James Edgar Boyd v Katrina Louise Smith
[2010] ACTSC 62
•9 July 2010
JAMES EDGAR BOYD v KATRINA LOUISE SMITH
[2010] ACTSC 62 (9 July 2010)
DAMAGES – personal injury – plaintiff bus driver aged 50 injured in collision with car – neck injury – previous injuries to left shoulder and to neck – pre-existing asymptomatic degeneration in cervical spine – total loss of earning capacity – no issue of legal principle
Safety, Rehabilitation and Compensation Act 1998 (Cth)
No. SC 225 of 2007
Judge: Master Harper
Supreme Court of the ACT
Date: 9 July 2010
IN THE SUPREME COURT OF THE )
) No. SC 225 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:JAMES EDGAR BOYD
Plaintiff
AND:KATRINA LOUISE SMITH
Defendant
ORDER
Judge: Master Harper
Date: 9 July 2010
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the sum of $796 000.00
This is a claim for damages for personal injury arising out of a motor vehicle collision. Liability is not in issue.
The collision occurred on 19 April 2001. The plaintiff was driving an ACTION bus north in Stuart Street, Griffith. The defendant was driving a car east in Barrallier Street, and apparently failed to see the bus approaching on her right. She entered the intersection without stopping at a give way sign. The driver side front of the car came into collision with the passenger side front of the bus. The bus was not equipped with a seatbelt for the driver.
The plaintiff was born in the United Kingdom in 1950, and migrated to Australia at about nineteen years of age. He married in 1979 and has two children, a son now twenty-nine and a daughter of twenty-four. He had worked as a bus driver since 1989, following employment as a crane driver in the construction industry.
The plaintiff was unfortunate enough to be involved in a number of accidents in the course of his employment with ACTION. In 1991 he was driving a bus which was involved in an intersection collision. He sprained an ankle and had some time off work but made a full recovery.
In December 1993 he injured his left shoulder when operating a manual destination sign winder. He underwent surgery to the shoulder in July 1995, which gave him significant pain relief. He returned to work on full duties after his operation by November 1995. He had some continuing pain and stiffness in the left shoulder and continued to see a physiotherapist from time to time.
In February 1996 he was again involved in an intersection collision while driving a bus. This aggravated his left shoulder symptoms, and caused him some pain in the neck and upper back. It is apparent from notes taken by the physiotherapist that he treated the plaintiff’s neck for about three months after this accident, and that subsequent attendances related to the left shoulder. The plaintiff saw the physiotherapist on eighteen occasions during 1997, five times in 1998, twice in 1999 and on ten occasions during 2000. He also saw the physiotherapist twice, in January and March, in 2001 before the collision giving rise to the present claim.
Each of the three incidents in which he was injured, in 1993, 1996 and 2001, occurred in the course of his employment and entitled him to claim compensation from Comcare pursuant to the Safety, Rehabilitation and Compensation Act 1998 (Cth). It is apparent that the practice of Comcare was to open a file under a number allocated to the individual claimant, with subsequent claims being allocated the same claimant number with the addition of a number in brackets to indicate a second or later claim. A first claim for the plaintiff was presumably made in 1991. Comcare documents in relation to that claim were not in evidence. The plaintiff made a claim for his 1993 left shoulder injury (claim number 7980/02), the 1996 collision claim (7980/03) and, eventually, the 2001 collision (7980/04). The 1996 accident seems to have given rise to a claim for a closed period only. The 1993 claim continued after the plaintiff had recovered from the effects of the 1996 accident.
The present action is complicated by the fact that the plaintiff did not immediately lodge a claim for his injuries following the 2001 accident. Instead, he continued to submit accounts for treatment expenses and certificates for time off work under the claim number for the 1993 injury. His explanation for this, supported by his general practitioner and by contemporaneous documentation, is that he had become frustrated with Comcare’s practice of closing their file if they had not made any payments for an extended period. The next time the plaintiff put in accounts for payment, or sought approval in advance to undergo treatment, he would be told that Comcare would not pay for it because the file had been closed. The plaintiff’s evidence was that he found dealing with the Comcare bureaucracy very frustrating. On a number of occasions he had had to attend on his general practitioner to obtain a medical certificate, and to go back to argue his case with Comcare. This is supported by the fact that on a few occasions the general practitioner himself wrote to Comcare expressing his own irritation about the way they were dealing with the claim.
Accordingly, the records show that Comcare paid for a considerable amount of treatment, and made some incapacity payments, under the 1993 claim number but after the 2001 accident. The first payments made under the claim number for the 2001 accident date from August 2002. It appears that Comcare saw itself, no doubt correctly, as obliged under its governing legislation to attribute each of its payments, whether for treatment or incapacity, as related to a particular injury suffered by a claimant on a particular date. In a case like the present, this can appear somewhat artificial, where on different dates a claimant has suffered injury in compensable circumstances to the same part of the body. There is no suggestion that this Court is bound by a determination of Comcare about such a matter.
Although the plaintiff may well have been entitled to claim damages under the general law from the tortfeasors responsible for his 1991 and 1996 injuries, he did not do so, nor was any action brought on his behalf by Comcare. The present action was brought in the plaintiff’s name by the Australian Government Solicitor acting on instructions from Comcare and not from the plaintiff himself. Comcare is authorised by s 50 of the Safety, Rehabilitation and Compensation Act to institute proceedings against a tortfeasor in the name of a claimant for the recovery of damages, where the claimant has not already done so. The claim is not one brought by Comcare for its own losses alone. The solicitors instructed by Comcare bring the action in the name of the claimant and are under a duty to act in the claimant’s interests as well as the interests of Comcare.
