Galipo v Roos
[2016] WADC 163
•25 NOVEMBER 2016
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GALIPO -v- ROOS [2016] WADC 163
CORAM: GETHING DCJ
HEARD: 19-23 SEPTEMBER 2016
DELIVERED : 25 NOVEMBER 2016
FILE NO/S: CIV 1653 of 2015
BETWEEN: BRADY GALIPO
Plaintiff
AND
KEVIN EDWARD ROOS
Defendant
Catchwords:
Torts - Negligence - Motor vehicle accident - Negligence admitted - Contributing negligence admitted - Causation - Assessment of damages
Legislation:
Civil Liability Act 2002 (WA)
Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Result:
Judgment for plaintiff
Damages assessed
Representation:
Counsel:
Plaintiff: Mr N F Morrissey
Defendant: Mr J F Bennett & Ms H C Richardson
Solicitors:
Plaintiff: Premier Compensation Lawyers
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
and Smith v Zhong [2015] WASCA 202
Brocx v Mounsey [2010] WASCA 196
Browne v Dunn (1893) 6 R 67
Den Hoedt v Barwick [2006] WASCA 196
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, 168
HAR v The State of Western Australia [No 2] [2015] WASCA 249
Hendrie v Rusli [2000] WASCA 249
Hodges v Frost (1984) 53 ALR 373, 381
Houlahan v Pitchen [2009] WASCA 104
MJH v The State of Western Australia [2006] WASCA 167; (2006) 33 WAR 9
Newman v Nugent (1992) 12 WAR 119
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
SAM v The State of Western Australia [2016] WASCA 64
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Thomas v Bass [2006] WASCA 59
Van der Velde v Halloran [2011] WASCA 252
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Winiarczyk v Tsirigotis [2011] WASCA 97
GETHING DCJ: On 25 May 2013 at approximately 11:30 am, Brady Galipo was the driver of a car travelling in a northerly direction along South West Highway, Armadale. Sitting in the passenger seat was his then partner Caterina Syme. Mr Galipo says he was driving at approximately 60 km per hour in the right hand lane of the dual carriageway.
At the same time, Kevin Roos was driving eastwards along Fourth Road. Mr Roos proceeded into the intersection of Fourth Road and South West Highway, and collided with Mr Galipo's vehicle, impacting on the left hand side (the Accident).
Mr Galipo commenced an action against Mr Roos seeking damages for the injuries he sustained in the Accident.
Mr Roos has admitted liability in negligence for the Accident. As Mr Roos played no part in the trial, I will refer to him as 'the defendant'.
Mr Galipo has admitted contributory negligence for his part in the circumstances leading up to the Accident. He accepts that any damages awarded should be reduced by 25% pursuant to Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (CNTC Act) s 4(1).
The action was listed before me for an assessment of damages.
The action was listed for trial immediately before the assessment of damages in an action commenced by Ms Syme (being CIV 924 of 2015). At a directions hearing on 6 September 2016, I ordered that, to the extent relevant, the evidence in this action and the evidence in the action commenced by Ms Syme stand as the evidence in both actions, with counsel (who were the same in both actions) having liberty to call evidence, cross‑examine and re‑examine on matters arising in both actions.
Based on the pleadings and particulars of damages filed by Mr Galipo, the following issues arise for determination:
•What injuries did Mr Galipo sustain in the Accident?
•What is the appropriate assessment for past special damages?
•What is the appropriate assessment for future medical expenses?
•What is the appropriate assessment for gratuitous services of a domestic nature?
•What is the appropriate assessment for non-pecuniary loss?
•What quantum of damages is Mr Galipo entitled to?
Mr Galipo gave evidence. He also called his 18‑year‑old son, Brody Galipo, as well as two medical practitioners, Dr Andrew Fairhurst and Mr Tony Robinson.
The defendant called only a medical practitioner who had examined Mr Galipo, being Dr John Rosenthal.
The parties tendered an agreed bundle of medical reports and records. Counsel agreed that the statements in the medical reports and records could be treated as evidence of the truth of the facts contained in those statements subject to submissions as to weight and specific issues identified in cross-examination.
What injuries did Mr Galipo sustain in the Accident?
Pleadings and particulars
In his particulars of damages, Mr Galipo claims that as a result of the Accident he suffered injuries to his neck and shoulder. He goes on to say that as a result of the injuries sustained in the Accident, he suffered and continues to suffer from the following disabilities:
•Aggravation to pain in his neck when moving his head;
•Aggravation to pain in his neck when sitting or standing for extended periods;
•Aggravation to pain in his neck when lifting;
•Pain in his neck radiating into his head;
•Headaches;
•Interrupted sleep patterns;
•Loss of self-esteem
(which I will refer to as the 'Claimed Injuries').
The defendant's case is that the Claimed Injuries were not caused by the Accident. In the defence filed 7 July 2015, the defendant does not admit that Mr Galipo suffered the injury, loss and damage as a result of the collision as set out in the statement of claim. In written opening submissions, counsel for the defendant submitted that the Claimed Injuries were not caused by the Accident, or wholly caused by the Accident, due to:
(a)the prolonged period between the Accident and when Mr Galipo first sought treatment;
(b)the fact that Mr Galipo's restriction of neck and shoulder function can be attributed to upper body scar tissue from burns received as a child; and
(c)the fact that Mr Galipo's reduced range in movement is associated with some degree of pre-existing degenerative change.
In order to determine what injuries Mr Galipo sustained in the Accident, it is first necessary to consider his evidence‑in‑chief. Counsel for the defendant developed a number of general themes in cross‑examination to the effect that Mr Galipo should not be considered to be an honest and reliable witness. Before dealing with these issues, it is necessary to provide an overview of the medical evidence. Having made general findings as to Mr Galipo's honesty and reliability as a witness, I then make specific factual findings as to his pre‑accident medical condition, the dynamics of the Accident, the timing of the onset of symptoms and his current symptoms. This in turn provides the basis for addressing the issue of causation.
Mr Galipo's evidence-in-chief
Mr Galipo was born in 1973, and was 39 at the date of the Accident, and 42 at the date of trial.
Mr Galipo described the Accident as involving the defendant's car impacting the car he was driving, 'T‑boning' it (ts 6). The front of the defendant's car impacted the passenger side of his car around the point of the front tyre and front door. At the point of impact, Ms Syme was pushed over and hit him on the left‑hand side. He hit the driver's side of the inside of the car, hitting his head and shoulder on the inside pillar and driver's side window. The impact was sufficient to push the car across the double white lines marking the middle of the road and into the path of the oncoming road traffic (ts 7).
After the Accident, Ms Syme required assistance to get out of the car. Mr Galipo lifted her out of the car onto the footpath. Someone called an ambulance. They waited for the ambulance. Ms Syme was then placed into the ambulance and conveyed to Armadale Hospital. Mr Galipo said that his priority at this stage was worrying about Ms Syme's medical condition. After Ms Syme was taken to hospital, he waited for the tow truck and police to attend. A friend then picked him up and took him to Armadale Hospital.
