Del Borrello v Vinciullo
[2000] WADC 15
•28 JANUARY 2000
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| CITATION | : | DEL BORRELLO -v- VINCIULLO [2000] WADC 15 |
| CORAM | : COMMISSIONER REYNOLDS | ||
| HEARD | : 15-19 NOVEMBER 1999 | ||
| DELIVERED | : 28 JANUARY 2000 | ||
| FILE NO/S |
| ||
| BETWEEN | : BRETT ANTHONY DEL BORRELLO |
Plaintiff
AND
DAVIDE VINCIULLO
Defendant
Catchwords:
Motor vehicle accident - Personal injuries - Liability and damages - Contributory negligence - Neck, shoulder, back, knee and psychological injuries - Gratuitous assistance to plaintiff with plumbing work.
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Evidence Act 1906
Result:
No contributory negligence - Damages assessed in the sum of $154,421.50
[2000] WADC 15
Representation:
Counsel:
| Plaintiff | : | Mr T H Offer |
| Defendant | : | Mr K N Allan |
Solicitors:
| Plaintiff | : | Leonard Cohen & Co |
| Defendant | : | K N Allan |
Case(s) referred to in judgment(s):
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Griffiths v Kerkemeyer (1977) 139 CLR 161
Jarvis-Vagg v Eldrid, unreported; SCt of WA; Library No 970405; 15 August
1997
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Paul v Rendell (1981) 34 ALR 569
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Case(s) also cited:
Nil
[2000] WADC 15
COMMISSIONER REYNOLDS:
Introduction
The plaintiff was born on 19 February 1971 and is 28 years of age. On 31 October 1995 he was a passenger in a Mitsubishi utility ("the utility") being driven by his brother on Marangaroo Drive in an easterly direction towards Alexander Drive, Alexander Heights. The defendant was the driver of a Holden Gemini sedan ("the Gemini") and was driving it in the same direction as the utility. A collision occurred between the utility and the Gemini as both vehicles were being driven in an easterly direction on Marangaroo Drive. The impact of the collision was between the front right of the utility and the rear left of the Gemini.
After the collision the two vehicles continued to travel on Marangaroo Drive in an easterly direction. The utility arrived first at the intersection of Marangaroo Drive and Alexander Drive ("the intersection"). There were four lanes on Marangaroo Drive on the western side of the intersection, ie the side on which the two vehicles approached the intersection. One lane was for traffic to turn left and proceed north on Alexander Drive. Two lanes were for traffic continuing to travel through the intersection and east on Marangaroo Drive. One lane was for traffic turning right and proceeding south on Alexander Drive. The intersection was controlled by traffic lights. The plaintiff's brother stopped the utility near the stop line associated with the intersection on the west or approach side of the intersection and in the northern of the two lanes for traffic proceeding east on Marangaroo Drive. The plaintiff got out of the utility and when on the roadway of Marangaroo Drive was struck by the Gemini driven by the defendant ("the accident").
The defendant's insurer has admitted negligence on behalf of the defendant but the defendant says in para 3 of his defence that the accident was caused or contributed to by the negligence of the plaintiff.
The plaintiff alleges that as a result of the accident he has sustained injuries to the head, neck, back, left shoulder, arms, wrist and legs. He also alleges that he has suffered post traumatic stress disorder and depression as a result of the accident. He further alleges that he has suffered pain, loss of enjoyment of life and loss of earnings and earning capacity. The plaintiff also seeks damages for gratuitous assistance received by him in the performance of his work as a plumber. The defendant denies every particular of injury and damage pleaded by the plaintiff in his amended statement of claim.
[2000] WADC 15
Therefore this is a matter where contributory negligence and assessment of damages are in issue. I now turn to consider the issue of contributory negligence.
Liability - Contributory Negligence
The evidence
The plaintiff gave evidence that he was a passenger in the utility being driven by his brother at the material time. Pans and cisterns were being carried on the tray of the utility. The tray was enclosed by a tray top. The utility was towing a box trailer which contained plumbing tools and equipment such as oxy bottles and extension leads. The box trailer weighed about 500 kilograms (about half a ton). The material time was between 8.00 and 8.30 am and the plaintiff and his brother, Shane Del Borrello ("the plaintiff's brother"), were travelling in an easterly direction on Marangaroo Drive to their work site for the day.
While the plaintiff was looking at a road map to find out the best way of getting to their work place his brother alerted him to the Gemini and told him that the Gemini had just cut him off and was braking vigorously in front of him. The plaintiff gave evidence that he looked up and saw the Gemini and noticed that its brakes were being applied "off and on". He thought that the driver of the Gemini was doing this to annoy his brother. At this stage both vehicles were in the right lane of two lanes on Marangaroo Drive and the utility was behind the Gemini. The left lane was closed off to vehicles by the positioning of red witches hats. Apparently some road works were being carried out to the left lane at this particular location.
The plaintiff said that after they had passed the road works blocked off by the witches hats he told his brother to move into the left lane and continue on which he did. The plaintiff gave evidence that the defendant then drove the Gemini in the right lane past the utility and kept swerving the Gemini towards the utility forcing his brother to position the utility close to the left kerb. The plaintiff said that the defendant then swerved the Gemini in front of the utility causing a collision between the back left corner of the Gemini and the front right corner of the utility. The plaintiff's brother applied the brakes to the utility causing it to lose ground and the Gemini moved into the left lane and in front of the utility. The plaintiff said that the defendant then applied his brakes again. The plaintiff's brother then moved the utility into the right lane to pass the Gemini. As the utility travelled alongside the Gemini the defendant again
[2000] WADC 15
moved the Gemini close to the utility at which point the plaintiff wound down his window and told the defendant to "pull over before you f… ing kill somebody". The plaintiff gave evidence that he also said to the defendant "I want your name and address" to which the defendant responded by laughing at him. The plaintiff said that he then told his brother to forget about it and drive on.
The plaintiff gave evidence that as they approached the intersection the traffic lights turned amber and his brother brought the utility to a stop. The plaintiff looked at the side mirror on the utility and noticed that the Gemini was approaching the intersection with its indicator on indicating that it was going to turn right. The plaintiff could not estimate the distance between the utility and the Gemini at this point in time but by reference to Exhibit 12, a sketch plan of the intersection and Marangaroo Drive on the western side of the intersection he indicated that the Gemini was on Marangaroo Drive at a point where the right hand turning lane commences. The plaintiff said that he then got out of the utility to check the damage to the front of it. He said that his attention was then drawn to the Gemini approaching the intersection and he walked towards it. He then observed that the right hand indicator of the Gemini was turned off and that the Gemini was "coming directly at me". Again by reference to Exhibit 12 the plaintiff indicated that he was in a position which would have been well clear of the back of the utility and at about the middle of the two lanes for traffic continuing to travel east on Marangaroo Drive when the indicator on the Gemini was turned off and the Gemini headed straight towards him.
The plaintiff gave evidence that when the Gemini headed towards him he ran towards the road verge on the northern side of Marangaroo Drive to get out of its way. He said, "When I realised that he was catching me and I was not going to make it, I froze". He added, "I turned side on basically to protect myself. If he hit me front on I'd be dead". He also added that he looked straight at the driver of the Gemini and noticed that he was laughing. He put up his hands and jumped and was then hit by the Gemini.
The plaintiff's brother gave evidence. He is 24 years of age and for about the last three years he has worked as a qualified plumber. Before then he was an apprentice plumber for about five years. On the day in question he was driving the utility to a work site in Ballajura. The plaintiff was sitting on the front passenger seat.
[2000] WADC 15
The plaintiff's brother said that as he was travelling east on Marangaroo Drive he noticed witches hats in the distance blocking the left lane and so he moved to the right hand lane well in advance. He gave evidence that just before he arrived at the position of the witches hats a Gemini changed from the left lane to the right lane and "cut me off". He applied the brakes on the utility which caused the gear on the tray of the utility to slide forward. He said that the Gemini "continued on and kept on hitting his brakes in front of me". He added that the Gemini's brakes were applied three or four times and then the driver of the Gemini "stuck his fingers up at me". After the plaintiff's brother had passed beyond the witches hats he moved the utility into the left lane to carry on to the work site.
The plaintiff's brother gave evidence that when the utility was in the left lane the driver of the Gemini kept swerving and braking the Gemini causing the plaintiff's brother to move the utility closer to the kerb. When he was in a position where he could not drive the utility any further to the left because of the kerb the defendant then drove the Gemini towards the left lane causing the left rear fender of the Gemini to strike the roo bar on the front of the utility. He said that this caused the defendant to lose control of the Gemini. He drove the utility into the right hand lane to move around the Gemini and continue along Marangaroo Drive and towards his work site. He said that he continued on down the right lane and then moved the utility back into the left lane and continued along Marangaroo Drive towards the intersection.
The plaintiff's brother gave evidence that after they had travelled past the witches hats and the defendant started swerving erratically he heard his brother say words to the effect "F...ing pull over, you're going to kill somebody". He rejected the suggestion that the plaintiff shouted to the defendant "pull over because I'm going to fucking well kill you". He said that the plaintiff shouted out "Pull over before you kill someone. I want to get your details".
He continued driving the utility on Marangaroo Drive towards the intersection where he stopped because the traffic lights controlling the intersection were red. He then looked into the right side rear vision mirror of the utility and noticed the Gemini travelling on Marangaroo Drive towards the intersection. He said that he noticed the defendant "coming down Marangaroo Drive on the right-hand lane with his indicator on turning right". He said that the plaintiff got out of the utility and walked to the back of it. Then "the driver of the Gemini switched his indicator off and all I saw was him cut across both lanes going left, like cutting across
[2000] WADC 15
the dual lane to go into the left, whatever he was going to do." He said that he didn't see what happened after that because the box trailer on the rear of the utility obscured his view. He heard "a big bang" and got out of the utility and saw the plaintiff on the far left lane of Marangaroo Drive for vehicles turning left to travel north on Alexander Drive.
Cameron McLeod ("McLeod") had been driving his car south on Alexander Drive and had brought it to a stop on the north side of the intersection waiting for the traffic lights to turn green so he could continue travelling south on Alexander Drive. He witnessed the accident when he was stationary in this position. Exhibit 8 is a death certificate which shows that McLeod passed away between 8 March 1999 and 10 March 1999 in the ACT. He was 27 years of age at the time. Exhibit 9 is a statement made by McLeod about the accident to police on 31 October 1995. Exhibit 10 is a copy of the transcript of McLeod's evidence given in the Court of Petty Sessions on 9 May 1996 at the hearing of a charge against the defendant that he failed to stop at the scene of the accident. Both the statement and the copy transcript have been received into evidence pursuant to the provisions of s79C(2)(a) of the Evidence Act 1906.
McLeod stated to police that he noticed a four wheel drive heading east on Marangaroo Drive pull up at the traffic lights. It was in the left of the two lanes for vehicles continuing to travel east on Marangaroo Drive. The passenger of the utility got out and then walked to the front of the utility. He then walked to the back of the utility. A Gemini which had been in one of the two lanes to the right of the utility then reversed and drove into the left turn lane. The passenger of the utility was standing in the left turn lane about a metre off the north western kerb. McLeod stated that the passenger did not seem to be behaving in an aggressive way. He stated that the Gemini was driven at the passenger of the utility and that the driver of the Gemini could have avoided him if he had wanted to. McLeod also stated that the front left side of the Gemini hit the passenger of the utility who then fell to the road and that the Gemini did not stop after the collision. McLeod stated that the Gemini had an alloy roo bar on the front of it.
