Ivanovic v Larson
[2001] QDC 143
•19 June 2001
DISTRICT COURT OF QUEENSLAND
CITATION: Ivanovic v. Larson & Anor [2001] QDC 143 PARTIES: ALEXANDER IVANOVIC (Plaintiff)
v.
LARS LARSON (First defendant)
And
SUNCORP METWAY INSURANCE LIMITED (Second defendant)FILE NO/S: D762 of 2000 DIVISION: PROCEEDING: Trial ORIGINATING COURT: District Court Brisbane DELIVERED ON: 19 June 2001 DELIVERED AT: Brisbane HEARING DATE: 8 June 2001 JUDGE: McGill DCJ ORDER: Judgment that the defendants pay the plaintiff $20,394.25 CATCHWORDS: Kostik v. Giannakopoulos (1989) Aust.Torts R. 68,901 – applied
Lipovac v. Hallet Holdings Pty Ltd (1997) 136 FLR 400 – not followed
Harris v. Briggs (1994) Aust. Tort R 61,700 - cited
Arthur Robinson (Grafton) Pty Ltd v. Carter (1968) 122 CLR 649 - applied
Sharman v. Evans (1977) 138 CLR 563 - applied
Neal v. CSR Ltd (1990) Aust.Tort.R. 69,191 - cited
Hines v. Commonwalth of Australia (1995) Aust.Torts.R. 62,361 – citedCOUNSEL: S.R. Lewis for the plaintiff
R.D. Green for the defendantsSOLICITORS: Bennett & Philp for the plaintiff
Dibbs Barker & Gosling for the defendant
The plaintiff was injured in a motor vehicle accident on 15 April 1998 when the van he was driving along Ipswich Road Annerley collided at an intersection controlled by traffic lights with the first defendant’s vehicle: p.11. Liability on the part of the defendants was accepted, but there was initially at the trial an issue of contributory negligence arising from the fact that at the time of the accident the plaintiff was not wearing his seatbelt. However, after hearing the evidence of the plaintiff (p.12) which was confirmed by his general practitioner (p.30, Exhibit 17) that at the relevant time that general practitioner had issued the plaintiff with a medical certificate exempting him from the requirement of wearing a seat belt in a motor vehicle, the defendants did not press the allegation of contributory negligence against the plaintiff: p.51. Accordingly, the only matter in issue is the quantum of the plaintiff’s damages.
In the accident the plaintiff was not knocked out[1]: p.39. He suffered injuries to the knees, pain in the left side of the neck, pain to the lower back and into the hips, soft tissue injury to the thighs and the groin, and pain down the left arm: p.14. The plaintiff, after the accident, went to see his general practitioner, Dr. Mina: Exhibit 6. The plaintiff complained of pain in the knees and the left scapula, and was seen to have superficial abrasions in both knees, apparently from the impact with the dashboard. There was also tenderness and bruising of the left trapezius and upper back. Two days later the plaintiff saw Dr. Mina again complaining that his condition had deteriorated with pain in the left side of the neck and left arm, which was restricted in movement. There was also lower back pain extending into the left buttock. Dr. Mina suggested ultra sound and ordered x-rays in April, but apparently they were not taken until after the plaintiff returned to see Dr. Mina in July; in the meantime he had been attending a chiropractor, who had also treated him prior to the accident for other problems. He saw the chiropractor regularly after the accident, from 20 April 1998 once or twice a week until November 1998: Exhibit 1.
[1]Exhibit 6 is in error about this: see p.39, Exhibit 8.
In July 1998, the chiropractor, Mr. Praeger, reported that the plaintiff then complained of recurrent neck and lumbar pain, the former exacerbated by sitting with his head down and the latter by walking or lifting: Exhibit 9. The pain was eased by lying flat, by massage and stretching or spine manipulation. There was tenderness of the cervical spine and the L5-S1 junction, and restriction of movement in the cervical spine and lumbar spine. Mr. Praeger expressed some opinion about the nature of the injury, but since it seemed to be based on an assumption that the plaintiff had been wearing a seatbelt at the time of the accident, I do not regard it as reliable. At the end of July 1998 x-rays were taken which showed moderately severe degenerative disc disease present between C3 and C6 in the cervical spine, moderate osteo-arthritis in the left shoulder joints, and pronounced disc degeneration of the L5 level: Exhibit 10.
