Hall v Hall
[2014] TASSC 37
•23 July 2014
[2014] TASSC 37
COURT: SUPREME COURT OF TASMANIA
CITATION: Hall v Hall [2014] TASSC 37
PARTIES: HALL, Adrian Howard James
v
HALL, Jane Louise
FILE NO: 470/2006
DELIVERED ON: 23 July 2014
DELIVERED AT: Hobart
HEARING DATE: 4 – 7, 11 – 13 February 2014
JUDGMENT OF: Blow CJ
CATCHWORDS:
Damages – Particular awards of general damages – Tasmania – Back, leg and neck pain and adjustment disorder – Hairdresser and fencing contractor aged 34 at accident, 45 at trial – General damages of $45,000 for pain and suffering and loss of amenities.
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Plaintiff: J Saric
Defendant: B R McTaggart SC, L Mackey
Solicitors:
Plaintiff: Jim Saric Law
Defendant: Ogilvie Jennings
Judgment Number: [2014] TASSC 37
Number of paragraphs: 104
Serial No 37/2014
File No 470/206
ADRIAN HOWARD JAMES HALL v JANE LOUISE HALL
REASONS FOR JUDGMENT BLOW CJ
23 July 2014
This case concerns injuries suffered by the plaintiff, Adrian Hall, in a single vehicle motor accident on 3 December 2003. The plaintiff was a hairdresser and fencing contractor who had recently moved from Victoria to Dunalley. The vehicle was being driven by his wife, the defendant, Jane Hall. When attempting to overtake some other vehicles, she lost control of her vehicle, which hit an embankment, rolled, and came to rest on its roof. In 2006 the plaintiff brought an action alleging negligence and claiming damages in respect of his injuries. Liability was not disputed. Judgment was entered by consent for damages in a sum to be assessed. This is an assessment of those damages.
The plaintiff contends that he suffered the following injuries as a result of the accident:
· An injury to the lower back involving disc damage at L3/4, L4/5 and L5/S1 levels.
· An injury to the neck.
· An injury to the right posterior lower chest wall.
· A resultant chronic pain condition.
· A resultant adjustment disorder with depressed mood or, alternatively, a major depressive disorder.
· Headaches.
He contends that his earning capacity was destroyed as a result of the accident, and that it has left him permanently incapable of undertaking remunerative work.
The defendant contends that the plaintiff suffered from pre-existing mental health problems, that the effects of his injuries were transient, and that he substantially recovered from his injuries within months after the accident.
Background
The plaintiff was 34 years old at the time of the accident and is now 45 years old. He grew up in Victoria. He left school during Year 11. After leaving school he worked in various trades. Then he did building work for his father, a builder sub-contractor, for 2 to 2½ years. Thereafter he undertook plastic fabrication work from the mid-1980s until early 1993. During that period the company that employed him was taken over by his father and other members of his family. During 1992 they sold the business. The plaintiff continued to work in the business for about another nine months before leaving it to travel around Australia with his first wife. During his latter years in the plastics business the plaintiff took responsibility for supervising and training other workers. At one stage he supplemented his income from the plastics business by doing building work on weekends. At another stage, when his family first took over the plastics business and money was tight, he worked for about three months as a full-time storekeeper for an unrelated company.
He gave evidence to the effect that, when he left the plastics business, a provision in his employment contract prohibited him from working in a similar business for four or five years. He travelled around Australia from early 1993 until some time in 1997, undertaking casual work. That work included drawing work, work with horses, and various sorts of fruit picking. From about August 1997 to November 1998 he undertook and completed a full-time hairdressing course. Once he was qualified he purchased a hairdressing business in Mornington, Victoria, with money provided by his mother. That business failed after about four to six months. He closed the salon in April or May 1999. In his evidence, he blamed others for the failure of the business, saying that rent paid by him to its vendor was not transmitted to the landlord, that he discovered that one employee was the vendor's wife, and that she left the salon taking clients with her. After the business closed, the plaintiff undertook a little "mobile hairdressing" work, travelling around and working at customers' houses.
The plaintiff abandoned that work and moved to a property near Bright in northern Victoria. He did various types of work in the Victorian high country, including farm work, taking tourists fossicking for gold, hotel work, and security work. After something like 18 months he returned to the Mornington Peninsula, resumed doing hairdressing work for friends, undertook a little casual work, and established a small fencing business.
Before moving to Tasmania, the plaintiff had been to prison three times. At some stage, probably during his travels of 1993 to 1997, he committed an armed robbery in Queensland, was charged with committing it, failed to appear in court, served two months' imprisonment for failure to appear, pleaded guilty to the armed robbery charge, was sentenced to a further six months for that, and was paroled after serving four months of that sentence. In August 2000 a magistrate in Frankston ordered him to perform 150 hours of unpaid community work in relation to charges of making a false report to police and obtaining property by deception.
On 21 June 2001 a general practitioner referred the plaintiff to the Frankston Hospital in relation to a mental health problem, requesting prompt attention and management. A doctor there made a provisional diagnosis of an antisocial personality disorder, an anger management problem, poor impulse control, and possible mild depression. The plaintiff told a staff member at the hospital of a long history of physical violence towards others, poor anger management, and poor impulse control. He said that a week earlier he had "belted the crap" out of his girlfriend. He said that he was physically aggressive in his line of employment, which involved throwing people against walls and through windows. He said that he worked as a debt collector and salesman; and that his work involved collecting money for friends, and being physically aggressive with people.
By 2003, the plaintiff's first marriage had ended in divorce and he had married the defendant. He did not get on well with her parents. On one occasion he drove a car at her father. As a result of that incident, a magistrate in Frankston sentenced him to a month's imprisonment in March 2003 on charges of reckless conduct endangering life, "driving in a manner dangerous", making a threat to kill, recklessly threatening serious injury, intentionally causing injury, criminal damage, and assault with a weapon. After serving that sentence, the plaintiff decided to move to Tasmania and make a new start. As a result, he and his family moved to Dunalley in May 2003, about seven months before the accident.
The plaintiff gave evidence that, at the time of the accident, he was preparing to go into business making and installing concrete fence posts. He said that he had designed moulds and frames, fabricated some fence posts, prepared a business plan, taken advice from an engineer and an accountant, and distributed some leaflets, but that he had not got any customers before he was injured.
The accident
The plaintiff gave evidence that the car rolled over twice before it came to rest on its roof. He also said that he lost consciousness, and woke up to find that the car was upside down, with him hanging from his seatbelt.
The plaintiff was cross-examined about information that he provided to the Motor Accidents Insurance Board ("the MAIB") after the accident in an application for scheduled benefits. In his application he stated that the accident occurred at 12.45pm, but in his evidence he said it happened at about 3pm or 3.30pm. The application form required him to list the injuries sustained in the accident, but he did not mention loss of consciousness in his list. The application included a description of the accident in which it was stated that the car rolled, but not that it rolled twice. The plaintiff gave evidence that that description was in his wife's handwriting.