McLeod's evidence-in-chief in the Court of Petty Sessions hearing was essentially consistent with his statement to the police. He said that the utility was the front vehicle in its lane at the intersection. He also said "If the Gemini wanted to get away, he could have gone on the inside of the four wheel drive, through the lights". He spoke of the plaintiff trying to run away at the time of the collision. During cross-examination he
[2000] WADC 15
indicated that he did not actually see the Gemini being reversed before it was driven in the direction of the plaintiff because the utility was blocking his view. It seems that McLeod had assumed that the Gemini was reversed before it was driven towards the plaintiff. McLeod gave evidence to the effect that the plaintiff did not run but rather walked to the position he was in before he tried to run away from the Gemini.
The defendant is and was at the time of the accident a self-employed wall and floor tiler. He arrived at a house at about 8.00 am on the morning of the accident to carry out some work but realised that he had left the house key at his home. It was therefore necessary for him to return home to collect the house key. To return home it was necessary for him to drive in an easterly direction on Marangaroo Drive and then right or south on Alexander Drive. He said it was about 10 minutes driving time between his work place and his home.
The defendant gave evidence that he was driving on Marangaroo Drive east of its intersection with Mirrabooka Avenue when he noticed orange cones ahead blocking off the left lane of the two lanes for traffic travelling east on Marangaroo Drive. The orange cones were placed on the roadway from the kerb to the middle of the road and then about 10 metres along the middle of the roadway. He said that he indicated to turn from the left lane to the right lane on Marangaroo Drive and before doing so he looked into his side rear view mirror and noticed the utility behind him and in the right lane. He described the amount of room he had to move to the right given the positioning of the utility as "snug". He said that having moved in to the right lane "straight away there was the guy behind me, the horn was beeping, so I looked in my rear vision and saw finger signs and two aggravated people there". He said that at the time he was driving in the right lane and alongside the cones that the utility was probably a metre or one and a half metres behind the Gemini. He said that he was travelling at about 60 to 70 kilometres per hour at this stage. The speed limit on Marangaroo Drive was 70 km/h.
The defendant gave evidence that because the utility was so close behind the Gemini he increased the speed of the Gemini by five to 10 kilometres per hour and moved into the left lane. He said that when the two vehicles were alongside each other the plaintiff was "leaning out the window without his seat belt on, just leaning out screaming and shouting, trying to reach out for me as his brother was swerving in towards me". He said that the two vehicles were "inches away" from each other and that they travelled alongside each other "like this for maybe 30 seconds to a minute". The defendant said that he braked heavily to
[2000] WADC 15
slow down and that as a result of doing so the utility moved ahead of him and was then driven into the left lane to be positioned in front of the Gemini. He said that the utility then slowed down which made him in turn drive the Gemini into the right lane and overtake the utility.
The defendant said that while the Gemini was in the right lane the utility was driven to be behind and very close to the rear of the Gemini. He said that the utility then moved towards the middle of the road and to the left of the Gemini and then rammed the Gemini which caused him to momentarily lose control of it. He said that the Gemini was travelling at about 70 kilometres an hour in the right lane at the time it was rammed. The defendant said that he then applied the brakes on the Gemini and when the utility moved ahead of the Gemini he then drove the Gemini back into the left lane and continued towards the intersection. He gave evidence that the utility arrived at the intersection before the Gemini and stopped in the left lane of the two lanes on Marangaroo Drive for motorists intending to travel east on Marangaroo Drive beyond the intersection.
The defendant gave various accounts in his evidence on the position of the Gemini as he drove it on Marangaroo Drive towards the intersection. He said that he drove in the middle of the two lanes on Marangaroo Drive for motorists intending to continue east on Marangaroo Drive. He also said that he was travelling in the right lane of such lanes with the right indicator of the Gemini on indicating his intention to move into the right turning lane and turn right to travel south on Alexander Drive. The defendant also gave various accounts in his evidence on whether or not he indicated to turn right as he approached the intersection. He said that as he approached the intersection he was undecided on which direction to continue. He intended to turn right but decided not to do so because there was too much traffic in the right hand turning lane which would have caused him to at least slow down and too much so for his liking. At one stage in cross-examination he said that he indicated to turn right but he later said that he "was never indicating" and then later again agreed that he was in the right lane for motorists intending to continue east on Marangaroo Drive with the indicator on to turn right into the right turning lane. He also added later in cross-examination that when he turned the Gemini towards the left turning lane the right indicator "would have just flicked itself off".
| 24 | The defendant agreed that it was clear for him to have driven into the intersection from the right lane for traffic proceeding east on Marangaroo Drive but said he did not do so because he thought that the utility may be |
[2000] WADC 15
driven into the right lane to block his path. He said that as he approached the intersection he noticed that the left turning lane was clear and so he decided to turn left and travel north on Alexander Drive. The defendant also gave evidence about his decision to turn to the left. He said, "I didn't decide because of the four wheel drive or because Brett was there. I just decided when I saw that route. I just looked over that way".
The defendant gave evidence that when he drove towards the left turning lane he saw the plaintiff standing behind the utility. He indicated by reference to the plan, Exhibit 12, that the plaintiff was standing on the approach side of the apex of a triangular traffic island which divided traffic turning left off Marangaroo Drive to Alexander Drive from traffic continuing east on Marangaroo Drive. He said that the plaintiff was about a metre behind the trailer on the utility. The defendant gave evidence that as he drove the Gemini to the left the plaintiff "stomped" towards him and then "at the last second" ran in front of the Gemini and was hit. He said that if the plaintiff "didn't run he wouldn't have got hit". He also said that he "didn't think anyone would jump - be, you know, silly enough to jump in front of me". The defendant agreed with the suggestion that the plaintiff hit the front left side of the Gemini near the left headlight and that he did not brake prior to the collision.
Findings on the evidence
Having had the opportunity of listening to and observing all of the witnesses give their evidence, save of course for McLeod, and considering the evidence as a whole, I have no hesitation when it comes to assess the evidence of the plaintiff on the one hand and the evidence of the defendant on the other to prefer and accept the evidence of the plaintiff where there is conflict between the two.
The plaintiff gave his evidence in a forthright manner and was consistent on material factual issues. His demeanour in the witness box was impressive. The defendant lacked a great deal of credibility and reliability as a witness. At various times during his evidence he was vague, hesitating or inconsistent. There were also inconsistencies between his evidence before me and his evidence in the Court of Petty Sessions and also the prior statement he made to police. Further and in any event I find the defendant's version that at the last second the plaintiff deliberately ran or jumped in front of the Gemini, which at the time was fitted with an alloy roo bar and was travelling at 30 to 40 kilometres per hour, to be highly implausible.
[2000] WADC 15
The inconsistencies between what the defendant now says and what he has said before vary in their level of significance. At the lower end of the scale is his evidence that the witches hats on Marangaroo Drive were about 500 metres east of its intersection with Mirrabooka Avenue or 300 to 500 metres but not 200 metres and his prior statement to police that they were 200 to 300 metres east of Mirrabooka Avenue. At the upper end of the scale are the inconsistencies within his evidence and with his prior statement to the police on the position of the Gemini in the lanes on Marangaroo Drive as he approached the intersection and immediately before he drove towards the left turn lane. His accounts varied from being in the middle of the two lanes on Marangaroo Drive for east bound traffic to being in the right lane with the Gemini's right indicator turned on.
The defendant has also given inconsistent accounts on whether or not he had the right indicator on as he approached the intersection. When the defendant gave his evidence he said that he did not gesture by raising a finger to the plaintiff and his brother when the horn on the utility was sounded very soon after he moved from the left lane to the right lane near the witches hats. He added that he couldn't have done it because they were behind him. However in his statement to police he stated that when he changed lanes the driver of the utility "was sticking his fingers up at me. I retaliated by doing the same".
Although the defendant gave evidence consistent with his statement to the police that the plaintiff shouted at him before the collision between the two vehicles he gave the clear impression that it happened after the collision when he gave his evidence in the Court of Petty Sessions.
The plaintiff's evidence was corroborated in material respects. The plaintiff's brother impressed me as a credible witness. His version of events was generally consistent with that of the plaintiff on key issues of fact save for when the plaintiff shouted at the defendant. The plaintiff's brother said that it was before the collision between the two vehicles and the plaintiff said that it occurred after. I think the plaintiff's brother was genuinely mistaken on this issue. He rejected the suggestion that the plaintiff yelled out to the defendant "Pull over because I'm going to fucking well kill you". He said that the plaintiff shouted "Pull over you're going to kill someone" which is consistent with the plaintiff's evidence. Otherwise the plaintiff's brother's evidence on which vehicle was in what lane and when, the relative positions of the two vehicles from time to time and how they collided was consistent with the plaintiff's evidence.
[2000] WADC 15
I do not attach a great deal of weight to the statement given by McLeod to the police and his evidence in the Court of Petty Sessions. The reason for this is simply that his evidence was received pursuant to s79C(2)(a) of the Evidence Act and was not tested in cross-examination. Having said that I should also say that McLeod's evidence was of no assistance at all to the defendant. Apart from that McLeod having assumed rather than actually observed the defendant reverse the Gemini before driving it towards the plaintiff, his prior statement to the police and his evidence in the Court of Petty Sessions are both essentially consistent with the plaintiff's version of events at the intersection rather than the defendant's version.
Both counsel have submitted and I accept that it is not necessary for me to make findings of fact on what happened when the defendant first changed lanes in the Gemini near the witches hats and thereafter until the two vehicles made their final approach towards the intersection. I agree, but after assessing all of the evidence I find that I am able to make positive findings of fact on the events which occurred during this period of time. In my opinion such findings are useful because they can be considered with the rest of the evidence to reach a more reliable view of the likely demeanour of the plaintiff, the plaintiff's brother and the defendant at the scene of the accident.
Having regard to the whole of the evidence and my assessments of the credibility and reliability of each of the various witnesses who have given evidence I make the following findings of fact:
1.
The defendant when driving his Gemini east on Marangaroo Drive changed from the left lane to the right lane just before the witches hats which were blocking the left lane and when doing so caused interference to the utility being driven by the plaintiff's brother.
2.
When the defendant changed lanes the plaintiff's brother had to brake the utility and when doing so goods and/or equipment on the tray of the utility shifted forwards.
3.
The plaintiff's brother sounded the horn on the utility and gestured with his fingers to the defendant.
4.
The defendant returned the gesture and applied his brakes on and off to annoy the plaintiff's brother.
5.
After the vehicles passed the witches hats the plaintiff's brother drove the utility into the left lane.
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6. The defendant then drove the Gemini so that it was ahead of the utility and commenced to swerve to his left towards the utility and caused the back left of the Gemini to collide with the front right of the utility.
7. The defendant then momentarily lost control of the Gemini. When he regained control he positioned the Gemini in the left lane and applied the brakes on the Gemini.
