Hargrave v Singh - [2019] ACTSC 139

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hargrave v Singh
Citation:	[2019] ACTSC 139
Hearing Dates:	12-13 September 2018; 29-30 October 2018; 18 February 2019
DecisionDate:	4 June 2019
Before:	Burns J
Decision:	See [97] - [98]
Catchwords:	PERSONAL INJURY – Pedestrian struck by taxi – taxi driven by first defendant – whether collision was caused by negligence of first defendant – whether plaintiff is guilty of contributory negligence – consideration of degree of intoxication of plaintiff – consideration of s 95 of the Civil Law (Wrongs) Act 2002 (ACT) – consideration of damages – consideration of the medical evidence
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) s 95
Cases Cited:	Graham v Baker [1961] HCA 48; 106 CLR 340
Parties:	Joshua Hargrave (Plaintiff) Amandeep Singh (First Defendant) Insurance Australia Limited Trading as NRMA Insurance (ACN: 000 016 722) (Second Defendant)
Representation:	Counsel Mr A Muller (Plaintiff) Mr W Fitzsimmons (Defendants)
Solicitors Maliganis Edwards Johnson (Plaintiff) Sparke Helmore (Defendants)
File Number:	SC 92 of 2017

BURNS J

The plaintiff claims damages for personal injury said to have been occasioned when, as a pedestrian, he was struck by a taxi driven by the first defendant on or about 24 May 2014. The defendants admit that the taxi driven by the first defendant struck the plaintiff, but deny that this collision was caused by the negligence of the first defendant. In the alternative, the defendants allege that the plaintiff is guilty of contributory negligence.

The events of 24 May 2014

The plaintiff and a number of his friends went out to Mooseheads Pub and Nightclub in Civic on the evening of Friday, 23 May 2014. At about 9 pm that night, he and his girlfriend Tegan Lovelock went to the home of friends, Murray Anderson and Rebecca Burrows. The plaintiff consumed about two beers before his mother drove the four of them into Civic, arriving at about 11 pm. At Mooseheads they danced and consumed further alcoholic drinks. They also met some other friends. To the best of the plaintiff’s recollection, he consumed five or six schooners of beer at Mooseheads between when they arrived and when they decided to leave at about 3 am on Saturday 24 May 2014. The plaintiff described himself as “happy, able to walk, talk fine and felt quite comfortable… other than being slightly tired”. When asked whether he felt affected by the alcohol he had consumed, he said: “[o]nly minor”.

The plaintiff, Tegan Lovelock, Murray Anderson and Rebecca Burrows, with Rebecca’s brother Jonathon, and Tegan and Rebecca’s friend Sophie Anderson, walked to the taxi rank in Civic after leaving Mooseheads. The six of them got into a “van maxi-taxi” driven by the first defendant. The first defendant asked for payment to be made up front before he commenced the journey. After some discussion, the first defendant agreed to commence the journey without up-front payment, but the plaintiff described him as “quite resistant” to that course.

The taxi first travelled to Kambah, where Sophie left the taxi. She paid the driver $30.00. The plaintiff said that the first defendant agreed that this sum would be deducted from the fare. The taxi then proceeded to Jonathon and Rebecca Burrows’ residence when there was “an argument over the fare in terms of the card fare and also that he had not removed the $30.00 from the fare”. After some discussion, the first defendant removed the $30.00 paid by Sophie from the fare. Murray Anderson also got out at this point, leaving the plaintiff and Tegan Lovelock in the last row of seating in the taxi. The taxi was then directed to the plaintiff’s parents’ address in Fimister Circuit in Kambah. The first defendant re-set the meter before commencing this journey, meaning that a further “flag fall” fee was charged. The plaintiff and Ms Lovelock had a discussion with the first defendant about this, as they considered it unfair.

Fimister Circuit is, in reality, a cul-de-sac. The road comes off Maxworthy Street, and as you travel along Fimister Circuit from Maxworthy Street it circles around to the left and rejoins itself. Looked at from its intersection with Maxworthy Street, Fimister Circuit has the shape of a reversed letter “P”.

The plaintiff became concerned about the cost of the journey as they drove from the Burrows’ residence to Fimister Circuit. He said that with the flag fall fee, it had mounted to $10.00 for a “2 minute car ride” when they entered Fimister Circuit. They asked the first defendant to stop at the point where the loop of Fimister Circuit rejoins itself. To get to the plaintiff’s parents’ house from there it was necessary to turn left into that intersection and walk up an incline. The plaintiff alighted from the taxi, followed by Ms Lovelock. The plaintiff gave his credit card to Ms Lovelock and she paid the fare. Ms Lovelock then closed the rear sliding door of the taxi and the first defendant raised his middle finger at the plaintiff before accelerating away “quite quickly”. The first defendant drove straight along Fimister Circuit, which meant that he would have to travel around the loop in that road, and rejoin it at the point where the plaintiff and Ms Lovelock had alighted.

After alighting from the taxi, and paying the fare, Ms Lovelock gave the plaintiff the receipt. The plaintiff noted that there was a credit card fee which he felt was disproportionate to the fare. He commenced to travel up the loop of Fimister Circuit in the opposite direction to that in which the first defendant was travelling. The path taken by the plaintiff was also towards his parents’ house. The plaintiff intended to flag down the first defendant to dispute the credit card fee. As he walked uphill on Fimister Circuit he initially walked on the left hand nature strip (from his point of view). The plaintiff said that as he proceeded up the hill, he left the nature strip and moved onto the road surface. He was in the middle of the left hand lane, from his point of view. At that time the taxi was not in sight. The plaintiff came to a stop as he saw the taxi come over the crest of the hill in front of him. At that time he was about one and a half house blocks away from the taxi. At that time the taxi was in the right hand lane from the plaintiff’s point of view. The taxi had its headlights illuminated. The street itself was poorly lit. As the taxi came over the rise, the plaintiff heard the engine rev, and the taxi moved into the left hand lane where the plaintiff was standing and continued to accelerate. The plaintiff waved his hands above his head to try to get the first defendant’s attention, but the taxi continued to move towards him in the left lane. The plaintiff tried to move off the road, to his left, and had moved about one metre when the taxi struck him. He was able to remember his left wrist hitting the side mirror of the taxi, and then ending up in the gutter. The taxi did not stop.

The plaintiff was “quite dazed”, but noticed immediately that he had a laceration to his left hand, his wrist watch was broken, and he was in “quite a bit of pain”. He noticed that he had pain in his neck and right shoulder. Ms Lovelock went to the plaintiff’s parents’ house, and they returned to the scene with her and assisted the plaintiff back to their house. The police were called. The plaintiff’s mother attempted to clean his wounds, and gave him a glass of water with brandy in it to help to “settle him down”, as he was “shaken”. The police suggested that the plaintiff go to the hospital to be checked out. The plaintiff’s mother then drove him to the hospital.

At about 6.20 am on 24 May 2014 a sample of the plaintiff’s blood was taken at the hospital. Later analysis of that blood revealed that ethyl alcohol was detected at a concentration of not less than 0.109 grams per 100 millilitres of blood.