Whilst he was examined at the scene by ambulance officers, Mr Galipo did not seek any medical attention at Armadale Hospital, merely going there to visit Ms Syme.
Mr Galipo gave evidence that he did not really notice any particular symptoms immediately after the Accident (ts 8).
The next day when he woke up he felt stiff and sore in his neck. In his words he 'sucked it up and got on with it' (ts 8).
Mr Galipo gave evidence that he has lived with pain for most of his life. When he was around 3 years of age, he was burnt after setting his pyjamas alight with a cigarette lighter. He suffered third degree burns to 45% of his body. He had a significant amount of medical treatment in relation to these burns, including skin grafts in his late teen years. This has caused him pain all his life (ts 8).
Mr Galipo said that he began to get headaches not long after the Accident. Prior to the Accident he did not get headaches (ts 13) nor did he get pain in his neck (ts 31). He described the symptoms that he began to experience as pain in his neck, pain in the base of his skull and pain to the left side top shoulder going up to the back of his skull, and headaches.
Mr Galipo gave evidence that this pain is exacerbated when he is undertaking physical activity. He said that any sort of work using his arms and shoulders, any manual labour, causes tension, pain and stiffness in his arms and shoulders. This in turn leads to headaches.
Mr Galipo said that he has largely been self‑treating. He said that he had undertaken a number of courses in sports training and injury management. His self‑management included heat treatment and stretching. It also included the use of a handheld ultrasonic device which he brought into court and demonstrated. Mr Galipo described how he would put gel on his neck and shoulders and use the device for three or four minutes. The soundwaves emitted by the device gave him a deep tissue massage.
Mr Galipo saw his usual general practitioner, Dr Forward, a week or so after the Accident. His evidence is that he did not go and see Dr Forward on this occasion because of the headaches. He did mention his headaches to Dr Forward, though he was unsure whether he mentioned it in the context of having a car accident (ts 24).
Mr Galipo had a dozen or so appointments with Dr Forward between the date of the Accident and the date of the trial, which I will return to in considering Dr Forward's records. Mr Galipo said that he did not really discuss his symptoms with Dr Forward. He reiterated that he had learned as a child to suck up the pain and get on with it. He basically went to Dr Forward to get a new script for Suboxone.
Suboxone is a medication given to people who have substance abuse issues. Mr Galipo has been on Suboxone since well prior to the Accident to assist him to address a long‑standing addiction to narcotics (ts 17, 18). He said that Suboxone has a pain numbing effect (ts 18).
Mr Galipo saw Dr Forward on 29 June 2016. On that occasion he had a sore neck and some limitations in movement. Dr Forward prescribed him Panadeine Forte (pain medication) and Mobic (anti‑inflammatory medication). He also prescribed Mr Galipo another script for Suboxone.
When asked about his current symptoms, Mr Galipo described having a sore neck, sore shoulder and mild headache most of the time. In colder weather his muscles get tighter and cause more discomfort. He would get headaches two to three times per week, which require him to take strong painkillers and, in his words, 'zonk out' and lay down (ts 39). Initially he was dealing with the headaches by taking over‑the‑counter Panadeine or Codeine. Since seeing Dr Forward in June 2016, he has been able to take Panadeine Forte. Mr Galipo said that when he gets a headache, he takes a Panadeine Forte tablet, and he then has to have a nap. When he has taken a Panadeine Forte tablet he cannot drive or manage equipment.
Aside from pain medication when he has headaches, he described his current treatment as involving self‑management, including the ultrasound device, having warm showers and laying down.
He described the headaches as slowly getting better (ts 21) and reiterated that he was managing his pain himself.
Aside from the Suboxone, Panadeine Forte and Mobic, the only other medication he had taken regularly was medication to mitigate some of the side effects of the Suboxone.
In cross-examination, he also accepted that he has a long standing viral infection of his liver (ts 63).
Overview of the medical evidence
Mr Galipo's usual general practitioner is Dr Andrew Forward at the Victoria Medical Group in East Victoria Park. Dr Forward was not called to give evidence, but his patient notes were tendered as part of the agreed bundle.
According to Dr Forward's notes, Mr Galipo saw him on 29 May 2013, that is, some four days after the Accident. Dr Forward's notes are in evidence, taken from a computer based system. They provide as follows:
Surgery consultation recorded by Dr Andrew Forward on 29/05/2013
2013-05-29 Dr Andrew Forward
Presenting problem(s):
Prescription(s)
History:
Examination:
Diagnosis:
Plan:
Cialis 20mg Tablets (12, R5) Cialis 20mg Tablets (4,R5)
Cialis is not relevant to the treatment of any of the Claimed Injuries.
Mr Galipo saw Dr Forward on two further occasions in 2013, four occasions in each of 2014, 2015 and 2016 and up until 29 June 2016. Only on the last occasion is there a mention of a motor vehicle accident. The record of this consultation is:
Neck pains which he attributes to a MVA two yrs ago Suboxone 6 mg Mon and Wed, 2 mg Sat 29/6 until 20/9 2 TA a week. Examination very limited ROM.
In a letter to Mr Galipo's lawyers dated 28 May 2014, Dr Forward stated:
Mr Galipo has consulted me on five occasions since your reported date of accident of 25th May 2013. Appointment dates are 29th May 2013, 24th July 2013, 11th October 2013, 18th December 2013 and 14th March 2014.
These appointments were standard consultations with no mention of a motor vehicle accident or injuries which would result in a claim. I therefore have no information relating to an accident on 25th May 2013.
Mr Galipo saw Dr John Rosenthal on 14 May 2014 for a medico‑legal review. Dr Rosenthal is a consultant physician in legal and rehabilitation medicine. He provided a report dated 14 May 2014.
He saw Dr Andrew Fairhurst on 25 July 2014 for a medico‑legal review. Dr Fairhurst is a general practitioner with qualifications to undertake impairment assessments for workers' compensation matters. He provided a report dated 25 July 2014.
Mr Galipo then saw Mr Tony Robinson on 18 July 2016 for a medico‑legal review. Mr Robinson is an orthopaedic and knee surgeon. Mr Robinson organised for Mr Galipo to have X-rays, ultrasound investigations and an MRI scan, and reported on the outcomes of these investigations. He provided a report dated 18 July 2016, as well as two subsequent reports.
I have quoted parts of the reports of Dr Rosenthal and Dr Fairhurst, and Mr Robinson throughout these reasons. Where I do so, I will note the page reference of their reports which I have identified above.
Each of Dr Rosenthal, Dr Fairhurst and Mr Robinson gave evidence. Each was accepted by counsel as being appropriately qualified to provide the expert opinions which are before the court in this case.
Honesty and accuracy of Mr Galipo's evidence generally
Counsel for the defendant developed three general themes in cross‑examination from which I was invited to make an adverse finding as to the honesty and accuracy of Mr Galipo's evidence generally.
