altogether."
The plaintiff continued to attend upon Dr Hawkins on a quite regular basis and Dr Hawkins continued to report from time to time. In a report apparently received by the plaintiff's solicitors on 17 April 2001 Dr Hawkins said:
"It has become obvious that he is not able to complete the mechanical repairs that are necessary in his work without performing the heavier lifting or straining which is occasionally required. He feels that he cannot afford to employ an assistant to do this heavier work and that he will have no alternative but to sell his business."
In a report of 12 August 2001 he concluded:
"I believe Mr Cummings is not able to carry on his mechanical repair business as previously, as a direct result of his injuries. He can no longer take on that work which makes the business sustainable and cannot afford the luxury of an assistant to help perform the heavier work. As such he finds himself in the invidious position of being forced to sell his business."
In his report of 6 March 2002 Dr Hawkins said:
"Mr Cummings continues some part‑time work, despite his symptoms. He has been unable to perform the heavy work that is necessary in his trade and as a consequence I understand has had to close his business."
In his evidence the plaintiff explained his situation at work prior to the close of the business as follows: (T28)
"If I didn't strain, I would not suffer; if I did not look up under a car or look down for too long, I would not suffer, but if I lifted anything – lifting a wheel up and passing it across the desk to you – I would suffer and I couldn't get past it. The only way I could get rid of the pain was to take a pain killer.
…
… Obviously, if I was suffering, I would normally try and carry on by taking pain killers because that was the only thing that would enable me to carry on."
The plaintiff explained that he coped by, where possible, avoiding doing those activities which he knew would trigger the pain, contracting out the heavier work and taking pain killers. He said that the effect of the pain killers such as Panadeine Forte was to leave to leave him "jet-lagged". The effect of taking a strong analgesic was that the pain would wear off after an hour but that the "jet‑lag" would continue until the analgesic was out of his system. He was, in that period, unable to concentrate.
There did appear to be some contrast between the final report of Dr Ha who last saw the plaintiff on 18 October 2000 and described him as "mostly asymptomatic" and the first report of Dr Hawkins who, having seen the plaintiff on 3 November 2000 for the first time reported on 20 November 2000 that the plaintiff "suffers a great deal of pain in the neck, with recurrent headaches and stiffness in the neck."
Dr Hawkins referred the plaintiff to Dr Philip Tuch, a neurologist who, in a report of 7 August 2001, said:
"The headache originated from the occipital regions and spread diffusely over the entire cranium. This settled with some basic analgesic and physiotherapy over a week's period, in that the stiffness and neck pain improved, but the headaches have continued. They were initially continuous, but they are now intermittent and only provoked by physical exercise. This physical exercise has to be fairly strenuous, but has to involve the neck and arm muscles to provoke the pain. For example, when he is changing a tyre, using a specific drill, or working underneath a motor vehicle. It is not provoked by coughing, sneezing, straining on the toilet. It does not interfere with his sleeping. … The pain is relieved by Panadeine Forte, but he prefers not to take it at this stage. He knows that the pain will usually dissipate within 12 – 24 hours. Interestingly the pain usually occurs a day or so after the exercise."
Dr Tuch did not find any neurological deficit. Nor did he find any restriction of head or neck movement. He referred to a pain syndrome induced only when the plaintiff exercised or moved his neck. He thought that the symptom reflected a mild soft tissue dysfunction, most likely as a result of the accident.
Also in that report Dr Tuch said:
"He tells me at present he is missing about 1 – 2 days per week at work, due to the headache syndrome. As he runs his own business, he can delegate his time appropriately and prefers not to use analgesia at this stage. Most of the time he is pain free, but when he exercises as described, he becomes symptomatic."
Again, there was something of a contrast between what was reported by Dr Tuch and that reported by Dr Hawkins who said on 12 August 2001 that Mr Cummings was not able to carry on his mechanical repair business because he was no longer able to take on the work that would make the business sustainable and could not afford the luxury of an assistant to perform the heavier work.
It does seem as though the plaintiff had by August 2001 decided to sell his business. He was reviewed by Professor Harper, an occupational physician, on 3 August 2001. In his report of that date Professor Harper referred on several occasions to the plaintiff's decision to sell his business. He said in that report:
"He has not discontinued activities other than heavy mechanical work. He has reduced caravanning. Sleep is 'not bad'. He is experiencing some difficulty bending to his feet when dressing. Showering is unimpeded. He is unrestricted sitting, standing, walking and running. He is able to do handyman jobs at home and his capacity with regard to housework, shopping and cooking has not been affected. Sexual activity has not been affected. When lifting and carrying he is now careful. Driving is unrestricted. His only limitations are when he has a headache, at which time he avoids physical activity and simply relaxes and rests."