Tegan Lovelock gave evidence which significantly supported that of the plaintiff on essential matters. She believed that the plaintiff had probably only consumed “three or four drinks” at Mooseheads, whereas the plaintiff estimated that he had consumed five or six schooners of beer. It is probable that the plaintiff’s estimate is more reliable. The variation between the plaintiff’s evidence and that of Ms Lovelock on this issue is not significant in my opinion. She said that when they left Mooseheads the plaintiff was “[p]retty normal… happy, talkative”. She said that none of the occupants of the taxi were “really drunk”. Ms Lovelock confirmed that there were disagreements with the first defendant concerning the fare in the course of the journey in the taxi. She confirmed that the first defendant raised his middle finger to them before he drove off on Fimister Circuit. The plaintiff was about five metres in front of her on the nature strip as they moved towards the plaintiff’s parents’ house. She saw him move from the gutter to a position half way between the left hand edge of the road and the centre of the road. She saw the taxi coming towards them. She described it as being in the centre of the road. She said that the plaintiff began waving his arms above his head. She heard the engine of the taxi rev, and saw it swerve completely onto the wrong side of the road and hit the plaintiff, who had tried to move over to the curb. She said that the bonnet, windscreen and mirror area of the side of the taxi struck the plaintiff. The taxi then accelerated away while on the incorrect side of the road, coming within about four inches of where she was standing on the side of the road. It did not stop.

Ms Lovelock went to the plaintiff’s parents’ house and got them to assist her in moving the plaintiff back to the house. She recalled that the police were called and the plaintiff was taken to the hospital.

The first defendant was unable to be located, and took no personal part in the hearing of this claim. He did, however, make a written statement dated 22 September 2014 to an investigator engaged by the second defendant, the compulsory third party insurer. He told the investigator that all six people who got into his taxi that evening (in the party including the plaintiff) were drunk. He said that they were abusing each other and swearing. He said he dropped four people at the first stopping point, in Kambah. There was an argument about the 10 per cent surcharge for credit card use. He then took the remaining two people to another address. With regard to what then occurred, he said:

18. I had charged the maxi faire [sic] to the first drop off and then took it back to normal fare to drop the last two people off. The second drop off was about $11.00. The girl, who would have been about 23-24 years of age at a guess, said to drop them off at the corner of the street. I parked the taxi on the side of the road and dropped them off. I asked how they were going to pay. The girl paid on her credit card.
19. The man, who was also about 23-24 years of age, was drunk and arguing with me still and abusing me for taking extra charge from the credit card. The man was still in the taxi and did not want to get out. The girl was trying to get him out. The man put his arm out towards me and the girl pulled him out of the taxi and shut the door. The man was trying to get to me but when she pulled him out, he started kicking into the door of the taxi. The girl told me to just go.
20. I left from there and went around the full circuit of Fimister Street to get out. As I was coming out of the circuit, I saw the man running out from my right side from bushes towards me. I was watching out the front windscreen, not to the side, I saw he had something in his hand and I thought he was going to smash the taxi or the window. He was too close to smash anything and hit the side mirror and fell down.

21. He scared me when I saw him running out from the bushes.
22. When I saw he was running at me, I swerved the taxi to the left trying to avoid him as much as I could. I was thinking I had to pass him and I had to go. The street was not wide and I needed to get out of there.
23. The man got to the taxi and was trying to smash the taxi window with whatever it was he had in his hand. I’m not sure what hit the mirror, whether it was his arm or if it was with the thing he had in his hand. He fell down and I saw him get back up.
24. I slowed right down to about 5km/h. I was too scared to stop the car completely. I fixed the mirror and saw him running after me again. The girl was yelling for me to get going and get out of there. I could not see her as she was standing in the bushes in the dark.
25. I left the street and kept going. I’m not sure if I went home or went back to work after that.
26. I say that the man was really drunk because he could not hold himself up, his voice was slurry, he was swaying when he walked. When he was running from the right with something in his hand, he was swaying as he ran.
27. In my view, the man could not have been hurt by the taxi. He hit the driver’s side mirror on the taxi only but I don’t know if it was with his arm or the thing he was holding in his hand. That he got up and was running and chasing me down the road appeared to me that he was not injured. He got up off the road straight away. It was very quick. He was swaying when he was running towards me from the bush to my right and was running in the same swaying way when he was chasing the taxi down the road.

Before making that statement, the first defendant participated in a taped record of interview with police on 19 June 2014. A transcript of that interview was tendered as Exhibit 10. The first defendant was accompanied to the police station and in the interview by an interview friend, who appears to have provided some assistance in translating for the first defendant. In this interview, the first defendant told police a version of events that was similar to that found in his later statement to the investigator, except that he made no mention of the plaintiff kicking the door of the taxi, or of him seeing something in the plaintiff’s hand when he attacked the taxi. The first defendant said he did not call police or an ambulance, because the plaintiff got up off the road after attacking the taxi, and chased him. The first defendant believed the plaintiff was not injured and that Ms Lovelock would be able to take him home. He did not report the incident to police or to his supervisor, because, he said, incidents like this happened all the time.

In my opinion, the version of the relevant events, on how the collision between the taxi and the plaintiff occurred, given by the plaintiff and Ms Lovelock should be accepted, and that given by the first defendant in the taped record of interview and the statement to the investigator should be rejected. The plaintiff’s version is substantially supported by the evidence of Ms Lovelock. The evidence of Ms Lovelock and the plaintiff that the plaintiff was knocked to the ground and remained on the ground after the collision is supported by the actions of Ms Lovelock in leaving the plaintiff on the side of the road and seeking help from the plaintiff’s parents. This evidence was in turn supported by that of the plaintiff’s mother who, after being awoken by Ms Lovelock, found the plaintiff about 50 metres from her house “half on the gutter and half on the lawn”. At that time the plaintiff told her that “the taxi had hit him, had tried to run him down”. I found the plaintiff, Ms Lovelock and the plaintiff’s mother to all be credible witnesses. On the other hand, as the first defendant did not give evidence I was unable to form an opinion of his credibility under cross-examination. Parts of what he said in his taped record of interview and in his statement do not ring true. I am satisfied that the plaintiff did not attack the taxi driver by the first defendant; it would be inherently improbable that the plaintiff would physically attack a large motor vehicle travelling at around 30 kilometres per hour in the way alleged by the first defendant in his initial taped record of interview. The improbability of this version may explain why, in his later statement, the first defendant alleged that the plaintiff attacked the taxi with some implement or weapon.

I am satisfied that the plaintiff did not get up and try to chase the taxi after being knocked to the ground. This means that I am satisfied that the first defendant simply drove off after the collision, leaving the plaintiff laying on the ground. The first defendant did not know what injuries the plaintiff had sustained, and certainly was in no position to form a belief that he had not been injured and that Ms Lovelock would simply take him home. I am satisfied that the reason given by the first defendant for not calling the police and ambulance services is not true. Similarly, his expressed reasons for not reporting the incident to his supervisor or to police do not ring true.

I accept the evidence of Ms Lovelock that after the collision the taxi driven by the first defendant accelerated away from the scene, narrowly missing Ms Lovelock. The inference I draw from the manner in which the first defendant left the scene, and his failure to report the incident to police or his supervisor, is that the first defendant was conscious of the fact that he was responsible for the collision, and he hoped by leaving the scene to escape responsibility.