8. The plaintiff's brother then drove the utility from behind the Gemini into the right lane and drew alongside the Gemini. The plaintiff then wound down the passenger side window of the utility and shouted to the defendant "Pull over before you fucking kill somebody". The plaintiff also said to the defendant "I want your name and address" to which the plaintiff responded with laughter.
9. The plaintiff's brother then continued to drive the utility towards the intersection and changed into the left lane. The utility arrived and then stopped at the intersection before the Gemini. The plaintiff got out of the utility and checked the front of it for damage. He then walked to the rear of the utility and the trailer and noticed the Gemini approaching the intersection.
10. As the Gemini approached the intersection the plaintiff stood on the roadway of Marangaroo Drive to the rear of the trailer and near the left or north side of the left or north lane of the two lanes on Marangaroo Drive for east bound traffic.
11. When the plaintiff was standing in this position the defendant was driving the Gemini in the right or south lane of the two lanes on Marangaroo Drive for east bound traffic and had the right indicator on to indicate his intention to turn right into the right turning lane on Marangaroo Drive for motorists intending to travel south on Alexander Drive.
12. Without any warning or indication the defendant then drove the Gemini towards the left turning lane on Marangaroo Drive and towards the plaintiff, accelerating as he did so and travelling at a speed of about 30 to 40 kilometres per hour.
13. To avoid being struck by the Gemini the plaintiff ran towards a point on the northern kerb of Marangaroo Drive, ie towards the kerb on the left side of the left turning lane on Marangaroo Drive. This was the shortest distance for the plaintiff to run to get off the road surface of Marangaroo Drive.
[2000] WADC 15
14. Before the plaintiff reached the northern kerb of Marangaroo Drive he believed that he was going to be struck by the Gemini and so he "froze", turned side on to the Gemini, looked at the defendant who was driving the Gemini and put his hands up and jumped. He was then struck by the Gemini and fell to the road surface.
15
(a) Neither the plaintiff nor the plaintiff's brother threatened the defendant;
(b) the defendant reacted and behaved aggressively after the plaintiff's brother sounded the horn and gestured at him when he changed lanes near the witches hats; (c) the defendant swerved the Gemini towards the utility causing the rear of the Gemini to collide with the front of the utility; (d) the defendant was laughing at the time of the collision and also when he drove in the left turning lane before the accident; (e) at or immediately before the time of the accident the plaintiff did not behave aggressively towards the defendant or run at the Gemini; and (f) the defendant had no reasonable cause to be scared and was not scared of the plaintiff or the plaintiff's brother at any time prior to the accident.
The onus of proving contributory negligence is upon the defendant and the test in this particular case is whether the plaintiff failed to take reasonable care for his own safety and that depends upon the circumstances of the case. In Commissioner of Railways v Ruprecht (1979) 142 CLR 563 Mason J noted the difference between negligence and contributory negligence at p570:
"Contributory negligence differs from negligence. There is no duty of care owed to another person (Nance v British Columbia Electric Railway Co Ltd (1951) AC 601 at 611); and contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk."
The learned Judge added that the standard was that of a prudent and reasonable man.
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In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 the Court delivered a joint judgment and at p494 stated:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
The question is whether the plaintiff failed to take reasonable care for his own safety. In my opinion the plaintiff conducted himself to the standard of a prudent and reasonable man in the circumstances. It is also my opinion that the plaintiff did not depart from the standard of care of the reasonable man by getting out of the utility, checking the front of the utility for damage and then moving to a position behind the trailer and near the left or north side of the left or north lane of the two lanes for east bound traffic on Marangaroo Drive. When the plaintiff was in this position on the roadway of Marangaroo Drive the defendant was driving the Gemini in the adjacent lane to the south and had the Gemini's right indicator on to indicate his intention to turn to his right, ie to the south and away from the plaintiff. Without any warning the defendant then turned left and drove the Gemini towards the left turning lane and towards the plaintiff. The plaintiff then immediately ran for the safety of the northern kerb of Marangaroo Drive but did not avoid being struck by the Gemini.
In my opinion the fact that the plaintiff "froze" when he reached the left or north side of the left turning lane on Marangaroo Drive immediately before he was struck by the Gemini does not amount to any failure on his part to give rise to any contributory negligence.
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The medical evidence includes a reference to the plaintiff having had an episode of psychotic depression when he was 17 years of age. Dr Woodall, a medical practitioner specialising in psychiatry, was asked whether it was possible that the plaintiff could have responded in the way described by the defendant because he had earlier suffered an episode of psychotic depression. Dr Woodall gave evidence that in general terms road rage is not associated with psychotic depression. He said that a person who is psychotic and fearful of others may respond in an inappropriate way. However, he added that this would not have been so in the plaintiff's case because the plaintiff was not symptomatic and showed no evidence of psychosis when Dr Woodall first saw the plaintiff only one week after the accident. I accept this evidence.
Conclusion on contributory negligence
For all these reasons the defendant has failed to establish any contributory negligence on the part of the plaintiff.
Assessment of damages
Plaintiff's injuries and medical evidence
The plaintiff was taken from the accident scene by ambulance to the casualty ward of Wanneroo Hospital where he was assessed and x-rays were taken. He was not admitted to hospital. The plaintiff says that he had multiple abrasions and minor cuts to his legs and elbows. Plain x- rays taken on 31 October 1995 showed a fracture of the left upper fibula bone. There were no fractures of the pelvis, hip or femur. The areas of the thoracic and lumbar spine on both flexion and extension were within normal limits. The area of the cervical spine possibly showed some anterior soft tissue swelling. The plain x-ray of the left shoulder showed a possible crack fracture of the blade of the scapula but no significant bony injury.
Soon after the accident the plaintiff attended on Dr Rappeport, a general medical practitioner, who in turn referred him to Mr Wren, an orthopaedic surgeon. When the plaintiff attended on Mr Wren on or about 15 November 1995 he complained of aching all over and particularly of pain in the left knee, left shoulder, low back and the low cervical area. He also complained of headaches. On examination Mr Wren found that the plaintiff had a full range of movement of the cervical spine. There was no specific tenderness in the cervical area. Examination of the left shoulder
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showed some tenderness but no swelling. Full rotation was present but pain restricted elevation to 150°. The plaintiff showed diffuse midline and paravertebral muscle tenderness of the lumbar spine. Although initially there may have been considerable soft tissue bruising in this area no such bruising was present by the time Mr Wren carried out his examination. Examination of the left knee revealed a tender medial joint line and fibula head. Flexion was limited to 30° because of pain. There was a grade (ii) laxity of the medial collateral ligament. The cruciate ligament was clinically stable. Examination of the left ankle revealed some tenderness but a good range of movement and no instability.
Mr Wren was of the opinion that the plaintiff's more significant injury was the medial collateral ligament injury to the left knee and fibula neck fracture. He recommended that the plaintiff wear a brace to support the medial collateral ligament so that it healed without lengthening. He also recommended physiotherapy to the left knee. At that stage Mr Wren proposed to obtain specific views of the left knee and the left ankle to exclude intra-articular injury. Mr Wren was of the opinion that the possible minor crack fracture of the left scapula was not significant and did not require any further specific views. He was also of the opinion that the lumbar spine injury appeared to be predominantly soft tissue in nature and would be best treated by continuing physiotherapy.
Between about 15 November 1995 and 9 January 1996 inclusive the plaintiff was reviewed on several occasions by Mr Wren. During this time the plaintiff continued to make steady but slow progress. By 9 January 1996 the plaintiff had regained a full range of movement in the left knee. He had some mild persisting medial collateral laxity with some quadriceps wasting but no effusion or synovial thickening. The lumbar spine remained stiff with only two-thirds range of movement in all directions with discomfort at the extreme. As at 9 January 1996 Mr Wren was of the opinion that he could not offer any further treatment and recommended a continuation of physiotherapy and hydrotherapy.
Dr Rappeport referred the plaintiff back to Mr Wren late in January 1996 because the plaintiff was having increasing trouble with his left knee. On or about 22 January 1996 the plaintiff complained to Mr Wren of episodes of the knee giving way and also sharp, deep and medial sided pain when walking. Mr Wren decided to proceed with an MRI scan of the knee. On 1 March 1996 Mr Wren reported to Dr Rappeport that the MRI scan showed a posterior horn tear of the medial meniscus extending into the inferior surface. It also showed a non-displaced fracture of the fibula
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head neck with some adjacent bone oedema of the tibia which did not
require any intervention.
In light of the persisting symptoms and the demonstrated abnormal pathology Mr Wren decided to proceed to an arthroscopic medial menisectomy. Mr Wren performed the menisectomy of the left knee on 10 July 1996. During the menisectomy Mr Wren carried out an arthroscopic examination of the remainder of the plaintiff's knee and found it to be normal. On 17 July 1996 Mr Wren reported that the plaintiff's knee would improve during the next three weeks to such an extent that he would be reasonably fit to return to work on light duties.
On 19 November 1996 Mr Wren reported that the meniscal resection surface had healed adequately and there was no laxity of the knee joint. Mr Wren believed that some persisting quadriceps weakness was responsible for the plaintiff's complaint of some throbbing pain in the knee after long periods of standing. Mr Wren expected that with the passage of time the plaintiff's left knee symptoms would completely resolve without any further problems.
Mr Wren gave evidence that the disability in the plaintiff's left knee expressed as a percentage would not exceed five per cent. He noted that he had not seen the plaintiff for two years and based his assessment on his own knowledge of the plaintiff and information provided in certain reports made available to him. Mr Wren's reference to information in reports was no doubt a reference to information contained in reports of Mr Batalin and Mr Hardcastle, both orthopaedic surgeons.
On 19 November 1996 Mr Wren reported that the plaintiff's recovery from his lumbar spine condition had been much slower than would normally be expected. He stated in his report that on 14 October 1996 the plaintiff had complained to him of being restricted in his activities on return to work because of back pain. Mr Wren's physical examination of the plaintiff at that time revealed good posture and good abdominal and lumbar musculature. The plaintiff had a full range of motion of the lumbar spine with diffuse tenderness even to gentle palpation of cutaneous structures. Mr Wren reassured the plaintiff at that time that he expected the lumbar spine symptoms to resolve with the passage of time. Mr Wren noted that the plaintiff expressed a pessimistic view that he would be permanently disabled by his back symptoms. As at 19 November 1996 Mr Wren was of the opinion that reassurance and encouragement of resumption of normal activities remained the mainstay of treatment. He referred the plaintiff to his treating physiotherapist for a
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short course of three or four attendances limited to instruction on back
care and self-exercises.
On 7 October 1996 the plaintiff complained to Dr Rappeport of constant back and left knee pain. He also told Dr Rappeport that he believed his prognosis was poor and that his residual disability would not resolve. Dr Rappeport was of the opinion that the plaintiff's belief was clouded by pessimism and also resentment and anger stemming from the accident itself. On 15 November 1996 she expressed the opinion that the plaintiff would not suffer any permanent disabilities from his accident related injuries. She noted that the medial menisectomy had restored full movement to his knee and in relation to his back she stated that he would have to be vigilant to guard against further re-injury and would need to continue flexibility and strengthening exercises. Nevertheless, in light of the plaintiff's complaint of chronic back pain she referred him to Mr Bannan, a neurosurgeon, for a further assessment.