It is the case that the plaintiff gave up his business immediately prior to Christmas 2001. His intention was to rest for a year in the hope that his symptoms might resolve. He had tried, prior to cessation, unsuccessfully to sell the business. The premises at Gympie Way, owned by Kepra Pty Ltd, were eventually leased to a man running a mobile mechanical repair service for a term of 12 months commencing on 1 April 2002 with an option of a further 12 months. Most of the plaintiff's plant and equipment was moved to his garage at home. The lessee continues to use some of the plaintiff's equipment including a hoist and wheel balancer.
The plaintiff's current circumstances
The plaintiff aged 57 years and his wife aged 56 years live at their home at Bromfield Drive in Kelmscott. The property occupies half an acre with extensive lawns and an orchard with numerous varieties, including orange, cherry, pear, apple, mandarin and guava. The plaintiff has his Range Rover motor vehicle and a caravan. He and his wife enjoy caravan holidays. Prior to the first accident they would go away at least once a month or once every two months when time permitted, mainly in the winter months so that they were not away from their extensive garden during the dry months. Besides the Range Rover they have a Ford Escort sedan and an old Jaguar motor vehicle which the plaintiff had been restoring.
During the winter months of 2002 the plaintiff and his wife travelled to Broome towing their caravan and on the way there or back called in at various places such as Cossack, Exmouth and Ningaloo Reef.
Since 22 March 2002 the plaintiff has been in receipt of a disability support pension and his wife in receipt of a partner allowance. From that source they have an income of between $500 and $600 per fortnight. In addition, through the family trust, there is income derived from the lease of the Gympie Way property by Kepra Pty Ltd which appears to be in the vicinity of $400 per fortnight gross.
Professor Harper reviewed the plaintiff on 9 May 2002 and reported on the following day that the plaintiff's headaches had nearly resolved completely since his retirement in December 2001. He concluded that the plaintiff had been left with a mild residual disability of the cervical spine.
Curiously, following a review of the plaintiff on 10 September 2002 Mr Tony Robinson, an orthopaedic surgeon, reported that the plaintiff still complained of pain in the neck which he described as being constant and strong and exacerbated with coughing, constipation or straining. The plaintiff told Mr Robinson that when the pain is severe it lasts for a day and fades away on the following day and that episodes of severe pain occur on an average of twice every four weeks. The plaintiff had, he reported, for about three weeks been taking Tramadol twice a day for pain relief. Dr Tuch, in his evidence, described Tramadol as an opioid analgesic slightly stronger than Panadeine Forte.
Dr Tuch, who had seen the plaintiff first on 22 August 2001, saw him again on 9 September 2002 and noted in his report of that day that the plaintiff's pain state had actually worsened rather than improved. The differences noted by Dr Tuch were that the plaintiff in September 2002 had pain with coughing and straining at stool which was not previously present, was using Tramadol at the rate of one tablet twice a day about once a week when he was taking very little analgesia on 22 August 2001 and that the plaintiff now had head pain with both flexion and extension of the neck where previously it had primarily been with extension only. He noted that the history of the plaintiff's symptoms was not a typical history of a soft tissue injury and suspected that there were some non‑medical factors contributing to that situation. He thought that, with the resolution of those non‑medical factors, the plaintiff's work capacity would be restored with six to 12 months. He confirmed that the plaintiff had sustained a soft tissue injury to his neck which was mild in nature. He saw no need for any form of physiotherapy, hydrotherapy or other treatment apart from the intermittent use of analgesia or anti‑inflammatory medication.
My understanding of the plaintiff's evidence was that, having retired from the business and not having any commitment in that regard, he was in a position to avoid pain by being wary of and not doing those activities which might precipitate pain. Those activities were well known to him. By reason of that situation he was unable to undertake certain activities at home such as pruning in the orchard, mowing lawns and doing any form of stressful physical activity. While caravanning he might have difficulty putting up the awning, an accessory to the caravan, or manoeuvring the caravan by hand. Dr Tony Robinson reported to the plaintiff's solicitors on 15 February 2002 that the plaintiff was not then taking any medication. On 1 May 2002 Professor Harper reported to the plaintiff's solicitors that the plaintiff's headaches had largely stopped but that his susceptibility to recurrence remained unchanged. Both are in accord with what one would expect given the plaintiff's evidence to the effect that he did not suffer pain and had no need of medication unless he strained himself. In that context Dr Robinson's final report as to pain and medication, as mentioned above, is of concern. I am inclined to accept Dr Tuch's opinion that the current symptomatology at least in part might be attributed to the litigation process. In cross‑examination he said of litigants:
"… often in patients who are under such strain, it's well recognised that it can indiscreetly cause – inadvertently, I should say, cause underlying muscle contraction, muscle tension and stress related symptoms."