To be clear, I make the following findings of fact:

(a)after the plaintiff and Ms Lovelock alighted from the taxi on Fimister Circuit, the first defendant raised his middle finger to them in an offensive gesture. It is probable that he was angry because the plaintiff and the earlier occupants of the taxi had challenged him (rightly or wrongly) concerning the fares he charged;
(b)the plaintiff proceeded up the loop of Fimister Circuit with the intention of flagging the first defendant down and speaking to him about the credit card fee that he had been charged;
(c)the first defendant drove the taxi around the loop, so that he ended up driving towards the plaintiff and Ms Lovelock;
(d)the plaintiff was initially on the nature strip of Fimister Circuit, but moved onto the road, to a position about halfway between the centre of the road and the left hand gutter, from the plaintiff’s perspective;
(e)when the taxi driven by the first defendant came into view, the plaintiff waved his hands above his head to flag it down;
(f)the first defendant saw the plaintiff, accelerated, and veered towards the plaintiff. Whether he did so with the intention of striking the plaintiff with the taxi or simply scaring him I am unable to say;
(g)the plaintiff moved to his left to avoid the taxi, but was struck by the front drivers side panel and the drivers side mirror of the taxi, knocking him to the ground; and
(h)the plaintiff did not get up until his parents arrived with Ms Lovelock to assist him.

It need hardly be said that the first defendant’s driving involved a gross departure from his duty to exercise reasonable care and skill in driving the taxi.

Intoxication and contributory negligence

Two further, somewhat connected, issues need to be resolved; first, what was the degree of the plaintiff’s intoxication at the time of this incident, and, secondly, to what extent was the plaintiff guilty of contributory negligence?

The defendants submitted that the evidence established that the plaintiff was highly intoxicated. The determination of the plaintiff’s degree of intoxication is important because s 95(1) of the Civil Law (Wrongs) Act 2002 (ACT) provides that contributory negligence must be presumed if an injured person was intoxicated at the time of an accident giving rise to a claim for damages for personal injury and the defendant claims contributory negligence. The defendants in the present proceeding have, of course, claimed contributory negligence. The presumption found in s 95(1) can be rebutted if the injured person establishes on the balance of probabilities, relevantly for present purposes, that the intoxication did not contribute to the accident: s 95(2)(a). If the presumption is not rebutted, the damages to which the injured person would otherwise have been entitled must be reduced to the extent that the court considers just and equitable having regard to the injured person’s share in the responsibility for the injury.

An AFP computer record apparently prepared by a Constable Henderson was tendered by the defendants. Constable Henderson was, apparently, one of the police officers who attended the plaintiff’s parents’ house on the morning of 24 May 2014. He described the plaintiff as “heavily intoxicated and emotional”. The entry notes that the plaintiff was later admitted to hospital and was told he was suffering from concussion.

Another police officer, who attended the plaintiff’s parents’ home on the morning of 24 May 2014, Sergeant Stephen Rollings, gave evidence on behalf of the defendants. He spoke to the plaintiff and was present at the house for about 20 minutes. He described the plaintiff as “emotional” and that the plaintiff “had probably consumed a reasonable amount of alcohol”. He said that the plaintiff’s eyes were glassy and his speech was somewhat slurred. Because of the plaintiff’s emotional state and level of intoxication a decision was made not to take a statement from him that morning. In cross‑examination, Sergeant Rollings agreed that it was possible that the plaintiff may have been concussed on the morning of 24 May 2014, and that the plaintiff had complained of a head injury. He was unable to say to what extent the plaintiff’s presentation that morning was due to injury, or to intoxication.

The defendants also tendered a report from a consultant pharmacologist, Dr Judith Perl as Exhibit 11. Based on the assumption that the plaintiff had consumed two stubbies of Carlton Dry beer before going to Mooseheads, then consumed five or six schooners of Carlton Draught beer at Mooseheads and had consumed one nip of brandy at his home before going to hospital, and on the basis that the blood sample taken from the plaintiff at 6.20 am on the morning of 24 May 2014 showed an ethyl alcohol concentration of not less than 0.109 grams per 100 millilitres of blood, she calculated his likely blood alcohol concentration at about 4 am that day. On the basis that the plaintiff consumed six schooners of beer at Mooseheads, and excluding any consumption of brandy, his most likely blood alcohol concentration at 4 am would have been 0.143 grams per 100 millilitres of blood. On the assumption that he had consumed only five schooners of beer at Mooseheads, and excluding any consumption of brandy, she estimated his most likely blood alcohol concentration at 4 am as 0.109 grams per 100 millilitres of blood. Based on the plaintiff’s actual blood analysis result at 6.20 am, and excluding any consumption of brandy, his most likely blood alcohol concentration around 4 am would have been 0.144 grams per 100 millilitres of blood. Taking into account consumption of one nip of brandy after the accident, his most likely blood alcohol concentration at around 4 am would have been 0.125 grams per 100 millilitres of blood. In summary, Dr Perl expressed the opinion, based on the plaintiff’s actual blood analysis result at 6.20 am, that his likely blood alcohol concentration at 4 am if he had not consumed the brandy would have been 0.144 grams per 100 millilitres of blood, and 0.125 grams per 100 millilitres of blood if he did consume the brandy. At either of these blood alcohol concentrations, she would expect the plaintiff to have significant impairment of cognitive and motor function which would most likely have resulted in his safety as a pedestrian being compromised. At either of the estimated blood alcohol concentrations she would not expect the plaintiff to be in full control of his physical actions and would expect significant impairment of his capacity to exercise reasonable care and make judgments about the danger of approaching the taxi driven by the first defendant on a dimly lit roadway.

In cross-examination Dr Perl accepted that the likely blood alcohol concentration she had arrived at would need to be lowered if the plaintiff had consumed more than a nip of brandy.

As noted earlier, Ms Lovelock said that the plaintiff was “[p]retty normal” when he left Mooseheads. Murray Anderson, who had himself been consuming alcohol at Mooseheads, wasn’t able to specifically recall whether the plaintiff appeared to be intoxicated when they left Mooseheads, but did not believe that any of the party were “excessively drunk”. Rebecca Burrows testified that she herself was affected by alcohol on the morning of 24 May 2014 and was unable to recall how much the plaintiff had drunk that morning. She said that she did not recall the plaintiff “stumbling or slurring or anything”. In cross-examination Ms Burrows accepted that all of the party had probably been louder than normal that morning, in part due to the effects of alcohol. The plaintiff’s mother testified that when she saw him on the morning of 24 May 2014 “he had had a drink, but he wasn’t silly.” She said he was “quite coherent”. Mrs Hargrave was unable to give an accurate description of how much brandy she had put in the glass of water which the plaintiff drank after the incident.

I do not place significant weight on the contents of the police computer record prepared by Constable Henderson. That person was not called to give evidence and accordingly was not cross-examined. There was, in any event, evidence from Sergeant Rollings, who was subject to cross-examination, which would inevitably carry more weight. It is inherently unlikely that Mrs Hargrave poured a large quantity of brandy into the water consumed by the plaintiff: her intention was only to “settle him down”. As such, while the estimates of the plaintiff’s blood alcohol concentration at 4 am on 24 May 2014 made by Dr Perl cannot be absolutely accurate, I accept that they are a reasonably accurate assessment of the plaintiff’s blood alcohol concentration based on the assumptions made by Dr Perl. As I accept that the plaintiff did consume some brandy after the accident and before he went to hospital, I am satisfied that it is probable that at around 4 am he had a blood alcohol concentration somewhere between 0.109 and 0.125 grams per 100 millilitres of blood. I accept the opinion of Dr Perl that with a blood alcohol concentration in this range, the plaintiff would probably have had significant impairment of cognitive and motor function, and his capacity to exercise reasonable care and to make appropriate judgments would also have been significantly impaired.

