Hatch v. Hoffman & Anor
[2007] QSC 76
•5 April 2007
SUPREME COURT OF QUEENSLAND
CITATION:
Hatch v Hoffman & Anor [2007] QSC 76
PARTIES:
ANTHONY CHARLES HATCH
(plaintiff)
v
ROBERT ANTHONY HOFFMAN
(first defendant)
SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966)
(second defendant)FILE NO:
BS5388 of 2006
DIVISION:
Trial Division
PROCEEDING:
Trial
DELIVERED ON:
Reasons delivered on 5 April 2007
Orders made on 10 April 2007DELIVERED AT:
Supreme Court, Brisbane
HEARING DATE:
6-7 December 2006
JUDGE:
Wilson J
ORDER:
1. That there be judgment for the plaintiff against the second defendant for the sum of $34,217.80 together with costs fixed at $2,500.00.
2. That the plaintiff pay the defendants’ costs of and incidental to the action from 6 May 2005 to be assessed on the Supreme Court Scale.
CATCHWORDS:
TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – GENERAL – the first defendant’s vehicle collided with the plaintiff’s car – liability was admitted – the plaintiff complained of continuing, debilitating back and neck injuries – the plaintiff’s credit was in issue at trial – whether the plaintiff’s injuries were as debilitating as he claimed – whether the accident caused the injuries – assessment of damages
COUNSEL:
S J Given for the plaintiff
K S Howe for the first and second defendantsSOLICITORS:
Morton & Morton for the plaintiff
Payne Butler Lang for the first and second defendants
Wilson J: The plaintiff claims damages for personal injuries allegedly sustained in a motor vehicle accident on Friday 18 January 2002. Negligence has been admitted. The outstanding issues are causation and quantum.
The plaintiff alleges that he sustained a back injury, as well as a relatively minor whiplash injury. The defendants deny liability for any back injury.
CAUSATION
At all material times the plaintiff was driving a Mitsubishi Magna sedan, and the first defendant was driving a Holden Commodore. The second defendant was the licensed insurer of the Holden Commodore. The accident occurred at the intersection of Kent Street and Tiger Street, Maryborough, which was controlled by traffic lights.
The plaintiff’s version
The plaintiff drove along Kent Street in the direction of the intersection, intending to turn left into Tiger Street. The traffic light ahead of him was red, but there was a green arrow controlling left hand turns. He said there was a red Ford vehicle stopped ahead of him at the intersection. He braked until he stopped and tooted his horn to encourage the driver of the Ford to move. The Ford turned around the corner; as it did so he still had his foot on the brake when he felt a bump from behind. The bump was “like a severe push, more or less, a loud thump.”[1] Although he had his foot on the brake, his vehicle moved forward a little.
[1]Transcript of the proceeding, p 13.
The first defendant’s version
The first defendant was driving along Kent Street behind the plaintiff. The speed limit was 60 kph. He told the Court that he was travelling at 50 kph when he saw the plaintiff’s vehicle about 70 – 100 metres before the corner; he was catching up on the plaintiff, and by the time they reached the corner, there was a green (left) arrow ahead of him and the plaintiff stopped. The first defendant “hit the brakes real quick”,[2] and his vehicle collided with the rear of the plaintiff’s. It was a “bump. Wasn’t a crash.”[3] At the time of impact he was travelling at no more than 5 – 8 kph. He was watching the plaintiff through the back window of the Magna; the plaintiff shook his head from side to side and then took off. The two vehicles proceeded around the corner, where they stopped and the plaintiff and first defendant had a conversation.
[2]Transcript of the proceeding, p 91.
[3]Transcript of the proceeding, p 92.
In a statement given to a loss assessor in June 2002[4] the first defendant said that as he was catching up on the plaintiff he decelerated; the plaintiff appeared to be slowing to go round the corner. When he (the first defendant) had decelerated to about 30 – 35 kph, he was about 20 – 25 metres behind the plaintiff; he looked away from the road for a split second; when he looked back at the road the plaintiff had come to a complete stop; he braked heavily feeling the ABS braking system activate; he came almost to a complete stop before reaching the rear of the plaintiff’s vehicle; he came to a complete stop, feeling a small bump as he did so; the front of his car “only just nudged” the rear of the plaintiff’s. Only when he collided with the plaintiff’s vehicle did he see a vehicle stationary directly in front of him.
[4]Exhibit 5.
The plaintiff and the first defendant differ in their accounts of whether the Ford vehicle had moved off by the time of the impact – but I do not think much, if anything, turns on this.