The plaintiff's income earning capacity
There appears to be no evidence that the second of the two accidents which occurred on 24 February 2002 has had any impact whatsoever. All of the patient's symptoms are, directly or indirectly, causally related to the first of the two accidents. I find that the plaintiff suffered, in that accident, a mild or moderate soft tissue injury to the cervical spine. I accept that he has been left with debilitating symptoms in the form of headache brought on by strain. I accept that he could not continue to undertake work in his own business in the field of automotive repair and restoration by reason of that situation. It was apparent from his evidence that while some heavy work could be contracted out as a component of the overall job to be undertaken there would be many occasions where it would be quite impractical, short of employing full time staff, to avoid the need to strain from time to time if only momentarily. My understanding of the plaintiff's evidence was that his headache was precipitated by strain and could then be dealt with by way of taking strong analgesics such as Panadeine Forte or Tramadol. A side effect of that medication was to leave him "jet lagged" meaning, as I understood the plaintiff's evidence, unable to concentrate. I accept that his work was, at times, exacting and that the combination of headache or pain and pain‑killers meant that in practical terms he was effectively unable to carry on his business in a satisfactory or efficient manner.
The first accident occurred on 28 June 2000. The plaintiff was back at work early in July of that year. The plaintiff must have contemplated closing down the business towards the end of that year because, in his report of 20 January 2001 Dr Hawkins reported that "Mr Cummings feels he has no choice but to close down his business altogether". In his subsequent reports Dr Hawkins returned repeatedly to that proposition. The business was not ultimately closed until Christmas 2001. Since then the plaintiff has effectively been retired and gives every indication of continuing in retirement.
He has not sought alternative work nor countenanced that proposition. It was put to the plaintiff in cross‑examination that he still had the ability to take on sedentary work in the field of automotives such as working in spare parts or being a supervising mechanic in a workshop. The plaintiff agreed that he could undertake such work. When asked why he did not he replied: "I don't see why, after being in Australia for almost 40 years, self‑employed, a great client base, doing a job that I absolutely adore, just to say – to get a form of income working licking stamps or dealing with a car that I wouldn't want to." He agreed that it would be beneath his dignity to take on such work and said that he would not do so. When asked if he could find a satisfactory form of alternative employment if he chose to he replied: "I could find an income if I sort of chose to do it." He thought that, if he chose to, he could generate an income at the same level.
I regard the plaintiff's decision to retire from work in his own business as being a reasonable one. That decision was causally related to the negligence of the first defendant. Although the plaintiff suggested in evidence that his intention in retiring was to do so temporarily in order that he might ascertain whether or not he might after a period of say, 12 months, regain his capacity to work as he had done in the past, free of the debilitating headaches, a substantial part of the expert medical evidence suggests that he will not be in that situation again. Dr Tuch takes a different view.
Counsel for the defendants explored the question of whether or not the plaintiff had attempted to exercise his remaining capacity for work. Clearly, the plaintiff had not and, it seems, has no intention of doing so. Counsel for the plaintiff in closing, submitted that there was no evidence as to what jobs might be available to him and that the burden was on the defendant to establish that the plaintiff was not exercising any retained earning capacity that he had. He referred me, inter alia, to Thomas v O'Shea (1989) A Tort Rep 80-251. In that case Malcom CJ and Wallace J said:
"The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre‑accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were available, including the state of the labour market and the likely earnings …"
The plaintiff in this case has proved that he has lost a portion of his pre‑accident earning capacity but has not proved that he has been unable to find alternative employment or that his condition has prevented him from finding alternative employment. To the contrary, he has declined to make any attempt to find alternative employment. In Linsell v Robson [1976] 1 NSWLR 249 Hutley JA said at 251:
"This Court has laid down in clear terms what is required of a plaintiff who claims to have lost part, but not all, of his earning capacity: … He is required to provide evidence, not only of what he could earn prior to his injury, but what he is capable of earning since his injury.
…
This is not a case, in my opinion, where the evidentiary burden has passed to the defendant. The efforts of the plaintiff were very meagre, and, only after considerable efforts to obtain an occupation have been made and failed, does the burden pass to the defendant to show that there is something the plaintiff can do."
In this case Dr Tuch expected that the plaintiff's work capacity would be restored within six to 12 months. Professor Harper concluded that the plaintiff was incapacitated for routine work as a mechanical engineer restoring motor vehicles and that it was appropriate for him to retire from his business. I do not accept that those conclusions lead to his further conclusion that the plaintiff's susceptibility to headaches would preclude him from re‑entering the work force at all. Equally, I do not accept the conclusion of Mr Mastaglia, physician in rheumatology, that the plaintiff has no work capacity at all or in the foreseeable future. Mr Robinson concluded that the plaintiff was unfit to carry out his job as a mechanic and anticipated that he would have trouble carrying out all forms of work which entailed being in the one position for long periods of time. He concluded that the plaintiff's restriction in the open work force was moderate. He said, in his final report:
"Mr Cummings has had to retire premature from the work force. He did plan to work for at least another five years before retirement."
When asked by his counsel whether he had worked since closing the business the plaintiff replied that he had not other than in January and February of 2002 when he did "a couple of services for people who were close friends of ours". When asked why he had not done any other work since December 2001 the plaintiff replied:
"Pure and simply, I emptied the shop out and I wanted to give it away to try and get over this – all this and then maybe go back to it if I – if I did become cured, if it did work."