The plaintiff attended on Mr Bannan on 4 November 1996 and complained of constant back pain. He told Mr Bannan that he was taking up to six Panadeine Forte a day and that there had been no improvement over the last 12 months. The plaintiff told Mr Bannan that although he had returned to work in August, 1996 he had taken numerous days off because of back pain. On examination Mr Bannan found a number of non-organic signs. The straight leg raise was 45° whilst lying on his back, associated with facial grimacing. On sitting the plaintiff easily reached 90°. Mr Bannan also noted that there was positive superficial tenderness, positive axial loading and simulated rotation. Mr Bannan thought that it would be worthwhile to proceed to an MRI to demonstrate to the plaintiff that he had a normal lumbar anatomy and to exclude the possibility of an annular tear as a cause of his pain.
Mr Bannan reviewed the plaintiff on 19 November 1996 with the results of the MRI scan. The MRI scan did not show any significant pathology. It showed that the plaintiff had a 1-2mm retrolisthesis of L5 on S1 with a very small central annular tear. Given the results of the MRI scan and the findings of multiple non-organic signs on examination Mr Bannan concluded that there was certainly a significant functional overlay to the plaintiff's presentation. He was therefore not able to give an exact diagnosis as to the cause of the back pain. He did not think that there was any significant surgical condition and advised the plaintiff that his chronic pain would resolve with the passage of time.
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On 5 March 1997 Mr Bannan reported to the plaintiff's solicitors that it would be worthwhile obtaining another specialist's opinion on the plaintiff. He believed the plaintiff's presentation was heavily influenced with evidence of amplification of his symptoms and findings of multiple non-organic signs on examination. He expressed the opinion that he did not believe there was any significant permanent residual disability as a result of the accident and placed the plaintiff's disability in the order of five per cent. It is clear from Mr Bannan's report dated 5 March 1997 that he was referring to the plaintiff's lumbar spine when he expressed this degree of disability.
In about March 1997 Dr Rappeport referred the plaintiff to Dr Gee, a consultant in pain management. When the plaintiff attended on Dr Gee on 13 March 1997 he complained of lumbar pain which was more pronounced at the mid and lower areas and associated with a lot of lateral discomfort. The plaintiff told Dr Gee that the pain in his back was aggravated by any activity and eased to some degree with massage and the use of Panadeine Forte. The plaintiff also complained of left upper chest pain. He also expressed concern to Dr Gee about his long term management and fear about being a cripple. On examination the plaintiff appeared to Dr Gee to be fit and have a relatively good set of muscles. He had significant tenderness through the para-spinal muscles in the dorso- lumbar area. He was able to flex to the knees, whereupon he complained of tightness in the muscles in the back. Extension and lateral flexion appeared good and straight leg raising was to 90° bilaterally. His power, reflexes and sensation appeared intact.
Dr Gee was of the opinion that the plaintiff had sustained soft tissue injuries which were predominantly muscular. He strongly believed that there was a significant element of fear restricting the plaintiff's activity. Dr Gee suggested that the plaintiff commence an exercise programme with the view of expanding it to a gym programme.
In June 1997 the plaintiff requested Dr Rappeport to refer him to Mr Hardcastle. The plaintiff first attended on Mr Hardcastle on or about 18 July 1997 The plaintiff told Mr Hardcastle that he had been symptom free prior to the accident and that thereafter the symptoms had persisted. He expressed concern about being only able to work in his pre-accident occupation of a plumber on a part-time basis because of ongoing pain. On examination Mr Hardcastle noted that the plaintiff had normal curves with tenderness mainly at L2 and L4/5. Movements were symmetrically restricted and there were no neurologic or nerve compression signs. Mr Hardcastle examined and considered the results of various and extensive
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investigations which had already been carried out and noted the existence
of some degenerative changes from L4-S1.
Mr Hardcastle arranged for a bone scan to be taken which showed some increased uptake around the thoraco-dorsal region and costotransverse process. He thought that this was possibly the cause of the plaintiff's more generalised low back pain. In August 1997 Mr Hardcastle arranged for a facet block at the T12/L1 level. He reviewed the plaintiff on about 9 September 1997 after the facet injection had been performed. The plaintiff told him that it failed to provide any pain relief.
The plaintiff was next reviewed by Mr Hardcastle on 20 January 1998 when he complained of increasing pain mainly in the left lumbar region, which he thought was about 25 per cent worse than at the time of his last review. Mr Hardcastle arranged for another technetium bone scan. He reviewed the plaintiff again on 12 February 1998 when the results of the bone scan were available. The bone scan demonstrated some increased uptake on the right side at T12, which Mr Hardcastle thought could be the cause of the plaintiff's problem. Mr Hardcastle then arranged for the plaintiff to have a CT scan to see if there had been any changes over the last 12 months. He reviewed the plaintiff again on 3 March 1998 when the results of the CT scan were available. The plaintiff complained at the time of continuing significant problems with his back, mainly at about the L4-5 level. The CT scan demonstrated some mild disc bulging and facet asymmetry or trophism at L4-5 which indicated a potential instability. Mr Hardcastle then arranged for the plaintiff to have an L4-5 facet block under CT control. This facet block provided some short-term pain relief. Rotation twist CT scans were later performed which showed evidence of an instability at L4/5.
On 17 April 1998 Mr Hardcastle provided a medico-legal report to the plaintiff's solicitors. At the time Mr Hardcastle provided this report he had last reviewed the plaintiff on 25 March 1998. Mr Hardcastle stated that the plaintiff's main complaint was of low back pain followed by knee pain and headaches. Overall his symptoms had been getting worse since he resumed work. He suffered from severe pain on a daily basis. The plaintiff also suffered from neck pain which, as at 25 March 1998, was not giving him any significant problems. He started getting headaches in about January 1997 which lasted for a few hours each day and were generally relieved by medication. Mr Hardcastle then set out inter alia a diagnosis, prognosis and assessment of the plaintiff's work capacity.
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Mr Hardcastle reviewed the plaintiff again on 7 and 28 October 1999 for the purpose of providing a further medico-legal report. On 2 November 1999 Mr Hardcastle reported inter alia:
"I have no reason to change comments I made in my report of the 17.4.98. I would consider he has a permanent disability of his thoracolumbar spine of 30% which would include the thoracodorsal and low lumbar region.
In my opinion his radiological investigations do demonstrate evidence of degenerative change and possibly instability at L4/5 which would certainly be a pre-existing condition for which he sustained soft tissue injuries as a result of his accident.
The specific anatomical diagnosis for the cause of his pain has not been made but that said his symptoms and signs have been relatively consistent over a long period of time identifying the thoracodorsal and low lumbar region as the cause of his pain and this would constitute an aggravation of a pre-existing condition.
Its always difficult to predict when such a condition would become symptomatic if not for the accident but given his occupation and other factors I would consider that the accident has brought forward the symptoms in this region by approximately 10 years appreciating it may be a much shorter or longer period.
I would consider in the long term that 50% of his present disability is directly related to the injury and 50% to the pre- existing factors though in the short term the majority of his disability directly related to the accident.
I would consider he has a permanent disability with respect to his left lower limb function of approximately 10% as a direct result of the accident in the absence of any pre-existing factors.
It is most unlikely there'll be any long term disability with respect to his cervical symptoms but there does appear to be a stress element here and on my initial examination (18.7.97) there were no clinical signs of any significance and his x-rays and bone scan doesn't demonstrate any evidence of possible inflammatory change."
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Mr Hardcastle gave evidence that his reference to "present disability" in the fifth paragraph of the passage set out above was a reference to the plaintiff's spinal disability and not his knee disability.
Mr Hardcastle stated in his report dated 17 April 1998 that although the plaintiff's knee was not giving him a lot of trouble at that stage he was likely in the long term to suffer from premature arthritis. He also stated it was likely in the future for the plaintiff to require further treatment to his left knee and if degenerative change occurred in the long term then he may require a total knee replacement or some other form of major surgery to the knee. Mr Hardcastle gave evidence that he has not performed a knee replacement for about 17 years. He estimated the current cost of a knee replacement to be in the vicinity of $20,000 to $25,000.
Mr Hardcastle further stated in his report dated 17 April 1998 that the plaintiff may in the long term also require spinal surgery in the form of some stabilisation of the lower two or three intervertebral segments but added that this was difficult to predict. Mr Hardcastle gave evidence that it was unlikely that the plaintiff would need a spinal fusion in the immediate future. He also gave evidence that the chance of a spinal fusion being necessary in the longer term depended on the extent of the progress of the degenerative condition and the level of the plaintiff's activity. The greater the rates of degeneration and activity the greater the chance of the requirement of a spinal fusion. Mr Hardcastle estimated the current cost of a spinal fusion to be about $14,000 to $15,000.
On 4 September 1998 the plaintiff attended on Professor Hollingworth, an associate professor and specialist in occupational medicine. The plaintiff told Professor Hollingworth that the injury to his left knee was one of his most painful injuries. He also complained to Professor Hollingworth of pain in all of the lumbar region and the left shoulder. The plaintiff also complained that he had back pain all day and every day. He told Professor Hollingworth that he had no problems associated with his shoulders, his neck or his left ankle.
Professor Hollingworth examined the plaintiff and considered the results of various investigations. He was unable to explain why the plaintiff was in such pain and was so disabled some three years after the accident. In his report dated 8 September 1998 he expressed the opinion that it was hard to make a diagnosis and the fact that the second bone scan showed an improvement suggested that the plaintiff was on the mend. He thought that in the long run the plaintiff would get back to work as a plumber.
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Professor Hollingworth reviewed the plaintiff on 9 September 1999. The plaintiff told him that he got very depressed about his lack of progress and the lack of any decrease in his level of pain. Professor Hollingworth gave evidence that there was not very much difference between the plaintiff's presentation on 9 September 1999 with that about 12 months earlier. Professor Hollingworth gave evidence that as at 9 September 1999 he was of the opinion that the plaintiff did not have any disability of the back or knee. He also gave evidence that notwithstanding this opinion he thought that the plaintiff would continue with symptoms, quite possibly for another two or three years. He said this because he thought the plaintiff was probably telling him the truth when he said he had pain. Professor Hollingworth suggested that the plaintiff work in a store providing plumbing supplies for two or three years as an interim measure to give his back a chance to recover and then return to plumbing. Professor Hollingworth gave evidence that he did not think that the plaintiff would be permanently incapacitated from working as a plumber.
Professor Hollingworth stated in his report dated 9 September 1999 that the plaintiff seemed to have very few symptoms from the small tear in the medial meniscus and a McMurray's test on that date was negative. He was of the opinion that the left knee injury was unlikely to give the plaintiff any permanent disability. He gave evidence that normally you would not have pain in the knee from a fracture. He also said that the head of the fibula does not take part in weight bearing around the knee.
