James v Launceston City Council (No 2)
[2004] TASSC 70
•2 July 2004
[2004] TASSC 70
CITATION: James v Launceston City Council (No 2) [2004] TASSC 70
PARTIES: JAMES, Gerald Robert
v
LAUNCESTON CITY COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: LDR 161/2000
DELIVERED ON: 2 July 2004
DELIVERED AT: Hobart
HEARING DATE: 30, 31 May, 1, 2, 5 – 8 April 2004
JUDGMENT OF: Slicer J
CATCHWORDS:
Damages - Measure and remoteness of damages in action for tort - Measure of damages - Personal injuries - General principles.
Aust Dig Damages [31]
Evidence - Burden of proof, presumptions, and weight and sufficiency of evidence - Generally - Onus of proof - General rule - Multiple causes of continuing damage - Evidentiary onus on defendant to exclude its conduct as a cause.
Shorey v P T Limited [2003] HCA 27; Watts v Rake (1960) 108 CLR 158, applied.
Aust Dig Evidence [139]
REPRESENTATION:
Counsel:
Plaintiff: F V Moore
Defendant: S B McElwaine
Solicitors:
Plaintiff: Archer Bushby
Defendant: Shaun McElwaine
Judgment Number: [2004] TASSC 70
Number of paragraphs: 56
Serial No 70/2004
File No LDR 161/2000
GERALD ROBERT JAMES v LAUNCESTON CITY COUNCIL (No 2)
REASONS FOR JUDGMENT SLICER J
2 July 2004
The plaintiff's claim is for damages for negligence in respect of an accident which occurred at Launceston on 10 June 1998. The defendant denies liability, pleads contributory negligence and contests the quantum of the claim for damages.
Facts of accident
The plaintiff was employed by Redline Coaches with, as one of his duties, responsibility for the collection and delivery of freight within Launceston and its processing and loading for transportation by the coach line. On 10 June 1998, he was the driver of a Toyota delivery van which he parked in the Tatler Arcade in the Launceston Central Business District. The Arcade adjoined St John Street and was accessible to traffic, although since it was a constrained area, its capacity was limited. At the same time, a street sweeper owned by the defendant was operating within the Arcade. The plaintiff left his vehicle adjacent to commercial premises on the northern boundary of the Arcade and went to a number of premises to collect freight. He had parked his vehicle at that place to avoid being blocked in. At the time of leaving his vehicle, he claims that the street sweeper was stationary and none of its warning signals operating. When the plaintiff returned to the van with a number of items of freight, he stood at the passenger side, which was on the southern side of the commercial premises where the vehicle had been parked. There was sufficient room for another vehicle to pass the van. The plaintiff was completing some documentation when the street sweeper, which had recommenced its operation, reversed and collided with the partly opened van door, forcing the plaintiff to the body of the van. Despite the plaintiff's original call, the pressure continued until the street sweeper moved forward releasing the plaintiff. The street sweeper had dual controls and at the time of its reversal, the driver was operating the vehicle from the left hand controls, ie, on the far side of the plaintiff's van. Subsequent modification to the vehicle permits the driver to view the right rear of the path of the vehicle, but at the time of the accident the driver's view was restricted and presumably at the time he was paying attention to the left rear and travel line of the vehicle. However, this is not a case of retrospective assessment of breach and standard of duty (Wyong Shire Council v Shirt (1980) 146 CLR 40). There were two other members of the crew working with the vehicle who were engaged in the use of a suction and water hose used for the cleaning of a drain. One crew member, Mr Douglas Reeves, was standing at the left rear of the sweeper whose task it was to assist the driver whilst operating the suction hose. He was wearing a safety vest and equipped with ear muffs. The third member of the crew, Mr Noel Bowman, who was operating a hose at the front left hand side of the sweeper, was unaware of the impact until Mr Reeves called out. No warning was given to either the driver or the plaintiff before collision. There was adequate room for the sweeper to travel between the van and the southern side of the Arcade and sufficient resources to assure that it did not strike a person or vehicle at its rear (McLean v Tedman (1984) 155 CLR 306). The operation was fraught with risk, the space confined and the particular configuration of the vehicle warranted special care. The plaintiff has established negligence.
Contributory negligence
The defendant pleads that the accident was either caused or contributed to by the plaintiff's negligence. Particulars of the claim are that he:
"(a)Parked his vehicle in an area where it was obvious that road works were being undertaken;
(b)Parked his vehicle behind the sweeper at a time that it was in operation;
(c)Illegally parked his vehicle behind the sweeper;
(d)Ignored the fact that the defendant was at the time that the plaintiff parked his vehicle undertaking road works with the use of the sweeper;
(e)Ignored the fact that it was likely that the sweeper would be reversed and or was reversing;
(f)Ignored the warning beeper which was automatically engaged when the sweeper was reversed;
(g)Failed to keep any or any proper lookout to protect his own safety."
