GAROFFOLO v Pash
[2001] WADC 296
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GAROFFOLO -v- PASH [2001] WADC 296
CORAM: GROVES DCJ
HEARD: 29 AND 30 JANUARY 2001
DELIVERED : 20 DECEMBER 2001
FILE NO/S: CIV 4248 of 1999
BETWEEN: DAVID ORLANDO GAROFFOLO
Plaintiff
AND
JANELLA PASH
Defendant
Catchwords:
Damages - Assessment - Personal injuries - Rear end collision - Soft tissue injury to cervical and dorsal (mid thoracic) spine - 24 year old cabinetmaker
Legislation:
Motor Vehicle (Third Party) Insurance Act 1943, s 3C
Result:
Damages assessed at $76,574.30
Representation:
Counsel:
Plaintiff: Mr D R Clyne
Defendant: Mr J G Staude
Solicitors:
Plaintiff: Simon Walters
Defendant: John G Staude
Case(s) referred to in judgment(s):
Andjelic v Marsland (1996) 70 ALJR 435
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Nil
GROVES DCJ: The plaintiff claims damages from the defendant for injuries suffered in a motor vehicle accident on 20 May 1998. Liability is admitted and the matter proceeded by way of an assessment of damages.
The motor vehicle accident
On 20 May 1998 the plaintiff was driving his motor vehicle on Joondalup Drive at Joondalup. His vehicle was stationary at traffic lights at an intersection when he saw through his rear-vision mirror a car quickly approaching him from behind. He turned around to his left and observed the vehicle pass about 10 stationary cars in the lane next to him and collide into the rear of his vehicle. He alighted from his vehicle and observed minor damage to the rear of his vehicle, his towbar was bent and hooked into the front of the defendant's vehicle. When the two vehicles were disentangled the plaintiff was able to drive away. He was not aware as to the cost of repairs to his vehicle.
The plaintiff described being shaken by the accident but he did not feel any pain at the time. Approximately four to five hours later he felt some stiffness in the lower back, which crept up into the area of his neck. Over the following week his condition got progressively worse and on 3 June 1998 he consulted Dr Eva Cronstedt at the Belridge Medical Group complaining of back and neck ache with the pain increasing in the two days prior to his attendance. Dr Cronstedt prescribed analgesia and referred the plaintiff for physiotherapy. The symptoms persisted with pain in the neck and upper back worsening and the analgesia providing only temporary relief. Dr Cronstedt referred the plaintiff to Pain Management Specialist, Dr Geoffrey Gee, who saw him on 1 July 1998. He recommended continuing physiotherapy treatment.
The plaintiff's history
The plaintiff was born on 9 February 1976. At the date of the accident he was 22 years. He completed his secondary education at Prindeville Catholic College at the end of 1991 and left school at age 15 years. He then undertook a one year pre-apprentice course at a TAFE College. He then undertook a four year apprenticeship as a cabinetmaker with Focus Shopfitters Pty Ltd. When he completed his apprenticeship he was laid off by his employer but left on good terms being told that he would be welcome back in the future after he had obtained more experience. His work as a cabinetmaker had involved the manufacturer of office furniture including desks and chairs, shop and banking counters, and industrial shop fitting. The work involved the lifting, moving and fitting of heavy furniture items. He was then employed by Visy Board for approximately three months mainly installing whiteboards. He then went to Davro Foster Furniture Manufacturers Pty Ltd where he worked for approximately six months. In a change of direction he was next employed by McPBB Pty Ltd for three months which involved cold canvassing, selling etc. On 10 November 1997 he commenced employment with Framex Furniture Manufacturers as a wood machinist. His work there involved lifting and carrying timber including large sheets of chipboard of approximately 3.6 metres by 600 mm onto a bench saw and manoeuvring the timber and cutting out frames for lounge suites. Although he was not trained as a wood machinist he felt that he managed the work quite well. He was not involved in putting the frames together.
