Gesmundo v Bates
[2011] WADC 35
•9 MARCH 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GESMUNDO -v- BATES [2011] WADC 35
CORAM: STAVRIANOU DCJ
HEARD: 24 FEBRUARY 2011
DELIVERED : 9 MARCH 2011
FILE NO/S: CIV 1320 of 2010
BETWEEN: ROBERT GESMUNDO
Plaintiff
AND
HAYLEY MICHELLE BATES
Defendant
Catchwords:
Damages - Assessment - Personal injuries - Soft tissue injury - 72-year-old - Extent of loss of earning capacity - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 s 3C
Result:
Judgment for the plaintiff in the sum of $4,488
Representation:
Counsel:
Plaintiff: Mr E J Myers
Defendant: Mr C C Rimmer
Solicitors:
Plaintiff: Simon Walters
Defendant: Jackson McDonald
Case(s) referred to in judgment(s):
Den Hoedt & Anor v Barwick [2006] WASCA 196
Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 197 CLR 138
Purkess v Crittenden (1965) 114 CLR 164
Southgate v Waterford (1990) 21 NSWLR 427
Watts v Rake (1960) 108 CLR 158
STAVRIANOU DCJ:
Introduction
In this action the plaintiff, Robert Gesmundo, claims damages for injuries suffered by him in a motor vehicle accident on 17 April 2009.
The defendant admits negligence, denies any injury or entitlement to damages, and pleads that any loss, injury or damage is caused by or contributed to by a motor vehicle accident on 25 April 2005 and/or Mr Gesmundo's pre‑existing cervical and/or lumbar degeneration.
Circumstances of the accident
On the day of the accident Mr Gesmundo was the driver of a motor vehicle which was stationary in Thomas Street, West Perth when it was struck from the rear by another motor vehicle driven by the defendant. Mr Gesmundo's vehicle sustained scratches and minor damage.
Mr Gesmundo's evidence was that as soon as the collision occurred he felt a burning pain at the nape of his neck. He also had pain in his lower back. He did not immediately seek medical advice because he felt that 'it may sort of fade out on its own'.
Twelve days after the accident, Mr Gesmundo attended upon Dr Gary Spurge, a general practitioner who prescribed painkillers.
Mr Gesmundo's personal circumstances and evidence
Mr Gesmundo is aged 72 years, having been born on 1 June 1938. At the date of accident he operated a recruitment agency and worked as a marriage and funeral celebrant.
Mr Gesmundo's evidence was that as a result of the accident he experiences neck pain, headaches, low back pain and pain in the right leg. The headaches are constant. The low back pain is constant and increases with exercise. Any sharp movements, turns, lifting or being seated for long periods results in increased pain.
It was Mr Gesmundo's evidence that in the three months after the accident he continued with his usual work.
During 2009 Mr Gesmundo saw Dr Spurge on four occasions for accident related injuries. In 2010 he saw him on 26 February and 22 July.
Mr Gesmundo's evidence was that the effects of the accident have impacted upon each of the three vocations he currently pursues. First, in acting as a recruitment agent he experiences headaches, neck pain and low back pain all of which affect his ability to carry out his duties. He described the difference between his pre and post‑accident capacity as being worse because of difficulty in lifting and concentrating for long periods. Secondly, as a marriage and funeral celebrant he is restricted in relation to his activities as a celebrant. Thirdly, Mr Gesmundo in his evidence described that he had recently made a submission to a television station to obtain funding for production of a television programme and possible air time. It was his evidence that he believed he would struggle with the work required as a programme producer.
It was Mr Gesmundo's evidence that his sleep pattern has been affected by the accident. He has problems lifting his grandchildren and playing with them. He gave evidence that since the accident he is always 'cranky, irritable and tends to snap a lot because of the – the tension'.
In cross‑examination Mr Gesmundo said that the complaints and symptoms in relation to the 2009 accident and the 2005 accident were the same. However he did emphasise that the 2009 symptoms were more severe.
Other accidents
Mr Gesmundo's evidence was that he has been involved in accidents on 19 December 1988, 30 May 1993, 8 June 1998 and 25 April 2005. In each accident his neck and lower back were injured when a motor vehicle collided with the rear of his vehicle.
By the date of the April 2005 accident Mr Gesmundo was effectively fully recovered from the injuries sustained in the earlier accidents. The 2005 accident was severe and his motor vehicle was badly damaged. The injuries sustained in 2005 were not without significance.