Damage to the vehicles
The plaintiff’s vehicle was fitted with a towbar. The towbar tongue was permanently deflected upwards through an angle of 25 – 30 degrees. The towball contacted the bumper and produced a star-shaped fracture. Following the accident the towbar, towbar tongue, rear bumper, bumper reinforcement and mould were replaced at a cost of approximately $800.
On the first defendant’s vehicle there was a hole punched through the bumper just below the passenger side headlight, presumably by the towbar. The headlight and protector were cracked. The air conditioner condenser and receiver/dryer (positioned across the front of the vehicle below the radiator) were damaged. Repairs cost approximately $1690.
Engineering evidence
Both the plaintiff and the defendants called engineering evidence in endeavours to establish the likely speed of the first defendant’s vehicle at the time of impact. Neither of them inspected the damaged vehicles, both working from photographs and other documents which were not put into evidence. I did not find either particularly helpful.
The defendants’ witness, Dr Gottschall, argued that the first defendant’s vehicle must have been travelling at or less than 8.3 kph. He relied on the amount of energy which he thought must have been contained in the collision. From a photograph he estimated the thickness of the towbar tongue at about 15 mm. For the towbar of the plaintiff’s vehicle to be deflected 30 degrees and for the bumpers to be damaged as they were, the total energy that would have been required was 1,528 joules. If the first defendant’s vehicle’s speed was greater than 8.3 kph the change in velocity of the plaintiff’s vehicle (the jolt that occurred in the impact[5]) would have been greater than 3.6 kph – which would have involved more than 1528 joules of energy (and thus a greater deflection of the towbar). Accordingly the speed at impact of the first defendant’s vehicle must have been less than 8.3 kph.
[5]Dr Henderson, a medical expert called by the plaintiff, described the concept in this way: transcript of the proceeding, p 49.
But the plaintiff’s expert, Mr McDougall, effectively cast doubt on Dr Gotschall’s analysis by pointing to a lack of low speed crash studies with respect to the particular Mitsubishi Magna sedans and Holden Commodores and the effect of towbars in general, making it impossible to know what the change in velocity of the plaintiff’s vehicle was in this particular crash.[6]
[6]Transcript of the proceeding, p 48.
Mr McDougall relied on Swedish studies which he interpreted as showing that a threshold change in velocity of 5 – 8 kph is necessary for there to be symptoms of cervical whiplash. He produced estimates of the speed of the first defendant’s vehicle at impact by reference to some American standards (which were not shown to be applicable in this country) and the damage to the vehicles. His estimate of the thickness of the towbar tongue was 20mm. Having regard only to the bumper damage to the vehicles, he estimated that speed at 16kph, and with the added involvement of the towbar he considered it could have been as high as 18 kph. He also suggested that muscular tensing in response to an unexpected event would increase the risk of injury[7] – a notion contrary to medical opinion that muscle tensing is a protective mechanism which lessens the risk of injury.[8] He concluded that “the potential for spinal injury” in this accident could not be ruled out, and that it was “predictable” if the impact speed approached 18 kph.[9] I did not find this evidence at all persuasive.
[7]Exhibit 1, Document 4.1, Report of Brendan McDougall, 30 July 2003, p 10; transcript of the proceeding, p 47.
[8]Exhibit 2, Document 6, Report of Dr Henderson, 8 July 2004, p 4; transcript of the proceeding, p 54.
[9]Exhibit 1, Document 4.1, Report of Brendan McDougall, 30 July 2003, p 17.
Conclusion as to how the accident happened
The first defendant impressed me as an honest witness with nothing to gain or lose from the outcome of the litigation. By contrast, as I shall describe in later paragraphs, there was reason not to form a high opinion of the plaintiff’s credibility.
I accept the first defendant’s version of how the accident occurred – in particular that it occurred when he was travelling at very low speed and that it involved a comparatively minor impact rather than a severe push. Doing so not only accords with my assessment of the parties’ respective credibility, but is also consistent with the comparatively minor damage to the two vehicles.
Plaintiff seeks medical attention
The plaintiff went to work the next day (Saturday) without experiencing any pain or discomfort. On Sunday he had trouble moving his neck, and felt sharp pain, “like a stiffness”[10] in his neck. He did not have any back symptoms that day.
[10]Transcript of the proceeding, p 13.
On Monday 21 January 2002 he went to work and then attended his general practitioner Dr Lesley Manski complaining of headaches and neck pain. Dr Manski noted cervical spine tenderness and limited rotation consistent with a whiplash received in the accident.[11]
[11]Exhibit 2, Document 9, Report of Dr Manski, 9 April 2002.