Counsel for the defendant submitted that I should reject the plaintiff's evidence that the car rolled twice and make a finding, based on the description of the accident in the application for scheduled benefits, that the car rolled only once. I reject that submission. I have very strong reasons to approach the plaintiff's evidence with extreme caution, and to doubt its truthfulness and accuracy as to many points, but not this point. The plaintiff mentioned that the vehicle rolled twice in descriptions of the accident that he gave to four doctors – Dr Gardner, a general practitioner, on the day after the accident; Mr Stuart, a neurosurgeon who gave expert evidence for the defendant, in June 2007; Dr Hwang, a consultant occupational physician who gave expert evidence for the defendant, also in June 2007; and Dr Paton, an anaesthetist whom he saw for pain management purposes, in January 2008. The description of the accident in the application for scheduled benefits was understandably brief. The histories taken by the doctors were more thorough. The plaintiff's description of the accident was uncontradicted and consistent with the descriptions given to the four doctors. A lay person might not think of unconsciousness as constituting an injury. A mistake as to the time of day when the accident occurred, when giving evidence some ten years later, is also understandable.
The period since the accident
Ambulance officers attended the accident scene, but did not take the plaintiff to hospital.
The plaintiff gave evidence that immediately after the accident he felt an "overall soreness"; that his back was a bit sore; and that his shoulders and arms were sore. He said he had bruises to his arms and legs.
As I have said, he saw a general practitioner, Dr Gardner, the next day – 4 December 2003. He complained of a sore neck, and soreness to the right chest, but made no mention of back symptoms, or none that Dr Gardner noted. On examination, Dr Gardner noted a reduced range of movement of the neck, mild anterior and posterior neck tenderness, and tenderness over the right posterior lower chest wall. Although Dr Gardner made no note of back pain, the plaintiff gave evidence that he told the doctor that he had pain everywhere, including his back.
On 8 December 2003, the plaintiff returned to see Dr Gardner. He complained of lumbar spine pain, saying that it began after leaning forward on 6 December 2003. Dr Gardner noted moderate to severe restriction of movement of the lumbar spine. He considered that that was most likely related to the accident. He ordered x-rays, which were taken on 9 December 2003. The radiologist reported as follows:
"Cervical Spine – There is some limitation of movement in the cervical region. The disc spaces are preserved and no spondylotic changes are seen though there is some early facetal hypertrophy throughout.
Lumbosacral Spine – There is a normal appearance with preserved disc spaces and no significant abnormality is noted. The sacro-iliac joints appear normal."
The plaintiff saw Dr Gardner again on 5 January 2004. He said that he was 60 to 70% better, but that he was still uncomfortable, particularly in the area between the lumbar spine and the lowest right rib. Dr Gardner referred him for physiotherapy treatment.
On 5 February 2004 the plaintiff saw another general practitioner in Dr Gardner's practice, Dr Andric. He noted a diagnosis of neck pain, that a neurological examination was normal, and that the plaintiff said that he was "not better".
The plaintiff saw Dr Gardner next on 4 March 2004. He reported that he still had neck pain and lumbar back pain. Dr Gardner noted that he had a near normal range of movement of his neck, except for neck extension, which was reduced by about a quarter, and a near normal range of movement of his lumbar spine.
The plaintiff saw a physiotherapist named Jane Scott seven times from 8 January 2004 to 5 March 2004 inclusive, having been referred to her by Dr Gardner. She noted that initially he complained of low back pain, but that there had been a gradual improvement. She saw him weekly at first, but fortnightly after 6 February. On 5 March she noted tenderness on palpation from L3 level to L5/S1 level, but that he had improved. She noted that a review was planned one week thereafter, but the plaintiff did not return to her for several months.
The plaintiff gave evidence that his low back pain has never completely gone away since the accident; that it is a constant pain; and that it still aches daily. That evidence was disputed. It is certainly clear that he did not see any doctors or physiotherapists about his back for several months after early March 2004.
The plaintiff saw Dr Gardner again on 8 July 2004, but not in relation to the injuries suffered in the motor vehicle accident. That consultation concerned anxiety, pain to the left wrist after being handcuffed, and discussion of a possible vasectomy.
On 26 July 2004 the plaintiff was chopping firewood at his home when he felt pain in his back. He gave evidence that on the third swing of his axe he felt excruciating pain; that his whole back gave way; that he fell to the floor; and that he got his wife and some boys to pick him up and get him to a doctor. He was taken to the Sorell Medical Centre – Dr Gardner's practice - where he saw another general practitioner, Dr Dalton, who gave evidence for him at the trial. Dr Dalton noted pain and tenderness over the left side of the 9th and 10th thoracic vertebrae, but nothing relating to the neck or lumbar spine. An x-ray of the thoracic spine was performed during August 2004. It revealed no abnormality.
After the wood chopping incident, the plaintiff saw general practitioners for follow-up appointments twice during August 2004. He also returned to his physiotherapist, Jane Scott, and saw her and a locum eight times from 29 July 2004 to 14 September 2004 inclusive. He missed an appointment on 23 September 2004, and never went back.
He had a cancer removed from his right leg in May 2005. It was a cutaneous leiomyosarcoma. He made a good recovery.
On 6 March 2006 the plaintiff went to see Dr Dalton. He told him that he had twisted his back "the other day". He complained of left lower back pain, numbness in his left leg, and tingling in his left leg. This was the first time that he complained of leg symptoms. Dr Dalton arranged for him to have a CT scan of the lumbar spine the following day. The radiologist reported a posterior disc bulge at L5/S1 level.
During May 2006 the plaintiff returned to Dr Dalton complaining of recurring low back pain, radiating into both thighs. Dr Dalton referred him to a physiotherapist named Bob Wilson. The plaintiff gave Mr Wilson a history of "continual episodic low back pain with the episodes lasting 10 days on average". Mr Wilson devised an exercise program, aimed at building the control of the muscles of the abdomen in order to remove pressure from the low lumbar spine. The plaintiff stopped seeing Mr Wilson in June 2007.
In late October 2006 the plaintiff returned to Dr Dalton, complaining that he had exacerbated his back problem by bending over to pick up a pair of socks. Dr Dalton noted that the pain was in his lower back and in his thoracic spine, from about T8 down, radiating across to his left thoracic wall.
During January 2007 the plaintiff lost his temper and kicked a post with his right foot, causing an injury to it.
On 26 June 2007 the plaintiff had an MRI scan of the lumbar spine. It showed normal spine alignment, but degeneration of the lowest three lumbar discs, with loss of hydration and loss of disc height. One of the plaintiff's expert witnesses was a Dr Paul Thompson. He has substantial experience in neurosurgery as a surgical assistant, though he does not have a specialist qualification as a neurosurgeon. He gave evidence that the MRI scan suggested small annular tears – tears in the membrane of the discs – at L3/4 and L4/5 levels. He said that at L5/S1 level there was a disc protrusion abutting the left S1 nerve root.