There is a respectable argument that the plaintiff’s level of intoxication was not in any way causally connected with the injuries he sustained. This is not a case where the plaintiff was not seen by the first defendant after walking out onto a dimly lit road in the middle of the night. This was a case where, I am satisfied, the first defendant saw the plaintiff on the road and deliberately veered his taxi onto the wrong side of the road with the intention of either hitting the plaintiff or scaring him. The plaintiff, however, in his final submissions conceded that a modest reduction in damages by reason of contributory negligence was appropriate as he probably would not have gone onto the roadway to flag the first defendant down had he not been intoxicated. The plaintiff suggested a figure of 10 per cent, whereas the defendants submitted that a figure of 40 per cent is appropriate. In my opinion, the contribution made by the plaintiff’s intoxication to his injuries was minimal. He did not venture onto the incorrect side of the road, and, indeed, never came close to the centre of the roadway. If the first defendant had simply continued driving on his correct side of the road, I am satisfied that no collision would have occurred. By far and away, responsibility for the accident rests with the first defendant. He saw the plaintiff and deliberately changed the course of the taxi to drive at him. In my opinion, the very maximum reduction of the plaintiff’s damages which would be just and equitable is 10 per cent.

I will now consider damages.

Damages

The plaintiff was born in November 1992, and was therefore 21 years old at the time of this accident. He had no relevant injuries or disabilities prior to 24 May 2014. He completed his education to Year 12 level in the ACT before completing the technical requirements for qualification as a cabinetmaker in 2013. He did not, however, secure his trade certificate because he obtained employment with a company affiliated to ActewAGL in a sales role in March 2014. At the time of the accident he was in a relationship with Ms Lovelock, although they were not cohabitating. They have a daughter born in March 2013 and a son born in June 2016. They are no longer in a romantic relationship, although they continue to be on good terms.

Immediately after the accident, the plaintiff was aware of a laceration to his left hand and pain in his neck and right shoulder. He was taken to hospital and assessed before being discharged home. The next day, Sunday, he rested, and he was due to return to work on the Monday. Because of his injuries the plaintiff did not return to work the next week. He was suffering pain at multiple sites on his body, including his wrist, hand, left knee, both shoulders, lower back and neck. He was also suffering from headaches. A couple of days after the accident he consulted his general practitioner, and continued to do so in the weeks that followed.

The plaintiff’s general practitioner provided him with medication and prescribed physiotherapy treatment. The plaintiff found after the accident that he began to feel depressed and anxious, something that had not occurred before the accident. His general practitioner referred him to Headspace Psychology, which he found to be of some benefit. The plaintiff also benefited from the physiotherapy treatment he undertook.

In July 2014 the plaintiff consulted an orthopaedic surgeon by the name of Dr McNicol. At that time his neck was stiff and sore and “clicked”, he had a constant headache, his right shoulder was painful with a decreased range of movement, he had difficulty sleeping on his right side with reduced strength in his right arm, he had stiffness in his left shoulder and stiffness and loss of movement in his lower back, a painful lump on his knee and intermittent pins and needles in his right foot. At that time the plaintiff was using two to four Panadeine Forte tablets and four to nine Nurofen tablets per day. Initially the plaintiff’s physiotherapy was paid for by the insurance company, but at some point that stopped. The plaintiff continued to attend physiotherapy at his own cost for a short time, but could not afford to continue.

In August 2014 the plaintiff consulted his general practitioner because his mood had deteriorated and he had lost interest in sex. His general practitioner referred him to a psychologist, Dr Nomchong. The plaintiff started seeing Dr Nomchong regularly in October 2014.

In March 2015 the plaintiff suffered an exacerbation of back pain while suffering a vomiting illness. He was treated at hospital for the illness, but was not provided with any treatment for his back pain. The pain returned to its pre-existing level over a few weeks.

In May 2015 the plaintiff saw a psychologist, Leesa Morris, at the request of his lawyers. At that time he rated the pain in his right shoulder at two out of 10 on a good day, and a six or seven out of 10 on a bad day. The pain in his neck had reduced from nine out of 10 just after the accident to between three and eight out of 10. Initially after the accident his pain in his lower back was about eight out of 10, but by May 2015 it was fluctuating between two and eight out of 10. The plaintiff had difficulty sitting comfortably in May 2015, and had to regularly change positions. He had difficulty bending, and in lying down comfortably.

In August 2015 the lawyers for the defendants referred the plaintiff to Dr Robert Still, a sports physician. By that time the plaintiff had noticed that the physical requirements of his work aggravated his neck pain. The plaintiff also continued to suffer from headaches, and his neck problems caused him difficulties in driving.

By August 2015 the pain in the plaintiff’s left shoulder was “pretty good”. He had not been able to return to the gym because of his pain. With regard to his (presumably right) shoulder he still had restriction of movement and reduced strength. His mother was assisting him with massage, and he continued to take medication.

In October 2015 the defendants’ lawyers referred the plaintiff to a psychologist, Dr McMahon. At that time the plaintiff was feeling nervous or anxious at least twice a day. He found that driving or being near traffic contributed to his anxiety. The plaintiff’s sleep was also affected by his pain and nightmares. His energy levels were reduced, he had continuing problems with libido and he was socially withdrawn. His group of friends had considerably diminished; he did not want to engage with people, he felt tired, “cranky” and scared to go out.

In December 2015 the plaintiff saw a urologist, Dr Edward Korbell, who prescribed Viagra. The plaintiff continued to consult Dr Nomchong until about April 2016.

In about April 2016 the plaintiff was referred by his lawyer to see a pain physician, Dr Champion. At that time the plaintiff’s pain had improved and he felt that he had made progress with his mental health. He was suffering from “restless legs” which caused him difficulty in sleeping.

In September 2016 the plaintiff’s general practitioner sent him to see an orthopaedic surgeon, Dr Gordiev, about his shoulder. Dr Gordiev recommended a strengthening program, but the defendants’ insurer was unwilling to fund it, and the plaintiff could not afford it.

In April 2017 the plaintiff commenced work with the ActewAGL affiliate, Green Home Green Planet as a team leader/upgrades manager. This entailed managing staff, general reporting, computer work, site visits to make sure that work had been done properly and managing compliance for upgrades. This position requires less of him physically than his previous position. The plaintiff now manages a staff of about 10 electricians. At the time of his accident the plaintiff was earning $970.24 net per week, and in this new position he earned about $1000.00 net per week. The contract between ActewAGL and Green Home Green Planet will terminate in 2020, at which time the plaintiff expects to be made redundant. The plaintiff felt confident, however, that his present employment had provided him with transferrable skills in terms of sales and managing people.