The plaintiff told the Court that he continued to experience neck symptoms, and that on the Tuesday or Wednesday he felt sharp, stabbing pains “like a hot knife” in his lower back. He thought he went back to Dr Manski and that he saw a physiotherapist on the Friday.[12] According to Dr Manski’s records he did not see her again until 11 March 2002.[13]
[12]Transcript of the proceeding, p 14.
[13]Exhibit 2, Document 9, Report of Dr Manski, 9 April 2002.
According to the records of the Maryborough Physiotherapy Centre he attended there on Tuesday 23 January 2002 complaining that he had started to experience neck and lumbo-sacral pain, as well as headaches, on the Sunday. He attended the physiotherapist several times during February.[14]
[14]Exhibit 1, Document 1.1, Records – Maryborough Physiotherapy Centre.
Dr Manski said in a report to the second defendant dated 9 April 2002 –
“Mr Hatch has been seen twice with the injury since the visit [on 21 January 2002]:
- Once on the 11 March 2002 at which time he reported good results from physiotherapy – a self referral. However an attempt to complete a full days work at his previous occupation (tyre fitting) had been unsuccessful because of loss of strength in the thoracic area limiting load capacity.
- The most recent consultation was 26 March 2002 – Mr Hatch again stated that his upper back and (L) shoulder were causing discomfort and that he felt weak. A referral to Dr Sean Mullen, Orthopaedic surgeon was requested.”[15]
[15]Exhibit 2, Document 9, Report of Dr Manski, 9 April 2002 (emphasis added).
The plaintiff said that although the physiotherapy was “working”, he ceased attending for financial reasons. He said he saw two other doctors who prescribed painkilling medication.[16]
[16]Transcript of the proceeding, p 15.
Earlier complaints of back pain
At the time of the accident the plaintiff was aged 30.
For the previous 10 years or so he had been employed in various positions as a tyre fitter. This involved at times quite heavy manual labour, changing tyres on cars, trucks and tractors as well as unloading tyres. He had to lift truck rims, truck tyres (which were four times the weight of car tyres) and bottle jacks. To change tyres he had to chock the vehicle’s wheels, position an air jack underneath and use it to lift the vehicle to a suitable position, undo the wheel nuts by a rattle gun, pull the tyres off with tyre levers, lay them on the ground, use a slide bar to break the beads, blow the tyres up and put them back on the vehicle. Sometimes it was necessary to use a sledge hammer to knock the tyres of the rims.[17] He worked Monday to Saturday – a 40 – 46 hour week.
[17]Transcript of the proceeding, p 11.
In October 1997 the plaintiff was moving a heavy trailer at work when he felt a twinge in his back. He had the weekend off work. The next Wednesday (22 October 1997) he consulted a physiotherapist about it.[18]
[18]Exhibit 1, Document 1.1, Records – Maryborough Physiotherapy Centre; transcript of the proceeding, p 10.
In May 1998 the plaintiff had to change the tyres on a truck at the Maryborough Showgrounds. He had jacked the truck up and taken the first two tyres off when the jack started to sink into the grass. He got underneath the truck to try to restabilise it but the truck fell off the jack and he landed on his backside. He was able to crawl out. He had the weekend off and returned to work the following Monday. At trial the plaintiff denied that he suffered any back pain after this incident, and said that his only pain was across his waist, and in the area of his buttocks.[19] However, he attended the Francis Professional Centre the next day, and complained of pain along the whole of his spine, but particularly between the shoulders and lumbar area, and that the pain had significantly worsened overnight. He was prescribed anti-inflammatory medication and was advised to rest for four days.[20] He lodged a worker’s compensation claim.
[19]Transcript of the proceeding, pp 10, 37-38.
[20]Exhibit 3.
The plaintiff’s activities since the accident
The plaintiff has not worked since 21 January 2002.[21] He claims to suffer backache every day, and to be unable to lift weights in excess of 10 kgs. He says he can do a little housework, but that after standing cooking for only 5 minutes he has pain across his back. He says that when he mows the lawn or whipper snips his right hand shakes. At the time of trial he was in receipt of a Newstart allowance.
[21]Transcript of the proceeding, pp 14-15. The plaintiff’s employment appears to have been formally terminated on 5 February 2002: Exhibit 1, Document 3.36, Employment Details Form.
The extent (if any) to which the plaintiff is in fact disabled by back pathology (whether or not it was the result of the accident) was very much in dispute. This turns ultimately on his credibility. In order to understand how the attack on the plaintiff’s credibility was mounted, it is necessary to describe a little of his personal circumstances.