Since then he and his wife have undertaken a four‑week caravanning holiday to Broome and other places. During that period of time Mr Robinson noted that the plaintiff had suffered two attacks of pain brought about by lifting water and pouring petrol. He decided not to use the caravan annexe on that trip because erecting the annexe, in the past, caused him pain.
Despite the fact that the plaintiff has indicated that, when closing the business, he did so hoping that it would only be temporary, his case is put to me on the basis that he will not return to that business, but that he would have worked, but for the accident, in that business to the age of about 67½ years and that his loss is to be measured by the income that he would have derived from that business but for the accident for that period of time based on a gross income slightly in excess of $27,000 per annum calculated over a period of 12 years. I do not accept that formulation.
The plaintiff issued his writ in this Court on 8 November 2001 and some seven weeks later closed his business. From 22 March 2002 the plaintiff has been and will continue to be in receipt of a disability support pension. Prior to that he was in receipt of a sickness allowance. He had, for several years prior to closure of the business been working in the field of automotive repair and restoration on a four‑day week and had, with his wife, gone caravanning as often as his work permitted. I do not accept the suggestion that the plaintiff would have continued to have worked in this business to the age of 67½ years had it not been for the motor vehicle accident. I have no doubt that he would have continued in the field of motor vehicle restoration (for which he clearly had a passion) but that he would have done so with an eye to earlier retirement and the enjoyment of caravanning holidays with his wife and attending to his orchard and gardens, working from time to time to generate an income according to their needs. In evidence‑in‑chief he said:
"… if I could have retired at 30 and carried on doing the work that I was doing, which I love doing, I would have done it then, as long as I could have carried on doing what I was doing …
… Anything to do with classic cars, restoration of classic cars. That's the main thing."
Had it not been for the accident the plaintiff would have continued to work on the restoration of classic cars for that was his passion. As a result of the accident he can no longer do so. He has no appetite for taking on any other form of work. I accept that, given his age and his field of training, he might well have had difficulty in obtaining work but the fact of the matter is he clearly had no intention of doing so. That is an attitude which has consequences for which the defendants cannot be held liable. In Bowen v Tutte (1990) A Tort Rep 81-043 Malcolm CJ said:
"Where it is clear that the plaintiff has suffered a loss of earning capacity, as where there has been a total loss of capacity to earn in the occupational [sic] profession for which the plaintiff has previously been employed, the Court will do its best to place a value on that loss, notwithstanding the absence of evidence of the availability of employment within the plaintiff's residual capacity and evidence of the amount which could be earned in such employment: see for example Ashford v Ashford (1970) 44 ALJR 195; Chelini v Northern Territory Port Authority (1976) 12 ALR 519; and Dessent v The Commonwealth (1977) 13 ALR 437 at 447 per Mason and Aickin JJ."
The financial circumstances of the plaintiff prior to the first accident
By a trust deed dated 28 September 1981 the Cummings Family Trust was established with Kepra Pty Ltd as its trustee. The primary beneficiaries of the trust were said to be the children of the plaintiff and his wife. The schedule to the deed provided that the plaintiff and his wife would be additional members of the class of general beneficiaries. By a deed of variation dated 22 March 1991 the children of the plaintiff and his wife were excluded as primary beneficiaries and in lieu thereof the plaintiff and his wife became the primary beneficiaries of the trust.
The plaintiff and his wife were appointed directors of Kepra Pty Ltd on 24 September 1981. At about that time they ceased carrying on business as "R.A. & J.H. Cummings Motor Engineers" and Kepra Pty Ltd, as trustee for the Cummings Family Trust, commenced to carry on business under that name at Unit 3, 30 Gympie Way, Willetton. These arrangements continued until the sale of the business in December 2001.
As evidenced by the tax returns of the family trust, in the years prior to the first accident the trust declared no taxable income either because it made a trading loss or in the event of it making a small trading profit, that profit was distributed equally to the beneficiaries, the plaintiff and his wife.
