Davey v Allender
[2005] WADC 213
•16 NOVEMBER 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DAVEY -v- ALLENDER [2005] WADC 213
CORAM: COMMISSIONER KEEN
HEARD: 29, 30 & 31 MARCH, 31 AUGUST, 1 & 2 SEPTEMBER 2005
DELIVERED : 16 NOVEMBER 2005
FILE NO/S: CIV 2824 of 2003
BETWEEN: JOHN WALTER DAVEY
Plaintiff
AND
BRETT MICHAEL ALLENDER
Defendant
Catchwords:
Motor vehicle accident - Quantum award of damages - Future economic loss - Incidence of tax on income earned overseas - Turns on own facts
Legislation:
Income Tax Assessment Act 1936
Motor Vehicle (Third Party Insurance) Act 1943, s 3C
Result:
Damages awarded to the plaintiff for $622,889
Representation:
Counsel:
Plaintiff: Mr K S Pratt
Defendant: Mr J P Olivier
Solicitors:
Plaintiff: Trewin Norman & Co
Defendant: Talbot & Olivier
Case(s) referred to in judgment(s):
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Bresatz v Przibilla (1962) 108 CLR 541
Commissioner of Inland Revenue v Lysaght [1928] AC 234
Cullen v Trappell (1980) 146 CLR 1
Hendrie v Rusli [2000] WASCA 249
Pene v Murphy [2004] WASCA 103
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Purkess v Crittenden (1965) 114 CLR 164
Shorey v P T Ltd [2003] HCA 27
Watts v Rake (1960) 108 CLR 158
Wright v Shire of Albany (1993) Aust Torts Reports 81
Case(s) also cited:
Atlas Tiles Ltd v Briers (1978) 144 CLR 202
Black v Motor Vehicle Insurance Trust [1986] WAR 32
British Transport Commission v Gourley [1956] AC 185
Federal Commissioner of Taxation v Applegate (1979) ATC 4,307
Lawson v Flavel [2001] WASCA 272
Squires Transport Pty Ltd v Turnor [2004] WASCA 245
Thomas v O'Shea (1989) Aust Torts Reports 80-251
COMMISSIONER KEEN: The plaintiff was born on 1 November 1955 and, at the date of the accident (the subject of this claim) was a survey engineer.
The plaintiff claims damages for injury and loss arising out of a motor vehicle accident sustained by him on 29 March 2003. The accident occurred while the plaintiff was a front seat passenger in a stationary motor vehicle at traffic lights at Ocean Reef Road which was struck in the rear by a motor vehicle driven by the defendant.
The pleadings
By the statement of claim the plaintiff claims that he sustained injuries comprising:
"a)Headaches;
b)Pain, soft tissue and ligamentous injuries and restricted mobility to the neck;
c)Pain, soft tissue and ligamentous injuries and restricted mobility to the shoulders;
d)Pain, soft tissue and ligamentous injuries and restricted mobility to the right wrist;
e)Pain, soft tissue and ligamentous injuries and restricted mobility to the back;
f)Central disc protrusion at C4/5 and C5/6;
g)Central disc bulge with posterior vertebral end plate lipping encroaching on the sagittal diameter of the spinal canal at C6/7;
h)Uncovertebral lipping causing foraminal encroachment at C5/6;
i)Impingement of the C6 nerve root;
j)Moderate desiccation of the L1/2 and L4/5 discs with a disc protrusion at L1/T2 and a disc bulge at L4/5 and desiccation at L2/3;
k)Pain to the buttocks;
l)Pain, soft tissue and ligamentous injuries and restricted mobility to the legs;
m)Loss of sensation to the anterior thigh;
n)Depression;
o)Interrupted sleep."
The plaintiff claims damages for those injuries and his loss of earning capacity. The plaintiff is alleged to have been rendered totally and partially incapacitated to earn.
By his defence, the defendant admits the accident and his negligence. However, the defendant denies the injuries alleged, symptoms, treatment and continuing disability and the damage alleged. The defendant specifically and further, or alternatively alleges that the matters complained of in the statement of claim, that is to say the plaintiff's injuries and symptoms, are consequent upon or are contributed to by cervical and lumbar degenerative disease from which the plaintiff suffered prior to his accident.
Accordingly, liability is not in dispute and the matter comes before me for assessment of damages only.
The plaintiff
After a limited formal education at Churchlands Senior High School, the plaintiff attended Harvey Agricultural College which he left in 1972. He then had a number of different jobs until at about age 25 years, he entered the oil and gas industry as a base station operator.
The plaintiff gave evidence that he worked in various locations in south east Asia and north west Australia, and in about 1990 was offered work in Europe as a survey engineer.
That employment involved installation of electrical equipment at sea. It was his job to position the vessel and tail buoys for the laying of cables. In later years the positioning of the vessels for the cable laying was done by way of global positioning systems.
This work was sometimes carried out on heavy seas.
Some of the work required of him was heavy and involved carrying crates and boxes, weighing up to 60 kilograms, on the vessels and running cables on the vessels to the antenna and the mast, involving climbing the mast. In addition the plaintiff would have to run cables under flooring and in cramped spaces.
Depending upon the circumstances the plaintiff would obtain access to the vessels he was working on by helicopter or by way of small boat.
In order to be able to go off shore the plaintiff was required to pass physical tests, one of which was a helicopter survival course which he described as:
"Like getting out of a long boat; swimming across to a group of people with life jackets, doing the buddy system, hooking up and then one by one getting into a raft. You might have to climb down a 30 foot knotted rope to get into the raft."
The plaintiff said that prior to the accident he was fit enough to do anything that he had to do on the vessel.
The plaintiff's description of his work was detailed, and it is not necessary, for the purposes of these reasons, to go into any more detail. Sufficit to say that on any account his work involved physical work in an environment which was, to say the least, difficult and required a degree of agility and strength.
The plaintiff last worked before the accident in early November 2002. That was work as a senior survey engineer or technician out of Vietnam. The plaintiff said that it was physical work again working on a vessel. That work also involved climbing masts and demobilising and mobilising vessels when they came in and out of service. He said that it was not light work.
After that work the plaintiff returned to Australia. The plaintiff had a house in Balcatta which he intended to sell and purchase another house for his defacto wife Anne. He had planned to remain in Australia until June 2003.
The plaintiff said that prior to this he had lived basically out of Holland. He described himself as:
"A traveller, rather than a stayer. When you get off the boat, I go to Spain, I go to Holland. I went to Canada. I went to America. I went to Germany. It was my holiday. Get off the boat. I was a free man, single."
The plaintiff gave evidence that he intended to carry on with the work that he was doing into the future. He said that he had not thought of stopping, nor thought about retirement.
After the accident the plaintiff saw a Dr Kurdian which according to a report of Dr Kurdian dated 11 September 2003 (exhibit P5) was on 2 May 2003. The plaintiff said that he saw Dr Kurdian approximately two weeks after he had seen another doctor, Dr Cronstedt.
He said that he had pain in the neck, down the legs, in the buttocks, shoulders, and he had started to have sharp pain under the shoulders. Dr Kurdian prescribed physiotherapy and anti‑inflammatories.
The plaintiff said that he felt well enough to play golf, and that if he could play golf he could go back to work. However, he was still suffering tightness in the neck, down the back of the legs, in the shoulder blades and a snapping sensation demonstrated by him to be at the top of his buttocks.
The plaintiff was offered work and flew to Holland for this purpose. This was in about May or June 2003. He had to pass a medical test but failed the same. Another job opportunity came up on a vessel called the Nordica. He flew to Stevanger from Holland and joined the vessel.
The plaintiff said that the work on that vessel was fairly easy to start with as the equipment had all been set up. When asked how he coped physically with the requirements of the job he said that he thought that he had at the time no problem, but:
"it was a day or two after doing the physical work that I noticed that I was deteriorating as far as headaches and pain in the shoulders again. … The whole body was telling me that I wasn't doing the right thing."
The plaintiff said that he went to see a medic on duty and was given some painkillers. The vessel then pulled into Invergordon and he saw the "medic" again complaining of pain in the back, tingling in the fingertips, leg pain, neck pain, and shoulder pain. As a result he left the vessel on 16 July 2003. He then returned home and he has not worked since.
The plaintiff thought that his symptoms were getting worse. He described his current symptoms as headache over the front left side which is a constant pain for which he takes Panadol. He said that muscles in his neck were very tight mostly all the time and his shoulders were constantly painful with sharp pains in the right shoulder at the extremities. He said that the left shoulder was similar but not as bad as the right. His back beneath the shoulder was also painful. He also described pain in the mid to lower back, across the buttocks, down the right leg and the back of the left heel.
The plaintiff also said that he takes Paxtine for depression. He started taking this after seeing Dr Peter McCarthy. He believes that that medication has assisted.
When asked whether he could qualify to go off shore he said that he could not. He did not suggest that it would be impossible for him to pass the helicopter plunge test, but that he would be in a lot of pain in doing so. He went into some detail (which it is not necessary for me to repeat here) as to what is involved in the helicopter plunge test. Suffice it to say it involves being submerged, escaping from a helicopter and into a raft along with other persons.