The first general theme is that Mr Galipo was not honest with police at the time of the Accident. It is clear from the police accident report completed at the time of the Accident (Police Report) that Mr Galipo told police that the purpose of his travel was 'business' and his occupation was that of a 'transporter' (exhibit 5). Mr Galipo's evidence was that he was unemployed at the time, although on the morning of the Accident he was doing a cash job for a friend unloading a container (ts 56). He confirmed that he had ceased employment with a business by the name of Kangaroo Transport Industries (KTI) a few weeks' beforehand (ts 40).
Aligned to the statements to police is the fact that at the time of the Accident, Mr Galipo was the holder of an extraordinary driver's licence (EDL). The terms of the EDL limited Mr Galipo to driving in the course of his employment as a truck driver with KTI. In cross‑examination, Mr Galipo accepted that on the morning of the Accident he was driving in breach of the terms of his EDL (ts 45). The EDL was subsequently revoked, it appears as a result of Mr Galipo driving in breach of its terms at the time of the Accident.
Also on the theme of Mr Galipo's dealings with the police, he was cross‑examined on his criminal record (exhibit 4). At the commencement of the criminal record there are a number of names recorded as being names that Mr Galipo was 'also known as'. It was put to Mr Galipo that he used those names in dealings with police. Mr Galipo denied this, and stated that the names were of his brother and a friend he was living with at the time of one of the offences with which he was charged (ts 105). Counsel for the defendant sought to adduce evidence from a police officer, Senior Constable Hartill, about the use of aliases on a criminal record. The senior constable had been called to give evidence to tender the Police Report. This document was admissible pursuant to Evidence Act 1906 (WA) s 21 as it contained evidence of prior inconsistent statements which Mr Galipo did not distinctly admit in cross‑examination. I declined to allow counsel for the defendant to adduce evidence more generally about Mr Galipo's criminal record, ruling at the time that this evidence was collateral evidence not falling within an exception to that rule: see generally MJH v The State of Western Australia [2006] WASCA 167; (2006) 33 WAR 9 [43] – [45] (Buss JA); HAR v The State of Western Australia [No 2] [2015] WASCA 249 [129] (Buss JA, with whom Hall J agreed and Mazza JA relevantly agreed).
Perhaps the only vaguely relevant fact to emerge from Mr Galipo's criminal record is that, in the period since the Accident, he has been charged with a series of low level drug related offences. This correlates with Mr Galipo's evidence that throughout this period he was on Suboxone to assist him to address a long standing addiction to narcotics.
The second general theme developed by counsel in cross‑examination was that Mr Galipo was less than honest with Dr Fairhurst, Dr Rosenthal and Mr Robinson about the status of his employment at the time of the Accident. As I have noted, Mr Galipo gave evidence that he left the employment of KTI a few weeks prior to the Accident.
Dr Rosenthal makes a number of observations about Mr Galipo's work situation at the time of the Accident (pages 1, 2, 4):
At the time of the motor vehicle accident Mr Galipo was employed as a Truck Driver with KTI driving a rigid unit delivering palletised freight, mostly airconditioners and related components. At this time he had an extraordinary truck driver's licence which was subject to restrictions.
…
The initial time off work was one week. Mr Galipo then returned to truck driving with the same employer, but one or two months later he lost his job because his extraordinary driving licence was revoked because of a pre‑motor vehicle accident breach of his driving conditions. He remains under suspension and he will not be eligible to drive for a further nine months.
He has not worked in any capacity since being dismissed by KTI.
…
The motor vehicle accident does not prevent him from working at his pre‑accident occupation. He lost his job because his extraordinary driver's licence was revoked for a pre‑accident breach of the conditions attached to the extraordinary licence. The administrative process apparently took some time and as mentioned above, the breach predated the motor vehicle accident.
Mr Galipo told Dr Fairhurst that the Accident occurred when he was 'returning from a delivery in the course of his duties as a courier' (23 July 2014 Report, page 1). Dr Fairhurst went onto say that Mr Galipo 'reported that without a vehicle he was unable to continue in his role as a casual delivery driver and he subsequently lost his job' (page 2) and that he reports having 'lost his casual employment as a consequence of his accident' (page 4).
Mr Galipo told Mr Robinson that at the time of the Accident he was 'heading home from the work depot'. Mr Robinson then recorded the following (page 3):
At the time of the accident Mr Galipo was working as a truck driver delivering airconditioning systems in the metropolitan area.
The patient did not have any time off work following his injury in May 2013.
Unfortunately two weeks after the accident Mr Galipo lost his job as he did not have a vehicle to get to the truck depot at Welshpool.
Mr Galipo has not worked for the last three years following his injury.
The patient has not applied for any jobs because of his injury and lack of transport.
Mr Galipo's explanation for what he told the doctors was that he was confused for some time as to when he finished work in relation to the date of the Accident (ts 53).
I accept that Mr Galipo was less than honest with police at the time of the Accident. This was, no doubt, due to the fact that he was driving in breach of the conditions of his EDL. I am not persuaded that Mr Galipo was less than honest with the doctors who provided medico-legal reports. It is equally plausible that he was confused as to timing. In this regard I note that Mr Galipo does not make any claim for past loss of income or future loss of earning capacity.
The third general theme was that there was an inconsistency between what Mr Galipo told Dr Rosenthal and Dr Fairhurst about his attitude to medical treatment, and what his medical records reveal.
Dr Rosenthal recorded that 'Mr Galipo states that he has kept away from doctors because of his earlier history involving multiple operations and hospitalisations' (page 3).
Dr Fairhurst recorded (page 2):
He reports that he has become increasingly depressed as a consequence of his injury. He has reportedly undertaken no further treatment for his neck injury, reporting: 'I tend to steer clear of doctors and only attend if I'm really dying'. He reports extensive medical involvement from early childhood following substantial burns as a child requiring significant skin grafting and this has caused a severe aversion to the medical fraternity.
According to Dr Forward's records he had the following number of consultations in the 10 years preceding the date of trial:
Year Number of visits 2006 7 2007 7 2008 4 2009 1 2010 2 2011 1 2012 3 2013 3 2014 4 2015 4 2016 (to 30 June) 4
Mr Galipo said that most of his visits to doctors were to get new scripts, in particular for Suboxone.
I do not consider that there is any real inconsistency between what Mr Galipo told Dr Rosenthal and Dr Fairhurst about his attitude to the medical profession, and his visits to Dr Forward. Certainly, I do not consider that there is an inconsistency which would cause me to have concerns about Mr Galipo's honesty and reliability as a witness. Mr Galipo's evidence as to his approach to the medical profession was consistent with what he told the reviewing medical practitioners. His childhood and teenage experiences in dealing with his extensive burns, and the ongoing pain from the scarring left by the burns meant that his approach to pain was to just 'suck it up' and get on with life. From watching and listening to him give evidence, in the context of the totality of the evidence before me, I have the clear impression that Mr Galipo is one of those people who has a stoic personality, with a high threshold to pain before he would seek intervention. His clear preference is to self‑manage his pain. Further, his evidence is that he obtains some pain relief from the Suboxone. His evidence as to his approach to dealing with pain was not challenged in cross‑examination, and nor was it the subject of any contrary medical evidence.