The plaintiff attended on Mr Batalin, an orthopaedic surgeon, on 20 November 1998 for examination and the preparation of a medico-legal report. The plaintiff complained of continuous aching in the low back region which was aggravated by working as a plumber or playing sports. He also complained that his left knee gave way once every two weeks to two months. The plaintiff told Mr Batalin that his neck and left shoulder problems had resolved. The plaintiff did not complain about any other current symptoms. Mr Batalin noted inconsistencies when using direct and indirect methods of assessment during his clinical examination of the plaintiff. Using direct methods of assessment the plaintiff exhibited about 45 per cent restriction of head and neck movements. Using an indirect method the plaintiff briskly rotated his head 90° to the right. A formal assessment of thoracolumbar spinal movements revealed almost 90 per cent restriction. Mr Batalin gave evidence that you would not see that amount of restriction even if the spine was broken.
In a report dated 20 November 1998 Mr Batalin stated inter alia
under the heading of "Summary" :
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"Injury to the left knee with fractured head of the fibula and tear of the posterior horn of the medial meniscus as well as damage to the proximal left tibiofibular joint. He had ongoing symptoms and required arthroscopy and partial medial menisectomy. The injury stabilised but there are still residual symptoms and slight clinical suggestion of ligamentous laxity. I note approximately 10% residual disability currently in the left knee."
Mr Batalin also stated in his report that it is possible that there may be post-traumatic degenerative changes in the left knee which would give rise to the need for further surgery in the future. Mr Batalin gave evidence that the surgeon who operated on the plaintiff's knee, namely Mr Wren, was in a better position than him to give a prognosis. However, he also said that allowing for his findings at the time of his assessment he felt that it was not unreasonable to assess a disability of the knee of about 10 per cent. This assessment was based on the genuine nature of the injury, the existence of a fracture, the damage to the proximal tibia fibular joint, clinical findings and ligamentous laxity.
In the same report, Mr Batalin summarised his findings on the thoracolumbar spine as follows:
"The patient also sustained a strain injury to his back with initial technetium scan evidence suggesting strain injury to the costovertebral and costotransverse joints in the lower thoracic as well as some facet joint strain injury in the lumbar spine. The (sic) was also MRI evidence of damage to the lumbosacral disc with tiny focal central herniation of L5-S1 disc. At the time of my assessment and using indirect and more reliable methods of assessment of disability I felt that the patient had approximately 15% disability expressed as percentage disability of the thoracolumbar spine as a whole."
Mr Batalin gave evidence that his assessment of the disability of the thoracolumbar spine of approximately 15 per cent would be different if he ignored the inconsistencies between the direct and indirect methods of assessment noted by him when he examined the plaintiff.
Mr Batalin gave evidence that he agreed with Mr Hardcastle's opinion that the accident had brought forward the symptoms in the plaintiff's lower back region by approximately 10 years while at the same time appreciating that it may be a much shorter or longer period. He later
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said that it may be 10 to 15 years or more or less than that and added that making such a prediction was a matter of guess work. He also described such prediction as "an approximate estimate".
Soon after the accident Dr Rappeport referred the plaintiff to Dr Woodall. I have already mentioned that he specialises in psychiatry. The plaintiff was first seen by Dr Woodall on 8 November 1995, eight days after the accident. Dr Woodall reviewed the plaintiff in January and on 21 February 1996. Dr Woodall made a diagnosis of post traumatic stress disorder with prominent symptoms of sleep disturbance, autonomic arousal with hypervigilance, nightmares of the accident and a feeling of being under threat from people.
Dr Woodall concluded from the history given to him by the plaintiff that the plaintiff had a past psychiatric history with an episode at age 17 consistent with an episode of psychotic depression. In a report dated 16 January 1997 Dr Woodall expressed the view that in February 1996 all of the plaintiff's difficulties were attributable to the accident.
Dr Woodall gave evidence that psychotic depression is a particular form of depressive illness. The psychotic component refers to the experience of either delusions or hallucinations. In the history the plaintiff gave to Dr Woodall he described an episode at the age of 17 years where, in addition to feeling depressed and lacking energy, he had a feeling that people were against him, were talking behind his back and he experienced voices in his head which spoke about him in a negative and derogatory way. Dr Woodall said that given the plaintiff's only episode of psychotic depression occurred when he was 17 years of age, the risk of a recurrence was quite low. He added that if the plaintiff had a recurrence of psychotic depression then it would not be because of the accident.
The plaintiff's father gave evidence that several, or four to six months after the accident the plaintiff attempted to take his own life. Fortunately, timely intervention by both of the plaintiff's parents prevented a tragedy. The plaintiff's father gave evidence that this attempt by the plaintiff was out of character and that the plaintiff was "hurting emotionally" and "always depressed" after the accident.
The plaintiff attended on Dr Woodall on an urgent basis in January 1996 and reported thoughts of suicide. Dr Woodall gave evidence that he would have asked the plaintiff if he had attempted to put these thoughts into effect. At no time was Dr Woodall made aware that the plaintiff
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actually attempted to take his own life. Dr Woodall diagnosed a mild
exacerbation of the plaintiff's post traumatic stress disorder.
It was not until the trial when Dr Woodall was giving his evidence that he first became aware of this attempt by the plaintiff to take his own life. He gave evidence that notwithstanding the importance of such information it did not change his diagnosis and prognosis.
Dr Woodall further reviewed the plaintiff on 4 and 12 March 1997. He formed the opinion that the plaintiff's condition appeared to have deteriorated over the past three to four months. In a report dated 19 March 1997 Dr Woodall stated that although the plaintiff was experiencing more pain it seemed that his major problem was psychological, with the recurrence of depression with increased anxiety and re-experiencing events of the accident. Dr Woodall diagnosed a further exacerbation of the plaintiff's post traumatic stress disorder and prescribed anti-depressant medication. Dr Woodall made it clear during the course of his evidence that the plaintiff's post traumatic stress disorder and exacerbations thereof were accident related and were not recurrent episodes of psychotic depression.
In September 1997 Dr Woodall reported that the plaintiff had shown significant improvement with treatment for the recent exacerbation of his post traumatic stress disorder. The plaintiff was continuing to use anti- depressant medication. In reports dated 27 September 1997, 4 March 1998 and 21 May 1999 Dr Woodall expressed the view that the plaintiff's prognosis remained good. Dr Woodall stated in his report dated 21 May 1999 and during the course of his oral evidence that the plaintiff remained vulnerable to relapse and was likely to be unfit for short periods of time of about two to three weeks each year for the next several years. This opinion was based on Dr Woodall's assessment of the plaintiff's presentation and not on any actual history that the plaintiff had taken this amount of time off work.
On 26 June 1999 the plaintiff attended on Dr Febbo, a consultant psychiatrist. In a report dated 26 July 1999 Dr Febbo stated, inter alia,
"Whilst the motor vehicle accident was a particularly distressing one, I do note that there is a past history of psychiatric disorder. Thus there is a vulnerability towards the development of a psychiatric illness. It must be noted that possibly due to the context of the interview I was unable to clarify the nature of his past psychiatric condition. I do note, however, that in a report
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to Leonard Cohen & Co dated 16/1/1997 Dr Woodall refers to this diagnosis as 'an episode of psychotic depression'. This is indeed a serious psychiatric condition.
To conclude, it is my view that at this stage Mr Del Borello's mental state is relatively stable apart from some residual symptoms as described. Considering the documentation you have provided, Mr Del Borrello has a significant vulnerability towards the development of depression. Thus, the fluctuations in his mental state may well be reflecting his inherent vulnerability towards the development of depression and cannot simply be attributed to the motor vehicle accident.
At the time of my interview, it was not my view that Mr Del Borrello was incapacitated from his work or his social functioning because of the presence of a psychiatric disorder."
Dr Woodall disagreed with the opinion of Dr Febbo that fluctuations in the plaintiff's mental state may well be reflecting his inherent vulnerability towards the development of depression and could not simply be attributed to the accident. Dr Woodall gave evidence that the current fluctuations in the plaintiff's mental state were continuing exacerbations, albeit mild ones, of the diagnosis of post traumatic stress disorder. He said that he was not aware of any research which indicated that psychotic depression was in any way a risk factor or increased the vulnerability for conditions such as post-traumatic stress disorder. Dr Woodall said that if the plaintiff did have a recurrent episode of psychotic depression then he would require treatment over a period of about four to six weeks during which time he would be unable to work.
Dr Woodall gave evidence that because the major features of post traumatic stress disorder are those of anxiety, increased levels of arousal, muscle tension and such like, it is quite common that it is accompanied with an increased awareness of pain and levels of discomfort generally. There is therefore an association between mental state and the experience of pain.
The medical reports tendered on behalf of the plaintiff include a report by Dr Mistry dated 17 February 1997. It concerns a complaint by the plaintiff of pain in his right shoulder after a fall on a staircase. The plaintiff's amended statement of claim does not allege any injury of the right shoulder as a direct or indirect result of the accident. Counsel for the plaintiff, in his closing address, mentioned that the injury to the plaintiff's
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right shoulder was not accident related. Therefore I don't propose to consider and take into account any injury to the plaintiff's right shoulder in determining this matter.
Post-accident history
The plaintiff gave evidence that he was off work for about eight months after the accident. In the 12 months prior to the accident the plaintiff worked as a plumber and mainly for Outlook Plumbing. He did a relatively small amount of work for Active Plumbing. He returned to work after the accident as a plumber with Outlook Plumbing. The first entry in the prescribed payment summary for the year ending 30 June 1997 is for the month of August 1996 in which the plaintiff was paid a total of $3,686.50 gross. After this was brought to the plaintiff's attention he said that he returned to work in August 1996. I find that the plaintiff returned to work at the beginning of August 1996.
The plaintiff's father has given on site assistance to the plaintiff since the plaintiff resumed work as a plumber after the accident. The plaintiff said that his father works on about two or three days per week for about five to six hours per day. He said that his father does the physical work such as digging, carting bricks and packing baths. He said that he does the easier work such as putting on taps, connecting basins and putting in troughs, toilets and ovens. The plaintiff said that if his father is not available then his brother, Shane, or a friend, Troy Valga ("Mr Valga") gives him assistance with the heavier work.
Early in 1998 the plaintiff participated in a truck driving course but he said that he did not pursue work as a truck driver because it hurt his back and knee.
Kevin Hill ("Mr Hill") commenced work with Outlook Plumbing as a supervisor in about December 1997. From that time he was in charge of and allocated work to the plaintiff. He said that the plaintiff worked three or four days per week rather than five days like other plumbers. He also said that the plaintiff did not work full days and was usually gone by lunchtime. Other plumbers worked until 4.00 to 5.00pm. Mr Hill said that when he visited the work sites one of the plaintiff's father, his brother, Shane, or Mr Valga was always with the plaintiff. He described the plaintiff as an exceptional plumber despite his injuries and said that he always tried to accommodate the plaintiff by allocating him work on single storey rather than double storey homes.
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About a year ago Outlook Plumbing reduced its workforce and provided services to a particular builder who mainly constructed two- storey homes. When this happened the plaintiff stopped working for Outlook Plumbing. Mr Hill said that the plaintiff had the ability to do twice as much as the average plumber and always did everything that was allocated to him.