The plaintiff was born in Young in New South Wales, where he spent his childhood and went to school to year 10. His parents separated when he was four years old. He has a sister Fiona (Mrs Collishaw). His first employment was in Young, but after being involved in a motor bike accident he moved to Maryborough in Queensland to be with his mother. Apart from about 18 months from 1989 spent working on the Gold Coast, he has been in Maryborough ever since.
During the 1990s he formed a relationship with Donna McCrae, and they had two children – a girl and a boy aged 11 and 9 respectively at trial. He said they lived together until their daughter was born, and that it was during an attempt at reconciliation that their son was conceived.[22] The evidence of the plaintiff and Ms McCrae that they were not living together at the time of the accident and that they have not done so since, despite being frequently in contact, strained credulity.
[22]Transcript of the proceeding, p 34.
The plaintiff’s mother lives in a home unit at 2/70 Sussex Street, Maryborough, and the plaintiff maintained that that he lived there at all material times. Ms McCrae has lived at a number of addresses, most relevantly at 9 Oxford Court and now 14 Grevillea Drive, Maryborough – about 10 – 12 kms on the other side of town from where the plaintiff’s mother lives.[23] She is in receipt of a sole parent pension, and does not have a car. She and the plaintiff conceded that he is often at her house: he has a car, and takes the children to and from school and to the doctor as necessary, he drives her home with the shopping, he cuts the grass and whipper snips, he minds the children while she is out playing darts. But he and Ms McCrae were both adamant that he does not sleep at her house, and that he does not leave any clothing or personal effects there. They both acknowledged that he has stayed there overnight to mind the children while she has been out playing darts.[24]
[23]Transcript of the proceeding, p 119.
[24]Transcript of the proceeding, pp 34, 36-37, 145-146.
I note that the plaintiff told Dr van der Walt in May 2002 that he was engaged to be married, and that he complained his sexual function was considerably reduced since the accident because of aggravation of back pain during intercourse.[25] He complained to the occupational therapist Mr Fraser, who examined him in November 2002, of a reduction in the frequency of intercourse because of low back pain, although to be fair he also told Mr Fraser that he lived with his mother.[26]
[25]Exhibit 1, Document 1.3, Report of Dr van der Walt, 6 June 2002, p 4.
[26]Exhibit 1, Document 1.4, Report of Mr Fraser (Therapy Solutions), pp 5-6.
It is somewhat of an understatement to say that the plaintiff and his sister Mrs Collishaw do not get on. She has alleged that he is cheating Centrelink: that he and Ms McCrae in fact live together, but that they do not want Centrelink to find out because it would affect their social security payments adversely. This is a very serious allegation, the truth of which I cannot resolve in this proceeding.
Before the plaintiff’s accident Mrs Collishaw used to mind his children at the weekends, while the plaintiff and Ms McCrae played darts, but she did so almost invariably at her own place (which was not far from her mother’s). She claimed to have folded the washing once while minding the children at Ms McCrae’s, and that it included articles belonging to the plaintiff, but this was not put to the plaintiff or Ms McCrae. She claimed to have observed his darts trophies on display there, but this was not put to the plaintiff or Ms McCrae. She claimed to have observed her brother living there 5 days a week, but I am not satisfied that she ever had the opportunity to make such an observation. While Mrs Collishaw’s evidence in relation to the plaintiff’s living arrangements was exaggerated, she lived quite close to her mother’s unit, and used to visit her mother daily, and I can readily accept her evidence that while the plaintiff kept a bed there, there were no other visible signs that he actually lived there.[27] Interestingly, the mother was not called as a witness by either side.
[27]Transcript of the proceeding, pp 118-120
Since August 2002 the Collishaws have been living at Golden Beach near Caloundra, some 200 kms away, and Mrs Collishaw appears to have returned to Maryborough only infrequently. It follows that she has had little, if any, opportunity to observe the plaintiff’s living arrangements since August 2002.
In August 2002 (8 months after the plaintiff’s accident) the Collishaws moved from Maryborough to Golden Beach. The plaintiff and Ms McCrae, the plaintiff’s mother and several family friends assisted at both ends of the move. Mr and Mrs Collishaw maintain that the plaintiff helped shift heavy items including a washing machine, but the plaintiff and Ms McCrae vehemently deny that he did so. The plaintiff’s mother did not give evidence, nor did any of the friends.
