Dawson v Fryer
[2016] ACTSC 263
•16 September 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Dawson v Fryer |
Citation: | [2016] ACTSC 263 |
Hearing Dates: | 12 April, 4 July 2016 |
DecisionDate: | 16 September 2016 |
Before: | Burns J |
Decision: | See [118]-[119] |
Catchwords: | PERSONAL INJURY – motor vehicle accident – liability admitted – assessment of damages – whether past loss of employment opportunity – no evidence to support claim for future economic loss – damages awarded. |
Parties: | Richard Dawson (Plaintiff) Kenneth Fryer (First Defendant) Insurance Australia Ltd (Second Defendant) |
Representation: | Counsel Mr A Muller (Plaintiff) Ms J Gumbert (First and Second Defendants) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Moray & Agnew Lawyers (First and Second Defendants) | |
File Number: | SC 66 of 2015 |
BURNS J:
Background
This matter arises from a motor vehicle accident on 23 August 2010. The hearing before me commenced on 12 April 2016 and proceeded as an assessment of damages only. The defendants have admitted liability for the accident and there was no assertion of contributory negligence. On 12 April 2016, a witness for the defendants was unable to appear and the matter was adjourned to 4 July 2016. On that date, the hearing concluded and I reserved my decision.
On 23 August 2010, the plaintiff was driving a vehicle when the first defendant failed to stop at a red light and collided with the plaintiff. The defendants accept that as a result of the accident, the plaintiff sustained the following injuries:
(a)soft tissue injury to the neck;
(b)soft tissue injury to the back;
(c)soft tissue injury to the right shoulder; and
(d)psychological injuries.
The plaintiff prior to the accident
The plaintiff was born in 1974 and was 36 years old at the date of the accident. He was 41 years old when the trial commenced.
He completed year 10 studies at Melrose High in Canberra. He then completed two years of college at Phillip College, Canberra in 1992. During that period he was engaged in some part-time work at Hamill Pools. He also described himself as being heavily involved with Royals Rugby during that period, and also played Rugby Union and Rugby League during high school and college. He continued playing Royals Rugby and as a result of work commitments and training he captained the Nowra first grade Royals for a number of years. The plaintiff testified that he did not suffer any injuries of substance during the course of his rugby career.
After completing college, the plaintiff commenced full-time work with Hamill Pools. He described himself as a general labourer. In 1993, he also commenced his certificate IV in Building. At some point during that year he ceased working full-time at Hamill Pools so he was able to pursue full-time study. He did not complete that course as result of money restraints. In 1994, he then commenced employment at ACT Frames and Roof Trusses.
The plaintiff also described bushwalking and fishing as his key hobbies during that stage, in addition to four-wheel driving. He testified that during the course of these activities he did not have any difficulty with his back.
The plaintiff described his work at ACT Frames and Roof Trusses as an assembler, he then progressed to doing wall frames and continued to progress. At some point, he took on a management role with that company. He testified that during the early years he continued to do part-time work for Hamill Pools.
In 1995, the plaintiff was involved in a car accident, where he had failed to turn left with care and hit a car at a slow speed. He testified that there was no damage to his vehicle and he did not suffer any injury.
He described that as a result of the managerial role he spent less time working with tools at ACT Frames and Roof Trusses and spent more time liaising with the office, which he described as growing into more of an officer role.
In 2001, the plaintiff sustained an injury to his left knee ACL, during touch football. Following this injury, he gave up his sporting activities. Approximately 18 months later, the plaintiff had surgery for the ACL injury. After the surgery, he felt that he did not have the confidence in his knee to continue with his sporting activities. However, he testified that the knee had not otherwise restricted him in terms of his daily physical activities.
In 2002, he commenced a relationship with Rebecca Solomon and they commenced to live together in that same year. That relationship produced two children, one born in 2005 and the other in 2007.
In 2004, one of the plaintiff’s childhood friends committed suicide. This led the plaintiff to seek medical treatment, as he described struggling to sleep. He could not specifically recall whether he was prescribed antidepressant medication. However, the plaintiff’s clinical notes tendered at the hearing record that the plaintiff was prescribed Zoloft for depression. He gave evidence that he took two to three months out of the workforce during that time, which was at the end of his employment with ACT Frames and Roof Trusses.
In 2005, he commenced employment with Narellan Pools. He described himself as in charge of a landscape crew, which was made up of three to four people. He testified that he did not experience any physical restrictions in completing that work and did not have any issues with his shoulder or back.
While at Narellan Pools, the plaintiff applied for a role with Hyne Timber. He gave evidence that he had an affiliation with them while he was working at ACT Frames and Roof Trusses, and he knew there was a job available so he put in his resume. On 17 March 2005, the plaintiff completed a pre-employment medical assessment with Hyne. After that, he then commenced working at that organisation. He testified that he started in an internal sales/administrative role. This included receiving phone calls, entering orders and relaying those orders to other workers. His starting salary with that organisation was $38,000.
In early 2007, the plaintiff underwent an appendectomy at Canberra Hospital. Also in that year, he was promoted to a sales representative role with Hyne. This role included some responsibility for regional customer support. He testified that he was in the car travelling for his employment on most days and was away overnight approximately three to four nights per month. He gave evidence that he had no issues with that travel and no physical or back issues. He testified that he never had any anxiety in the car. His income increased to $40,178 in 2007.
On 5 November 2007, the plaintiff went to see Dr Ian Brown about experiencing difficulty in concentrating.
On 25 June 2008, the plaintiff consulted his General Practitioner (GP) about a lower backache. Although, he did not have any specific memory of this consultation and could not recall whether it was something he suffered from, from time to time. Also on that date, he complained of fainting and dizzy spells. He considered that it was as a result of trying to quit smoking, and being prescribed Zyban. It appears from the clinical notes that the plaintiff commenced taking Zyban in or around August of that year.
In October 2008, the plaintiff suffered an episode of anaphylaxis, which led to him having to go to the hospital. He testified that there were no ongoing issues following that episode.