Dr Thompson saw the plaintiff again on 12 November 2007. He noted a history of lower lumbar back pain from the time of the accident, with some radiation of pain to the left buttock and down the left leg. He noted that the plaintiff was very restricted in physical activity, and that he had been unable to work since the accident. He ordered a bone scan to assess the activity of the plaintiff's facet joints, and referred him to another physiotherapist for assessment of his core muscle stability. The bone scan did not show changes to the degree anticipated by Dr Thompson, but he still recommended that the plaintiff consider having a facet joint procedure performed by Dr Paton.
Accordingly, the plaintiff saw Dr Paton on 7 January 2008. He recommended that the plaintiff undergo a bilateral facet joint block procedure at L5/S1 level, for both diagnostic and therapeutic purposes. The MAIB refused to fund that procedure, and the plaintiff did not have it.
On 30 April 2009 the plaintiff had CT scans of his cervical spine and his lumbar spine. The radiologist reported that degenerative changes and marginal osteophyte formation had resulted in moderate right foraminal narrowing at C3/C4; that a small bulging disc was present at L4/5 and L5/S1; that a small bulging disc with marginal osteophyte formation and facet hypertrophy had resulted in mild to moderate left foraminal narrowing at L5/S1; and that degenerative changes were present within both sacroiliac joints.
In late 2009 the plaintiff had bilateral occipital nerve blocks performed at the Royal Hobart Hospital. They were diagnostic in nature, but a pain medicine registrar from the hospital reported that the plaintiff gained sustained relief from his headaches, and reduced his use of Panadeine Forte.
Thereafter it seems that no significant new steps were taken for the purpose of treating the plaintiff's symptoms. He continued to take pain-killing and anti-inflammatory medication, as he had since the accident.
It appears from medical records tendered at the trial that the plaintiff moved back to Victoria on 17 December 2009, and lived there until some time in 2012, when he returned to live in Tasmania. In late 2011 he saw a Victorian general practitioner on a number of occasions in relation to drug problems and his chronic pain complaint. The medical records suggest that he may have been using drugs to self-medicate.
An MRI scan of the whole of the plaintiff's spine was performed on 28 October 2013. Dr Thompson described the results as follows:
"In the cervical spine area there was no evidence of disc pathology. Minor degenerative changes within the uncovertebral joints at the C3/4 level were identified with minor bilateral facet joint degenerative arthritic changes also evident at the C2/3, C3/4 and C4/5 levels.
In the thoracic spine normal alignment was also seen. There was some loss of disc hydration (early degeneration) at the T4/5 and T5/6 levels with minor loss of disc height also at T10/11 and T11/12. There was no evidence of neural element compression.
In the lumbar area there was loss of disc hydration at the L3/4, L4/5 and L5/S1 levels. At the L3/4 level a small posterior central annular tear was identified. At the L4/5 level minor facet joint arthritis was evident and again a small posterior annular tear was identified. At the L5/S1 level there was a broad based disc bulge with mild facet joint arthritic change identified and again a small posterior annular tear was also seen. There was no evidence of disc protrusion."
It is clear from the plaintiff's evidence-in-chief, and from the histories taken by the various doctors who gave evidence at the trial, that back pain was his principal complaint. In his evidence he said that his low back pain had not stopped in the last few years, though he was able to obtain some relief using painkillers. At another point in his evidence, he said that his low back had ached constantly ever since the accident. He gave evidence of suffering leg pain daily, more on the left than the right, together with numbness and pins and needles. He said that he experienced leg pain "from day dot", that it seemed to come and go, and that it started getting worse a couple of months after the accident. He also gave evidence of experiencing headaches "pretty well since day dot" and "pretty well daily". He said that his neck was sore in the first few months. He mentioned soreness around his ribs at the stage when he first saw a doctor, but did not mention any later discomfort to that area.
The plaintiff gave evidence that his back and leg pain interfered with various activities including gardening, mowing, and using power tools. He complained to some of the medical witnesses that it caused him difficulties in driving on longer journeys, hanging out clothes, washing up, and chopping firewood. He said that he no longer went horse riding or played pool.
Investigators were engaged to undertake surveillance of the plaintiff on several occasions. Such surveillance was undertaken on 20 and 21 September 2007; 12 and 13 August 2008; 12 and 30 September 2008; 1 October 2008; 6, 25, 26, 27, and 28 October 2011; and 1, 2 and 3 October 2012. Some of the physical activities undertaken by the plaintiff whilst under covert surveillance were considered by some of the medical witnesses at the trial to be either inconsistent with the plaintiff's asserted symptoms, or very surprising in the light of his asserted symptoms.
In his evidence-in-chief, the plaintiff said that he had not been able to do any physical work since the accident. However there are some minor pieces of evidence that suggest that he may have undertaken a little remunerative work. I will list those pieces of evidence when I discuss the impairment of his earning capacity.
Conflicting medical opinions about the plaintiff's injuries
Eight medical practitioners gave evidence at the trial. Two were psychiatrists. I will deal with their evidence after that of the other six. I have already mentioned three of the plaintiff's medical experts – Dr Dalton, the general practitioner; Dr Paton, the anaesthetist with pain management expertise; and Dr Thompson, who has neurosurgical expertise.
Dr Dalton was the plaintiff's general practitioner from July 2004 until he returned to Victoria in December 2009, and has been his general practitioner again since his return from Victoria in 2012. In his opinion the accident in 2003 is the only possible cause for the plaintiff's ongoing back pain. That opinion was not shaken by what he saw in the surveillance footage. He gave evidence to the effect that a person with a back problem might be able to undertake inappropriate heavy lifting, without experiencing pain until a later time. He also pointed out that chronic back pain sometimes has a fluctuating course, implying that it could be better on some days than others.
Dr Paton saw the plaintiff only once as a treating doctor – in January 2008 – but reviewed him at the request of his solicitors in May 2009 and September 2013. His opinion was that the plaintiff suffered from disc disruption and an annular tear at L3/4 level, internal disc disruption at L4/5 level, a disc protrusion at L5/S1 level with resulting left sciatica, and a chronic pain condition. He believed that all of those injuries were the result of the motor vehicle accident. He based his opinions on the radiological findings, findings on clinical examination, and the history given by the plaintiff. He believed that the plaintiff was not suitable for employment involving physical labour as a result of his injuries.
He was cross-examined about the surveillance films. One of those films depicted the plaintiff and another man carrying a heavy concrete post in September 2007. Counsel for the defendant tendered that post as an exhibit, and asked most of the medical witnesses to lift one end of it and feel how heavy it was. Dr Paton said he had initially thought that the item being carried was a plank. He conceded that the footage of the plaintiff carrying that item on his shoulder suggested that he did not have much of a disability. However he made the points that the plaintiff might have taken medication before the lifting, and might have suffered afterwards. After seeing footage of the plaintiff swinging two empty wheelie bins, one at a time, over a picket fence, he said that that activity was "generally not consistent" with someone with chronic back pain. He said he had no concerns about surveillance footage of the plaintiff drawing on the sand at a beach with a stick, mowing lawns, or using a whipper snipper. He said that the use of the whipper snipper raised suspicion, but not unduly. When he saw footage of the plaintiff undertaking some gardening, bending and working in a bent position, he said that that also raised suspicion. When re-examined, he said he thought it was not advisable for the plaintiff to do any heavy physical activity because of the state of his discs.