The plaintiff’s evidence is that his head struck the windscreen following the impact on 19 April 2001, and his head and upper body were propelled sideways and forwards, and then back, as a result of the impact. The bus was damaged to the extent where it was not driveable. A work colleague came to the scene and took the plaintiff home. He did not immediately notice any injury, but on the night following the accident he became sore all over and the next day was in considerable pain, particularly in the neck and left shoulder. He saw a locum at the surgery of his general practitioner and was referred to his usual physiotherapist. The locum gave him a certificate for time off work and recommended bed rest.
The plaintiff had some lower back pain, but this eased within a week. He had pain across his shoulders, more severe on the left side, running across both sides of his neck and down into the right shoulder. He went back to his physiotherapist who provided traction treatment for the neck. This gave a degree of instant relief but the pain returned and remained.
In due course the plaintiff returned to duty as a bus driver. He found that by the end of his shift he needed to go straight home. He was very uncomfortable and could not sleep. He started to get headaches in the base of the skull and, in his description, working their way around the right side of his head. He had had minor headaches before this but never anything to equal the headaches he was suffering by this time.
Towards the end of 2001 the ACTION bus administration arranged for an ergonomic assessment of the plaintiff’s seating position on his bus, but this did not result in any change to the his working arrangements. His neck became progressively worse. His neck pain and discomfort reduced his concentration, which he thought compromised his safety as a bus driver. Additionally, he was unable to rotate his neck as far as previously, which affected his peripheral vision.
He was sent in 2002 by his employer to a rehabilitation course supervised by Dr Peter Warfe at the John James Medical Centre. This included water aerobics, exercises using gymnasium equipment and psychological counselling. He did not find the course of any help. Towards the end of 2002 he stopped work. He had decided that he was a danger on the road. He started his shift one morning and realised that he could not continue. He was sent home. He was asked to come back to work the next morning when an attempt would be made to find him lighter duties. He was given clerical work in an administration building. He found that he could not sit comfortably at a desk dealing with papers. He moved the paperwork to the top of some filing cabinets in a store room at a height where he could read and deal with them in less discomfort. A supervisor told him that this was not permissible, and sent him home. He did not return to work thereafter.
In May 2003 he was given a cortisone injection which was not helpful. At about the same time he was provided with some counselling arranged by ACTION. He was going through a period of emotional upset, with a feeling that he had been discarded. He did not look for any other work. His belief was that if he was capable of working he would be back driving buses. He saw himself, and still sees himself, as incapable of returning to work of the kind he had done in the building industry in earlier years. He simply spent his time sitting around the house feeling sorry for himself. Household chores built up while he put off attending to them. He was quite unaware that there was any problem in his relationship with his wife until she left him in September 2005. Since then he has continued to live in the family home on his own. He found, and continues to find, vacuum cleaning a painful activity and he does not vacuum the house. He had, and still has, some help around the house from his daughter, son-in-law, a neighbour, and some close friends. By the time of the hearing he had returned to attending his pistol club at a social level but has not returned to shooting.
The plaintiff’s employment with ACTION was formally terminated in April 2005, when he received payment in respect of annual and long service leave.
His left shoulder has continued to cause him some pain. He guards the shoulder and does some exercises. He believes that his left shoulder of itself would not have been sufficient to prevent him from working as a bus driver.
Over the years the plaintiff has taken, and continues to take, painkillers such as Panadeine Forte. By the hearing he had discontinued physiotherapy on the advice of his doctors. He suffers from severe headaches about three times a week. During these episodes he lies down with a pillow under his neck, a cloth over his eyes and a heat pack.
He was asked in chief whether he could see himself getting back to work. His answer was it would “solve so many problems for me if I could get back to work, but I don’t know”.
In cross-examination the plaintiff volunteered that he was spending two hours a week as a volunteer with Pegasus Riding for the Disabled, leading a horse with a disabled rider, fulfilling a role which he described as a side-walker. He said that at the end of the two hours his neck felt very uncomfortable and he sometimes had a headache.
The plaintiff’s former wife gave evidence generally supportive of her husband’s case. She said that he was a changed man after the accident, unable to do virtually any of the things that he used to do. They stopped going to their caravan at Lake Eucombene for fishing weekends. The plaintiff was unable to help around the house and his wife, in her words, was doing everything on her own. This continued until she left the matrimonial home in 2005. The plaintiff rarely came to bed and usually sat in an armchair all night. He ceased participating in social life. He did almost nothing, just sitting around the house. He spent some of his time reading. His wife was working full-time and also doing everything around the house. The plaintiff became withdrawn, depressed and sometimes very angry. Their daughter left home during 2004. Neither of them attended to the garden, which became overgrown with weeds. Before the accident he had had a shed well equipped with tools and was a highly competent handyman who never brought anyone into the house to fix anything and always fixed everything himself. This ceased after the accident. Since the plaintiff’s wife left him, she has had almost nothing to do with him.