The plaintiff’s taxable income for the 2009/2010 year was $52,050. He testified that he was actively looking for other positions during this period and that he was looking for a sales representative role in the ACT, or a higher role, such as a management role. He testified that during this period that he was actively looking, prior to the car accident, he had not yet submitted any applications. However, he gave evidence that he had spoken to people in the industry in the ACT and was actively looking on seek.com, and places similar to that. He testified that prior to the accident he had not identified any suitable roles.
Evidence in relation to the accident
The accident occurred on 23 August 2010. The plaintiff gave evidence of his recollection of the accident. He was driving in the course of his employment when the accident occurred. He was driving from Tuggeranong to Belconnen, going down Coulter Drive. The plaintiff turned left at the intersection as the arrow turned green allowing him to do so. The first defendant had run a red light and collided with the plaintiff’s vehicle. The plaintiff recalled the first defendant was travelling at a high speed and thought that he had spun through the intersection at 360 degrees. He testified that he knocked his head on the window and his right shoulder. He then recalled that the car was then on the bonnet of another vehicle that was stationary. He recalled that his foot was trapped between the brake pedal and the accelerator and he had to pull it out forcibly with his hands. At that point the car rolled off the bonnet and rolled back on to the intersection.
He then testified that he forced himself out of the car and lay on the road in the intersection. He recalled that he thought it was his left leg that had a pins and needles sensation and his right arm had the same sensation. He described being able to barely feel them. A doctor observed the accident and went to assist the plaintiff. The plaintiff gave evidence that the doctor held his neck in the brace position. He also recalled feeling nauseous and that he was unable to control his breathing. The ambulance officers administered morphine to him and treated him at the scene. He was then taken to Calvary Hospital. He recalled in the ambulance he was more relaxed because of the morphine, however, he still had the same pins and needles sensation. He recalled that the right side of his temple hurt and his shoulder was stinging.
The plaintiff was assessed at the hospital. The plaintiff did not suffer from any broken bones and he was discharged in the late afternoon. He then went home, although he recalled being very sore, mainly his right shoulder and neck. The foot that had been stuck between the two pedals he also described as sore.
The plaintiff after the accident
The plaintiff’s evidence
The plaintiff did not return to work for a period of approximately two weeks following the accident. The plaintiff went to see his GP on 27 August 2010, several days after the accident. In the period that he was away from work the plaintiff described himself as relaxing at home. He recalled aching in his shoulders and back. He recalled the aching in his back started up high and progressed to his lower back over the weeks. His sleep was poor during this time, and he experienced flashbacks.
During that period, the plaintiff was referred by his GP to a physiotherapist. Initially the physiotherapy was centred around massaging and at some point the plaintiff then commenced a more gym-based program (Hands-off physio program).
By the end of the two week period the plaintiff’s shoulder symptoms had alleviated to a degree, however, he was still concerned with the centre of pain through his back.
The plaintiff returned to work on a reduced hour basis and his duties were restricted. The plaintiff was not to travel interstate and was not to do any lifting greater than one to two kilograms. He testified that his symptoms were still there while he was working, however, he continued to complete the Hands-off physio program two to three times per week. The plaintiff returned to full-time hours by the end of 2010. When he returned there continued to be restrictions on the duties he was able to perform. If he was travelling, he had to stop every 40 minutes to an hour to stretch his back. He continued the Hands-off physio program commenced by his physiotherapist.
In September 2010, the plaintiff was referred to an orthopaedic surgeon regarding his shoulder, Dr Gordiev. I will return to Dr Gordiev’s evidence in greater detail later.
In early 2011, the plaintiff was also referred to the occupational physician, Dr Eaton. Following that examination, the plaintiff commenced anti-depressant medication. I will also refer to the evidence of Dr Eaton in greater detail later.
Also in early 2011, the plaintiff was approached by Scott Kendall, operations manager at FAW Building Supplies (FAW) concerning a prospective role with that organisation. There was then a meeting between the plaintiff; Mr Kendall; Mick Agnew, owner of the business; and James Mair, chief financial officer. The plaintiff testified that there was discussion in that meeting concerning an employment position with FAW. The plaintiff gave evidence that the position was a sales and operations position. However, that initially the position would focus more on sales with the prospect of moving into a more operations role a few months after commencement, as Mr Kendall was leaving the business. He gave evidence that his understanding from that meeting was that his position and salary would be reviewed three to six months after his commencement date. He disagreed that this would not be the case in cross-examination. He testified that Mr Kendall was leaving the business in approximately mid-2011. He gave evidence that there was some discussion about salary in that meeting, although the total amount was not discussed. This was discussed in a phone call that he later received. He gave evidence that they discussed benefits in that meeting. He said that Mr Agnew had asked him what vehicle he would like to drive and he was also told that he would be issued with a mobile phone, laptop and personal assistant for the role.
He recalled that following that meeting Mr Kendall had rung him and offered him the position. His best recollection from that conversation was that he had been offered $77,000 plus super. He disagreed that the offer of $77,000 was inclusive of benefits. At that time, his salary was just under $53,000 at Hyne. He gave evidence that he hesitated in accepting the position and ultimately rejected the offer. He gave evidence that he hesitated because of his back, rehabilitation and doctor’s appointments. He did not consider that he could fulfil that role to the best of his ability because of those ongoing difficulties. The plaintiff continued with Hyne in the same role. He denied that he did not accept the position because he felt loyal to his employers at Hyne and that he preferred the security of his position at Hyne. He also denied that he did not accept the position because he ‘had a lot going on at the time’.
He agreed during cross-examination that during that period in 2011 he had not reported to Rehabilitation Services that he was having any difficulty at work. He considered that perhaps he was not reporting the true facts to either his physiotherapist or his employer. He considered that there was still some ongoing issues during this period, although he agreed that in January 2011 he returned to normal duties at Hyne.
At some stage in 2011, the plaintiff completed the Hands-off physio program. At the time he completed that program, the plaintiff said that his symptoms had mildly improved, however, that he was still having back and lower back pain. He was still experiencing disturbed sleep.