A brief historical summary of the business derived from the financial statements of the Cummings Family Trust is as follows:
| Trading Income | Net Profit | |
| Year ended 30 June 1994 | $61,577.77 | $30.34 (loss) |
| Year ended 30 June 1995 | $66,469.85 | $1,655.16 (profit) |
| Year ended 30 June 1996 | $71,474.17 | $7,075.89 (profit) |
| Year ended 30 June 1997 | $76,527.60 | $4,373.49 (loss) |
| Year ended 30 June 1998 | $93,739.72 | $1,836.16 (profit) |
| Year ended 30 June 1999 | $107,358.50 | $703.61 (profit) |
| Year ended 30 June 2000 | $89,823.38 | $1,758.94 (profit) |
| Year ended 30 June 2001 | $63,575.00 | 0 |
| Year ended 30 June 2002 | $35,485.00 | 0 |
In the years ended 30 June 1995 and 30 June 1996 the financial statements of the Cummings Family Trust indicate that the plaintiff and his wife received annual salaries of $10,000 each. In those years the small net profits made by the trust were distributed between the plaintiff and his wife equally. In the year ended 30 June 1997 the financial statements of the trust indicate that it paid salaries and wages of $23,600 allocated, according to the income tax returns for that year as between the plaintiff and his wife, $18,200 to the plaintiff and $5,400 to his wife. Similarly, in the year ended 30 June 1998 the profit and loss statement of the trust discloses a salary and wages component of $25,600, allocated between them according to their tax returns, $20,200 to the plaintiff and $5,400 to his wife. The same applied to the year ended 30 June 1999. In the year ended 30 June 2000 the amount allocated to salary and wages was $26,000 with $20,600 said to be paid to the plaintiff and, again, $5,400 paid to his wife. In the year ended 30 June 2001 the family trust profit and loss statement indicates a salary and wages component of $21,267.81. The plaintiff's wife's tax return for that year indicates an income of $6,982 from Kepra Pty Ltd, somewhat curiously describing her occupation in that return as being that of a bookmaker's clerk. The remainder of the salary and wages component in that year was allocated to the plaintiff, his individual tax return for that year indicating an income from Kepra Pty Ltd of $14,285. The trust in that year made neither a profit nor a loss, its income exactly matching its total expenses. Clearly the amount allocated to salary and wages was arrived at ex post facto in order to bring about that result. The same appears to have occurred in the year ended 30 June 2002 with the plaintiff's wife declaring an income from Kepra Pty Ltd of $5,400, net rental from 6/32 Gympie Way, Willetton and Commonwealth Government allowances and payments of $7,141. In that year the plaintiff disclosed income from Kepra Pty Ltd in the sum of $5,472, from Commonwealth Government allowances and payments of $5,035 and a net rental income of $234.
The significance of the amount of $5,400 paid by way of annual salary to the plaintiff's wife as outlined above is that any greater amount allocated to her in those years would have attracted income tax at the relevant marginal rate. It follows from the foregoing that in each year the financial statements of the trust and, in particular, the income said to have been derived by way of salary or wages by the beneficiaries of the trust from the trust business did not reflect any amount actually paid by a regular payment of salary or wages but rather reflected arrangements made, in accounting terms, to minimise the impact of the incidence of income tax upon the plaintiff and his wife for their joint benefit.
This is a case where, prior to the first of the two motor vehicle accidents, and for a short period afterwards the plaintiff's income was generated through the exercise of his own expertise and labours in the business "R.A. & J.H. Cummings Motor Engineers". As mentioned, that business was carried on by Kepra Pty Ltd as trustee for the Cummings Family Trust. The business employed both the plaintiff and his wife and paid both a salary as mentioned above. The income of the trust generated by that business was distributed from time to time to them as beneficiaries.
In many cases it is convenient to assess an injured plaintiff's economic loss by reference to the actual loss of wages or salary which occurs up to the time of the trial. Such an exercise can be undertaken, more often than not, with some precision. In the case before me that is not so.
Counsel for the plaintiff referred me to Husher v Husher (1999) 197 CLR 138 which concerned an injured plaintiff in circumstances where liability for his injury had been admitted. He had been involved in a motor vehicle accident. Prior to the accident he carried on business as a block layer in partnership with his wife. It was his skill and labour which generated income for the partnership and his wife's only contribution to the business was to perform some minor bookkeeping and message‑taking tasks. The partnership was a partnership at will providing for an equal division of profits. The situation in that case was not so different to the case before me in that Mr Husher and his wife had made arrangements to minimise the impact of the incidence of income tax upon them by entering into a partnership and splitting the income, which would otherwise have been taxable in the hands of Mr Husher alone, between the two of them. The trial Judge in that case assessed the amount to be allowed to the appellant in respect of past and future economic loss in accordance with what he took to be established principles having regard to the case of Seymour v Gough [1996] 1 Qd R 89. He calculated the amount to be allowed for loss of future earning capacity on the basis that Mr Husher would probably have received only half of the profits of the partnership. Mr Husher appealed to the Queensland Court of Appeal where he failed and then, by special leave, to the High Court. Gleeson CJ, Gummow, Kirby and Hayne JJ said in their joint judgment:
"The financial loss occasioned by impairment of earning capacity is the loss of what (if there had been no accident) the injured plaintiff would (as opposed to could) have expected to have had under his or her control and at his or her disposal by exercising that capacity. We refer to "control" and "disposal" because what the plaintiff has lost are the financial rewards from work that are rewards the plaintiff would have been able to direct to whatever purpose or destination he or she chose.
The finding in this case about probable continuance of the partnership reveals how the appellant would, in all probability, have ordered his financial affairs – by an arrangement terminable at will under which, in return for services of negligible value, he would have shared with his wife 50% of the net proceeds of his endeavours. But the finding about probable continuance of the partnership standing alone, does not reveal how much the appellant would have had under his control and at his disposal."
