Forge v Rewers
[2017] ACTSC 179
•21 July 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Forge v Rewers |
Citation: | [2017] ACTSC 179 |
Hearing Dates: | 17, 18, 19 July 2017 |
DecisionDate: | 21 July 2017 |
Before: | Mossop J |
Decision: | See [81] |
Catchwords: | CIVIL LAW – PERSONAL INJURY – motor vehicle accident – assessment of damages – whether disabilities caused by accident or pre-existing spondylitic condition – turns on own facts |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), ss 100, 100(1), 100(2), 100(2)(a), 100(2)(b) Court Procedure Rules 2006 (ACT) Road Transport (Third Party Insurance) Act 2008 (ACT), ss 136, 147 |
Cases Cited: | Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Makita v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Griffiths v Kerkemeyer (1977) 139 CLR 161 |
Parties: | Craig Forge (Plaintiff) Edward Marion Rewers (First Defendant) Insurance Australia Limited trading as NRMA Insurance (ACN 000016722) (Second Defendant) |
Representation: | Counsel A Muller (Plaintiff) J Pappas (Defendants) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Sparke Helmore (Defendants) | |
File Number: | SC 271 of 2016 |
MOSSOP J:
Introduction
This is an assessment of damages arising from a rear end motor vehicle collision. The collision occurred on the evening of 4 August 2012. The plaintiff was in a vehicle on the Barton Highway at traffic lights near the Gungahlin Drive flyover when the defendant’s vehicle drove up at speed from behind. Observing the vehicle approaching from behind, the plaintiff attempted to accelerate away from the oncoming vehicle but could not avoid the collision. The defendants have admitted breach of duty. The task of the Court is to assess causally related damages.
Relevant chronology
The plaintiff was born in 1965. He completed Year 10 the Wangaratta Technical College in Victoria. He commenced work in 1981 for Canny’s Carrying. This involved working in a furniture van moving furniture. He subsequently obtained a licence to drive a semitrailer and did interstate driving work, loading during the day and driving during the night. He spent the whole week away.
He worked for various transport companies until moving to Canberra in the late 1980s or early 1990s to drive for Iannelli Transport moving fresh produce. In the mid 1990s he worked for Abletts Transport moving general freight. The delivery of this freight was less time critical than the fresh produce moved in his previous job. In the late 1990s he was employed by All States Towing as a driver as well as doing office work. All States Towing had the contracts with the NRMA and the police for the towing of vehicles. This job was less physical than working as a truck driver.
In 2002 or 2003 he commenced working as a self-employed truck owner-driver. He traded under the name CL Forge Transport. He was generally driving between Melbourne and Sydney, doing five round trips per fortnight. He would spend 16 to 20 hours on the road at a time.
Medical records show that he saw his general practitioner, Dr Ho, in August 2007 complaining of pain in his right elbow and neck. In October 2008 he had a steroid injection into the left upper thoracic back. In July 2009 he had an x-ray after suffering an injury to his shin. In August 2010 he saw his general practitioner for a general examination. The doctor noted that he had a full range of motion of the neck and mild tenderness bilaterally at the C5/6 level.
In March 2011 he saw Dr Ho and had a steroid injection into his trapezius muscle on both sides. This was because of shoulder soreness associated with “dogging down” on the truck. This was the process of chaining down the load. He said he needed to “kill the pain” in order to go to work. Once the injection “kicked in” he said he felt “alright”. In March 2012 he had a further steroid injection into his left “SST” which I take to be a reference to his supraspinatus tendon, a tendon in the shoulder joint.
In May 2012 he suffered bruising to his right lower leg as a result of an incident where he was attempting to change a wheel on a truck but the socket he was working on broke and the bar that he was using hit the ground before bouncing up and hitting him in the leg.
The accident, the subject of these proceedings, occurred on Saturday 4 August 2012 when the plaintiff, his wife and two of his grandchildren were returning from a family christening in Harden, New South Wales.
After the accident, the police were called. The car was damaged but drivable. The plaintiff returned home, packed his bag, had a shower, got in the truck and drove to Sydney. He was stiff and sore but he was still able to drive. He unloaded the truck in Sydney and went to the brickyard where he was loading the next morning. He went to bed but when he woke up the next morning he was “just sore as buggery - very sore”. The pain was in his lower back and neck and across the top of his shoulders.
In the days and weeks that followed he found that he was very stiff and sore. He found it difficult to sit in the seat for long periods. Because of his back pain, he found that he had to stop regularly and lie down in the sleeper of his truck to try to rest his back. Although he had previously regarded himself as a tough sort of person who could handle pain, on many occasions the back pain brought him to tears.