In August 2011, the antidepressant cymbalta was prescribed to the plaintiff, as he was having a difficult time coping with his workload and injury. He was also struggling at home with his relationships with his partner and children.
He gave evidence that his favoured pastime of fishing was significantly affected, and that he was only capable of doing less than half of what he did before the accident.
In August 2012, the plaintiff consulted his GP about a flare up of back pain. The plaintiff had to reorganise his work travel schedule to reduce his work load, as a result of the back pain.
In September 2012, the plaintiff consulted his GP, as he was waking up two times a night for half an hour with back pain. This was on a regular basis, approximately two to three times per week, since the accident.
In October 2012, due to a reshuffle within the company, the plaintiff’s role changed. He had an increase in pay and there was less travel associated with his new role. This was a salary of approximately $76,000 plus benefits. The benefits included a car, which the plaintiff estimated was worth $15,000 and a phone, which the plaintiff estimated was worth $1,000.
The plaintiff also gave evidence that following the accident he was a lot more cautious and nervous in traffic situations. His GP referred him to a psychologist as a result of this. The plaintiff also gave evidence that he has taken more sick leave since the accident
The plaintiff gave evidence that prior to the accident the domestic arrangements were approximately 50/50 between him and his partner. He testified that it was a general sharing arrangement rather than him being responsible for particular tasks, and he estimated he was completing approximately 20 hours per week of domestic duties. In the first few months following the accident, his accident related injuries had a significant impact on his ability to do domestic duties. He gave evidence that he did very little domestic duties during that period and estimated that the additional load taken on by his partner at approximately 19 hours per week, with him completing approximately one hour per week. He also gave evidence that he had difficulty in lifting his children who were aged three and five at the time. His children are now aged eight and ten, and he considered that while they are more independent in some respects, he still experienced difficulty in playing with them. He also gave evidence that he needed assistance in the first two to three weeks after the accident with dressing and other similar tasks, although he has been independent in self-care since that time.
Following his completion from the Hands-off program, approximately 6 months after the accident, he estimated that he was completing approximately 3 hours per week in domestic duties, which would be approximately a 17 hour shift to his partner. He testified that he was now doing less than half of what he was doing before in terms of domestic duties. He agreed that his partner taking on more of the domestic duties was because she wants to help him. He agreed that if she was not stepping in to perform those domestic duties, he would be capable of doing them, however, it would aggravate his pain. He considered that vacuuming and cleaning sinks would not aggravate his pain, but that stacking and unpacking the dishwashing would. He gave evidence that he does not do any washing, as it involves lifting heavy baskets and lifting items of above his head to hang on a clothesline. He also gave evidence that he does not make beds, as it involves stretching over the bed and tucking sheets in. He agreed there is no psychological condition which affects him from performing domestic duties, except for his moods when he returns home from work. However, he agreed in cross-examination that a person working long hours in a managerial position would expect to sometimes feel tired and moody.
The plaintiff also described ongoing restriction in the hobbies he had previously enjoyed. He also described consistent pain to his lower back and daily pain to his right shoulder. He testified that he has never had a day without pain. He considered that on a good day his pain would be a two out of ten and a bad day his pain would be a six to seven out of ten. He testified that he has a good day once or twice every month. He also gave evidence that his family sometimes drives to visit an extended family member’s house approximately eight hours away. On those trips he testified that he often has to take a break every half an hour to an hour, whereas, previously he would have only taken a break every two and a half hours to three hours.
The plaintiff also gave evidence that he would not consider a position:
(a)with a lot of travel;
(b)involving any heavy physical activity; or
(c)involving significant driving, such as a sales roles.
The plaintiff also gave evidence that he could earn more money if he took a position at another company. However, he testified that he would be concerned about undertaking the pre-employment medical tests in obtaining these roles. The plaintiff also gave evidence that he has not applied for higher paid operational roles, as a result of his ongoing pain.
The plaintiff was cross-examined in some detail about a series of entries in rehabilitation material that reflected an improvement in the plaintiff’s condition with active treatment. The plaintiff did not disagree with the proposition that treatment had led to some improvement, however, it is the degree of improvement that the plaintiff has experienced in his injuries and will achieve in the future that is in contention in this matter. I will return to this evidence in greater detail later.
The plaintiff agreed during cross-examination that following the completion of his rehabilitation program in 2012 he was feeling a significant improvement. It was not suggested that the plaintiff was being untruthful in his description of ongoing daily back and right shoulder pain. However, the plaintiff agreed that the only treatment he intends to have in the future on an ongoing basis is by his GP. He agreed that no one has recommended physiotherapy.
Clinical notes
For convenience, I will summarise the evidence in relation to the clinical notes briefly here. I note that they spanned some 600 pages, and this is intended in no way to be a comprehensive summary of those notes.
A report from Nesh Nikolic, psychologist, dated 24 November 2010, identified mental health concerns in relation to the plaintiff. These related to an apprehension in driving, both as the driver and passenger, although no significant scores were reported on any of the measures of the Burns anxiety inventory and the Post-Traumatic Stress Disorder screening tool.
A report from Rehabilitation Services dated 7 December 2010 recorded that the plaintiff reported to the author of that report, Ms Swart (an occupational therapist) that his right shoulder, cervical and lumbar pain symptoms were improving. The plaintiff agreed during his evidence that due to the course of physiotherapy he undertook after the accident he had made significant improvement from his injuries by December 2010. At that point, the plaintiff was still completing reduced hours of six hours per day, five days per week.
A further report from Mr Nikolic dated 17 December 2010 recorded that the plaintiff reported that his apprehension had reduced considerably and he was now more confident driving and being a passenger. He was also feeling calmer and more in control of his anxiety. The plaintiff agreed with this during the course of his evidence.