The plaintiff’s daughter gave evidence to similar effect. She continued to visit her father regularly after she moved away from home. Before she moved out, she would leave for work in the morning and find him sitting in the same chair on her return at the end of the day. He became more short-tempered after the accident. She said that her mother left home on Father’s Day in 2005 and that the plaintiff “took it very hard”. He appeared very depressed. Her mother had always done the housework and cooking and she worried that her father might not be eating properly. She visited regularly to check on him, and generally did some housework, hanging and folding clothes and cleaning the kitchen, on those visits.
Another lay witness, Ms Holloway, gave oral evidence. She had known the plaintiff for many years, and began to see him more regularly after his separation from his wife. He visited her at her home. She had also been to his house on three or four occasions since then. She said that the house was dusty and dirty, and that the bathroom had not been cleaned. The plaintiff slept on a mattress on the living room floor. She was not prepared to travel as a passenger in his car. She took the view that he was an unsafe driver because he could not turn his head adequately.
I had the benefit of a number of medical reports. Three of the authors gave oral evidence: Dr Richard Rowe, the plaintiff’s general practitioner; Dr Graham Griffith, consultant surgeon; and Dr David Champion, a consultant physician in rheumatology, musculoskeletal medicine and pain medicine, and an Associate Professor in medicine at the University of New South Wales.
In a report to Comcare in February 2004, Dr Rowe referred to the plaintiff’s earlier injuries. He said that the motor vehicle collision in April 2001 “again led to an exacerbation of his pre-existing neck injuries.” He said that this accident had caused a severe prolonged exacerbation of neck pain and stiffness continuing to the date of the report. He referred to an MRI scan of the cervical spine taken in August 2002 which showed widespread spondylosis with multiple shallow posterior disc bulges, and probable irritation of the right C4 nerve root. A subsequent cervical myelogram and CT scan showed generalised bulging at the C5-6 level with some underfilling of the C6 roots on both sides. These findings were additional to a much earlier left shoulder rotator cuff tear which had been repaired surgically in July 1995. Dr Rowe expressed the view in his letter that the cause of the plaintiff’s neck and shoulder pain were his injuries in 1993, 1996, and 2001, prior to which he had been asymptomatic. Dr Rowe confirmed that all of the incidents had occurred in the course of the plaintiff’s work and were accordingly employment-related. A neurosurgeon in Sydney, Dr Pell, had administered facet joint injections at C5-6 but the relief these brought had been short-lived and the plaintiff continued to experience severe neck pain in spite of the treatement. Dr Rowe’s opinion was that the only treatment remaining available was physiotherapy, which the plaintiff should attend twice a month at least with a view to maintaining some degree of mobility of the neck. He believed the prognosis for the condition resulting from the 2001 accident to be very poor. The plaintiff was incapacitated for employment by severe unremitting pain and intense muscle spasm and stiffness affecting his cervical spine. This made employment as a bus driver, and probably in any other capacity, untenable.
In a report to the Australian Government Solicitor in August 2006, Dr Rowe said that the plaintiff by then was suffering from a chronic pain syndrome. He believed that the 2001 accident had made symptomatic pre-existing changes of cervical spondylosis and degeneration which were previously asymptomatic. The plaintiff had become something of a social recluse. His marriage had broken down leading to further social isolation. He was unfit for any employment. Dr Rowe did not believe it likely that he would ever recover and described his prognosis as very pessimistic.
Dr Rowe noted that at the time of the accident in April 2001, the plaintiff was still suffering from some effects of his earlier injuries. He found it impossible to apportion on a percentage basis the effects of the various injuries, but said that the April 2001 accident had led to a dramatic escalation of the plaintiff’s neck pain.
Dr Rowe reported to the Australian Government Solicitor again in August 2008. The plaintiff’s condition had not improved since 2006 but equally had not deteriorated. It was reasonable for the plaintiff to continue with physiotherapy from time to time as needed, in circumstances where he reported some minor benefit from this treatment. He would continue to see the plaintiff once every six months. His prognosis for his recovery was very grim. He thought that the plaintiff would continue with similar symptoms of pain and stiffness for the rest of his life.
Dr Rowe practises with other general practitioners at the Gordon Valley Medical Service in the southern suburbs of Canberra. Copies of the clinical notes of the practice were in evidence, and Dr Rowe was cross-examined about them. It seems clear that there was no complaint by the plaintiff of any neck symptoms prior to his 1996 bus accident. He saw Dr Rowe within a week of that accident, complaining of a stiff neck and stiff left shoulder, with headaches which had cleared up after three days. He had a full range of neck movement. He saw Dr Rowe again a week later, still complaining of neck stiffness, but did not return to see Dr Rowe again for more than three years. He attended the practice three times during 1999, twice during 2000, and three times in the early part of 2001, prior to the accident which is the subject of the current proceedings. There is no mention of any neck symptoms in the notes of any of those consultations: some mention the left shoulder but most seem to relate to other illnesses entirely. The last consultation before the 2001 accident was on 2 April of that year, the note reading “Comcare have closed case without informing James!! Still requires periodic physio for intermittent symptoms.” The letter written to Comcare two days later does not mention anything about neck symptoms.
There is a note by a locum of a consultation on 20 April 2001 which refers to a road traffic accident the day before leading to a stiff neck, all neck movements being limited, with tenderness over the suprascapular region. The plaintiff was referred to his physiotherapist and given a certificate for a week off work.