On 22 August 2012 he ceased work due to his continuing symptoms and was off work for about four or five weeks. He saw solicitors for the first time in relation to the accident on 28 August 2012. Although there are no records of a consultation with Dr Ho in that period, the plaintiff’s evidence was that Dr Ho was not interested in treating him in relation to his motor accident claim and he went, on the recommendation of his solicitors, to see Dr Watson, a general practitioner in Gungahlin on 6 September 2012. He was referred to Shane Collins, a chiropractor. He was treated by Mr Collins on six occasions in September 2012. The plaintiff described the effect of the treatment as “feeling all right afterwards” but by the next day being worse than prior to the treatment. Because of the pain from which he was continuing to suffer, the plaintiff decided that he was not able to continue with his current style of work.
In October 2012 he commenced work for the Toll Group transport company. He did so as an employed driver of a company which he had incorporated, “CTJ Transport Pty Ltd”, which was contracted by Toll. In this role he was transporting fresh produce from Canberra to Sydney. He would drive to Eastern Creek and then back to Fyshwick, leaving Canberra at about 5 pm and being home by 12:30 am. He found the work was not as hard but that he needed to stop on one or two occasions during the trip between Canberra and Sydney to get out and walk because of his back pain.
After working for Toll for about 12 months he worked for Joe Camilleri Transport doing a Sydney to Canberra run to deliver produce to Fyshwick markets.
In April 2014 he ceased the operation of his trucking business and sold his truck for $100,000. He sold the truck because he could not do the maintenance because of his neck and lumbar pain and had difficulties because he could not sit in the truck for long periods. He did not want to sell the truck because he had enjoyed operating his own trucking business.
There were a couple of months when he was without work. In August 2014 he commenced employment with Charman Earthmoving as a truck driver. He was initially working part-time but this then changed to full time. This was generally lighter work than his previous jobs as it involved less manual loading and unloading. Initially he drove escort vehicles and did float work, which involves transporting heavy machinery to where it is needed. This took him as far away as Sydney, Newcastle, Wagga Wagga and Albury. However he told his employer that these trips were too long for him. Now he does almost exclusively tipper work. This work involves up to a nine or 10-hour day but allows him to get out of the truck reasonably regularly and involves little physical work apart from driving.
Since the initial period after the accident he has not had significant medical treatment. His use of painkillers and anti-inflammatory drugs has been minimal, using some Panadol, Voltaren, and occasionally Panadeine Forte. He suffers from cervicogenic headaches of varying frequency, sometimes as much as three times in two weeks, for which he takes medication. He finds that he gets stiff and sore in the neck and the top of his shoulders. Sitting for significant periods leads to back pain but this is manageable so long as he is able to get up and walk around. Modification of his work has permitted him to continue working full-time.
Is the plaintiff’s current condition due to the accident or the underlying degenerative condition of his spine?
Before turning to assess the individual heads of damage, it is necessary to address a causation issue raised by the submissions made by the defendants. That is whether the plaintiff’s current condition is due to the accident or the underlying degenerative condition of his spine.
The plaintiff was seen by Dr Robin Higgs, an orthopaedic surgeon, at the request of his solicitors in December 2013 and September 2014. In both of his reports Dr Higgs diagnosed the plaintiff with a soft tissue musculoligamentous strain injury to his cervical spinal region resulting in neck pain and asymmetric restriction of his range of cervical spinal motion without radiculopathy. He also identified a lumbosacral musculoligamentous strain injury without radiculopathy. He expressed the opinion that the motor-vehicle accident on 4 August 2012 was a substantial contributing factor to the plaintiff’s condition. He recorded that he had not identified any objective evidence of any pre-existing or co-existing impairment that has suffered from any aggravation.
Mr Tom Sutton, psychologist, reported to the plaintiff's solicitors on 22 May 2014. He reported that there was no illness maintaining disorder, somatisation, conversion or psychological contribution to, or exaggeration of, the plaintiff’s pain. He also reported that the plaintiff tended to downplay any problems which may be present as opposed to exaggerate them. He identified elevated levels of depression and irritability. He expressed the opinion that the plaintiff would benefit from a review by a
pain-specialist physician and that there was room for improvement. He recorded that lowered literacy and word-knowledge levels suggested that there would be obstacles to transferring to any work involving written or clerical processing.
Dr David Champion, a pain specialist, reported on the plaintiff to the plaintiff’s solicitors on 8 March 2016. In relation to the plaintiff’s pre-accident condition he referred to a pre-accident episode of scapular/trapezius/shoulder pain which resolved after corticosteroid injections. He said he had not been able to make any determination of the relationship between those temporary symptoms and his cervical spine because of the inadequacy of the clinical record. He then said:
The underlying degenerative changes in his cervicothoracic spine were likely to have been minor to moderate risk factors for adverse post-traumatic outcomes.