A report from Rehabilitation Services dated 10 January 2011 recorded that the plaintiff reported intermittent cervical, lumbar and right shoulder discomfort. He rated his cervical discomfort as one out of ten (with ten being the maximum level of discomfort), his lumbar discomfort as three out of ten and his shoulder discomfort as one out of ten. At this point the plaintiff had returned to full duties and normal duties. This report also recorded a phone call from the plaintiff on 22 December 2010, where he reported that his right shoulder, cervical and lumbar pain symptoms were improving and that his physiotherapy sessions were a contributing factor. He also reported that he was coping with the increased hours as well as with his duties and indicated no significant difficulties. It was noted that the plaintiff remained ‘independent in his self-care and domestic duties’.
On 15 March 2011, the plaintiff reported to his GP that his lower back was sore, his shoulder was generally “ok” and his mid-thoracic back was now “ok”. On that occasion, the plaintiff also reported some stiffness with bending. The doctor recorded that the plaintiff had a full range of movement in his lumbar spine.
In a report from Rehabilitation Services dated 3 May 2011, an occupational therapist, Tracy Voortman recorded that the plaintiff reported experiencing an improvement in his lumbar discomfort, with his discomfort being most apparent in the morning. She also noted that the plaintiff had successfully maintained his medical certification of fit for pre-injury duties. The plaintiff confirmed this was the case during the course of his evidence.
In a report from Rehabilitation Services dated 28 June 2011, Ms Voortman recorded that the plaintiff indicated that he was experiencing inconsistent lumbar discomfort, which he rated as two out of ten, at worst. During the course of his evidence he agreed that this was the case and he was able to self-manage the pain. She also recorded that the plaintiff was performing his pre-injury duties without difficulty and that he presented as happy with his recovery and motivated to work. She also recorded that no further loss or treatment was anticipated in relation to the plaintiff’s right shoulder, cervical and lumbar spine discomfort and the plaintiff confirmed during the course of his evidence that this accorded with his understanding at that time. Also on that date, Damon Cook, Branch Manager at Hyne & Sons, reported that he had no ongoing concerns in relation to the plaintiff’s performance or ability to manage at work.
On 21 October 2011, the plaintiff reported to his GP that his capacity to mange pain was better, as was his mood. The plaintiff also commenced walking his dog in the evenings.
On 5 December 2011, the plaintiff again reported to his GP that his pain management was much better.
On 30 January 2012, the plaintiff reported to his GP that he was sleeping well once asleep, although reported he still has some degree of insomnia and occasional vivid dreams. He also reported that he was waking up feeling refreshed.
On 1 November 2012, Andrew Shepherd, an occupational therapist, recorded that the plaintiff was experiencing persistent discomfort around the lumbar and cervical spine. On this occasion, he rated his discomfort to be an average of four out of ten. He indicated that his discomfort was exacerbated in the mornings after sleep and by cold weather. At this time it was noted that the plaintiff was ‘independent in self-care and domestic duties’.
On 24 November 2012, the plaintiff reported to Ms Voortman that he was feeling positive in his new role as sales and branch manager, and that he was managing his symptoms with the implementation of ongoing independent exercises. He agreed during his evidence that he was performing his pre-injury duties without difficulty and was happy with his recovery.
On 7 December 2012, the plaintiff reported to Dr Brown that he was no longer worse on a travel week and that no obstacles appear on the horizon at present. The plaintiff agreed that this accorded with his memory.
On 31 December 2012, Ms Voortman recorded that the plaintiff indicated occasional discomfort in the morning in his lumbar and cervical spinal regions when prolonged postures were assumed. She also recorded that the plaintiff was not undergoing any active treatment, and instead the plaintiff was performing independent exercises and stretching as on-going measures to ensure that functional gains were maintained. She recorded that the plaintiff’s return to pre-injury duties had been safe and durable, that the plaintiff was performing his duties without difficulty and that he presented as happy with his recovery and motivated to remain at work.
On 8 May 2013, the plaintiff reported to Dr Brown that work was still going well and that he was performing the role of both operations and sales manager. Additionally, Dr Brown noted that he was travelling less than one week per month and that the plaintiff was managing his posture, including in the car. He also noted that the plaintiff was pacing himself at home with domestic duties. The plaintiff agreed this was correct during the course of his evidence.
Evidence of Rebecca Solomon
The plaintiff’s partner, Rebecca Solomon, gave evidence at the hearing. She gave evidence that after she was informed the plaintiff had been in a car accident, she went to the hospital. She waited with him to be examined, and recalled that he had a neck brace on and was complaining about having a sore foot. She recalled that after he was discharged on that day he spent the night on the couch and was complaining mainly about pain to his foot and shoulder at that time. She considered that from what she had observed over the years they had been together, the plaintiff coped well with pain. She testified that the plaintiff had not complained about his back or right shoulder prior to the accident
She testified that prior to the accident, they split domestic duties about 50/50 and there were no particular tasks that either one of them was responsible for. She also described her husband as ‘very hands-on’ prior to the accident with their children. She recalled that prior to the accident the plaintiff would be away ‘quite often’ during the week for work.
In the first few months after the accident Ms Solomon gave evidence that she did the majority of the domestic duties. She estimated in the two months after the accident, she completed an additional hour and a half each week day on domestic duties and an extra three hours on weekends. She recalled that in the first few months after the accident, the plaintiff was in a ‘flat mood’ and that his ability to drive was impaired, due to his anxiousness. She considered that even now the plaintiff is often irritable after work and complains of back pain.
She was unable to recall seeing the plaintiff do any extra domestic duties from the end of 2010 onwards. She considered that from that period to the date of the trial, the plaintiff has not increased the domestic duties he performs and that it has not changed much since the accident. She considered that she still does an extra hour and a half of domestic duties a night. She also considered that there has been a change in the plaintiff’s temperament in dealing with their children since the accident. She agreed that one of the plaintiff’s hobbies was four-wheel driving and she recalled that he has not been four-wheel driving since the accident. She also agreed another one of his passions was fishing, although considered that fishing hurts his back and he has not gone fishing very often since the accident.
Ms Solomon recalled that the plaintiff discussed an opportunity with him at FAW. She recalled that they spoke about it at length and that the plaintiff had decided not to take the job because he had appointments to attend and the amount of driving involved was of concern to him.
