Dwyer v Murphy
[2004] ACTSC 120
•19 November 2004
DWYER v MURPHY
ACTSC 120 (19 November 2004)
NEGLIGENCE – personal injury – motor vehicle accident – injury to lower back – no issue of principle
DAMAGES – calculation – credibility of plaintiff – no issue of principle
Jones v Dunkel (1951) 101 CLR 298
Griffiths v Kerkemeyer (1977) 139 CLR 161
Shorey v PT Ltd (2003) 197 ALR 410
Watts v Rake (1960) 108 CLR 158
Chappel v Hart (1988) 195 CLR 232
No SC 31 of 2002
Judge: Stone J
Supreme Court of the ACT
Date: 19 November 2004
IN THE SUPREME COURT OF THE )
) No. S.C. 31 of 2002
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:GERARD PAUL DWYER
Plaintiff
AND:ROBERT MURPHY
Defendant
ORDER
Judge: Stone J
Date: 19 November 2004
Place: Canberra
THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $199,596.30
Introduction
The plaintiff claims that, as a result of the defendant’s negligence, he suffered personal injuries in a motor vehicle accident that occurred on 12 July 1998 in the driveway of the plaintiff’s home at 87 Lyttleton Crescent, Cook in the Australian Capital Territory (the ‘accident’). It is alleged that a taxicab in the control of the defendant rolled forward and caused the defendant to take its weight in an attempt to stop it. The plaintiff claims to have suffered an injury to his back, described technically as acute musculo-ligamentous sprain of the lumbar spine, prolapse of the L4/L5 and L5/S1 discs, with some initial impingement on the nerve, and referred sciatica to the lumbar spine at L5. The plaintiff claims that the defendant was liable in negligence in that he:
a. failed to keep proper control of his vehicle;
b. failed to heed a request to stop the vehicle; and
c. drove a vehicle that he knew to be defective.
Evidence in relation to negligence claim
The accident
The plaintiff was born on 9 November 1969. At the time of the accident he was aged 28 years; he is now 35 years of age. The plaintiff’s wife, Mrs Elizabeth Dwyer, the plaintiff and his friend, David Kierens all gave evidence concerning the circumstances in which the accident occurred. The accounts given by the witnesses for the plaintiff are coherent and plausible and, in all material respects, are consistent. That account (including the additional information obtained on cross-examination) is summarised in the following paragraphs [3]–[5].
On 12 July 1998 the plaintiff and his wife had been socialising with his workmates for some hours after work. They had been drinking and the plaintiff admitted that he was at a ‘medium level of intoxication’ and that his wife was also intoxicated, perhaps slightly more than he. In the early hours of the morning they had taken a taxi driven by the defendant to their home in Cook. The taxi turned into the driveway, which sloped down from the road and towards the carport attached to the house. At the time there was another vehicle, a Hilux utility van, parked in the carport.
The plaintiff and his wife alighted and went inside the house. Shortly after they went inside they heard a crash. The taxi driver came to the front door and told the plaintiff that he had forgotten that the taxi had an inoperative reverse gear and that while he was attempting to back the taxi out of the drive it had rolled forward and collided with the other vehicle. The plaintiff alleges that the taxi driver requested help to push the vehicle back up the driveway.
Mr Kierens, who at the time was staying with the plaintiff and his wife, had returned home earlier and was in bed asleep. He was woken by Mrs Dwyer and asked to assist. The plaintiff and Mr Kierens went to the defendant’s assistance. It is not clear whether they were attempting to push the taxi back up the driveway or to turn it so that it could be driven out using forward gears. In any event, the plaintiff and Mr Kierens were at the front of the vehicle. The driver was sitting in the driver’s seat with his right leg out of the driver’s door so that he could control the car and at the same time assist in pushing the vehicle. It would appear that the weight of the vehicle was too much for the three men and the taxi started to roll forward again towards the wall of the carport. The plaintiff was between the taxi and the wall. Either the plaintiff or Mr Kierens (it may even have been both men) called out to the defendant to stop the vehicle but the defendant did not immediately stop the car. The plaintiff testified that he was unable to get out of the way of the car so he and Mr Kierens put their full strength into an attempt to stop the car. It was at this point that the plaintiff experienced extreme pain in his right back and down his right leg to his toes. The plaintiff said that by the time the car stopped he was very close to the wall. He claimed that as a result of this accident he suffered an injury to his lower back.
Plaintiff’s injury
The plaintiff gave the following account of the injury he suffered at the time of the accident and his experiences over subsequent months. After the car came to a stop he managed to hobble inside before collapsing on the floor unable to move. He was taken by ambulance to Calvary Hospital and kept there for 3-4 hours. On discharge he caught a taxi home with some difficulty and spent the rest of the day lying on the living room floor not able to move. For the next month the plaintiff was at home on heavy doses of painkillers and unable to care for himself. For the first two months after the accident the plaintiff needed assistance with personal care (dressing, showering, toilet) and could not assist with domestic duties or care for his daughter. During this period the plaintiff’s wife, his mother and his mother-in-law assisted him for approximately 20 hours per week. This account was corroborated by Mrs Dwyer and was not otherwise challenged.
Over the next year he experienced only short-term benefit from physiotherapy and massage. He tried acupuncture without success but found that walking gave him some relief. During this period he needed high doses of painkillers and anti-inflammatory medication. The pain and limitations on his physical ability caused him considerable frustration and anger and he undertook a period of psychological counselling and was prescribed medication to help him deal with these problems. He was unable to return to his pre-injury work or to any full time employment.