The motor vehicle accident on 4 August 2014 [sic], a rear end collision, was the substantial causal influence on Mr Forge’s subsequent chronic post-traumatic pain disorder, impaired sleep and psychological symptoms including depression, relative handicap for truck driving, loss of income, and disability for activities of daily living. He has sustained a chronic cervical whiplash associated disorder of the cervical spine with neck pain, deeper somatic referred pain in paraspinal distribution, cervicogenic headaches and also a thoracolumbar spinal pain disorder of lesser severity.
As to the relationship between the degenerative changes in his spine and the motor-vehicle accident, he said:
The injuries sustained in the MVA would not have contributed importantly to the pathology that was revealed in the CT scans of the cervical and lumbosacral spine on 19 May 2014. There would have been micro pathology as a consequence of the accident but one could not validly state that any of the reported changes which were mostly of degenerative category were necessarily caused by the MVA. The presence of the disc height loss at C4/5, C5/6 and C6/7 would indicate some pre-accident vulnerability to pain but not substantial vulnerability.
He expressed the opinion that there was not much that could specifically be done about the chronicity of the pain but recommended a multidisciplinary pain management program.
So far as prognosis was concerned he said there would be some tendency to improvement but also the risk of aggravation if he were to jerk or otherwise stress his cervical or thoracolumbar spine. He said that it was difficult to know whether the trajectory of the underlying degenerative changes would have been accelerated but “probably just a little acceleration would be the most likely interpretation of the evidence”.
The plaintiff saw Dr Sandra McBurnie, an occupational physician, in November 2014 and again in March 2017 at the request of the plaintiff’s solicitors. In 2014 she recorded that the plaintiff experienced pain at the base of his skull running down to the middle of both shoulder blades as well as an intermittent headache. She also reported back pain increasing following about 30 minutes of sitting. The plaintiff did not report to her a history of injury or symptomatology prior to the accident on 4 August 2012. She diagnosed chronic pain in the neck and lower back and concluded that it was caused by injury sustained in the motor-vehicle accident. A report in March 2017 for which she had the benefit of other documents including the medical notes from Dr Ho and Dr Watson reached substantially the same conclusions. At that point the plaintiff’s medicine use was limited to Panadol every eight to 10 days for headache and only rare use of Panadeine Forte.
Dr Gorman, a general physician, pain management specialist and medical oncologist, prepared three reports at the request of the defendants’ solicitors.
In his first report, dated 16 February 2015, he concluded that the plaintiff’s condition was solely attributable to the motor vehicle accident.
In his second report, dated 29 March 2017, Dr Gorman said:
Mr Forge has ongoing pain from the cervical and lumbar spondylosis.
While he did have an aggravation of that spondylosis, I believe that the aggravation would have settled at the most in one to two years.
I note that at my previous assessment I did not have the benefit of the previous notes. I did not note that he had had previous injections into the trapezius bilaterally, the most recent before the accident being on 25 March 2011 by Dr Ho. He had also had an injection in the upper thoracic spine on 9 October 2008.
On 11 August 2010 Dr Ho reported that there was tenderness over the cervical spine at C5/6 bilaterally. On 7 August 2007 Mr Forge also reported right-sided elbow pain and neck pain as well as a history of left-sided cervical spondylosis. He was prescribed Naprosyn.
... Dr Thai confirmed that Mr Forge did suffer a musculoligamentous strain injury on 4 August 2012 but felt that “any pain symptoms related to the motor vehicle accident have now resolved”. He felt that “any ongoing pain experienced is related to pre-existing cervical spondylosis”. I agree with this. He had the same conclusions with regard to the lumbar spine. I agree with these conclusions.”
As a result he expressed the opinion that: “His ongoing symptoms are related to
pre-existing lumbar and cervical spondylosis.”
In his third report he answered specific questions posed by the solicitors for the defendant. He said:
I believe that his current status would be the same with similar pain and disability without the accident.
As I have outlined in my previous reports, for two years after the accident there would have been an aggravation but I believe his current condition is from his degenerative condition -this would have been causing him similar pain and disability regardless of the accident. I note that he is back at work and I also note that he had previous neck and shoulder complaints prior to the accident.
He was also asked about the likely progress of the plaintiff’s underlying degenerative condition if he had continued with long haul truck driving. He said:
I understand that he went to lighter driving around Easter 2014. As mentioned above, for this period he would have had some persisting effect from the aggravation secondary to the motor vehicle accident. However, as I have noted above, I believe his current condition is secondary to the degenerative condition.
I believe that the accident may have accelerated his move to lighter truck driving. I believe however that by the time of his assessment in 2017 (five years after the accident) he would have been on lighter truck driving anyway.
In summary, the accident brought forward his move to lighter truck driving by approximately 3 years.