Ms Solomon gave evidence that at the time of the accident she was working part-time hours and about four years ago she then commenced working thirty-one hours a week spread over five days. In the past year she has been completing thirty-one hours per week spread over four days. She agreed that prior to the accident she was home more than her husband and that as a result, during the week, she would often complete a greater share of the domestic duties than her husband. However, she considered that as soon as he returned home it was a shared 50/50 arrangement. She gave evidence that she asked to spread her work hours over four days, as she felt as though her weekend was consumed with domestic duties. She agreed in cross-examination that the plaintiff’s assistance that he provided in terms of domestic duties and child care was only intermittent prior to the accident, depending on when he was available. She considered that it was possible if the plaintiff paces himself and completes domestic duties slowly he would be able to do them.
Evidence of Michael Agnew
The defendant called Michael Agnew as a witness. He was formally the owner of FAW, where the plaintiff was offered employment in 2011.
He recalled meeting the plaintiff in 2011 when the plaintiff was applying for a position as a sales representative for FAW. He was introduced to the plaintiff through Mr Kendall, who was the operations manager at FAW at the time. He agreed that the plaintiff came highly recommended by Mr Kendall. He confirmed Mr Kendall’s title was operations manager and that he was the third in charge. He confirmed James Mair, the financial controller at FAW, was the second in charge.
He recalled that in 2011, he was in the process of growing his business and was looking for another sales representative to assist in sales. His business was later sold in 2014 to Woolworths. He was unsure whether employees that had stayed on following Woolworths’ acquisition had a greater range of opportunities available to them. He also recalled that during the period of 2011 to 2014 his business grew in that time, although was unable to quantify that level of growth.
Mr Agnew considered that at that time the plaintiff would be looking after ‘smaller house-type builders’. At this time he already had a sales representative, Rod Thompson, who had worked at FAW for approximately five years at that time. He recalled Mr Thompson’s salary was approximately $75,000, exclusive of superannuation. There were also benefits that were attached to that salary, valued at approximately $15,000. This included a HiLux ute, company telephone and ipad. He could not recall the exact salary Mr Thompson commenced on when he started, although thought that Mr Thompson would have earned that salary over his five years at FAW. He considered Mr Thompson may have had a starting salary of approximately, $60,000 to $65,000. He also gave evidence that Mr Thompson looked after commercial high-rise buildings, which was different than the role he had in mind for the plaintiff. Mr Agnew testified that Mr Thompson had worked for BBC, which was eventually bought out by Bunnings, and that then he, Mr Thompson, had moved to Bunnings. He considered that Mr Thompson had a large following in the commercial facade-type business and internal fix-outs for big multistorey buildings. He recalled that Mr Thompson was also recommended by Mr Kendall, and that one of the reasons that he employed Mr Thompson was because he had spent 20 years in that industry building those relationships. In comparing Mr Thompson and the plaintiff, he testified that the plaintiff knew FAW’s opposition, as he was in the wholesale industry, although not his clients. He considered that the plaintiff was less valuable to the company than Mr Thompson as a result of not having those relationships.
Mr Agnew gave further evidence in relation to the skills Mr Kendall had that made him unique for that particular position. Particularly, he identified that Mr Kendall had a ‘really good rapport’ with customers and his fellow work colleagues, in addition to understanding margin. He considered that based on the knowledge he had of the plaintiff in 2011, he did not believe he had the same skill set as Mr Kendall. He considered that the position needed to be grown into, particularly, the plaintiff did not know FAW’s client base intimately, as Mr Kendall did, and he considered that those relationships were essential to his business. He considered that it took Mr Kendall 15 to 20 years to build up his skill set and those relationships.
He recalled that Mr Kendall’s salary was approximately $80,000 at that time, plus superannuation and benefits. He recalled at that time he had two other staff members that had been with the company for over 15 years and were each paid approximately $100,000 each. He recalled the company also employed a dispatch manager, who had a salary of approximately $70,000 to $75,000. He considered the position of the dispatch manager to be in between the position of that of Mr Kendall and the position he was interviewing the plaintiff for. The company also employed a ‘door hardware lady’ who was on approximately $65,000, and an assistant that was being paid a similar salary. He gave evidence that he was not shy about paying the right money, however, that he had to be convinced and comfortable with that person to pay them “good money” first. He considered that there was no usual percentage increase that he would give staff, however, he would aim for approximately 10 per cent and would keep close to where the industry benchmark was.
He recalled meeting with the plaintiff in 2011, and recalled that Mr Mair and Mr Kendall were also at that meeting. He recalled that they discussed salary and the associated benefits of the position. He thought an offer was made to the plaintiff during that meeting. He recalled the offer ‘would have been’ $60,000 to $65,000. He based this on the fact that another sales representative commenced, after the plaintiff had rejected the offer of employment, who had a starting salary of $55,000. He disagreed that the offer to the plaintiff would have been $77,000. He gave evidence that he would not have taken notes at that meeting and was not aware whether anyone took notes. He agreed that he was not involved in interviewing potential employees on a regular basis. He gave evidence that he did not employ that many people and most of the people that came to work at FAW did not leave.
He considered that senior-type positions, such as that offered to the plaintiff, would be reviewed three to six months after the employee’s commencement date. He gave evidence that Mr Kendall would have been the plaintiff’s immediate supervisor. He was not aware that Mr Kendall had any plans to change his employment at FAW at that time. He recalled that Mr Kendall continued to work at FAW for approximately another two years, although on cross-examination he could not particularly recall if that was the case. He gave evidence that he did not replace Mr Kendall, as it was a hard position to replace and Mr Kendall was very capable at his job. He agreed that Mr Kendall’s position at that time included some sales work in relation to larger accounts, and was not simply a managerial position. He gave evidence that once Mr Kendall left FAW he took over those large accounts. He agreed that his practice was, in terms of filling roles, that he would make an offer to ensure the right person was employed, within reason.
Mr Agnew did not recall any discussions regarding any limitations the plaintiff may have if he was employed. He recalled the plaintiff called Mr Kendall to reject the offer of employment and that he did not speak with the plaintiff directly.