In September 2017 the plaintiff was seen at the request of the defendant’s lawyers, by an orthopaedic surgeon, Dr McDonald. At that time the plaintiff still experienced pain and stiffness in his neck, pain in his right shoulder and low back pain. There was also an area of sensitivity in his left knee. He was still taking medication, and was continuing to use heat packs. In October 2017 the defendants’ lawyers also sent the plaintiff to see a pain physician, Dr Gorman. The plaintiff continued to feel very anxious in traffic, and experienced flashbacks of the accident. He also continued to have bad dreams. He continued to have problems with anxiety and erectile dysfunction. On occasion, he felt depressed.

The plaintiff returned to see the psychologist, Ms Morris, in November 2017. He was working full-time with mainly office work at that time. The plaintiff had taken some time off work due to pain, and had also missed out on the opportunity to work overtime because of pain.

In January 2018 the plaintiff again saw Dr Champion. At that time he was still experiencing problems with his right shoulder, back and neck, and continued to take medication.

The plaintiff no longer wants to be around people, and feels he is socially withdrawn. His relationship with Tegan Lovelock slowly fell apart as a result of the effects of the accident. There was undoubtedly other issues in the relationship between the plaintiff and Ms Lovelock which contributed to their relationship deteriorating. Like most young couples they did not have a lot of money. I have no doubt that the plaintiff’s mental state made it more difficult for him to deal with those problems.

Before the accident the plaintiff resided with his parents and assisted with the upkeep of their yards, cooking and household maintenance. He would also help maintain the cars, wash the cars, take out rubbish and collect groceries. He would also assist with the care of his daughter who was 12 months old at the time of the accident. After the accident, his ability to help around his parents’ home was severely limited by his pain. His contribution to caring for his daughter was also reduced.

The evidence with regard to the plaintiff’s capacity to assist around his parents’ house and to contribute to the parenting of his daughter was confusing. While he gave evidence of continuing incapacity to assist in both areas, he also gave the following evidence:

Are you doing the best you can – it is to some extent an artificial exercise, but if you reflect upon the contribution that you were making on those two fronts? - - - Yes.
Before the accident and compare it with the contribution you’re making now, how many hours a week would you estimate? - - - I would say around 10 to 15 hours.
10 to 15 hours more than you were doing previously? - - - That’s correct.

Viewed in isolation this passage of evidence suggests that the plaintiff, as at 12 September 2018 when he gave evidence, was contributing to work around his parents’ house and to parenting his children, to the extent of 10 to 15 hours a week more than he was prior to the accident. This is completely contrary to the balance of his evidence, and to the evidence of his mother and that of Tegan Lovelock. In my opinion a clear mistake has been made by the plaintiff’s counsel in the last question set out above by using the word “more” instead of “less”, and this has caused confusion for the plaintiff. I am in no doubt that the plaintiff was asserting that he was now doing 10 to 15 hours less per week than before the accident.

The plaintiff’s evidence concerning the difference in his contribution around his parents’ home was expanded upon by his mother. Mrs Hargrave stated that the plaintiff now has difficulty in doing things like hanging the washing out, vacuuming, emptying the dishwasher, making his bed, mowing the lawn, and helping maintain the cars, that he did before the accident. She now does a lot of the tasks that he previously undertook. Ms Lovelock also gave evidence that she undertook many duties after the accident that the plaintiff had previously undertaken because of the pain suffered by the plaintiff.

The medical evidence

In a report dated 22 June 2015, Ms Leesa Morris, a psychologist, noted that she had assessed the plaintiff’s psychological condition on 26 May 2015. That interview lasted for approximately one hour and 15 minutes, and in addition the plaintiff completed a number of psychological tests. She stated that the plaintiff presented as a genuine young man with a willingness to seek assistance in order to meet his life goals and responsibilities. Ms Morris diagnosed the plaintiff as suffering from post-traumatic stress disorder arising out of the accident. She noted that it had been 12 months since his injury and the plaintiff’s psychological condition appeared relatively stable in its impact on his ability to undertake his previous occupation and life activities. She stated that while his physical injury had not yet reached maximum recovery there were strong indicators of chronicity for the plaintiff’s mental health including a post-traumatic stress response. She recommended psychological counselling with cognitive behavioural and gradual exposure therapy. She recommended up to 24 sessions of counselling, estimated to cost $235 per hour.

Ms Morris reassessed the plaintiff’s psychological condition on 17 October 2017 and provided a subsequent report dated 1 November 2017. She maintained her previous diagnosis of post-traumatic stress disorder, opining that the plaintiff’s physical and psychological condition had not changed significantly since the last assessment. This, she believed, was largely due to lack of consistent intervention that would enable the plaintiff to return to some of his normal functioning. The ongoing nature of his physical and psychological symptoms indicated that they were unlikely to improve without further intervention (in her report Ms Morris said that the symptons were “likely” to improve without intervention, but it is clear from the balance of her report that this is a typographical error). She noted that the plaintiff had been unable to return to his previous functioning since the accident, and while he had been able to maintain his attendance at work he had been unable to move his life forward in any meaningful way. She considered that he was unlikely to experience any significant change to his psychological symptoms without an assessment for effective psychopharmacological intervention by a psychiatrist. To that end, she recommended psychological counselling with cognitive behavioural and gradual exposure therapy as previously recommended.

A report dated 5 August 2014 from Dr David McNicol, a consultant Orthopaedic Surgeon, was tendered on behalf of the plaintiff. Dr McNicol assessed the plaintiff on 23 July 2014. It was Dr McNicol’s opinion that the plaintiff had sustained multiple injuries following the accident, including a period of loss of consciousness immediately after he was struck by the taxi. Dr McNicol made the following diagnoses:

· probable musculoligamentous injury to the cervical spine: intervertebral disc disruption could not be discounted;

· grade 2 subluxation of the right acromioclavicular joint;

· soft tissue injury to his left shoulder: a more serious injury to the rotator cuff could not be excluded;

· tender mass over the anterior superior aspect of the left knee probably associated with some minor detachment of the lateral aspect of the quadriceps insertion;

· probable musculoligamentous injury to the lumbosacral spine: intervertebral disc disruption could not be discounted at that time;

· suggestion of some weakness in the left hand involving finger extension and wrist flexion: there was no sensory loss to suggest a cervical nerve root injury.

Dr McNicol expressed his opinion that the plaintiff’s conditions were consistent with the stated cause. He considered that the plaintiff should undergo further investigation by way of a plain x-ray of his left knee and stress views of his acromioclavicular joint. He considered that the plaintiff may also require MRI scanning in the future. He regarded the plaintiff’s treatment to that time as having been adequate and appropriate. He believed that the plaintiff should be referred to an orthopaedic surgeon specialising in shoulder conditions, and that he may require other referrals in future. Dr McNicol noted that the plaintiff was no longer attending the gym and no longer participated in activities which he had previously enjoyed such as riding his pushbike and motorbike. The plaintiff was also unable to play with his daughter, and rarely went out. He noted that the plaintiff lacked intimacy with his partner. At that early stage, Dr McNicol felt that it was not possible to make a clear statement about the plaintiff’s prognosis. In the short term, he expected that he would continue to have pain and be limited in his activities. He recommended a review in six months when a more definitive prognosis may be able to be made.