The plaintiff was seen on 7 August 1998 by Dr. Bruce Hall, a neurosurgeon, on referral from Dr. Mina: Exhibit 4. The complaint to Dr. Hall was that straight after the accident the plaintiff had felt neck and left arm pain, and soon after had developed lower back and left leg pain, which symptoms persisted. He complained of severe pain down the left side of the neck, radiating to the shoulder, and severe pain in the lower back radiating into the left leg to the knee, which was interfering with his ability to stand up straight and to walk. He was showing signs of marked discomfort at that time, and had a limited range of lumbar spine movements and a markedly reduced range of cervical spine movements and weakness in rotation of the left shoulder. There was some muscle wasting and mild sensory disturbance in the left hand. Neurological examination of the lower limbs was normal. Dr. Hall concluded that the motor vehicle accident had produced an aggravation of pre-existing degenerative changes which were apparently symptom-free prior to the accident, and he would have expected problems from this degeneration to have occurred in any case, probably within three to five years.
The plaintiff was also referred to an orthopaedic surgeon who suggested a back brace: Exhibit 6. At the time of the trial the plaintiff was wearing two back braces, fastened around his waist like a cummerbund: p.19. He said that he needed these to be able to stand up straight. An MRI scan was performed in October 1998 but did not detect any disc herniation either in the cervical spine or the lumbo-sacral spine: Exhibit 12. The plaintiff was seen by Dr. Askin, an orthopaedic surgeon at the Princess Alexandra Hospital, in December 1998 on referral from Dr. Mina: Exhibit 15. The plaintiff at that stage had restriction of extension of the lumbar spine and restriction of rotation of the cervical spine to the right. Dr. Askin refused to provide the plaintiff with a back brace, because all it would do was decondition his muscles, and would not be of assistance in the absence of an exercise program. The plaintiff was refusing to exercise as he found that that aggravated his symptoms. The plaintiff declined to come to the physiotherapy department for treatment. Dr. Askin did not think there was anything else that he could offer the plaintiff.
In December 1998 the complaints to the general practitioner were left lateral cervical spine and trapezius pain, some weakness and paresthesia in the left arm and hand, pain in the lower lumbar spine, both buttocks and groin and in the thighs to the knees: Exhibit 8. There was also pain in the knees, and restriction of some left shoulder movement.
The plaintiff was seen for the purposes of a report in March 1999 by Dr. Gillett, an orthopaedic surgeon: Exhibit 5. At that stage the plaintiff was complaining of problems associated in the lower back from walking, sitting, bending and lifting, with difficulty at times straightening up. The pain radiated to the left leg, around the pelvis. There was also left sided neck pain which restricted movement and continuing pain in the left knee, in the legs and in the groin. Leg pain was worse after walking about 600 metres. Dr. Gillett reviewed the various x-rays and a report from Dr. Mina, and expressed the opinion that as a consequence of the accident there were soft tissue and musculoligamentus injuries to the cervical spine, left shoulder, lumbar spine, knees, groin and hips. This was generally an aggravation of pre-existing degeneration in the neck, left shoulder and lumbo-sacral spine which produced continuing problems, although it was likely that within a period of three to five years regardless of the accident similar symptoms would have been present, although overall he was a little worse off specifically because of the accident in a way which would persist. He did not think there were any continuing consequences of the accident associated with the problems in the knees, groin and hips, with most of this pain being referred pain from the spine. Dr. Gillett assessed his impairment due to the accident at 5% of the whole body, comprising 2% in each of the cervical and lumbar spine, and 1% in the left shoulder. Dr. Hall agreed with Dr. Gillett’s assessment of the degree of permanent impairment, and with his assessment of what would have happened with the plaintiff’s condition but for the accident: Exhibit 4.
The plaintiff was seen for the purposes of a report by Dr. Nave, an orthopaedic surgeon, on 10 January 2001: Exhibit 16. The plaintiff’s complaints at that stage were pain in the left side of the neck, with difficulty turning the neck, and pain in the left knee, but no great problem in the right leg. He complained of loss of feeling below the left knee. There was a walking tolerance of about 400 metres; the plaintiff did not run. There was pain and some loss of strength in the left arm, and this reduced his ability to carry a weight for any length of time. The pain in the back was eased by lying down. On examination, there was normal forward flexion in the cervical spine, but other movements were about half normal, with pain. There was also some reduction in movement in the shoulder, with slight pain, Dr. Nave thought that the neck, lumbar spine and left shoulder injuries involved aggravation of pre-existing conditions, and it was possible that the injury to the knee also involved some aggravation of degenerative change. Dr. Nave recommended continuing conservative treatment, although he thought exercise would be helpful. He thought that there was 2%-3% loss of body function from the cervical, lumbar and left shoulder aggravations, and he would allow 1-2% loss of efficient use of the left leg.