The sweeper was equipped with both light and sound warning devices and the Court accepts that both were operating at the time of reversing. However, the engine and the separate pumping system both combined to emit a loud noise. The crew was equipped with ear muffs to reduce the level of noise as they worked. The vehicle was reversing slowly at about 1 kilometre per hour and it may be that in a confined space, surrounded by buildings, the combined effect of the engine and pumps lessened the efficacy of the sound warning system. Mr Bowman, who was at the front of the sweeper, was unaware of either risk or collision until Mr Reeves called out. The driver was unaware of the presence of the parked van. It would appear that Mr Reeves did not call out until alerted to by the plaintiff. There was no evidence that where the plaintiff parked his van was prohibited or restricted. The van was left on the side of the Arcade adjacent to the wall of the northern building facing inwards. Even, absent a prohibitive sign, if parking was not permitted in that particular place, the Court accepts that it was customary for delivery vehicles to use the place for pick-ups and delivery. Further, the plaintiff's vehicle had remained stationary at the spot for time enough for its presence to be obvious. The plaintiff had been standing alongside his van for some little time and there is no suggestion that he moved into the path of an oncoming vehicle (Brodie v Singleton Shire Council (2001) 75 ALJR 992; Richmond Valley Council v Standing [2002] NSWCA 359). He had no reason to suspect that a reversing vehicle, which had sufficient space to pass safely, would impact with his van. The warning signals might have melded into the surrounding traffic movement and the motor sounds of the sweeper and its pump. The plaintiff was entitled to complete his delivery documentation at the side of his parked van.
The defendant has not established any contributory negligence on the part of the plaintiff.
Principles of damages
The medical history of the plaintiff and the prognosis which has become enmeshed in the sequelae of the accident make assessment complex. There are many factors contributing to the physical and psychological condition of the plaintiff and their respective contributions to future outcome are difficult to identify and project into the future. Where a pre-existing condition of an injured person is compounded or complicated by the later effects of a compensible injury, it remains the responsibility of the opposing party to show distinction and to untangle the component of the cumulative effect, while the legal burden of proof rests on the plaintiff throughout:
"If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred." (Watts v Rake (1960) 108 CLR 158 at 160.)
Here, as in Watts, there is little dispute between the expert witnesses concerning the post-accident condition, except for residual work capacity, other than differences which depend on the accuracy of the account provided by the plaintiff. As in Watts, the state of his health before the accident and its implications are less certain. The plaintiff suffers from a pre-existing condition which, irrespective of the sequelae of the accident, would have shortened his working life. He has a psychological condition which has an underlying and pre-existing component. His personality can be described as fragmented but portions of it were apparent before injury. His dismissal from employment was said by the employer to be unrelated to the consequence of the accident which occurred during the course of his employment, and doubtless there is a hint of truth in that claim. Yet at the time of the accident, the plaintiff appeared, at least on the surface, to be coping with life both physically and mentally. The tasks allocated to him through his work fitted his physical and mental capacity, no easy mix. To outward appearance, he was able to lead a reasonably productive life, or at least his employment and involvement in sport as a central component of his social life permitted him to adjust his "being" to reality. He is entitled to rely prima facie on the difference between his pre and post-accident condition and it is not for him to disprove that his pre-accident health would have eventually incapacitated him. But on all the evidence, including that advanced in support of his cause, he would have become disabled irrespective of the accident. The entanglement of varying layers of ill health, disability and capacity make resolution complex and assessment imprecise. The decision in Watts does not alter the ultimate responsibility of onus, but operates as a principle of evidential burden. As Barwick CJ, Kitto and Taylor JJ said in Purkess v Crittenden (1965) 114 CLR 164 at 168:
"We understand that case [Watts v Rake (supra)] to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence …".
