Green v White No. DCCIV-97-31171 Judgment No. D3814

[1998] SADC 4001

Green v White

Civil

Judge Allan

The plaintiff claims damages for injuries and loss sustained in a road accident which occurred on 12 January 1996 when a motor vehicle being driven by him collided with a motor vehicle being driven by the defendant at the intersection of Sturt Highway and Kay Avenue, Berri.  Liability has been admitted by the defendant and the matter comes on for an assessment of damages. The plaintiff is to receive the full amount of his damages as assessed.

Special damages have been agreed at $6,364.80 of which, as I understand it, $5,940 has been paid by the defendant.

The plaintiff is aged 37. He is married with two young children. He lives at Berri.  He left school at age 16 during year 10.  Since leaving school, he has been in almost constant employment of one form or another.  He has worked as a factory hand, a storeman, and has done some work on a fruit block and as a mallee cutter.  He has acquired no formal academic qualifications since leaving school other than a basic computer course which he completed 12 months ago.

At the time of the accident, the plaintiff was working for Coca-Cola at Berri. He had done so since 1985.  His work involved him in the making-up of pallets of drinks for delivery and making the deliveries.  His work involved him in lifting various weights.  Prior to the accident, he also did some paid work as a disc jockey on a casual basis and he still does that sort of work as and when he can get it. 

Prior to the accident, the plaintiff had, from time to time, suffered with what he called a pinched nerve in the base of his neck. He described it as a pinprick sensation.  He obtained relief from this sensation by undergoing manipulation at the hands of a chiropractor.  The sensation came on without apparently being associated with any particular activity.  He would have chiropractic treatments in this way about three or four times per year. 

Prior to the accident, over the years, the plaintiff had suffered various injuries in one way or another, but, by the time of the accident, I am not satisfied that he was suffering any disability as a result of any of those injuries. 

After the accident, initially, the plaintiff did not suffer any symptoms. However, later on the day of the accident, he developed pain in his left shoulder, shortly thereafter extending across both shoulders and the base of his neck. On the morning after the accident, when he awoke, he noticed that he had some swelling on the anterior aspect of his left ankle. The swelling lasted for about a day and after that the ankle became painful. He consulted his general medical practitioner and was given a certificate for light duties. He commenced some physiotherapy treatment at the suggestion of his medical practitioner.

The plaintiff did not lose any work as a result of the accident. He worked on light duties, as I understand it, for about three months. During this time, his duties were mainly of a clerical nature. A casual employee of his employer was doing the manual work that he otherwise would have done. He avoided any work involving lifting. He gradually increased his duties. He commenced lifting lighter loads and gradually increased the weight of those loads and the duration of the lifting. He found that, if he did too much, he would experience tightness and pain across his shoulders and the base of his neck. He avoided weight bearing on his left leg because his ankle would give him pain.

In April 1996, the casual employee having ceased work, the plaintiff returned to his normal duties save that he did not do any deliveries. He worked in the warehouse doing the full range of work there. This work involved him in making-up pallets as he had before. It was a quiet time of the year for his employer and, so, he found he could cope with the work. He did not do any delivery work because he could not cope with the lifting work involved in that process.

In May 1996, the plaintiff took four weeks leave. On his return, he found that he was experiencing the same problems with his work and that lifting above waist level caused him pain in his shoulders and the base of his neck and he experienced pain in his left ankle on prolonged standing.

The plaintiff was retrenched from his employment on 16 August 1996. The termination of his employment had nothing to do with the injuries sustained by him in the accident. Following his return to work in May, he had done clerical work only because the preparation of the loads for delivery, the work in which he had previously been involved, was carried out in Adelaide.

Since he ceased work with Coca-Cola, the plaintiff has looked for work.  He has registered with the appropriate Commonwealth employment agency. He has done a two week training course in bar work. He found that he could cope with this work, although he experienced pain on carrying trays of drinks with one hand, lifting heavy objects and prolonged standing. 

He says he had been offered a job by Coca Cola as a driver in Mildura doing deliveries, but he refused that work. He says it was the sort of work he had avoided after he returned to work following the accident. He also says he was not in a financial position at the time to take the job.