Approximately one week before his accident he and two or three other employees were asked to take leave, as there had been a downturn in work. The motor vehicle accident occurred whilst he was on leave. When he presented for work on the following Monday he was retrenched. The fact that he was retrenched was unrelated to the consequences of the accident in which he had been involved. To that stage he had not been to the doctor and it was a few days later that he first attended on Dr Cronstedt. Dr Cronstedt considered him to be unfit for work and certified him for DSS Sickness Allowance Benefits. At that stage he was mainly concerned with pain in the area between the shoulder blades and up into the neck. He attended Dr Cronstedt and the physiotherapist regularly over the next few months. Whilst he got some relief from the physiotherapy and analgesia he described his symptoms over this period as being up and down but always tightness and pain in his shoulder blades and pain in the neck. He was tried on a number of different types of anti-inflammatories but these did not always agree with him. It was his belief that he would get better within a relatively short period of time so he did not immediately seek employment. In about September 1998 he commenced to look for work through the Commonwealth Rehabilitation Service (CRS). He was offered a couple of job interviews through CRS. In about June 1999 he had an interview at Forward Tools who were seeking a storeman/sales representative. The job required the applicant to have a forklift driver's ticket and CRS organised for him to undertake a three day course to obtain that qualification. He successfully completed the training however, in the interim, Forward Tools had employed someone else. He also had an interview with Doors Plus who were seeking a storeman/showroom consultant however he was not successful in getting that job.
From about February 1999 the plaintiff on his own initiative sought employment in areas where he thought he could manage although he felt that his back was still not right. He applied for sales manager jobs with Bunnings and BBC Hardware, with QA Cabinets as a foreman but they wanted someone more experienced and with Silvestri Cabinets but they employed someone else. Approximately three or four months after the accident, he was offered employment with I D & F L Thompson Cabinets which he did not take up because he felt that his back condition was such, that he would not be able to cope with the demands of the job and he did not want to disappoint the employer. He was told that the job offer would stand for whenever he felt that he could return to work. However since that time the business has folded and the job opportunity is not there any more.
Through a friend he obtained temporary work as a filing clerk with the City of Nedlands from 13 September to 28 November 1999. He apparently had no difficulty working in that capacity. Since 18 April 2000 he has had part-time employment with Santa Lucia Pizza. The work is mainly delivery of pizzas, food preparation and cooking of pizzas. The work is part-time for five hours on Thursday and Friday evenings and sometimes Saturday evenings. He works 10 - 15 hours per week at $10 per hour. At one stage he did try to work a full week but after about the fourth day he experienced pain in the back as a result of being bent over for long periods of time at a chopping board. Driving a motor vehicle for deliveries causes no difficulty for him. The plaintiff indicated that he hoped to get back into cabinet‑making and one day to perhaps own his own business. It was his evidence that he feels that he is not yet fully fit and hence has not sought employment in this trade. He would not wish to start with an employer and then find that he was not able to do the job and thereby let the employer down and burn his bridges for future employment with that employer.
Whilst with CRS he considered vocational training by way of a bridging course to qualify him as a teacher in cabinet‑making. That would involve one year at TAFE at a cost of $400. At the time the plaintiff could not afford that expense. His receipt of sickness benefits finished when he commenced employment with the City of Nedlands. When that temporary job finished he then received the Newstart Allowance until he commenced with Santa Lucia Pizza. The plaintiff continued with physiotherapy on a regular, although reducing basis, through to 15 March 1999 at which time the Insurance Commission refused to pay for further physiotherapy and because he could not afford it he did not continue with it after that date.
Prior to the accident the plaintiff's recreational interests included golf, pistol shooting, fishing and jogging. He has tried to get back to golf but found discomfort in the twisting movement involved. Although he has tried he has not got back into competing in pistol shooting. He found that he was not able to hold a gun at shoulder level and as it is not a static activity but involves moving around he found that he was not able to manage that. He has gone into a management role at his pistol club and is the Saturday Captain. He used to go fishing two or three times a month but has only been once since the accident and that was only for a couple of hours. After that he had a pain in the back and could hardly walk the next day.