In this case, there is a further complication. The defendant relies, as part of its case, on the failure of the plaintiff to mitigate his loss. This reliance has particular significance in relation to the loss of employment and the steps taken or abandoned by the plaintiff to such redress. In relation to the issue of mitigation of damage, Dixon CJ said in Watts v Rake (supra) at 159:
"Only in one respect is the burden of proof upon the defendant and this is when he sets up matter in mitigation of damages. If it appears satisfactorily that damage in a particular form or to a particular degree has been suffered by the plaintiff as a result of the wrong but the defendant maintains that the plaintiff might have avoided or mitigated that consequence by adopting some course which it was reasonable for him to take, it seems clear enough that the law places upon the defendant the burden of proof upon the question whether by the course suggested the damage could have so been mitigated and upon the reasonableness of pursuing that course. Probably in claims for damages for personal injuries a question of the burden of proof in mitigation of damages is unlikely to arise often in any serious form. But it may do so; for example if the plaintiff declines to submit himself to some surgical procedure or medical treatment."
Complexity occasioned by the operation of multiple causes was further considered by the High Court in Shorey v P T Limited [2003] HCA 27. A useful compilation of the relevant principles was made by Kirby J in his reasons for judgment, pars41, 43 and 48 which state:
The search for a single cause: It is a basic principle of the law governing the recovery of damages that a claimant does not have to prove (as Dr Phillips seemed at first to assume was the law) that an impugned event was 'the' cause, in the sense of the one and only cause. It is enough that the claimant shows that the event is 'a' cause of the condition for which damages are claimed March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 511; Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6-7; Henville v Walker (2001) 206 CLR 459 at 480 [60]-[61], 490 [97]. The fact that the appellant had undergone a laminectomy and discectomy of her spine in 1986 (before the fall) that she was of an age where deterioration in the condition of her spine might be expected to some degree, and that she also suffered grief and a sense of guilt following the death of her husband from lung cancer in January 1989 (after the fall) did not rule out the consequences of the fall as 'a' relevant cause in the subsequent disability. In a sense, the back operation (which was reported as successful, following which the appellant was pain free until the fall) and the death of her husband simply rendered the appellant more susceptible to the consequences of the fall.
…
Discerning the operation of multiple causes: Whereas it was for the appellant to prove her case, and although the burden remained upon her as plaintiff throughout the trial to establish that her condition of conversion disorder was caused by the fall, the appellant started with certain advantages in her endeavour to do this. The evidence supported the conclusion that she had made a good recovery from her back operation prior to the fall. The occurrence of the fall was clearly established. Its trauma was such as to produce injuries and disabilities. Malingering on the part of the appellant was ruled out. In this context, the appellant was entitled to invoke a principle of law and an evidentiary presumption that helped her to support the conclusion reached by the primary judge.
…In the present proceedings the foregoing principles had the consequence that, whilst the appellant carried throughout the burden of proving the occurrence of the fall and that it had consequences for her which continued to cause her disabilities and loss, in so far as the respondents asserted that some other cause or causes (the pre-accident spinal operation, the constitutional deterioration of the spine or the post-accident grief and guilt feelings) had taken over as the explanation of the disabilities and losses, the evidentiary obligation to establish such a proposition rested upon it. The appellant was not obliged to disprove the relevance of the supervening causes or their incapacitating consequences."
Here it is the failure to pursue appropriate compensation for wrongful dismissal.
The assessment of damages is attempted on the basis of the following principles:
(1)The onus of proving entitlement to damages and their quantum remains with the plaintiff.
(2)Where there is entanglement of a pre-existing condition with ultimate outcome, it is for the defendant, through its cross-examination of the plaintiff and his witnesses, and evidence which it might adduce, to show as a matter of inference and deduction which medical or psychological detriments ought be separated or distinguished from the present condition and its prognosis. Its responsibility is to identify and demonstrate through reason and inference which factors ought be disregarded, not for the plaintiff to demonstrate which ought not be disregarded.
(3)The process is dependent upon the whole of the evidence adduced at trial. There is no onus on the defendant to adduce evidence, subject to the general principles of Jones v Dunkel (1959) 101 CLR 298, nor adverse inference to be drawn by failure to do so. On the evidence it ought demonstrate why a pre-existing condition ought be disregarded or given little weight.
(4)The duty remains with a plaintiff to act reasonably to mitigate his or her damage, but it is for the defendant to persuade the tribunal of fact, on the whole of the evidence adduced at trial, that the impugned conduct was unreasonable.