Expert medical evidence
The plaintiff relied on the medical reports of Drs Eaton, Gordiev and Allnutt. The defendants relied on the medical reports of Drs Saboisky and Stubbs. The doctors were not required for cross-examination. I will not refer to the detail in regards to the plaintiff’s background in these reports, although I take into account the various histories provided to the doctors.
Dr Eaton
Dr Eaton, an occupational physician, provided two reports in this matter, one dated 19 October 2013 and the other dated 27 March 2015.
The plaintiff was originally referred to Dr Eaton on 2 February 2011, by his GP, Dr Helen Toyne. At that time he was involved in the plaintiff’s care in a treating capacity. In a letter to Dr Toyne dated 4 February 2011, Dr Eaton noted that the plaintiff reported improvement in his right shoulder, although his lower back continued to be a concern at that time. He also noted that the plaintiff ‘looked depressed’, although this was apparently denied by the plaintiff.
Another consultation was then arranged on 15 October 2013 by the plaintiff’s legal representatives. He refers in detail to the history of the plaintiff’s injury, treatment and progress. It is unnecessary to recite that level of detail here as it has already been addressed in some detail above. Dr Eaton diagnosed the plaintiff with a whiplash injury to the neck and shoulders sustained in the motor vehicle accident. He also diagnosed him with a musculoligamentous strain, labral tear right shoulder and a subacromial bursitis right shoulder. He considered the plaintiff’s prognosis was uncertain but reasonable for further improvement with adequate management. He also wrote the following:
I do not believe that the injuries sustained in the motor vehicle accident are likely to result in major long term effects with regard to work capacity however there does appear there are still some limitations of a minor nature.
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There is likely to be some minor effect from Mr Dawson’s injuries for another 12 months or so however it is difficult to say that all symptoms would resolve completely. His functional capacity is reasonably good taking into account the significant motor vehicle accident in which he was involved.
On 27 March 2015, Dr Eaton also provided an updated medical report. Dr Eaton on this occasion diagnosed the plaintiff with chronic intermittent right shoulder pain and dysfunction and chronic intermittent low back pain and associated dysfunction. He also reiterated his original diagnosis, that the plaintiff had initial whiplash associated disorder to the neck and shoulders, muscoligamentous strain, labral tear and subacromial/subdeltoid bursitis right shoulder. He also considered that the plaintiff suffered from probable associated symptoms of depression. On this occasion he noted that prognosis is reasonable for adequate management and control of his condition but pain and discomfort may occur intermittently and possibly indefinitely. He also considered that it is difficult to predict how long the plaintiff will be symptomatic, however, it may be that the plaintiff is symptomatic indefinitely on an intermittent basis. He also considered that no further specific treatment was necessary for the plaintiff other than self-management techniques and an ongoing stretching and exercise program.
Dr Gordiev
Dr Gordiev, an orthopaedic surgeon, provided a report dated 17 April 2015. The plaintiff had consulted Dr Gordiev on 23 December 2010 in relation to a right shoulder injury, and she had not seen him since that appointment. Based on a Magnetic Resonance Arthrogram, she diagnosed a small antero-inferior labral detachment of a mild degree. In response to the plaintiff’s legal practitioners question as to her opinion as to whether the history given was consistent with her findings, she wrote:
It is conceivable that a collision at 80kph could cause injury to the right shoulder of the type identified in the MR arthrogam. The distribution of pain and the area of tenderness and the physical examination would also support an acute instability episode ...
Dr Gordiev was unable to comment on any future treatment, employment impact or any other impact as she had not seen the plaintiff since that initial consultation in December 2010.
Dr Allnutt
Dr Allnutt, a psychiatrist, provided a report dated 29 August 2014, after consulting the plaintiff on 25 August 2014. Dr Allnutt diagnosed the plaintiff with chronic adjustment disorder with a depressed and anxious mood. He noted that the plaintiff did not meet the criteria for a diagnosis of post-traumatic disorder. He considered that based on the information he had been provided and on the balance of probabilities, the accident made a substantial contribution to the plaintiff’s current mental state. Dr Allnutt opined that the plaintiff would benefit from ongoing consultation with a psychologist and a referral to a psychiatrist. He also opined the following:
I believe [the plaintiff] requires assistance in performing household chores as a result of his psychological injuries. While his pain limits him in many areas, he also experiences reduced motivation, probably secondary to fatigue and derived from his chronic adjustment disorder, and this to some degree causes tension in his relationship with his wife.
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In the short term I would envisage his prognosis is poor, in the medium term guarded poor and in the longer term guardedly positive, given the chronicity and persistence of the symptoms. There is concern that his disabilities will continue and act as a perpetuating factor, causing fluctuations in his mood.
Dr Saboisky
Dr Saboisky, consultant psychiatrist, provided two reports dated 1 May 2012 and 17 June 2015.
The report dated 1 May 2012, confirms that Dr Saboisky examined the plaintiff on 1 May 2012 for 60 minutes. Dr Saboisky was of the opinion that the plaintiff was suffering from an adjustment disorder with depression and anxiety as a direct result of the accident. He considered it was of mild proportions. Dr Saboisky also considered that no psychiatric treatment was required and that the plaintiff was unlikely to lose any income as a result of his psychological injuries.
Dr Saboisky, in his report dated 17 June 2015, noted that he psychiatrically evaluated the plaintiff on 16 June 2015, in addition to reading a large volume of material associated with these proceedings. Dr Saboisky opined that the plaintiff did not have an obvious psychiatric impairment when examined. He diagnosed the plaintiff with a mild, chronic adjustment disorder with a depressed and anxious mood. He noted the plaintiff was currently taking antidepressant medication, and considered that it would be in the plaintiff’s interests to continue with this medication for 12 to 24 months. He did not consider the plaintiff required any psychiatric treatment. He considered that the plaintiff’s chronic pain, intermittent depression and anxiety was a result of the accident. He considered that there was no psychiatric reason why he should have any time of work, nor is there any reason why he should have time off work in the future as a result of psychiatric disorder. In relation to the plaintiff’s abilities in terms of domestic duties, Dr Saboisky wrote:
He claims 15 hours of domestic assistance from his wife per week. There is no psychiatric reason why he needs any domestic assistance. His wife has quarantined him from doing much of the domestic work because it might aggravate his psychical condition. Any assessment regarding domestic assistance is best determined by an occupational physician.