Dr Thompson had seen the plaintiff only twice – first in December 2007, and again in October 2013 at the request of his solicitors. He had seen some of the surveillance footage before the trial and commented, in a report dated 15 January 2014, that there was some inconsistency in the activities that the plaintiff claimed to be unable to perform and those observed in the surveillance footage. In that report he expressed the following conclusions:
"I believe that Mr Hall may well have suffered injuries in the car accident of the 3.12.03 particularly to his lumbar area which has been his consistent complaint and that these injuries may have involved annual tears and internal disc disruption at any or all of the lower 3 lumbar areas which could result in long term and continuing lower lumbar back pain. At this stage the only way of really defining whether these injuries are responsible would be for Mr Hall to undertake provocative discography … This investigation involves needling into the disc space with injection of contrast fluid to see whether the internal portion of the disc is disrupted and to see whether it produces a concordant pain response. I would only recommend that this be undertaken if a patient was seriously considering that his or her pain levels were to such a level that they were considering surgical intervention.
…
In conclusion Mr Hall states that his injuries are a result of the injuries sustained in the motor vehicle accident of 3.12.03 and to date I have not been provided with any other explanation that would counter this claim. I think it is very difficult to make a firm conclusion on the exact nature of his injuries with the investigations performed to date. One would be suspicious that he has possible internal disruption of 1 or all of the lower 3 lumbar discs (L3/4, L4/5 and L5/S1) but provocative discography would really be required to confirm pain production from these structures."
Dr Thompson's opinions were not shaken by cross-examination. He conceded that there were differences between the range of movement he observed when he examined the plaintiff in his surgery and some of the ranges of movement seen in the surveillance footage. He made the point that we do not know what medication the plaintiff had taken before those activities, what pain levels he experienced during those activities, and what pain levels he experienced afterwards. He conceded that his opinions were based on the history provided by the plaintiff.
Four medical practitioners gave evidence for the defendant at the trial. I have already mentioned three of them – Dr Gardner, the general practitioner who treated the plaintiff from the day after the accident until 8 July 2004; Mr Stuart, an experienced neurosurgeon from Queensland; and Dr Hwang, a consultant occupational physician. The fourth was Dr Sale, a psychiatrist.
Dr Gardner saw the plaintiff several times from 4 December 2003 to 8 July 2004 inclusive, but not thereafter. The last consultation relating to the injuries suffered in the motor vehicle accident was on 4 March 2004. He provided the plaintiff with a certificate that day. I infer that the certificate said that the plaintiff was unfit for work for a period, but I do not know how long a period. Dr Gardner considered that he was "substantially better", and told him that he should consider that certificate as his final certificate. He did not give opinion evidence as to the plaintiff's later symptoms or present prognosis.
Mr Stuart saw the plaintiff twice at the request of the defendant's solicitors – on 19 June 2007 and 10 July 2008. At the time of the 2007 assessment, Mr Stuart noted that the plaintiff complained of pain in his left leg, loss of control of the left leg, pain shooting across to his other leg, low back pain and swelling, and pain shooting up around the left rib area of his back, with a history of those symptoms having been present since the accident. He was provided with two radiology reports – the one from August 2004 relating to the thoracic spine that reported no abnormality, and the one from March 2006, reporting that a CT scan showed an L5/S1 intervertebral disc bulge with possible impingement of the left S1 nerve root. After examining the plaintiff he concluded that he had sustained only soft tissue injuries from the accident, and that no cause was demonstrated for any ongoing symptoms. He suggested that there could be a non-organic explanation for the plaintiff's symptoms. He recommended assessment by a pain specialist, the institution of psychological measures for pain control, and the institution of an active exercise and walking program with a view to rehabilitation and return to work. He expected that the plaintiff would not be left with any residual physical disability.
The plaintiff's second visit to Mr Stuart, in July 2008, did not go well. Mr Stuart reported that the plaintiff appeared to be agitated and distressed, and that he said, "Yeah. I've seen you before and you prodded me in the back. You didn't examine me. You wouldn't listen to me. You misread the x-rays", and "You need to get some spectacles to see the x-rays." At that stage he and the plaintiff agreed not to proceed with the consultation.
At the trial, Mr Stuart adhered to his original opinions. He remarked on the plaintiff walking with a bizarre gait, inconsistent with any physical cause.
Dr Hwang saw the plaintiff three times at the request of the defendant's solicitors – on 6 June 2007, 24 September 2009, and 6 October 2011. He considered that the plaintiff's low back symptoms related to the L5/S1 disc, with some nerve root irritation, but did not consider that those symptoms resulted from the motor vehicle accident. He considered that the plaintiff most probably suffered a mild musculo-ligamentous strain to the low back at the time of the accident, as well as a musculo-skeletal strain in the cervical spine. He accepted that the plaintiff had some mild ongoing neck symptoms as a result of the accident, but did not consider that he required any treatment for his accident-related injuries. He considered that the low back symptoms were likely to have resulted from the wood chopping incident.
Dr Sale saw the plaintiff for the purpose of psychiatric assessments at the request of the defendant's solicitors on three occasions – on 8 November 2007, in June or July 2008, and on 26 October 2011. The second interview did not proceed as planned because the plaintiff was very angry with Dr Sale. He swore at him, and frightened him, to such an extent that the doctor decided it was not safe to continue. The plaintiff left after only a couple of minutes. However, Dr Sale was able to conduct interviews with the plaintiff in 2007 and 2011. He had access to a lot of medical and hospital records relating to the plaintiff, and to the surveillance footage.
In 2007 Dr Sale diagnosed a mild adjustment disorder with depressive symptoms, and formed the view that that disorder resulted from the accident. He saw no psychogenic basis for the plaintiff's chronic pain symptoms. He did not think that those symptoms had been perpetuated by feelings of depression and anxiety. He believed that the plaintiff's adjustment disorder was treatable, and suggested that about ten treatment sessions would be appropriate. In 2011 Dr Sale found it difficult to get a coherent history from the plaintiff. He found the plaintiff utterly different from the time of the 2007 assessment. He said that the plaintiff was pressured in his speech, that he was volatile, that he was irritable, and that he jumped from topic to topic. He suspected that he was affected by either a mental disorder unrelated to the accident, or by substance use, or by both. He was not able to see any connection between the accident and the plaintiff's mental state as at October 2011.
Dr Sale took into account the plaintiff's pre-accident history of mental health problems, as well as the fact that there had been various stressful situations in the plaintiff's life apart from the accident, including the breakdown of his first marriage, the taking of children into care, debt problems, problems with his mother-in-law, his father's terminal illness and subsequent death, and the cancer for which the plaintiff received treatment in May 2005. Dr Sale described that cancer as potentially life-threatening.