Mr Gesmundo was 67 when the 2005 accident occurred. At the time he was operating a cafe with his wife. He sold the café because the injuries sustained in the 2005 accident compromised his ability to operate the business. The symptoms resulting from the accident were described by Mr Gesmundo as being 'pretty uncomfortable'. He was restricted to supervisory work. Mr Gesmundo gave evidence that he had an inability to concentrate and perform at 100%. He considered the predominate cause of that inability were the headaches and neck pain.
Dr Spurge treated Mr Gesmundo for the injuries sustained in the 2005 accident. He wrote reports dated 26 March 2006 and 26 November 2006. In the latter report Dr Spurge noted that there was no possibility of Mr Gesmundo being able to obtain employment. He also noted that Mr Gesmundo had residual disabilities that manifest in the form of pain and loss of ability to concentrate. The symptoms of headaches, neck and shoulder pain and low back pain precluded Mr Gesmundo from engaging in physically demanding occupations.
Mr Gesmundo was reviewed by Mr Richard Vaughan, neurosurgeon. In his report of 17 April 2007 he opined that Mr Gesmundo had suffered a significant straining injury affecting both the cervical and lumbar segments 'aggravating what was, to that time, degeneration but apparently non‑symptomatic at the time of the crash'. He considered the injuries were of moderate severity and that Mr Gesmundo was restricted in relation to undertaking work involving activity and for long periods of driving. His view was that Mr Gesmundo's work capacity was compromised for the future and would remain so.
Mr Gesmundo's evidence was that by about 2008 the effects of the 2005 injuries had disappeared. Prior to the 2009 accident he was not taking any medication for injuries sustained in the 2005 accident. His evidence was that he had very little neck stiffness and 'close to nothing' in the lower back. He agreed in cross‑examination that he suffered the occasional headache. He gave evidence he could perform all normal household and employment duties.
The medical evidence
Medical evidence was adduced by the tender of reports on behalf of each party.
Dr Spurge wrote a report dated 15 August 2010. He recorded complaints by Mr Gesmundo of neck pain, headaches, lower back pain radiating to the right leg and loss of concentration. A radiological report noted multilevel spondylosis and degenerative changes. Dr Spurge opined that 'the new disabilities in the presence of significant, albeit asymptomatic pre‑existing spondylopathy is such that Mr Gesmundo will be forced to exit the workforce earlier than intended'. In his view Mr Gesmundo was limited in his work capacity and there was no prospect of his work capacity improving. He considered that Mr Gesmundo was restricted in his ability to work as a recruitment consultant and celebrant and classified his injuries as being of mild severity.
Mr Gesmundo's solicitor referred him to an occupational physician, Dr Andrew Harper, who wrote a report dated 22 April 2010 having seen him the previous day. He told Dr Harper that he was working 35 to 40 hours per week as a recruitment consultant and television producer. Dr Harper considered Mr Gesmundo had sustained a mild strain injury to the cervical and lumbar spine superimposed upon pre‑existing degeneration in both areas. He opined that the residual disability from the accident was mild.
Dr Harper next reported on 21 January 2011. He noted that Mr Gesmundo was experiencing aggravation in neck pain, headaches and low back pain from computer work and lifting and carrying. Neck pain had worsened since April 2010. Headaches were unchanged and were aggravated by physical work. Low back pain required Mr Gesmundo to change position frequently and there was reduced concentration.
Dr Harper opined that Mr Gesmundo's work capacity was reduced to some degree. However whilst physical activity was reduced, work hours were not restricted. He was able to continue his pre‑accident work as a celebrant, recruitment consultant and television producer. He considered the effects upon Mr Gesmundo's work capacity may remain for 'a further two years and possibly longer'.
In his reports Dr Harper did not express a view as to whether the degenerative changes he identified were in any way causative of Mr Gesmundo's condition. Similarly he expressed no view as to the effects of the 2005 accident.
The defendant's solicitors referred Mr Gesmundo to an orthopaedic surgeon, Mr P Bath, who saw him on 30 March 2010 and issued a report of that same date. Mr Bath noted a prior history of neck ache, headaches and low back pain. He opined that the 'current symptoms and complaints probably have been accentuated by the low speed motor vehicle crash on 17 April 2009'.
Mr Bath noted the existence of well established degenerative changes in the cervical spine prior to the 2009 accident. By a comparison of CT scans carried out in 2005 and 2009 he concluded that the changes were ongoing and progressive.