The plaintiff said that his sleep was disturbed and sitting was uncomfortable. The plaintiff has a property in Katanning and when driving there stops at Armadale where he gets out and walks around the car to relieve the pain and weakness in his legs.
The plaintiff also said that he had difficulty with domestic activities such as sweeping and vacuuming and wears a brace as a back support.
Prior to the accident the plaintiff enjoyed listening to live bands, water skiing, cycling and go‑carting. He no longer does these activities as they cause too much discomfort.
Further, the plaintiff said that his social activities had been affected and his libido has been affected.
As to his pre‑accident earnings, the plaintiff said that in 2000 he worked for a company, Dutch Onshore Offshore Recruitment ("DOOR") through a Mr Sean Reynolds. He was not absolutely sure as to what he earned in that year but thought it was approximately ₤50,000. He said that over the last 10 years he had been doing work for three months and then had one month off. He said he was earning on average about ₤230 per day, and probably about ₤9,000 a month. He said that he was paid in pounds and paid a commission to Mr Reynolds. He said that he did not pay any Australian income tax and had not earned any money in Australia since 1997. (All references to ₤ in these reasons are a reference to the English Pound.)
Under cross‑examination, the plaintiff confirmed that he decided to make Australia his residence for tax purposes in 2002, and prior to that his postal address was Holland. He did not obtain any exemption from any obligation to pay tax in Australia. He said that he had assumed that he had had a tax exemption status for the last 15 years.
The plaintiff said that he had become engaged to his defacto partner on 25 December 2002, and had intended to get married and to live in the house that he had purchased at Heathridge. However, he said it was still his intention to leave Australia for nine months of the year to work overseas. It was put to him that he had decided that he had had enough of living a nomadic life working as a navigational engineer and wanted to come back to Australia, marry and settle down, but he denied that that was correct.
The plaintiff was cross‑examined at length about the nature of his work off shore and how adjustments to the work might make it easier so that it wasn't so stressful. However, without helicopter and survival certificates the plaintiff did not see a lighter job being available for him off shore.
Since returning to Australia after his accident, the plaintiff said that he had tried for a position in desk top study. He also said that he had asked Mr Reynolds if there was any cable route engineering on shore that he could do. He said that he had made attempts with off shore companies to find a position but without success. He also indicated that he was interested in photography and might be able to create a position for himself as a music and general photographer. He said that he could not obtain a job in a clerical capacity because he didn't have the knowledge.
The plaintiff said that he disagreed with those doctors who said that there was no reason why he could not work at a sedentary job.
When further cross‑examined about his work after the accident, and in particular the tests that he underwent before taking up his last position, he said that he lied when taking the test. He said that he did not tell them how much it hurt when he bent over. His cross‑examination continued:
"You knew what the problems were in the event that there was a disaster at sea, getting out of helicopters and things like that? ‑‑‑Yes.
So you fabricated the position knowing full well that you may be found lacking? ‑‑‑ No.
In the event that an emergency arose? ‑‑‑ No, I didn't fabricate a position.
Well, you said you lied? ‑‑‑ I rephrase that as being – well, basically, I didn't scream when I bent over.
I see? ‑‑‑ I needed to keep my job.
You misled the people carrying out the test, didn't you? ‑‑‑ there was a doctor.
A doctor, yes? ‑‑‑ And put like that, yes I did.
And you knew the purpose of the test was, (a) perhaps to see that you were capable of doing the job and, (b) and perhaps more importantly, that you did not constitute a health hazard, a safety hazard, to your fellow workers? ‑‑‑ I didn't think I did.
I see. So you felt happy about climbing down knotted ropes and getting out of submerged helicopters? ‑‑‑ I didn't have to do any of that at the time.
I know you didn't have to do it but if an emergency arose the lives of your fellow workers may have depended upon your ability to do it? ‑‑‑ That is correct.
I put it to you, you thought you could do it? ‑‑‑ Yes, I did.
Did you? ‑‑‑ I thought I could.
Is that the truth now? ‑‑‑ I wanted to.
Yes. And the fact is that you could do it, isn't it? ‑‑‑ At the time I could have done it.
And there's still no reason ever since that you couldn't have done it, is there? ‑‑‑ I could still do these things, as I said earlier on."
Finally, under cross‑examination the plaintiff said that it was his intention to try to find an income, some way of supporting himself if he can find a job that pays him and he can do the job.
The medical evidence
Mr Peter Watson
Mr Watson, a neurosurgeon, was called on behalf of the plaintiff and produced two reports dated 17 September 2003 and 14 October 2004, respectively (exhibits P1 and P2).
Mr Watson was of the opinion that the plaintiff had sustained soft tissue and ligamentous injuries to the cervical spine and thoracolumbar spine as a result of the motor vehicle accident. He described preceding degenerative changes particularly in the cervical spine and to a lesser extent in L1/2 disc level of the lumbar spine. X-rays also revealed quite significant degeneration of the cervical spine at C5/6 and C6/7 and minor degenerative changes in the thoracic spine. He also described a slight kyphosis at L1/2 in the lumbar spine possibly related to old Scheuermann's disease.
Mr Watson anticipated a gradual improvement despite the degenerative changes and thought that there would be significant improvement in his symptomatology in three to six months if he commenced swimming and exercise. At that time he did not believe the plaintiff was fit for work in the likely conditions that he would meet in the North Sea when in confined spaces and climbing masts. However, in the longer term, given improvement with swimming and exercise, he still thought it possible that the plaintiff could return to his previous occupation. However, he does have significant degenerative changes and these may prolong his recovery.
At the time of his second report of 14 October 2004, Mr Watson noted, to his surprise, that the plaintiff said that his pain was absolutely no better than it was the previous year. He was nevertheless of the opinion that he would be surprised if the plaintiff did not improve with further time, and he was surprised at the lack of improvement in the last year. However, he thought that the plaintiff's occupation at sea as described by him was probably inappropriate for him and it was unlikely that he would ever gain employment in that area again unless a dramatic improvement occurred over the next one or two years. However, he could see no reason why the plaintiff could not take on just about any other sedentary occupation land based and work full time hours.
Mr Watson accepted that he was not a vocational physician but he nevertheless thought that the plaintiff could be capable of working in the context of clerical and light duties, however, when asked of the significance of the fact that it was now two years post‑accident, he said:
"I think that you have to accept that as time goes by, you know, certainly two or three years down the track if they haven't made significant improvements, then the likelihood of them recovering beyond that point is becoming slimmer".
Under cross‑examination, Mr Watson was asked whether or not it was the case that people in occupations requiring strenuous activity and heavy lifting etc developed spinal degeneration more so than others in sedentary work. He said that some of the studies tend to show that it is partly a genetic thing and degeneration can be found in office workers as well. Details of the plaintiff's activities at work and the tests that had to be passed were put to Mr Watson and that by the time a person reached 55 with pre‑existing degeneration, that type of activity is going to be beyond him. He thought that was reasonable, but qualified his answer by deferring to a vocational physician. However, he did accept the retirement age might be younger.
Mr Watson said that he was still optimistic of improvement and expected the symptoms to ameliorate so that the plaintiff could get back to work in a sedentary occupation. He thought that it would be reasonable to say 12 months, and that he should be able to have a graduated return to work programme that allows time for rehabilitation and gradual return to work following that rehabilitation through another six months.
Mr Watson thought that future treatment should follow conservative lines and estimated the cost of such conservative treatment in physiotherapy and intermittent analgesics at about $1,500 for one or two years.
Under re‑examination, in relation to the degenerative problems, Mr Watson was asked as to the value of the history of attending doctors. He said:
"If someone has a lot of troublesome degenerative problems with their cervical lumbar spine prior to an accident, I think it gives you a more accurate assessment of what the background has been to the car accident; in other words, you're trying to assess what blame you should place on an accident. If you have a fairly accurate assessment of what their attendance is to their general practitioners have been with various problems prior to an accident, you get a good idea of where the base line is, if you like."
He was then asked:
"If there were no history of attending doctors, either neck or back in this situation, what would the base line be? ‑‑‑ I would put the base line at zero.
That's a base line of? ‑‑‑ Degenerative – you know, problems due to degenerative changes pre‑existing."
Dr Eva Cronstedt
Dr Cronstedt is a general practitioner. The plaintiff saw Dr Cronstedt on 14 April 2003. She produced a report dated 1 September 2003 (exhibit P3).
Dr Cronstedt read from her notes in which she noted the plaintiff complained of mild pain in his lower back. She diagnosed mild whiplash with reassurance with a script for Brufen. When asked whether or not the plaintiff could have complained of pain to other areas of his body she said that she would make a note of all the pains described. Under cross‑examination she agreed that the strong probability was that had the plaintiff complained of headaches or a sore foot, or anything else, she would have made a note.
Dr Theodore Kurdian
Dr Kurdian, a general practitioner, saw and treated the plaintiff and produced three reports (exhibits P4, P5 and P6).