The next note was on 22 June 2001 in Dr Rowe’s handwriting, relevantly reading “complains of right shoulder pain and stiffness as well now, since last motor vehicle accident. Can make it feel better if he can click it.”
There is no further note of an attendance until 7 November 2001, when the plaintiff attended with bitemporal headache and nausea. On 27 November 2001, Dr Rowe’s note is of recurrence of bilateral muscular neck pain. The plaintiff was referred for further physiotherapy.
Counsel for the defendant sought to make much of the lapse of time between the attendances in June and the attendances in November, and of Dr Rowe’s choice of the word “recurrence,” to argue that the plaintiff should be found to have recovered within a short time from the effects of the April 2001 collision, and that the “recurrence” six months later should be regarded as unrelated to the collision. Counsel for the defendant submitted that the note of the attendance in June 2001 was supportive of this proposition because it made no specific mention of the neck.
Dr Rowe, understandably having no specific memory of what the plaintiff had told him some 8 years earlier, reasonably advanced the explanation that the use of the word “as well” referred to the neck symptoms the plaintiff had complained of two months earlier as recorded in the previous note. This seems to me to be highly likely.
Dr Rowe could not really explain why he had used the words “recurrence” in relation to the plaintiff’s neck pain in the note of 27 November 2001. Again, this is hardly surprising when one considers the number of patients a general practitioner is likely to have seen every day, over a period of so many years. Dr Rowe conceded that what he had written was consistent with the proposition that the neck symptoms had “been, gone away and then come back again” in counsel’s phrase.
This must, I think, be seen in the context of the notes of the physiotherapist, Mr Ierschott. These notes establish that the plaintiff had considerably reduced the number of his attendances leading up to the 2001 collision. He treated the plaintiff on forty-one occasions during 1996, the year of one of his earlier motor vehicle injuries. During 1997 the plaintiff saw the physiotherapist on eighteen occasions. This reduced to five visits in 1998, two in 1999, and ten during 2000. The plaintiff saw the physiotherapist twice in 2001 (in January and March) before the collision. Thereafter, there are notes of attendances on 20 April, 23 April, 26 April, 11 May, 22 June, 14 August, and 10 September 2001, prior to the “recurrence” of November 2001. Indeed, in relation to the “recurrence,” the plaintiff saw the physiotherapist the day before he went back to Dr Rowe. That pattern of the attendance upon the physiotherapist suggests to me continuing though improving symptoms following the collision in April 2001. There is no suggestion of novus actus interveniens. I am satisfied that the symptoms with which the plaintiff presented to the physiotherapist on 26 November and Dr Rowe on 27 November 2001 were a direct result of the collision in April 2001.
I explained earlier in these reasons the history of the plaintiff’s Comcare claims in respect of his various accidents. Counsel for the defendant cross-examined Dr Rowe about a number of Comcare medical certificates he had completed and signed for the plaintiff after April 2001, in which he had attributed the plaintiff’s symptoms requiring time off work to the left shoulder injury in 1993. I am satisfied that the plaintiff either did not notice or did not attribute any significance to this. Dr Rowe’s evidence about the large number of such medical certificates was a little unsatisfactory. It seems to me more likely than not that Dr Rowe, being aware that the plaintiff had been injured on a number of different occasions, and having experienced considerable frustration in dealing with Comcare about this particular patient, simply took what he saw as the practical course of attributing the plaintiff’s time off work to a claim which he knew had been accepted by Comcare and in relation to which they had a current file. I am satisfied that Dr Rowe did not complete the certificates as he did because he was of the opinion that the absences in question were due to the 1993 injury rather than the 2001 injury. I referred earlier in these reasons to the artificiality of attempts, whether by a medical practitioner or by Comcare, to attribute a particular period of incapacity for work to an injury that occurred on a particular date in the case of someone like the plaintiff who has suffered a number of different work injuries over a period of years.
Dr Rowe referred the plaintiff to Dr Malcolm Pell, a Sydney neurosurgeon. Dr Pell saw the plaintiff in January 2003. He arranged a cervical myelogram and CT scan, which showed generalised bulging of the C5-6 disc with some pressure on both C6 nerve roots. He recommended facet joint injections in March 2003 but was not thereafter involved in the plaintiff’s treatment. He expressed the view that the plaintiff might benefit from surgery in the form of discectomy and fusion, or alternatively laminectomy and decompression of the nerve roots. In his opinion the motor accident of April 2001 exacerbated pre-existing degenerative changes in the cervical spine. Dr Pell thought that 50% of the plaintiff’s continuing symptoms were directly due to the motor accident.