Mr. Praeger said that he had seen the plaintiff the day before this motor vehicle accident, although it was more of a social visit than anything else, because the plaintiff had been planning to move out of Brisbane: p.69. At that stage the plaintiff walked in and out briskly, moved his head with ease, and did not appear to have any particular problems, a completely different picture from that presented by him after the accident: p.67. My own observation of the plaintiff in the witness was that he seemed to be able to move his head about fairly freely, and he was able to walk about without assistance, although he did so relatively slowly. He did not show any particular signs of distress while in the witness box. On a couple of occasions he stood up readily enough in order to demonstrate things to me, but this did mean that he was not sitting in the one position immobile for any great length of time.
The plaintiff was born on 20 November 1934 (p.11) in Serbia, and came to Australia in 1961: p.86. Prior to 1977[2] the plaintiff was working in the building industry; in that year he suffered an accident at work while jacking a house when the jack failed and he suffered injuries including damage to his lower cervical vertebrae and to his collar bone: p.14, p.26. It was as a result of this injury to the neck that the plaintiff had received the certificate exempting him from the requirement to wear a seatbelt: p.12. Thereafter, the plaintiff has been receiving an invalid pension, or its equivalent: p.34, 76.
[2]The plaintiff initially maintained that the accident happened in 1973 (p.14) but under cross-examination conceded that this was a mistake and that this accident had occurred in 1977, as he had told the doctors: p.26.
Dr. Mina had treated the plaintiff for cervical lumbar and left shoulder symptoms in 1982 and 1985, and degeneration was demonstrated by x-rays at that time: Exhibit 6. The plaintiff said he had chiropractic treatment in 1986 for headaches and problems in the thoracic spine: p.77. In 1987 the plaintiff was admitted to the neurosurgical unit at the Princess Alexandra Hospital complaining of neck and arm pain, but discharged himself prior to a myelogram being performed: Exhibit 15. According to Mr. Praeger, the plaintiff received chiropractic treatment for pain in arms, shoulders and neck in 1987 and 1989, in the latter on 50 occasions: p.61. (The plaintiff denied it was as many as 50: p.78). In 1995 the plaintiff went 21 times with problems with the arms and shoulders: p.62. The plaintiff accepted this: p.80. X-rays taken in February 1995 show moderately advanced degenerative disc disease in the cervical spine, and some degenerative changes in the left shoulder: Exhibit 11. The plaintiff had seen Dr. Mina with pain and restriction of movement in the right arm and shoulder on 2 April 1997 (p.29, 34) but did not see him with any other problems of that nature prior to the accident: p.35. Dr. Mina had previously treated him for neck pain and headaches: p.34. The plaintiff has a congenital problem with the lumbar spine, a spondylolisthesis which is relatively serious, being Grade 3: p.44. Apart from the disability associated specifically with the accident in 1998, Dr. Gillett would have assessed the plaintiff as suffering a 20% whole body impairment due to the degeneration: p.47.
In the present case therefore the plaintiff had advanced degeneration in the neck and lumbar spine prior to this accident, which had not been causing him any particular problems in the period immediately before the accident (p.14), although I am satisfied that it had from time to time in the past caused him problems, particularly pain in the right arm and shoulder, pain in the neck and headaches. Because of the advanced degeneration, it was likely that a trauma of this nature would produce extensive and severe pain, as occurred, and it has restricted the plaintiff’s capacity to recover from that pain. He faces continuing pain and restriction in movement in the neck, left shoulder and lumbar spine, with referred pain into the lower limbs, for the rest of his life. The plaintiff is right handed: Exhibit 16. He is continuing to receive manipulation from Mr. Praeger (p.22), and had been last treated four days before the trial: p.69. However, because of the extent of the degeneration, and because he has had problems in the past, I accept that it is likely that he would have been in much the same position within a period of 3 to 5 years after the accident in any case, although some allowance should be made for the fact that the plaintiff is a little worse off than he would otherwise have been in any event, and has lost an extremely small chance of remaining symptom-free for some or all of the rest of his life. I accept that the additional disability attributed to the accident was 5% of the whole body.