In the case before me there seems to be little doubt that the whole of the income of the family trust came from Mr Cummings' efforts and the exploitation of his earning capacity. As a matter of practical reality, his wife's contribution to the income was small. Of course, the plaintiff and his wife were not in partnership but rather the beneficiaries of the Cummings Family Trust. Initially the primary beneficiaries of the trust were their children, the plaintiff and his wife being additional members of the class of general beneficiaries. By a deed of variation dated 22 March 1991 the plaintiff and his wife became the primary beneficiaries of the trust.
In Spargo v Haden Engineering (1993) 60 SASR 39 the Full Court of the Supreme Court of South Australia considered the assessment of lost earning capacity of a plaintiff who had been employed as a sheet metal worker by a company which was trustee of a discretionary family trust. The plaintiff in that case had generated the only income received by the trustee company and that income was distributed to the plaintiff and members of his family. The court held that the damages to be allowed to the plaintiff for loss of future earning capacity should be calculated by reference to the whole of the income he had generated. Perry J said at 53:
"In fact, the earnings of the business were not paid to the family members, but credits representing the unpaid distributions of profit were raised in the loan account of the company. If the plaintiff had been carrying on business in his own name, and brought the whole of the income to account as his own, he would have been subjected to substantially more income tax than the aggregation of income tax paid by the family members to whom the income was credited by way of distribution of the trust moneys.
…
It might have been contended that the only amount to be allowed by way of loss of earning capacity for the plaintiff was the amount represented by whatever distribution was made to him by the family trust. Such an approach, however, would have been inappropriate, as what is compensated for is loss of earning capacity rather than actual loss of earnings. In this case, the starting point in determining the true measure of the incapacity was the total income produced by reason of the plaintiff's exertions in the business, even although by reason of the mechanism of the family trust, that income was distributed, at least in large measure, to other family members.
… If he is to be given the benefit of aggregating the distributed income for the purposes of measuring his own incapacity, the allowance for income tax in determining the net earnings should approximate the amount which he might have paid on the gross earnings if they had been brought to account by him rather than by the family trust."
The plaintiff urges upon me that a proper approach to assessment of loss of earning capacity is to aggregate the wages paid to the plaintiff and his wife in the years ended 30 June 1998, 1999 and 2000 and the net profit of the business available for distribution to the beneficiaries in those years and to divide the total sum by three arriving at a gross annual income from which should be deducted the tax that would have been paid had the plaintiff been an individual taxpayer working on his own account.
I am inclined to that approach although I have regard to the fact that the work done by the plaintiff's wife in the business which included cleaning the office, general clerical work such as answering phones and attending to the books of the company was not necessarily negligible. Although it was not productive directly of income it was, presumably, necessary for the efficient and orderly running of the business and would therefore have been an expense of the business whether carried out by the plaintiff's wife or another paid employee. I do not, however, applying the principles enunciated in Husher v Husher (supra), make an adjustment for the fact that the work carried out by the plaintiff's wife in the business, while not itself directly generating income, represented work that was a necessary part of the running of the business.
If I add the salaries paid to the plaintiff and his wife to the net profit of the business available for distribution to the beneficiaries of the trust in each financial year for the five financial years ended 30 June 2000 I arrive at a sum of $132,174.60. Dividing by 5 I arrive at an average amount of $26,434.92 per year which is the amount which could be said, on average to have been generated by the plaintiff by the exercise of his income earning capacity in the business over the five year period ended 30 June 2000. That represents a gross income of $508.36 per week or $425.48 per week after tax calculated on the amount paid by a resident individual.
Past economic loss to 31 December 2001
The first motor vehicle accident occurred on 28 June 2000 and resulted in about one week off work. In the year ended 30 June 2001, according to the relevant profit and loss statement, the Cummings Family Trust paid salaries and wages of $21,267.81. Reference to the tax returns of the plaintiff and his wife for that year indicate that the plaintiff received income from Kepra Pty Ltd in the sum of $14,285 and his wife received income from that company in the sum of $6,982. In other words, the salary and wages component appearing in the profit and loss statement was divided entirely between them. In that year the trust income precisely equalled its expenses. There was no amount available for distribution to the beneficiaries.
Given the approach adopted by me, as outlined above, and having regard to the average amount of $26,434.92 generated in previous years by the full exercise of the plaintiff's income earning capacity I assess his loss of income, by reason of the motor vehicle accident of 28 June 2000 in the year ended 30 June 2001 to be $3,617 after tax.
The business continued trading until 31 December 2001. The trust tax return for the year ended 30 June 2002 indicates that, again, the income of the trust was matched by his expenses with no distribution of profit available to the beneficiaries. By way of salary or wages it appears that Kepra Pty Ltd paid the plaintiff $5,472 before tax and his wife $5,400 before tax. Each appears to have received $234 by way of distribution of the net proceeds of the rental of the premises at which the business was formerly conducted. For the period of trading ended 31 December 2001 I have halved the average gross annual amount arrived at earlier and deducted the combined income by way of salary or wages from the business paid to the plaintiff and his wife in the sum of $10,872 resulting in a net loss of income after tax for that period of $1,947.