In cross examination he agreed that the duration of an aggravation of an underlying spondylitic condition would be proportional to the severity of the aggravation. He said that his opinion as expressed in his report that “the aggravation would have settled at the most in one to two years” was not based on any empirical data but instead was based upon his experience as observation of the duration of complaints. He agreed that there was not a useful correlation between the results of a scan and a patient’s symptomatic experience. In other words, regardless of the scan, the best measure of a plaintiff’s condition was the duration of a plaintiff’s complaint. He did not accept that there was continuity of symptoms in the lumbar spine since the motor-vehicle accident because, when he first examined the plaintiff, those symptoms were not constant or prominent.
Dr Gia Han Thai, a consultant occupational physician, reported to the solicitors for the defendant on 21 November 2016. In his report Dr Thai said:
In my opinion, Mr Forge is suffering from neck pain secondary to pre-existing cervical spondylosis. He also suffers from interscapular pain which is pre-existing. This opinion is supported by the file records dating back to 7 August 2007 when he was first diagnosed with cervical spondylosis and neck pain. He has received treatments including steroid injections into the thoracic spine on several occasions prior to the motor vehicle accident.
In my opinion, Mr Forge suffered from a musculoligamentous strain injury on 4 August 2012. Any pain symptoms related to the motor vehicle accident has now resolved. Any ongoing pain experienced is related to pre-existing cervical spondylosis.
In cross-examination Dr Thai also agreed with the proposition that, in relation to spondylosis of the spine, there was a poor correlation between imaging findings and symptoms. He explained that he considered that the plaintiff’s lower-back pain was now unrelated to the accident because degeneration of the lumbar spine was visible on the CT scan, it was not uncommon for people of that age to experience back pain, that back pain would often settle within three months and that the pain that he was suffering was likely to be mechanical in nature.
He agreed that his opinion in relation to the cervical spine was based upon the note of Dr Ho on 7 August 2007 which included:
Pain - neck
Left Cervical spondylosis
Dr Thai agreed he had no information as to what examination or testing was done by the general practitioner in order to reach any conclusion about left cervical spondylosis. In explaining why he reached the conclusion that the pain condition in the plaintiff’s neck arose from his degenerative condition, he indicated that he placed reliance upon the inconsistencies in the history and the entries in Dr Ho's notes between 2007 and 2012.
The plaintiff has demonstrated that he suffered from pain at varying levels in his neck and back since the accident. The pain in his lumbar spine has varied and, in a work context, is dependent upon the length of the continuous period for which he is required to sit down while driving. Although the level of his symptoms have varied, there is continuity of symptoms from the point at which the accident occurred.
The medical records do disclose that there were some complaints relating to his cervical spine prior to the accident. They were:
(a)In the mid 1990s the plaintiff fell off a trailer when working for Abletts Transport and had a stiff or sore neck for which he received two sessions of physiotherapy and had no ongoing issues.
(b)On 7 August 2007 he saw Dr Ho. Under the heading “Reason for contact” appeared:
Right Pain - elbow
Pain - neck
Left Cervical spondylosis
(c)He was prescribed Naproxen Sodium. As pointed out above, the basis for Dr Ho’s conclusion in relation to spondylosis is not made clear by his notes.
(d)On 9 October 2008 he attended Dr Ho who recorded as one of the reasons for contact “[r]equests steroid [injection] to left upper thoracic back”. The records do not expressly say that the injection was given but I infer that it was. The plaintiff could not recall this injection.
(e)In August 2010 as part of a general examination the doctor recorded a full range of movement in his neck but “Mild tender over C5/6 bilaterally.” Notes do not record any complaint on the plaintiff’s past that led to this finding.
(f)On 25 March 2011 he saw Dr Ho who recorded under:
History:
Requesting steroid injection to both SST and trapezius muscle both sides.
Reason for contact:
Bilateral Steroid injection SST and Trapezius
As pointed out earlier I have taken the reference to “SST” to be the supraspinatus tendon. The plaintiff gave evidence that this shoulder soreness was associated with pain arising from “dogging down”.
(g)On 30 March 2012 Dr Ho recorded as one of the reasons for contact:
Steroid injection left SST
The plaintiff could only recall one steroid injection before the car accident and could not separately recall this injection.
Notwithstanding these medical records I accept the evidence of the plaintiff and his wife that there was no significant ongoing problem prior to the accident. Both the plaintiff and his wife were credible witnesses who gave evidence in an unaffected way, did not overstate matters which might be seen to advance the plaintiff’s case and made appropriate concessions. Because of the submissions made on behalf of the defendants, it is necessary to elaborate on this conclusion in relation to the plaintiff.
(a)The plaintiff was cross examined at length. He was cross examined about apparent inconsistencies between what doctors recorded as part of their history and the plaintiff’s evidence. I do not consider that this cross examination demonstrated that the evidence of the plaintiff was untruthful or unreliable in any significant way. In reaching that conclusion I have accepted that any such inconsistencies must be considered in the light of the various factors summarised in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320.