Until approximately two and a half months before trial the plaintiff had lived at home with his parents. He and his girlfriend of some eight years now live together. She is in full-time employment. His activities now when he is not working at the pizza bar involve helping with some housework although he is not able to do heavy work, going to the gym at least once per week, walking two or three kilometres three or four times per week and swimming at a pool a couple of times per week. In recent months he has lost considerable weight. Prior to the accident his weight was approximately 92 kilograms but he put on 15 -20 kilograms after the accident. He has got his weight down to 84 kilograms. It is apparent that the exercise regime and maintaining a careful diet as he now does has been of benefit to him.
For about the last six months he has been attending an osteopath, Mr Unglo, at Canning Bridge. He has found that he has greatly benefited from this treatment and has attended regularly. He will continue to attend at four to six weekly intervals. He feels that with continuing treatment and by maintaining his fitness regime he would be able seek employment in the near future.
He last saw Dr Cronstedt in October 1999. Not since then has he been taking any prescribed medication as he felt it was not helping him in his recovery. His only medication now is occasional painkillers.
The plaintiff was involved in two prior motor vehicle accidents the first in 1993 in which he sustained no injury and the second in 1996 when he suffered bruising to the ribs and soft tissue injuries. He fully recovered from those injuries shortly after the accident.
In 1999/2000 the plaintiff undertook some cabinet work at home. He made a television unit for his sister and a laundry cupboard for his mother. In doing that he experienced pain in the mid shoulders/lower back area in lifting and manoeuvring timber. In cross-examination he said "I know that at the moment my back won't allow me to do that heavy lifting" in reference to lifting large pieces of timber/chipboard, loading cabinets for transport etc.
Medical Evidence
Dr Eva Cronstedt is a general practitioner at Belridge Medical Group. The plaintiff first saw her on 3 June 1998 when she prescribed analgesia and referred him for intensive physiotherapy. His physiotherapy attendances in 1998 were 17 June, 13 July, 8 August, 10 September, 9 October, 5 November and 2 December. In 1999 he attended on 2 January, 2 February and 1 March. In a report of 14 October 1998 to Dr Cronstedt the physiotherapist suggested implementation of a self-management regime for the plaintiff. Dr Cronstedt prescribed high dose pain relief medication (Naproxen 1000 mg per day). She last prescribed pain relief medication on 23 March 1999. The plaintiff's last attendance on Dr Cronstedt was on 19 October 1999.
Geoffrey Gee is a consultant in pain management to whom Dr Cronstedt referred the plaintiff whom he saw on 1 July 1998 (six weeks after the accident) Dr Gee's report to Dr Cronstedt of the same date reports the plaintiff's history as outlined to him, his observations on clinical examination and his prognosis. He noted:
"… some muscle tenderness in the trapezes and rhomboides. There was no evidence of tenderness over his occipital nerves. His neck range revealed good flexion, but diminished extension. Rotational movement was fine. There was no abnormalities in his shoulders."
His report concluded:
"After reviewing his x-rays I believe that his injury process is predominantly soft tissue. I believe that the recent response to physiotherapy is very encouraging. I have encouraged him to look at increasing his general activity. At this stage I would like him to stay with the physiotherapy for a further two weeks."
Dr Gee saw the plaintiff again on 8 January 1999 when he noted that "he seems to have settled in terms of cervical and lumber pain, but is still troubled by mid dorsal pain which radiates to the right." He noted the range of movement as excellent. A CT scan appeared normal and the plaintiff was referred for a bone scan. On review on 21 January 1999 following the bone scan Dr Gee reported that the bone scan "does not show any metabolically active areas to suggest any reasons for his symptoms." It was Dr Gee's belief:
"… that the most appropriate pathway is for him to get stuck into a realistic exercise program and get on with life."
Dr Gee reviewed the plaintiff again on 13 May 1999 and his report states:
"On examination he seems to be fit. His posture seems quite good. His cervical muscles do not demonstrate any tenderness. He has no occipital nerve sensitivity. His range of movement appears quite good. I noted some tenderness in the para-spinal muscles at the level of about T5/6. He has an extremely good range of spinal movement.
