Ingersole v Nancarrow
[2016] QDC 315
•15 November 2016
DISTRICT COURT OF QUEENSLAND
CITATION:
Ingersole v Nancarrow & Anor [2016] QDC 315
PARTIES:
BENJAMIN JOHN INGERSOLE
(plaintiff)
AND
DANIEL NANCARROW
(first defendant)
AND
ALLIANZ AUSTRALIA INSURANCE LIMITED
(ACN 000 122 850)
(second defendant)
FILE NO/S:
DC No 1911 of 2015
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
15 November 2016
DELIVERED AT:
Brisbane
HEARING DATE:
11 August 2016; 12 August 2016
JUDGE:
Reid DCJ
ORDER:
1. Judgment for the plaintiff against the second defendant in the sum of $75,074.50.
CATCHWORDS:
TORTS – PERSONAL INJURIES - DAMAGES – MEASURE OF DAMAGES - GENERAL PRINCIPLES – where the Civil Liability Act applied – where s 55 of the Civil Liability Act applies when earnings can not be precisely calculated
Civil Liability Act2003 (Qld) s 55
Allianz Australia Limited v McCarthy [2012] QCA 312, consideredCOUNSEL:
L.T. Barnes for the plaintiff
G.C. O’Driscoll for the first defendant and second defendant
SOLICITORS:
McKeering Down Lawyers for the plaintiff
McInnes Wilson for the first defendant and second defendant
Introduction
The plaintiff claims damages for personal injury suffered in a motor vehicle accident on 21 May 2013. The second defendant, which is the motor vehicle accident insurer of the first defendant’s vehicle, has admitted liability for the accident. I am required to assess the quantum of the plaintiff’s claim.
The plaintiff claims to have suffered injury to his lower back and seeks the following assessment of damages:
General damages $12,570.00
Past economic loss $25,692.50
Interest on $24,692.50 at 0.98% p.a. $786.00
Future economic lossoTeaching $23,000.00
oSwimming instructor $69,930.00
Loss of superannuation (on $23,000) $2,185.00
Future paid assistance $5,000.00
Future medical and related treatment $5,000.00
Special damages $2,000.00
Interest on $1,494.75 at 0.98% p.a. $47.58TOTAL $146,211.08
The defendant’s counsel identified two primary issues in dispute, namely:
1. Whether the plaintiff’s ongoing back and hip pain is due to the accident or to a pre-existing degenerative condition and the extent of such injury; and
2. Whether the plaintiff has, or will in the future, suffer diminution of his earning capacity and consequential economic loss, especially through a partnership he is a member of, Fast Lane Swimming.
Background
The plaintiff was born on 23 December 1976 so is almost 40 years of age. He is a qualified teacher. Prior to the accident he was teaching health and physical education (HPE) at Wynnum State High School. He has also been a swimming coach for about 20 years. As a boy and young man he was an exceptional swimmer regularly competing in Australian championships. Whilst he was not successful in making an Australian team he told me that he fairly regularly made finals of events at the Australian championships. He continued competitive swimming up until he was about 21.
From a young age he has also taught swimming – initially at Capalaba Swimming Club, then at Thornlands, Iona College and most recently at Redlands College where he conducts his business – Fast Lane Swim Club - in partnership with Bradley Merson. The plaintiff and Mr Merson have conducted the Fast Lane’s business together since about 2007/08.
The plaintiff is married with two children aged 6 and almost 3. His wife assists in Fast Lane’s business, doing marketing, invoicing, payroll and other administrative tasks.
The plaintiff also recently began a new learn to swim school, Aqua Champs, in partnership with Ashley Callus. Neither he nor Mr Callus work in that business. It is conducted by the plaintiff’s wife. The plaintiff said in evidence that his wife currently earns about $300 per week from Aqua Champs, although it is not currently returning a profit, and earns $750 per week from her work in the Fast Lane’s business. In her evidence she said she works about 70 hours per week.
The plaintiff in addition to his fulltime job as a teacher said that, prior to the accident, he worked 20 to 25 hours per week at Fast Lane Swimming Club. This was primarily in the afternoons, conducting learn to swim classes but he also worked some mornings doing squad training. That estimate of the hours he worked was confirmed by his partner Mr Merson when giving evidence. Mr Merson said he worked a similar number of hours.