Mr Bath opined in his report that Mr Gesmundo's current symptoms and their increased severity over the previous year were 'not just related to the fairly mild motor vehicle crash and that probably a 50% apportionment would be reasonable with respect to the crash and natural progression of the degenerative changes'.
Mr Bath further noted in his report that Mr Gesmundo's current degree of symptomatology and progress of cervical spine symptoms mainly can be related to the existing degenerative changes and not the motor vehicle accident. In his view the symptoms were aggravated by the accident but 'it would [be] the basic underlying degenerative changes which are the cause of the ongoing symptoms'.
Mr Bath's views need to be considered in the light of the history he obtained from Mr Gesmundo which was that he had not attended a medical practitioner until three months after the accident. In his report Mr Bath relied upon that incorrect history provided by Mr Gesmundo. There was no oral evidence adduced from Mr Bath to explain the views he expressed as to the effects of degenerative changes in the spine and in particular their relationship to current symptoms.
Assessment of damages
I found Mr Gesmundo to be a generally honest and reliable witness. There was evidence that he was on occasions an inaccurate historian. In particular he told Drs Harper and Bath that he had first seen Dr Spurge three months after the accident, whereas the evidence establishes it was 12 days after the accident. There was no suggestion of any inconsistency upon presentation to any of the medical practitioners. The evidence he gave generally accorded with the history provided to those practitioners.
Mr Gesmundo has established incapacity that has resulted from the defendant's negligence. The onus is on the defendant to establish that the incapacity is wholly or partly the result of the pre‑existing or other conditions from which Mr Gesmundo has suffered: Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164.
Prior to the 2009 accident there were degenerative changes in Mr Gesmundo's lumbar and cervical spines. Dr Spurge considered that the changes were asymptomatic. Mr Vaughan in 2007 described the changes as symptomatic. In the absence of oral evidence I cannot determine whether the changes were symptomatic prior to the 2009 accident.
I am not satisfied that the defendant has established that Mr Gesmundo's incapacity post‑accident was wholly or partly the result of degenerative changes.
Prior to the 2009 accident Mr Gesmundo did have problems from the 2005 accident. He had not fully recovered. He did have occasional headaches and the neck stiffness had not completely resolved.
The 2009 accident increased the symptoms. Mr Bath's evidence supports the conclusion that in the accident Mr Gesmundo suffered injury which has caused symptoms beyond those which can be explained by the underlying degeneration. His current symptoms were materially contributed to by the accident.
The weight of the medical evidence which I accept is that Mr Gesmundo's injuries sustained in the accident were minor. He had very little ensuing treatment. I am satisfied Mr Gesmundo sustained a mild strain injury to the cervical and lumbar spines superimposed upon pre‑existing degenerative changes. This was the diagnosis of Dr Harper which I accept.
Mr Gesmundo is left as Dr Harper described with a mild residual disability affecting the cervical and lumbar spine. He suffers from neck pain, lower back pain, right leg pain and headaches. Lifting, sharp movements, exercise and prolonged computer work aggravate his symptoms. Being seated and having to concentrate for long periods increases his problems.
Mr Gesmundo has been prescribed and required to take painkilling medication for his injuries.
Non-pecuniary loss
Non‑pecuniary loss in this case is to be assessed in accordance with s 3A to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943.
Non-pecuniary loss is defined in the Act as pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.
Section 3C(2) reads:
(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.
Section 3C(3) reads:
(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.
Amount A is $337,000.
The approach and methodology to be applied is that described in Southgate v Waterford (1990) 21 NSWLR 427, 440 ‑ 442; Den Hoedt & Anor v Barwick [2006] WASCA 196 [5], [7] and [95] ‑ [97].
When Mr Gesmundo's injuries and associated symptoms, as I have found them to be, are compared with what may be regarded as a most extreme case, it seems clear that his initial injuries and symptoms, their progression and treatment, pain suffered, residual disabilities and the effect upon his enjoyment of life place his case at no more than 6% of a most extreme case. I assess loss of amenities in the sum of $3,220 nett of the statutory deductible.
Loss of earning capacity
Mr Gesmundo claims a global sum for past and future loss of earning capacity. The basis of the claim is that Mr Gesmundo had the capacity but for the accident to increase his work as a celebrant from 1.5 to two ceremonies a week. It was his evidence he now is only able to do a maximum of two ceremonies a week. A wedding nets approximately $360 and a funeral approximately $275. There are no set fees. Reliance was also placed upon Mr Gesmundo's evidence that his employment as a recruitment agent and television programme producer were affected. The difficulty as a recruitment agent was in being able to sit and concentrate for long periods. In relation to work as a producer Mr Gesmundo said that he anticipated the same problems as he experienced with celebrancy and recruitment work.