The plaintiff was referred by the Australian Government Solicitor, acting for him as the plaintiff in this action on instructions from Comcare, to Dr Graeme Griffith, consultant surgeon. Dr Griffith is an experienced surgeon with an extensive medico-legal practice and is a regular expert medical witness in personal injury actions in this Court. He saw the plaintiff twice, in February 2006 and June 2008. In accordance with his usual practice, he took a detailed history, and conducted a physical examination at each of the appointments. The history he obtained was that immediately prior to the bus accident in April 2001, the plaintiff had some continuing soft tissue symptoms in the cervical and cervicodorsal region, and in the left shoulder, but they were by that time relatively unobtrusive. He described the injury sustained by the plaintiff in the April 2001 collision as a severe deceleration injury involving acute hyperflexion / hyperextension of the cervical spine, and acute aggravation of cervical spondylosis. As a result the plaintiff continued to suffer from persistent cervical and cervicodorsal myalgia, cervicogenic headache, chronic pain syndrome and chronic adjustment disorder with depression and anxiety. He said that the patient had been marginally symptomatic prior to the accident but continuously and progressively more symptomatic since. This was not a typical history of degenerate disease, where one would expect remissions and exacerbations, with periods of relative freedom of pain. Dr Griffith’s view was that there was a significant ongoing impairment attributable to the accident, superimposed on degenerative change which had almost certainly been present for many years.
He thought the plaintiff might benefit from injections of local anaesthetic and depot-steroid to points of focal tenderness in the neck musculature. He also thought that the plaintiff should receive psychiatric treatment and might benefit from psychiatric medication. There was little point in repeating counselling, which had been unsuccessful. The plaintiff needed changes to his brain chemistry reversed, rather than protracted instruction on how to live with his problem.
In relation to Dr Pell’s suggestion of surgery, Dr Griffith noted that the results were unpredictable and the operation costly. It had been his observation over many years that surgeons tend to offer surgery rather than pain management, which was not something they were for the most part interested in.
Dr Griffith expressed the opinion that perhaps 85% of the plaintiff’s symptoms were due to the 2001 accident, and no more than 15% due to the prior injuries cumulatively. He disagreed with Dr Pell’s opinion that 50% of the plaintiff’s symptoms were due to the pre-existing spondylosis, and only 50% to the 2001 accident. He thought it most likely that the accident made the spondylosis symptomatic and was the cause of the plaintiff’s incapacity which could be seen clinically. Dr Griffith noted that the plaintiff was employed full time in April 2001, coping with such symptoms as he had at the time.
His prognosis was guarded, though not necessarily totally negative. A treatment program might result in material improvement in the plaintiff’s level of function, both physically and psychologically.
Dr Griffith was provided with reports by two orthopaedic surgeons who had examined the plaintiff on instructions from Comcare, Dr Robin Jackson who saw the plaintiff in September 2002, and Dr Derrick Billett who saw him in January 2005. Both had considered that the plaintiff had recovered from such injuries as he had received in the accident of April 2001, and that any continuing symptoms were due to degenerative changes. Dr Jackson had concentrated heavily on the shoulder pathology and had barely mentioned the 2001 injury. Dr Billett’s opinion had been that any aggravation following the 2001 accident should have resolved fairly quickly and that continuing symptoms were hence related to degenerative change. Dr Griffith commented that both these examiners had presented a generally accepted view which he described as a mechanistic one. There had been very little radiology conducted of the plaintiff for a lengthy period after his injuries. He said that changes in the form of acceleration of pre-existing degenerative change often take two to three years to become evident on radiology, and may not necessarily reflect the level of symptoms. Surgeons reviewing patients for medico-legal purposes usually failed in his experience to take account of the psychological effects of chronic pain and of pain management issues. Dr Griffith’s experience of chronic pain management was that psychological issues needed to be addressed with equal emphasis to physical symptoms.
The plaintiff was also referred by the Australian Government Solicitor to Dr Hugh Veness, psychiatrist. Dr Veness agreed with Dr Griffith’s diagnosis of chronic pain disorder accompanied by a chronic major depressive disorder. The collision in April 2001 had been the critical cause of both of these conditions. The prognosis was for the continuation of both. Dr Veness thought that the symptoms could be ameliorated by treatment by a pain management specialist, and suggested a referral to Professor David Champion, an expert in neuropathic pain.
By the time Dr Veness saw the patient on the second occasion, he had seen Dr Champion but without any real success. His pain levels remained chronic and moderately severe. He had found ways of coping with the pain, both mentally and physically, without further analgesics, psychological advice or movement therapy. His mood, although still depressed, had improved. He remained very disabled from both chronic pain and depressive illness, and was completely unfit for employment. He would remain so indefinitely and was at risk of relapse into serious levels of depression, especially if the pain were to take a turn for the worse. Dr Veness thought that the plaintiff should keep in close contact with his general practitioner, seeing him monthly. At any time he might require medication and counselling to treat or prevent relapse. Dr Veness remained of the opinion that the 2001 motor vehicle accident was the main cause of both the chronic pain and the chronic depressive illness.
Dr Champion saw the plaintiff in October 2006, the appointment having been arranged by the Australian Government Solicitor, presumably following the recommendation by Dr Veness. Dr Champion is a world figure in pain research and pain management. He assessed the plaintiff as presenting with indications of considerable pain-related disability and depression of mood. He was somewhat reticent as to history and complaints. There was no indication of exaggerated or inappropriate responses on physical examination.
Dr Champion accepted that the plaintiff had symptoms in the left shoulder that required treatment from time to time immediately prior to the 2001 accident. He had probably suffered from minor intermittent discomfort in the neck up to that time. He had multi-level cervical osteospondylosis which would have been present prior to the accident. This was a genetically influenced condition. It is likely that by April 2001 there would have been significant disc degeneration at the C2-3 level, but, consistently with population surveys, it would not have been a significantly painful disorder. Generally osteospondylotic spines are not particularly symptomatic in the absence of injury or repetitive mechanical stress. If it had not been for the motor vehicle accident of April 2001 the plaintiff might have remained largely asymptomatic or only mildly symptomatic referable to the cervical spine.