The plaintiff also said he regularly played touch football and surfed up to three times per week. He said that but for the accident he would have continued in the swimming coaching business, at least until his youngest child finished school. This will probably be for about 14 or 15 years.
His wife described him, pre-accident, as a very hands on husband and father, suggesting he was of significant assistance around the house.
It is clear that his life, and that of his wife must have been very busy indeed. Having heard all the evidence I have some doubt as to whether the work they were doing would have been able to be continued to be performed long term. I have little doubt however that he was a hardworking man, ambitious for the financial security of his family. I am sure that this would have motivated him to continue working both as a teacher and swimming coach, if he was physically able to, for some significant time, but the hours he performed as a coach might have been reduced to accommodate the demands of teaching and fatherhood.
Motor Vehicle Accident
In the accident the plaintiff’s vehicle was struck in the rear by a vehicle driven by the first defendant. The plaintiff estimated that the first defendant’s vehicle was travelling at about 40 to 50 kph at the time of impact but that estimation was necessarily based on only a quick view of the car in the rear view mirror of his vehicle. It would, I think, be wrong to place great reliance on that estimate of speed. In any case, I do not think determination of the speed of the first defendant’s vehicle is of any real importance in determination of the factual issues in dispute.
Whatever the vehicle’s speed, it was sufficient to thrust the plaintiff’s vehicle forward, but not far enough forward for it to collide with the vehicle stopped immediately in front of it.
The plaintiff said he was shocked and felt immediate pain in his right shoulder and back. The accident happened about 3.30 pm. That same day he went to his GP, Dr Park at Thorneside Medical Centre complaining of a sore neck and upper back. He said he developed lower back pain that night. He returned to see Dr Driver, another GP at that same practice, three weeks later on 12 June complaining of continuing lumbar, buttock and posterior thigh pains since the accident. In my view the medical record of Dr Driver of 12 June supports the plaintiff’s oral testimony of the development of lower back pain on the night of the accident. Subsequently he attended Active Physiotherapy, seeing them on eight occasions between 27 July and October 2013.
The plaintiff said that despite that physiotherapy treatment the pain in his lower back and right hip persisted. He rated it as 8 out of 10 on the Visual Analogue Scale (VAS). He rated his neck pain as 4 out of 10.
Generally I find estimates of pain using the VAS, which are of course necessarily subjective, of little assistance. I draw nothing from the plaintiff’s assessment of his pain other than that he finds his lower back and hip pain is significantly worse than his neck pain. He also said his pain fluctuates and can be almost entirely absent on some days, only to return.
The plaintiff commenced seeing another physiotherapist, Cathy Mitchell, from All Sports Physio in about August 2014. He says he goes to physio only if his pain is “unbearable”. Overall he thought his neck pain was improving but said there was little change in his lower back pain since the accident.
Because of his symptoms he says he has changed the nature of his teaching. Previously he had primarily taught HPE to junior high school and instead now teaches senior students. He works, he says, more as a facilitator and assessor. Whereas he previously did 17 lessons a week of HPE he now does only 12 in which six are less active with older students. He also now does five classes of manual arts and year 7 Japanese.
He also said in evidence that he now does back exercises daily. His symptoms can be aggravated by extended activities involving lifting, twisting or bending.
Importantly he said swimming teaching, particular teaching learn to swim classes, aggravates his back. He said learn to swim classes primarily involves children aged three to six and necessarily involves fairly constant wading through water and assisting them in a way that aggravates his back. As a result he and his partner, Bradley Merson, have effectively changed their work arrangements. Mr Merson, who primarily did squad training prior to the accident, now primarily does learn to swim classes and the plaintiff, who previously mostly did learn to swim, now primarily does squad training. This involves work outside the pool, giving instruction, rather than being physically involved as is necessary with learn to swim classes.
Pre-accident Symptoms
The plaintiff agreed he has previously seen Ms Mitchell from time to time for back pain. He said her records (Tab 4 of Exhibit 3) were accurate.