(b)The plaintiff was also cross examined about the prescriptions obtained from Dr Ho for Cialis and the records of that doctor recording complaints of erectile dysfunction. I did not consider that the plaintiff’s evidence on this issue cast significant doubt upon the reliability of his evidence in relation to the neck symptoms that he suffered from prior to the accident.
(c)The plaintiff was also cross examined at some length with a view to suggesting that the reason that he had sold his truck in April 2014 was because of mechanical problems which it had suffered from, the need to obtain finance to fix those problems and a desire to be free of debt rather than because of ongoing pain in his neck and back arising from the nature of his work. While that suggestion was not pursued in final submissions, counsel for the defendants suggested that his answers reflected adversely on his credibility. I do not accept that submission. The answers given by the plaintiff in cross examination tended to demonstrate his honesty and reliability rather than the opposite. (The same can be said of the cross examination of Ms Stephenson about this issue.)
The evidence of Dr Gorman and Dr Thai was not such as to establish that these treatment records were indicative of either an existing ongoing pain-related problem or of pre-existing symptomatic degenerative changes which would have worsened in any event. The report of Dr Champion specifically addressed these records and concluded that he was not able to make any determination of the relationship between those temperate symptoms and the plaintiff’s cervical spine because of the inadequacy of the clinical record.
The opinions of Dr Gorman and Dr Thai do not explain the reason for their conclusions that the pain symptoms related to the motor-vehicle accident have now resolved. The essential hypothesis that their evidence puts forward is that there was a period of aggravation but that period has ceased and what is now being experienced is the natural history associated with the underlying spondylitic condition unaffected by the accident. In other words it is the natural history of the underlying spondylitic condition which would, in any event, have manifested itself in the symptoms which the plaintiff now suffers.
The opinion as to symptoms resolving within two years was not based upon any empirical evidence in the medical literature. Rather, as I understood the answers given by Dr Gorman in cross examination, it was based upon his experience that persons suffering such conditions would generally have ceased to suffer pain after a period of one to two years. However he appeared to accept in cross examination that the best measure of the duration of an aggravation is the duration of complaint. I do not accept that the doctor’s experience with other patients whose pain had ceased after that period provides an adequate basis for concluding in relation to the plaintiff that his pain arising from the aggravation had ceased and been overtaken by symptoms of the underlying spondylitic degeneration.
Similarly, the answers given in cross examination by Dr Thai were to the effect that he considered at the time of his examination that the complaint of pain was more likely to have a mechanical basis. This opinion was not explained in any detail so as to enable its accuracy to be properly assessed.
Further, the evidence of Dr Gorman and Dr Thai did not establish that the natural history of the spondylitic degenerative changes was such that the plaintiff’s neck and back would have been symptomatic in any event. Once it is accepted that the plaintiff’s complaints of pain are genuine, then that must be the effect of their evidence. Yet there was nothing in their reports which demonstrated the likelihood of such a natural history in the plaintiff’s case.
It is certainly possible that the opinions of Dr Gorman and Dr Thai are correct. However on the critical points relevant to causation in the current case their opinions are stated in the form of a series of linked conclusions. Those conclusions are not elaborated upon in a manner that exposed the medical or scientific reasoning behind them. In the absence of an elaboration of the reasons for their conclusions it is not possible to rationally assess the validity of the conclusions that they have reached: Makita v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [87]. As a consequence it is not possible to place significant weight on those opinions or to prefer them to the lay and expert evidence led by the plaintiff. I therefore prefer the evidence of Drs Higgs, Champion and McBurnie on the question of causation to that of Dr Gorman and Dr Thai.
Having regard to the limited nature of back and neck complaints prior to the accident and the history of those complaints since the accident it is more likely than not that the plaintiff’s current condition was caused by the accident.
Assessment of damages
General damages
The plaintiff has suffered a whiplash injury which has led to him suffering an ongoing chronic post-traumatic pain disorder. That is particularly in relation to his cervical spine but also in his lumbar spine to a lesser extent. He only requires minimal pain relief medication. He has been able to maintain employment although not as a
self-employed long-haul truck driver. He was unable to continue as a self-employed truck driver due to the pain that he suffered, even after modifying the type of work that he performed. Without the accident he would have continued in that work and continued to own his own truck, something which gave him considerable satisfaction. The evidence was that as a result of the accident his enjoyment of life has been significantly affected.
The plaintiff’s good friend, Mr James Beere, whose evidence I accept, said that prior to the accident: “He was always outgoing, always on the go, like always wanting to do stuff.” He observed that since the accident: “He’s very sort of flat now compared to what he used to be. He used to be real bubbly, cheerful, energetic.”