His shoulders demonstrate a good range of movement and there does not appear to be any aggravation to his pain with the use of his upper limb. His power and reflexes in the upper limbs appear normal. Sensory testing throughout the spine appeared normal.
Mr Garoffolo has had an extensive range of investigations and I note the most recent CT scan does not demonstrate any changes in his cervical region. I am really unable to help you in terms of a clear diagnosis for his pain, which does seem out of context with the absence of pathological changes in radiological investigations or bone scans."
At the time of that consultation Dr Gee believed that the plaintiff had the capacity to start exploring his work options. It was by then 12 months since the accident. It was his evidence that with a 30 kilogram limit on weight lifting, by sensible straight back lifting and with assistance he could have commenced back at work. He reviewed the plaintiff again on 29 November 2000. His report to solicitors does not record any specific restrictions. He noted the plaintiff's injuries were of a moderate severity from which he was then recovered. It was his evidence that at that time he did not consider that the plaintiff's work capacity as a cabinetmaker was restricted.
Peter Silbert is a Neurologist who reviewed the plaintiff on 9 June 1999 and 6 December 2000. Dr Silbert's reports of 10 June 1999, 6 December and 11 December 2000 were received by consent but with the qualification on the defendant's part that the opinion that the plaintiff was not fit for work as a cabinetmaker at that stage was not accepted for the reason that such opinion was based purely on the subjective nature of the plaintiff's complaints. This issue was canvassed with Professor Harper and is dealt with later in these reasons. Dr Silbert's report of 10 June 1999 noted that there was no significant cause for the plaintiff's symptomatology, the symptoms were primarily muscular which would improve with the passage of time. He prescribed Amitriptyline. At the most recent review Dr Silbert noted in his report of 6 December 2000 a gradual improvement since his first review and noted some tenderness over the interscapular region. He considered that the plaintiff's capacity to return to full‑time cabinet‑making "… should return over the next few months." The plaintiff would need to be careful with heavy lifting as he was "physically de-conditioned." The plaintiff would need to build up his muscle strength in general before returning to cabinet work. He considered that, as the plaintiff's symptoms improved "… over the next three to six months, his competitiveness in the workforce should not be compromised."
Professor Andrew Craig Harper is an Occupational Physician to whom the plaintiff was referred by his solicitors. Prof Harper saw the plaintiff on 16 November 1999, 7 February 2000, 20 June 2000 and 18 December 2000. At the time of the first consultation Prof Harper was of opinion that the plaintiff was incapacitated for work as a cabinetmaker but was capable of clerical work with restrictions. The plaintiff was at that time working at the City of Nedlands. He described the initial injury as being mild to moderate in severity with a mild to moderate residual disability of the thoracic spine. He expected the plaintiff to be ultimately capable of returning to work as a cabinetmaker but was unable to predict the length of time recovery would take. As at the last consultation Prof Harper's prognosis remained the same. Although the plaintiff's condition was said to be improving he still considered that the plaintiff was incapacitated to work as a cabinetmaker and expressed the view that it may be a further one to two years before he is capable of working as such. Whilst the plaintiff was capable of full-time restricted work he was concerned that heavier manual activities may aggravate the symptoms and compromise the plaintiff's endurance of physical work.