The plaintiff’s ability to walk has been restricted significantly, and he has developed some problems driving a motor vehicle and in looking after himself at home. He lives alone. The condition has interfered with his ability to play billiards, and also his ability to grow plants which are the basis of herbal medications which he prepares. This is obviously a matter of some importance to him, because he believes that these herbal remedies are of great value; I shall return to the question of whether this was productive of a loss of income, but for present purposes note that his injuries have restricted his ability to pursue this activity as an interest. The plaintiff’s pain was for a time quite severe and extensive, but to some extent it has eased with the passage of time (p.64) probably largely because of such healing as has naturally occurred[3], and the extent to which the plaintiff is worse off than he would have been but for the accident has progressively diminished and will continue to diminish. In all the circumstances, I assess damages for pain and suffering and loss of amenities in the sum of $16,500. I will allow interest on two thirds of that sum in respect of past loss.
[3]The plaintiff attributes his improvement to the chiropractic treatment, and to his herbal remedies: p.19.
Continuing chiropractic treatment
Special damages were uncontroversial except for the amounts paid to the chiropractor, Mr. Praeger, who had been seen on a large number of occasions; indeed, the plaintiff’s basic position was that he preferred to see Mr. Praeger for manipulation twice a week: p.21. This was for pain relief, and to keep him mobile; he said that Mr. Praeger was the only person who was keeping him going: p.21. Mr. Praeger expressed the opinion that the plaintiff, as a result of his injuries, required a very disciplined regime, and regular chiropractic visits: Exhibit 9. I was not impressed by Mr. Praeger as a witness, in view of his unsatisfactory evidence about the effect on the plaintiff of the seat belt that the plaintiff was not wearing, and his defensive response to questions about this subject. The account the plaintiff gave of his treatment (p.82) sounds surprisingly forceful, but this was not put to the medical witnesses[4] and I really do not know much about chiropractic techniques. There seemed to be some curious discrepancy between Mr. Praeger’s evidence (p.62) about when he had given the plaintiff chiropractic treatment prior to this accident and the plaintiff’s account (p.79, 80), and I am by no means persuaded that it was the plaintiff who was in error in respect of this. On the whole I am not prepared to attribute any significance to Mr. Praeger’s opinion that the plaintiff is in need of continuing chiropractic manipulation.
[4]The medical witnesses called had completed their evidence before this emerged during the latter part of the plaintiff’s cross-examination.
The doctors on the other hand were uniformly of the view that chiropractic manipulation (or for that matter physiotherapy) was not of any real therapeutic value in the long term, and was a reasonable form of treatment only for a period after the initial injury: Dr. Gillett, p.45; Dr. Nave, p.52-4. Both thought a period of six weeks was reasonable: Dr. Gillett, p.50, Dr. Nave: Exhibit 16. Dr. Hall in April 1999 did not believe that further chiropractic treatments were warranted: Exhibit 3. Dr. Nave did also say that if a patient continues to receive treatment because it makes the patient feel better, or the patient thinks it is helping, that that was not an unreasonable thing for the patient to do: p.57. Dr. Gillett conceded that it might be reasonable for some long term regular chiropractic manipulation or physiotherapy to be used as part of a pain management regime if that regime had the effect of producing some functional benefit, such as by allowing the patient to continue to work: p.45-46.
Some allowance would have to be made in relation to the cost of chiropractic treatment to allow for the possibility that apart from this accident the plaintiff might have been requiring some such treatment by now anyway if his various degenerative conditions had become symptomatic. But apart from that, the question remains whether this expense is one for which the defendant should pay, at least after the first period of about 6 weeks. The basis of recoverability of past expenses for treatment was considered by the Full Court of South Australia in Kostik v. Giannakopoulos (1989) Aust.Torts R. 68,901. King CJ, with whom Bollen J agreed, said at p.68,904:
“A plaintiff is entitled to recover only the reasonable costs of the treatment which he requires. A reasonable amount of latitude may properly be allowed in choosing professional advisers and providers of treatment and the cost of treatment need not be regarded as unreasonable simply because the treatment might have been obtained more cheaply elsewhere. A plaintiff cannot recover, however, exorbitant charges made by those from whom he has obtained treatment. … Where the reasonableness of the charges is challenged, it is necessary for the plaintiff to establish their reasonableness by evidence.”