The plaintiff’s wife, Patricia Stephenson described that prior to the accident: “[h]e was happy, physically fit, willing to do anything”. After the accident she observed that: “[j]ust physically and mentally just wasn’t the same person, just doing things around the house and things like that and just mentally. I just — he just didn’t seem right.”
His son, Jesse Forge, described the plaintiff prior to the accident as: “very energetic, very open and … wanting to be involved in the day-to-day activities when he was home”. After the accident he described his father as being “a lot more quiet” and instead of putting “himself out there to … communicate with people” preferring “just to sit at home, just watch TV”.
The pain condition in his neck and back has affected his libido and hence his physical relationship with his wife. I do not, however, accept that any erectile dysfunction is as a result of the accident having regard to the medical records of the general practitioner Dr Ho which contain records consistent with treatment for that condition before and after the accident. To the extent to which the plaintiff’s evidence was inconsistent with that I do not accept it.
I accept the evidence of Ms Stephenson, Mr Beere and Mr Forge and find, consistent with that evidence, that the accident and his experience of cervical and lumbar pain, has had a significant effect on his capacity to enjoy life.
His condition appears to be stable although there is some prospect of improvement as a result of a multidisciplinary pain program.
I assess general damages at $100,000 apportioning that as 50 per cent for the past and 50 per cent for the future.
The defendant submitted that it was appropriate to only award interest for three of the five years since the accident because of the delay by the plaintiff in commencing proceedings. The defendant submitted that a reasonable period after the accident in which proceedings might have been commenced and determined was a period of three years. That would require determination of the proceedings by August 2015 which would have required them to be commenced in mid 2014. The proceedings were in fact commenced on 23 June 2016. The statement of claim records that a mandatory final offer was made by the plaintiff on 24 May 2016. I infer from this that the compulsory conference had taken place shortly before. Having regard to the medical evidence and the relative stability of the plaintiff’s condition, had it not been for the provisions of the Road Transport (Third Party Insurance) Act 2008 (ACT) (RTTPI Act), I would have limited the period during which I awarded interest. However, Part 4.9 of the RTTPI Act imposes time limits on the commencement of proceedings which are, relevantly, set by reference to the date of the compulsory conference: s 147. Section 136 provides that either party has the power to compel a compulsory conference if more than six months have passed since the respondent has received or is taken to have received the claimants complying notice of claim. The evidence about these procedural matters is limited. However notice of the claim was originally given by the plaintiff soon after first seeing a solicitor in 2012. There are both commercial and forensic reasons why parties may choose not to compel the early commencement of proceedings and hence their early resolution. There is no evidence of any particular considerations on the part of plaintiff or defendants in the present case. I infer from the limited evidence and the existence of the statutory provisions of the RTTPI Act that the defendants had the capacity to compel the earlier commencement of proceedings by the plaintiff but chose not to. In those circumstances I do not consider that it is appropriate to confine the plaintiff to interest for only a limited part of the period since the accident.
As a consequence interest should be calculated by reference to the five-year period since the accident rather than the three-year period contended for by the defendants. This gives interest of $5000 ($50,000 x 0.02 x 5 years).
Loss of earning capacity — past
The quantum of past income loss was agreed at $76,140. This was the result of quite extensive analysis by accountants in economic loss reports. The amount reflects the difference between the amount that would have been earned without the accident and the amount that was earned having regard to the changes in the plaintiff’s employment that occurred after the accident. It was common ground that as a result of the plaintiff’s current employment he was presently suffering no economic loss when compared to his pre-accident employment.
In the course of final submissions counsel for the defendants accepted that the accident was at least a cause of the decision by the plaintiff to change his pattern of work and ultimately sell his truck. That concession was appropriately made. It was consistent with the evidence of the plaintiff, his wife and Mr Beere.
I therefore find that the loss of income following the accident was a result of the injuries sustained in the accident. I therefore award damages in the sum of $76,140. Interest awarded on this amount will be $15,000. Although there was no agreement between the parties as to when this loss was incurred, the interest award has been based on it being mostly incurred in the period from the accident until the sale of the truck in April 2014. Had the losses been suffered uniformly over the period the award would have been $12,044.
The plaintiff did not submit that any additional amount attributable to loss of superannuation should be awarded.
Loss of earning capacity — future
The present position is that the plaintiff suffers no loss of income because he is earning at least as much in his present employment as he was as an owner-driver. The plaintiff submitted that it was appropriate to award a buffer to take account of the possibility that, in the future, if his employment with his present employer ended, his pain condition would affect his earning capacity and would be likely to lead to economic loss.
In support of this submission the plaintiff pointed to two matters. First, there was the evidence of the plaintiff that on three or four occasions each month he would be offered overtime work floating equipment to sites around Canberra or as far away as Bungendore. He usually declined this work because he wished to avoid aggravating his symptoms and hence confined himself to the lighter tipper work. Second, the plaintiff has physical limitations which he did not have prior to the accident and that, if his employment with Charman Earthmoving was to come to an end, his employability on the open market has been impeded because of the physical restrictions from which he suffers.