In exhibit P5, Dr Kurdian describes the injuries and symptoms as headaches and neck pain and stiffness which were not present immediately after the accident but developed gradually over the ensuing weeks after the accident. He diagnosed cervico‑thoracic whiplash injury as a direct result of the motor vehicle accident with continuing complaint of pain and stiffness affecting the cervical spine, upper thoracic spine and trapezius muscles as well as generalised headaches. The plaintiff also had low back pain affecting L5/S1 segments. Dr Kurdian referred the plaintiff to Dr Soni Narula, a neurosurgeon.
Dr Kurdian thought that the plaintiff's symptoms did improve initially with physiotherapy but this was temporary, and his symptoms had not improved to any significant degree since 2003.
Mr Soni Narula
Mr Narula is a neurosurgeon who produced three reports. Mr Narula noted that the MRI scan that had been carried out did not suggest any underlying surgical pathology. It did however show degenerative changes in the cervical spine.
His final report following bone scan showed an increased uptake at C5/6 level in keeping with the MRI scan and the doctor said "this finding is of note". He recommended conservative management, but recovery was likely to be slow given all the objective findings.
According to his evidence, Mr Narula went on to see the plaintiff on a number of occasions in 2003 and 2004. On 2 March 2004 the plaintiff had reported that there had been improvement in his symptoms but residual symptoms remained. He noted that he had tried mild work at home but sustained severe headaches and neck pain for the next six weeks. Objectively there was no cervical extension possible in the neck. The plaintiff also complained of pain in the buttocks area on both sides, and pain going down towards the back of the right knee but sometimes also on the left. Headaches were also mentioned where there was tenderness in the greater occipital nerve in the nuchal region.
Under cross‑examination, Mr Narula confirmed that the plaintiff had underlying degenerative changes in the cervical spine. He said that some of the symptoms would certainly be attributable to the degenerative change, but these symptoms were not present prior to the impact that he suffered. However, the changes were. He confirmed in re‑examination that the radiological changes would have pre‑existed the accident.
Dr John Kingston Ker
Dr Ker is a consultant physician in rehabilitation medicine. He produced three reports dated 4 September 2003, 25 October 2004 and 24 January 2005 (exhibits P11, P12 and P13).
In his reports, Dr Ker described the degenerative changes in the cervical area and also in the lumbar spine. He attributed the ongoing painful neck movement as a consequence of the accident and that the underlying cervical degenerative disease was significant, but he believed that it had been exacerbated by the incident of injury. He thought the prognosis was difficult to determine. The plaintiff had significant symptomatic degenerative disease of two major and a third minor level in the cervical spine and it was difficult to anticipate how this would substantively resolve in the near future. He thought that the plaintiff was not fit for work and could see no prospect of him returning to work at the time of the first report.
In his subsequent reports he notes the continued complaints by the plaintiff and opined that the intrusiveness of the plaintiff's symptoms was likely to remain rather than reduce, and thought that in the longer term the presence of the degenerative pathology would result in inevitable continuing and painful movement restrictions of the spine. He thought that were the plaintiff to improve pain control and alleviate an improvement in his morale, he might usefully examine a vocational future inevitably in sedentary work, and very likely on a part time basis. He thought that the opportunities for work might best be achieved on a self‑employed rather than an employee basis.
Dr Ker said that over the time that he had been seeing the plaintiff he did not regard him as fit to do the type of work he described as doing prior to the accident.
Under cross‑examination, Dr Ker said that over the period of almost two years that he had seen the plaintiff he had not actually seen an improvement, but he would not disagree with Mr Watson's assessment that he would be surprised if the plaintiff did not improve with further time.
So far as a capacity for work was concerned Dr Ker did not agree that the plaintiff could take on just about any other sedentary occupation land based and work full‑time hours, but clarified that saying if there was some improvement in his symptoms such that he had manageable pain, he did not see why the plaintiff should not be able to do it.
Dr Ker confirmed that he could find no evidence of neurological impairment to the plaintiff.
In re‑examination Dr Ker said that the plaintiff's back pain was discogenic and that there were degenerative invertebral discs. He noted that the plaintiff was not suffering pain prior to the accident and that the degenerative disease could have become symptomatic even without the accident, but could not speculate whether it would have occurred between the time of the accident and the present time.
Dr Ker was also of the view that there were no discrepancies in the plaintiff's presentation but that the plaintiff's range of movements had deteriorated over time.
He thought that recovery to pre‑accident level was unrealistic.
Dr Frederick Kit Foong Ng
Two reports were produced from Dr Ng (a consultant psychiatrist) dated 10 June 2004 and 12 November 2004 (exhibits P14 and P15).
In the background history obtained by Dr Ng the plaintiff had denied any previous personal psychiatric history prior to the accident and admitted to using marijuana occasionally. Dr Ng diagnosed the plaintiff as having anxiety and depressive symptoms, satisfying the diagnosis of at least a chronic adjustment disorder with mixed anxiety and depressed mood (DSM IV TR) maybe even a major depressive disorder to a mild extent. Dr Ng opined that notwithstanding the loss of the relationship to his fiancé, the predominant difficulties that he has are the grief of his loss of physical independence, financial independence and a job that he liked. He recommended psychotherapy. If that does not work, he said that the plaintiff may require anti‑depressants and psychotherapy for at least five years. So far as a work capacity is concerned, purely from a psychiatric perspective, he thought that the plaintiff had a work capacity of between 10 to 15 hours per week.
Dr Ng said in evidence that at the time of his second report the plaintiff was reporting that he felt calmer and thought that it may be that the Paxtine that he was taking was assisting with some of the anxiety and irritability. However, Dr Ng was concerned because he thought the plaintiff was no better. Indeed, in that second report he diagnosed a major depressive disorder to a moderately severe extent with anxiety symptoms which were partially treated. The condition had not improved despite the use of anti‑depressants and with continued use of anti‑depressant medication and psychotherapy, the depressive disorder should improve and he was more likely than not to be left with residual permanent psychiatric symptoms if he has permanent physical problems. He thought that the plaintiff would require anti‑depressant medication for at least the next two to three years. He was of the opinion that the plaintiff should be referred to a consultant psychiatrist for treatment. He was of the view that from a psychiatric perspective the plaintiff had no capacity to work whatsoever, but that he may be able to contemplate some form of work in the next three to six months initially working between 10 to 15 hours per week.
Dr Ng was obviously very impressed by the plaintiff. He described him as:
"A very practical, salt of the earth, down to earth, blunt, non‑psychologically minded man but he really wasn't very in touch with his feelings and hence, he was tending to minimise some of his symptoms – his depressive symptoms which I could only pick up on a longitudinal perspective rather than a once‑off cross‑section, so the reason why in that second report … that I made him not fit for work was because I thought, 'Jeepers he's actually worse than I thought he was,' but the prognosis was that he should improve with treatment."
As a further example of this assessment, under cross‑examination, Dr Ng described the plaintiff as having:
"Worked for an x number of many years, many decades as a self‑made competent man who he felt he was and hence the loss of his ability to work and earn big money, … and travel when he wanted to was a huge blow".
When cross‑examined about the plaintiff's marijuana smoking, Dr Ng was asked whether regular marijuana smoking would have any effect on the doctor's opinion about the plaintiff's emotional outlook. He replied:
"Regular marijuana smoking, … can lead to paranoia. I did not illicit any evidence of paranoia or psychosis in the man."
Dr Ng expected some improvement in the plaintiff's condition if he had further psychiatric treatment, but that the improvement would depend on the psycho‑social losses that he has to face and that if the plaintiff was left with significant physical functional difficulties and distress from chronic pain, that would lead to ongoing stress which would lead to some degree of residual psychiatric symptomology. However, he confirmed that if there were significant resolution to the pain, it would follow that with appropriate anti‑depressant medication there would be a significant amelioration of his psychiatric symptoms too. That in turn would have a positive effect upon his employment prospects.
Dr Ng felt that the plaintiff would require possibly 12 to 16 initial sessions of psychotherapy at a cost of approximately $240 per sessions.
S van Montford
The plaintiff applied to tender a document dated 13 July 2003 from one S van Montford. The application was made under s 70C of the Evidence Act and, after hearing argument, I allowed the document into evidence (exhibit P16).
The author addressed the document to "physical therapist" and noted that he saw the plaintiff on 10 July 2003 because of pain (muscle problems) in the back. He apparently carried out a physical examination and commenced the plaintiff on pain‑killers. The plaintiff re‑visited the author on 12 July 2003 with an increase in pain and problems with standing and sitting. The author noted that the plaintiff had ceased work.
Dr Peter McCarthy
Dr McCarthy is a consultant psychiatrist who examined the plaintiff on 18 October 2004 at the request of the defendant, and produced a report dated 20 October 2004 (exhibit D1).
Dr McCarthy took a detailed history from the plaintiff of his background, the motor vehicle accident and of his psychiatric symptoms and past medical history. In that history the plaintiff denied any history of illicit drug or alcohol abuse or dependence.
Dr McCarthy also noted in evidence that it was his routine to ask about alcohol and cannabis use.