These records show that Ms Mitchell had first seen the plaintiff in May 2006 with lower back pain following a game of touch football. He told her he had continued to play for two weeks after first injuring his back but sought treatment due to residual pain and stiffness. She records that she treated him three times and that there were “no ongoing concerns”.
Ms Mitchell next saw the plaintiff on 23 June 2008 with an injury to the acromio-clavicular joint. He had a second consultation on 31 July. She said there were again no ongoing concerns.
In March 2010, the plaintiff saw Ms Mitchell, with left lateral hip pain, again following a game of touch. He had only one consultation.
His next consultation with Ms Mitchell was in October 2010 for “mild LBP” which resolved with only one treatment.
In September 2011 he again saw Ms Mitchell for left lateral hip pain, similar to his hip pain of March 2010. He had, in all, four visits up to 17 October 2011. The pain resolved and he returned to touch football.
On 2 February2012 he returned again with mild lower back pain which again resolved with only one treatment.
In Ms Mitchell’s report (Tab 4 of Exhibit 3) she says the plaintiff has suffered, since the accident, from right shoulder pain and some ongoing lower back pain which did not resolve with treatment at another clinic. She describes some limitation in right rotation and obvious joint stiffness and muscle spasm. Although the report does not say so, I assume this relates to her examination of his right shoulder. She then continues “[H]is lower back presented with some limitation in flexion and extension ROM”. She noted he had previously demonstrated a full range of movement when seeing her. She observed muscle spasm. In all she saw him six times, on the 6 February, 18 August and 25 August 2014 and 22 June, 22 September and 15 October 2015. She said his response to treatment was slower than previously.
The plaintiff had earlier been seen by Scott Hayes at Active Physiotherapy (Tab 2 of Exhibit 3). He saw Mr Hayes eight times from the 22 July – 16 October 2013. Mr Hayes’ clinical notes describe L4/5 spinal symptoms “worst during teaching PE” and of being variable “dependent on activity”, resulting in the “need to reduce activity due to pain”. Mr Hayes notes suggest the plaintiff appeared to improve somewhat, because on 2 October it is said he had played a game of touch, pulled up a bit sore but went relatively well. I note that in a letter to Dr Driver of 27 July 2013 (Tab 17 of Exhibit 3) Mr Hayes had said the range of movement of the plaintiff’s lumber spine was then “dramatically decreased and he is functionally limited, particularly at work”.
This history and that prior to the accident set out in Ms Mitchell’s records and confirmed by the plaintiff, must be seen alongside the plaintiff’s GP records (Tab 17 of Exhibit 3).
The first relevant consultation appears to have been on 10 February 2012, some eight days after seeing Ms Mitchell on 2 February. She had said that on that day she saw him for mild lower back pain which resolved with one treatment.
On 10 February Dr Driver records “5/12 lumber pain and s[t]iffness R > L, FHX of anklosing spondylitis”. This is a record of 5 months of lumber pain and stiffness, greater on the right than the left and a father’s history of suffering ankylosing spondylitis. Dr Driver also records he prescribed Voltaren Rapid tablets and sent the plaintiff for an x-ray.
The plaintiff next saw Dr Driver on 2 April. He records:
“Hasn’t needed voltaren yet.
Reason for contact:
L5/S1 Disc degeneration
d\w re exercise\posture. NSAI if needed”
Dr Driver’s notes reveal that in February 2012 the plaintiff’s spinal pain was investigated by both pathology and by x-ray examination. The x-ray was conducted on 24 February and records:
“ There is end plate irregularity and disc narrowing at L5. The other lumbar discs are normal. Likely early pars defects are noted at L5 but no anteriolisthesis at present. Minor degenerature changes are seen elsewhere. The S1 joints show normal appearances at present. Alignment is satisfactory.”
There is no relevant consultation thereafter until the day of the motor vehicle accident when he saw Dr Park, as I’ve previously said, with neck and upper back symptoms. On 12 June 2013 he saw Dr Driver with “continuing lumber, buttock and posterior thigh pain since MVA”. Dr Driver records that “previous back pain last year had settled completely”.
That history, given by the plaintiff, is consistent with there being no consultations with either his GP or with Ms Mitchell for over 12 months before the accident.