In opening it was accepted that because of the absence of supporting documentation and in view of Mr Gesmundo's age the claim was 'modest'. What is asserted is that Mr Gesmundo now has a reduced capacity to build up and carry on his various businesses as a result of his injuries.
Damages for both past and future loss are allowed to an injured plaintiff not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss: Graham v Baker (1961) 106 CLR 340, 347. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss: Husher v Husher (1999) 197 CLR 138, 143.
Dr Harper's evidence was that Mr Gesmundo's hours of work are not restricted and he has been able to engage in his pre‑accident duties. Mr Bath's evidence was Mr Gesmundo is not unfit for work and this essentially accords with that of Dr Harper. As I have said, the disability is mild. Given the nature of the duties required and the extent of the incapacity I am not satisfied that there has been a diminution of Mr Gesmundo's earning capacity.
The history of earnings disclosed in the tax returns and financial documents is as follows:
Schedule of Income
| Tax year 30 June | Taxable income | Main source of income |
| 2003 | $15,293 | Trust distribution |
| 2004 | $36,244 | Trust distribution |
| 2005 | $17,417 | Trust distribution |
| 2006 | $2,934 | Capital gain |
| 2007 | Nil | Not relevant |
| 2008 | $41,577 | Capital gain $29,047 Pension $13,660 Celebrant fees $400 |
| 2009 | $14,396 | Pension $12,154 Celebrant fees $1,210 |
The documents demonstrate that subsequent to the 2005 accident Mr Gesmundo has earned very little income from personal exertion. The trust distributions for the three financial years to 30 June 2005 related to the operation by Mr Gesmundo of businesses through a trust.
Mr Gesmundo's evidence was that he had the intention of increasing his work as a marriage and funeral celebrant. However, he accepted that the business of a celebrant is competitive. He had never averaged one or two ceremonies a week either prior or subsequent to the 2009 accident.
Mr Gesmundo was able to earn income as a celebrant from 23 September 2007 when he qualified. In the year ended 30 June 2008 Mr Gesmundo earned $400 gross as a celebrant. During that period he was not completely free of symptoms resulting from the 2005 accident. His income tax return reveals that in relation to the celebrant business there were expenses of $1,862 resulting in a nett loss of $1,462. He still had some headaches, neck stiffness and was cautious with lifting.
Mr Gesmundo's earnings as a celebrant to 30 June 2009 were only $1,210 gross representing three weddings. The income tax return for the year ended 30 June 2009 reveals expenses for the celebrant business of $7,047 resulting in a nett loss of $5,837. No income tax return or financial documents were produced for any period subsequent to 30 June 2009.
The financial documents do not support the proposition that any diminished loss of capacity is or may be productive of financial loss. There was no documentary evidence to support the claim in relation to loss of capacity in relation to any of Mr Gesmundo's three vocations.
I am mindful that there is some lead time in the development of a business, however given Mr Gesmundo's age and history I am not satisfied that any diminished capacity as a result of injuries suffered in the accident is or would be productive of any financial loss.
I make no award for loss of earning capacity.
Future medical expenses
Mr Gesmundo's evidence was that he continues to take painkillers in relation to his accident injuries. Dr Spurge considers that Mr Gesmundo will require long‑term medication in the form of anti‑inflammatories and analgesia. Mr Gesmundo reduced his medication between April 2010 and January 2011. In addition I take into account his evidence that he does not like to take medication.
Mr Gesmundo may also require reviews by a medical practitioner on an occasional basis as outlined by Dr Spurge.
I consider a reasonable allowance in the circumstances to compensate all aspects of future treatment to be $750.
Special damages
In 2010 Mr Gesmundo purchased a new king‑size bed for $8,933. The bed was equipped with a massager system. Mr Gesmundo purchased the bed because of the difficulty he had sleeping. The bed had received approval from the Therapeutic Goods Authority and had improved Mr Gesmundo's sleep patterns. However, there was no medical or other recommendation made to Mr Gesmundo that he should purchase the bed. In all the circumstances I am not prepared to make any allowance.
I am satisfied that it was reasonable and necessary for Mr Gesmundo to attend on Dr Spurge in relation to the injuries he sustained in the accident. I allow $518 as claimed.
Conclusion
Mr Gesmundo is entitled to an award of $4,488 as follows:
Loss of amenities $3,220
Future treatment $750
Special damages $518
Total$4,488
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