The plaintiff said that he stopped work with Outlook Plumbing about 18 months ago because he could not cope working on two-storey homes. He then commenced work as a plumber with Active Plumbing. The documentary evidence shows that the plaintiff received $33,698 of a total income of $35,354 for the financial year ending 30 June 1999 from Active Plumbing.
Kim Booth ("Mr Booth") is a plumbing supervisor with Active Plumbing. He worked with the plaintiff when the plaintiff was an apprentice plumber at Active Plumbing. He said that the plaintiff resumed working for Active Plumbing in January or February 1998. Since then he has supervised the plaintiff and seen the plaintiff alone on the job only twice. On other occasions one of the plaintiff's father, the plaintiff's brother, Shane, Mr Valga or another friend was with the plaintiff.
Mr Booth gave evidence that on average the plaintiff works four to five days per week. He added that the plaintiff is a consistent and reliable worker and that he works the same amount of time as other plumbers with Active Plumbing. He said that the plaintiff finished work on most days by mid-day or 1.00 pm. He attributed the early finish to the fact that the plaintiff had another person helping him. He described the plaintiff as a very good tradesman and said that he probably stopped allocating him bigger jobs in the middle of 1998. By then the plaintiff had started to complain to him that he was finding the work physically difficult. Initially Mr Booth was not aware of the plaintiff being incapacitated at all even though he was receiving help on site.
Neither Outlook Plumbing nor Active Plumbing have paid the plaintiff's father, the plaintiff's brother, Shane, Mr Valga or any other friend of the plaintiff for any assistance they have given to the plaintiff.
The plaintiff's father, the plaintiff's brother, Shane, and Mr Valga all gave evidence that they voluntarily helped the plaintiff with his plumbing work. The plaintiff's father said he helps the plaintiff on about two to two and a half days per week for about three to six hours per day. The
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plaintiff's father said that the plaintiff wanted to be a quick achiever when he started his own business. He also described the plaintiff as a "workaholic" before the accident. The plaintiff's father impressed me as a person of good character and I have no doubt at all that he has spent a lot of time with the plaintiff generally and on work sites in particular, to provide positive emotional encouragement to his son in addition to helping him with the more physical tasks involved in plumbing.
The plaintiff's father has been in the building industry for about 14 years. He operates his own building company. He said that the plaintiff's days as a plumber are very limited. He hopes that in the future the plaintiff will take over his building business or operate his own building business. He said that he would provide the plaintiff with the necessary supervision for a few years.
The plaintiff is now 28 years of age. He said that he feels like an old man. He said he is in pain at the end of the day and goes to bed early. He takes between two to six Panadeine Forte each day and averages about three each day while he is working. He said that his back and knee are his main problems. His shoulder was pretty good by about 12 months after the accident. He has learned to live with problems associated with his neck. He has one or two headaches each month. He said that his symptoms get him down. Both his father and brother, Shane, gave evidence that the accident has caused the plaintiff to be depressed.
Analysis of the Evidence and the Plaintiff's Injuries
Mental state
I accept Dr Woodall's evidence that the accident has caused the plaintiff to suffer from post traumatic stress disorder and I find accordingly. Dr Woodall made this diagnosis only one week after the accident when he first saw the plaintiff. I find that the plaintiff has continued to suffer from this disorder since the accident. I qualify this finding by saying first, that the plaintiff's mental condition improved significantly and was stable by the time he returned to work in August 1996 and remained so thereafter, save for periods of exacerbation as outlined by Dr Woodall. Secondly, the plaintiff's mental condition is currently stable. That means that he still suffers from post traumatic stress disorder but it is under control. Thirdly, the plaintiff's prognosis remains good. Fourthly, while I am satisfied that there is a likelihood of relapses for periods of only about two to three weeks a year for the next several years, I am not satisfied that such relapses will necessarily prevent the
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plaintiff from working for that time providing he has the assistance and encouragement he currently receives. On my assessment of the evidence as a whole, I think that the plaintiff will probably remain vulnerable to exacerbations of his post traumatic stress disorder beyond the next three years or so.
Dr Febbo was of the opinion that the plaintiff had residual depressive and anxiety symptoms which fell within the category of post traumatic stress disorder when he assessed the plaintiff on 26 June 1999. This opinion is consistent with and supports Dr Woodall's diagnosis of post traumatic stress disorder as accepted by me.
I do not accept Dr Woodall's evidence that fluctuations in the plaintiff's mental state are totally accident related and have nothing to do with any pre-existing vulnerability towards the development of depression. The basis of Dr Woodall expressing this view was that there is no research to establish that some prior episode of psychotic depression increases the risk for a person to later suffer from post traumatic stress disorder. With respect, the absence of such research is no basis to positively conclude that there is no such risk. Further, it is not clear from the contents of Dr Woodall's reports and his oral evidence that he was aware of and took account of the fact that the plaintiff, in addition to an episode of psychotic depression when he was 17 years of age also had a mental breakdown not of a psychotic kind only a couple of years or so prior to the accident.
Having regard to the evidence of Dr Woodall and Dr Febbo and in light of the evidence as whole, on balance I prefer and accept the opinion of Dr Febbo to the effect that as at the time of the accident the plaintiff had an inherent vulnerability towards the development of depression. I find accordingly. That of course is not to say that the plaintiff was actually suffering from depression at the time of the accident. Further, such finding is not inconsistent with first, there being a clear distinction between psychotic depression and post traumatic stress disorder as described by Dr Woodall and secondly, my finding that the plaintiff's post traumatic stress disorder resulted from the accident. Accepting that the exacerbations of the plaintiff's post traumatic stress disorder as reported on by Dr Woodall have been connected with thoughts of the accident, I also find that such exacerbations are accident related.
| 103 | I accept Dr Woodall's evidence that post traumatic stress disorder gives rise to an increased awareness of pain. I find that the plaintiff's post-traumatic stress disorder provides an explanation to some extent at |
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least for Mr Bannan's findings of multiple non-organic signs and functional overlay, Mr Gee's opinion that there was an element of fear restricting the plaintiff's activity, Dr Rappeport's view that the plaintiff's pessimism was clouding his own view of his prognosis, inconsistencies on examination noted by Mr Batalin and Mr Wren's opinion that reassurance and encouragement of resumption of normal activities remained the mainstay of the plaintiff's treatment.
This finding is a relevant factor in my assessment of the plaintiff's credibility and reliability as a witness in order to determine the proper quantum of damages. Another relevant factor in such assessment is the fact that the plaintiff actually returned to work as a plumber, generally regarded as a physically demanding job, about eight month's after the accident and thereafter has continued to work as a plumber, albeit with some assistance. This fact shows that the plaintiff is making a genuine attempt to overcome his injuries. Further, the plaintiff impressed me as a credible witness. In my opinion the surveillance video of the plaintiff produced by the defendant's insurer contains nothing adverse to the plaintiff.
I find that the plaintiff was a credible witness. I find that his account of the existence of pain to various medical practitioners and also his oral evidence on feeling pain, should be believed and accepted. I wish to qualify this finding by stating that in my opinion the plaintiff has tended to amplify his levels of pain. In my opinion he has not done so for the purpose of deliberately misleading the Court to maximise his award. Rather, it is a case of the plaintiff exhibiting one of the major features of post traumatic stress disorder, namely an increased awareness of pain and levels of discomfort generally as mentioned by Dr Woodall.
Accepting as I do that the plaintiff does actually suffer pain, I also accept Mr Wren's view that reassurance and encouragement should be the mainstay of the plaintiff's treatment. Mr Gee did not put it in these terms but it is clear that he was of a similar view and that a programme of self management would benefit the plaintiff. On my view of the evidence such treatment would be incorporated in treatment by Dr Woodall or some other suitably qualified practitioner in the field of mental health. All of this would be supplemented by encouragement from the plaintiff's family and friends.
[2000] WADC 15
twelve months immediately prior to the accident. This amounts to the sum of $44,438 for the twelve months, which equates to $854.50 per week.
The second calculation I propose to make is an annual amount for business expenses. I propose to do this by first adding all of the business expenses for the year's 1994/95 to 1998/99 inclusive and then deducting the sum of $13,000 from the total. I will not include the expenses during the time that the plaintiff conducted his own business, because a large proportion of them went towards setting up the business and acquiring the necessary plant, equipment and tools. Thus when the plaintiff resumed work after the accident he had already paid for and was in possession of the necessary plant, equipment and tools. I propose to deduct the sum of $13,000 because this was an abnormal expense incurred in the 1998/99 financial year for the replacement of a new engine and gearbox in the plaintiff's work vehicle. Inclusion of this amount would distort the end figure. It was incurred well into the period for which past economic loss is to be assessed. In relation to the assessment of future economic loss, such expense having been incurred in the 1998/99 financial year, it would be reasonable not to expect to have to spend much money on the engine and gearbox in the next few years or more. This expense or the expense of a replacement vehicle is the sort of expense for which some provisions should be made over a number of years and in the final analysis, this should be born in mind when making the global assessments.
The total expenses for the 1994/95 to 1998/99 financial years amounts to $40,981 which less the sum of $13,000 produces a result of $27,981. This total amount of expenses was actually incurred from the middle of August 1994, say 16 August 1994, when the plaintiff returned to work after his breakdown until 30 June 1999 less 39 weeks for the period 1 November 1995 to 31 July 1996, when the plaintiff was totally unfit for work because of his accident related injuries. This is a period of 4.12 years. Expenses of $27,981 over a period of 4.12 years equates to average expenses of $6,791.50 per annum for the period.
Using these two calculations, the base figure for the plaintiff's annual gross business income less business expenses is calculated by deducting $6,791 from $44,434 which results in the sum of $37,643 or $723.90 gross per week before the deduction of tax and the Medicare levy. The tax and Medicare levy on this sum is about $181.10 per week. The base figure for the plaintiff's weekly net income after expenses and tax and the Medicare levy is therefore the sum of $542.80.
[2000] WADC 15
Past economic loss
Using the sum of $542.80 net per week, the plaintiff's past economic loss for the period 1 November 1995 to 31 July 1996, 39 weeks, amounts to $21,169.20. There also needs to be an amount assessed for economic loss to cover the period August 1996 to the date of trial. I calculate the total gross loss for this period, before deduction of expenses, tax and the Medicare levy to be the sum of $28,701 calculated as follows:
GROSS LOSS OF INCOME – 1 JULY 1996 TO 19 NOVEMBER 1999
| Time Period | Method Of Calculation | Loss |
| 1996/97 | Gross Income of $38,917 in 11 months from 1 August 1996 to 30 June 1997 ie. equates to $42,454.90 per annum | |
| Base Gross Income – Notional Gross Income ie $44,434 - $42,454 | ||
| $1,980 | ||
| ie $1,980 | ||
| 1997/98 | Base Gross Income – Actual Gross Income ie $44,434 - $30,681 | |
| ie $13,753 | $13,753 | |
| 1998/99 | Base Gross Income – Actual Gross Income ie $44,434 - $35,354 | |
| ie $9,080 | $9,080 | |
| 1 July 1999 to 19 | $24,823 for 3 years equates to an average loss of | |
| November 1999 | $8,274.33 per annum for the 3 year period. | |
| (date of trial) | Loss for 1 July 1999 to 19 November 1999 | |
| ie 24.57 weeks | ie .47 x $8,274.33 | $3,888 |
| or .47 per annum | ie $3,888.93 (rounded off) | |
| Total 180.57 | Grand Total | $28,701 |
| weeks | ||
| Or 3.47 years |
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If the plaintiff's gross income was greater then his gross expenses would probably also be greater. His average annual gross expenses of $6,791 per annum, represents about 15 per cent of his average annual gross income of $44,434. Using this percentage the notional expenses on an extra $8,274.33 per annum would amount to $1,241.14. The extra annual gross income after expenses would therefore amount to $7,033.19. This last sum equates to $135.25 per week.