History following accident
Following the accident, the plaintiff was approached by the driver of the sweeper and asked if he was alright, to which he replied "Does it look like it?" He advised one of the customers that other arrangements would have to be made for the collection of freight and returned to the depot. He was taken to a medical practitioner and following examination, advised to take pain relief and anti-inflammatory medication and certified to be incapable of return to work for two days. He was subsequently certified as being work unsuitable for a further week. He was then certified as fit for light duties until December 1998. He returned to work in January 1999, but further suffered pain following his act of unloading a vehicle. He returned to light duties until, in May 1999, when he was dismissed from his employment. The basis of that dismissal, its nexus to his injury and the aftermath raise a discrete issue affecting the assessment. Following dismissal, the plaintiff was unable to find regular alternative work until a friend provided casual work involving the packaging and distribution of newspapers. At the time of trial, he was receiving Social Security benefits and a weekly payment for his newsagency work, which he did not regard as income. Between 1999 and 2003, the plaintiff's health deteriorated, he became depressed and withdrew from what remained of his social and recreational life. His drinking increased and his desire and/or capacity to actively seek work lessened. His visits to medical practitioners increased, as did his involvement with rehabilitative providers.
Credibility
The general account given by the plaintiff in relation to the accident is accepted. Given the small ambit of the facts, their objective nature and the paucity of contrary material, that acceptance is easily made. However, his evidence given in relation to the assessment of damages is not accepted as being either accurate or reliable. Making allowance for his limited communication skills and self-perception as a "victim", much of his account was coloured by motive to enhance his cause and had the characteristics of reconstruction. Such might be understandable, but not reliable. The existence of injury is not an issue, its extent and impact is otherwise.
It is not necessary to particularise each factor which has led to the above conclusion. They can be identified by reference to particular topics or areas of inconsistency, rather than as a comprehensive analysis of character. The sum of internal inconsistencies in evidence given at trial, past conduct, inconsistencies in and with earlier accounts, evasion, and the withholding of information, detract from reliability and accuracy, rather than show mendacity. Matters warranting the conclusion of unreliability and inaccuracy include:
(1)Prior convictions for acts of dishonesty in relation to the receipt of Social Security and continued employment.
(2)Differing accounts given to hospital staff concerning an accident involving a motor vehicle in 1991. He compounded that evidence by a further claim that the injury was sport related.
(3)His claim of "technical" employment with the Examiner given at trial to explain his continued receipt of Social Security benefits.
(4)His claim of having a permanent limp when such was clearly belied by evidence obtained through videotaped surveillance.
(5)His failure to provide a history of back pain to his treating medical practitioner at times when, on his account given at trial, such ought to have been manifest and recountable.
(6)The circumstances surrounding, and his explanations provided at trial, concerning his "employment" with a Launceston newsagency some time before and during the hearing.
(7)Inconsistency in his medical history as provided to medical practitioners and that recounted at trial.
(8)Evidence obtained by surveillance and recorded by videotape.
Medical history and underlying pathology
The plaintiff has a long history of health impairment. His own history as presented to various medical practitioners and to this Court is neither accurate nor reliable. He has sought over the years to either exaggerate symptoms or more significantly, to diminish, post-accident, any pre-existing ailment or condition.
That process, in turn, impacts on the accuracy of diagnosis made by treating and assessing doctors alike. A consistent condition has been that of diabetes undiagnosed until about 1993 when it was found to have been in existence for some 5 – 6 years. Complications of that condition have included microvascular damage to the eyes, kidney damage, high cholesterol and sensory impairment. His self-management of the diabetes, both before and since the accident, was described by one treating doctor as appalling. As of the date of the accident he had some degenerative changes in the lumbosacral spine, although they were probably asymptomatic. The history, at least as recorded by his medical practice since 1994, and on which much of this assessment depends, records the following relevant matters:
25 May 1994Pain in medial calf and loss of power in hands.
14 September 1994 Fairly good control of diabetes.
1 February 1995 History of blackouts, three whilst driving.
16 June 1995 Pain to both feet, possibly associated with diabetes. Poor compliance with management regime for diabetes.
7 May 1996Low back pain with radiation to legs for past two months with no injury recalled. Possible disc pathology and question concerning facet joint. An x-ray was ordered.
28 October 1996 Ongoing back pain for last five months radiating to thigh. The plaintiff was advised in respect of his weight and his "diabetic control" described as poor. The sensation to the right leg was seen as a symptom of early neuropathy.
17 March 1997 Pain in foot with a diagnosis of peripheral neuropathy, a condition consistent with diabetic neuropathy affecting nervous tissue in the spinal cord.
24 February 1998 General examination followed by a further referral to Dr Kamp, a consultant endocrinologist.
Doctor Kamp had earlier reviewed the condition of the plaintiff in February 1995 following referral by another treating doctor with respect to blackouts complained of by the patient. At that time one of the relevant symptoms was paraesthesia in both hands and some numbness in the left foot. At that time the opinion of Dr Kamp was:
"… probable non-insulin dependent diabetes treated with insulin with poor control. His recent blackouts are certainly not typical of hypoglycaemia and are more likely epileptic in nature."