After those first few months, approximately from the middle of September 1998, there was a gradual improvement in his ability to care for himself and contribute to household chores. The plaintiff testified that the rate of recovery was slow but that by the time he commenced working as a chef at Café Macchiato, which he said was in March 2001, he was able to do washing up and cooking and hang out the washing. However, he was not able to sweep, mop, vacuum, change beds or change the child’s nappies.
The plaintiff claims that since the accident he has suffered anger, frustration and depression as a result of the constant pain and the physical restrictions resulting from his injury. In particular the plaintiff mentioned his physical inability to take much part in the care of his children for a considerable period and his difficulties in managing household tasks. His sex life suffered after the accident; initially he was incapable of having sex and, probably because of the painkillers, had no libido. Things improved over time and I note that a second child, a son, was born on 8 October 2000. This otherwise happy event brought its own frustrations in the plaintiff’s inability to lift or otherwise care for the child. The plaintiff testified that the consequent strain on his relationship with his wife led to the breakdown in his marriage. He and his wife are now separated and are in the process of obtaining a divorce. The plaintiff’s wife tangentially supported this assessment commenting that since the accident her husband had been ‘a bit of a grump’. On cross-examination the plaintiff admitted that there had been ‘a very substantial improvement’ in his back however he persisted in his assertion that the level of improvement was not sufficient to allow him to resume his pre-accident level or type of employment.
The plaintiff said that his mother still provides some assistance (about 5 hours per week) but admitted that for the last two years he has not needed assistance with his own personal care and he has been able to do most household tasks as well as care for his children. He still has trouble with mopping the floor and accessing low cupboards. Otherwise he can manage most tasks although his back tires easily and he has to take frequent rests. On cross-examination the plaintiff admitted that he was able to socialise in long evenings at a club where he was spending at least some of the time dancing. He admitted he was able to ride a bike, on two or three occasions for 25-30 kilometres.
Plaintiff’s pre-accident physical condition
The plaintiff suffered a fractured coccyx at the age of twelve although it was not detected until twelve years later. He had some continuing pain in the coccyx region until the injury was diagnosed and treated with cortisone injections. Since then the plaintiff has not had a recurrence of the pain from this injury. Apart from that problem, the plaintiff appears not to have had any problems with his back until 1995. He testified that immediately before the accident in July 1998 his back was ‘fine’, the only problem being the ‘odd small twinge of pain’ associated with his long working hours but nothing that would stop him working. It is, however, clear that the plaintiff had previous problems with his back and that, while his general practitioner was aware of these problems, the plaintiff did not disclose this history to the medical practitioners who examined him for the purpose of preparing reports for this case.
The problems began on 22 March 1995 when the plaintiff injured his back at work while pouring a 20 litre bucket of water onto the floor in the course of washing it. He was taken to hospital where he was given injections to relieve the pain. Because of this injury he was absent from work for seven days. Initially the plaintiff denied that this episode had occurred. In cross-examination he accepted that it had occurred and agreed that after this incident he had to be careful with his back. While he denied that he had pain every day or that it impeded him in his work he said that he often experienced tiredness in his back after work.
Ms Jennifer Kellett, a physiotherapist in the practice where the plaintiff was treated after the accident provided a report dated 11 December 1998. In that report Ms Kellett noted that at his first visit to her practice on 23 July 1998 the plaintiff had described the incident that occurred in March 1995. She said the plaintiff, ‘felt he had never fully recovered and experienced pain every day after work but that it was pain he could manage…. He felt he was 90% better.’ The plaintiff said he did not recall giving that history; he denied that he had pain every day and persisted in his assessment that before the accident, his back did not impede his work. The plaintiff also denied that the incident had any connection with his selling his food court business in March 1995.
In cross-examination Mr Black, who appeared for the defendant, also put to the plaintiff some questions about an incident of back pain in March 1998, only three months before the accident. The plaintiff said he could not recall any such incident. Nevertheless, documentary evidence tendered by the defendant showed that the plaintiff had seen his general practitioner, Dr Kwan on 10 March 1998 complaining of an increase of lower back pain. Dr Kwan’s notes from that date state:
‘Increase in lower back pain, no radiation
Physical Examination:
Greatly reduced anterior reflexion
Reduced extension
Rotation OK
Straight leg raise test – 60 degrees left and right
Referral to X-Ray
Panadine forte, 2 tablets 4 times dailyRefer to physiotherapist.’
Dr Kwan referred the plaintiff to a physiotherapist and also arranged for him to have a back x-ray on 11 March 1998. The radiologist’s x-ray report stated:
‘Alignment is normal and disc height well preserved. On the AP view a possible defect in the right pars interarticularis of L5 is seen. This is by no means definite and no slip is identified. … No other abnormality is seen.’
Dr Kwan’s notes indicate that he discussed the x-ray result with the plaintiff. The plaintiff persisted that he could not recall this although he accepted that it must have occurred. He denied however the reduction of his work hours in March 1998 from about 40 hours per week to about 15 was a result of this problem. He said that this was only a temporary measure so that he could take primary responsibility for the care of his daughter, then almost one year old, while her mother was studying. He said that his plan was to develop his skills so that when his daughter was six or seven he could acquire his own business.
On further questioning by Mr Black the plaintiff admitted that his back gave him a ‘little bit of trouble [from] time to time.’ He agreed that the trouble he noticed was associated with high speed bending particularly when coupled with exertion. He agreed that on the night the accident occurred, if he had thought about the difficulties he had with his back he might have thought that pushing the taxi was not a sensible thing to do.