In cross-examination Prof Harper acknowledged that the plaintiff's problem had been one of slow recovery and that there were no significant physical signs to show for the injury. Prof Harper would not concede, however, that that was to say that there was nothing wrong with the plaintiff. Rather he considered the plaintiff's problem to be one of intolerance of the postures and the repetitive tasks of cabinet‑making. Prof Harper was pressed as to the basis upon which he formed his opinion as to the plaintiff's fitness for work. Essentially it was put to him that his opinion was based on the plaintiff reporting that he did not feel ready to resume employment as a cabinetmaker. Prof Harper strongly refuted that proposition. He went into some detail as to the enquiries which he undertook to form a basis upon which he could express an opinion as to the plaintiff's capability to undertake cabinet‑making work. He acknowledged that so far as the plaintiff's earning capacity as a cabinetmaker is concerned it came down to an assessment of his tolerance to be able to do the work. His opinion was based upon his appreciation of what the plaintiff's tolerance for the job was and he acknowledged that that assessment was very subjective. It was put to Prof Harper that he could not exclude from his assessment the possibility that the plaintiff was simply complaining of symptoms out of self‑interest. Whilst he could not exclude that, Prof Harper was adamant that he had not seen any indication over the time that he had seen the plaintiff, that being on four occasions, which would suggest that to be the case. To the contrary, the plaintiff had given a history which had been consistent and Prof Harper had no reason to doubt at all the plaintiff's own observations about his tolerances. Prof Harper did not consider that the plaintiff had exaggerated at all. Unlike Dr Saunders, Prof Harper had not observed any exaggeration or inconsistencies or non‑physical factors contributing to the disability or any disability conviction.
John Milton Saunders practices in rehabilitation medicine and the plaintiff was referred to him by the defendant's insurer. He saw the plaintiff on 12 January 1999, 20 April 1999 and 5 January 2000. Consistently in his reports and in his evidence Dr Saunders whilst acknowledging that the plaintiff had suffered a soft tissue injury to his neck and back as a result of the motor vehicle accident expressed very strongly the view that the plaintiff's symptoms appeared to be exaggerated by psychosocial factors. His basis for saying that was that there were no clinical signs or symptoms to indicate a permanent disability although the plaintiff complained of pain and stated that he was concerned that he could not get back to work and that his injuries may have been more serious. He expressed the view that the plaintiff's failure to return to work was more likely to be associated with psychosocial factors than the actual injuries. It was his impression that the plaintiff tended to exaggerate his symptoms. It was his opinion that the discomfort and suffering should have been temporary, six to eight weeks, followed by a rapid return to work. It was his view that modern management of this type of injury was to have the person work through the pain as part of the process of getting back to work. He could see no reason save for the plaintiff having an abnormal injury disability conviction, why he could not return to his occupation of cabinetmaker. Nevertheless he acknowledged in cross-examination that he was not saying that the plaintiff did not have pain, although he was dismissive of such indication because it was a subjective assessment.
General damages
The plaintiff is entitled to general damages for the accident itself and for the consequent pain, inconvenience and other matters generally referred to as the loss of amenities.
The award of damages for loss of enjoyment of life and amenities generally requires a consideration of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act"). Section 3C(2) and (3) provide:
"(2)The amount of damages to be awarded for non-pecuniary loss is to be a proportion determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded.
(3)The maximum amount of damages that may be awarded for non-pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case."
The maximum amount of damages that may be awarded for non‑pecuniary loss as from 1 July 2001 is set at a figure of $232,000 (Amount "A").
The Act also provides a threshold and if damages were assessed at less than the threshold then no damages are to be awarded for non-pecuniary loss. The threshold at the date of trial was $11,500. If the damages awarded for non-pecuniary loss is less than $35,000 then the threshold is deducted from the amount so assessed. If the damages are assessed at $46,500 or more then there is no deduction. Between $35,000 and $46,500 there is a sliding scale.
Similar legislation is in force in New South Wales by s 79(2) and s 79(3) of the Motor Accidents Act 1988 (NSW). The manner in which a court should proceed under the latter Act was considered by the New South Wales Court of Appeal in Southgate v Waterford (1990) 21 NSWLR 427. The effect of s 79 of the New South Wales Act was also referred to by the High Court of Australia in Andjelic v Marsland (1996) 70 ALJR 435.
In Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 the Court adopted the same approach to the Act as the New South Wales Court of Appeal did to the Motor Accidents Act 1988 (NSW).
In Southgate v Waterford (supra) at 440 the Court said:
"There are a number of ways by which trial judges should approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly, because the task in hand is that of awarding damages for 'non-economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relative to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'."