The collision of April 2001 had mechanically stressed the cervical spine and aggravated the left shoulder. The combination of stress to the spine and shoulders, and the repetitive bus-driving activities progressively over the next few months, led to a substantial chronic pain disorder, worse in the upper cervical spine on the right, probably at the C2-3 level. This was accompanied by cervicogenic headaches, particularly on the right side of the head. The plaintiff found the headaches disturbing. They were probably of particular importance in the personality change and depression of mood, which Dr Champion accepted had been instrumental in the marital disharmony and separation.
In his report, Dr Champion expressed the view that the 2001 collision had been 60% responsible for the plaintiff’s cervical spine symptoms and headaches. 25% was attributable to subsequent bus driving activities and 15% to prior vulnerability related to the osteospondylotic changes. He attributed about 30% of the blame for the plaintiff’s left shoulder symptoms to the motor accident, and presumably 70% to a combination of the prior injuries and the subsequent bus driving.
Dr Champion agreed with Dr Veness that the plaintiff should have counselling and management for his depression. He explained that depression does not actually make pain worse but does influence behaviour in respect of coping and functioning and getting on with management. An injection of the right C2-3 facet joint under CT guidance might help, as might radiofrequency denervation. Right occipital nerve block might also be helpful. Ultimately surgical fusion at C2-3 might be justified, though this would not be undertaken lightly and would carry some risks. Drug therapy probably had little to offer.
Dr Champion was asked whether in the absence of the 2001 accident the plaintiff would have been likely to have continued working until retirement age. He said that this was possible, with a probability of about 40%, bearing in mind the impact of the driving on his shoulders, and the underlying pathology in his cervical spine. The therapeutic interventions he had suggested might help but he could not give a strong assurance that they would make a great deal of difference. The plaintiff was likely to continue on in much the same way.
Several of the medical reports tendered in the defendant’s case, obtained by Comcare, suffer from the difficulty I mentioned earlier, that the doctors concerned were asked to assess the plaintiff in relation to the injury which was the focus of the particular Comcare claim. In most cases this was the 1993 left shoulder injury. Where these reports do not mention the 2001 collision, counsel for the defendant sought to persuade me that I should infer that the 2001 injury must have been a minor one. I am far from persuaded that this inference should be drawn. The evidence is that the plaintiff is a relatively taciturn man, a reticent historian and one who is slow to complain. I drew the same conclusions about him from my observations of him in the witness box. He is an intelligent man, capable of reading and understanding a medical report, but I think it quite likely that when he saw doctors at Comcare’s request, where clearly Comcare and the doctor concerned saw the assessment as focused on the 1993 left shoulder injury and his continuing left shoulder symptoms, he would not have been likely to volunteer information about other injuries or other symptoms.
An example is a report by Dr Peter Warfe of August 2002, in which the April 2001 accident is not mentioned at all. As we now know, by August 2002, Comcare had not opened a claim file in relation to the 2001 accident, and all of the plaintiff’s absences and treatment expenses were being attributed by Comcare to its 1993 claim file. In the circumstances it is hardly surprising that Dr Warfe made no reference to the 2001 injury in the report.
Similarly, Comcare sent the plaintiff to Dr Jackson, orthopaedic surgeon, in September 2002 for a report in relation to the 1993 claim. Dr Jackson refers to records and file material furnished by Comcare but this material is not otherwise identified in the evidence. It seems that the 2001 accident was not mentioned in the letter of referral or accompanying material. This is unsurprising when one accepts that Comcare was looking for an orthopaedic opinion in relation to the 1993 left shoulder injury. Nevertheless Dr Jackson recorded “further information received from Mr Boyd” which included a description of the April 2001 collision, although Dr Jackson noted that the injuries appeared to have settled down. Perhaps inconsistently with this, Dr Jackson records earlier in his report that the plaintiff had lost time from work in the previous eight weeks largely because of his neck, in relation to which he had been undergoing a pain management program.
Dr Jackson recorded a history that for about twelve months the plaintiff had had problems with his neck, and that he had persevered at work until about eight weeks earlier. There had been no specific incident of trauma. Symptomatology had simply increased and Comcare had “again got involved.” The questions asked by Comcare of Dr Jackson focused on the relationship between the plaintiff’s then condition and his injuries of December 1993. Dr Jackson was not asked about any causal connection with the accident of April 2001. He concluded nevertheless that the plaintiff’s cervical spine symptoms did not appear to be work-related. His opinion in this regard seems to me to have been based on acceptance of a history that the injuries in the 2001 accident had been minor and that the plaintiff had made a recovery from them quite soon thereafter; and that he had had a period of several months free of neck symptoms before they spontaneously reappeared about twelve months before Dr Jackson saw him. To be fair to Dr Jackson he was not asked to focus on the 2001 accident at all. His task was to provide an opinion about the causal connection between the plaintiff’s symptoms when he saw him, and the 1993 injury.
