| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CURREY -v- BURR [2003] WADC 185 CORAM : WISBEY DCJ HEARD : 25 AUGUST 2003 DELIVERED : 28 AUGUST 2003 FILE NO/S : CIV 2429 of 2002 BETWEEN : PETER STANLEY JAMES CURREY Plaintiff
AND
GEOFFREY RICHARD BURR
Defendant
Catchwords: Damages - Measure of damage for personal injuries suffered in motor vehicle accident - Injuries superimposed on pre-existing spinal problems - Turns on own facts
Legislation: Motor Vehicle (Third Party Insurance) Act 1943, s 3C
Result: Claim dismissed
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Representation:
Counsel:
Plaintiff : Mr T H Offer
Defendant : Mr P R Momber
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : Peter Momber
Case(s) referred to in judgment(s):
Australian Aluminium Co Ltd v Goulding (1964-5) NSWR 1718
Case(s) also cited:
Nil
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1 WISBEY DCJ: The plaintiff who was born 18 January 1963, claims damages as a consequence of alleged injuries received in a motor vehicle accident on 20 December 2001.
2 The plaintiff, a schizophrenic, requires ongoing medication and has been in receipt of an invalid pension for some 10 years. His vocational history reveals work as a storeman packer and forklift driver. 3 In 1989 while working for David Moss Trading he severed the top of his left thumb with a band saw. During the recovery phase he experienced considerable pain which impacted adversely on his concentration. A diagnosis of sympathetic dystrophy was made and the plaintiff stated that because he had no strength in his hand there was an inability to lift objects, which on his evidence, appears to be permanent. 4 On 7 October 1994 the plaintiff was struck by a Council refuge disposal truck injuring his neck, right arm and lower back. He stated that he had nerve and muscle damage in the right arm (sympathetic dystrophy); cramps down the right side of the neck, exacerbated three or four times a day if engaged in any physical activity around the house; and constant pain in the lower back. His evidence suggested that none of these difficulties have resolved. 5 The plaintiff had a hip replacement in 1996 which has given rise to soreness exacerbated by hot or cold weather. 6 On 2 January 1998 the plaintiff was involved in an accident when his motor vehicle collided with another vehicle which pulled out from a side street. He was taken to hospital by ambulance. He stated that he sustained further soft tissue damage to his low back and has had pain ever since. 7 The plaintiff's evidence generally suggested that prior to the most recent accident he was extremely sedentary, doing little more than pottering around the house, having difficulty with every day domestic activities. Notwithstanding, he claimed that he was trying to get back into the work force, having undertaken a computer course, and attempted a forklift driving course. The computer course had a duration of 20 hours comprising several two hour segments per week, which was as much as the plaintiff could handle because of difficulty concentrating due to pain. He was unable to complete the forklift driving course because he pulled muscles in his arm. Although he claimed he had started to feel a little bit better before the most recent accident, he indicated that it took two to three hours for him to get up in the morning and carry out some
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rudimentary domestic tasks. He embarked upon limited gardening duties but would have to stop after 15/20 minutes because of pain. The plaintiff stated that he went tenpin bowling once a month, and liked to go beach walking, which he no longer does because the cold wind aggravates his back pain. He also engaged in pool therapy, an activity which he claimed was now diminished. 8 The present accident occurred when the vehicle the plaintiff was driving along Wanneroo Road was struck from behind whilst traversing an intersection. He said that his vehicle was travelling at between 60-70 kilometres per hour, and the defendant's vehicle slightly above that. The plaintiff stated that the impact was quite forceful, and he hit his head on the steering wheel and lost consciousness for several minutes. He was taken home by the defendant and subsequently attended upon his general practitioner. Following the accident he experienced a lot of neck and back pain, the latter in a different area than that previously; although that was not supported by his demonstration during evidence. Neck pain was more intense, there was strong pain in the mid back, and a tingling pain in the legs. He stated that he experienced stabbing pain down the right side of the neck, which was not much different than it was before. When asked whether his back pain was of an aching, stabbing, or burning nature, he readily adopted all as descriptive of his situation. He stated that his general incapacity made it difficult for him to engage in physical activities such as making the bed or general housework other than for short periods. The plaintiff stated that his accident caused symptoms had increased his level of pain, making it harder for him to engage in any physical activities, and preventing re-entry into the work force. Although he still engaged in pool therapy and household duties, these activities took longer. The plaintiff had difficulty sleeping before the accident, and that position has become worse. Apart from psychotic medication he takes two Tramal tablets and a Celebrex tablet each day. He also applies deep heat to his back and legs but conceded that he had been doing so prior to the accident. 9 When cross-examined concerning the circumstances of the accident the plaintiff indicated that his car had been pushed approximately one and a half car's length up onto the left hand verge, and into a tree, and was a write-off. It became apparent however during the course of the cross-examination that his appreciation of the circumstances of the accident was somewhat vague. He was adamant that he felt sharp pain in his neck and back immediately following the accident and that he so advised the defendant, denying just saying that he experienced a twinge in his back. The defendant drove the plaintiff home after the accident, but