The tax and Medicare levy payable on an extra $135.25 per week between $723.90 per week and $859.15 per week is about $60 per week. The average net loss per week after expenses and tax and the Medicare levy would therefore amount to $75.25. The total net loss for the period 1 August 1996 to 19 November 1999 is therefore $75.25 per week multiplied by 171.85 weeks which amounts to about $12,931.
Using these calculations the total loss for the whole period 1 November 1995 to 19 November 1999, ie from the date of the accident to the date of trial is the aggregate of the sum of $21,169 and the sum of $12,931 which amounts to the sum of $34,100.
As useful as these calculations are, in the present case given the number of variables, they can only be used as a guide. The plaintiff did not work for a fixed wage each week or fortnight. His income depended on the type and the amount of work available. Although he finished earlier in the day relative to other plumbers, he was able to do so not only because he was a fast tradesman but also because he had assistance and other plumbers did not.
The plaintiff's own evidence that he left Outlook Plumbing because he could not cope working on the two storey homes for which he was better paid also needs to be taken into account. So too does Mr Booth's evidence that the plaintiff worked the same time as other plumbers and also that he stopped giving the plaintiff the bigger jobs in about the middle of last year. I accept the plaintiff's father's evidence that the plaintiff used to be a workaholic. But for the accident the plaintiff may well have overcome his earlier breakdown and sought and carried out additional work over and above work with Outlook Plumbing and Active Plumbing.
The plaintiff was off work on occasions because of exacerbations of his post traumatic stress disorder. Despite Dr Woodall's evidence that the plaintiff would need two to three weeks off work each year for such exacerbations, the plaintiff did not give any evidence that he actually took this amount of time off work for this reason. I therefore do not propose to
[2000] WADC 15
make a separate allowance for this. Further and in any event absences
from work would be incorporated and reflected in my calculations.
For all these reasons, and doing the best I can, I assess damages for the plaintiff's past economic loss in the global sum of $35,000.
Interest on past economic loss
My global assessment for past economic loss was carried out without any account being made for interest. In my opinion the plaintiff is entitled to some amount for interest on his past loss. The amount of interest cannot be calculated in the usual way, because the loss was not occasioned and calculated pursuant to some mathematical calculation using a loss of a relatively consistent amount on a regular basis over a period of time. If the global sum was arrived at in that way, then the interest could be calculated as follows:
$35,000 x 4 per cent x 4 years = $5,600.
Using this calculation as a guide and bearing in mind that the plaintiff was totally unfit for work immediately after the accident for 39 weeks and that his lowest level of gross income was in the 1997/98 financial year and doing the best I can, I assess damages for interest on the plaintiff's past economic loss in the global sum of $6,000.
Future economic loss
I again propose to carry out a number of mathematical calculations as a guide only. I repeat my findings on the medical evidence and the effect of the accident on the plaintiff's future earning capacity. If the plaintiff's future economic loss was calculated on the basis that:
1.
but for the accident, he would have experienced the same symptoms in about ten years from the date of the accident, because of a pre-existing spinal degenerative condition, and
2.
he is able to continue working as a plumber with assistance with the heavier duties, and
3.
his annual gross loss would amount to about $8,274 or $159.12 per week, which equates to a net loss after expenses and tax and the Medicare levy of about $75.25 per week, then his base level of future economic loss could be calculated as follows:
[2000] WADC 15
264.2 (6 per cent multiplier for 6 years) x $75.25 net per week =
$19,881.05.
I say base level because there are other variables to be considered.
If this was topped up by another two years for reasons already explained by reference to the evidence of Mr Hardcastle and Mr Batalin on when the plaintiff's pre-existing spinal degenerative disease would have become symptomatic in any event, then his base level of future economic loss could be calculated as follows:
334 (6 per cent multiplier for 8 years) x $75.25 net per week =
$25,133.50.
There are other variables to be taken into account, not all of which require the award to be discounted. Variables positive to the plaintiff include the following. Notwithstanding the fact that the plaintiff has not taken two to three weeks off work each year until now for exacerbations of his post traumatic stress disorder, in light of Dr Woodalls' evidence it must be said that there is a real possibility that he would do so for the next several years. The 6 per cent multiplier for three years is 144. On a worst case scenario, this would result in a loss of $4,509.41 calculated as follows:
(542.80 per week x 3 weeks)÷52 x 144 = $4,509.41.
For the purpose of this assessment, I repeat my earlier finding that the plaintiff may also suffer from occasional exacerbations of his post traumatic stress disorder beyond the next three years or so. These exacerbations, or at least some of them, may result in him being unfit for work.
There is no issue with the fact that plumbing work is generally physical in nature. Even if the plaintiff has an assistant to do the heavier duties, he will still be required to perform physically demanding work, some of which may require flection and extension of his back. This being the case, there must be some possibility that the plaintiff will occasionally suffer from an exacerbation of his back symptoms to the point of having to take time off work. Of course the worst case scenario is that he would be forced to stop work as a plumber. If he did, then bearing Professor Hollingworth's evidence in mind, there is no doubt he could work in a sedentary occupation and at least earn the minimum adult wage of $291.15 net per week.
| 163 | Another factor to be taken into account is the availability of assistance. I am satisfied that the plaintiff needs assistance with the |
[2000] WADC 15
heavier tasks to continue working as a plumber. In the longer term there must be some possibility that one or more of his father, brother and Mr Valga will not be able to continue to help the plaintiff or at least continue to do so to the same extent.
The plaintiff's father is deeply committed to helping the plaintiff. So too are the plaintiff's brother and Mr Valga although perhaps to a lesser extent. Both the plaintiff's brother and Mr Valga are relatively young and in the position of having to establish themselves in the workforce. Employing some other person as an assistant may not be a viable proposition, particularly so if such other person was only required for short periods or on an ad hoc basis with little notice. The plaintiff's capacity to continue working as a plumber and therefore his level of earnings would be diminished if the level of assistance he received was reduced.
Variables negative to the plaintiff include the following. The plaintiff's father seemed keen to help the plaintiff enter the building industry. I think it more likely that the plaintiff would join his father in his father's business with the view to eventually running it, rather than setting up his own business. I am of this opinion mainly because of their father/son relationship and the large capital requirement in setting up such a business.
In my opinion a strong possibility existed before the accident that the plaintiff would join his father in his father's building business. The plaintiff's father spent time showing and explaining the business to the plaintiff when the plaintiff had his breakdown before the accident. The plaintiff's residual symptoms and incapacities caused by the accident have shortened the time within which such possibility would be realised rather than given rise to or increased the possibility itself.
I need to take into account what the position would have been, but for the accident. The plaintiff was relatively young immediately before the accident. I consider him to still be relatively young at his current age of 28 years. The plaintiff's father impressed upon me that a person's age may affect his or her chances of success as a principal in the building industry. An experienced tradesman of about 40 years of age may not take too kindly to being directed to do something by a younger less experienced person. A relatively young and inexperienced person may not be able to negotiate the best possible deal with an older and more experienced counterpart.
[2000] WADC 15
Given the plaintiff's relatively young age and also given his father's evidence on age and experience in the building industry, I am of the opinion that but for the accident the plaintiff's father would most likely have encouraged the plaintiff to be patient and to continue work as a plumber and accumulate experience in the building industry before entering the business. Therefore I do not propose to give much weight to this variable.
In the light of Dr Woodall's evidence to the effect that there is only a small chance of any relapse of psychotic depression and if one occurred it would not be accident related, I attach very little weight to this variable.
If the assessment for future economic loss was made taking into account everything I have mentioned then such assessment would be reduced by only 2 per cent or thereabouts for the usual contingencies and the vicissitudes of life. I think that the percentage deduction would be so small because of the combination of the plaintiff being relatively young and the period of time the subject of the assessment being only six years with some smaller amount added to that for reasons already expressed.
For all these reasons and doing the best I can, I award the plaintiff damages for future economic loss in the global sum of $40,000.
Unpaid services
I repeat my earlier comments and findings on the medical evidence and economic loss for the purpose of determining the plaintiff's claim for unpaid services.
Counsel for the defendant has submitted that there is no basis in law for the plaintiff's claim for unpaid services. The services in question are the voluntary services provided to the plaintiff by his father, his brother and also Mr Valga.
Section 3D of the Motor Vehicle (Third Party) Act 1943 provides restrictions on damages for gratuitous services. However pursuant to the provisions of s3D(1), s3D is only concerned with "gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance that have been or are to be provided to the person in whose favour the award is made by a member of the same household or family as the person.". The plaintiff's claim for unpaid services does not come within the operation of s3D because the plaintiff's claim relates to assistance to perform his work duties and not assistance of a domestic nature or relating to nursing. Section 3D does not apply in relation to the unpaid services
[2000] WADC 15
provided by Mr Valga because he is not of the same household or same
family of the plaintiff.
In my opinion there is no reason why the principle in Griffiths v Kerkemeyer (1977) 139 CLR 161 should not extend to the type of voluntary assistance provided to the plaintiff. I am satisfied that the plaintiff needs assistance with the heavier duties in order to continue working as a plumber. In my opinion it is in the defendant's interests that the plaintiff receives such assistance so that the plaintiff can continue in gainful employment as a plumber. I should add that there is a distinction to be made between an assessment for unpaid services of a domestic nature and one for unpaid services in the work place. An assessment for unpaid services of a domestic nature is not assessed by reference to retained earning capacity. In my opinion a proper assessment for unpaid services in the work place as rendered to the plaintiff requires some consideration to be given to the plaintiff's residual earning capacity for the full duration of the period in question. Accordingly the plaintiff's claim for unpaid services is related to his claim for economic loss.
I find that the plaintiff's father has helped and continues to help the plaintiff on two to two and a half days per week for about three to six hours per day, the plaintiff's brother, Shane, helps him on about one day every two weeks to two months and that Mr Valga helps him for two hours to half a day when his father and brother or some other friend is not available. I accept Mr Booth's evidence that on average the plaintiff works four to five days per week. In my opinion past and unpaid services cannot be assessed with any precision by means of a mathematical calculation. However, I consider it useful to carry out some calculations to provide some guidance. In light of the evidence I propose to use a figure of 16.125 hours for assistance each week calculated as follows:
Assistant Days Hours Total Hours
Per Week Per Day Per Week
The plaintiff's father 2.25 4.5 10.125 The plaintiff's brother 0.25 4 1.00 Mr Valga & other 2 2.5 5.00 friend(s) Total 16.125
[2000] WADC 15
It is agreed by and between the parties that $12.03 per hour is the award rate for the lowest class of builder's labourer. Using this rate, the total cost per week for services of 16.125 hours is $193.98.