Dr Saboisky also considered that the plaintiff’s prognosis is positive in the long term. He disagreed with Dr Allnutt’s opinion that the plaintiff needs to see a psychiatrist or psychologist.
Dr Stubbs
Dr Stubbs, an orthopaedic surgeon, provided reports dated 8 May 2012 and 16 June 2015.
Dr Stubbs initially examined the plaintiff on 26 May 2011 at the request of the insurer. He wrote a letter on the same date, where he diagnosed the plaintiff with general musculoligamentous injuries to the spine and a probable transient dislocation of the right shoulder. At that point he considered the plaintiff’s prognosis was good and that he was fit for work.
Dr Stubbs examined the plaintiff on 8 May 2012, the date of his report. Dr Stubbs considered that the plaintiff had little ongoing disability and was back to most of his prior activities though the disabilities that remained were attributable to the motor vehicle accident. He opined that the pain in the plaintiff’s neck and back were consistent with significant soft tissue injuries. He was of the view that in the neck and back it could be described as ligamentous strain of the spine and in the shoulder it could be identified as an anterior labro-capsular injury, possibly transient dislocation or a high grade subluxation. However, he considered that there had been little change in the clinical examination from the last time he examined the plaintiff. He considered that no specific treatment was required for the plaintiff’s physical injuries and that his injuries had stabilised.
In relation to the plaintiff’s capacity to perform domestic duties, Dr Stubbs wrote:
I spoke with him about his housework. There are still some symptoms in his shoulder that are aggravated by gardening, for instance using a wheelbarrow but he tends to put up with these and complete the tasks.
His solicitor claims that he needs assistance with a variety of activities but this doesn’t seem to be borne out in practice. I would therefore take the view that though he does report symptoms and these can be annoying (and occasionally require an over the counter analgesic) they are not causing a significant problem.
He considered that there was no requirement for the plaintiff to have any domestic or personal assistance due to the motor vehicle accident.
In his report of 16 June 2015, Dr Stubbs considered that nothing has greatly changed since his first consultation with the plaintiff three years prior. He noted that the plaintiff continued to report problems with his low back and right shoulder. On clinical examination, Dr Stubbs noted that the plaintiff showed some limitation of right shoulder rotation and consistently complained of stiffness and discomfort in the low back. In relation to his shoulder, Dr Stubbs noted that the plaintiff showed some mild restrictions of movement and a positive impingement sign. He considered the plaintiff’s low back and right shoulder were slightly worse on clinical examination. Although he wrote ‘I believe there has been no further damage; rather we are seeing the effects of the fact that people have good days and bad days’.
Dr Stubbs considered that there were no restrictions on the plaintiff’s capacity for employment and study as a result of the accident. He considered that the plaintiff does not require any further formal treatment, however, encouraged that he continued his exercise regime. His prognosis was that the plaintiff’s back and right should would continue to have the symptoms that he, the plaintiff, described, which would be variable at times, but should not worsen substantially.
Income documents
The plaintiff also tendered a bundle of income documents. The following is a summary of the plaintiff’s taxable income:
Financial Year Taxable Income 2007 $40,178 2008 $43,914 2009 $44,897 2010 $52,050 2011 $58,225 2012 $59,565 2013 $76,469 2014 $75,569 2015 $83,517
Credibility
I found the plaintiff to be a generally credible and reliable witness, but with one caveat. I am not satisfied, for reasons that will follow later in this judgment, that an offer of employment was made to him by FAW in the form to which he testified. I am satisfied that this was probably a breakdown in communication at the interview.
I found the plaintiff’s partner to be a credible and reliable witness.
I found Mr Agnew to be a credible and reliable witness.
Damages
General Damages
The plaintiff submitted that an appropriate award for general damages would be $110,000. On that sum, he submitted that interest should be allowed on half ($55,000) at 2 per cent for 5.8 years, amounting to $6,380.00. The basis of the plaintiff’s submission is that he experiences significant, ongoing pain in his back, with intermittent shoulder pain which restricts him physically, and impairs his functional capacity at home and at work. He further submitted that this Court could have no confidence that his condition would improve, and there is a possibility that it may deteriorate.
The defendants submitted that the evidence supports a finding that the plaintiff had made significant recovery from his injuries by the end of 2010, and that he made further gains during his rehabilitation in 2011 and 2012. Since that time, the defendants submitted, any ongoing problems had been minor in nature. The defendants submitted that a sum of $60,000 was an appropriate award.
The medical evidence reveals that the plaintiff has not sought medical treatment for any complaints arising out of the accident since 2013. This appears to be somewhat inconsistent with his description of persistent and significant pain. To some extent, the plaintiff’s evidence of continuing incapacity to perform domestic duties and inability to return to pre-accident recreational activities by reason of pain arising from the accident is supported by the evidence of his partner, Rebecca Solomon. She also gave evidence of continuing complaints of back pain by the plaintiff.
I accept the evidence of the plaintiff, supported as it is by the evidence of his partner, that he has ongoing pain in his back. His physical condition is complicated by an ongoing chronic adjustment disorder with a depressed and anxious mood. These conditions all arise from the subject accident. Based upon the evidence of Dr Allnutt there is potential for his mood disorder to improve, but this is only a possibility at this time. I would assess general damages at $95,000, of which $50,000 is referable to the past and $45,000 to the future. I would allow interest of $6,000 on this sum.
Past out of pocket expenses
These have been agreed in the sum of $28,984.50.