Legoe J at p.68,905, said that when assessing such an item of expense, the court should consider whether the provision of such service was necessary, including the frequency or amount of service provided for the disability established, and what were the available alternatives, and whether the cost of the services provided was reasonable. He accepted there was evidence in that case to establish that the amount and frequency of physiotherapy treatment provided it was necessary.
It seems to me that that decision establishes a test of reasonableness in the objective sense rather than subjective reasonableness, that is, simply whether from the plaintiff’s point of view at the time such expenditure was reasonable. Nevertheless, in Lipovac v. Hamilton Holdings Pty Ltd (1997) 136 FLR 400 at 405-6, Higgins J appears to have treated the test laid down by Kostik as subjective reasonableness, an approach which he said was supported by the approach of Derrington J in Harris v. Briggs (1994) Aust. Tort R 61,700.
The principles applicable to the cost of future medical treatment and other things of that nature were established by two decisions of the High Court. The first was Arthur Robinson (Grafton) Pty Ltd v. Carter (1968) 122 CLR 649, which concerned an award of damages made in favour of a quadriplegic by a jury. Nevertheless there were some general comments by Barwick CJ at p.661-2:
“The matter is somewhat different in the case of disbursements which are decided to be reasonably necessary for the continued life and health of the respondent and which flow from the injury inflicted upon him. In connection with these, it can properly be said that they must be regularly and continuously dispersed and that the respondent must have the ready cash to disburse them … The range of the recurrent amount likely to be reasonably required must be considered. The question here is not what are the ideal requirements but what are the reasonable requirements of the respondent. … The jury, in my opinion, should be told to consider what the respondent, on the assumption that he was spending his own money, and assuming that he had sufficient to do as he would and was well advised and reasonably careful for his own welfare, would be likely to expend in protection of himself and his condition.”
The reference there to the plaintiff being well advised and reasonably careful for his own welfare suggests that his Honour had in mind an objective test.
The other members of the court did not deal directly with this question, but the High Court returned to the issue in Sharman v. Evans (1977) 138 CLR 563, where the High Court again allowed an appeal against an assessment of damages in favour of a plaintiff who had become a quadriplegic as a result of the injury giving rise to liability. One of the matters in issue was the cost of providing as part of the award premises at the respondent’s mother’s house and of nursing attention during periods in which the respondent might stay there. Barwick CJ said at p.566:
“It seems to me that it was not reasonable to make the appellant pay for these costs. They were not reasonably necessary in any real sense for the treatment and care of the respondent. True it may be that the transfer of the respondent to her mother’s house from time to time would give the respondent personal satisfaction and may have some psychological effect on her outlook of life. I can well understand the desirability from the respondent’s personal point of view of being able from time to time to change from her hospital to her mother’s house. But the expense of that course would be, to my mind, quite disproportionate to any causal connection which might possibly be found between that transfer and the appellant’s negligence.”
In my opinion, that approach applies equally to the cost of continuing chiropractic manipulation to the plaintiff in this case. The other members of the majority, Gibbs and Stephen JJ, said at p.573:
“The appropriate criterion must be that such expense as the plaintiff may reasonably incur should be recoverable from the defendant … The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, costs matched against health benefits to the plaintiff. If cost is very great and benefits to health slight or speculative, the cost involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits. When the factors are more evenly balanced, no intuitive answer presents itself and the real difficulty of attempting to weigh against each other two incomparables, financial costs against relative health benefits to the plaintiff, becomes manifest.”
Their Honours in that case concluded that the benefit to the plaintiff was entirely one of amenity and in no way involved physical or mental wellbeing and therefore clearly the cost ought not to have been allowed.
More recently these decisions have been applied to disallow the cost of relatively expensive proposed expenditure which would have no clear medical benefit to the plaintiff. In Neal v. CSR Ltd (1990) Aust.Tort.R. 68,191, the cost of an expensive experimental treatment for a plaintiff suffering from terminal cancer, which offered no more than some small chance of some undefined possible pallative benefit, was held not recoverable. In Hines v. Commonwealth of Australia (1995) Aust.Torts.R. 62,361, Giles J disallowed the cost of constructing and maintaining a swimming pool to a plaintiff with brain damage and multiple fractures, although it would have added to her quality of life and motivated her to exercise, and so enhanced her fitness. His Honour found on the evidence that there was no medical need for this, and that it was at best a desirable addition to her quality of life.