Early in the morning the Collishaws’ belongings were loaded on to a truck hired from Thrifty, which the plaintiff was to drive to Golden Beach and take back to Maryborough. These included furniture, a washing machine, a refrigerator, various boxes of household goods, pillows, doona covers, toys, a vacuum cleaner, etc. The plaintiff reversed the truck into the Maryborough property, and gave the others directions where to put things so that the load was level. He said he moved a few light items, but that there were two or three other men who moved the heavy items. There was a hydraulic lift on the back of the truck, and perhaps also a trolley.[28] Mr and Mrs Collishaw both gave evidence that at the Maryborough end of the move the plaintiff said he was not prepared to move anything heavy because he was worried he was being watched, but that he would be able to help at the other end. And they both gave evidence that at Golden Beach the plaintiff helped lift an old washing machine weighing about 60 kgs off the truck and carry it into the house without showing signs of discomfort or restriction.[29] The plaintiff denied saying this at Maryborough, and that he shifted any heavy items.[30] Ms McCrae said she did not see him lift anything heavy.[31]
[28]Transcript of the proceeding, pp 31, 144, 148; but see pp 117, 137.
[29]Transcript of the proceeding, pp 116-117, 123-124, 136-137.
[30]Transcript of the proceeding, pp 28, 30-31.
[31]Transcript of the proceeding, pp 144, 147.
Mrs Collishaw’s antipathy towards her brother and now also her mother were obvious from her demeanour in the witness box, and the contents of a letter she had recently written to her mother.[32] By stark contrast her husband was a steady, down to earth man who studiously avoided involvement in her squabbles with her family. There is no reason for me to think that he allowed any misguided loyalty to his wife to stand in the way of his observance of his oath to be truthful in the evidence he gave the Court. While I might have doubted Mrs Collishaw’s evidence had it stood alone, it was corroborated by that of Mr Collishaw. I am satisfied that Ms McCrae either did not see the plaintiff helping to shift the washing machine and other items, or that she tailored her evidence to suit the plaintiff’s case. I reject the plaintiff’s evidence in this regard.
[32]Exhibit 7.
In all the circumstances I have concluded that the plaintiff and Ms McCrae were not frank with the court about his living arrangements at the time of the accident or since. And I find that the plaintiff deliberately avoided moving heavy items in Maryborough for fear of jeopardising his compensation claim, and that he moved heavy items at Golden Beach without experiencing discomfort or restriction.
Medico-legal evidence
X-rays of the plaintiff’s cervical spine in March and April 2002 showed no significant pathology. X-rays of the lumbosacral spine on 18 April 2002 showed a minor scoliosis, no sign of previous bony injury and no sign of premature degenerative changes. An MRI scan of the lumbar spine on 4 June 2002 showed a slight generalised annular bulge at L4/5, and no disc protrusion at any level.[33]
[33]Exhibit 1, Document 1.3, Report of Dr van der Walt, 6 June 2002, p 6; Exhibit 2, Document 11, Report of Dr Nutting, 18 February 2003, p 3.
The medico-legal experts who have examined the plaintiff have had to rely on the truth and accuracy of his self-reporting of his symptoms. Their conclusions may be undermined by undetected exaggeration in the plaintiff’s description of his symptoms and his failure to disclose relevant past experiences or activities since the accident which would be inconsistent with the level of disability claimed.
Dr David van der Walt, an orthopaedic surgeon, examined the plaintiff on 28 May 2002. The plaintiff told him that his neck had been jolted and that he had developed severe pain and stiffness in the neck over ensuing days; he said he had lost his job because of neck pain and had not worked since. Dr van der Walt recorded –
“He attended for physiotherapy, for nine sessions, and this relieved the greater part of his neck problem. However progressively over weeks he developed symptoms of low back pain, and while he had two treatments for his low back pain, continuing back pain constitutes his major complaint at the moment.”[34]
[34]Exhibit 1, Document 1.3, Report of Dr van der Walt, 6 June 2002, p 2.
The plaintiff’s description of the accident left Dr van der Walt with the impression that it was more than simply a nudge from the vehicle behind; his description of his symptoms at the time of the examination painted a picture of severe disability[35] – low back pain constantly although varying in intensity, being able to whipper snip for only about five minutes before developing severe back pain, not being able to play darts without aggravation of pain, having to move his position after sitting for about an hour and a half, and stiffness in his back.[36] His complaints were consistent with not being able to lift loads of 10 – 15 kgs, and not being able to stand cooking for more than five minutes without back pain.[37] He did not tell Dr van der Walt about either the 1997 incident involving the trailer or the 1998 incident involving the truck slipping off the jack.[38] He said his neck was significantly improved, although there was still some restriction in movement.
[35]Transcript of the proceeding, pp 77, 81.
[36]Exhibit 1, Document 1.3, Report of Dr van der Walt, 6 June 2002, pp 2-3.
[37]Transcript of the proceeding, pp 76-77.
[38]Transcript of the proceeding, p 79.