Dr McCarthy's examination of the plaintiff suggested to Dr McCarthy that the plaintiff was more depressed than he was admitting. Dr McCarthy opined that the plaintiff had suffered a severe adjustment disorder with depressed mood after August 2003 with his depression being worse since he separated from his fiancé in August 2004. Since that time he has been suffering from a major depressive disorder of mild severity.
Dr McCarthy noted that in taking the history, the plaintiff had referred to returning "home" and confirmed that that was the plaintiff's word or "more importantly, concept".
In his report Dr McCarthy was of the view that it was desirable for the plaintiff to receive anti‑depressant medication and that his depressive symptoms are then more likely to settle without any persistent deficit, and he would be more likely to be able to return to some form of useful employment if he received appropriate treatment, although not his previous employment. He thought that there should be no psychiatric restriction or limitation on his employability. He said the plaintiff was more likely to return to work if his psychiatric symptoms, albeit relatively mild, are treated as he is facing challenges and stresses in his life, and is more likely to be able to cope with these and eventually return to work if he receives anti‑depressant medication. Those stresses were living alone, not working, decreased income, the break‑up of his relationship with the woman that he has known for 25 years, and the current proceedings.
Mr McCarthy thought that with appropriate treatment there was a high probability that within three to six months there would be a significant improvement in the plaintiff's depressive disorder.
Whilst Dr McCarthy did not think the disorder was trivial, he did not think it severe either. He described the plaintiff as:
"Demoralised, depressed but he can look after himself at home. He has fallen into a hole, as he did in 1977 or thereabouts, but he's functional. With treatment he should do very well".
Dr McCarthy also suggested brief psychotherapy for 10 to 20 sessions usually over a six to 24 month period. When asked how long it would be before the plaintiff could undertake some form of rehabilitation, Dr McCarthy opined that assuming the drug is effective, then within six months he could entertain going back to work, perhaps even earlier. Indeed, under cross‑examination he said that there was a high probability of improvement, 70 to 80 per cent.
Dr McCarthy agreed that the plaintiff had suffered a severe adjustment disorder with depressed mood, some 12 months before he separated from his fiancé. Dr McCarthy was asked about this in the following terms:
"How much worse did he describe his symptoms following the separation with his fiancé if he did describe them as being worse, because I think it's your opinion that he went on to develop a depressive disorder as such? ‑‑‑ But there I'm referring at least as much to the enduring nature of the depression, so rather than being up and down he was persistently depressed for a couple of weeks and that's what he told me.
Are you able to answer this question? If we were to take away the break‑up with the fiancé, would this man's psychological condition be any different from what it is now? ‑‑‑ Presumably on the grounds that the separation from his fiancé is itself a stress, also remove significant social support. It also may remove a restraining factor on some aspects of his behaviour. The question's a bit artificial, as I'm sure you appreciate, but I would not have anticipated he would have been severely depressed but I don't know that. It depends on what other life events occurred but the history I've got is, yes, his depression would not have been as bad but for the separation".
Mr Nicholas Constantine Anastas
Mr Anastas is an orthopaedic surgeon who saw the plaintiff at the request of the defendant and produced three reports dated 13 October 2003, 12 July 2004 and 28 February 2005 (exhibits D2, D3 and D4).
Mr Anastas diagnosed soft tissue injuries superimposed upon pre‑existing degeneration in the plaintiff's cervical spine and thoraco‑lumbar spine. He described them as musculo‑ligamentous injuries. He said that such injuries have a vascular supply and that the body does have a natural tendency to heal them.
Mr Anastas gave evidence that over the course of his three examinations he did not see evidence of the sort of resolution of symptoms that he would have expected. However, the plaintiff did have increasing signs consistent with an increase in degenerative changes and evidence of increased degeneration on imaging.
In his report of 12 July 2004, Mr Anastas noted that with improvement the plaintiff ought to be able to return to his pre‑accident occupation, but that one could expect him to have symptoms for a while longer yet because his pre‑existing underlying degenerative changes could be a factor in delaying recovery.
By the time of his final report of 28 February 2005, Mr Anastas noted that the plaintiff was still presenting as having features of soft tissue musculo‑ligamentous injury to his cervical spine and thoraco‑lumbar spine, superimposed upon pre‑existing degeneration. He thought that the level of symptomology was consistent with the diagnosis of such soft tissue injuries superimposed upon the pre‑existing degenerative changes. As at the time of that last report, Mr Anastas's assessment of the plaintiff's capacity for work remained as being fit to engage in full‑time lighter aspects of his engineering work, but he would have difficulty engaging work which involved heavy lifting, prolonged bending or prolonged climbing. He was still of the opinion that the prognosis was for the plaintiff to improve with time, and eventually make a complete recovery, and not be left with any permanent disability in his cervical spine or lower back as a result of the accident.
In that last report, Mr Anastas noted once again, that the degenerative changes in the cervical spine and thoraco‑lumbar spine were factors in delaying recovery and could cause further incapacity with natural progression. He said there was evidence of natural progression on his examination in comparison with his earlier findings in July 2004, including limited cervical spine movement, a wider area of tenderness in his thoracic spine, and limited forward flexion of his lumbar spine.
Mr Anastas was taken through the radiological evidence described in his reports and noted that between his first report and his second report, the evidence was basically the same except for one other change. There was a thoraco‑lumbar scoliosis due to disc and degenerative change with end plate irregularity in the upper lumbar spine. In short, Mr Anastas said that in the MRI of August 2003, there were three degenerative levels in the lumbar spine, and on computerised tomography of the lumbar spine in May 2004, there were four levels. Dr Anastas attributed the increase to the plaintiff's age and natural progression of the degenerative changes and not the accident.
This theme was followed by comparing the second and the third reports of Dr Anastas. Dr Anastas referred to a bone scan of the lumbar spine showing mild increased uptake in the vertebral margins. He also noted increased uptake suggestive of low grade degeneration around shoulders, elbows, wrists, hips, small joints and hands, the medial compartment of the knees and the right great metatarsophalangeal joint of the right great toe and said that presence of that degeneration in those different parts of the anatomy indicated arthritis.
With the sort of degeneration noted by Mr Anastas and having regard to the heavy work carried out by the plaintiff, Mr Anastas was of the opinion that he would expect the plaintiff to have had difficulty coping beyond the age of 55 to 60 years.
Mr Anastas also said that with ergonomic chairs and making adjustments to desks a person such as the plaintiff with some neck ache ought to be able to have his position adjusted so that he can get back to work.
In cross‑examination, Mr Anastas agreed that there was early evidence of degenerative process, but that it was not advanced. He also agreed that there was no way of knowing whether the degeneration is productive of symptomology now or not. Mr Anastas did not agree that he could not say how much of the symptoms were from the soft tissue or from degeneration taking into account the whole picture.
Mr Anastas agreed that one would not necessarily get symptoms from the natural progression of the degeneration. However, in answer to the proposition that there was no real way of knowing to what extent the degenerative process would be productive of symptoms, he answered that the plaintiff's features were consistent with soft tissue musculo‑ligamentous injury which has a natural tendency to heal itself with time, and so one would not expect continuing symptoms from a soft tissue injury.
Dr Anastas accepted that at no time did he think that the plaintiff was fit to return to his off‑shore work, and that the fact that he was doing that type of work before the accident, he could not have been having much by way of symptomatology before the accident.
Dr Anastas stated that if anybody with a soft tissue injury has symptoms after 18 months, he would start looking for other causes for the symptoms.
Dr Alan Home
The plaintiff was seen by Dr Alan Home (occupational physician) at the request of the defendant. Dr Home produced two reports dated 8 March 2004 and 31 January 2005 (exhibits D5 and D6).
In his first report, Dr Home's assessment was that the plaintiff may have some difficulty in undertaking work that involved climbing, heavy manual handling and frequent stair climbing. However, he did consider Mr Davey fit for a wide variety of on‑shore work. He accepted that the plaintiff had a partial capacity for work based upon the veracity of his subjective complaints, but he had a capacity for full‑time work in a sedentary, semi‑sedentary or light manual nature. He also noted the radiological evidence of long standing degenerative changes involving the cervical and lumbar spine, and was of the view that those changes would have become symptomatic in due course. Given time and the nature of the plaintiff's pre‑accident work it was reasonable to consider that he would have become symptomatic within the next few years, noting the severity of degenerative changes in the region of the cervical spine.
By the time of his final report, Dr Home had some difficulty being able to gauge the subjective disability due to variable response in relation to sitting tolerance. He thought that the extent of symptoms was unusual. The perseverance of symptoms and failure to improve over time was also unusual given the nature of the injuries sustained. However, he was of the view that the radiological evidence of underlying degenerative change may be contributing to the persistence of the symptoms in both spinal areas. He was of the opinion that the plaintiff was incapacitated for his pre‑accident work but he was fit to undertake on‑shore work in a full‑time capacity.
In his first report, Dr Home noted an inconsistency between the presentation to Dr Cronstedt and the description of pain given to him. He also noted in his first report that the plaintiff's symptoms "tend to jump around a bit" and said that sometimes he had pain in one leg and sometimes pain in the other.