So far as the first matter is concerned, the starting point is that it is uncontroversial that the plaintiff earns at least as much now as he did as a long haul owner driver prior to the accident. The evidence was to the effect that without the accident the plaintiff would have continued in that role. Therefore the relevant comparison is not between the amount that he is earning while employed by Charman Earthmoving and the amount that he might be earning if he was able to do additional overtime. Instead the comparison is between what he would have been earning as a long-haul owner-driver and what he is currently earning. That comparison demonstrates no continuing loss.
So far as the second matter is concerned, the evidence does establish that the plaintiff is more restricted than he would otherwise have been. I accept that for someone with his skills and experience these restrictions involve an impingement of his earning capacity. The issue is whether or not that loss of earning capacity will be productive of financial loss in the future. It is certainly theoretically possible that he may have more difficulty than an unrestricted person in obtaining driving work consistent with his capabilities. However, there is no evidence before the Court about the range of work that is available for a very experienced truck driver and the consistency between that work and the reasonable physical capacity that the plaintiff still has. Conclusions about the chance of such loss go beyond matters of which judicial notice may be taken. I therefore do not consider it appropriate to make any award by way of a buffer for future economic loss.
Out of pocket expenses — past
Past out-of-pocket expenses were agreed at $1606.54. Interest on this amount at the rates provided in the Court Procedures Rules 2006 (ACT) (calculated on the assumption that the expenses were incurred uniformly over the period) is $254.
Out-of-pocket expenses — future
Dr Champion estimated the cost of a multidisciplinary pain-management program at being between $5000 and $7500. The plaintiff’s evidence was that he accepted the advice of doctors if, as matters were explained to him, acceptance of that advice would improve his condition rather than make it worse. It is true that in the period since Dr Champion's report he has not embarked upon a multidisciplinary
pain-management course. Notwithstanding this, the report of Dr Champion described a condition which had the potential to be improved by such a course. The need for that treatment having been created by the defendants, I consider that it is appropriate to award damages to cover the cost of such a course. The plaintiff has modest needs for additional medication in the form of Panadol and rare use of Panadeine Forte. The evidence does not establish any substantially increased need for general practitioner or specialist visits. I therefore award a total of $8250 made up of $6250 for the pain management program (the midpoint in the range provided by Dr Champion) and a buffer of $2000 to accommodate the requirement for medication and occasional additional general practitioner or specialist visits.
Griffiths v Kerkemeyer / s 100 Liability
When working as a self-employed truck driver the plaintiff spent the whole of the week on the road, returning home on Friday night or early Saturday morning. He would then leave again on Sunday afternoon or evening. On the weekend he would work on his truck on Saturday morning and often cook a barbecue on one or both days. He would participate in some house or garden chores with his wife. He was also responsible for maintaining the family’s motor vehicles.
Following the accident his participation in house and garden maintenance reduced. The basic activity of mowing the lawn was taken up by either his son or one of his grandchildren during the period that his grandchildren were living at his house.
Section 100 of the Civil Law (Wrongs) Act2002 (ACT) imposes, as part of a person’s liability for injury arising from a tort, liability for damages resulting from any impairment or loss of the injured person’s capacity to perform “domestic services” that the injured person might reasonably have been expected to perform for his or her household if the injured person had not been injured: s 100(1). The effect of s 100(2) is that it does not matter whether, since the incident giving rise to liability, other persons have performed those duties: s 100(2)(d). Further, the domestic services covered by the section include services that had benefited the claimant: s 100(2)(a). The concept of “domestic services” is not a defined term.
In the context of a household with children and, on occasion, grandchildren, cooking, mowing the lawn, doing general house maintenance, garden chores and car maintenance are all domestic services for the purposes of s 100.
In the present case the evidence principally related to activities which the plaintiff had performed for the benefit of members of his household. In relation to those activities it is not necessary to establish that anybody else took them over following the injury. In so far as the activities were activities which other people provided on a gratuitous basis for the benefit of the plaintiff, those activities would be covered by the principle in Griffiths v Kerkemeyer (1977) 139 CLR 161. In addition to mowing the lawn the plaintiff’s son Jesse also assisted with maintenance of the family vehicles, assisted with washing the plaintiff’s truck and increased the amount of assistance that he gave around the home.
Neither the plaintiff or the plaintiff’s wife provided an estimate of the time that he had previously spent on weekends performing domestic services. Jesse Forge gave evidence of the additional time that he had spent providing additional assistance around the home with matters that his father previously would have done. His estimates were: August to December 2012, three to five hours; January 2013-April 2014, one to three hours. In the period from May 2014 to date his evidence what was that he still did provide assistance but did not put a figure on the level of assistance.