The other psychiatrist who gave evidence at the trial was a Dr Chambers. He was called as a witness for the plaintiff. He saw the plaintiff on only one occasion, on 16 January 2014. He had access to the plaintiff's medical and hospital records, as well as the reports of Dr Sale. In his opinion the plaintiff was suffering from a psychiatric condition that was most appropriately diagnosed as an adjustment disorder with depressed mood, but with a differential diagnosis of "major depressive disorder, recurrent type". In his opinion the accident was associated with depressive symptoms commencing soon thereafter, associated with the plaintiff's physical symptoms and pain, and with the related limitations in his activities. He believed that the plaintiff's psychiatric symptoms were continuing in association with chronic pain. He believed that the plaintiff was incapacitated for work, but that that incapacity was mostly related to his chronic pain and physical limitations.
I think it is appropriate to consider the plaintiff's descriptions of his symptoms, past and present, with great caution, for a number of reasons. He has a record of convictions for crimes and offences of dishonesty. A number of the medical experts have suggested that his symptoms are inconsistent with the radiological evidence, and that they may be deliberately exaggerated or faked. However, having observed the plaintiff giving his evidence, and after considering all the medical evidence, I accept that he has long-standing problems with low back pain, associated leg pain, and, to a lesser extent, neck pain. I accept that he has exaggerated his symptoms at times. It may be that he has sometimes over-reacted to his symptoms. Mr Stuart's observations of inconsistencies as to ranges of movement, and as to him walking with a bizarre gait, could well be explained on one of those bases.
I was not impressed with Mr Stuart's evidence, for a number of reasons:
· It emerged during his cross-examination that he based his conclusions in part on the description of the accident given to him by the plaintiff, particularly on what the plaintiff did not say. The plaintiff did not mention any injury to his spine during the accident, nor any twisting of his body during the accident, nor any history of compression forces to the spine. Mr Stuart proceeded on the basis that the plaintiff would have mentioned any of those things if they had occurred. But the plaintiff is an unsophisticated individual. From what I have seen of him, it is clear that he is a poor historian. Mr Stuart failed to make any allowance for the possibility that the plaintiff, in giving an account of the accident 3½ years after it happened, might have forgotten details or failed to be thorough.
· From the time of his first report, Mr Stuart took the view that there were signs of a non-organic basis for the symptoms the plaintiff described. However neither Dr Chambers nor Dr Sale suggested that there was any psychogenic basis for the plaintiff's symptoms.
· When he first examined the plaintiff, Mr Stuart had a report from the CT scan of 7 March 2006, which referred to an L5/S1 intervertebral disc bulge with possible impingement of the left S1 nerve root. He concluded at that time that no organic cause had been demonstrated for any ongoing symptoms. The plaintiff had described symptoms of low back pain and left leg pain. Mr Stuart did not explain why he ruled out an L5/S1 intervertebral disc bulge with impingement of the left S1 nerve root as an organic cause for the ongoing symptoms. Unfortunately he was not cross-examined about that omission.
· I am satisfied that the plaintiff exaggerated his symptoms when he saw Mr Stuart on 19 June 2007. In particular, Mr Stuart noted a range of movement on straight leg raising of 5° on the right and 0° on the left when the plaintiff was supine, but 70° bilaterally when he was seated. There should have been no discrepancy between the range of movement when supine and the range of movement when seated. None of the other medical witnesses ever noted such a discrepancy. This of course is a serious indication of unreliability at best, and dishonesty at worst, on the part of the plaintiff. However I think Mr Stuart's opinions were unduly coloured by his assessment of the plaintiff's lack of veracity. His evidence does not indicate that he even considered the possibility that the plaintiff suffered something worse than short-lived soft tissue injuries, and overstated his symptoms.
In evaluating Dr Hwang's evidence, I have come to the conclusion that his opinions were largely based on an inaccurate understanding of the wood chopping incident and its consequences. This may have resulted in part from the provision of muddled or inaccurate information about that incident. In his first report, dated 12 June 2007, Dr Hwang said this:
"I note the mention about the wood chopping incident in the medical reports. Mr Hall maintains that he consistently experienced neck, lumbar and left leg symptoms since the accident. It was reported by Dr Dalton that on 26 July 2004, Mr Hall consulted him, reporting acute lower back pain radiating to the left side whilst wood chopping.
Mr Hall maintains that he continued to experience these symptoms but that they were exacerbated on that day, on his first attempt at wood chopping since the accident."
In fact Dr Dalton made no note of leg pain until 6 March 2006. After the wood chopping incident, he noted pain and tenderness over the left side of the 9th and 10th thoracic vertebrae, but nothing relating to any other area.
Dr Hwang took a new history from the plaintiff when he saw him on 24 September 2009. In a report dated 5 October 2009 he said this:
"The wood chopping incident mentioned was also described previously and I again questioned Mr Hall about this. He described how on that occasion he had attempted the wood chopping but suffered an acute/severe lower back pain whereby he landed on the floor."
It is clear that the history given by the plaintiff on that occasion was inaccurate. From the notes of Dr Dalton and the 2004 x-ray report, it is clear that only the area of the thoracic spine was affected at the time of the wood chopping incident.
Later in the same report, Dr Hwang set out a question asked by the defendant's solicitors, and his response to that question, as follows:
"8 Is the fact that lower limb symptoms were not complained of (and presumably not experienced) by Mr Hall to, at the earliest the 26th July 2004 consultation following the incident cutting wood and then not until the 6 March 2006 after twisting inconsistent with the L5/S1 disc prolapse causing symptoms prior to that time, and/or with the disc prolapse having been caused by the motor vehicle accident and/or are more consistent with the disc prolapse having resulted from the incident cutting wood on the 26th July 2004 and/or the twisting of the back on the 6th March 2006;
I consider the onset of his left leg symptoms to be of significant importance relating to causation.
I note the absence of any documentation relating to his leg pain until some 8 months after the accident. Although this does not preclude the possibility of L5/S1 disc prolapse at the time of the accident, considering the medical documentation reporting relatively mild lumbar symptoms in early 2006, as well as the subsequent episode of wood chopping-related injury of severe lower back pain followed shortly thereafter by leg pain, I consider it most likely that the L5/S1 disc tear has occurred as a result of the wood chopping incident."
However it is clear from Dr Dalton's records that there was no suggestion of any low back pain at the time of the wood chopping incident of July 2004, let alone "severe lower back pain", and that there was no suggestion of leg symptoms prior to 6 March 2006.
In his final report, dated 9 July 2013, Dr Hwang inaccurately recorded that the first mention of back pain was on 27 July 2004 – the day after the wood chopping incident. In fact the first record of a complaint of back pain is in Dr Gardner's note relating to a consultation on 8 December 2003, when the plaintiff complained of an onset of lumbar spine pain two days previously – or three days after the accident.
I reject Dr Hwang's opinion as to the significance of the wood chopping incident because it is based on misconceptions as to the history of the plaintiff's complaints of pain. I am unable to say what Dr Hwang's opinions would have been if he had got the plaintiff's history right. I prefer the opinions of Dr Dalton, Dr Paton and Dr Thompson to those of Dr Hwang and Mr Stuart. Dr Dalton has a thorough and accurate understanding of the history of the plaintiff's symptoms and treatment, having been his general practitioner for many years. Dr Paton and Dr Thompson have based their opinions on accurate information, without making any false or inappropriate assumptions.