Dr David Champion, a specialist in pain medicine, provided two reports. The first was dated 15 May 2016. He believed that the plaintiff presented reasonably and, so far as he could determine, realistically under the circumstances of physical and psychic trauma as a result of the accident. He noted the diagnosis of post-traumatic stress disorder by Ms Morris and Mr Nomchong. He stated that this diagnosis was very important because “post-traumatic stress disorder interacts unfavourably in a bidirectional manner with post-traumatic chronic pain”. Dr Champion noted that the plaintiff’s progress over the previous 16 months in regard to his chronic pain-related disability and his mental health had not been encouraging. The plaintiff felt that one factor in the disappointing progress with his chronic pain had been the lack of access to physiotherapy. A complicating issue was the development of restless legs syndrome which was another reason for impaired sleep and very likely contributed to his adverse mental health. Dr Champion believed that the plaintiff was predisposed to restless legs syndrome either through genetic risk or low brain iron, but chronic spinal and multiregional pain is a probable causal influence on restless legs syndrome and was undoubtedly associated. Leaving aside the plaintiff’s mental health issues and restless legs syndrome, Dr Champion stated that the principal disorders suffered by the plaintiff consequent on the accident were:

· a chronic regional pain disorder principally involving the right shoulder complex with probable subluxation of the acromioclavicular joint, underlying imaging evidence of subacromial/subdeltoid bursitis, restriction of range of motion, and abnormal cutaneous and deep somatosensory test responses which are indicative of central sensitisation related to the region;

· a multilevel cervical spinal pain disorder the characteristics of which are akin to whiplash-associated disorder. Dr Champion recorded restriction of range of active motion with dysmetria, multilevel cervical vertebral tenderness, cutaneous and deep somatosensory test abnormalities in the referred pain region consistent with central sensitisation, but no indications of radiculopathy; and

· a thoracolumbar chronic spinal pain disorder, principally related to the lumbar spine with restricted range of motion including dysmetria, disordered somatosensory processing in the referred paraspinal pain region with features indicative of central sensitisation, but no indication of radiculopathy. Sensory impairment to the right lower leg was probably a consequence of trauma to the right lower leg and foot region.

Dr Champion said:

Such is the complexity of the chronic pain disorder, impaired sleep, restless legs syndrome, post-traumatic stress disorder and psychological adjustment difficulties, that the appropriate management should be multidisciplinary, ideally in a quality chronic pain management service with inputs from a pain medicine physician, neurologist (re restless legs syndrome), shoulder-specialising orthopaedic surgeon, physiotherapist, occupational therapist, clinical psychologist and psychiatrist.

Dr Champion said that to accomplish such multidisciplinary/interdisciplinary management would probably require the plaintiff to take time off work; either a period of three months, or another arrangement as advised by the proposed chronic pain service such as one day off a week. He noted that there may well be a waiting time of several months to access such services. Dr Champion stated that if the suggested comprehensive management was implemented, the total cost could well be of the order of $10,000 in the first 12 months, with diminishing costs thereafter.

Dr Champion supported a reasonable proposal for domestic assistance while keeping the need under review and taking care to encourage independence.

It was Dr Champion’s opinion that the plaintiff’s prognosis in the long-term was not looking favourable. He expected that there would be long-term chronicity. It was not likely that the plaintiff would be able to recover fully, but in view of the plaintiff’s relative youth there was a prospect for fairly good recovery over time. To what extent the post‑traumatic stress disorder would resolve was best assessed by a psychiatrist, but in Dr Champion’s view complete resolution was not highly likely.

Dr Champion’s second report is dated 30 January 2018. He noted that overall there had been an improvement since he last saw the plaintiff in April 2016. The plaintiff acknowledged that his mental health had improved, but stated that pain related disability had not. Dr Champion found that there had been slight improvement in the findings on examination referenceable to the plaintiff’s right shoulder and spine. At the time that he saw the plaintiff on the second occasion, Dr Champion believed that the plaintiff had the following ongoing consequences of the accident:

· a chronic pain disorder at the right shoulder with underlying bursitis and associated with somatosensory test abnormalities which infer classic regional central sensitisation;

· a 3-level post-traumatic chronic spinal pain disorder with significant findings on examination referenceable to cervical, thoracic and lumbar regions and findings consistent with central sensitisation referable to those regions of spinal injury. The plaintiff also had sensory indications consistent with minor right L5 radiculopathy;

· psychological injury including post-traumatic stress disorder (improved) and moderate ongoing stress, anxiety and depressed mood as well as other psychological features; and

· social consequences, not the least of which was erectile dysfunction.

Dr Champion reiterated that the ideal management of the plaintiff’s condition was multimodal/multidisciplinary in a chronic pain service. Physiotherapy would be appropriate, as would management by a pain-oriented clinical psychologist. He estimated that the cost for optimal management over a period of 12 months could be $5,000.00 - $8,000.00. He stated that the plaintiff remained fit for work, but he retained a high risk that psychological or biomechanical stressors could lead to significant interference.

Dr Edward Korbel, a urologist, provided a report dated 8 December 2015. He believed that it was probable that the plaintiff’s psychological and orthopaedic conditions had caused considerable deterioration in his libido and interest in sex. The plaintiff’s erectile dysfunction was a consequent result of his psychological and orthopaedic condition. Dr Korbel noted that the plaintiff was using Viagra, although this caused him some embarrassment. He believed that the plaintiff needed to continue with his psychological treatment and any other treatment as prescribed.

An occupational therapy report prepared by Mr Stephen Woolley and dated 14 September 2017 was tendered on behalf of the plaintiff. The purpose of the report was to provide an opinion on past and future domestic care needs. The plaintiff reported that since the accident he had suffered constant pain, as well as ongoing functional limitations. He reported that he struggled to manage his home and work life. The pain and functional limitations prevented the plaintiff from maintaining his lifestyle, which resulted in him modifying or not performing certain personal care activities, as well as domestic, garden and handyman tasks within his home. Since the subject accident, the plaintiff’s family had provided gratuitous assistance for tasks within the family home that he was unable to complete. This included periods of assistance with domestic, garden and handyman tasks. The plaintiff reported that as at the date of consultation he was working full-time but in an administrative role. He reported that after work he usually needed to rest due to increase of his pain. The plaintiff also reported symptoms of depression and not wanting to engage with people.

Mr Woolley noted that in the assessment process the plaintiff demonstrated functional limitations in his ability to squat, kneel, bend, twist, push and pull, lift, reach forwards or overhead, repetitive upper limb movements, bilateral integration, physical tolerances such as standing and walking, and reduce range of movements in his neck, low back, and shoulders. Based on the medical information and time since the date of injury, Mr Woolley expressed the opinion that it was unlikely that the plaintiff’s symptoms and functional abilities will significantly improve over time. He therefore was of the view that the plaintiff will require the introduction of commercial assistance with various domestic tasks to maintain a pre-injury quality of life. This includes assistance with certain cleaning, shopping, meal preparation, laundry, garden and car cleaning tasks. Mr Woolley also stated that provision of assistive equipment and home modifications would facilitate some increase in his independence when completing certain personal care activities and domestic tasks. Based upon information provided to Mr Woolley by the plaintiff, Mr Woolley calculated that prior to the accident the plaintiff spent approximately 13.25 hours per week engaging in domestic, garden and handyman tasks. After the accident, an average of 7.85 hours per week of assistance was provided by the plaintiff’s family. He recommended that the plaintiff be compensated for 6.5 hours per week assistance with respect to domestic care, and 1.35 hours per week assistance with regard to garden and handyman care for the period from the accident to 30 September 2017. He recommended that the plaintiff be provided with 4.5 hours of domestic care assistance per week for the period after 30 September 2017, assistance with garden tasks of 0.5 of an hour per week from 1 October 2017 and provision for a commercial car cleaning service every two weeks from that date.