Dr Home also was of the opinion that one would normally expect some improvement over time, and that the perseverance of symptoms and lack of improvement was unusual. However, he qualified that by noting the radiological evidence of underlying degenerative change that might be contributing to the persistence of symptoms.
Under re‑examination, Dr Home reaffirmed that his view was that the plaintiff's neck would have become symptomatic within a few years, absent the happening of the accident. However, he had not prognosticated in relation to the back complaint. In re‑examination he noted that patients with neck pain have difficulty with activities involving reaching above shoulder height, long periods of static neck posture, heavy manual handling (particularly reaching away from the body where you start using the accessory muscles of the neck) and work in an off‑shore environment where there is an exposure to movement of ships rocking backwards and forwards, and the requirement to climb up and down stairs. He said that it was a possibility that over time the symptoms would become such that he would be unable to continue with the sort of work in his pre‑accident employment.
The plaintiff's earning capacity
Apart from the plaintiff's evidence about his work, his earnings and his ability to carry out the work, evidence was received from other witnesses in this regard.
Sean Reynolds
Mr Reynolds gave evidence as to the physical requirements for working as a cable route engineer, and working in the survey industry in general. He confirmed the necessity to have good health and to be able to pass a medical and to have an off‑shore survival ticket. To retain such a ticket, one needed to be physically fit. He confirmed that one of the basic requirements was the helicopter underwater escape testing, and if that is not done, one does not get a ticket.
Mr Reynolds confirmed the evidence given by the plaintiff as to the sort of work that was carried out by engineers such as the plaintiff. He described the hierarchy for people such as the plaintiff, namely that they would start off by being a survey engineer, progress to a senior survey engineer, then become a party chief and move on to a client representative.
Mr Reynolds established a business called S&R Consultants Ltd ("S&R") in Jersey. He said that that was a favourable tax environment. Mr Davey became involved with S&R. S&R invoiced for foreign personnel working through the company, one of whom was the plaintiff. The company effectively retaining the plaintiff to do the work for them would then pay the invoice and S&R would charge a commission from the payment received before making payment to the plaintiff.
Mr Reynolds said that until 2002 S&R's end client in respect of the client was DOOR.
S&R's commission was normally two per cent of invoice value. It made no other deductions for tax because of the tax advantage position of being registered in Jersey.
Mr Reynolds said that he had no trouble in placing Mr Davey with any of his clients. He was a professional who enjoyed working off‑shore.
Apart from work in Norway, where there is a withholding tax, and therefore the rate paid is higher, his evidence was that the current rate for a cable route engineer was in the region of ₤300 a day and for a client representative (outside of Norway) ₤350 ‑ ₤400 a day.
In cross‑examination Mr Reynolds confirmed that DOOR would pay his invoice in a gross amount and would not deduct any tax unless the plaintiff was working in Norway. Mr Reynolds would then pay the full invoice less his commission of two per cent to the plaintiff, and he would not deduct tax either. He said that he does not discuss people's obligations to pay tax in the scenario that they have to meet the legal requirements of the countries that they are resident in. He said that he was not familiar with Australian tax regulations.
In cross‑examination about the duties of the survey engineers, he agreed that the higher up the ladder one went, the less arduous the work was. As a client representative it may or may not be arduous, it all depends on whether or not the representative wishes to go and check things. He said that they were working on relatively small boats in rough weather but agreed that a client representative would not need to climb masts or carry cables and the like.
Mr Reynolds said that most survey jobs were for a maximum period off‑shore of two or maybe two and a half months.
Dick Hendricks
Mr Hendricks is the operations manager for international operations of DOOR. He has held that position for about 15 years. It is an international agency "intermediating between personnel like Mr Davey and clients within the off‑shore oil and gas industry". It is a recruitment company.
Mr Hendricks has known the plaintiff since 1990 and he has been placed by DOOR to various off‑shore companies since that time.
Mr Hendricks said that the plaintiff was available for work for usually a couple of hundred days per year, which is a high availability in that industry. He has always been able to secure work for him of that order.
Mr Hendricks produced a letter (exhibit P17) from him dated 30 July 2003 in which he notes that in the year 2000 the plaintiff worked 167 days for DOOR and earned a total gross income of ₤41,800, for the year 2001, 227.5 days with an income of ₤59,484 and for the year 2002, 225 days for a total gross income of ₤55,000. He confirmed the contents of the letter to be true.
Mr Hendricks confirmed that the plaintiff had been placed in the capacities as party chief and also as a client representative. He had no trouble in placing the plaintiff. The plaintiff was very knowledgeable and a very hard worker. Mr Hendricks had 100 per cent confidence in his ability to place the plaintiff were he able to work today in the present environment.
Mr Hendricks is engaged in negotiating daily rates for people such as the plaintiff and places somewhere between 270 to 325 people each year. The current rates would be between ₤325 to ₤365/₤370 per day.
He confirmed that the amounts stated in his letter (exhibit P17) were the amounts paid to Mr Davey after any commission had been earned by DOOR.
Mr Hendricks was taken to exhibit P17 and the personal details of the plaintiff contained thereon, and in particular, his address at 8 Rainsworth Gardens, Heathridge, 6027, Australia. Mr Hendricks said that was the address that must have been given by the plaintiff himself and thought that it was the address that he had whilst he was working at DOOR.
Phillip Frederick Hoff
Mr Hoff is a taxation consultant called on behalf of the plaintiff. He is a registered tax agent. He handled the tax affairs of the plaintiff for many years, doing his tax returns from 1987 until 1991 when the plaintiff left Australia. He said that at that point in time he was no longer required to pay Australian tax.
From 1991 onward the plaintiff continued to retain Mr Hoff who gave him advice as to whether he needed to file Australian taxation returns. He has not filed a taxation return on behalf of the plaintiff since. The advice that he gave the plaintiff was that he was not a resident of Australia for income tax purposes, and therefore no longer liable to pay tax in Australia on income earned overseas.
Leonie Anne Millar
Ms Millar is an occupational therapist and between 2004 and March 2005 was employed at WorkFocus.
She was engaged by the defendant to carry out a review of the medical reports with a view to ascertaining the employment options open to the plaintiff. She produced three reports, appendix A and appendix B (exhibit D7), a physical evaluation summary report (exhibit D8) and a further report dated 20 July 2005 (exhibit D9).
Having considered the medical reports, and based upon them, there were set out in the report a number of occupations physically appropriate to the plaintiff. Those are to be found in appendix A at p 3.
She then went through the process of considering the physical demands of a number of those options identified for which the plaintiff would be physically suitable being postal customer services operator, general clerk, light process worker and file clerk.
In the physical evaluation summary report, Ms Millar carried out the same exercise but now having regard to the reports provided by Dr Home. In respect of the letter of 20 July 2005 (exhibit D9) Ms Millar attempted to set out, using the same methodology as for the other occupations, the requirements for a party chief.
Under cross‑examination, Ms Millar agreed that she focused more on the physical side of the evaluation, but noted that no functional capacity evaluation had been carried out in this case. She does not deal with the educational requirements but only the duties of a particular job.
With regard to exhibit D9, Ms Millar agreed that the information contained within that report was taken from an internet search. She did not have the advantage of the plaintiff advising the requirements of his pre‑accident work, and she was not able to see the work being undertaken. It is quite clear that the information obtained and annexed to the report in exhibit D9 is more of a software package which is irrelevant to the present circumstances.
Professor Charles Mulvey
Mr Mulvey is the managing director of Labournet and also director at the Centre for Labour Market Research at the University of Western Australia. He is now an emeritus professor of the University of Western Australia.
Professor Mulvey was engaged by the defendant to provide labour market information detailing wages and employment availability for a number of occupations said to be vocationally and physically appropriate for the plaintiff. He produced two reports dated 14 December 2004 and 17 March 2005 (exhibit D10 and D11). In addition he produced a letter dated 30 August 2005 which became exhibit D12.
In preparing those reports, Professor Mulvey listed the four occupations identified by WorkFocus as being appropriate to the plaintiff. He had reference to a number of sources being award rates and other government sources, including the Australian Bureau of Statistics to come up with the relevant information contained within his report.
His report in respect of each of the four identified occupations deals with the duties undertaken by such an occupation, the award rates of pay, the average weekly earnings and job availability.
In his second report he added to those four categories the further categories of photographer, photographic processor, survey/navigational engineer and senior survey/navigational engineer. In his final report he noted that he had carried out searches in the classified columns in the West Australian for various surveying occupations, and identified geophysical crew leaders and mine surveyors.
Professor Mulvey gave evidence that as at May 2005 the average weekly earnings for all Australian workers was approximately $1,100 per week before tax. Professor Mulvey then noted that since the time of his report in December 2004, the award rate for postal workers had been increased by $17 per week. He also gave evidence that the average weekly earnings in that occupation had increased from $912 to $968.75.
Professor Mulvey carried out a similar exercise in respect of the other three employments referred to in his first report and also those set out in his report of 17 March 2005.
Under cross‑examination, Professor Mulvey was taken through the various occupations and accepted that there are various grades within the postal service and extracted the average wage. He did not have any information or statistics as to whether workers were taken into that industry at any great rate at age 50. He agreed that such a new entrant would compete less favourably to someone who has experience.