Generally speaking I found the evidence of Dr Sale more impressive than that of Dr Chambers, for a number of reasons. For one thing, Dr Sale's experience in the practice of psychiatry exceeds that of Dr Chambers by over 20 years. Perhaps more significantly, I see no reason why the plaintiff's injuries and the resulting symptoms might have had a greater effect on his mental state than the various other stress factors identified by Dr Sale. However, I accept, on the basis of Dr Chambers' evidence, that the plaintiff's continuing pain problems have a continuing minor impact on his mental state. In my view Dr Sale could not be in a position to rule that out, having regard to the way the plaintiff conducted himself during the 2008 and 2011 interviews. However I am not satisfied that the plaintiff's mental state continues to be substantially affected by his injuries and their aftermath.
This is a case to which s13(1) of the Civil Liability Act 2002 applies. That subsection reads as follows:
"(1) Prerequisites for a decision that a breach of duty caused particular harm are as follows:
(a) the breach of duty was a necessary element of the occurrence of the harm ('factual causation');
(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ('scope of liability')."
On the basis of my analysis of the medical evidence above, I am satisfied on the balance of probabilities that the defendant's breach of duty in driving negligently was a necessary element of the occurrence of the plaintiff's low back injury, his neck injury, his injury to the right posterior lower chest wall, the chronic pain condition diagnosed by Dr Paton, a resultant adjustment disorder, and headaches. I am also satisfied that, because of the circumstances of the accident, it is appropriate for the scope of the liability of the defendant to extend to all the harm that I have referred to.
Impairment of earning capacity
Dr Paton's opinion is that, as a result of the injuries the plaintiff suffered in the accident, he is not suitable for employment involving physical labour, particularly building work, plastics work and fencing work. Dr Paton accepted that the plaintiff may be able to perform some hairdressing work, but that his capacity for that work would be limited because he could not stand for long periods or bend over people for long periods.
Dr Thompson's opinion was that it might be possible for the plaintiff to return to work, at least part-time, but that there would need to be a graduated return to work under the supervision of an occupational therapist or a physician.
In a report dated 12 June 2007, Dr Hwang commented, "… if one accepts his self-reported function, I consider that he is incapacitated from performing work as a fencer, fence post producer or labourer". Of course Dr Hwang did not accept much of what the plaintiff told him. However he went on to say that he considered the plaintiff unfit for hairdressing in view of his height – 193 or 194cm – and the nature of hairdressing duties. He said that the plaintiff was fit for duties with moderate manual handling, not requiring significant bending or awkward postures or repetitive handling of heavy objects.
Having regard to those opinions, I accept that, as a result of the injuries suffered in the accident, the plaintiff is unfit for heavy physical work, including work that involves repeated bending or lifting. His earning capacity is impaired.
However I am not satisfied that he is incapacitated for all work. I see no reason why he could not do work that is not physically demanding. For example, I expect he would be fit to undertake sales work in a hardware store or at a service station. His residual earning capacity must be taken into account in assessing damages. More significantly, the evidence establishes that, if the plaintiff had not been injured in December 2003, it is very likely that he would have only partly exploited his earning capacity, for a variety of reasons.
Post impairment of earning capacity
Counsel for the plaintiff argued that I should assess damages by reference to the likely profits of the business that the plaintiff had been planning to establish that involved making and installing concrete fence posts. He relied on a cash flow budget, prepared in January 2005, which predicted an operating surplus for the first 12 months amounting to $84,290 before finance costs and tax. However it would be most inappropriate to assess damages by reference to the earnings of that hypothetical business. There are a great many uncertainties as to how profitable or unprofitable such a business might have been. The demand for the proposed fence posts was never tested. The plaintiff's business acumen might have been found wanting. He did not have a driver's licence, and that could have been a great handicap. He had no capital. His expenses might have been greater than predicted. The business could well have lost money and failed, as his hairdressing business in Mornington did.
In assessing damages for the impairment of a plaintiff's earning capacity, it is often appropriate to begin by making some estimate of what he or she would have been capable of earning if he or she had not been injured and had been fully employed. Counsel for the plaintiff adduced evidence of the award wages for plastic fabrication employees, hairdressers, and employed builders. The following facts are established by the material before me:
· Under the Manufacturing and Associated Industries and Occupations Award 2010, the minimum hourly award wages for an adult employee, at the time of the trial, depending on classification level, varied from $16.37 to $25.78. That award applies to employees engaged in the fabrication of plastic products.
· Under the Hair and Beauty Industry Award 2010, the minimum weekly wage for a qualified hairdresser, at the time of the trial, depending on classification level, varied between $683.40 and $787.00.
· Under the Building and Construction General On-site Award 2010, the minimum weekly wage for an employed adult builder, at the time of the trial, depending on classification level, varied between $654.00 and $847.60. Those wage rates also applied to adults who were employed to do fencing work.
I have no evidence as to the award rates of pay for plastic fabricators, hairdressers, or fencing employees over the ten years between the accident and the trial. More significantly, the evidence establishes that the plaintiff hardly exploited his earning capacity at all during the ten years before his accident, and suggests that he probably would have earned very little after the date of the accident if it had not occurred. It would therefore be completely inappropriate to assess his damages for past economic loss by reference to the income that he could have earned if he had been uninjured and fully employed.
Copies of all the plaintiff's available income tax returns and assessment notices were tendered at the trial. They go back as far as the 1990 tax year. They reveal the following:
· In the 1990 tax year the plaintiff earned $23,912 gross as a plastic fabricator, and received a further $60,000 from a partnership or trust. I infer that that came from a family business.
· In the 1991 tax year his gross income comprised $4,800 from plastic fabrication employment and $3,745 in social security benefits.
· In the 1992 tax year his gross income was $23,498, all from plastic fabrication work. After tax and the Medicare levy, his income was $19,081 for the year, which is the equivalent of about $367 per week.
· No documentation is available for the 1993 and 1994 tax years.
· His gross income for the 1995 tax year was only $5,482. His assessment notice shows that he was given credit for only $34.80 in respect of group certificates. I infer that he did hardly any remunerative work that year.
· In the 1996 and 1997 tax years he had no income other than social security benefits.
· No documentation is available for the 1998 and 1999 tax years.
· In the 2000 tax year his gross income was $6,419. As his assessment notice says nothing about group certificates, I infer that that all came from social security benefits.
· In the 2001 tax year his only income came from social security benefits.
· In the 2002 tax year his taxable income comprised $1,632 from hairdressing work and $9,399 from social security benefits.
· In the 2003 tax year he earned $1,288 (after expenses) as a fencing contractor and received $8,169 in social security benefits.
· In the 2004 tax year – the year during which the accident occurred – his income comprised $650 gross from employment as a labourer and $9,225 from social security benefits.
In summary, it appears that the plaintiff fully exploited his earning capacity until some time in early 1993, when he ceased working as a plastic fabricator and set out to travel around Australia, and that thereafter he hardly exploited his earning capacity at all. In the 2½ years leading up to the accident, it appears that on average he earned around $25 to $30 per week.