Doctor Kamp advised Mr James not to drive a motor vehicle.
The significance of this portion of the medical records is threefold, namely:
(1)it shows the existence of back pain and/or injury before the accident;
(2)it shows the onset of diabetes, its effects and poor self-management;
(3)much of the history described was not reported by the plaintiff to the medical advisers retained by both parties to examine and assess the condition of the plaintiff for the purposes of trial.
Post-accident condition and prognosis
The plaintiff saw his treating doctor, Dr Bassett, on 10 June 1998 complaining of pain to the back, pelvis and thigh. On 15 and 22 June, he reported an improvement to his condition and on 25 June, Dr Bassett held a case conference with a rehabilitation service provider. An x-ray showed no discernable damage other than a narrowing of disc space at L5/S1, and on 29 June, following an examination at which the patient reported minimal discomfort, arrangements were made for return to work. Mr James reported an exacerbation of pain on 2, 10 and 20 July, following acts of driving. Thereafter the medical notes show a history which comprises symptoms, complaints and events, which include:
· back pain of varying degrees
· concern about alcohol abuse;
· diabetes and its management;
· depression;
· referral to specialists;
· case management conferences;
· references to the payment of workers compensation and dismissal from employment;
· progress of the Supreme Court damages claim;
· weight, lifestyle and response;
· pain to elbow and groin;
· testing for inflammatory arthritis;
· further x-rays;
· hypertension.
The constellation of symptoms, tests and suggested regimes, illustrates the opinion stated by Dr Sale that the difficulty is the assessment of the "whole person", as distinct from the components. Their significance is in assessing the differing opinion of medical practitioners who have attempted to provide the Court with diagnoses of the factors associated with the accident, as distinct from underlying causes and their prognosis of outcome and work capacity. In December 2000, Dr Cooper of the Tasmanian Eye Clinic, assessed the plaintiff's sight and found that he had "marked constriction of visual fields which does not allow him to drive". Sight impairment is the consequence of the diabetes, and, irrespective of the accident, has affected the plaintiff's prospects of employment. X-rays taken on 11 June 1998 showed that:
"… the lumbo-sacral disc is narrowed in association with prominent end plate osteophytes and normal remaining disc intervals and end plates with intact posterior elements."
There was no evidence of recent injury to the pelvis. A report dated 24 March 2004 provided by Dr Paech of the Northern Imaging Group stated:
"There is relatively severe degeneration of L5/S1 disc characterised by loss of disc T2 signal intensity, reduced disc height, end plate irregularity and reactive marrow degeneration (Modic Type II marrow change). Marginal osteophytes also noted. Broad-based posterior disc protrusion of moderate size is associated with posterior osteophytes. L5/S1 intervertebral foramina bilaterally are narrowed without frank stenosis or nerve entrapment. There is bilateral minor L5/S1 facet joint osetoarthritis. Minor retrolisthesis of L5 noted. Lumbar vertebrae and discs above L5 are normal. There is no spinal canal stenosis. Conus and Cauda Equina are normal.
conclusion
L5/S1 disc degeneration which appears to have increased mildly since August 1998. Broad posterior disc protrusion which is also increased slightly in size since 1998."
The opinion of the treating general practitioner, Dr Bassett, provides a good overview. His opinion can be summarised as:
(1)There is chronic lower back pain which will inhibit some physical tasks. That pain should settle, but given the degenerative narrowing of the L5/S1 disc and confirmation of a "degenerative disc disease" at that level, there remain future problems. Some of the damage was a consequence of repetitive work, rather than a singular event.
(2)Assuming that Mr James suffers from "post-traumatic stress disorder", he will need some long term treatment with, as a minimum requirement, 12 – 18 months' treatment. Irrespective of that assumption, the plaintiff has suffered from general depression which is partly a consequence of the accident and partly a result of other factors which include the patient's subjective characteristics.
(3)The plaintiff's management of his diabetes is appalling. He has the full compliment of consequences of diabetes, namely failing vision, diabetic retinophy, neuropathy, peripheral neuropathy, numbness accompanied by pins and needles, high cholesterol and blood pressure. He described the condition of the patient as a "worst case scenario" who had been "heading that way" before the accident.
(4)The diabetes would impact on the capacity of the plaintiff to perform heavy manual work in any event because of sensory deprivation and damage to the feet and legs.
Doctor Maclaine-Cross placed weight on the physical symptoms as described by the plaintiff and the suggestion (as of September 2000, ie, after the psychiatric examination) of post-traumatic stress disorder as appeared from the history afforded by Mr James. However, one of his assumptions was that the plaintiff:
"… was in relatively good health prior to the accident"
and that the:
"… degenerative changes in the lumbosacral spine … were completely asymptomatic."