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the plaintiff denied entering and exiting the defendant's vehicle via the driver's door. 10 The plaintiff stated in cross-examination that his problems following the accident were a bit more intense, and that is an accurate summary of the content of his evidence generally. 11 Dr Cutts has been the plaintiff's general practitioner since April 1997, and her various reports were tendered in evidence. (Exhibits 2.1-2.11). They demonstrate that – (a) Following the motor vehicle accident on 2 July 1998 the plaintiff presented with generalised neck, arms, right leg and lower back pain and was treated with anti-inflammatories, physiotherapy and hydrotherapy, apparently with little relief. (b) As at 18 August 1998 it was considered that his vocational capacity was severely limited as he was unable to engage in basic physical activities for any reasonable period of time without pain. (c) As at 8 December 1998 it was considered that his back pain was becoming chronic, exacerbated by obesity, and physiotherapy was necessary to maintain spinal mobility. (d) On 18 April 1989 it was recorded that there had been no remission of the chronic back pain which extended from the neck to the low back into both hips, and the upper and lower limbs. (e) On 25 October 1999 it was recorded that there had been a small improvement in the plaintiff's condition, pain being worse in the lower back. In addition, the plaintiff was experiencing headaches and difficulty sleeping. It was noted that he had a background of chronic pain from a motor vehicle accident in 1994 which affected his back, left arm, and leg, and that his pain state generally had deteriorated significantly consequent upon the accident on 2 July 1998. (f) On 8 February 2000 Dr Cutts reported that the plaintiff was continuing to have constant pain in the back extending from between his shoulder blades to just above
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12 Not surprisingly Dr Cutts' testimony confirmed the contents of her reports. She stated that immediately prior to the present accident she was seeing the plaintiff approximately fortnightly, the consultations being directed towards pain relief, and she felt that he seemed to be improving slightly. When seen on 27 December 2001 he appeared to be in a lot more pain, particularly to the right side of his back, and had a decreased range of movement. There was pain in the shin and slight tenderness anteriorally over the ribs, but no complaints of neck pain. By the end of January 2002 the plaintiff had started to improve and appeared to be back to his pre-accident base level. His condition has since remained static. Absenting the present accident, Dr Cutts had hoped that the plaintiff might have been in a slightly better position than he is. In particular she had hoped that there would have been further weight loss, and a reduction of pain. She did not purport to identify the extent to which the plaintiff's present problems were due to the accident, but having regard to the fact
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that any assessment is necessarily subjective, and that he appears to be similarly disadvantaged, that is not surprising. 13 Desmond Charles Bushell, a manipulative physiotherapist, has been treating the plaintiff on referral by Dr Cutts. He previously treated the plaintiff in 1998. He stated that he had treated the plaintiff on 43 occasions between 7 January 2002 and 4 July 2002. In his report of 7 July 2003 (Exhibit 3), he described the plaintiff's presenting symptoms as including frontal headache and blurred vision, cervical pain of a constant variable nature, intermittent anterior chest pain, pain in the right forearm, and low back pain extending into the right lower limb. Mr Bushell accepted that the plaintiff's symptoms were consistent with the nature of the accident in which he had been involved. He considered that there would be a requirement for short periods of physiotherapy in the future to relieve cervical and low back stiffness. 14 Peter Watson, a neurosurgeon, reviewed the plaintiff on 3 July 2003 and in his report bearing that date he set out the plaintiff's description of the circumstances of the accident, and the resulting symptoms, which were essentially of spinal pain. He reported: "In summary Mr Currey was involved in a significant motor vehicle accident on 20 December 2001, however this is on the background of two previous motor vehicle accidents. He has soft tissue and ligamentous injuries to the cervical spine and lumbar spine and in my opinion does require a conservative programme of exercise, strengthening and weight reduction. I would anticipate significant symptom improvement over a one to two year course of hydrotherapy and swimming." 15 Not having previously seen the plaintiff, his diagnosis was necessarily dependent upon the reliability of the information provided to him. 16 The defendant gave evidence concerning the circumstances of the accident, although its significance to the matters in issue is questionable. The effect of his evidence was that the vehicles were travelling considerably slower than indicated by the plaintiff, and that the impact occurred when the plaintiff attempted to stop at the traffic lights. The defendant stated that the plaintiff's vehicle was pushed into the middle of the intersection, and then driven by the plaintiff up onto the verge. As a result of impact damage to the defendant's vehicle the passenger's door could not be opened, and when he took the plaintiff home after the