Dr Billett, another orthopaedic surgeon, was qualified by Comcare and saw the plaintiff in January 2005. He reviewed unidentified documentation, examined the plaintiff and took a history from him. The history included a reference to the bus collision of April 2001. Dr Billett was apparently told that prior to that accident the plaintiff had constant daily pain in both shoulders but no pain in the neck. Thereafter he experienced pain in the neck radiating to both shoulders. At the time of the consultation, the plaintiff complained of constant daily pain in the neck, and intermittent occipital headaches on the right side of the head. Dr Billett had the benefit of the MRI films of the cervical spine of August 2002 and the myelogram and CT scan films of March 2003. He said that his clinical examination did not produce any evidence of an intervertebral disc prolapse or nerve root irritation. There was x-ray evidence of marked degenerative changes throughout the spine, which he described as age-related and constitutional in type, having been made symptomatic as a result of the various incidents in which the plaintiff had suffered injury. Dr Billett considered that the effects of the aggravation caused by the 2001 accident had resolved. He attributed the pain in the plaintiff’s neck to underlying degenerative changes in the discs and facet joints. He doubted whether the plaintiff’s symptoms could be improved by any further treatment and thought that his condition was likely to deteriorate. He did not consider that the plaintiff’s condition was “referable” to the bus collision of April 2001. He did not explain in any greater detail how he arrived at this opinion.
In June 2005, Comcare referred the plaintiff to Dr Iain Kelman, another orthopaedic surgeon. It is clear from Dr Kelman’s report that the referral was in relation to the 1993 Comcare claim in relation to the plaintiff’s left shoulder. By 2005 the plaintiff had lodged a Comcare claim in relation to the 2001 neck injury, but Dr Kelman’s report was not directed to that injury, although he made passing reference to it. Dr Kelman took a history which included the various accidents in which the plaintiff had been injured, including the 2001 accident. He noted in that regard that the plaintiff had suffered an injury to the cervical spine and had been unable to return to work since. His employment had been terminated. The injury of 2001, Dr Kelman said, had not had any significant impact on the left shoulder condition. His incapacity for work was a result of the motor vehicle accident of 2001. Under the heading “diagnosis” Dr Kelman recorded a rotator-cuff tear to the left shoulder and an impingement syndrome of the left shoulder, complicated by the development of adhesive capsulitis. He did not mention in his diagnosis anything about the plaintiff’s neck, and clearly regarded this as outside the boundaries of the report he had been commissioned to provide to Comcare. He does not seem to have been told that the neck injury which he attributed to the 2001 accident had been sustained in circumstances where the plaintiff was entitled to compensation by Comcare. Dr Kelman’s report was of no real assistance to me in determining the issues between the parties in the current action.
In December 2006, the plaintiff was referred by the solicitors for the defendant to Dr Virginia Pascall, an occupational physician whose letterhead suggests that she practises as part of a occupational therapy firm known as Lisa Castles and Associates. This was the only evidence from a medical practitioner qualified on behalf of the defendant. Dr Pascall inferred from the general practitioner’s notes that the plaintiff’s symptoms of neck pain and stiffness were not significant until November 2001. She concluded that his neck symptoms thereafter were unrelated to the April 2001 collision and were caused by the degenerative changes by his cervical spine. She concluded that his symptoms in November 2001 were due to either a separate aggravation occurring at about that time or to spontaneous inflammation of his neck. She said that it was not objectively verifiable that the plaintiff had had neck pain continuously from the time of the accident until November 2001, and accordingly she could not draw any inference that the subsequent episodes of neck pain and stiffness were caused by that accident. She said that it was clear there had been an cessation to his symptoms between April and November 2001, and that the November symptoms were due to a recurrence unrelated to the collision. On the other hand, she accepted that the plaintiff’s psychological problems during 2002 and 2003 were directly related to the accident. She could not conclude that his marital breakdown was caused by the accident. She suggested that if the plaintiff had a memory of continuous symptoms of neck pain, stiffness and headaches since the accident, this was probably a false memory.
She expressed the opinion that his injuries resolved by May or June 2001 and that the recurrence of neck symptoms later in 2001 was a new episode unrelated casually to the bus collision. Any contribution of the 2001 accident to his neck condition at the time she saw him was in her view “negligible if not absent.” His neck problems were a natural consequence of aging. He was likely to continue with episodes of neck pain, stiffness and headaches. There was no reason to suppose that his situation would improve over time. The degenerative changes in his spine were slowly progressive and intermittently symptomatic. They were likely to continue.
I found the plaintiff an honest and convincing witness. Unusually and refreshingly, he did not try to use his time in the witness box to advance his own case. He was quite frank about his history of injury before the collision which gave rise to the present action.
I accept the expert opinion evidence of Dr Griffith, Dr Veness and Dr Champion. I am satisfied that the assumptions on which they based their opinion evidence have been made out in the plaintiff’s case. Before the accident, the plaintiff was a married man with two children, able to work as a bus driver with minimal problems arising from his previous left shoulder and neck injuries. His cervical spine had degenerated over many years but was productive of only minor and intermittent symptoms of pain and restriction of movement. He enjoyed social golf and shooting as a member of a club. He had two children, a son who had left home and a daughter still living at home. The impression I had is that he lived a generally contented and fulfilling life.
I am sure that he intended to continue working until he reached the usual retirement age, for him probably about 65. He might have been able to do so if it had not been for his accident, but it is possible that his degenerative cervical spine would have become painful, either spontaneously or because of some relatively minor incident. With his left shoulder problems in addition, he might have found it impossible to keep working until that age. This is a matter of speculation and can best be reflected in a reduction greater than the conventional 15% for the vicissitudes of life in the allowance for loss of earning capacity for the future.