It was directly put to Mr Galipo that at times he had been less than honest with doctors in what he had told them. His reply was 'No, I've been totally honest, apart from the confusion about ceasing employment' (ts 111).
There are some specific issues going to the accuracy of Mr Galipo's evidence which I address in further detail below. However, I am not persuaded that the material identified by counsel for the defendant leads to the conclusion that Mr Galipo was not honest and/or accurate in the entirety of his evidence before me.
This is for three reasons.
First, my impression of Mr Galipo was that he gave evidence in a restrained and understated manner. Mr Galipo made an appropriate concession in cross-examination that he was driving in breach of the conditions of his EDL. He did not appear to me to embellish or exaggerate his symptoms or their impact on his lifestyle. In saying that, I am conscious of the need to limit my reliance on the appearances of witnesses as a basis for drawing conclusions about their truthfulness and reliability, and 'to reason to [my] conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events': Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [31] (Gleeson CJ, Gummow & Kirby JJ).
Second, the objectively established facts do not cast doubt on the honesty or reliability of Mr Galipo's evidence as a whole. For example, the documentary evidence does not reveal that Mr Galipo has sought excessive amounts of medical treatment for his symptoms; to the contrary, as noted, he has an aversion to seeing medical practitioners. Nor is there any other contrary objective evidence, for example, surveillance footage.
Third, Mr Galipo's evidence as to his symptoms, the core issue in the trial, is not materially inconsistent with his statements to Dr Rosenthal, Dr Fairhurst and Mr Robinson. Nor is there a recurring pattern of Mr Galipo exaggerating his symptoms to these medical practitioners. I will come back to this later in these reasons.
Factual findings – Mr Galipo's pre-accident medical condition and lifestyle
On the evidence before me, I find that Mr Galipo had three pre‑accident medical conditions.
The first is the extensive scarring on his body, including the neck region, from the serious burns he suffered as a child. Mr Galipo's evidence was that this has caused him pain all his life, meaning that it was a source of pain both prior to, and after, the Accident.
The second is that, as I have mentioned, Mr Galipo has a long standing addiction to narcotics. He was receiving treatment for this addiction before and after the Accident.
The third is that as at the date of the Accident he had a viral infection of his liver. He continues to suffer from this condition.
Mr Galipo's evidence is that prior to the Accident he did not suffer from headaches or neck pain. He first started taking Panadeine or Codeine not too long after the Accident. This evidence was not challenged in cross-examination. I accept Mr Galipo's evidence and find that, prior to the Accident, he did not suffer from headaches or neck pain.
The three medical conditions set out above ([68] ‑ [70]) did not prevent Mr Galipo from being employed prior to the Accident; the evidence is to the effect that Mr Galipo was more or less continually employed until shortly prior to the Accident. Nor did the three medical conditions prevent Mr Galipo from enjoying an active lifestyle prior to the Accident or undertaking a full range of normal household duties (points which I will come back to later in these reasons).
Factual findings – the dynamics of the Accident
In summary terms, Mr Galipo's evidence is that:
(a)the Accident involved the defendant's car 'T-boning' his car on the passenger side around the point of the front tyre and front door;
(b)at the point of impact, Ms Syme was pushed over and hit him on the left‑hand side;
(c)the impact caused him to smash into the side of the car, hitting his head and shoulder on the inside pillar and driver's side window; and
(d)the impact was of sufficient force to push his car across to the other side of the road.
Mr Galipo was not cross-examined to the effect that the Accident did not occur as he described. Ms Syme's evidence, in her trial, was consistent with that of Mr Galipo. There are no material inconsistencies between Mr Galipo's evidence and the descriptions he gave to Dr Rosenthal, Dr Fairhurst and Mr Robinson.
I make factual findings in terms of Mr Galipo's evidence as set out in [73].
Factual findings – onset of symptoms
Mr Galipo's evidence is that:
(a)he did not really notice any particular symptoms immediately after the Accident;
(b)the next day when he woke up, he felt stiff and sore in his neck;
(c)the symptoms he began to experience were headaches, pain in his neck, pain in the base of his skull and pain to the left side top shoulder going up to the back of his skull.
As I have noted, in examination-in-chief, Mr Galipo's evidence was that he went to see Dr Forward a week or so after the Accident for another issue. He mentioned that he was having headaches, but did not mention a car accident.
It is clear from Dr Forward's records that Mr Galipo saw him on 29 May 2013. I have set out above the record, or lack thereof, for this appointment ([35]). I have also set out the substance of a report by Dr Forward ([38]).
In cross-examination, counsel for the defendant developed the theme that Mr Galipo did not in fact tell Dr Forward that he was suffering neck pain and headaches at the 29 May 2013 appointment. Reference was made to what Mr Galipo told Dr Rosenthal, Dr Fairhurst and Mr Robinson.
In relation to post‑accident symptoms, Dr Rosenthal states the following (page 2):
Mr Galipo then saw Dr Forward in Victoria Park. Dr Forward is his regular General Practitioner. He first attended a few weeks post‑accident when he apparently had an upper respiratory tract infection, however, motor vehicle accident related neck pain and stiffness was mentioned.
There was no specific treatment. There may have been one further consultation with Dr Forward, but otherwise there has not been any ongoing treatment or further medical attendances.
As to the 29 May 2013 appointment with Dr Forward, Dr Fairhurst's report contains the following (page 2):
He recalled attending his GP approximately two weeks later for an unrelated minor illness. He recalled mentioning neck stiffness to his doctor, though did not recall receiving specific treatment.
Mr Galipo reported to Mr Robinson that the day following the Accident he noticed stiffness in his neck. Mr Robinson wrote (page 2):
The stiffness became painful necessitating a visit to Mr Galipo's general practitioner two weeks after the accident.
After clinical assessment the patient was given meditation.
The patient carried out his own neck exercises as he had previously undergone a certificate in this area
Dr Forward appears to have recorded the reason for the 29 May 2015 attendance as being 'prescription'. As set out above [35], his notes are scant. He was not called to give evidence to explain his recording practices or give evidence from an independent recollection. In these circumstances, I cannot place any weight on the fact that he did not record the fact that Mr Galipo had headaches or neck pain, or that, if there was neck pain, that it was caused from a car accident; as Dr Rosenthal observed, Mr Galipo may have mentioned it and it was simply not recorded by Dr Forward (ts 180). Specifically, I do not regard the absence of any record in Dr Forward's notes as constituting a prior inconsistent statement by Mr Galipo to the effect that he was not suffering neck pain and headaches at the time.