Doctor Maclaine-Cross had not been informed of the work performed by the plaintiff since mid-2003, nor of the event of March 1998. His overall assessment was that the plaintiff is physically able to do some work and that the current position is not likely to get worse. However, he modified his earlier belief that the effects of diabetes would have precluded most heavy physical activity by 2005 to a more optimistic estimate of 2009 – 2014. Doctor Ernst directed his attention mainly to work capacity and the Court accepts his conclusion that the plaintiff is capable (apart from education limitations) of performing many work related tasks, other than heavy manual labour. However, those tasks require "regular positions change". The assessment of Dr Ernst is that of impairment of the whole person at 5 per cent. The tenor of the evidence of capacity and suitability of the plaintiff for work is not shared by Ms McCormack, an occupational therapist and rehabilitation consultant. However, they share the view that the need of "regular positional change" is central to work capacity. Whilst she believes the plaintiff has the capacity for light physical activity, he is effectively and practically unemployable. His capacity to perform tasks associated with the newsagency weakens her latter conclusion, but support the opinion that "need for movement" is an essential prerequisite.
Mr Schofield believes the plaintiff to be capable of light duties or work not requiring heavy labour. Support for that opinion is provided by the physical activity of the plaintiff as shown by the surveillance videotapes. Dr Ulman likewise found only partial incapacity with no accident related permanent disability. In his opinion, the accident had caused 10 per cent back impairment.
The difference in opinion can best be explained by:
(1)the accuracy or otherwise of the history provided by the plaintiff;
(2)reliance on the psychiatric or psychological conclusions reached by others;
(3)assumption that there had been no previous back related injury or condition;
(4)complexity and interconnection of pre-existing conditions with the sequelae, both physical and psychological, of the accident.
What is not in dispute is that the complications associated with the diabetes will, irrespective of the accident, curtail the working life of the plaintiff.
The task of this Court differs from that of the treating and assessing medical practitioners or rehabilitation specialists. Their disciplines are directed at the process of healing or accommodation. The task here is to determine causation and the award of compensation for the harm occasioned by negligence.
The history as provided by the plaintiff is accepted only where it is corroborated, unchallenged or accords with common experience. That accepted evidence, together with the medical records and the competing opinions of conscientious experts, permit the following findings:
(1)The plaintiff had a pre-existing condition affecting his back and legs.
(2)The plaintiff had a pre-existing condition of diabetes which, in turn, caused secondary health complications.
(3)The accident both exacerbated the back condition and caused, independently, physical harm and pain.
(4)That physical harm and pain will resolve at least within the next 3 – 5 years. It has affected the work capacity of the plaintiff to a partial degree. It has not rendered him totally incapable of work.
(5)The eye condition of the plaintiff would, irrespective of the accident, cause him to relinquish any work involving the driving of a motor vehicle.
(6)Diabetes with its attendant complications would, irrespective of the accident, curtail his working life, probably within five years.
(7)Future work related incapacity is only partially a consequence of the injury.
Those findings govern, in different ways, the assessment of damages for pain, suffering and loss of amenity and for future loss of income.
Psychological sequelae
The injury occurred in 1998. The plaintiff was referred by his solicitors to Dr Johl, a consultant psychiatrist, who first saw him in January 2002. It was prudent and appropriate to so do as part of the preparation for trial and as a means of obtaining an overall assessment of the client. Dr Johl took a comprehensive history from Mr James, although some of that history does not withstand scrutiny and is inconsistent with other records. Nevertheless, by this time the plaintiff was undoubtedly depressed and not coping with his overall condition. It is understandable that he would present in a manner which concentrated on the negative attributes of his condition. It is understandable and consistent with the human condition that some of the symptoms provided to the psychiatrist and their descriptive terms as used in the reports re-appear in the subsequent notes of his treating doctors, which had not previously been provided by the patient. Whilst the process is understandable, the outcome weakens the impact of the diagnosis reached by the consulting psychiatrist that the plaintiff suffered from "a Chronic Post-Traumatic Stress Disorder, which is of a mild to moderate degree". The evidence is consistent with a general condition of "general irritability and increased anxiety" and general depression, for which the plaintiff had inadequate "coping mechanisms", probably lessened by an increased reliance on alcohol. Notwithstanding the diagnosis, Dr Johl was of opinion, at that time, that the plaintiff had:
"… made steady but very gradual improvement since the accident. He continues to suffer residual symptoms, which appear likely to persist in the long term, although to a gradually diminishing degree."