When questioned about difficulties that the plaintiff had with his back before the accident, the plaintiff’s wife said that she did not recall it being a problem. She said that she and the plaintiff used to go dancing, bush walking and rock climbing. Mrs Dwyer testified that before the accident the plaintiff used to take an active part in caring for his daughter including bathing her and playing with her.
Medical evidence
The plaintiff tendered the following medical reports
·the report by the physiotherapist, Ms J Kellett dated 11 December 1998 and referred to at [13] above;
·a report by Dr P Kwan, the plaintiff’s general practitioner dated 13 October 1999;
·three reports by a consultant surgeon, Dr G Griffith, dated 28 October 1998, 3 November 1999 and 10 October 2003;
·two reports by an occupational physician, Dr G Eaton, dated 6 November 1999 and 31 October 2003; and
·three reports by a neurologist, Dr O White dated 14 September 2000, 5 September 2003 and 11 December 2003;
The defendant tendered three medical reports being:
·two reports dated 19 April 2002 and 11 June 2004 from Dr Davies who is a qualified neurosurgeon and a Workcover approved medical specialist; and
·a report by a psychiatrist, Dr B Timney dated 18 June 2002.
These reports generally confirm the plaintiff’s account of his symptoms following the accident and the progress of his partial recovery. Dr Kwan, who saw the plaintiff three days after the accident, described his initial diagnosis as follows:
‘acute musculo-ligamentous tear to paraspinal soft tissue of the lumbar spine. There was intervertebral disc bulge at the L4/L5 and L5/S1 level’.
Dr Griffith’s report of October 1998 refers to ‘referred sciatica right L5 (transient – now resolved)’. Dr Griffith’s second report (November 1999) notes that the sciatic pain recurred six months earlier as a result of excessive walking and attempting to cycle 25-30 kilometres. The sciatica has largely resolved as his condition has improved.
The diagnoses in the medical reports are generally consistent with each other and, in summary, find that the plaintiff suffers from disc herniation or prolapse at L4/5 and L5/S1. Initially there seemed to have been some nerve compression but later investigations indicated that this is no longer the case. There is reference to the plaintiff’s anger and frustration at the limitations imposed by his injury, his loss of libido and his difficulty in sleeping. In his report of 14 September 2000 Dr White noted that the plaintiff had ‘quite profound depression associated with his disability’ and continued:
‘At this stage he is not fit for heavy work and should not return to heavy work. He requires continuing analgesic medication and should have a formal rehabilitation programme as well as counselling in pain management. He may well benefit from formal treatment with antidepressant medication …
At this stage I think it is likely that there will be slow amelioration in the severity of his pain over a review of 12 to 24 months provided he avoids provocative activities and undertakes appropriate rehabilitation work. Clearly his depression, and his management, will be a significant deciding factor in his capacity to improve.’
Dr Timney, referring to the plaintiff’s use of cannabis and his intermittent heavy alcohol intake, noted that cannabis can contribute to irritability. Dr Timney concluded, however, that the plaintiff’s psychological difficulties were secondary to his complaint of chronic pain and thought that he was unlikely to require treatment for psychological problems.
It is clear from the medical reports that none of the medical practitioners found the plaintiff to have exaggerated his symptoms. The symptoms he described were consistent with the pathology identified and there was no abnormal pain behaviour; Drs Griffith and Eaton make specific mention of this in each of their reports. Dr White also commented in 2003 that the plaintiff’s history was consistent with his complaints, that his progress was appropriate to the given pathology and that he had adequately re-introduced himself into the workforce. There is however some indication that the plaintiff was apprehensive about movement that might cause him pain and was perhaps overly cautious in his pain avoidance. Drs Eaton, White and Davies all mentioned the desirability of the plaintiff’s treatment including training in pain control and management. Dr Davies thought physiotherapy and massage would be unlikely to help.
There was a consensus between Drs Eaton, Griffith, Davies and White that the plaintiff would be able, in time, to return to normal work although he would not be able to do physically demanding work that, for example, involved heavy lifting, repetitive twisting or bending, especially under pressure or in confined spaces. Dr White stated specifically that the plaintiff would not be fit to return to his pre-accident employment as a chef/restaurant manager. They all expected that he would continue to experience intermittent pain and would need to be careful with his back. As noted above, they felt it would be important for him to learn to manage this pain. There was also some suggestion in the medical reports that in time the plaintiff might expect accelerated degeneration in his lumbar spine.
The medical reports concur that the accident was the likely cause of the plaintiff’s injuries. However, other than in the report of Ms Kellett, there is no mention in any of the reports listed in [18] above of the incident that occurred on 22 March 1995 and which resulted in the plaintiff being absent from work for seven days; see [12] above. Dr Griffith noted that the plaintiff had told him of a number of injuries that had occurred in the past but said that none had involved significant injury to the lumbar spine. Dr White’s report of 14 September 2000 refers to the plaintiff having a history of low back pain but notes that this was ‘never sufficient to prevent him working or undertaking a very active range of recreational activities’. In his 2002 report, Dr Davies states that the plaintiff said he had no previous back pain problems.