Future out of pocket expenses
The plaintiff submitted that a sum of $25,784.43 should be awarded. The defendant submitted that a buffer of $3,000 to cover intermittent GP consultation and occasional anti-flammatory medication should be allowed. The plaintiff’s claim is based on allowing $8,284.43 for the costs of medication ($6.38 per week, as set out in the Statement of Particulars, for 45 years at 3 per cent compound interest), together with a buffer of $10,000 for future psychological treatment (based on the assessment of Dr Allnutt) and $7,500 for future GP visits, calculated on a quarterly attendance of $75.00 per attendance.
It is true that in his report of 29 August 2014 Dr Allnutt expressed the opinion that the plaintiff should be referred to a psychiatrist to help manage his medication, and would also benefit from ongoing consultation with a psychologist. It is not clear from the evidence of the plaintiff why he has not followed this recommended regime in the years leading up to the hearing. The inference that I draw from the evidence is that he is coping adequately with his present approach. The plaintiff does continue to suffer continuing psychological symptoms such that it is quite possible that his mental health and treatment will need to be reviewed from time to time, but there is no way in which the cost of these reviews can be assessed arithmetically. I would allow a buffer of $10,000 for future psychiatric/psychological treatment based on $350 per year. The amount claimed for future medication is moderate, and should be allowed. I will also allow $7,500 for future GP visits, as claimed by the plaintiff.
Economic Loss
The plaintiff claims a buffer of $40,000 for the past loss of an opportunity to pursue employment with FAW, together with the admitted sum of $9,402.61 paid in workers compensation. The defendant submitted that only the sum of $9,402.61 should be allowed.
In my opinion, there was a breakdown in communication between the plaintiff and Mr Agnew concerning the terms of any offer of employment made to the plaintiff by FAW. I accept the evidence of Mr Agnew that the offer made to the plaintiff would have been in the range of $60,000 to $65,000 per annum. Mr Agnew was able to give cogent reasons for his evidence that the offer would have been in that range, based on the salaries he was paying other employees at the time. Whilst there is evidence about other benefits paid to other employees of FAW (beyond salary) there was no evidence of what benefits may have been offered to the plaintiff beyond the plaintiff’s recollection. I do not, however, accept the plaintiff’s recollection that the offer which was made to him by FAW was a starting salary of $77,000 per annum, plus superannuation plus benefits. That sum is improbable bearing in mind the evidence of Mr Agnew about salary packages paid to other employees. I also accept the evidence of Mr Agnew that he never indicated what the results of future salary reviews may be.
I am not satisfied that the plaintiff has established any past economic loss beyond the admitted sum of $9,402.61. To that sum I would add $1,000 for superannuation.
The plaintiff submitted that a buffer of $50,000 should be allowed for future economic loss, based on his continuing symptoms and the risk of deterioration of his physical state in the future. With regard to the risk of future deterioration of his physical condition, the plaintiff cited the report of Dr Stubbs, but neither of his reports suggests the likelihood of significant future deterioration in the plaintiff’s condition.
The defendant submitted that the plaintiff had not demonstrated any ongoing impairment of earning capacity that may be productive of economic loss and that accordingly there should be no award for future economic loss.
In my opinion the plaintiff has not demonstrated that his ongoing symptoms will cause him to lose income in the future. Since the accident, and in particular his return to work in January 2011, the plaintiff has managed to cope with the duties of his employment and also achieved a significant promotion in 2012. He has continued to receive salary increases regularly and now receives $92,000 per annum plus benefits and superannuation. There is simply no medical evidence to support the claim for future economic loss.
Griffiths v Kerkemeyer
The plaintiff claimed $110,925.00 for past care based on:
(a)15 hours per week at $35 per hour for 13 weeks;
(b)12 hours per week at $35 per hour for 13 weeks; and
(c)10 hours per week at $35 per hour for 5.2 years.
The plaintiff also claimed interest on that sum amounting to $25,734.60.
The defendant submitted that an amount of $3,640 should be allowed, based on the need for one hour of assistance per day for 13 weeks at $40.00 per hour.
I accept the evidence of the plaintiff’s partner that in the month and a half after the accident she undertook an extra hour and a half each week day on domestic duties and an extra three hours on weekends. Based on her evidence, I am also satisfied that the plaintiff complains of pain after working during the day, and has reduced his contribution to domestic duties on weekdays for that reason. I also accept her assessment that the plaintiff can undertake domestic duties if he paces himself and works slowly. In my opinion, he would be more able to pace himself and work slowly on weekends rather than week nights. On weekends he would also not have to undertake work duties as well as domestic duties. I accept that the plaintiff does not currently perform many domestic duties on weekends, but he is only entitled to be compensated for necessary gratuitous care.
I would therefore allow 13.5 hours per week for the first 12 weeks at $35.00 per hour totalling $5,670. I would thereafter allow one half hour a day, or 2.5 hours per week, from the end of the first 12 weeks until the date of hearing. This is approximately 280 weeks, at 2.5 hours per week, at $35.00 per hour, totalling $24,500. I will allow interest on that sum at 4 per cent, for 5.8 years, amounting to $5,684.
There is no evidence to suggest that the plaintiff’s ongoing symptoms will improve in the future, but nor is there any evidence that his condition is likely to deteriorate. If an allowance of 2.5 hours per week was made up to the plaintiff’s retirement age of 67 years, an amount of some $83,000 would be awarded. The plaintiff has sought a buffer of $50,000 which in my opinion is moderate.
Conclusion
I award damages as follows:
| General damages | $95,000.00 |
| Interest | $6,000.00 |
| Past out of pocket expenses | $28,984.50 |
| Future out of pocket expenses | $25,784.43 |
| Past economic loss | $9,402.61 |
| Superannuation | $1,000.00 |
| Past Griffiths v Kerkemeyer | $35,854.00 |
| Future Griffiths v Kerkemeyer | $50,000.00 |
| Total | $252,025.54 |
There will be judgment for the plaintiff against the defendants in the sum of $252,025.54. Unless some different order is sought within 14 days of the making of these orders, I order the defendants to pay the plaintiff’s costs of the proceedings.
| I certify that the preceding one-hundred and nineteen [119] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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