The evidence established that there were various reasons why the plaintiff earned so little during the ten years before the accident. He made a decision to give up full-time work and spend years travelling around Australia. He had a drug problem. He had mental health problems. He spent time in prison on a few occasions. He spent over a year in full-time retraining for hairdressing work.
As I have said, the plaintiff gave evidence that he has been unable to do any physical work since the accident, but there is evidence that suggests otherwise. That evidence can be summarised as follows:
· Ms Scott's physiotherapy progress notes for 5 March 2004 include a note reading, "Has been working".
· On 20 July 2005 he told his general practitioner, Dr Dalton, that he was unable to do full-time work, but that he did residential fencing, and had just designed a new mould for a concrete fence post.
· On 26 July 2006 he told Mr Wilson, the physiotherapist, that he had been "doing odd jobs".
· On 28 July 2006 Mr Wilson noted a complaint of "work ache".
· On 25 May 2007 Mr Wilson noted that the plaintiff had been building a shed.
· On 26 November 2008 he told Dr Dalton that he did four days' work at the beginning of that month, doing footings for houses, getting in and out of trenches.
· In September 2009 when Dr Hwang asked the plaintiff about ongoing employment, he said that in November 2008 he had tried to help a friend, but ended up needing to lie down in a ditch, and that his friend had to get someone else to help.
· On 23 February 2010 a Dr Dale from the Pain Management Unit of the Royal Hobart Hospital wrote to Dr Dalton about the plaintiff's headaches. In that letter he said, "He also reports that he feels well enough to return to work (although when he tried it he found that he had pain in his shoulders from the deconditioning)."
· On 24 February 2010 he told Dr Dalton that he had tried hairdressing again, but that that fatigued his shoulders. He also said that his lower back was playing up with the trial of lifting.
· Under cross-examination the plaintiff conceded that in July 2011 he registered the business name AAA Plastics Engineering. Counsel for the defendant tendered a profit and loss statement for that business for the year ending 30 June 2012. It showed that the business received $909.08 during that financial year. The plaintiff said that that came from haircuts. According to the statement, no other monies were received, and the business incurred operating expenses of over $13,000, including $1,363.64 for accounting fees, $489.45 for office supplies, $347.27 for flights, and $4,917.58 for maintenance.
· During 2011 the plaintiff wrote to the Centro Properties Group expressing interest in leasing a hairdressing salon in a shopping centre in Somerville, Victoria. That proposal apparently came to nothing.
· On 6 October 2011 he again spoke to Dr Hwang about attempts to find work. In a report dated 18 November 2011, Dr Hwang wrote the following about that conversation:
"He stated that he had tried getting work. He has helped his brother sell coins. He stated that this involved sitting down looking at coins all day and that he felt 'knackered at the end of the day'. He tried doing hairdressing starting at four hours and then increasing to six hours. He stated that after a period of time holding his arms up he could feel the pressure in his back and neck. He was in so much discomfort that by the time he finished he would walk home and pass out."
· On 24 October 2012 he told Dr Dalton that he still wanted to work; that he did one or two haircuts per week; and that he had done some drawings for fume extraction units.
Several of those pieces of evidence indicate that the plaintiff was trying to do more work than he was able to do. The evidence clearly establishes that his earning capacity has been impaired, to some degree, ever since the accident. I am satisfied on the balance of probabilities that, but for his injuries, he would have earned a little more than he did over the last 10½ years - but only a little more, not a great deal more. In the circumstances, I think it appropriate that he recover $10,000 for the impairment of his earning capacity between the date of the accident and the date of this judgment. That represents a little under $20 per week for a little over 10½ years.
Future impairment of earning capacity
The plaintiff is entitled to an award of damages to compensate him for the impairment of his future earning capacity. However the appropriate award under this head in this case must be an unusually small one because (a) for the various reasons that I have referred to, it is likely that, even if he had not been injured in the accident, the plaintiff would have earned very little; and (b) he has a residual earning capacity.
In assessing the plaintiff's damages for the impairment of his future earning capacity, I will begin by calculating the damages that would have been appropriate compensation for him under this head if he had always been fully employed, and if his earning capacity had been totally destroyed, and then use that figure as a yardstick.
If the plaintiff had not been injured in 2003, and if he had chosen to exploit his earning capacity by undertaking full-time work, I am satisfied, on the basis of the evidence before me as to award wages, that he could now be earning something in the vicinity of $800 per week before tax. Allowing for income tax ($5,067 on an income of $41,600 per annum) and the Medicare levy ($624 as 1.5% of $41,600), I calculate that that would equate to an income of $35,909 per annum or $690.55 per week after tax. The applicable discount rate in relation to a cause of action that accrued in December 2003 is 7%: Common Law (Miscellaneous Actions) Act 1986, s4. The plaintiff will become eligible for an age pension when he attains the age of 67 years: Social Security Act 1991 (Cth), s23(5A). At present he is 45 years old. The amount required to compensate a person for the loss of an income of $690.55 per week for a period of 22 years, applying a discount rate of 7%, is calculated as follows: $690.55 x 597 = $412,258.
It is likely that the plaintiff, if uninjured, would have spent most of his working life either unemployed or substantially under-employed. Allowance must be made for the possibility that he might have established a business that lost money and failed. One must also make allowance for the usual adverse contingencies including early death, illness and injury. The plaintiff seems to have had more than his fair share of illnesses and injuries. I see no reason why he might not, in time, obtain suitable light work if he makes a reasonable effort to find such work. I accept that jobs suitable for him must be hard to find, hard to get, and often hard to keep.
In the circumstances, I think the only appropriate approach to the assessment of damages for the impairment of his future earning capacity is a "broad brush" approach. Doing the best I can, I consider an award of $40,000 to be appropriate. That represents approximately 10% of the figure of $412,258 calculated above, after reductions to allow for adverse contingencies and his residual earning capacity.
Past medical expenses
The MAIB has paid a total of $6,693.47 by way of scheduled benefits in respect of medical, physiotherapy, ambulance and travelling expenses in respect of the plaintiff's injuries. That amount must be taken into account in assessing his damages: Hall v Grimwood [1979] Tas R 220. However it must be deducted again pursuant to s27(1) of the Motor Accidents (Liabilities and Compensation) Act 1973.
Under this head the plaintiff is also seeking to recover the sum of $4,728.90 in respect of medical services for which Medicare benefits were paid. He tendered a letter from a Medicare officer to the MAIB, dated 22 February 2011, together with an itemised list of the relevant services. The defendant has made no concession as to any of the services in question being related to the accident. I have therefore analysed the list of services and benefits. To a large extent the evidence at the trial, particularly the medical records, supports this part of the plaintiff's claim. However some of the services in question did not relate to the injuries he suffered in the accident, or have not been shown to, and some relate to services for which the MAIB has made payments by way of scheduled benefits. The plaintiff should recover the claimed sum of $4,728.90, subject to deductions in relation to the following matters:
· Medicare paid $67.20 for the services of a pathologist named Dr L M Bott, which appear to have no connection with the plaintiff's injuries.