The plaintiff obtained assistance from Mr Beere with maintenance of his truck. The routine maintenance of the truck would take between one to three hours per weekend. The plaintiff claimed Griffiths v Kerkemeyer damages for 1.25 hours per week at $35 per hour for the 90 weeks between the date of the accident and the sale of the truck. Mr Beere also gave assistance to the plaintiff by, on occasions, driving the truck to pick up loads from Cowra, Leeton, Sydney and Melbourne, although this was not particularised as part of the plaintiff’s claim. Mr Beere described this work as being done in order to “help him out as a good mate”. The plaintiff would pay him some “cash money” on an irregular basis for the work done. Mr Beere described it as being $300 some months, $400 in other months, depending on what he had done for him. The plaintiff also provided a new set of tyres for one of his vehicles and either two or four tyres for another of his vehicles. He also said that the plaintiff would let him use his boat. There were no records kept of the amount paid to Mr Beere in the period between the accident and the sale of the truck in April 2014.
Having regard to the fact that varying informal forms of payment were made for the assistance provided, the assistance given by Mr Beere does not fall within the scope of the decision in Griffiths v Kerkemeyer. Further, I do not consider that maintenance of the truck falls within the scope of “domestic services for his or her household” within the meaning of s 100.
I accept the submission of the defendants that if damages were to be awarded then they needed to be proved as special damage. They were not particularised as an item of special damage and were not proved as such. I therefore make no award of damages arising out of this aspect of the evidence of Mr Beere.
As I have indicated above, the subject matter of the claim largely fell within the scope of s 100. It is possible that activities undertaken by Jesse such as washing the truck would fall instead within the scope of Griffiths v Kerkemeyer. It is not necessary in this case to perform any apportionment exercise.
Although, as is commonly the case, there is some uncertainty about the precise extent of s 100 or Griffiths v Kerkemeyer damages in the present case, it is appropriate to base the award of such damages at a declining rate consistent with the post-accident changes that the plaintiff made to his working arrangements. The award of damages will be as follows:
(a)Four hours per week for the two months following the accident which includes the period when the plaintiff was off work (4 hours x 8.6 weeks x $35/hr = $1204).
(b)Three hours per week for the period from October 2012 until the sale of the truck in April 2014 (82.3 weeks x 3 hrs x $35/hr = $8641). While this reflects a slight reduction in the hours having regard to the plaintiff’s return to work, it nevertheless reflects a loss which was continuing because of the difficulties that the plaintiff had during this period while he was attempting to maintain his business as a self-employed truck driver.
(c)One hour per week in the period from May 2014 to date (169 weeks x 1 hr x $35/hr = $5,915). This reduced rate reflects the fact that there are only limited matters that the plaintiff has continuing difficulty with.
The rate of $35 an hour was not the subject of specific evidence but was not controversial.
Interest on these amounts calculated in accordance with the Court Procedures Rules rates is $3108.
So far as the future is concerned, the award of damages will include an amount so as to permit participation in a pain-management course the plaintiff has a significant capacity for work. As a result in the change in his work since the accident, the plaintiff has substantially more time at home than he had prior to the accident. I am not satisfied that there is any s 100 or Griffiths v Kerkemeyer liability upon the defendants except in relation to the maintenance of the family motor vehicles. The plaintiff’s evidence in relation to vehicle maintenance was that he was still restricted because “I just can’t get down underneath the vehicle and … do things like that”. In the light of this evidence I consider that the plaintiff has established a s 100 liability on the part of the defendants in relation to the future. Because of uncertainties about the extent of benefits from the pain management course and having regard to his age and future capacity in any event, the award for the future will be by way of a buffer equivalent to half an hour a week for a period of eight years, namely, $6500 (multiplier 371.8 x $17.50).
Summary
In summary, the components of the damages award are as follows:
General damages $100,000 Interest on past general damages $5,000 Loss of income — past $76,140 Interest on past loss of income $15,000 Loss of income —future $0 Out of pocket expenses — past $1,606 Interest on past out-of-pocket expenses $254 Out-of-pocket expenses-future $8,250 Griffiths v Kerkemeyer / s 100 — past $15,760 Interest on past Griffiths v Kerkemeyer /
s 100$3,108 Griffiths v Kerkemeyer / s 100 — future $6,500 Total $231,618.00
Orders
The orders of the Court are:
1. Judgment be entered for the plaintiff against the second defendant in the sum of $231,618.
2. The usual order as to interest.
3. The second defendant is to pay the plaintiff’s costs.
4. Order 3 does not take effect for a period of 14 days and, if either party notifies my associate by email (copied to the other party) that it wishes to be further heard in relation to costs, does not take effect until further order of the Court.
| I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 21 July 2017 |
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