I am satisfied that the plaintiff’s neck pain and headaches have been caused by the collision in April 2001. I do not accept that he made a recovery following the accident which was followed by a quite unrelated recurrence of symptoms some months later. There is no suggestion of any intervening incident which might have been causative of such a recurrence of symptoms. The medical opinion which I accept is that the so-called “recurrence” was really no more than a continuation of the symptoms from which he had suffered, at varying levels, over the previous months.
The accident has effectively ruined the plaintiff’s life. I am not surprise that his marriage failed. The evidence is that he became an irritable and grumpy man who must have been very difficult to live with. There is no suggestion of any marital discord over the 22 years he and his wife had been married before the accident. There is no doubt in my mind that the breakup of his marriage was a result of the accident.
He now lives a miserable life. He lives alone in what used to be the family home. He has closed off the bedrooms. He sleeps on a mattress on the floor in the living room. He has few interests in life. He has allowed the house to go to seed, and the garden likewise. He sits about the house, depressed and in pain. He is unlikely to have much more treatment. In my view he is quite reasonably adopting the position he is about future treatment. There is no assurance that any further treatment will help him, and some of the suggested treatments, such as surgery, might leave him worse off.
The plaintiff’s earning capacity has been effectively destroyed by the injuries of April 2001. If it had not been for those injuries, he would have continued to work as a bus driver with his then employer until the present time at least. His damages for past losses should be discounted by a small factor to recognise that, having regard to his previous injuries and the degenerative condition of his neck, there might have been periods when he was unable to work, and there was a possibility that some other intervening event might cause neck symptoms shortening his working life.
I accept the medical evidence that he probably would not have been able to work as a bus driver to age 65. His damages for loss of earning capacity for the future should be discounted more significantly for that reason.
The impact of the injuries has been greater upon this plaintiff than might have been the case if he had had more stable continuing support in the home, both practically and emotionally. I propose to award $120,000 for general damages, half of which I allocate to the past. I award $11,000 for interest on the past component.
The plaintiff’s treatment expenses up to the date of hearing amount to $14,243. They will have increased since. The expenses have been paid by Comcare and interest is not claimed. I award $15,000 for treatment expenses to date. The treatment he is likely to have in the future is somewhat speculative. Doing the best I can, I award a further $15,000 in that regard.
A claim is made for the commercial value of domestic and personal services needed by the plaintiff because of his injuries. There has been some evidence about the provision of services to him, and also evidence that many tasks around his house have been neglected. The assessment of this component of his damages does not lend itself to a mathematical approach. Senior Counsel for the plaintiff submitted that an appropriate award to cover past and future, and also interest on the past, would be $20,000. That seems to me a reasonable approach and I allow $20,000.
By way of loss of earnings for the past, I accept the calculations provided by Senior Counsel for the plaintiff which result in a loss of $277,593 to the date of trial. Since then, extrapolating figures from the schedule, the plaintiff would have earned, including overtime but after tax, a further amount of about $45,000. After making a reduction for the reasons I explained earlier, I allow $290,000 for past loss of earnings. Much of this loss has been met by Comcare. By way of interest on that part of the loss which has not been so met, I allow $30,000.
The plaintiff is now just 60. The 3% multiplier for five years is 243. I assume that the plaintiff would by now have been earning something like $950 net per week including overtime. On that basis the full value of his present earning capacity for the future would be some $230,850. Discounting for probable earlier retirement and the vicissitrudes of life by a little over 20%, I allow $180,000.
As an ACTION bus driver, the plaintiff’s superannuation contributions would have been calculated at 16% of gross earnings. Senior Counsel for the plaintiff submits that the component of his damages to deal with his loss of superannuation benefits, past and future, should be a simple calculation of 16% of the amounts awarded for loss of earning capacity. Counsel for the defendant did not submit otherwise. The employer contribution varied at different times but had been set at 16% since 1 July 2007. The figures calculated on behalf of the plaintiff take account of the variations. I allow $75,000 for loss of superannuation benefits.
The plaintiff also claims a Fox v Wood component for tax deducted from his compensation benefits. He has paid the tax but will be required to refund an equal amount to Comcare. The amount to date is near enough to $40,000 and I allow that sum.
The individual components of the award are as follows:
General damages: Past $60 000 Interest thereon $11 000 Future $60 000 Treatment expenses: Past $15 000 Future $15 000 Economic loss: Past $290 000 Interest
Future$30 000
$180 000Griffiths v Kerkemeyer: $20 000 Superannuation:
Fox v Wood:$75 000
$40 000$796 000
On consideration I am satisfied that the total represents a proper reflection of the impact of the defendant’s negligence upon the plaintiff. There will be judgment for the plaintiff for $796 000.
I shall hear the parties as to costs in case there are any considerations in that regard of which I am unaware.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 9 July 2010
Counsel for the plaintiff: Mr R L Crowe SC
Solicitors for the plaintiff: Australian Government Solicitor
Counsel for the defendant: Mr P D Ryan
Solicitors for the defendant: Moray & Agnew
Date of hearing: 1 October 2008, 1, 2, 3 June 2009.
Date of judgment: 9 July 2010
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