On examination the plaintiff had a normal range of lumbar spinal movement, and functionally his back was good. He was tender over the spinous process of L4 and L5.[39] Dr van der Walt concluded that he had sustained a soft tissue injury to his spine in the accident on 18 January 2002, that there was no permanent impairment resulting from the injury to the cervical spine, and a 5% permanent impairment resulting from the thoraco-lumbar injury.[40]
[39]Exhibit 1, Document 1.3, Report of Dr van der Walt, 6 June 2002, p 5.
[40]Exhibit 1, Document 1.3, Report of Dr van der Walt, 6 June 2002, p 7.
Dr van der Walt was questioned about the significance of temporal proximity between the accident and the plaintiff’s first complaints of back pain. He said that if the pain came on a few days or even two weeks after the accident, he would link it to the accident, but obviously considered the link tenuous if the pain did not come on for eight to ten weeks.[41]
[41]Transcript of the proceeding, pp 79-80.
Mr Fraser (the occupational therapist) assessed the plaintiff on 12 November 2002, three months after the plaintiff had helped the Collishaws move their possessions to Golden Beach. The plaintiff told him that he had seen his general practitioner two days after the accident for left-sided neck pain, and that he had been sent for X-rays and referred to physiotherapy for his neck. Lower back pain had started to develop two weeks after the accident. He had attended his general practitioner, and been sent for X-rays of his lumbar spine and subsequently referred to a specialist (Dr van der Walt). He said he had not had any conservative rehabilitation associated with his back.[42] Of course, this version does not accord with the facts as set out above. He did not mention helping the Collishaws move.
[42]Exhibit 1, Document 1.4, Report of Mr Fraser (Therapy Solutions), pp 1-2.
On assessment the plaintiff reported only slight ongoing left-sided neck symptoms which he described as “discomfort and stiffness”. Mr Fraser recorded –
“19. In relation to his lumbar spine, he reports constant residual aching pains in the central lower back. He reports further exacerbation of his symptoms associated with activities particularly involving sustained sitting, prolonged walking, and heavy manual handling. He was able to flex forward to touch his ankles with reports of centralised lower back pain at the extremes of range. Extension of the lumbar spine was slightly reduced but was reported to provide relief from his symptoms. Lateral flexion of the lumbar spine was performed to knee level on both sides, and rotation to the right and left was within normal limits. He reported centralised lower back pain at the extremes of range. Straight leg raising was 70° bilaterally with reports of slight lower back pain at the extremes of range. He reports tenderness to deep palpation of the lumbar paravertebral muscles and upon compression of the lumbar spine.
20.Mr Hatch was observed to move around in his chair and stand after approximately 20 minutes during my assessment. He reports a sitting tolerance of approximately 30 minutes due to increasing lower back symptoms. He reports that he is able to stand for long periods if able to move around and vary the weight between his feet. He was observed to walk with an even distribution of weight through both lower limbs. He is able to walk distances up to one kilometre before beginning to suffer from significant lower back symptoms and requiring rest breaks. He suffers from increasing symptoms when mobilising longer distances on gradients and over uneven ground.
21.Mr Hatch was observed to crouch to the floor but reported increasing lower back symptoms with sustained activity. His ability to transfer to and from crouching, kneeling and crawling positions was compromised by reduced trunk stability. He also suffers from increasing lower back symptoms with prolonged stooping (forward bending).
22.Current Functional Capacities
Based upon his presentation on the day of assessment, Mr Hatch has the following functional capacities/restrictions:
· Restrictions with prolonged sitting
· The ability to stand for long periods if able to move around and vary his weight
· Restrictions with walking long distances, particularly over uneven ground and on gradients
· Restrictions in lifting general loads greater than 10 kilograms
· Reduced capacity for handling loads on a repetitive basis
· Restrictions with prolonged forward bending (stooping)
· Restrictions with prolonged crouching
· The ability, to kneel and crawl
· The ability for forward or overhead reaching activities
· The ability to push and pull light loads
23.Considering these functional capacities, Mr Hatch is currently physically suited to sedentary/light occupations only (as detailed by the Dictionary of Occupational Titles).”[43]
[43]Exhibit 1, Document 1.4, Report of Mr Fraser (Therapy Solutions), pp 6-8.
Another orthopaedic surgeon, Dr Gregory Nutting, examined the plaintiff on 18 February 2003 and again in November 2003. He was under the impression that the accident was a relatively minor one. On his first examination, he had access to the physiotherapy notes which revealed that the plaintiff had sought help for a lumbosacral problem five days after the accident, and also that he had had lumbosacral discomfort in October 1997. The plaintiff did not mention the 1998 incident to him, but before the second examination he was supplied with Workers Compensation documents about it, including a medical opinion that while the injury was undoubtedly work related it should not cause long-term problems.