Doctor Johl believed that the plaintiff would benefit from "long-term medical support from his general practitioner" and stated as a general conclusion:
"It would be difficult to establish whether he will have any permanent disabilities. It is my impression, however, that he will recover sufficiently to be able to get back to some form of work, despite the presence of some residual symptoms that will persist in the long term."
Doctor Johl saw the plaintiff again in February 2003 at which time he noted an increase in alcohol consumption. He maintained his original diagnosis that the plaintiff:
"… did suffer a chronic post-traumatic stress disorder following the accident and fulfilled the criteria according to DSM IV."
Doctor Sale, also a consulting psychiatrist, who had examined and assessed the plaintiff at the request of the defendant, differed in his diagnosis. He did not conclude that Mr James had suffered from post-traumatic stress disorder and preferred a more complex constellation of causes and effects. He placed more emphasis on alcohol consumption, the cumulative effects of diabetes, general depression, and the effects of pain. The history provided to Dr Sale was more in accord with the history as recorded by the treating physician and consistent with the evidence provided at trial.
The difference between the competent professionals might be simply one of degree. However, the Court is not prepared to conclude that the plaintiff suffered from a post-traumatic stress disorder as a consequence of the accident or at all. Significantly the event said to have initiated the disorder was not one involving such trauma, horror or physical outcome that attends its onset. The history provided by the plaintiff differed from that established by the evidence and the effects of alcohol consumption were more apparent at the time of Dr Sale's examination. The plaintiff suffered from symptoms of anxiety, irritability and general depression, exacerbated by alcohol abuse. Those matters are relevant to this assessment, but not the existence of a psychiatric disorder with future and ongoing effect.
Loss of employment and duty to mitigate loss
The plaintiff had been absent from work through the exacerbation or repetition of the injury from January and was paid workers compensation during that period. In May, he became entitled to holidays, but just prior to his anticipated return to work, was called back to work and interviewed about his conduct. The stated purpose for the interview and his dismissal was given by the employer as rudeness to, or abuse of, customers. The evidence given at this hearing was incomplete and it is not appropriate for this Court to make specific findings on the circumstances surrounding and giving rise to dismissal, except to observe that there was strong motive for the employer to "dismiss for cause" an unproductive worker and that the account given here strongly suggests "guise". The issue is made relevant in these proceedings through the plaintiff's claim that his "differences with customers" and loss of temper at interview were a result of his psychological condition caused by the accident and a concurrent claim by the defendant that the dismissal was an intervening cause for which the defendant is not liable, or that the acceptance of dismissal without compensation contributes a failure to mitigate damage.
The defendant's general contention can be summarised as:
(1)On the evidence given at trial, the termination was clearly a result of injury, rather than misconduct.
(2)Termination occurred within twelve months of the accident and constituted a breach of the Workers Rehabilitation and Compensation Act 1988, s138A.
(3)Dismissal was for a cause prohibited by the Work Place Relations Act 1995 (Cth), s170CK.
Following dismissal, the plaintiff sought legal advice and commenced proceedings for wrongful dismissal in accordance with the Work Place Relations Act but, following confused procedural difficulties and further legal advice, ultimately discontinued proceedings. He did sign a release and received a payment of some $15,000 which was, in reality, settlement of his workers compensation entitlement. From these matters the defendant advances:
(4)the plaintiff abandoned a remedy and, if done as a consequence of inadequate legal advice, ought pursue a claim in negligence against his then solicitors.
(5)the payment to him of the workers compensation "settlement" ought be credited to the defendant. Given that the effective "insurer" here is the Motor Accidents Insurance Board, the outcome would constitute a "windfall" equivalence.
The finding here is that the plaintiff has discharged his "primary" onus and established compensible injury and termination of employment as a consequence of that injury. Termination was by human action not of the plaintiff's making, and might have been unlawful (Medlin v State Government Insurance Commission (1995) 182 CLR 1) but its occurrence did not breach, as a matter of fact, the causative link or nexus between injury and consequence. As a mater of fact, on the evidence presented, the loss of employment was a direct consequence of a compensible injury. Disentanglement of matters such as the psychological reasons given for conduct giving rise to dismissal, legal options available to the claimant, inadequate legal advice or otherwise, and possible amounts of compensation payable, remain the responsibility of the defendant on the whole of the evidence (Shorey v P T Limited (supra)). On the material here, the defendant has not discharged a "secondary" onus or at least shown the impact of peripheral factors. The same approach is taken with respect to the claim of mitigation of loss. The plaintiff has a duty to take resolute steps to mitigate his loss (State of Tasmania & Director of Housing v Shaw [2001] TASSC 119) and while there is no obligation for a defendant to plead "failure" (Plato Films v Speidel [1961] AC 1090) such must be clearly open on the evidence. The plaintiff took steps to obtain recompense and abandoned the attempt. This Court is unable to conclude that he did so as a result of defective advice or that he believed, wrongly, that the compensation actually paid included payment for dismissal or whether a "cost benefit" decision was the basis of the legal advisers. No finding is made that the plaintiff failed to mitigate his loss. It is extremely unlikely that he would have been reinstated and it is not possible to assess, at this remove, either his chance of success or the amount which might have been awarded.