These authorities are directly applicable to the question of whether allowance should be made for the cost of future chiropractic treatment, but the plaintiff did not press any such claim. But in my opinion the same principles must logically apply to claims for past expense of the same nature; it is difficult to believe, for example, that the decision in Hines would have been any different if the plaintiff had already purchased the swimming pool. In my opinion, these authorities clearly show that it is not a question of what is reasonable from the subjective point of view of the plaintiff, but a question of what is objectively reasonable, bearing in mind both the cost to the defendant and the tangible benefit obtained thereby by the plaintiff. This was the sort of consideration addressed by Dr. Gillett in his evidence. On this basis, in my opinion, the evidence in the present case would not justify allowing the plaintiff the cost of chiropractic manipulation beyond the early weeks when it can be seen to have been of some objective therapeutic benefit.
In my opinion, the test in relation to recoverability of costs for past treatment, once it is established that the incurring of that cost was in fact caused by the injury and its consequences, is whether the treatment was reasonable in the objective sense, that is, whether there was some reasonable objective medical justification for the course followed by the plaintiff. In my opinion, a subjective belief by the plaintiff, however genuinely held, that the treatment is appropriate is not a sufficient justification for allowing the cost of the treatment as damages. Applying that test, in my opinion it was not objectively reasonable for the plaintiff to have continued the chiropractic treatment beyond a period of six weeks, since that is the only period during which such treatment may be said to have been of therapeutic benefit to him.
The fact that it may be reasonable from the plaintiff’s point of view to continue to receive such treatment if he finds them of assistance to him is not to the point: the question is whether the defendant is liable to pay for such treatment by way of damages. There might be all sorts of things that an injured plaintiff might be able to do which would make the plaintiff feel better afterwards, and it might be reasonable from the plaintiff’s point of view for the plaintiff to do these things, assuming somebody else was going to pay for them, but that is not a proper basis for liability to pay for whatever is to be imposed on a defendant. In my opinion, the amount properly recoverable in respect of chiropractic treatment is limited to the first period of 6 weeks after the accident, which according to Exhibit 1 involved 9 visits at a cost of $28 each, or $252.
Special Damages
With regard to the other special damages, a claim was made for amount refundable to the Health Insurance Commission in accordance with Exhibit 2, but that included a number of attendances on Dr. Mina which, according to the evidence of Dr. Mina (p.30-32) was for purposes other than in relation to the injuries suffered in the accident. As a result, it is necessary to deduct $241.50 in respect of attendances on Dr. Mina from the sum for benefits paid and from the amount refundable, so I therefore find that the cost of medical treatment was $1,258.40, and the amount refundable to the Health Insurance Commission is $903.55[5]. Travelling expenses associated with the 9 visits to Mr. Praeger which I will allow come to $133.20, and other travelling expenses which are not controversial come to $367. The defendant conceded an amount of $200 for medication, and an amount of $900, inclusive of interest, in respect of gratuitous care. No doubt in the future there will be some expense for medical care and medication (p.23) but only a moderate sum should be awarded.
[5]This is arrived at by deducting the previous voluntary repayments (by the second defendant) of $354.85 (Exhibit 2) and the cost of services wrongly included in the list.
Economic Loss
The remaining issue is about economic loss. At the time of the accident the plaintiff was receiving an invalid pension or some equivalent, and that situation has continued. The plaintiff however claimed that as a result of the injury he had lost the opportunity to turn his interest in herbal remedies into a profitable business. The plaintiff has for some time been interested in this topic, apparently an interest developed in his youth (p.15) and rekindled as a consequence of the injuries suffered by him in 1977, where he found other treatments unhelpful: p.17. He also treated himself after the accident in 1998: p.17. He has a range of remedies which he believes are of assistance to a variety of conditions, including at least some forms of cancer (p.24), and he has at times sought to exploit this knowledge by growing the relevant plants, preparing the relevant compound and operating a business. In 1995 he registered the name “Herbal Remedies for Skin Diseases” as a business name under the Business Names Act 1962: Exhibit 18. However, he said that his attempt to operate that business was a failure, and he claimed to have gone bankrupt owing large debts, because he was not running his books effectively: p.14.