Mr Galipo did not make any statement to Dr Rosenthal, Dr Fairhurst or Mr Robinson about the onset of his symptoms which is materially inconsistent with his evidence as to the onset of his symptoms. Mr Galipo's evidence as to the symptoms he experienced in the days following the Accident was not specifically challenged in cross‑examination.
For these reasons, I make factual findings in terms of Mr Galipo's evidence set out at [76].
Factual findings – current symptoms
Mr Galipo's evidence as to his symptoms and limitations, since the Accident and to the date on which he gave evidence, is as follows:
(a)he has a sore neck, sore shoulder and mild headache most of the time;
(b)in colder weather his muscles get tighter and cause more discomfort;
(c)he deals with his pain largely through self-treatment, including the use of heat packs, warm showers, stretching, ultrasonic deep tissue massage and laying down;
(d)for most of the period since the Accident he used over-the-counter pain medication, though since June 2016 he has been using prescribed pain medication and anti‑inflammatory medication;
(e)the pain is exacerbated when undertaking physical activity, in particular, any sort of work using his arms and shoulders and any manual labour causes tension, pain and stiffness in his arms and shoulders, leading to headaches;
(f)he gets headaches several times a week;
(g)when he gets a headache he has to take pain medication and take a nap, in particular he is currently using Panadeine Forte;
(h)the Suboxone he takes for his addiction to narcotics also has a pain numbing effect; and
(i)the headaches are slowly getting better.
Mr Galipo gave detailed descriptions of his symptoms to Dr Rosenthal, Dr Fairhurst and Mr Robinson.
Mr Galipo reported to Dr Rosenthal that, as at the date of the review in May 2014, he took Panadeine occasionally, but that there was no requirement for regular medication. Dr Rosenthal recorded the following (page 3):
He describes intermittent low grade posteria neck pain and restriction of neck movement which he says is partially due to scarring involving the lower anterior neck structures. He is prone to headaches which begin as posterior cervical tensing and they sometimes become frontal and retro‑orbital.
Mr Galipo states that he has kept away from doctors because of his earlier history involving multiple operations and hospitalisations.
He denies being depressed, though his mood appears flat.
He is exercising but far less vigorously than prior to the motor vehicle accident.
He does not have any tinnitus, vertigo or visual change. He says his headaches occur twice a week on average. There are no upper limb radicular type complaints.
In relation to the last sentence, when giving evidence, Dr Rosenthal explained that the reference to there being 'no upper limb radicular type complaints' meant that there was no complaint of tingling in the upper limbs (ts 183).
Immediately prior to his appointment with Dr Rosenthal, Mr Galipo had filled in a document entitled 'location of your pain' in which he annotated the diagram where he was experiencing pain. On an outline of a head from the back, Mr Galipo shaded in the neck region. On an outline of a body from the back, he shaded in the neck and region under the neck, between the shoulder blades, but not extending out to the shoulder blades. He also marked that on a scale between 1, no pain, and 10, worst imaginable pain, his then current pain level was a 7.
Dr Rosenthal clinically examined Mr Galipo and reported (page 3):
There is extensive scarring with contractures involving his upper body and the lower part of the anterior neck region. His cervical posture is slightly forward, his trapezii feel tense and tender. There is moderate restriction of neck movement in all planes.
In examination‑in‑chief, Dr Rosenthal referred to his original handwritten notes to inform the court that he had also conducted a clinical examination of Mr Galipo's shoulders, and that, at that stage Mr Galipo had a full range of normal movement.
Mr Galipo's appointment with Dr Fairhurst was just over two months after his appointment with Dr Rosenthal. Dr Fairhurst records (page 2):
[Mr Galipo] reports that he has become increasingly depressed as a consequence of his injury. He has reportedly undertaken no further treatment for his neck injury, reporting: 'I tend to steer clear of doctors and only attend if I'm really dying'. He reports extensive medical involvement from early childhood following substantial burns as a child requiring significant skin grafting and this has caused a severe aversion to the medical fraternity.
Under the heading 'Current Status', Dr Fairhurst recorded the following (pages 2, 3):
He reports intermittent cramping neck pain which requires Panadeine and Codeine combinations which he purchases over the counter. He reports having 'good and bad days'. He reports that lying down tends to improve his symptoms. He reports that becoming less active has resulted in worsening of his neck pain. He denies any radiation into the arms.
He reports headaches in an occipital and retro‑orbital distribution occurring every few days and lasting up to twelve hours. He reportedly takes over the counter analgesia to combat these headaches.
…
He takes over the counter Panadol and Codeine combination medication, 2 tablets, twice daily when he is having a 'bad day'.
He reports being keen to avoid analgesia. He reports that his mother died of liver cancer and this has left him concerned about the side effects of medication.
On clinical examination, Dr Fairhurst found that there was no abnormal lordosis (curvature) in the cervical spine. There was accentuated thoracic kyphosis (forward flexion). There was reported tenderness to palpation along the left paraspinal area (that is the left side of the neck). There was restriction in the extension (upwards) and rotation (sidewards) of the neck. Flexion (downwards movement) and lateral flexion (side to side movement) were considered normal.
Mr Galipo's appointment with Mr Robinson was some two years later in July 2016. He presented to Mr Robinson complaining of constant pain over the left and right sides of his neck. The constant pain increased with flexion and extension (especially the latter), rotation to either side (especially to the left) and holding his head in one position for a period of time. Mr Galipo cited an example of watching television for 10 ‑ 15 minutes.
Mr Robinson recorded that the neck pain is associated with the following (page 2):
1.Headaches. These are situated at the back of the head and radiate to the left temporal region. The headaches occur on a daily basis especially in the cold weather. The headaches are treated with medication and last for approximately 1 hour.
2.Pins and Needles. This occurs over the radial aspect of both hands. The numbness is intermittent. It does not wake the patient up at night.
3.Radiation to both shoulders, more so the left shoulder than the right shoulder.
Mr Galipo reported to Mr Robinson that he was then taking three Panadeine Forte tablets a day.
On clinical examination, Mr Robinson noted that Mr Galipo had signs of major burns. He noted that this had occurred when Mr Galipo was a child and involved 45% of his body. Mr Robinson opined that 'I donot think the burns have any relationship with the patient's present pains' (page 4).
On examination of Mr Galipo's cervical spine, Mr Robinson found no evidence of any muscle spasm. He noted tenderness in the left and right proximal para‑cervical regions, that is the upper neck region on both sides of the neck. He found that, with regard to range of movement, Mr Galipo could flex the cervical spine until the chin came to two fingers breadth from the chest wall. Extension was 5 degrees which Mr Robinson described in evidence as being very limited as a lot of people are able to extend to 40 degrees. Rotation was 10 degrees to the left and 10 degrees to the right. In evidence in court, Mr Robinson said that usually people could rotate 60 degrees to either side. Lateral flexion was 5 degrees on both sides. Again in evidence Mr Robinson said that usually people could laterally flex to 40 degrees each side.