At the hearing only Drs White and Davies were called to give oral evidence. Both doctors were given a summary of the March 1995 incident and the plaintiff’s recovery from the injury suffered on that date. They were asked if that information would cause them to change their opinion as to the cause of the plaintiff’s injury and present condition. Dr White said it was likely that incident caused some damage to the disc from which the plaintiff recovered. Had he known of the incident he would have said that there may have been a predisposing injury that was substantially aggravated by the subsequent accident. On cross-examination when Dr White was asked about the recurrence of pain that occurred in March 1998 (see [14]-[15] above) he said that it was probably muscular rather than anything significant as it arose without provocation. Dr White explained that if there had been a significant ongoing structural deficit one would have expected ongoing symptoms such as radiating pain down the leg indicating that there was compromise to the nerve and not just a sore back. Dr White said that he was still of the opinion that the accident of 1998 with its application of ‘sudden sharp force to the low back’ had produced the loss of structural stability and injury to the plaintiff. He said he was not able to say if the accident would have produced that result in anyone or only in someone with a predisposing injury.
Dr Davies also said that the 1995 incident and subsequent history suggested that the plaintiff suffered a ‘fairly significant back injury at that time’ from which he had made a good but not complete recovery. He also regarded the accident being the more significant episode being ‘a significant and serious aggravation’ of the earlier injury. Dr Davies thought that the plaintiff would have been predisposed to increased risk of back problems but said he was not able to quantify the extent. He appeared not to attach much significance to the plaintiff’s report to the physiotherapist (see [13] above) of pain after work, commenting that it is a common experience for people who do heavy physical work. Like Dr White, Dr Davies did not attach much importance to the recurrence of pain that occurred in March 1998. It appeared to be a spontaneous recurrence that was consistent with the previous injury.
Findings of fact in relation to negligence claim
The plaintiff’s credibility
The plaintiff gave a credible and consistent account of the circumstances in which the accident occurred. This account was confirmed by the only other evidence on the point, that of Mrs Dwyer and Mr Kierens. His account of his injury was generally consistent with the assessment made on both objective and subjective grounds by the medical practitioners who examined him. There was some indication that he exaggerated the limitations that his injury imposed on him and it is clear that he did not disclose the injury to his back suffered in March 1995 to his medical practitioners. It is difficult to know what to make of this failure because his communications with his doctors seem otherwise to have been reasonably open. The most likely explanation is that he was concerned about the impact of this information on his claim. Given that he disclosed more trivial incidents in his past (for instance a neck injury suffered during a football game in his fourth year at high school) it is improbable that he did not recall the incident or did not think it was important. In any event, he does not seem to have exaggerated his symptoms to his doctors and from time to time has reported improvements in his condition and his ability to cope.
The circumstances of the accident
As noted above, the plaintiff, Mrs Dwyer and Mr Kierens have given coherent, plausible and consistent accounts of the accident. Despite detailed cross-examination and variations of their account being suggested by counsel for the defendant, they were not shaken on any material aspect of their account of the accident although, to some extent, the plaintiff’s answers amplified his initial account. The defendant was not called to give evidence and therefore, as counsel for the defendant conceded, one can assume that he would not have been able to add anything of assistance to his case; Jones v Dunkel (1959) 101 CLR 298. Moreover, on the defendant’s behalf there was no evidence on this issue put to the Court from any source. For these reasons, I accept the plaintiff’s account of the accident given in [2]–[5] above.
The plaintiff’s pre-accident physical condition
I am satisfied that prior to the accident the plaintiff had suffered an injury to his back in March 1995 and that, although he recovered sufficiently to be able to continue his previous employment and leisure activities, he was left with a predisposition to further injury and with intermittent pain. The plaintiff’s complaint of continuing, albeit intermittent, pain mentioned in the physiotherapist’s report referred to in [13] above and the radiologist’s report on the x-ray taken in March 1998 support this conclusion.
Although there is evidence of a recurrence of severe pain in March 1998, it does not seem to me that either this or the subsequent weakness of his back severely affected the plaintiff. I accept that immediately prior to the accident he was generally able to carry on an occupation that was physically quite demanding and that he had an active social life involving physical activities such as bushwalking and rock climbing. I find no evidence to support the suggestion that the plaintiff reduced his work hours from March 1998 because of his back problems. In any event the evidence shows that from this time he had primary care of his daughter, a task that involves its own physical demands. I accept that the plaintiff’s tendency to back pain meant that he had to manage the condition and I find that his success in doing so meant he was able to have a normal working and social life.
The cause and nature of plaintiff’s injury
The medical evidence in this case is very consistent. Although the experts who have examined the plaintiff and whose reports have been tendered in evidence have necessarily relied on the plaintiff’s account of the accident and the symptoms of his injury, they have also relied on their physical examinations of the plaintiff and on the radiological evidence available. I attach considerable weight to the fact that there is no suggestion that the plaintiff has exaggerated or embellished his symptoms or has exhibited inappropriate pain behaviour. The consensus is that the plaintiff’s symptoms are consistent with the pathology they have observed and with his account of the accident. Given the qualifications and experience of the medical experts in this case, I do not believe that the plaintiff has the requisite intelligence and skill to deceive them so comprehensively and over such a long period.
For these reasons I accept the diagnosis of the injury to the plaintiff’s back as described in [20] and [21] above. I also accept that the accident was the cause of that injury, whether it is viewed as a new injury or a significant aggravation of the earlier injury suffered in 1995. The significance of the distinction is discussed below at [62]. Only Drs White and Davies were able to express a view as to the effect of the 1995 injury, the other medical experts not having been told of that incident. Both Dr White and Dr Davies regarded the accident as the more significant episode. However, both thought it likely that the earlier incident may have predisposed the plaintiff to the later injury although neither made a positive finding to that effect. In the absence of a positive opinion by the medical experts I am not prepared to find that the earlier injury was a predisposing factor. I do find, however, that the 1995 injury imposed some minor physical limitations on the plaintiff independent of the effect of the accident. Those limitations must be taken into account in assessing the plaintiff’s loss arising from the accident.