Further at 441 the Court said:
"The only criterion for the apportionment prescribed is the comparison of the severity of the non-economic loss, as disclosed by the evidence, suffered by the injured person in the case before the judge and that suffered in 'a most extreme case'. The statutory maximum may only be awarded in the latter case. The judge must then assign the case as found somewhere along the resulting scale."
And further:
"At least in the first instance, the determination of the 'proportion' is committed by law to the trial judge. He or she has the outside parameters which are fixed by the legislation. The task of determining the 'proportion' which follows may not be scientific or normative; but it is not wholly at large. A wide measure of discretion has always existed in fixing damages for non-economic loss. All that this legislation does is to require that the damages under this head be fixed in harmony with the fact that Parliament has determined that a maximum will be laid down, varied from time to time and reserved for 'a most extreme case'."
The plaintiff was 22 years of age at the date of the accident and at trial was 25 years. Pre‑accident he was in good physical condition. He presented as an intelligent and motivated young man who has treated his recovery in a responsible manner. He has presented with a consistent history to the doctors and has been completely open with them as to what he can and cannot do. I find him to be a completely credible person and not one who has malingered. He consistently has expressed his determination to get back to his pre‑accident employment. He is resourceful in that he has gone out seeking employment within his capacity. There has been a gradual improvement in his symptoms although recovery has been slow. I find that as a consequence of the accident he sustained soft tissue injury which was productive of diffuse pain from his low back through the thoracic and cervical regions with associated aching, tension and headaches. His treatment has been conservative with intensive physiotherapy and prescribed analgesics. Physiotherapy continued through to March 1999 (9 months post‑accident) and he did gain some relief with this treatment. He ultimately found that the analgesics were not helping him but were upsetting his system and he took himself off the medication by October 1999 (17 months post‑accident). Since the accident he has not been able to enjoy the recreational activities such as golf, shooting and fishing as he was previously able to do. He has tried to undertake these activities but they have been productive of pain mainly in the area of the shoulder blades. Whilst the earlier symptoms settled within the first 12 months after the accident I am satisfied that he continues to experience pain from time to time. I find that the initial injuries were mild to moderate in severity and such residual disability of the thoracicolumbar spine (mid dorsal) is of a minor nature and which will continue to improve with the passage of time. I do not accept that the plaintiff has exaggerated his symptoms or that he has demonstrated an abnormal injury disability conviction. His various accounts to medical practitioners and his evidence to Court have been consistent. By his conduct he has demonstrated that he is a reasonable and responsible young man. In the circumstances of this case I assess the appropriate percentage of the most extreme case at 15 per cent. This percentage of the maximum amount that may be awarded of $232,000 equates to $34,800. The provisions of s 3C require that amount to be reduced by $11,500 which results in a figure of $23,300. I award the plaintiff general damages in the sum of $23,300.
Past economic loss
At the time of the accident the plaintiff was on leave from his job as a wood machinist. Upon return to work after the accident he was immediately retrenched. That was not related to his accident injuries. His work supervisor at that time gave evidence that whilst the plaintiff was a very good worker who tried his best he was not what he wanted at that time. The plaintiff had lost his job because of a lack of experience and because he had made some mistakes.
As a consequence of his injuries the plaintiff was certified unfit for any work and received DSS sickness allowance benefits. By May/June 1999 (12 months post‑accident) the plaintiff's condition was reviewed with the following assessments. Dr Gee believed that the plaintiff had the capacity to start exploring his work options with a weight lifting restriction and with assistance. Dr Silbert noted diffuse tenderness over the cervical and trapezius musculature but otherwise full range of movement of the cervical, thoracic and lumbar spine. The symptoms were described as primarily muscular and it was his opinion "they will improve with the passage of time …". It was Dr Saunders' opinion that the plaintiff should only have had discomfort for six to eight weeks followed by a rapid return to work. Dr Saunders' opinion was that he would have expected a full and complete recovery within 12 months. Through the CRS from about September 1998 the plaintiff did what was appropriate so far as getting back into the workforce was concerned within the scope of his limitations as he felt them to be. He explored the options, he went to job interviews to which he was referred by CRS but without success and he also sought employment himself in work akin to his trade but which avoided the heavy lifting associated with that trade. In all of that he was not successful. The work which the plaintiff has undertaken since his accident at the City of Nedlands and with Santa Lucia Pizza he has managed without any or with very little difficulty. However he has not attempted to get back into work in his trade as a cabinetmaker although in his evidence he expressed the intention to do so "when he feels that he will be able to do" the work.