An issue to be resolved concerns Dr Driver’s notation of the five month history of lumber pain and stiffness before 10 February 2012. Such a history is inconsistent with the plaintiff’s oral testimony, and that of his wife, and that of Ms Mitchell. Overall I am inclined to accept the evidence of the plaintiff, and of his wife, that he did not have a five month history of significant back pain. Ms Mitchell’s history is of only one consultation on 2 February for “some mild LBP” which resolved with only one treatment. The question is whether this history of Ms Mitchell is correct, or whether he did indeed tell Dr Driver of a more protracted history. If his pain resolved after only one treatment on 2 February, as Ms Mitchell says, why would he consult Dr Driver 8 days later? The plaintiff says he did so because of his father’s history of ankylosing spondylitis. But is it likely Dr Driver would refer him for pathology testing and an x-ray if the plaintiff did not complain of any symptoms? Is it likely Dr Driver would have recorded a 5 month history of back pain if the plaintiff had not told him of that fact?
In giving evidence Dr Diver said his recollection is the plaintiff seemed quite fit, and seldom consulted the surgery. He also said between that he tries to record the patient’s history directly into the computer as the history is given.
The fact of the plaintiff’s back pain not having been a significant injury is in my view consistent with the plaintiff not having used the prescribed Voltaren when he next saw Dr Driver on 2 April.
I accept the oral evidence of the plaintiff and his wife that the plaintiff did not have a significant history of lower back pain but I also conclude that he told Dr Driver of a 5 month history of some symptoms of low back pain.
I think that history together with his father’s history of ankylosing spondylitis caused Dr Driver to refer the plaintiff for pathological and x-ray examinations.
I shall consider that finding further when discussing the evidence the orthopaedic surgeons gave in this case.
The plaintiff said he had no time off work due to hip or lower back pain prior to the accident. He recalled an injury to his right shoulder but said it did not cause any ongoing problems. This is consistent with Ms Mitchell’s evidence of seeing him on 23 June and 31 July 2008 in respect of AC joint sprain. I accept his symptoms, pre-accident, did not cause him to lose time from work.
Effect of Accident
The plaintiff said in evidence that as a consequence of the accident he feels he has a need for some ongoing physiotherapy and occasionally uses Nurofen or Panadol for pain relief but prefers not to use them.
He also said in evidence that he takes about two days off from work each term (i.e. eight per annum) as a result of his back symptoms. Last year he said he had taken 11 days. He says he takes that in sick leave but still has about eight weeks of such leave owing so has to date suffered no economic loss from those absences.
In cross examination he however accepted that he had only 14.7 days off on sick leave between the accident and 16 March 2015, almost 2 years post-accident. He concedes one or more days may have been when his children were sick. He was cross examined on the basis that only one of the days of sick leave corresponded with attending upon an appointment for back symptoms. He said that on some days he may have taken time off and stayed at home due to back pain, but not seen a doctor or physiotherapist.
Ultimately I am not able to conclude exactly how often he has been away from his work as a teacher due to back symptoms, but I accept that, from time to time, the symptoms are so severe he does not feel able to do his work as a teacher. It is however probably less than the 8 days annually he estimated.
I have said already that because of the difficulties he has with spinal pain when conducting learn to swim classes the plaintiff now concentrates on squad training which involves giving directions to older swimmers from the side of the pool.
The plaintiff’s partner in the swim school, Bradley Merson, is 28 years old. He too was an accomplished swimmer, a HPE teacher and qualified swim coach. Previously he used to mostly teach squad training. As a result of the plaintiff’s position he now primarily teaches the how to swim classes. In other words, he and the plaintiff have largely exchanged roles.
The swim school operates each week except for two weeks at Easter and for one month over Christmas. The plaintiff and Mr Merson both said that pre-accident they each did 20-25 hours per week of swimming instruction. The school operates six mornings a week (except Sundays) and each weekday afternoon together with Saturday mornings. The plaintiff said that because of his symptoms he has had to reduce his hours as a swimming coach, over time, to a current level of about 9.5 hours a week – three hours on each of Tuesday and Wednesday mornings, one and a half hours on Thursday mornings and two hours on Friday afternoons. Mr Merson similarly reduced his hours. To compensate, they said, additional sessional coaches were employed, and are paid between $20-30 per hour depending upon their experience. It was submitted that a loss of 10-15 hours per week would mean a gross loss of $200-$300 per week arising from the plaintiff’s injury.