A report dated 11 September 2015 from Dr Robert Still, a consultant sports and exercise medicine physician, was tendered on behalf of the defendants. Dr Still made the following diagnoses relevant to the accident:

· cervical spine – whiplash associated disorder type 2;

· right shoulder – grade II subluxation acromio-clavicular joint, possible rotator cuff tendon injury necessitating further investigation;

· musculoligamentous injury lumbar spine;

· probable mixed anxiety/depression; and

· small subcutaneous cyst of the left knee, most likely unrelated to the accident.

Dr Still considered that the plaintiff required MR arthrogram of the right shoulder and assessment by an orthopaedic surgeon. He also considered that performing an MRI of the cervical spine and lumbo-sacral spine was sensible. He noted that while the plaintiff reported that he was managing at work, he continued to take regular painkilling and anti-inflammatory medication. In addition, the plaintiff reported being stressed, experiencing sleep disturbance and lack of physical intimacy with his partner. Dr Still believed that specialist pain management or psychological assessment would be worthwhile. With regard to the plaintiff’s recreational and social functioning, Dr Still stated that there had been a negative impact in that the plaintiff no longer attends the gym, had reduced social outings and felt that interaction with his daughter was impeded. The plaintiff further reported that his relationship with his partner had suffered and that there had been no physical intimacy since the accident. At that point, the plaintiff’s active rehabilitation was limited to attending a pool once a week and fortnightly psychological counselling.

Dr Still stated that since the accident occurred 15 months prior to his assessment of the plaintiff and the plaintiff continued to experience symptoms in the cervical and lumbar spine, it was likely that these would continue. The prognosis for the right shoulder was unknown at that stage. Dr Still considered that the plaintiff did not require any personal or domestic assistance relating to the injuries he sustained in the accident, and he believed that it was unlikely that any such assistance would be required in the future.

On behalf of the defendants, a report dated 2 November 2015 from Dr John McMahon, a clinical psychologist, was tendered. He diagnosed the plaintiff as suffering from a post-traumatic stress disorder and a chronic pain disorder. He considered that the plaintiff’s prognosis was fair. He did not believe that there was any requirement for personal or domestic assistance related to the motor vehicle accident.

A report dated 20 September 2017 from Dr Ian MacDonald, a consultant orthopaedic surgeon, was tendered on behalf of the defendants. He noted that the plaintiff complained of neck pain, right shoulder pain and low back pain. There was also evidence of a very small cystic area possibly related to a partial disruption of the lateral border of the quadriceps in the left knee. He noted that the plaintiff continued to take painkillers, but was not undergoing physiotherapy and had stopped seeing his psychologist. He diagnosed the plaintiff as suffering from persisting musculoligamentous injury to the cervical spine and lumbar spine, bursitis of the right shoulder and a possible minute disruption of the lateral left quadriceps tendon. He considered the plaintiff’s prognosis to be poor because of the length of time that he had suffered from these conditions. He believed that the plaintiff was likely to be able to continue to work full-time, and did not believe that he would be restricted in his future employment. Dr McDonald noted that domestic assistance had been provided to the plaintiff, but he believed that the pre-injury degree of assistance provided by his parents had simply continued.

A report dated 31 October 2017 was provided by Dr David Gorman, a consultant general physician and pain management specialist. Dr Gorman diagnosed the plaintiff with the following ongoing problems related to the incident on 24 May 2014:

· cervical spinal pain with headaches worse after a day in the office;

· low back pain requiring him to move around after sitting for 20 minutes;

· Right shoulder pain resulting in him being unable to lift above shoulder level; the shoulder aches if he types all day;

· probable post-traumatic stress disorder; and

· erectile dysfunction related to his anxiety and post-traumatic stress disorder.

Dr Gorman recommended further treatment with a psychologist, and in particular one who is also an expert in pain management (in his report, Dr Gorman actually said “I do not believe it would be appropriate for him to have five to ten further sessions of psychological treatment.” The word “not” is clearly a typographical error, as the above statement is immediately followed by: “It would be best done by a psychologist expert in pain management as well, who is able to impart to him some of the self-management techniques for chronic pain as well as treat any PTSD and anxiety.”) He did not believe that further physiotherapy would be helpful. He believed that it would be better if the plaintiff had his own exercise program. He diagnosed the plaintiff as suffering from a flexion-extension injury of the cervical spine with ongoing symptoms, and chronic regional pain behind the right shoulder with some limitation in movement. He believed that there was still room for slow improvement, as soft tissue injuries, especially when associated with psychological symptoms, can take three to five years to resolve. Dr Gorman believed that the plaintiff’s long-term prognosis was good. He believed that the plaintiff was fit to perform his pre-accident employment, and that he would not be restricted in his employment in the future. Dr Gorman understood that the plaintiff’s parents do much of the work around the house, and he did not believe that the plaintiff should require domestic assistance.

A lengthy report dated 18 March 2018 from an occupational therapist, Ms Dawn Piebenga, was tendered on behalf of the defendants. In summary, she concluded that past gratuitous assistance of 76.44 hours was supported, but that no further domestic assistance, home modifications, occupational therapy or adaptive equipment could be supported.

None of the medical experts or occupational therapists who provided reports were subjected to cross-examination.

Consideration

I had no difficulty in accepting the plaintiff, Ms Lovelock and Mrs Hargrave as honest and generally reliable witnesses. The one area of their evidence on which I had doubts about their reliability is the estimates they formulated as to gratuitous services which have been provided by the family since the accident with regard to the work that the plaintiff had previously done around the house. I will return to that issue latter.

I am satisfied that the plaintiff, as a consequence of the accident, suffered the following injuries:

(a)post-traumatic stress disorder;
(b)a laceration to his left hand;
(c)soft tissue injury to his left shoulder;
(d)grade 2 subluxation of the right acromioclavicular joint;
(e)musculoligamentous injury to the cervical spine;
(f)a tender mass over the anterior superior aspect of the left knee associated with minor detachment of the lateral aspect of the quadriceps insertion.

As a consequence of these injuries the plaintiff:

(a)suffered, and continues to suffer, pain in his neck and right shoulder;
(b)suffered pain in his left shoulder for a limited period;
(c)developed a chronic regional pain disorder in his right shoulder complex;

(d)developed a multilevel cervical spinal pain disorder the characteristics of which are akin to a whiplash-associated disorder;
(e)developed a thoracolumbar chronic spinal pain disorder;
(f)suffered, and continues to suffer, an ongoing and significant deterioration in his libido and interest in sex;
(g)suffered, and continues to suffer anxiety and depression, as well as a lack of interest in social engagement and previously enjoyed pursuits;
(h)has had, and continues to have, a reduced capacity to engage in work around his home that he engaged in prior to the accident.