Economic loss beyond 31 December 2001
Calculation of the plaintiff's economic loss beyond 31 December 2001 proves difficult. He has suffered a loss of earning capacity in that he is no longer able to carry on in the business that afforded he and his wife a steady but modest income by way of salary or wages over many years. But for the accident on 28 June 2000 they would be continuing to earn at that level for several years to come with some winding down of the business to accommodate approaching retirement and the pursuit of more caravanning and recreation generally while still pursing the plaintiff's passion for restoration of classic motor vehicles. On the other hand, the plaintiff retains a capacity to earn an income having regard to his experience, knowledge and skills developed over a long period and the fact that he might remain largely symptom free by taking measures to avoid those activities that might trigger symptoms. The plaintiff, however, chooses not to exercise that retained earning capacity. He has made no attempt to do so. I accept that, at his age, there may be difficulties in obtaining alternative employment. I must, as Malcolm CJ said in Bowen v Tutte (supra) do my best to place a value on the plaintiff's loss, notwithstanding the absence of evidence of the availability of employment within his residual capacity and evidence of the amount which could be earned in such employment.
The plaintiff will be aged 65 years on 27 September 2010. Having regard to the various factors to which I have referred I propose to allow by way of economic loss from 1 January 2002 to 31 December 2010, a period of nine years, one half of the net average weekly income having regard to the average income calculated over the five year period mentioned above. Taking a net weekly amount of $212.74 after tax I calculate past economic loss from 1 January 2002 to 18 February 2003 (a period of 59 weeks) at $12,552.
By way of future economic loss using the same approach allowing for a period of 7 years and 45 weeks and applying a 6 per cent multiplier I arrive at a sum of $70,023. From that amount should be deducted a percentage for adverse contingencies that might have impacted upon the plaintiff's ability to earn an income had he been able to continue his work. Traditionally those contingencies are, apart from death, sickness, accident, unemployment and industrial disputes. Given that, but for the accident, the plaintiff would continue to be self‑employed in his own business the incidence of industrial disputes might be slight. Having regard to the plaintiff's age and all the circumstances of the case I would apply a discount of 8 per cent resulting in an amount of $64,421 by way of future economic loss.
Past loss of superannuation
In his schedule of economic loss the plaintiff claims past and future loss of superannuation. Perusal of the financial statements of the Cummings Family Trust over the seven years ended 30 June 2001 indicates that in each year the trust paid, by way of employees' superannuation, an amount of about $720 per annum, the figure varying by less than a dollar in each year. That amount remained constant notwithstanding variations in the amount paid by way of salary. There were only two employees, the plaintiff and his wife. The average rate of contribution over those years was 3.28 per cent of gross salary. I do not know why those rates of employer contribution were applied as they appear to be below what was lawfully required of employers. In the year ended 30 June 2001 having regard to the actual gross income calculated in accordance with the principles enunciated in Husher v Husher and the average gross income for the preceding five years the loss occasioned by the plaintiff's injury would appear to be $5,167. Applying the rate applied by Kepra Pty Ltd in that year of 3.39 per cent I allow a gross amount of $175.
For the six months ended 31 December 2001 the gross loss of income would amount to $2,345.46. Applying the same rate as would have been applied by Kepra Pty Ltd I allow an amount of $80.
Following my approach to economic loss since 31 December 2001 I have allowed for the period 1 January 2002 to 30 June 2002 a superannuation charge of 8 per cent which is the prescribed charge percentage. By halving the average gross annual income of $26,434.92 I arrive at a figure of $13,217.46 which would have been the plaintiff's income in that six month period but for the motor vehicle accident of 28 June 2000. For the reasons already enunciated I allow one half of that amount by way of compensation for lost earning capacity. Applying the rate of 8 per cent I arrive at an amount of $529 lost superannuation for that period.
Following the same formula for the period 1 July 2002 to 18 February 2003 and applying a rate of 9 per cent I arrive at a figure of $755 by way of lost superannuation benefit.
Future loss of superannuation
For the period 12 February 2003 to 31 December 2010, a period of 7 years and 45 weeks I would apply a 9 per cent employer contribution to my assessment of the plaintiff's gross weekly loss for that period. Using the 6 per cent multiplier I arrive at an amount of $7,530. Having regard to the judgment of Anderson J in Jongen v CSR Ltd & Anor (1992) A Tort Rep 81‑192 at 61,714 I propose to apply a discount of 30 per cent for the cost of scheme administration, risk of losses and the possibility that the plaintiff might not always be, during the course of his future employment, entitled to compulsory superannuation. I therefore allow an amount of $5,271 in that regard.
Interest on past economic loss and superannuation
The total amount awarded by me for past economic loss is $18,116. I will allow interest on that sum at 6 per cent or $1,087.