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accident the plaintiff had to enter and exit the vehicle through the driver's door. This was an awkward manoeuvre. I consider the defendant's description of the accident more reliable than that of the plaintiff. 17 The Insurance Commission arranged for the plaintiff to be reviewed by the occupational medicine physician, Peter Hollingworth, and his reports dated 4 December 1998, 30 September 1999, and 11 June 2002, were received pursuant to s 79C of the Evidence Act. 18 In his report of 4 December 1998 dealing with the motor vehicle accident of 2 July 1998, Dr Hollingworth stated: "He made it quite plain that most of his symptoms preceded the MVA and related to the previous accident when he was hit by a truck which, he says, was four or five years ago, but says also, that it was at the time he had the hip replacement." 19 On 30 September 1999 Dr Hollingworth reported: "Most of the symptoms seem to be the same as he had prior to the MVA, although I do not doubt that the MVA aggravated them. He, himself, thinks that the level of pain, particularly in his back and arm, is very similar to what it was prior to this MVA in July of 1998." 20 Dr Hollingworth did not think there would be ongoing disability. 21 Dr Hollingworth reviewed the plaintiff concerning the most recent accident on 11 June 2002 and issued a report bearing that date. He referred to the plaintiff's vocational rehabilitation course as a forklift driver, noting that it had been discontinued after several days because he experienced pain in the right side of his neck with rotation of the head. Dr Hollingworth reported: "It is very difficult to say what, if any, effect this latest car crash had in that he had similar symptoms and was still undergoing treatment at the time of that accident…this man is very much overweight and, although he has reduced his weight now to 105 kilograms from the previous level of 145 kilograms, he still appears very unfit and very much overweight. I think this is probably contributing to the low back pain."
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22 Dr Hollingworth did not support continuing physiotherapy, principally on the basis that it did not appear to be producing any decrease in symptoms.
Conclusions 23 The plaintiff was an unreliable historian both in respect of the circumstances of the accident, and more particularly the nature of his long standing ongoing symptoms, and the extent to which they were aggravated and/or supplemented by the accident. 24 I am prepared to accept that the accident exacerbated the plaintiff's spinal problems generally, but as with Dr Cutts I find it difficult to identify the accident's contribution to his ongoing difficulties. I am satisfied that the contribution was not of a high order, and the exacerbation of symptoms of limited duration, probably returning to the pre-accident state within three/six months. In addition it is probable that there was some postponement of the gradual resolution of symptoms that was occurring. 25 In assessing the effect of the accident caused injuries on the plaintiff it is necessary to take into account that he was already in a debilitated state, and consequently any reduction in capacity would be more significant than to a person in a more robust physical condition. 26 In Australian Aluminium Co Ltd v Goulding (1964-5) NSWR 1718 at 1731, Walsh J said: "It is true that the defendant must pay for the consequences of the injuries inflicted by him, although these consequences may be more serious than they would have been but for the pre-existing condition of the plaintiff. But a comparison must still be made between the condition of the plaintiff as it was prior to the injuries and his future industrial and other prospects in that condition, and his condition after the injuries and his prospects in that condition." It cannot be said that the difference is significant. 27 The Insurance Commission had prior to trial discharged some of the plaintiff's medical and physiotherapy expenses, and I am not persuaded that any accounts still outstanding can be related to treatment of symptoms which are the defendant's responsibility.
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28 Pursuant to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 the amount of damages to be awarded for non-pecuniary loss is to be proportionate to the amount that can be awarded in a most extreme case ($249,000). The plaintiff's accident-caused injuries and residual disability amount to no more than two per cent of a most extreme case which quantifies at $4,980. As this sum is below the prescribed threshold, the plaintiff is not entitled to an award of damages, and his claim fails.
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