As to a general clerk, he also agreed that a person entering at age 50 would be less competitive than a younger person.
As to a light process worker, he accepted that may require some physical activity and was unable to say what effect an injury might have on a person's prospects of entry into such a workforce.
Professor Mulvey also agreed that if one had never worked as a filing clerk prior to the age of 50, as a male he would struggle. He agreed that photography was a small profession. He agreed that a photographic processor did not require formal qualifications, but was not purely sedentary. As to survey engineers and senior survey engineers, surveyors and engineers, he agreed that a Bachelor Degree in surveying would normally be required.
The plaintiff's injuries
I find that as a result of the accident the plaintiff sustained soft tissue injuries to his neck and back.
This finding is consistent with all of the evidence from the medical practitioners, although I am conscious that when first seen by Dr Cronstedt, the plaintiff merely complained of pain in his lower back. Nevertheless, by the time of his visit to Dr Kurdian, he was complaining of neck pain as well.
According to the plaintiff he is no better. This is a fact which comes as some surprise to all of the medical practitioners. However, it is a fact, again agreed to by all of the medical practitioners that the plaintiff suffers degeneration in the spine. According to the evidence of Mr Anastas that degeneration is now the cause of the plaintiff's symptoms. However, I note that at the time of his last report, Mr Anastas was still maintaining the view that the prognosis was for the plaintiff to improve with time, and eventually make a complete recovery and not be left with any permanent disability. Counsel for the plaintiff argues that that statement is at odds with his evidence that it is the degeneration that is the cause of the plaintiff's current problems.
The plaintiff has also suffered a psychological condition as a result of this accident. It seems clear on the evidence of Dr Ng and Dr McCarthy that this is so. The evidence suggests, and I so find, that it is a depressive disorder of mild severity. It is likely that with appropriate medication and psychotherapy, and the relief of stresses in the plaintiff's life, including this litigation, that the plaintiff will make a reasonably good recovery from this accident. Nevertheless, I take this psychological injury into account when considering the plaintiff's claim.
Before leaving the subject of the plaintiff's current condition, it is important that I should say something about the plaintiff's credibility. Counsel for the defendant urged me, in effect, to treat the plaintiff's evidence with care. Two of the matters he asked me to consider were the fact that the plaintiff had lied to Dr McCarthy about his prior use of marijuana and had also lied in relation to testing before going to sea for the last time. Whilst this may, to some extent, reflect poorly on the plaintiff, I accept the argument made by counsel for the plaintiff that as to the former, the plaintiff may well be somewhat concerned about admitting to using marijuana, and as to the second, it is acceptable on the basis of the plaintiff wanting to get back to work in an employment which, by all accounts, he was extremely good at, and in which he was earning a large income.
Notwithstanding that the medical evidence is that these sorts of injuries are ones that ought to resolve, there is a class of case (identified by Dr Home) where such injuries do not resolve and become chronic. I am prepared to find that this is one such case, and that the plaintiff is still suffering, at least in part, from the effects of his accident caused injuries.
The plaintiff's work capacity
The plaintiff has worked overseas for a number of years. He attempted to return to work and failed. I have noted that I have admitted into evidence a report from S van Montford dated 13 July 2003. This appears to be the first and only report contemporaneously made of the problems that the plaintiff had when he returned to work. I am not able to make much of this evidence or give it any great weight as it is not clear as to the qualification of the maker. All that appears to be clear from the report is that the plaintiff complained of pain in his back and on or about 12 July 2003, he stopped working.
The evidence is, and I so find, that the work that the plaintiff has historically carried out at sea was work of a reasonably heavy nature. It involved activities including climbing masts and carrying equipment. This was all in the context of being at sea, sometimes heavy seas. Whilst it is the case that the higher up the employment chain one goes, the greater the possibility of avoiding some of that work, nevertheless, the plaintiff would still have to carry out his activities at sea.
All of the medical evidence, and in particular, that of Dr Home would suggest that the plaintiff no longer has the capacity to carry out that work. For example Dr Home (TP 174) spoke of the problems with low frequency body vibrations and the problems associated with remoteness of medical care should the plaintiff "come to grief".
In the circumstances I find that the plaintiff is incapacitated from performing his pre‑accident work as a survey engineer or associated works.
Nevertheless, the medical evidence is quite clear, and there is little dispute between any of the doctors, that the plaintiff is fit to carry out a range of lighter or more sedentary work on shore. The plaintiff complains of problems in his neck, but the medical evidence is, and I so find, that adjustments can be made to accommodate the plaintiff in this regard.
The relationship of the plaintiff's accident caused injuries and the degeneration to his working capacity
I have noted previously that there appears to be little dispute between the medical practitioners called on both sides as to the plaintiff's condition generally, and also to the fact that the plaintiff is suffering degenerative changes in his spine. Each of the doctors refers to this condition, and each is of the view that the degenerative changes shown on the various radiology reports pre‑existed the accident.
Notwithstanding the existence of such degenerative changes in the plaintiff, I am prepared to find that those degenerative changes were asymptomatic or, at the very least, not causing the plaintiff any significant problems at the date of his accident. That is borne out by the evidence of Mr Anastas in cross‑examination (TP 156) when he accepted the fact that the plaintiff was doing the work that he had described, being heavy work, which would indicate that the plaintiff could not have been having much by way of symptomology before the accident. Further there was no evidence of any prior medical complaint.
The evidence of Mr Anastas is that the radiology suggests that the degenerative changes are advancing, and indeed, affecting more areas of the plaintiff's body than is seen on the earlier radiology reports. I accept that evidence and accordingly, I am prepared to find, consistent with the evidence of Mr Anastas, that the plaintiff's degenerative disease was and is progressing.
Mr Anastas was of the view that by age 55 or 60 years, the plaintiff's pre‑accident work might be beyond him. That being the case, I do find, on the balance of probability, having regard to that and the other medical evidence when taken in conjunction with the description of the work carried out by the plaintiff at sea, that the plaintiff would have had to retire early, that is to say earlier than normal retirement age.
Nevertheless, it is still necessary for me to consider what is the effect of the degeneration and of the accident caused injuries at the present time.
The defendant has pleaded that the matters pleaded in par 4 of the statement of claim, that is to say the plaintiff's injuries, symptoms, treatment and the continuing permanent disabilities and loss of earning capacity, are consequent upon or are contributed to by the cervical and lumbar degeneration disease.
Having regard to the finding that I have made that the plaintiff is still, at this stage, suffering from the effects of the accident caused injuries, the onus rests upon the defendant to show that the losses suffered by the plaintiff in fact arise from the degeneration and not from the accident caused injuries; Watts v Rake (1960) 108 CLR 158, Purkess v Crittenden (1965) 114 CLR 164 and Shorey v P T Ltd [2003] HCA 27 per Kirby, J.
I find that the defendant has not satisfied its onus in this regard, particularly as to the allegation that the matters complained of are caused by the pre‑existing degenerative condition. I make this finding having regard to the fact that I have found that the plaintiff is still suffering from the accident caused injuries, and the evidence that the degeneration may be prolonging the complete recovery by the plaintiff from those conditions. Further, there is no evidence before me to show the extent to which the degeneration is in any way contributing, at this point in time, to the plaintiff's losses.
Damages
Non‑economic loss
I have detailed the nature of the plaintiff's injuries and their progression is dealt with at length in the medical evidence. However, what comes out of that medical evidence is that so far as the physical injuries are concerned, the plaintiff has had very little in the way of treatment. He has undergone physiotherapy and hydrotherapy, and so far as medication is concerned takes analgesic on an infrequent basis.
The plaintiff has some problems sleeping and with sitting for periods of time, including driving, some weakness in the legs and some mild difficulty with household chores. He no longer rides bicycles or goes go‑carting and, as noted earlier, there was some interference with his sex life.
As I have noted, the plaintiff also has psychological problems which are likely to be relieved by continuing medication and psychotherapy.
Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 provides for damages for "non pecuniary loss" which includes:
(a)pain and suffering;
(b)loss of amenities of life;
(c)loss of enjoyment of life;
(d)curtailment of expectation of life; and
(e)bodily or mental harm.
When considering that loss, it is important that I should have regard to the plaintiff's pre‑existing condition and what would have been likely to happen to him in the future. In this respect, I have regard to the degenerative disability that the plaintiff suffered.
The section requires that damages to be awarded should be the proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded. That maximum amount may only be awarded in a most extreme case.
As was noted by Murray J in Hendrie v Rusli [2000] WASCA 249, the task is to find the right proportion between a most extreme case and the present. His Honour gave details of what might constitute a most extreme case. His Honour, in dealing with how the right proportion is to be struck, noted that damages could continue to be awarded by reference to common law principles of assessment and that there was a wide measure of discretion.