Conclusions in relation to negligence
On the findings of fact that I have made the liability of the defendant is established by the fact that, at the time the plaintiff and Mr Kierens were attempting to push the vehicle up the slope of the driveway, he was in control of the vehicle and allowed it to slide forward after being urged to stop, thereby causing injury to the plaintiff. In fact, in my view, the defendant’s liability does not depend on him being asked to stop the vehicle, on whether he asked the plaintiff and Mr Kierens to help him or on whether he had prior knowledge of the taxi’s defective reverse gear. The likelihood of harm to persons attempting to push a motor vehicle up a slope should it roll forward is eminently foreseeable and thus the defendant as the person in control of the motor vehicle had a duty to take reasonable care to avoid injury to them. Allowing the vehicle to roll forward would, in my view, be a breach of that duty whether or not the defendant had been called upon to stop the vehicle. Moreover there is nothing remote or unforeseeable about the possibility of injury to the plaintiff and/or Mr Kierens should the defendant fail to control the vehicle. That being so, I find that the defendant breached his duty of care to the plaintiff and is liable for the reasonably foreseeable consequences of that breach.
Contributory negligence
The defendant did not concede negligence but, anticipating that I might reach the conclusion expressed in the previous paragraph, raised a plea of contributory negligence on the part of the plaintiff in mitigation of the damage flowing from his negligence. The plea of contributory negligence involves an allegation that the plaintiff failed to take reasonable care for his own safety and thus contributed to the injury he sustained. In making such a claim the defendant bears the onus of proof.
In this case the defendant submits that the plaintiff’s history of back problems was such that, on any objective test of reasonableness, he should not have put himself in the position of pushing a heavy vehicle up a slope. Mr Black referred to the plaintiff’s admission, noted in [3] above, that at the time of the accident he was at a ‘medium level of intoxication’ and submitted that intoxication is not a defence to contributory negligence.
I do not accept that the plaintiff was guilty of contributory negligence. I have found that at the time of the accident the plaintiff was able to have a normal active working and social life and that he was able to judge his physical limits and successfully manage his back pain to achieve this. I see no reason to doubt that he was able to exercise this same judgment in lending his assistance to push the defendant’s taxi and that had the effort been beyond him he would have ceased to push it. I have no reason to believe that the plaintiff’s level of intoxication was such as to justify any negative inference in this regard. The fact is that when the taxi rolled forward and the plaintiff was not able to get out of the way he was no longer in control and as a result the injury occurred.
Background to damages claim
Plaintiff’s pre-accident work history
The plaintiff was educated in Canberra and after leaving school enrolled in an Associate Diploma in Applied Science (geoscience) at the Canberra Institute of Technology (‘CIT’). He discontinued this course in 1990.
Since then the plaintiff has had a rather varied employment history. He gave evidence that while he was studying at CIT the plaintiff was employed in a number of part-time and casual jobs including working in a butcher’s shop, with a home food delivery service and as a bar attendant. He also did some voluntary work with holiday camps run by the St Vincent de Paul Society. Just before he discontinued his applied science course he commenced part-time work with a roof insulation company while continuing with other jobs. He estimated that at this time he was working 30-40 hours per week.
Over the next few years the plaintiff said he had had a variety of jobs mainly in the catering industry and from 1993-5 he owned his own food court restaurant. This required fairly heavy physical work including lifting heavy bags (20-45 kg) of vegetables and cleaning and involved much bending and squatting. After he sold this business in March 1995, the plaintiff continued to work in restaurants so that the heavy physical work continued. At the time of the accident his average rate of pay was about $15 per hour.
In March 1998 (three months before the accident) the plaintiff said that he made a decision to reduce his working hours from about 40 hours per week to 15 hours so that he could spend more time with his first child (born on 19 April 1997) and his wife could resume studying. He said he intended to increase his working hours after about two years with a view to obtaining more experience and acquiring his own business in approximately five years.
Plaintiff’s post-accident work history
As mentioned above, the plaintiff testified that in the first few months after the accident he was completely unable to work. During the next two years he said that tried, on a voluntary basis, to work in a number of occupations trying to find one that was compatible with the injury to his back. He tried working for a friend in an Indian restaurant assisting with food preparation and waiting on tables, working in a store selling camping equipment and attempted to obtain work as a volunteer guide at the zoo. All of these attempts were unsuccessful because the work was too strenuous. He completed a six month advanced photography course at Reid TAFE College but was not able to work as a commercial photographer because of his back. In 2000 he commenced a journalism course and completed all of the requirements except for publishing one article. He said that he published a different article ‘that wasn’t part of the curriculum’ and for that reason did not pass the course.
In summary the plaintiff’s evidence in chief was that from the time of the accident until March 2001 he obtained no paid employment. He said that he commenced work at Café Macchiato on a part-time basis (about 15 hours per week) in March 2001. The plaintiff said that he could not do any heavy lifting there but could work on food preparation. He said that despite this restriction he sometimes had to leave during his shift because of his back pain and, for this reason he did not attempt to take a full time position.
However, it was put to him on cross-examination that this account was not consistent with the other evidence including the reports of Drs White and Davies and the plaintiff’s income tax returns for the financial years 98/99 and 99/2000. Those tax returns report a business income of $3,657 and $2,803 respectively. The plaintiff said he could not recall how he earned this money.