· Medicare paid $194.30 for the services of a pathologist named Dr D F Owens which appear to have no connection with the plaintiff's injuries.
· Medicare paid $40.30 for orthopantomography – an x-ray of the teeth and jaw – by Dr J L Shaddock, but that appears to have had nothing to do with the plaintiff's injuries.
· Medicare paid a total of $253.65 for services provided by Dr Dalton on 16 and 23 August 2004, 16 May 2006, 21 June 2006, 23 August 2006, 28 August 2007, 12 September 2007 and 10 December 2007, but the MAIB also paid for the services provided by him on those dates.
· Medicare paid $30.70 for services provided by Dr Dalton on 19 April 2004, but those services related to a foot injury unconnected with the accident.
· Medicare paid $76.40 for services provided by Dr Dalton on 29 June 2005, but those services related to a knee wound unconnected with the accident.
· Medicare paid $80.20 for services provided by Dr Dalton on 19 and 20 February 2007, but those services related to a foot injury unconnected with the accident.
· Medicare paid $189 for services provided by Dr Dalton on 2 and 5 May 2008, but those services related to an episode of chest pain unrelated to the accident.
· Medicare paid $41.90 for services provided by Dr Dalton on 12 October 2009, but those services related to a thumb injury and a boil on the plaintiff's bottom, neither of which were related to his accident.
· Medicare paid $38.50 for services provided by Dr M A Gauden on 8 July 2005, but those services related to the cancer on the plaintiff's leg, not his accident.
· Medicare paid $39.30 for services provided by Dr A W Gangell on 19 January 2006, but those services related to a chest injury suffered by the plaintiff when his daughter jumped on him, not to his accident.
· Medicare paid $41.90 for services provided by Dr G N Fantini on 2 June 2009, but those services related to sinusitis and bronchitis, not the plaintiff's accident.
· Medicare paid $33.80 for services provided by Dr S B Hamilton on 13 January 2009, but those services related to the plaintiff's thumb injury, not his accident.
· Medicare paid $401 for services provided on five occasions in 2010 by Ms E G Schwab of Mornington in Victoria, but I have not found any evidence of what those services were, and am therefore not satisfied that they related to the plaintiff's accident.
· Medicare paid $73.80 for two x-rays performed by Dr P A Ross in 2007, but they related to the plaintiff's right foot injury and his left knee, not to his accident.
· Medicare paid $229.05 for services provided by Dr M F Donnelly of Red Hill South in Victoria on three occasions in 2010, but I have not found any evidence of the nature of those services, and am therefore not satisfied that they related to the accident.
After deducting these amounts from $4,728.90, I am satisfied that the plaintiff should recover $2,897.90 in respect of the services itemised by Medicare.
The plaintiff resumed seeing Dr Dalton in August 2012 after moving back from Victoria. There is evidence that Dr Dalton charges $73 for a standard consultation and $115 for a longer consultation. The plaintiff's counsel submitted that he should recover damages for about six visits per year to Dr Dalton. Having studied the records from Dr Dalton's practice, I consider this to be reasonable. The plaintiff should recover $1,000 for the cost of visits to Dr Dalton between his return from Victoria and the date of this judgment.
In summary, I will allow $10,591.37 in respect of past medical expenses, made up as follows:
Payments by MAIB
$6,693.47
Payments by Medicare
$2,897.90
Payments to Dr Dalton
$1,000.00
Total
$10,591.37
Past pharmaceutical expenses
The plaintiff is claiming $3,000 under this head, representing about $300 per year. The evidence establishes that he is presently spending a little over $25 per week on medication for the treatment of his accident-related conditions. The claim for $3,000 is a modest one, and should be allowed in full.
Future pharmaceutical expenses
At the time of the trial the plaintiff was taking Naproxen, Panadeine Forte, Gabapenteine and Tramadol for pain management, Valium for anxiety, depression and sleep problems, and an anti-inflammatory named Panafcortolone. Dr Dalton gave details of their cost in a proof dated 31 January 2014. Dr Thompson gave details of the dosage of each of them in a report dated 16 January 2014. I am satisfied from the evidence of those doctors that these medications are appropriate, and that the cost incurred is reasonable. I calculate that the current cost of these medications is about $25 per week.
It is reasonable to assume that the plaintiff will need to continue this level of expenditure, more or less, for the rest of his life in order to alleviate his accident-related symptoms. The amount required to compensate a man aged 45 for expenditure of $25 per week for the rest of his life can be calculated as follows: $25 x 629 = $15,725. However the plaintiff claimed only $14,503.84 under this head. I will allow that amount.
Future medical expenses
Dr Paton and Dr Dalton consider that the plaintiff should undertake diagnostic facet joint blocking. Dr Paton considers that this might need to be repeated on one or two occasions, but it might not. Dr Dalton has estimated the cost of this procedure at approximately $3,000 to $4,000, including x-ray and hospital costs. Doing the best I can, I think the plaintiff should recover $7,000 in respect of the possible cost of facet joint blocks.
Dr Paton considers that a denervation procedure might be appropriate, depending on the result of the facet joint blocks, and that such denervations may need to be repeated on several occasions in subsequent years. He estimated the cost of a denervation procedure to be approximately $5,000. Dr Dalton estimated the cost at approximately $4,000 to $5,000, taking into account x-rays and hospital costs. The plaintiff may end up having a denervation procedure once, several times, or not at all. Doing the best I can, I think he should recover $9,000 to cover possible future denervation procedures.
The plaintiff will need to continue seeing his general practitioner about his accident-related symptoms for the rest of his life. I think it appropriate to allow for six standard consultations per annum at $73 each. That equates to $8.42 per week. The amount required to compensate a man aged 45 for expenditure of $8.42 per week for life can be calculated as follows: $8.42 x 629 = $5,296.18. The plaintiff should recover $5,300 in respect of future visits to general practitioners.
In summary, I award the following in respect of future medical expenses:
Facet blocks
$7,000
Denervations
$9,000
General practitioners
$5,300
Total:
$21,300
Pain and suffering and loss of amenities
I accept that the plaintiff is disabled, to a degree, as a result of his neck, back, leg and chronic pain symptoms. I also accept that his disability is not as bad as he has often made out. That is clear from some of the surveillance footage. He had significant mental health problems before his accident. Whilst I accept that he has an ongoing adjustment disorder, it is clear that its impact is fairly minimal. Having regard to all that I have said in relation to the impact of the plaintiff's injuries, I consider that he should recover $45,000 under this head.
Conclusion
I therefore calculate the plaintiff's damages as follows:
Pain and suffering and loss of amenities
$45,000.00
Past impairment of earning capacity
$10,000.00
Future impairment of earning capacity
$40,000.00
Past medical expenses
$10,591.37
Past pharmaceutical expenses
$3,000.00
Future pharmaceutical expenses
$14,503.84
Future medical expenses
$21,300.00
$144,395.21
Less scheduled benefits paid by MAIB
$6,693.47
$137,701.74
That figure should be rounded down. There will be judgment for the plaintiff against the defendant for $137,700.
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