At the first examination the plaintiff told Dr Nutting that his lower back pain persisted, but that his neck pain had resolved almost completely. Dr Nutting recorded –
“With respect to the low back, Mr Hatch states that he has not had any problems with coughing. He said he is unable to lie down at night. He can only play with his children for 10 minutes and then has to lie on the floor. He said sitting in his car causes him problems and he had to break up the trip from Maryborough to Brisbane. Normally this takes two and a half hours, but it took him three and a half hours on this occasion. He said he has been building up his walking and is up to 2km a day. He said when he walks he is comfortable for a short while. He is unable to sit through a whole movie. He said he uses a pillow for support when he does sit. He said overall he is not aware of any change over the last six months. He is perturbed that he is unable to lift his son who weighs 20kg.”[44]
[44]Exhibit 2, Document 11, Report of Dr Nutting, 18 February 2003, p 3.
At the second examination the plaintiff complained to Dr Nutting of discomfort in his low back – numbness across the belt line, concentrated mainly from the midline to the left side. Dr Nutting noted –
“Over the last seven to eight months he has had problems related to pain in the left chest region, which was initially of concern since they suggested heart problems. He tells me that he only sleeps four hours and has to have his legs up in order to do this and has to sleep on his left side. He has problems sitting for very long and states that his journey to Brisbane from Maryborough took four and half hours because he became lost, but he reports that he had to break the journey at Gympie. He still cannot sit through a whole movie without moving. He is unable to play with his children, who are 6 and 8 years old respectively. His son, who has Attention Deficit Hyperactivity Disorder, is on medication and is obviously more demanding than one would normally encounter.
With respect to his progress, Mr Hatch states that the only change is the fact that he has developed numbness and pain as described above. He relates that his neck has not been a problem.[45]”
[45]Exhibit 2, Document 12, Report of Dr Nutting, 12 November 2003, p 2.
Dr Nutting expressed this opinion –
“Anthony Hatch is now [a] 32 year old gentleman who has not worked in nearly two years since sustaining what would appear to be by all reports a relatively minor impact to the rear of his vehicle. He did not mention his low back discomfort initially and, in his report to Dr Van der Walt, suggested that his low back discomfort came on over succeeding weeks. The statement of Mr Hoffman, who drove the vehicle which struck Mr Hatch’s vehicle, would tend to suggest that there was very little impact. The damage to the car suggests only a slight collision occurred.
It is nonetheless difficult to explain why Mr Match’s discomfort has persisted unchanged and, in fact, in some ways a little more ‘dramatic’ than was previously the case. I think there are other factors at work here. I can find no evidence of a significant persistent organic lesion which I can comfortably attribute to the motor vehicle accident under question.
The fact that he complains of low back pain and has very little by way of clinical signs, still rates him as DRE Category I in each of the cervical and lumbar regions and this is attended in each case by 0% permanent impairment, as I have suggested on 18 February 2003.”[46]
[46]Exhibit 2, Document 12, Report of Dr Nutting, 12 November 2003, pp 2-3.
In his oral evidence Dr Nutting accepted that complaint of back pain a few days after the accident was significant in linking the back pain to the accident.[47] He was prepared to accept that the plaintiff still experienced pain, and that an increase in activity might increase the pain. He would not recommend that the plaintiff return to tyre fitting if he were still experiencing pain from the accident.[48]
[47]Transcript of the proceeding, p 110.
[48]Transcript of the proceeding, p 111.
Dr R R D Watson, a consultant in rehabilitation medicine, examined the plaintiff on 5 September 2003. He thought it more probable than not that the plaintiff suffered a low back injury as a result of the accident. He noted the 1997 incident which had resulted in the plaintiff’s seeking transient treatment for low back pain, and dismissed it as only a strain. He said the lack of degenerative change in the low back was consistent with the low back having been effectively asymptomatic in the past, and that the progressive nature of the low back pain within days of the accident suggested a temporal relationship. The MRI findings of a bulging disc were not diagnostic: they could be present in an asymptomatic individual or could be associated with an internal disc disruption which would not necessarily show within six months of the injury.[49]
[49]Exhibit 1, Document 1.5, Report of Dr R Watson, 13 October 2003, pp 3-4.
There is no more recent medical evidence to suggest that there was in fact any internal disc disruption. And Dr Michael Henderson, a medical practitioner with special knowledge and expertise in minimal impact cases, explained that a rear-end collision does not load the spine in a way that predisposes to disc injury: biomechanical research has indicated strongly that thoraco-lumbar disc lesions do not occur as the result of a single traumatic incident unless there are associated fractures of the vertebrae, especially those that support the facet joints. That can happen only in a violently disruptive crash, which this was not.[50]
[50]Exhibit 2, Document 6, Report of Dr Henderson, 8 July 2004, pp 4-6.