I am wary about the reliability of any evidence that the business was ever carried on in any systematic fashion. He did claim to have treated 80 people: p.16. It does appear however that at one stage he was trying to set up a project to grow some of the plants required for these remedies on an area of about 3 or 4 acres at Forest Lake: p.17. He paid a number of people to assist him and planted thousands of plants there (p.75), but it appears from his evidence (as best I can understand it) that these plants were subsequently destroyed under police supervision (p.73), possibly because some or all of them were noxious weeds. He believes that he is being subjected to some form of persecution associated with Yugoslavia in connection with this, and claimed for example that his telephone has been and is being bugged: pp.15, 17, 71. He has in the past advertised for people to assist him in this business: p.16, Exhibit 19. However, he has not been able to find someone suitable who is willing to put up the necessary funds: p.72. His various efforts to interest governments and other relevant authorities in the exploitation of this knowledge have been unsuccessful. He has been pursuing this interest now for many years, and is continuing to pursue it on a smaller scale; he is still growing a number of the relevant plants at the house where he is now living (p.22, Exhibit 20) where he has a room or shed which contains a large quantity of the relevant preparations (p.19, p.89), to which he attributes substantial value.
Two witnesses were called who have been treated relatively recently by these preparations, and received some benefit from them. One was also of Yugoslav extraction (p.87), and the other is the plaintiff’s current neighbour (p.89), who found one of the preparations of assistance in reducing pain from veins in her leg which are in need of surgery, which they will still require. Neither of these paid the plaintiff any money: p.88, p.89. The plaintiff spoke of one of the difficulties he has had in exploiting this knowledge as getting people actually to pay for these remedies: p.16.
The plaintiff believes that, if these herbal remedies were properly exploited, large amounts of money could be made: p.21. However, for many years prior to the accident it was open to the plaintiff to exploit his knowledge and develop this business if that were possible (p.25), and he has not done so. His attempt prior to the accident to establish a business was not a success. In circumstances where the plaintiff has had reasonable opportunity in the past to exploit this knowledge if that were possible and has not been able to do so, there is no reason to think that, but for this accident, in the few years before it was likely that his degenerative conditions would have rendered him unable to perform heavy work anyway, he would have been able to establish a successful and profitable business exploiting these remedies.
In circumstances where it appears that the relevant authorities were unwilling to let him cultivate the sort of plants he believed he needs, it is in my opinion irrelevant in terms of economic consequences if, as a result of this accident, he has lost the physical ability to cultivate such plants on this scale himself. The plaintiff was not going to be able to do all the work required himself anyway (p.73) but his ability to do this work has been impaired. I am not going to give him an award of damages for loss of the opportunity to cultivate noxious weeds. Even if the relevant plants are not noxious weeds, and even though his ability to cultivate them himself has been impaired as a result of this accident, I am not persuaded that that has been productive of any economic loss, or indeed that he has lost any real (however small) chance of turning a profit from this activity had the accident not occurred. There is no reason to think that the multitude of factors[6] which prevented him from exploiting this knowledge profitably prior to the accident were all going to go away, and those factors continue to prevent this from being an economic opportunity of any value. As a result, he has in reality lost nothing of value because of his inability now to pursue this interest in a more vigorous and physically demanding fashion.
[6]Apart from lack of capital and business ability, he said at one point that he faced a large fine if he sold any of these remedies: p.74.
I am not persuaded that there is any chance that but for this accident he would have turned this interest to profit, and therefore there is no measure of economic loss. It was submitted that I should award some amount for the loss of the opportunity to exploit this knowledge, or perhaps the loss of a chance that it might have been exploited profitably. But in my opinion there was no real chance this knowledge might have been exploited profitably as at the date of the accident, and I find that the plaintiff has not in fact lost anything of value. I do not accept that but for this accident he would now be operating a multi-million dollar business exploiting these remedies: p.21. In my opinion there is no justification in this matter for making any award for economic loss.
Summary
A: Pain, suffering and loss of amenities $16,500.00
B: Interest on $11,000 @ 2% per annum for 3 years $ 660.00
C: Special damages $ 1,855.75
D: Interest on out of pocket specials $952.20 @ 8% per $ 228.50
Annum for 3 years
E: Gratuitous care (agreed) $ 900.00
F: Future medical and pharmaceutical expenses $ 250.00
Total:$20,394.25
There will therefore be judgment that the second defendant pay the plaintiff $20,394.25 which includes $888.50 by way of interest.
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