In terms of range of movement of Mr Galipo's shoulders, Mr Robinson found that, for both shoulders, elevation was 110 degrees and abduction was 90 degrees. The normal range for elevation and abduction is 180 degrees. External rotation was 70 degrees, against a norm of 90 degrees. Internal rotation was 30 degrees, against a norm of 80 – 90 degrees.
Mr Robinson's clinical examination of Mr Galipo's hands found that there was no evidence of any wasting of the intrinsic muscles in the hands. There was a positive 'Phalens' test on the left side. Mr Robinson explained when giving evidence that this indicated that there were pins and needles in Mr Galipo's left hand (ts 164).
Mr Robinson's diagnoses were (page 4):
1.Soft tissue inflammation of the cervical spine probably in the region of the facet joints at the midlevel.
2.Greater occipital nerve neuralgia on the left side.
3.Impingement of both shoulders.
4.Early carpal tunnel syndrome on the left side.
In evidence in court, Mr Robinson said that soft tissue inflammation of the cervical spine could be described as a whiplash‑style injury (ts 170). Neuralgia referred to nerve pain (ts 170).
Counsel for the defendant put to Mr Galipo in cross-examination that he exaggerated his headache symptoms to doctors, to which he replied that that was incorrect (ts 111). This position was developed in some detail in the written closing submissions filed on behalf of the defendant.
I do not consider that there is a factual basis for the conclusion that Mr Galipo exaggerated his headache symptoms. This is for five reasons.
First, there is a close measure of consistency between Mr Galipo's evidence and what he reported to Dr Rosenthal, Dr Fairhurst and Mr Robinson. Importantly, there are no materially inconsistent statements recorded in their reports. To the extent that there are divergences in emphasis and detail, this is readily explicable by the sort of day Mr Galipo was having with his symptoms (whether it was a 'good day or a bad day' as he told Dr Fairhurst) and the recording styles of each medical practitioner.
Second, there are no statements in any of the other documentary evidence before me that are materially inconsistent with Mr Galipo's evidence. I reiterate that I do not consider the absence of a mention of any neck symptoms in Dr Forward's notes of the consultation on 29 May 2013 to be a statement.
Third, there is no other evidence to the effect that Mr Galipo was exaggerating his symptoms. For example, there is no video surveillance evidence of him undertaking car repairs or home renovations.
Fourth, Mr Galipo's evidence is inherently plausible, does not suffer from internal inconsistencies and fits with the 'apparent logic of events': Fox v Percy [31].
Fifth, as I have ready observed, Mr Galipo gave evidence in a restrained and understated manner. He did not seek to exaggerate his symptoms. He volunteered that fact that his headaches were slowly getting better, albeit over a long period of time (ts 21).
For these reasons, I make factual findings in terms of Mr Galipo's evidence set out at [86].
Causation – relevant law
The issue of what, if any, of the impairments to Mr Galipo's physical or mental condition were caused by the Accident is to be determined under the Civil Liability Act 2002 (WA) (CLA): CLA s 3, s5A. The same goes for the economic loss he claims: CLA s 3, s5A. As the plaintiff, Mr Galipo bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: CLA s5D.
The issue of causation required the court to consider two elements. The first is whether 'the fault was a necessary condition of the occurrence of the harm': CLA s 5C(1)(a). The second is whether it 'is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused': CLA s 5C(1)(b). This second element is not in issue in the present case; the defendant did not suggest that it was not appropriate for the scope of his liability to extend to the harm found to have been caused applying the first element.
As to the first element, a 'necessary condition is a condition that must be present for the occurrence of the harm': Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 [20] (French CJ, Gummow, Crennan & Bell JJ). As such, the term 'necessary condition' imports the 'but for' test; but for the negligent act or omission, would the harm have occurred?: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [45] (judgment of the court); Strong [18]. Even if a fault cannot be established as a necessary condition of the occurrence of harm, in an 'appropriate case' the fault may nonetheless be sufficient to establish factual causation: CLA s 5C(2). However, on the facts of the present case, it is not necessary for me to consider this additional limb.
The defendant asserts that Mr Galipo's current impairments were not caused by his negligence, but were rather a continuation of pre-existing impairments. At common law, this issue would be resolved in accordance with the principles set out by Barwick CJ, Kitto & Taylor JJ in Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, 168:
We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.
This passage was most recently cited with approval by the Court of Appeal in Van der Velde v Halloran [2011] WASCA 252 [138] (judgment of the court).
The question then arises as to how to deal with this issue of pre‑existing impairments where causation is to be determined under the CLA. On the facts of a particular case, there may be more than one set of conditions necessary for the occurrence of particular harm. In this situation, it is sufficient that the defendant's conduct contributes to the occurrence of the harm in the sense that it is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm: Strong [20]. In some cases, although the relative contribution of two or more factors to the particular harm cannot be determined, it may be that each factor was part of a set of conditions necessary to the occurrence of that harm: Strong [27].
In the present case, for the defendant to succeed in its argument that he is not liable for the harm (personal injury and economic loss), experienced by Mr Galipo since the Accident, the evidence as a whole would need to be sufficient to satisfy the court that Mr Galipo has failed to prove, on the balance of probabilities, that his harm was caused by the Accident as defined in CLA s 5C.
Causation - neck pain and headaches
It is instructive to analyse causation based on the four areas of diagnosis by Mr Robinson, being:
(a)soft tissue inflammation of the cervical spine;
(b)greater occipital nerve neuralgia on the left side;
(c)impingement of both shoulders; and
(d)early carpal tunnel syndrome on the left side.
The first two relate to the head and neck, and can be considered together.
In terms of the shoulder impingement, I need to draw a distinction between the shoulder region below and adjacent to the neck - essentially the area of the trapezius muscle - and the shoulder joints themselves. The former needs to be considered with the head and neck symptoms. The latter requires separate consideration.
Mr Robinson was of the opinion that the carpal tunnel syndrome was not caused by the Accident (ts 170). As there is no contrary evidence, I do not need to consider this injury any further.
It is convenient to start with Mr Robinson's opinion, as he has had the opportunity to examine Mr Galipo in closest proximity to the trial.
Mr Robinson noted that Mr Galipo did not have any prior problems with his neck, shoulders or hands. In his report, Mr Robinson stated that Mr Galipo's injuries are related to the Accident. In evidence-in-chief, he confirmed that this included the soft tissue inflammation of the cervical spine and the occipital nerve neuralgia (ts 171).
Mr Robinson arranged for Mr Galipo to undergo an X-ray and an MRI of his cervical spine.
Mr Robinson reported on the results of the MRI, done on 26 July 2016, as a post script to his report dated 18 July 2016. He noted that there were degenerative discs at C4/C5 and L5/L6 and that there may be some left‑sided C7 entrapment. He reiterated his recommendation that Mr Galipo should be referred to a pain specialist for blocks especially in regard to the C7 nerve root, this being the lowest vertebrae in the cervical spine.