The plaintiff is obviously not in the most extreme case category. Indeed it is difficult to assess where in the spectrum of a percentage of the most extreme case one should place the plaintiff. Doing the best that I can, it seems to me that the plaintiff should be placed in the lower end of that spectrum. The injuries were not severe, the social and domestic consequences were also not severe by any standards. It is true that as part of the loss of enjoyment of life the plaintiff now no longer carries out an occupation which clearly he enjoyed, and gave him a great deal of satisfaction. That is an important factor in assessing the loss of enjoyment of life and having regard to the same, I find that the plaintiff's damages should be assessed by reference to 15 per cent of the most extreme case.
Economic loss
In this case I have found that the defendant has not satisfied the burden of proof that it bears in unravelling the consequences of the accident caused injuries and the degenerative changes that have occurred. That being the case, it seems to me that the matter complained of by the defendant, that is to say the plaintiff's pre‑existing degenerative disease, is something to be taken into account in considering the contingencies to which I must have regard when assessing the plaintiff's loss of earning capacity, and I proceed on that basis.
Past loss of earning capacity
The plaintiff ceased work in November 2002 in order to return to Australia to purchase a new property. He returned to work in about July 2003, ceasing work almost immediately and has not returned to work since.
The plaintiff claims past economic loss up to the date of trial, having regard to the income earned by the plaintiff in his pre‑accident capacity working off‑shore. The calculation made by the plaintiff is based upon earnings for a year of ₤57,500 being the mid point between the income earned in 2001 and that earned in 2002 as shown on exhibit P17. The plaintiff then has carried out a calculation based on the exchange rates, which are not in issue, to provide for earnings at the rate of $140,449 for the period 1 July 2002 to 30 June 2004, and $141,730.34 for the period 1 July 2004 to 2 September 2005.
One of the principal areas of contention between the parties, which I will come to later in these reasons, is the application of income tax to the plaintiff's earnings. However, for the purposes of past loss of earnings, the plaintiff has conceded that in that period up to the end of the trial, the plaintiff's loss should be calculated by deducting tax in accordance with the appropriate rates according to the Income Tax Assessment Act 1936 ("the 1936 Act"). For this purpose the plaintiff conceded that for that period the plaintiff was a resident of Australia.
I accept and find that the plaintiff's earnings from his engagement with DOOR for the years 2000, 2001 and 2002 were in accordance with that set out in exhibit P17. The evidence shows that those sums are the sums that DOOR would pay to S&R. The evidence also reveals, and I so find, that S&R would deduct from those sums a commission of two per cent before remitting the balance of the monies received by it to the plaintiff.
The plaintiff's claim has regard to the incidents of income tax for this period. However, I was provided with no evidence as to the number of engagements in each year which gave rise to the income for each such year. Associated with that I was not provided with any evidence of travelling or other expenses such as hotel expenses and the like, which may have been incurred by the plaintiff in getting himself to the embarkation point for each such engagement. The plaintiff said in answer to a question as to where he had lived over the years, that is was basically out of Holland and that he would have been a traveller rather than a stayer. He went to Spain, Holland, Canada, America, Germany. He described himself as a free man.
It was argued by counsel that that meant that the plaintiff did not have a residence and was not domiciled anywhere. I do not accept that to be the case. The plaintiff had been in a defacto relationship which resulted in an engagement with an intention of marriage. I do not accept that there would not be times during the year, when not engaged in his work, that he would not spend time in Australia and suffer the cost of travelling to and from his work, principally out of Holland.
It was up to the plaintiff to prove his loss. Unfortunately, I am left in a position where I am given the past earnings to work from but not all of what I would consider to be relevant material.
It seems to me appropriate that I should take the plaintiff's past earnings as a starting point for calculating his past loss of earning capacity. However, in doing so I must, doing the best that I can, make some arbitrary deductions from his income for the expenses of earning that income. Normally one would obtain some assistance from a person's taxation returns, but in this case the plaintiff did not lodge returns.
I am fortified with my assumption that the plaintiff would return to Australia from time to time by the residential address apparently given by him to Mr Hendricks, and shown on exhibit P17.
It is necessary for me to speculate as to how many times each year the plaintiff might have to travel to his place of work. It is to be noted from exhibit P17 that the plaintiff worked for approximately 225 days in each year. In other words he worked approximately two thirds of the year. The evidence of Mr Hendricks was that he would have to negotiate for a person like the plaintiff, possibly several times a year, and according to the evidence of Mr Reynolds, the length of each period of engagement is a maximum of two to two and a half months. Having regard to the fact that the plaintiff worked approximately two thirds of the year, namely eight months, and each engagement was for two or two and a half months, it is open to assume that there were four such engagements in a year.
In the circumstances I propose to deduct from the plaintiff's earnings the sum of $10,000 to represent the cost of him travelling to and from Australia to his place of engagement. Taken on the average the figure may be low but that may be balanced out by the fact he may not have travelled home on each period between engagements.
I am also required to consider that other contingencies may arise to affect his past earning capacity. For this purpose I do not take into account the fact of his degeneration to the present time. The evidence appears to be that it was asymptomatic. I must have some regard to the normal contingencies namely unemployment, changes in industrial emphasis and the like referred to in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649. However, I must also have regard to the fact that the evidence appears to be that Mr Hendricks would have had no difficulty in placing the plaintiff. Accordingly, I would allow contingencies at five per cent.
In the circumstances I would award past economic loss in the sum of $165,690 made up as follows ‑
Period 1 July 2003 to 30 June 2004:
Lost earnings (gross) $140,449
Less 2 per cent commission $ 2,809
(Sub total) $137,640
Less expenses $ 10,000
(Sub total)$127,640
Equals (per week) $ 2,454
Less Tax $ 937
(Sub Total) Net (per week) $ 1,517
52 weeks at $1,517 $ 78,884
Less contingencies at 5% $ 3,944
(Sub Total) $ 74,940
Period 1 July 2004 to 2 September 2005:
Gross earnings $141,730
Less commission at 2% $ 2,834
(Sub Total) $138,896
Less expenses $ 10,000
(Sub Total) $128,896
Equals (per week) $ 2,478
Less tax $ 912
Net $ 1,566
61 weeks at $1,490 = $ 95,526
Less contingencies at 5 per cent = $ 4,776
(Sub total) $ 90,750
Total past loss of earnings $165,690
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Future economic loss
Again, it is appropriate for me to take as the starting point for calculating the future loss of earning capacity the income of the plaintiff as of 2 September 2005 as shown above. That provides a starting point before tax of $2,478 per week, after taking into account commission and expenses.
In this case the question that looms large is whether or not the plaintiff would have been subject to Australian income tax on his future earnings. Evidence was received from Mr Hoff, the plaintiff's taxation consultant, that he has not prepared a taxation return for the plaintiff since 1991 because the plaintiff had left Australia at that point and was no longer required to pay Australian tax. The advice apparently that Mr Hoff gave was that the plaintiff was not a resident of Australia for income tax purposes.
I am not prepared to have any regard to the evidence of Mr Hoff. I accept his evidence that he gave the advice that he did, and that the plaintiff has paid no income tax in Australia on his overseas earnings. However, Mr Hoff did not proffer any evidence to the Court as an expert which would assist the Court in deciding this important issue. Indeed, no evidence was given by Mr Hoff of any of the assumptions upon which he based the advice that he had given to the plaintiff that he was not a resident of Australia; cf Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370. In the circumstances his evidence was of no assistance to the Court and it is necessary for me to determine, as a matter of law, having regard to the facts to be found on the balance of probability, whether or not the plaintiff would in the future have been liable for tax under the relevant taxation legislation being the 1936 Act.
In connection with this issue, I pause to note my previous finding that in all probability the plaintiff would have returned to Australia on occasions in the past. That finding is supported by the fact that the plaintiff has property in Australia, and was indeed buying new property in Australia. It will be remembered that the plaintiff had not only the residence in Perth, but also property in Katanning. I am also fortified by the fact that the plaintiff had close ties here by reason of his relationship with his fiancé and his intention to marry and take up residence in this country.
In addition to all of this, the plaintiff has conceded that for the purposes of past economic loss, the plaintiff was a resident in Australia. The concession was made by counsel for the plaintiff, and the following exchange took place:
"The Commissioner: Again it depends. Your concession carries with it, as I said before, does it not, the fact that he is a resident for the purposes in the past, so that contingency for the future must be predicated upon, if you want, damages assessed on no tax, either a change in the taxation laws or in doing something different in the future off‑shore
Pratt, Mr: Yes
The Commissioner: There is no evidence to support that is there?
Pratt, Mr: The concession of residency is because he did take up residency in 2002 clearly. Before that we don't think our concession in relation to the past extends to saying that any earnings that he may have had in 91 or 90 what have you, was taxable."
It seems to me that whether or not the plaintiff was a resident of Australia for the purposes of Australian tax is a matter between the plaintiff and the Commissioner for Taxation. Certainly, the concession made to the Court is that by 2002 the plaintiff had taken up residency in Australia.
The liability to pay tax in Australia wherever the income is earned appears, put simply, to depend, at least, on whether a person resides in Australia and, it appears, that a person whose domicile is in Australia is deemed to be a resident of Australia unless the Commissioner is satisfied that the person's permanent place of abode is outside Australia (s 6 the 1936 Act). This seems to be common ground between the parties. Accordingly, the test appears to be one of residency. However, notwithstanding that the plaintiff has property in Australia, the word 'resident' describes the taxpayer and not the taxpayer's property; Commissioner of Inland Revenue v Lysaght [1928] AC 234.