The plaintiff has applied for jobs as a storeman and in administration or clerical type work. He is currently working as a cellar hand with Norman's wines. He commenced this work early in the year, and the work will terminate later this month. It is of a seasonal nature. As I understand it, his work involves the transferring of wine and involves him connecting hoses and supervising the transfer of the wines. He finds he is able to do the work although he experiences pain in his neck and shoulders sometimes when pulling the hoses involved in the transfer of the wines.

He earns up to $8-900 per week at times, depending when he works, but sometimes his weekly income is $2-300 less than that figure.

The plaintiff continues to see his physiotherapist from time to time when he seeks relief because of an exacerbation of his symptoms; otherwise he receives no other form of treatment. A course of exercises at the gymnasium with a view to strengthening his shoulder muscles would help relieve his symptoms, but he has not persisted at that.

Presently, the plaintiff has what he describes as constant pain across his shoulders. I understand this to be a low level of pain which he is aware of from time to time and which is exacerbated on working with his hands above shoulder level and lifting heavy objects, particularly above waist level. He also experiences a low level of pain across the anterior aspect of his ankle and down the outer aspect of that ankle.  This pain is exacerbated by prolonged standing. The plaintiff avoids activities about the house which he performed prior to the accident and which involve him in the sort of physical activity which exacerbates his pain in the way I have mentioned. The plaintiff has a full range of movement in his arms and shoulders.

During the four years prior to the accident, that is, the four years up to and including 30 June 1996, the plaintiff's average gross annual income was $30,979 and his average net income was $23,947.

Prior to the accident, the plaintiff had a degenerative condition of his spine at the C6-C7 level, and this was probably the cause of the symptoms he experienced in the base of his neck from time to time and which I have previously mentioned.

I am satisfied, and find, that the injuries the plaintiff sustained in this accident were a soft tissue injury to his neck and shoulder area and the anterior aspect of his left foot, which produced the symptoms of which the plaintiff complains. It is probable that the injury to the neck operated upon the pre-existing, degenerative condition of the neck.

The plaintiff should avoid work which involves him in prolonged heavy lifting, particularly above waist level, frequently rotating his head and neck over a prolonged period, using his arms above chest level for prolonged periods and working with his head extended upwards. He should also avoid work which involves prolonged standing, climbing ladders and stairs.

In fixing damages for past economic loss, I shall proceed on the basis that, during the relevant period, the plaintiff was not able to perform work of the type I have mentioned; that is, that he had less labour to sell than he had prior to the accident. I shall proceed to an assessment on the basis that, during that period, he had lost the ability to do work of that sort. I shall take into account the possibility that, for reasons not associated with his injuries, he might not have had any more work than he actually performed during that period.

In assessing the plaintiff's damages for future economic loss, I shall take into account the possibility that, because of the degeneration of his cervical spine, or for some other reasons not associated with the accident, his earning capacity would, in any event, have been reduced; that is, that his ability to perform certain forms of work would have been reduced or lost. I shall also take into account the possibility that, for some reason not associated with the injuries sustained in the accident, he would have ceased to work altogether. The assessment of damages for future economic loss on the evidence does not permit of any sort of arithmetical calculation; rather, the process is one where I will have to engage in fixing a sum, albeit somewhat arbitrary, which, in my view, would adequately compensate the plaintiff by way of damages for the lost opportunity to engage in work which he otherwise would have been able to perform.

The multiplicand so far as damages for non-economic loss is concerned is $1,520.

Doing the best I can on the material before me, I assess the plaintiff's damages as follows: past economic loss, $10,000, future economic loss $45,000, for non-economic loss I ascribe the number seven, which produces a figure of $10,640, special damages $6,364.80. On my calculations, that produces a total of $72,004.80. If I deduct $5,940 from that, I arrive at a figure of $67,064.80. I will add the figure of $675 by way of interest to the figure of $67,064.80 which produces a figure of $67,739.80. There will be judgment for the plaintiff in that sum. The defendant shall pay the plaintiff's costs.