Mr Robinson provided a further report dated 12 September 2016 to Mr Galipo's lawyers. He reported that, on viewing X‑rays of the cervical spine which occurred on 5 September 2016, he noted that there was a narrowing at the C5/C6 intervertebral space. In giving evidence, Mr Robinson said that these results confirmed his opinion that there was soft tissue inflammation of the cervical spine and possible nerve damage in the cervical spine (ts 171).
Dr Fairhurst also proceeded on the basis that Mr Galipo had no prior neck or back injury (page 3). His diagnosis was 'whiplash associated disorder affecting the cervical spine' together with depressive symptoms (page 4). Dr Fairhurst does not expressly say in his report that the whiplash associated disorder was caused by the Accident, though this is the clear inference from his report (ts 82, 84).
Dr Rosenthal's record of what Mr Galipo said about his prior symptoms is (page 2):
Mr Galipo specifically denied any pre‑accident neck or other orthopaedic complaints though he did acknowledge some restriction of neck and shoulder girdle function by reason of upper body scar tissue with contractures …
Prior to the motor vehicle accident, he said he was exercising regularly with running, weight training and gym work.
Dr Rosenthal continues (page 3):
He describes intermittent low grade posterior neck pain and restriction of neck movement which he says is partially due to scarring involving the lower anterior neck structures. He is prone to headaches which began as posterior cervical tensing and they sometimes become frontal and retro‑orbital.
As to his opinion, Dr Rosenthal stated (page 3):
This motor vehicle accident had the potential to cause a cervical strain injury, and subject to Dr Forward confirming that he had neck symptoms in close time proximity to the motor vehicle accident, I would suggest this is the appropriate description of his injury.
When giving evidence, Dr Rosenthal said that the term 'cervical strain injury' is his preferred term for what others may describe as whiplash associated disorder (ts 193). He also gave evidence that the reason he wanted confirmation from Dr Forward was that he wanted some form of objective confirmation as to the onset of the pain being experienced by Mr Galipo before he would be prepared to give an opinion on causation. In examination‑in‑chief, Dr Rosenthal was asked whether if he knew that Mr Galipo had not presented to Dr Forward confirming that he had neck symptoms in close time proximity to the motor vehicle accident, it would have changed his opinion. Dr Rosenthal replied that it would not have, it merely left the issue in the air (ts 179).
In his report, in answer to a question as to his opinion as to whether the complaints and symptoms were directly caused by the motor vehicle crash, Dr Rosenthal opined that it is possible that Mr Galipo has 'residual neck symptoms due to the motor vehicle accident' (page 3). Dr Rosenthal continued (page 4):
You will appreciate it is difficult to provide an accurate medicolegal opinion in circumstances where there is no supporting medical documentation available, and moreover, there has been a very prolonged period of non‑medical attendances and no treatment.
On clinical examination, Dr Rosenthal did not find any inconsistencies between his objective examination and the description of the symptoms provided by Mr Galipo.
In addition to their clinical examinations, there appears to be three facts on which each of the three medical practitioners base their opinions as to causation. The first is that Mr Galipo did not have any prior neck problems or issues with headaches. I have found this as a fact (see [71]).
The second is Mr Galipo's description of the Accident, in particular that it was a 'T-bone' collision. The facts I have found as to how the Accident occurred are consistent with the information recorded by the three doctors, and used as the basis of their opinions (see [73]).
The third is when the neck symptoms first emerged. As I have noted, all three medical practitioners make reference to the appointment with Dr Forward shortly after the Accident at which point Mr Galipo said he mentioned neck pain and stiffness. I have found as a fact that:
(a)Mr Galipo did not really notice any particular symptoms immediately after the Accident;
(b)the next day he felt stiff and sore in his neck; and
(c)the symptoms he began to experience were headaches, pain in his neck, pain in the base of his skull and pain to the left side top shoulder going up to the back of his skull.
These facts provide a stronger factual basis for the medical opinions than the fact that Mr Galipo mentioned neck pain and stiffness to Dr Forward at an appointment shortly after the Accident.
These facts also provide the confirmation sought by Dr Rosenthal that Mr Galipo 'had neck symptoms in close time proximity to the motor vehicle accident' (page 3).
In cross‑examination, Mr Robinson said that the usual pattern of symptoms for soft tissue inflammation of the cervical spine was to feel nothing in the next few hours, due to adrenaline, to then notice some stiffness, then within a day, to have pain (ts 162). Mr Galipo's symptoms mirrored this description.
The end result is that there is unanimity among the three medical practitioners that the soft tissue inflammation of the cervical spine, to use Mr Robinson's description, was the result of the Accident, and that the neck pain and headaches are the sequelae of this injury. As to the greater occipital nerve neuralgia, neither Dr Fairhurst nor Dr Rosenthal addressed this issue either in their reports or in evidence. I am left with Mr Robinson's unchallenged evidence that greater occipital nerve neuralgia was the result of the Accident. I accept this evidence. The medical evidence is thus to the effect the Accident was a necessary condition of the occurrence of the soft tissue inflammation of the cervical spine and greater occipital nerve neuralgia, and that the neck pain and headaches are the sequelae of these injuries.
Counsel for the defendant developed the theme in examination in chief of Dr Rosenthal and cross-examination of Dr Fairhurst and Mr Robinson that Mr Galipo had failed to disclose to them two pieces of significant medical information, which non-disclosure was material to their opinions.
The first piece of information was the fact that Mr Galipo had a pre‑existing viral infection of his liver. Mr Galipo accepted that he did not tell any of the doctors of this condition, explaining that he did not think that it was relevant to the issues he was seeing the doctors for (ts 63). Neither Dr Rosenthal (ts 182), nor Mr Robinson (ts 160), thought this information was material to their opinion; Dr Fairhurst was not asked about it.
The second piece of information was the fact that Mr Galipo has a long standing addiction to narcotics, for which he was taking Suboxone. Mr Galipo thought that he would have told the doctors this information. However, I accept that each doctor would have made a note of this information had it been provided, and the fact that there is no note, leads me to find that he did not do so.
In examination‑in‑chief, Dr Rosenthal confirmed that he was not made aware that, at the time of the review, Mr Galipo had an opiate addiction, and had taken methylamphetamine, heroin and marijuana. He also confirmed that he was not aware that Mr Galipo was then being treated using Suboxone. When asked what he would have done differently had he known this information, he said that he was not sure that he would have done anything (ts 181). He stated that he was aware of medical literature to the effect that people with substance abuse issues can be unreliable historians. However, he noted that Mr Galipo did not dramatise or embellish his accounting of his symptoms, rather, on the contrary, reporting low grade symptoms of an intermittent nature (ts 181 ‑ 82). Dr Rosenthal was not familiar with the side effects of Suboxone (ts 181). He said that he was 'not the right person to ask' about the side effects of Suboxone (which he referred to by its generic drug name, buprenorphine) (ts 181).