Further, it appears to be the case that an individual may be resident in Australia, even though living permanently abroad if he or she visits Australia as part of the regular order of his or her life. All of the circumstances of the case must be taken into account: Lysaght (supra)
Counsel for the defendant has urged upon me a number of factors which he says points to the plaintiff being a resident of Australia. I have set out some of those factors above. I accept that argument. Further, it seems to me that certainly, so far as the past loss of earnings claim is concerned, the plaintiff's concession puts that beyond doubt. Faced with such a concession it is not necessary for me to consider what may be somewhat complex rules, to ascertain whether or not a person is a resident of Australia.
Having come to that position, that is to say that the plaintiff now concedes that he was a resident of Australia up to 2 September 2005, it is for the plaintiff to prove his future economic loss and the means by which it is to be calculated. Accordingly, I am of the opinion that if the plaintiff seeks to show some change for the future so that he is no longer a resident of Australia, it is for the plaintiff to adduce evidence to the Court in order to satisfy that proposition.
The general position is that in assessing damages for loss of earning capacity in an action for personal injury, there must be taken into account in reduction of the amount assessed, the income tax that would have been paid on the earnings of which the plaintiff has been deprived and that will not now be paid: Cullen v Trappell (1980) 146 CLR 1. In the absence of any evidence to show why the plaintiff should take himself out of this general position, I am bound to consider the plaintiff's claim for future economic loss having regard to lost net income. I do not know if there are any facts which would render the plaintiff not liable for income tax on his future earnings should he, but for the accident, have continued working overseas in his pre‑accident employment.
Accordingly, for the purposes of the future economic loss I again use as my starting point for calculation the plaintiff's loss as at 2 September 2005, less tax which would be payable thereon giving a net figure of $1,566 per week.
The plaintiff is now 50 years old. According to the plaintiff's evidence he had not considered any particular date for retirement. I am entitled to assume that, subject to contingencies and the vicissitudes of life, that the plaintiff would have worked to a normal retirement age of 65. However, I am not necessarily entitled to assume that the plaintiff would have continued in his pre‑accident employment to that age.
The medical evidence is clear that the plaintiff is suffering from progressive degenerative disease. On the plaintiff's own case the work that he was undertaking off‑shore was heavy and at times dangerous. Not only did he have to be physically fit to do the work but he also had to pass stringent tests so as to ensure his safety and the safety of others at sea. The evidence of Mr Anastas is that the plaintiff may not have been able to continue his work beyond the age of 55, notwithstanding the accident.
Further, it appears to be an occupation that could be at risk by reason of only relatively mild impairment as is evidenced by the plaintiff's present position
In Pene v Murphy [2004] WASCA 103 Miller J, with whom Le Miere J agreed, noted the approach in Bresatz v Przibilla (1962) 108 CLR 541 in relation to the contingencies and vicissitudes of life being not only harmful but also positive.
In that case (Pene v Murphy) Miller J, having considered the evidence that was led as to the plaintiff's retained capacity and availability of work, rejected a pure mathematical approach on the basis that it was too optimistic to conclude that the evidence established that the appellant (plaintiff) was capable at the time of trial of obtaining work and a particular wage. His Honour preferred to take the starting point as being the total loss of the prior capacity with a deduction for contingencies.
In the present case, I heard evidence from Ms Millar as to the employment options open to the plaintiff, having regard to his physical abilities. Leaving aside the investigations carried out by her into the position of "party chief" I am prepared to accept her evidence as to the four positions researched by her, namely postal customer service officer, general clerk, light process worker, and filing clerk, and the description of the physical demands of each job. It was the kind of evidence that is commonly researched on a regular basis by people such as Ms Millar and accepted by the court, and is of great assistance.
I am also prepared to accept the evidence of Professor Mulvey as to the award rates of pay, average weekly earnings and job availability in respect of each of those occupations. I do not accept that the other occupations considered by him as photographer, photographic processor or survey/navigational engineer and senior survey/navigational engineer as being appropriate. In respect of the first, it is an employment which depends upon certain artistic ability; as to the second, it may well involve physical aspects which the plaintiff might not be able to manage, and in respect of the third and fourth involves occupations for which the plaintiff is not suitably educationally qualified.
Professor Mulvey is experienced in extracting the sort of information provided by him for the purposes of providing the same to the court for its assistance in respect of matters such as the present case. I have no reason to doubt the conclusions reached by him.
Nevertheless, whilst that evidence demonstrates that there are certain categories of work that would be physically suitable to the plaintiff, and that such work is available and that income could possibly be earned, I am not satisfied on the evidence that the plaintiff will in fact be able to obtain such employment. Professor Mulvey was prepared to accept a new entrant into each type of occupation would compete less favourably to someone who has experience in the occupation, and also that a person, such as the plaintiff, at 50 years old would also compete less favourably. As Professor Mulvey was unable to provide a definitive answer to the question whether or not a person such as the plaintiff carrying a disability might be disadvantaged, it seems to me that that is a matter which one could have regard to when considering the plaintiff's position.
In the circumstances, as was the case in Pene v Murphy (supra), I do not find myself in a position where I can carry out a precise mathematical calculation having regard to the plaintiff's retained earning capacity. It seems to me that in this case I must attempt to bring all of the factors together to try to arrive at a fair compensation for the plaintiff having regard to the normal contingencies, the sort of contingencies referred to in Bresatz (supra) and the plaintiff's retained capacity.
With regard to the retained capacity I am hampered by the fact that the plaintiff has not taken any real steps to try to obtain any alternative employment.
Having regard to the factors identified by Barwick CJ in Arthur Robinson(Grafton)Pty Ltd v Carter (supra) and also the possible positive vicissitudes, and taking into account that the plaintiff does have a retained capacity, I also take into account that whilst other fields of employment may be available to him, there may be the prospects of periods of unemployment; Wright v Shire of Albany (1993) Aust Torts Reports 81 – 239. The evidence of Professor Mulvey is that the average weekly earnings of Australian workers as a whole is approximately $1,100 per week. After tax that will amount to $830. I mention this in contrast to the plaintiff's earnings after tax as I have calculated for his past loss of earnings of $1,566 per week to highlight the relatively high base from which the plaintiff starts. This will have a bearing on the deduction for contingencies.
Having regard to all of these matters that I should take into account and, in particular, the nature of the work and the fact that the relatively mild impairment might jeopardise it, I am of the opinion that an appropriate deduction for contingencies for future loss of earning capacity is 50 per cent. I find that the plaintiff might have well have been incapacitated for his pre‑accident work by the time he reached 55 or 60 years.
I am prepared to allow future loss of earning capacity to age 65. The appropriate multiplier will be 521.8. Accordingly, I allow the plaintiff the sum of $388,741 made up of as follows:
Loss $1,566 per week net
Less 50 per cent contingencies $783 multiplied by 521.8 = $408,569
No claim was advanced by the plaintiff to loss of superannuation benefits and indeed no evidence was led as to any such benefits being provided for the plaintiff. However, the plaintiff's retained capacity would, assuming it is exercised in Australia, carry with it the right to superannuation which is another factor I have taken into account in setting the deduction for contingencies at 50 per cent.
Gratuitous services
In this case a claim for gratuitous services was originally made but abandoned at trial.
Future medical expenses
The evidence seems to be fairly clear that the plaintiff will require some further assistance of a psychological nature. There does not appear to be much argument between Drs Ng and McCarthy as to this. There seems to be little doubt that he will require anti‑depressant medication and psychotherapy. No evidence was led as to the cost of the medication. Dr Ng thought that the plaintiff would require some 12 to 16 psychotherapy sessions, and Dr McCarthy did not disagree. The cost of those sessions would be $240.
Doing the best that I can in making some allowance for medication, and making an allowance for that psychotherapy, I would allow a global sum of $3,000 for future treatment.
Special damages
I was advised that special damages have been agreed in the sum of $5,173.
Conclusion
I have indicated that the plaintiff's claim for non economic loss should be at 15 per cent of the worst case. As at the 1 July 2005, the maximum damages that could be awarded for the most extreme case was $268,000. Having regard to that sum and the appropriate threshold/deductible, at 15 per cent of the most extreme case, the appropriate sum is $26,700.
I have calculated the plaintiff's past loss of earning capacity at $165,690 upon which the plaintiff is entitled to interest. I propose to award interest at an overall rate of 3 per cent on that total sum throughout the period. The period to 2 September 2005 (being the date of calculations made by the plaintiff) comprises 123 weeks. Interest on $165,690 for such period at 3 per cent amounts to $11,757.
Accordingly, I award damages under the following heads as follows:
General damages for pain and suffering and loss of amenity $ 26,700
Past economic loss $165,690
Interest thereon $ 11,757
Future economic loss $408,569
Future medical expenses $ 5,000
Special damages $ 5,173
Total $622,889
There will be judgment for the plaintiff for $622,889.
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