One difficulty in assessing the loss suffered by the plaintiff’s as a result of his injury is that, as the plaintiff reduced his hours, so too did his partner, Mr Merson. Mr Merson’s explanation for this decision is that, whilst pre-accident he had no plan to reduce his hours, he did so because of the plaintiff’s similar reduction. That does not seem to me entirely logical. It seems to me that part of the decision for reducing his hours may well have been related to lifestyle choices. Similar considerations apply to the plaintiff. Both the plaintiff and Mr Merson had full-time jobs as teachers. I have referred already to the plaintiff’s very busy lifestyle and to my view that over time, he might have wished to reduce his hours working as a swim coach, especially as he is married, and has two young children and his wife herself works long hours.
In such circumstances, I do not think all of the reduction in his hours can necessarily be said to be directly related to his low back symptoms. I shall return to this issue shortly.
The plaintiff’s participation in touch football and surfing is, he says, also now much reduced. He says he plays touch only occasionally, when his team is short, and participates less strenuously. He also says that after a game he struggles for a couple of days due to pain. He says he now surfs only about once per month for shorter duration and says his participation is less active.
Examination of the tax returns of the plaintiff, and of the Fast Lane’s partnership, shows that financially the plaintiff is quite successful. His 2016 Group certificate indicates a gross salary from work as a teacher of about $86,050.00. Perusal and analysis of the partnership tax returns shows the following:
| Year Ending June | Gross income ($) | Expenses ($) | Profit ($) | Wages ($) | Wages as percentage of total revenue | Profit as percentage of revenue |
| 2011 | 74,105 | 54,781 | 19,324 | 40,510 | 54.7% | 26.0% |
| 2012 | 115,131 | 66,006 | 49,125 | 49,232 | 42.8% | 42.7% |
| 2013 | 173,558 | 109,893 | 63,665 | 85,242 | 49.1% | 36.6% |
| 2014 | 196,577 | 115,518 | 81,059 | 84,040 | 42.8% | 41.2% |
| 2015 | 221,430 | 126,681 | 94,749 | 100,494 | 45.4% | 42.8% |
It can be seen that wages as a percentage of total revenue has not varied significantly between the 2012 year and the 2015 financial year. If the plaintiff and his partner each indeed worked 10 – 15 hours less, one might have expected a more observable spike in that figure. If one uses a midpoint of 12.5 hours reduction by them both, and a midpoint of $25 per hour paid to the replacement coaches for 45 weeks a year this would be an increase of over $28,000 in wages a year. Such an increase is not observable in the figures. I am inclined to conclude that the real reduction in hours is only recent and this supports my view it is significantly related to lifestyle issues.
Medical Evidence
The dispute between the views of Dr Campbell and Dr Dickinson, both orthopaedic surgeons concerns both their assessment of the plaintiff’s pre-existing condition, and their assessment of the effects of the injury.
Dr Dickinson, in his report of 20 August, says that the plaintiff told him that he had not previously had similar symptoms of lower back pain, but only occasional low back pain. On examination Dr Dickinson noted no tenderness, muscle spasm or guarding. Extension produced low back pain. Rotation of the pelvis also produced such pain, but vertical compression of the spine did not. SLR was to (0 degree. There were no neurological findings.
Importantly he said x-rays of 11 July 2014 showed mild to moderately advanced osteoarthritis of his right hip and severe degeneration of his lumbar sacral spine with spondylolisthesis at L5/S1. He also said there was a Grade 1 pars interarticularis defect at that level. He also noted the x-rays of February 2012 I have earlier referred to.
Dr Dickinson also noted Dr Driver’s note of 10 February 2012 of a five month period of lumbar pain especially on the right hand side that I have earlier considered.