In November 1999 (18 months post‑accident) the plaintiff was first seen by Prof Harper. It was his opinion that the plaintiff was incapacitated for his pre‑accident job as a cabinetmaker but was capable of clerical work or working as a shop assistant with restrictions. He expected the plaintiff to be ultimately capable of returning to work as a cabinetmaker but the duration of his recovery may well be protracted.
In November/December 2000 (30 months post‑accident) it was Dr Gee's opinion that the plaintiff's symptoms had settled considerably since his last examination (in May 1999). It was his opinion that the plaintiff had the capacity to undertake his then current employment working in a pizza bar and he believed that his future work capacity would not be restricted. He considered the plaintiff had fully recovered but with a history of injury he may have some restriction in competing in the open workforce. Dr Silbert noted the plaintiff's main residual symptom related to interscapular discomfort which was present most days. He expressed the opinion that the plaintiff's capacity to return to full‑time cabinetmaking should gradually improve over the next few months but that he "would need to be careful with heavy lifting as he was physically deconditioned". "As his symptoms improve over the next 3 – 6 months his competitiveness in the workforce should not be compromised". Prof Harper's opinion was that the plaintiff's condition was improving but that he was still incapacitated from working as a cabinetmaker. "It may be a further 1 to 2 years before he is capable of working as a cabinetmaker" as heavier manual activities may aggravate his symptoms.
In drawing a line through the medical evidence I reject the two extremes, namely Dr Saunders' assertion that a full and complete recovery would have been made within 12 months and Prof Harper's opinion that it may be another 1 to 2 years beyond December 2000 until the plaintiff is fit to resume his pre‑accident employment. I found Dr Saunders' conclusions to be unreasoned and lacking support. On the other hand Prof Harper leans the other way and beyond even the plaintiff's own assessment as to his prognosis. At trial it was the plaintiff's evidence that over the previous six months he had benefited greatly by the treatment which he was receiving from the osteopath, that physically he had benefited by going on to a fitness regime involving jogging, walking and swimming and gymnasium work and that he was maintaining a healthy diet regime. As to when he felt he may be able to go back to cabinetmaking it was his evidence that "well, I've been sort of, like, pushing myself fairly hard at the gym and the pool and that lately and trying to get back to it as soon as possible". Furthermore the plaintiff is motivated to resume that occupation as it was his evidence that one day he hoped to have his own cabinetmaking business. I find that the plaintiff's evidence as to his state of well‑being at trial to be consistent with the balance of the medical evidence. Both Dr Gee and Dr Silbert believed that he was fit to look at a full return to his pre‑accident work albeit that Dr Silbert's view was qualified as previously stated. I conclude therefore that up to the date of trial the plaintiff was incapacitated by reason of his accident related injuries from a full return to work in his pre‑accident occupation.
The plaintiff is therefore entitled to damages for past economic loss and interest on past economic loss as follows.
Prior to the accident the plaintiff earned $451.20 gross or $363.53 net per week. Due to his accident injuries the plaintiff was unable to seek employment from 1 June 1998 to 13 September 1999 a period of 67 weeks = $24,356.51.
During the period 13 September 1999 to 28 November 1999 the plaintiff earned $469.93 gross or $315.49 net per week. The plaintiff is entitled to the difference of $48.04 net per week ($363.53 less $315.49) for 11 weeks = $528.44.