In his report dated 14 September 2000, Dr White wrote:
‘Mr Dwyer informed me that he … did not work at all until the beginning of this year when he returned to part-time work, one day per week, in an Indian restaurant. This work was heavy and he was unable to cope with that, finally stopping in recent months. He has now obtained work in a much lighter kitchen, beginning on a part-time basis and is hoping he will be able to cope with that. He does state that working in this kitchen still produces increases in his pain.’
Dr White’s account is consistent with the following statement made by Dr Davies in a report dated April 19 2002:
‘In January 2000 he tried returning to work as a chef and a waiter at a local Indian restaurant but he found he was unable to cope because of his back pain. He was then unemployed for a further period of time (until some time around July or August 2000), at which time he obtained employment as a part-time chef in a café. He continues working at that café to the present time.’
In a subsequent report, dated 11 June 2004, Dr Davies stated that he had discussed the earlier report with Mr Dwyer who had agreed it was ‘a correct record of events’. On cross-examination the plaintiff persistently resisted Mr Black’s suggestion that he was paid for his work at the Indian restaurant insisting that it was voluntary work designed to test his capacity. He was unable to account, however, for the amount of $2,803 stated to have been income from business in his income tax return for the year ending 30 June 2000.
In the light of the evidence from the reports of Drs White and Davies, the plaintiff admitted that he had worked at Café Macchiato from July or August 2000 but that he was paid in cash and was ‘not on the books’. He said that he was generally paid less than $200 per week but that sometimes it was over that amount. Mr Black, counsel for the defendant, also expressed scepticism about the plaintiff’s claim that he could not take a full time position at Café Macchiato because of the strain on his back. In the course of questioning on this issue the plaintiff admitted that it was at this time that he was able to keep long hours socialising with his friends including some dancing at a club and was able to complete some very long bike rides.
According to the report of Dr Davies dated 11 June 2004, the plaintiff ceased working at Café Macchiato in March 2003. On 12 March 2003 he commenced his present employment at Questacon as a special programmes assistant, a position that involves teaching parties of school children about the museum’s exhibits, setting up and running birthday parties. He said that he works an average of 15 hours per week plus some weekend work to a maximum of 20-22 hours. He regularly requires help with some tasks (such as moving furniture) and is quite slow because of the strain on his back. He explained how he had to be very careful and how if he rushed he could bring on an attack of acute pain that prevented him from working. The plaintiff accepted that more recently he could sometimes work longer, up to 37 hours, but that he would be unable to do that on a regular basis.
Plaintiff’s pre- and post-accident income
On cross-examination Mr Black also questioned the plaintiff extensively about his income both before and after the accident. The plaintiff’s income tax returns for the financial years ending 30 June 1996 to 30 June 2003, including two returns for the year ending 30 June 1996, were in evidence. The earlier return for the 95/96 financial year was dated 20 March 2002; the other, the later return, had been prepared quite recently and, apparently, because the plaintiff had forgotten about the earlier return. As can be seen from the following table, the differences between the two returns are striking:
Earlier return Later return Business income $49,394 $20,096 Profit from business $6,101 $18,387 Depreciation expenses $2,725 $1,461 Rent $9,000 Nil Other business expenses $5,592 $248 Period of employment Nil 1/7/95 to 30/6/96 Wages from employment Nil $17,524
The plaintiff was unable to explain the discrepancy other than to say that the later return was based on estimates and he thought he had his years mixed up. He admitted that he did not have any documents on which to base those estimates other than a diary he had kept at the time and ‘a few shop dockets’. He offered no explanation as to how, in the absence of any records, he had come up with such precise estimates.
The plaintiff was also questioned about the other tax returns that were in evidence. He admitted that most of the earnings he had over the years were paid in cash and that he had not put in tax returns because he might be liable to pay tax. He agreed that he had the returns prepared recently to assist him with his claim for damages in this proceeding. In the context of questions about his income tax return for the year ending 30 June 1997 the plaintiff admitted that during that year he had received unemployment benefits in an amount of $6,462.28 although he had in fact been employed during the relevant period. Mr Black identified many other discrepancies in the plaintiff’s tax returns; see for instance the comment in [44] above concerning his 99/2000 return. I do not propose to detail those discrepancies here, however their extent was such as to preclude any confidence in the accuracy of those returns unless corroborated by other evidence. The plaintiff’s inability to explain those discrepancies raises considerable doubts about his credibility as a witness, at least in relation to these issues. I note in this regard that senior counsel for the plaintiff, Mr Conti SC conceded that the taxation returns could not be relied upon except where group certificates were provided.
Conclusions as to damages
Plaintiff’s credibility
The plaintiff is not an easy witness to assess. In his evidence in chief he was convincing; he answered questions quietly, with some assurance and without any attempt to elaborate or argue his case. He was quite forthcoming about what he is now able to do and how he has been able to adjust to his disability; for instance he volunteered that he walks about six kilometres a week and has managed a 15 kilometre walk. He said that he enjoys bushwalking but can only manage a day pack by himself. He is able to carry a camp pack but needs assistance in lifting it onto his back. He used to enjoy carp fishing but finds that carp are now too strong for him so he has moved to trout fishing because trout are much lighter fish.
The plaintiff clearly attributes the breakdown of his marriage to his injury but did not attempt to dramatise its effect on him. He willingly agreed that he and his wife amicably share the custody of the children and that he is coping much better now with the loss of this relationship.