Conclusion on causation
I am satisfied that the plaintiff sustained a comparatively minor whiplash injury in the accident, which resolved after a course of physiotherapy. I am satisfied, too, that he sustained a soft tissue injury to his lumbo-sacral spine, not associated with any disc lesion. Any permanent impairment of function of the lumbo-sacral spine resulting from the accident is minimal.
QUANTUM
In the weeks following the accident the plaintiff suffered pain and restriction of movement in his neck and pain in his lumbo-sacral spine. By the time he saw Dr van der Walt approximately three months later, his neck was no longer disabling. The soft tissue injury to his lower back caused increasing discomfort and disability for several weeks after the accident, but within six months he was not disabled from helping move a washing machine weighing about 60 kgs, and I am satisfied that at least from that time his complaints of pain, disability and interference with the amenities of life have been grossly exaggerated.
In all the circumstances, I assess damages for pain and suffering and loss of the amenities of life at $15,000. I apportion three-quarters of that amount to past loss, and allow interest on past loss over 5 years at 2% per annum ($1,125).
The current award wage for a tyre fitter is $517.30 gross per week,[51] that is, $441.30 net per week. The plaintiff said he was earning $500 net per week at the time of the accident, but that was not borne out by other evidence. According to a document supplied by his employer[52] at the time he was earning $442.80 net. A perusal of his income tax records for the financial years ending 30 June 1997 – 30 June 2002[53] shows the following net earnings –
[51]Exhibit 8.
[52]Exhibit 1, Document 3.36, Employment Details Form.
[53]Exhibit 1, Documents 3.1-3.25.
Year ended
30 June 1997 $17,491
30 June 1998 $18,072
30 June 1999 $16,897
30 June 2000 $11,480
30 June 2001 $13,669
30 June 2002 $6,556
Three of the plaintiff’s former employers gave evidence – Mr Casey, Mr Ford and Mr Peters. None of them would be prepared to re-employ him, essentially because he had displayed an unacceptably poor attitude to his work.
The plaintiff has been in receipt of a Newstart allowance, and has been referred to various potential employers by Job Network. The referrals have been for positions such as that of sales assistant. He has been unsuccessful in obtaining a position.
I accept that the plaintiff was unable to return to his former line of work for about six months following the accident, and that thereafter he would have needed time to find work and gradually take up the cudgels. On that basis I am prepared to allow him damages for loss of earning capacity for nine months after the accident. But in my view his continued unemployment beyond that point (as a tyre fitter or in some other unskilled capacity) is not attributable to injuries sustained in the accident.
Considering the pattern of the plaintiff’s actual earnings in the five and a half years before the accident, I assess damages for past loss of earning capacity at the rate of $300 net per week ($11,700). I allow interest over 5 years at 5% per annum ($2,925).
I allow loss of past superannuation benefits at $1,053 (being 9% of the past economic loss).
I make no award for future loss of earning capacity.
I allow the following special damages –
Medical expenses (to be refunded to HIC)[54] $ 815.50
Physiotherapy (to be refunded to 2nd defendant)[55] $ 347.30
Miscellaneous pharmaceutical and travelling expenses[56] $ 500.00
Rehabilitation expenses (to be refunded to CRS) $ 752.00[54]This figure is admitted: see the plaintiff’s submissions, footnote 4.
[55]This figure is admitted: see the plaintiff’s submissions, footnote 4.
[56]This figure is admitted: see the plaintiff’s submissions, footnote 4.
Total $2,414.80
Summary
I award the following damages –
Pain, suffering, loss of amenities of life $ 15,000.00
Interest $ 1,125.00
Past loss of earning capacity $ 11,700.00
Interest $ 2,925.00
Loss of past superannuation benefits $ 1,053.00
Special damages $ 2,414.80
Total $ 34,217.80
JUDGMENT
The plaintiff is entitled to judgment against the defendants in the sum of $34,217.80. I will hear the parties on costs.
ADDENDUM
These reasons for judgment were delivered on 5 April 2007. The parties were directed to either make written submissions on costs or deliver an agreed draft order. On 10 April 2007 the parties agreed on the following orders, which were made that day:
1. That there be judgment for the plaintiff against the second defendant for the sum of $34,217.80 together with costs fixed at $2,500.00.
2. That the plaintiff pay the defendants’ costs of and incidental to the action from 6 May 2005 to be assessed on the Supreme Court Scale.
0
0
0