Dr Dickinson’s opinion was that the plaintiff’s condition has reached maximum medical improvement. He says there is no evidence of significant clinical findings and assesses him as having suffered only a DRE Category I injury. He said there was no evidence of significant clinical findings which would place him in the more significant DRE Category II.
He says the plaintiff had pre-existing symptoms as a result of his spondylolisthesis and that the restrictions he has as a teacher, and I interpose as a swimming coach, are “related to his degenerative changes at L5/S1 and his spondylolisthesis and are unrelated to the accident”.
File notes of a conference between Dr Dickinson and the defendant’s legal advisors (Tab 9 of Exhibit 3) were signed by Dr Dickinson to indicate that he confirmed the contents. The notes indicate the ongoing problem for the plaintiff was pain due to his longstanding degenerative condition causing mechanical lower back pain. Dr Dickinson’s view was that is not uncommon for someone with the plaintiff’s condition to experience such symptoms in their 40’s. He says the plaintiff’s complaints of pain, and his assessment of a pain level of 9 out of 10, is inconsistent with his examination. Dr Dickinson suggested any effects of the accident were short lived.
Dr Campbell’s view is markedly different. The plaintiff described daily low back pain rating up to 9 out of 10 in the VAS, aggravated by even simple activities such as washing a car. Dr Campbell said that on examination there was a 30 – 40% reduction in flexion and extension of his lumbar spine, with asymmetry of movement. He noted tenderness and guarding over the lumbar paraspinal muscles bilaterally.
He suggested the plaintiff may benefit from a short course of physiotherapy (6-8 sessions at $70 - $100 per session) for any acute exacerbations of the lower back in the future. He concluded the plaintiff has ongoing lower back pain and stiffness arising from the subject accident. He says further recovery is unlikely.
Dr Campbell assessed a DRE Category II injury amounting to a 6 per cent whole person impairment. He said however, that 30 per cent of that can be attributed to his pre-existing lower back complaint. In a subsequent report of 3 August 2016 Dr Campbell says it would not be reasonable for the plaintiff to continue working in a pool providing physical support to young beginner swimmers for 20 to 25 hours per week and that a reduction to 7.5 – 9 hours would be reasonable. In a file note of 8 August 2016 (Tab 13 of Exhibit 3), he said he would reduce his assessment to 20% of his symptoms being unrelated to the accident if the 5 month history of lower back pain referred to in the GP notes is inaccurate. As a consequence of my finding of fact about that issue I think it reasonable to conclude that Dr Campbell’s view would be a reduction of 25% due to some but not significant pre-existing symptoms. Consequently Dr Campbell’s assessment can be seen as an assessment of 4.5% whole person impairment as a result of the accident superimposed upon a pre-existing 1.5% impairment.
Dr Campbell recommends that the plaintiff “restrict his duties to higher level swimming classes and squad training that can be taught from the side of the pool.” He also supports the view expressed by Gordon Siebel, an occupational therapist who gave evidence that the plaintiff “move to sedentary teaching”.
In my view, that opinion is itself of little help to me in resolving the matter. I think examination of the plaintiff’s tax returns, consideration of his lifestyle, the evidence of his partner and my assessment of him as a witness is of importance. Having heard the evidence and considered the tax returns it is my view that whilst the plaintiff does have lower back pain, which came on after the accident, and much of which, even the majority of which is attributable to the accident, this is not the only cause of his reduced working hours.
As I have said, in my view, lifestyle factors such as influenced Mr Merson to also reduce his hours were a significant factors in the plaintiff’s decision to do so. I am satisfied that even without the accident the plaintiff would have reduced his hours as a swim coach. Nevertheless, the extent to which he has reduced his hours and the timing of the decision to do so has been influenced by his injury and consequential symptoms. Whilst I felt he had a tendency to overstate things when giving evidence I was, as I have said, generally impressed by him as a hardworking man committed to providing for his family. Examples of such overstatement are, I think, his saying he suffered pain of 8 or 9 out of 10 on the VAS and his statement that he used to surf, pre-accident, up to three times per week and for up to 4 hours at a time. I think a man working fulltime and performing additional work as a swimming instructor, engaged in touch football and with two young children and living about an hour from the surf is unlikely to be have been able to undertake surfing nearly so regularly. I think his pain was and is less than the assessment he made and his surfing pre-accident less frequent. In my view, his assertions of pain are incompatible with his return to touch football, even at a lower level than previously and with the demands of a fulltime teacher working additional hours in a swim school with two young children and a working wife. The effect of the accident has however influenced his decision to reduce his hours.