However, the plaintiff’s evidence concerning his employment and income both before and after the accident gives rise to concern. His evidence on these matters was often inconsistent both with documentary evidence and with the accounts given by independent witnesses. In addition, on cross-examination, he contradicted earlier evidence in a number of respects or claimed not to recall matters that were inconvenient to the picture he was obviously trying to create. The plaintiff’s approach to his income tax returns suggests that, in this regard at least, he has no real commitment to the truth but is more concerned with supporting his claims and, perhaps, with avoiding the consequences of possible income tax evasion and social security fraud.
The plaintiff came under considerable pressure on cross-examination and claimed to be confused by this. I accept he was confused but, in my view, the difficulty stemmed from him being confronted by strongly persuasive evidence that conflicted with the account he had given on direct examination. For this reason Mr Black submitted that the plaintiff was an unreliable witness and that his account should be regarded as of very little weight. While I accept that there is much in this submission I do not regard the plaintiff as so uniformly unreliable as to warrant this approach to the whole of his evidence.
Even though, as I have described in the previous paragraph, the plaintiff prevaricated on some issues he also readily agreed to other propositions that might be seen as adverse to his claims: for instance he agreed that perhaps it was not sensible for him to push the taxi given his difficulties with his back; he did not attempt to deny that he was intoxicated at the time of the accident although he resisted the suggestion that he was severely intoxicated. He agreed without qualification that he could work full time at Questacon although it was later apparent that he did not think that he could do so without increase in pain and having to take time off work to recover. Of particular importance in this context is that the plaintiff disclosed the fact that he decreased his work hours in the three months prior to the accident and intended that this reduction would continue for two years although the lack of records would suggest that this information would not otherwise have been available.
In summary although I found the plaintiff to be a credible witness in relation to his injury, the extent of his recovery and the overall effect of the accident on his personal life (see [28] above), I am very sceptical about his evidence about his financial affairs and his income capacity, both past and future.
Findings as to the plaintiff’s physical condition and employment since the accident
I accept that after the accident the plaintiff suffered acute disability for several months during which time he needed assistance with personal care and was not able to work, assist with domestic tasks or care for his daughter. During this period he was taking a variety of medication including analgesics and narcotics. Later he was prescribed anti-depressants to help him cope with his anger and frustration. I accept that during the first few months he required considerable assistance with personal care from his wife, his mother and his mother-in-law.
I find that over the next year and a half there was a slow and gradual improvement in the plaintiff’s condition so that since the middle of 2000, in absolute terms, there is very little that the plaintiff has been completely unable to do. However, this conclusion must be considered in the context of my finding that the plaintiff has a chronic back problem that limits the amount of physical exercise he can do. The more difficult an activity the less time he will be able to carry out that activity so that some activities can be said, in practical terms, to be beyond his capability. This is the case with physically demanding work involving heavy lifting, twisting, turning and bending particularly in a confined space. For this reason the medical evidence supports, and I accept, that the plaintiff is permanently precluded from returning to his work as a chef.
The plaintiff’s present capacity for work that does not involve the physical demands referred to above is more difficult to determine, as is the point at which he reached his present capacity and his prospects of further improvement. Despite his initial claims it is clear that by mid-2000 he was working at least part-time at Café Macchiato and that he continued to work there until March 2003 when he obtained his present position at Questacon. The reports of Dr White and Dr Davies refer to the plaintiff’s attempt to work in an Indian restaurant and to his being unable to cope with that work. Other than that, there is little evidence as to his capacity for work prior to the middle of 2000 or what his physical state was in the last three months of 1998, during 1999 and the first six months of 2000. However I am satisfied the plaintiff has not shown any reluctance to reintroduce himself into the workforce (see Dr White’s comment referred to in [23] above) and he has generally physically extended himself in his leisure activities. I am therefore prepared to accept that he was unable to work prior to commencing work at Café Macchiato and that his decision to continue in part-time work has been a realistic response to his physical limitation.
At the time of the hearing the plaintiff was working at Questacon. I accept that on average he worked about 15 hours per week with additional weekend work of 4 or 5 hours. He was paid $17.80 per hour with a casual loading of 15% with weekend rates being 1.5 times the weekday rate. The records of the plaintiff’s employment at Questacon show that, on occasions, he worked as much as 30 hours a week.
Future prospects
It is difficult, on the evidence before me, to predict the future course of the plaintiff’s condition and whether it is reasonable to expect any further improvement. One factor that is clear from the medical reports however, is the medical experts’ expectation that he would benefit from pain management therapy. Such therapy would assist the plaintiff exploit his physical resources without the limiting effect of unnecessary pain avoidance. On the basis of the medical evidence I am also reasonably confident that with this therapy and his increasing strength the plaintiff would be able to cope with normal full-time working hours within the next twelve months so long as he continues in employment that does not provoke his back injury. I accept that the plaintiff’s chronic disability will require him to manage his condition and make realistic choices about his physical capacity. Inevitability he will sometimes make mistakes and those mistakes will necessitate medical assistance, medication and probably other forms of therapy.
I have discussed at [30]-[31] above my view of the effect of the injury that the plaintiff suffered in 1995. I concluded that that injury had a negligible effect on the plaintiff’s earning potential and lifestyle. However even if I were to accept that the injury suffered by the plaintiff is more serious than it would have been had the plaintiff not had the pre-existing injury the principle that the tortfeasor takes his victim as he finds him and pay damages accordingly would apply; Shorey v PT Ltd (2003) 197 ALR 410 per Kirby J at 419; Watts v Rake (1960) 108 CLR 158 per Dixon CJ at 160. Nevertheless I accept that even if the accident had not occurred, the plaintiff is likely to have had occasional acute episodes of pain requiring medical attention and some medication. The award of damages must take account of this likelihood; Chappel v Hart (1988) 195 CLR 232 at 241-42 per Gaudron J.