The plaintiff did not work again until 14 March 2000 and is entitled to $363.53 net per week from 28 November 1999 to 14 March 2000 a period of 15 weeks = $5,452.95.
From 14 March 2000 the plaintiff earned an average of $100 per week and is entitled to the difference of $263.53 ($363.53 less $100) from 14 March 2000 to 29 January 2001 a period of 46 weeks = $12,122.38.
It is the fact that when the plaintiff returned to work following the accident he was retrenched. This was unrelated to the fact of the motor accident. Some allowance must be made for the fact that he may have remained unemployed for a period of time following his retrenchment. Such a negative contingency will be modest because on the plaintiff's evidence he had a good work history and he has since had job offers. One must also take into account negative contingencies such as a possible down turn in the industry and subsequent unemployment or illness unrelated to the plaintiff's current incapacity.
To reflect these contingencies I consider that there should be a 15 per cent discount applied to the past economic loss.
Total past economic loss $42,460.28
Less 15 per cent $ 6,369.04
Total $36,091.24
Interest at 3 per cent per annum for 2 years 8 months = $2,887.30.
Loss of future earning capacity
As indicated by the above reasoning I am satisfied that as at the date of trial the plaintiff was fit to resume his pre‑accident occupation but with the qualification for the future that with a history of injury he may have sustained a reduction in the perimeter of his employment and may therefore be prejudiced when competing for employment on the open labour market. Weighted against such an award was the comment by Dr Silbert that "as the plaintiff's symptoms improve over the next 3 – 6 months his competitiveness in the workforce should not be compromised". Such an award can only be by way of a global amount.
A reasonable allowance under this head of damages would be $10,000.
Special damages
Special damages have been agreed between the parties in the sum of $38.00 and I allow this amount.
Future medical treatment
The plaintiff for the six months prior to trial found treatment from an osteopath to be of benefit and proposed continuing this treatment. Dr Silbert indicated that 12 treatment sessions over the following 12 months would be appropriate as would continuation of the plaintiff's active exercise program involving walking, swimming and general exercising. The plaintiff has apparently not consulted his general practitioner since October 1999 and has not indicated that any future medical treatment will be necessary. Nevertheless I conclude that it would be reasonable to allow continued attendance on an osteopath every four weeks for one year at $40 per visit and to allow a modest amount for entry to swimming pool and gymnasium. The sum of $600 will be allowed.
Loss of superannuation
For loss of superannuation entitlements I allow 7 per cent of the gross past economic loss from 1 June 1998 to 30 June 2000 and 8 per cent thereafter to 29 January 2001. I calculate those amounts as follows:
A.1.6.98 to 30.6.00
108 weeks x $451.20 gross pw = $48,729.60
Less actual earnings
13.9.99 to 28.11.99
11 weeks x $469.93 = $5,169.23
14.3.00 to 30.6.00
16 weeks x $100 = $1,600.00
$6,769.23$ 6,769.23
$41,960.37
7% of $41,960.37 = $2,937.23
B.1.7.00 to 29.1.01
30 weeks x $451.20 $13,536.00
Less actual earnings
30 weeks x $100 pw $ 3,000.00
$10,536.00
8% of $10,536.00 = $842.88
For the total period the loss if $3,780.11 ($2,937.23 + $842.88) from which I deduct 30 per cent for fund management expenses and taxation to give an amount of $2,646.08. Interest on that sum at 3 per cent per annum is $211.68.
That makes a total of $2,857.76 for past loss of superannuation.
I will also allow without deduction, 8 per cent on the global sum of $10,000 for future economic loss. I calculate this to be $800.
Accordingly an allowance of $3,657.76 for loss of superannuation will be allowed.
Summary
For the foregoing reasons I assess damages as follows:
General damages $23,300.00
Past economic loss $36,091.24
Interest on past economic loss $ 2,887.30
Future economic loss $10,000.00
Loss of superannuation benefits $ 3,657.76
Future medical expenses $ 600.00
Special damages $ 38.00
Total$76,574.30
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