Statutory Regime in Relation to Economic Loss
I am conscious of the provisions of s 55 of the Civil Liability Act 2003 (Qld) and of the decision in Allianz Australia Limited v McCarthy [2012] QCA 312. This is clearly a case which engages s 55 of the Act. I am unable to precisely calculate any award for past or future loss as a swimming coach arising from the accident by reference to a defined weekly loss.
I am, however, satisfied that he has suffered and will suffer such loss. I also think the decision he made to teach less HPE, especially with younger students, is due significantly to the accident and is likely to impact on his future prospects of advancement as teacher.
It is therefore mandated that I state the assumption on which any award is based and the methodology used to arrive at the award. In Allianz Australia Limited v McCarthy (supra), White J stated:
[59] In Ballesteros v Chidlow the President said:
“... Section 55(3) must be read in the context of the whole section. The heading of the section is When earnings can not be precisely calculated. Section 55(1) makes plain that the section only applies to “an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss. Whilst [the trial judge] could have chosen to more fully state her method of reaching an award of $20,000 for damages for future economic loss including future superannuation losses, from the modesty of that award and the assumptions and facts stated previously in her reasons, her Honour’s methodology is plain enough...”
[60] Fryberg J, however, took a rather more structured approach observing:
“... “Assumptions” and “methodology” operate in tandem in the provision, and the one throws light on the other. Both words have overtones of at least quasi-mathematical meaning. “Assumptions” could, of course, refer to the facts found by the judge upon which the award is based. In my view that would be a most inappropriate use of the word, and it seems unlikely that it was intended in this context. Apart from anything else, the subsection would be unnecessary if that were the meaning, since judges must in any event state their findings of fact. In the context of making a global award where, ex hypothesi, precise calculation by reference to a defined loss is impossible, it is much more likely to have been intended to refer to assumed facts underlying one or more hypothetical calculations which a judge might use in order to get a general idea of what might constitute a suitable global figure; or to similar facts or sets of facts used by the judge to confirm or cross-check a global figure selected by making an experienced guess. That in turn suggests that “methodology” does not refer to anything too demanding. In this context, an experienced guess is a legitimate methodology, although if possible it should be dissected in a manner appropriate to the circumstances of the case in order to understand what it might imply in those circumstances and thereby to confirm that the figure is of an appropriate order of magnitude.”
[61] His Honour suggested that the intention of a provision like s 55(3) was to promote intellectual rigour:
“If it is not complied with, a court of appeal will be obliged to scrutinise the award rather more closely than ordinarily it would do in such cases. After all, the purpose of requiring the assumptions and methodology to be stated must surely be to expose them clearly, including to a court on appeal.”
[62] In Reardon-Smith v Allianz Australia Insurance Ltd Keane JA, with whom Williams JA and Atkinson J agreed, observed:
“Section 55(3) of the Act is evidently concerned to ensure that the assessment of damages proceeds in a manner which is sufficiently transparent that the basis of the decision is apparent, both to the parties and to an appellate court. To this end, the provision requires that the methodology and assumptions on which the award is based be stated: it is clear, however, that it does not require an explicit statement of a calculation in which a formula is applied to factual findings.”
His Honour noted that if the statement of the methodology were insufficient to comply with the requirements of s 55(3), referring to State of New South Wales v Zerafa, the error would not of itself result in a new trial or reassessment on appeal. However, his Honour said:
“In some cases, a failure to comply with s 55(3) may result in a decision which is so opaque that the judgment should be set aside on the basis that the paucity of reasoning amounts to an error of law...”
Findings, Assumptions and Methodology
I find that the plaintiff has ongoing symptoms arising from the accident which aggravated pre-existing and mildly symptomatic symptoms of lower back pain related to a pre-existing arthritic condition. I find that, without the accident, those symptoms would have been less than they presently are but would have become more significant over time.