The medical evidence raised the probability that the plaintiff’s injury may result in some degeneration in his spine. If that were to happen it is unlikely that the plaintiff would maintain and active and full time working life to the usual retiring age of 60 to 65 years. However, I am not satisfied that the probability is such that this should be reflected in an award of damages other than, perhaps, in a discretionary buffer in relation to future economic loss.
Award of damages
General damages
The plaintiff has suffered a significant injury and I consider $50,000 general damages to be appropriate. I attribute $30,000 to the past and allow interest of $2,300 on that amount.
Past economic losses
I have accepted that the plaintiff was unable to work until he commenced work at Café Macchiato in July or August 2000. Assuming that the plaintiff could have worked for 15 hours per week at a rate of $15 per hour I allow the sum of $11,250 for the financial year ending 30 June 1999 and $11,700 for the financial year ending on 30 June 2000.
As mentioned in [41] above the plaintiff’s evidence was that he intended his reduced working hours to apply only for two years after which he would revert to full-time work. I accept this evidence and therefore base the assessment of his loss in respect of the financial year ending 30 June 2001 on him having the capacity to work 40 hours per week. In that year, at $15 per hour and a 40 hour week he would have earned $31,200. As I have accepted that Mr Dwyer was working at Café Macchiato for virtually all of that financial year I estimate he would have earned $11,700 there. In addition his income tax return for that year shows that he received Newstart allowance of $7997.57 making a total income of $19,697. I therefore estimate the plaintiff’s loss in that year to be approximately $11,500 and allow that amount in respect of the financial year ending 30 June 2001.
The schedule submitted by the plaintiff bases his income in respect of the financial year ending 30 June 2002 on the group certificates he received from Café Macchiato. Given the plaintiff’s concession about the extent to which he received payment in cash I am not satisfied that these certificates reflect the whole of the income received by the plaintiff. In my view a calculation based on an estimate of the hours worked is likely to be more accurate. Taking into account the amount of $5831.51 received as Newstart allowance I estimate the plaintiff’s loss in the year ending 30 June 2002 to be $13,900 and allow that amount. Similar calculations in respect of the financial years ending 30 June 2003 and 2004 yield estimated losses of $17,200 and $7,600 respectively. The total allowed in respect of past economic losses is therefore $73,150.
Future economic loss
I have concluded that the plaintiff should be able to resume full time work within the next year subject to him obtaining pain management training and remaining in suitable employment. In addition I have found that the plaintiff may, from time to time, suffer acute periods of pain that may make it difficult to work for short periods. It is difficult to estimate the appropriate amount but in the circumstances and providing a discretionary buffer, I allow $30,000 in respect of future economic loss.
Past expenses
Out of pocket expenses are agreed at $6,262.80 and I therefore allow that amount. In addition the plaintiff claims damages pursuant to the principle of Griffiths v Kerkemeyer (1977) 139 CLR 161 in respect of the domestic and personal nursing assistance he has received from his wife, his mother and his mother-in-law; see [6], [10] above. The parties have agreed that an appropriate rate for those services is $15 per hour. In respect of the first two months after the accident I estimate that 20 hours per week is appropriate being a total of $2,400. The plaintiff’s need for such assistance had diminished over time and for that reason I agree with Mr Black’s submission that 3-4 hours per week for the remainder of the period up to the hearing would be appropriate accordingly I allow an amount of $18,000 plus interest of $900 in respect of those services. I do not believe it is necessary to make provision for further payments. The total allowed under this heading is therefore $21,300.
Future medical expenses
The plaintiff claims $5,525.51 for future medical expenses in respect of medication over the next ten years, visits to his general practitioner at three monthly intervals and three monthly massage therapy. In addition he seeks the cost of participation in a cognitive behavioural pain management program estimated to cost between $3,500 and $5,500 and claims $4,500 in this respect. The defendant has submitted that an amount of $5,000 would be more appropriate while being able to provide particulars to support the proposed reduction. I find however that the plaintiff’s estimates are generally reasonable and will allow the sum of $10,000 for future medical expenses.
Superannuation
The plaintiff submits that the legal requirement that employers pay an additional percentage of an employee’s gross earning in respect of superannuation means that the plaintiff should be compensated for this loss in respect of his economic loss. He submits that a discretionary sum of $60,000 should be awarded because of the difficulty of assessment. I accept the principle that the plaintiff should receive some compensation in respect of superannuation forgone but reject that amount as excessive. I have assessed the plaintiff’s economic loss at $73,150. An appropriate amount for superannuation loss would seem to be 9% of that amount. I therefore allow $6,583.50 in respect of superannuation.
Orders
Accordingly there will be judgment for the plaintiff against the defendant in the sum of $199,596.30. I will hear the parties as to costs.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Stone.
Associate:
Date: 19 November 2004
Counsel for the Plaintiff: Mr R Conti SC
Solicitor for the Plaintiff: Maliganis Edwards Johnson
Counsel for the Defendant: Mr A Black
Solicitor for the Defendant: Phillips Fox
Date of Hearing: 28, 29 and 30 June 2004
Date of Judgment: 19 November 2004
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