I have awarded a total of $1,539 by way of past loss of superannuation. I allow interest at 6 per cent on that amount, the sum of $92.
Non‑medical expenses
In the course of his evidence the plaintiff submitted a quote which became Exhibit 8 indicating the cost of buying and fitting a new awning to his caravan and the cost of supplying and fitting a jockey wheel to it. The plaintiff and his wife enjoy caravanning going on caravan journeys "as often as we can". He has acquired a jockey wheel which makes manually moving the caravan easier and would like to replace the existing awning for a lighter one. The plaintiff is in a position to avoid triggering the debilitating headaches that he complains of. The items referred to do not fall into the category of items necessary for vocational or social rehabilitation or medical need. I regard the acquisition of the jockey wheel and the possible acquisition of a new lightweight awning as being sensible acquisitions which might make caravanning more comfortable generally, particularly so as the plaintiff and his wife become older and less physically capable. There is no need for them, however, in the sense that there might be need to modify a car or a house to accommodate the disabilities of an injured person. I am not inclined to allow the claim for the items referred to.
Similarly, in the plaintiff's schedule of loss is a claim for $4,950 for the conversion of the plaintiff's wood fire at home to gas. He gave evidence that his domestic heater for home heating purposes was a solid wood slow combustion stove. The fuel used is jarrah timber acquired from a timber yard. The plaintiff no longer chops wood. His son‑in‑law helps. The plaintiff said: "I'm going to have to put up with what I've got. It's totally subject to what happens, but I'd like to get into gas or central heating." Slow combustion stoves of the type referred to by the plaintiff are common throughout the metropolitan area and chopped wood is commercially available in the winter months. Like many products it can be delivered to the home. I make no allowance for the cost of converting the plaintiff's home heating from a wood‑burning stove to gas or electricity.
The plaintiff spoke of now having to employ a person to mow his extensive lawns at home whereas prior to the accident he undertook all mowing himself. I have some misgivings about this claim. Professor Harper and Mr Mastaglia agree that the plaintiff needs to avoid heavy lifting, forceful straining and the use of heavy tools. Given that the plaintiff is effectively in retirement I see no reason why he should not undertake the task of mowing in a measured way, by stages if necessary, avoiding any activity that might give rise to strain. I do, however, allow an amount of $2,500 for the cost of such assistance as he may from time to time need.
The plaintiff gave evidence of paying $450 to a tree‑lopping service arising out of the need to lop trees bordering his property close to electrical wires. He explained that he would not have undertaken the work himself because it was too dangerous. That would appear to have been a sensible decision on his part. I make no allowance for that cost.
Pharmaceutical expenses
The plaintiff gave evidence that he was taking an analgesic called Tramadol which, because he is in receipt of a disability support pension, costs $4.50 a packet. He said: "If I don't injure myself, it can last me for as long as till I get a headache. So far I've used about four or five tablets out of it." In cross‑examination the plaintiff admitted that he presently undertakes no treatment and will only resort to analgesia with the onset of headache resulting from strain. As mentioned earlier, in the plaintiff's current circumstances, he has the ability to avoid activities which might cause strain and give rise to a headache. I accept that he still might suffer headaches from time to time. He may have a continuing need for analgesia but not, as I understand his evidence, on a regular basis given his current circumstances. I have regard to the report of Professor A C Harper of 3 August 2001 who said:
"The single most important component of his treatment is avoidance of aggravating circumstances. He only requires very occasional medications and I see no role for specific medical measures."
In his further report of 10 May 2002 Professor Harper summarised the plaintiff's situation as follows: "Mr Robert Cummings has now retired. His headaches have largely stopped but susceptibility to recurrence is unchanged." I would allow an amount of $1,000 for the cost of future medication.
General damages
The plaintiff has suffered, as a result of the accident on 28 June 2000 a mild or moderate soft tissue injury to the cervical spine and has been left with debilitating symptoms in the form of headaches brought on by strain from time to time. He has not had to suffer any hospitalisation, surgery or other invasive therapy. He undertook three months of physiotherapy in July, August and September of 2000. By s 3C(2) of the Motor Vehicle (Third Party Insurance) Act 1943 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 may be awarded only in the most extreme case. "Non‑pecuniary loss" means pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. The maximum amount currently prescribed is $240,000 which amount may only be awarded in the most extreme case. Having regard to the severity of the non‑pecuniary loss suffered by the plaintiff I determine that the applicable percentage is 8 per cent. Having regard to the following provisions of s 3C the net amount payable under this head of damage is $7,200.
In summary, I award damages as follows:
Past economic loss $18,116.00
Interest on past economic loss $1,087.00
Future economic loss $64,421.00
Past loss of superannuation benefits $1,539.00
Interest on past loss of superannuation benefits $92.00
Future loss of superannuation benefits $5,271.00
Cost of domestic assistance $2,500.00
Cost of future medication $1,000.00
General damages $7,200.00
$101,226.00
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