It is probable that the conditions referred to in [76](a),(c)-(h) above will continue, to some extent, for the foreseeable future.

Assessment of damages

The plaintiff claimed past economic loss consisting of:

(a)4 weeks salary at $970.24 per week, being $3880.96
(b)a buffer for lost overtime, amounting to $25,000.00

The plaintiff only gave evidence of being off work for one week. There was evidence that he took several days off work subsequently due to pain, but no relevant particulars were provided. The defendants submitted that there was no evidence of loss caused by the plaintiff taking that week off work as there was no evidence of his net wages at that time, and there was no evidence that the plaintiff suffered an actual loss by, for example, having to repay sick leave. With regard to the defendants’ first submission, the plaintiff’s tax return for 2014 (Exhibit 2) shows a net income in the 2014 tax year of $30,623.78. This equates to a weekly sum of $588.92. As to the defendants’ second submission, there was no cross-examination of the plaintiff to the effect that he received sick leave for the week he took off; there is only the plaintiff’s evidence that he was off work for one week. In the absence of cross-examination on the issue I allow the sum of $588.92 for that week.

The evidence regarding past loss of overtime from the plaintiff’s employment as an apprentice cabinetmaker was very thin, and the plaintiff’s Statement of Particulars does not particularise a claim for past loss of overtime from that employment. For that reason I will not allow any claim for past loss of overtime from that employment.

The plaintiff claimed a buffer of $50,000.00 for future economic loss. This was said to equate to one years’ earnings. I have no doubt that the plaintiff’s physical ability to undertake certain types of work has been detrimentally affected by the consequences of the accident. The plaintiff is not, however, entitled to compensation for this reason alone. The plaintiff’s entitlement to compensation is, as was stated by Dixon CJ, Kitto and Taylor JJ in Graham v Baker [1961] HCA 48; 106 CLR 340 at 347:

To be more precise, however, an injured plaintiff recovers 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.

The plaintiff is currently earning more in his present position than he was in his employment prior to the accident. He has gained transferable skills in his present occupation, so that there is no reason to conclude that he will need to return to work requiring heavy, or moderately heavy, labour in the future. There is no evidence of sufficient cogency to warrant awarding a buffer for future economic loss simply due to his loss of physical ability to undertake certain types of work.

The plaintiff did, however, testify that he has the opportunity to work “Saturdays and up to two to three hours extra a day” in his present occupation, by way of overtime, but he does not regularly take this up because of his pain. There is a lack of precision in this evidence. Taken at face value, it could amount to up to 23 hours per week but there was no evidence from the plaintiff that he would work all of the overtime hours available to him if he was not hampered by pain. In any event, the plaintiff’s contract runs out in 2020, so any claim for lost overtime cannot continue past that time. I will allow five hours per week of lost overtime from the date of the commencement of the hearing, 12 September 2018, until the end of December 2020.

The plaintiff’s net income (income less tax) for the 2017 tax year was $28,455.41. Based on a 52 week year, working eight hours a day, five days a week, this equates to an approximate hourly rate of $13.68. I will allow the lost overtime calculated by 120 weeks at $93.00 per week, making $11,166.00. Because of the short period subject to the claim, I have not calculated this loss by reference to the usual tables, and the sum calculated will be inclusive of superannuation.

The plaintiff has claimed $48,679.00 for future out-of-pocket expenses such as visits to his general practitioner, medication, physiotherapy and pain management. He claims:

(a)$34.00 per week for medication for 10 years;
(b)$11.82 per week for general practitioner visits for 10 years;
(c)$22.85 per week for physiotherapy for 10 years;
(d)$12,000.00 for a pain management program; and
(e)$5,640.00 for psychologist services.

The plaintiff did not give any direct evidence of the amount he is currently spending per week on medication. Doing the best I can (it being accepted that he will continue to need painkilling medication) and on the basis that the claim is limited to 10 years I allow $20.00 per week.

The sum claimed by the plaintiff for general practitioner visits is in my opinion reasonable.

It appears to me to be unlikely that the plaintiff will require monthly physiotherapy for 10 years. I will allow a lump sum of $4,000.00, which approximates to 40 visits.

Based on $20.00 per week for medication, and $11.82 per week for attendances upon his general practitioner, I allow a sum of $14,376.27 for the 10 years claimed by the plaintiff.

Based upon the evidence of Ms Morris I allow a sum of $5,600.00 for future psychological treatment.

The plaintiff also claimed $12,000.00 for a pain management program as recommended by Dr Champion. I note that such a program incorporates treatment by a psychologist, so the amount claimed should be reduced by the amount allowed for psychologist attendances, leaving a sum of $6,400.00.

There was a conflict in the evidence regarding the plaintiff’s need for past and future gratuitous care. The opinions of the plaintiff’s doctors were generally supportive of the reasonableness of some form of domestic assistance. I prefer this evidence to that of other medical experts who did not support the need for assistance, because the evidence in support of the need for assistance is more consistent with the evidence of the needs of the plaintiff, as demonstrated by his evidence, and that of Mrs Hargrave and Ms Lovelock. I do not accept the opinions of Ms Piebenga where they differ from those of Mr Woolley. The opinions of Mr Woolley were more consistent with the needs of the plaintiff as demonstrated by the evidence of the plaintiff, Mrs Hargrave and Ms Lovelock, whose evidence in that regard I accept. In addition, the opinions of Ms Piebenga appear to be based on an approach that it would be therapeutically preferable for the plaintiff to do the work that others have been doing for him, despite the pain he suffers. This may be a valid therapeutic approach (although other medical experts did not embrace it to the extent that Ms Piebenga did) but it is not the basis upon which damages are assessed. Bearing in mind the level of the plaintiff’s reported pain, it has been reasonable for the plaintiff to rely upon gratuitous services provided by his family, and to continue to do so to a reduced extent. I allow 7.85 hours per week from 24 May 2014 to 30 September 2018 as recommended by Mr Woolley. I will assess this on an hourly rate of $30.00. This amounts to approximately $53,458.50. From that date until the end of April 2019 I will assess the need at five hours per week at $30.00 per hour, amounting to, in a round sum, $5,100.00. I therefore allow past gratuitous services in the sum of $58,558.50.

With regard to future domestic care and assistance, I will allow five hours per week at $35.00 per hour for the 10 year period claimed; amounting to $79,100.00.

I assess general damages at $110,000.00, of which I allocate 50 per cent to the past and 50 per cent to the future. I will allow interest on $55,000.00 for 4.75 years at two per cent, amounting to $5225.00.

I therefore assess damages as follows:

· general damages $110,000.00

· interest $ 5,225.00

· past economic loss $ 11,754.91

· interest $ 314.95

· past out of pocket $ 10,317.33

· future out of pocket $ 30,376.27

· past domestic services $ 58,558.50

· future domestic services $ 79,100.00

Total $ 305,646.96

This figure must be reduced by 10 per cent to reflect the finding of contributory negligence.

There will be judgment for the plaintiff against the defendants in the sum of $275,082.26.

Unless any party seeks a different costs order within 14 days of the publication of these reasons, I order the defendant to pay the plaintiff’s costs of the proceeding as agreed or assessed.

I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns

Associate:

Date: 4 June 2019