I find that, as a result of his symptoms, he has changed the nature of his work as an HPE Teacher. I find that because of such changes there is a possibility – but by no means a certainty – that his advancement as an HPE Teacher will be less than it might otherwise have been but that, in any case, his desire to conduct a swim school after hours, which necessarily limited his capacity to engage in activities at school outside normal teaching hours, would have limited his prospects, for example, of ever being a head of department.
In such circumstances I think any claim for future economic loss as a teacher is very limited, but by no means entirely absent. I would award a sum of $5,000 in respect of future loss of earnings as a teacher because of that possibility. Such sum represents only a very small sum, but I think that is all that is justified in circumstances where no evidence was given about the extra income that might be earned by, for example, a promotion to head of department or other advancement. It is a very modest sum which I award because I think such loss is a real, but far from certain, possibility.
In respect of swimming, I think the plaintiff has been materially affected. He suffers symptoms from coaching, especially coaching learn to swim classes, and is working less hours than he would otherwise have done. He has, however, been able to limit the consequences of his injury, from a financial point of view, by changing from learn to swim classes, which I accept was his preferred teaching, to squad training.
I will allow $40,000 for such future loss and $15,000 for past loss. Whilst such figures are not capable of precise calculation, I note that the future award represents a figure of about $100 per week for 10 years or $60 per week for 20 years. The past loss represents a sum of $80 per week. Consideration of the matter in that way is a reasonable check point to use in determining the appropriate award, where such sum is incapable of precise calculation. I do not, by using that method, suggest the assessment is a mathematical one.
I conclude that the onset of symptoms and their continuation since the accident, largely as described by Dr Campbell whose assessment of incapacity I generally accept, subject to the limitations I have expressed about the myriad influences on his decision to reduce his hours as a coach, have meant that he has reduced his hours sooner, and perhaps to a greater extent, than he would otherwise have done.
General Damages
I would assess the plaintiff’s general damages under Item 93 of the Civil Liability Act, that is, an injury causing moderate permanent impairment for which there is objective evidence, of the lumbar spine. In my view, his injury is more severe than one classified under Item 94. Under that item, an ISV at or near the top of the range is appropriate if the injury substantially reaches maximum medical improvement with only minor symptoms within about 18 months. I think the plaintiff’s injuries should properly be described as more serious than that. Item 93 has an ISV range of 5 to 10. The commentary says that an ISV of not more than 10 will be appropriate if there is whole person impairment of 8 per cent caused by a soft tissue injury for which there is no radiological evidence. Having regard to Dr Campbell’s assessment of a 6 per cent impairment, only 75% of which is, I have found, related to the accident, I think it appropriate to award to the plaintiff an ISV in respect of his lumbar spinal injury of 6. I would increase this to an ISV of 7 to take account of the minor neck problems he has had. An ISV of 7 amounts to an award of general damages of $9,510.00
Other Damages
I would allow interest on the $15,000 for past economic loss of 0.98 per cent for 3.5 years amounting to $514.50. I do not allow loss of superannuation as a teacher. I think it is appropriately accounted for in the award for future loss of earnings as a teacher.
The plaintiff’s wife gave evidence that from time to time assistance is required with tasks such as mowing the lawn. The plaintiff did not really give any evidence about those matters. In my view a small award of about a thousand dollars is justified. Similarly an award of about two thousand dollars for the cost of future medication and physiotherapy as suggested by Dr Campbell is appropriate. I think however that in the event of any exacerbation less than 6-8 sessions might be required. Dr Mitchell’s past treatment history supports that view where the plaintiff also says he tends not to use pharmaceuticals. Special damages of $2,000 and interest thereon of about $50 was agreed.
In all therefore I would assess the plaintiff’s damages as follows:
General damages $9,510.00
Past economic loss $15,000.00
Interest $514.50
Future economic loss $45,000.00
Future paid assistance $1,000.00
Future Medical and related treatment $2,000.00
Specials $2,000.00
Interest $50.00TOTAL $75,074.50
I give judgment for the plaintiff against the second defendant in the sum of $75,074.50. I will hear argument as to costs.
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