Dr Fairhurst also confirmed, in cross-examination, that Mr Galipo had not told him during the appointment that he had an ongoing substance abuse issue, requiring the prescription of Suboxone. Dr Fairhurst, on examination of Mr Galipo, had reported: 'He was noticeably withdrawn with flat affect presenting his history in monotone' (page 3). Dr Fairhurst accepted that it was possible that this presentation was due to the influence of opiates, but said that had Mr Galipo been affected by opiates, he would have expected to see other symptoms, for example, drowsiness. Dr Fairhurst also accepted in cross‑examination that the headaches described by Mr Galipo could have been caused as a side effect of taking other drugs (ts 83, 84). Counsel for the defendant put to Dr Fairhurst that, had he known that Mr Galipo was on opiates, in particular Suboxone, at the time of the examination, then it would have changed his clinical diagnosis. Dr Fairhurst said that this information did not affect his diagnosis of whiplash associated disorder (ts 84).
Mr Robinson confirmed in cross‑examination that Mr Galipo had not told him that he was taking Suboxone. He was asked whether this would have required him to undertake further investigations to which he replied 'not really'. He was not familiar with the side effects of Suboxone (ts 160). Mr Robinson said that even if there had been some headaches as a side effect from the Suboxone, the headaches complained of were more likely to have been coming from the neck (ts 161).
Within this framework, the amount of damages must be fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pullin & Miller JJA agreed); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (judgment of the Court). The amount must be proportionate to the situation of the particular plaintiff: Houlahan [107]; Winiarczyk [71].
Mr Galipo's evidence
I have set out above my findings above [175] as to the injuries and ongoing symptoms caused by the Accident.
Mr Galipo gave evidence as to the wider impact of the injuries and symptoms on his life following the Accident. Prior to the Accident he used to enjoy engaging in physical exercise, running, horse riding with his daughter walking the dog and playing football with his children (ts 9). Mr Galipo's pre‑Accident medical conditions did not preclude him from engaging in these activities. Since the Accident he has been unable to engage in these activities as they exacerbate his symptoms.
Prior to the Accident, Mr Galipo coached Auskick. This involved a once-a-week commitment during the winter months. Subsequent to the Accident, he has not been able to coach Auskick due to his injuries and symptoms. In particular, this activity requires him to be out on the field, running around and bending over, which exacerbates his symptoms.
Prior to the Accident, Mr Galipo used to go fishing regularly, something he enjoyed. He no longer goes fishing, notwithstanding frequent invitations from a friend. This activity requires him to stand for long periods of time and undertake physical actions like casting a fishing rod, activities which exacerbate his symptoms.
Prior to the Accident, Mr Galipo used to enjoy doing mechanical work on his car and cars belonging to his friends. He has had to cease this activity because of his injuries and symptoms. In particular, he finds it uncomfortable lying on his back underneath a car working with his arms over his head.
Mr Galipo gave evidence that even sedentary activities like watching TV cause him pain. He described how his TV is on a slight angle to his seat, and after watching it for 10 to 15 minutes he has a sore neck.
Brody Galipo's evidence
Brody Galipo also gave evidence about the activities which he undertook with his father before and after the Accident. Brody gave evidence that prior to the Accident his father coached Auskick for his younger brother's team, and played football with his sons whenever the weather was good. A couple of times a week, his father used to put motorbikes belonging to Brody and his brother on a trailer and drive to the bush where they could all ride the motorbikes. He also took his children to horse riding venues. Brody stated that he and his father went fishing usually once a fortnight. His father's participation in these activities ceased after the Accident. When asked why Mr Galipo did not undertake these activities after the Accident, Brody stated that it was because of his father's neck pain (ts 124).
It was not put to Brody in cross-examination that his evidence about the activities he did with his father before and after the Accident was inaccurate, overstated or a lie. I accept Brody's evidence as being both truthful and accurate.
Medical evidence
Mr Galipo's evidence on this issue is generally consistent with what he reported to Dr Rosenthal (page 3), Dr Fairhurst (page 2) and Mr Robinson (page 3). There are some omissions in the range of activities he described, but no material inconsistent statements.
It appeared to Dr Rosenthal that Mr Galipo was 'capable of maintaining his normal day to day activities' (page 4).
Dr Fairhurst simply notes the effect of Mr Galipo's injuries on his sporting activities (page 6).
Mr Robinson was not asked to provide a specific opinion to the effect that the restrictions in recreational activities he identified in his report (page 3) were caused by Accident related injuries. However, he does conclude that Mr Galipo's injuries and disabilities that he documented are related to his Accident (page 5).
For the reasons I have set out above, to the extent that there is any inconsistency between the opinion of Dr Rosenthal and that of Mr Robinson, I prefer the latter.
Factual findings
The evidence of Mr Galipo set out in the paragraphs ([247] ‑ [251]) was not challenged in cross-examination. It is consistent with Brody's evidence. There are no material inconsistent statements recorded in the medical reports. Accordingly, I accept the evidence from Mr Galipo set out in [247] ‑ [251] as being both truthful and accurate.
For the reasons set out above, I make the following factual findings:
(a)prior to the Accident Mr Galipo engaged in a number of outdoor recreational activities including playing football with his family, coaching Auskick, running, walking his dog, fishing, horse riding and riding motor bikes;
(b)prior to the Accident, Mr Galipo used to perform mechanical work on his car and cars belonging to his friends;
(c)Mr Galipo's three pre-Accident medical conditions (set out at [68] – [70]) did not prevent him from enjoying the activities in (a) and (b) prior to the Accident;
(d)since the Accident, Mr Galipo no longer performs the activities in (a) and (b); and
(e)the reason Mr Galipo is no longer able to perform the activities in (a) and (b) is because of his Accident related injuries.
Assessment
Given the ongoing pain being experienced by Mr Galipo, and the loss of enjoyment of life set out in the preceding paragraph, in my view his non-pecuniary loss is appropriately assessed at 9% of a most extreme case. This equates to an amount of $16,040, calculated as follows:
9% x $406,000 = $36,540, less $20,500.
I am of the opinion that an amount of $16,040, within the statutory framework of the MVTPI Act, is fair and reasonable compensation for the injuries received by Mr Galipo and the disabilities caused, having regard to current general ideas of fairness and moderation. In coming to this conclusion, I have taken into account the positive prognosis offered by Mr Robinson, and the fact that I have assessed Mr Galipo to be entitled to the future medical treatment suggested by Mr Robinson which underpins his positive prognosis.
What quantum of damages is Mr Galipo entitled to?
For the reasons set out above, I assess the damages to which Mr Galipo is entitled at $45,519, as follows:
Past special damages $ 750
Future medical treatment $15,018
Past gratuitous services $12,014
Future gratuitous services $ 1,697
Non-pecuniary loss $16,040
Total$45,519
The amount is to be reduced by 25%, being the agreed proportion for contributory negligence.
I therefore award Mr Galipo damages in the amount of $34,139.25. He is also entitled to an indemnity for any outstanding Accident related Medicare claims.
I will hear from counsel as to costs.
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