Past unpaid services
Past unpaid services commenced when the plaintiff returned to work as a plumber in August 1996. I have already mentioned that 1 August 1996 to the time of trial, 19 November 1999, is a period of 171.85 weeks. Unpaid services at the rate of $193.98 per week for 171.85 weeks amounts to $33,335.46.
In this case I consider it reasonable to approach the assessment on the basis that the total of the awards for past economic loss when the plaintiff was working and past unpaid services should not exceed the amount that would have otherwise been assessed in favour of the plaintiff had he been employed or readily employable in a position of a sedentary nature within his mental and physical capacity and for which no assistance was necessary.
Given the combination of the fact that the plaintiff was able to work as a plumber in August 1996, albeit with some assistance, the medical evidence including the recommendation by Professor Hollingworth that the plaintiff change to sedentary type employment on a temporary basis, the fact that the plaintiff is an intelligent person as stated by his father and my favourable impression of the plaintiff, I am of the opinion that the plaintiff could have earned at least the minimum adult wage without any need for assistance when he resumed work as a plumber in August 1996.
I am therefore of the opinion that the minimum adult wage creates a ceiling for the maximum amount that can be awarded for past unpaid services. The best case scenario for the plaintiff and the worst case scenario for the defendant is that the total of the awards for past economic loss for the period in question when the plaintiff worked with assistance and past unpaid services equates to the loss that the plaintiff would have suffered had he been earning the minimum adult wage for the same period.
In the plaintiff's case I consider it likely that the plaintiff has been capable of earning more than the minimum adult wage at least since Professor Hollingworth suggested on 8 September 1998 that he change his employment. I also consider it likely that the plaintiff would have progressed in whatever employment he pursued other than plumbing.
[2000] WADC 15
The current minimum adult wage is $291.15 net per week. The period in question for past unpaid services is 1 August 1996 to 19 November 1999 which is 171.85 weeks. Assuming the minimum wage has increased by about 3 per cent per annum in recent years I propose to deduct 4.5 per cent from $291.15 and use the resultant figure of $278 as the average adult minimum wage for the whole period in question. If the plaintiff earned this average minimum adult wage for the whole period in question then his loss could be calculated as follows:
(Net income pre-accident - average minimum wage) x 171.85 weeks
ie ($542.80 net per week - $278 net per week) x 171.85 weeks
ie $264.80 net per week x 171.85 weeks
ie $45,505.88.For the purpose of this analysis only I will proceed on the basis that one third of the global assessment for past economic loss, which equates to $11,666, relates to the period 1 August 1996 to 19 November 1999 when the plaintiff worked with assistance.
Applying these figures to the approach as mentioned, the total of the awards for past economic loss for the period in question of $11,666 and past unpaid services of $33,335.46 is $45,001.46 which does not exceed the loss of $45,505.81 that would have otherwise been assessed in favour of the plaintiff had he been earning the minimum adult wage for the same period. These figures represent the best case scenario for the plaintiff.
Finally I wish to make the point that if it be the case that some of the assistance provided to the plaintiff related to lighter duties, then I am of the opinion that allowance should still be made for it in the assessment. I say that for two reasons. First, the plaintiff suffered post traumatic stress disorder in addition to his back injury. The assistance provided to the plaintiff no doubt provided important emotional support and encouragement as well as physical assistance. Secondly, I have no doubt that heavy physical tasks were necessary at different times and spaced at various intervals during the working day. This would require an assistant to remain on site for more time than it would actually take in total to perform the heavier tasks. It would be unreasonable and impractical to expect an assistant to come and go during the course of the day.
Some discount needs to be made for holidays.
For all these reasons and doing the best I can I assess damages for past unpaid services in the sum of $20,000.
[2000] WADC 15
In my opinion the total sum of $55,000 for the combination of the sum of $35,000 for past economic loss and $20,000 for past unpaid services is proper in all the circumstances.
Interest on past unpaid services
The award of interest is discretionary. In my opinion no interest should be awarded on past unpaid services in this particular case.
Future unpaid services
I repeat all that I have already stated under the headings of Economic loss, Past economic loss, Future economic loss, Unpaid services and Past unpaid services for the purpose of this assessment. I propose to assess future unpaid services adopting the same sort of approach as the one used to assess past unpaid services.
The cost of assistance for the next six years, using the weekly rate of pay of $193.98 for 16.25 hours per week and the 6 per cent multiplier for 6 years as previously mentioned can be calculated as follows:
$193.98 per week x 264.2 = $51,249.51.
If the plaintiff earned the minimum adult wage for the next six years then his loss can be calculated as follows:
(Net income pre-accident – minimum wage) x 6 per cent multiplier for
6 yearsie ($542.80 net per week - $291.15 net per week) x 264.2
ie $251.65 net per week x 264.2
ie $66,485.93.
Applying these figures to the approach as mentioned, the total of the awards for future economic loss of $40,000 and future unpaid services of $51,249.51 is $91,249.51 which does exceed the loss of $66,485.93 that would otherwise have been assessed in favour of the plaintiff had he been earning the minimum adult wage. The excess is $24,763.58. Therefore in order for the total of the two awards to equal the loss that would have otherwise been assessed if it was based on the minimum adult wage, the amount for future unpaid services would have to be $51,249.51 less $24,763.58 which is $26,485.93.
[2000] WADC 15
The cost of assistance for the next eight years using the 6 per cent multiplier for eight years of 334 can be calculated as follows:$193.98 x 334 = $64,789.32.
If the plaintiff earned the minimum adult wage for the next eight years, then his loss using the 6 per cent multiplier of 334 can be calculated as follows
(Net income pre-accident - minimum wage) x 334
ie ($542.80 net per week - $291.15 net per week) x 334
ie $251.65 net per week x 334
ie $84,051.10.Applying these figures to the approach as mentioned, the total of the two awards for future economic loss of $40,000 and future unpaid services of $64,789.32 is $104,789.32 which does exceed the loss of $84,051.10 that would have otherwise been assessed in favour of the plaintiff had he been earning the minimum adult wage. The excess is $20,738.22. Therefore in order for the total of the two awards to equal the loss that would have otherwise been assessed if it was based on the minimum adult wage, the amount for future unpaid services would have to be $64,789.32 less $20,738.22 which is $44,051.10.
As was the case when I carried out similar sorts of calculations when assessing past unpaid services, these calculations represent best case scenarios for the plaintiff.
I think that some discount should be made for holidays. I am also of the view that the point I made when dealing with past unpaid services that the plaintiff has been capable of earning more than the adult minimum wage and would have progressed in whatever employment he pursued other than plumbing carries greater weight in the context of future unpaid services because it is now more than three years since the plaintiff resumed work.
For all these reasons and doing the best I can I assess damages for future unpaid services in the sum of $25,000. In my opinion the total sum of $65,000 for the combination of $40,000 for future economic loss and $25,000 for future unpaid services is proper in all the circumstances.
[2000] WADC 15
General damages
The plaintiff is entitled to general damages for the accident itself and for the consequent pain, inconvenience and other matters generally referred to as the loss of amenities.
The award of damages for loss of enjoyment of life and amenities generally requires a consideration of s3C of the Motor Vehicle (Third Party Insurance) Act 1943. This section imposes limitations upon an award of damages for non-pecuniary loss and it applies to the present case. Section 3C (3) provides that the maximum amount of damages that may be awarded for non-pecuniary loss is, at the present time, $219,000 and that that amount may be awarded "only in a most extreme" case.
I repeat all of my comments and findings previously expressed herein for the purpose of assessing general damages.
The plaintiff suffered multiple injuries of varying duration. The knee and lumbar back injuries have caused him most discomfort and continue to do so. Amplification of pain in the mind of the plaintiff can be related to his accident caused post traumatic stress disorder. His mental state has been adversely affected and it is clear that both his father and brother are concerned about him being depressed and continued to see the need to provide support and encouragement. The plaintiff is obviously depressed about being injured and symptomatic at such a relatively young age. His depression was so bad that several months after the accident he attempted to take his own life. I think the plaintiff's depression will remain a long- term problem requiring treatment from time to time.
The plaintiff frequently had nightmares about the collision for sometime after the accident but fortunately their frequency has declined to now be about one per month. He must have felt extremely vulnerable standing on the roadway immediately before the collision.
The plaintiff suffers from headaches about once or twice a month which are relieved by medication.
I accept the plaintiff's evidence that there are mornings when his body is in great pain and he can't get out of bed.
Although the plaintiff is not a sportsman he used to enjoy four wheel driving, shooting and rock fishing with friends before the accident. Now he declines requests to go four wheel driving or socialise with friends. He has not gone rock fishing since the accident.
[2000] WADC 15
I accept that the plaintiff's social life has suffered as a consequence of the accident.
The plaintiff continues to work as a plumber and I accept that even though he has assistance with the heavier tasks it is still necessary for him to bend his back from time to time to carry out his work. He continues to work despite the pain. Occasionally he needs to take a day off work to recover from pain.
It is also necessary for me to bear in mind the evidence of Mr Hardcastle and Mr Batalin to which I have already referred that the plaintiff would have become symptomatic in any event within about ten years, give or take, of the accident because of his pre-existing spinal degenerative disease.
I place the plaintiff's case at 15 per cent of a most extreme case. This percentage of the maximum amount that may be awarded of $219,000 equates to $32,850. The provisions of s3C(5) requires an amount of this sum to be reduced by $10,500. I therefore award the plaintiff general damages in the sum of $22,350.
Future medical expenses
Dr Woodall said that he would expect treatment costing about $500 per year to be necessary for the next several years. There would be the cost of antidepressants in addition to this amount. Zoloft would cost about $40.60 per annum. I think psychiatric and/or psychological treatment of some sort may be necessary beyond the next three years or so.
The cost of three Panadeine Forte per day amounts to about $10 per week. This expense may be necessary for the next six to eight years or thereabouts.
It may be necessary for the plaintiff to attend on a General Practitioner from time to time.
Having preferred and accepted the evidence of Mr Wren, I make no allowance for knee surgery.
In relation to the possibility of a spinal fusion, Mr Hardcastle was unable to quantify the possibility of it. In my opinion the evidence on the timing and possibility of a future spinal fusion is speculative at best. Further and in any event I cannot discount a future spinal fusion being
[2000] WADC 15
necessary solely because of the plaintiff's pre-existing spinal degenerative
disease.
For all of these reasons and doing the best I can I assess damages for future medical expenses in the global sum of $5,000.
Special damages
The parties have agreed special damages in the sum of $1,071.50.
| Summary |
Past Economic Loss $35,000.00 Interest on Past Economic Loss 6,000.00 Future Economic Loss 40,000.00 Past Unpaid Services 20,000.00 Future Unpaid Services 25,000.00 General Damages 22,350.00 Future Medical Expenses 5,000.00 Special Damages 1,071.50 Total $154,421.50
There being no contributory negligence, the sum of $154,421.50 should not be reduced at all.
Conclusion
For all these reasons I award the plaintiff damages in the sum of $154,421.50 and give liberty generally to the parties to apply.
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