However, the plaintiff was paid an amount of $15,000 as part compensation for his injury and will be treated as relevant to the assessment of his present claim.
Lost earnings
The plaintiff was dismissed from his employment and, given the conclusions reached as to causation and mitigation of loss, is entitled to compensation for his loss. There are two additional complications in relation to assessment. The first concerns a deed of release made between the plaintiff and his former employer on 3 December 1999. The deed provided for the payment to the plaintiff of the sum of $15,000 "in full settlement of all claims" which he might make under the Workers Rehabilitation and Compensation Act following the work related accident. The terms of the deed do not specify any apportionment of the sum as between physical injury and future "weekly payment" entitlement. The evidence here does not permit separate assessment by this Court. For convenience only, the payment will be treated as an amount to be "offset" as against the claim for past economic loss. The outcome, so far as the plaintiff is concerned, will be, subject to taxation calculations, similar. The sum will be notionally deducted as of the date of the release in an attempt to simplify any taxation calculations. However, it will be actually deducted from the sum total. The alternative approach, namely to offset the amount of general damages is unsatisfactory since no calculation can be made as to the percentage of an identified injury which might have been used as a basis for the figure of $15,000. The result might be unsatisfactory, but the state of the evidence precludes a different approach.
The defendant receives the benefit of this payment. That is because the plaintiff is entitled to compensation for loss, not a "double benefit". Nothing in this judgment is intended to permit the workers compensation insurer to claim repayment of the sum in the ordinary way. This judgment is not intended to occasion either the application of res judicata or create "issue estoppel". If a claim is made by the insurer or the defendant seeking to repay that insurer from this award, then it will be necessary to revisit this component. The second complication concerns "on going" paid employment. The plaintiff's early life was beset with difficulty, A family friend, Mr Le Fevre, had taken an interest in the plaintiff and had over the years assisted him in various ways. Following the dismissal of the plaintiff from his employment and his general state, it is likely that Mr Le Fevre assisted him further by providing casual work through his business, the Invermay Newsagency.
Mr Le Fevre did not give evidence and the discovery process undertaken on behalf of the defendant produced a document denying any records of employment. At trial the plaintiff claimed that he performed occasional and voluntary work only, undertaken to repay Mr Le Fevre for past help. The plaintiff is not accepted as a credible witness on this matter. He conceded receiving money at irregular intervals, claiming them to be "gifts" and provided no details or documentation. He provided an unsatisfactory account as to his use and the terms of use of a motor vehicle which, on the evidence, related to his work in packaging and delivery of newspapers. Despite his evasive account, it is apparent that as of the time of trial he was engaged in regular work of some 5 – 6 hours per evening and early morning. The evidence established, albeit inconclusively, that he performed at least one other task after the delivery of newspapers. The conclusion is strongly supported by surveillance recorded on videotape.
The plaintiff's account of receiving irregular payments of $50 or $100 is not accepted. He was part of a workforce of some six persons engaged in the packaging and delivery of newspapers on a daily basis. In his evidence, the plaintiff conceded that from December 2003 he was engaged in the work on 5 – 6 mornings per week and that he had been so engaged on 2 or 3 mornings per week since July 2003. The unsatisfactory nature of his evidence does not warrant the acceptance of his concession of the limited work performed since July 2003 or his claim that previously he had been prevented from undertaking any physical work previous to that date. Non-disclosure of the nature and regularity of the work to the rehabilitation service provider detracts from the claim of incapacity, both past and future.
Nevertheless, the plaintiff did suffer from the compensible injury in a manner which limited his work capacity. His capacity was impaired, but not destroyed. That claim is corroborated by the rehabilitation service provider. The plaintiff has had little education or training and his skills for employment were limited to the physical. The work provided by Redline was ideal for the capability of the plaintiff. It was not intellectually demanding, providing a set routine, and was varied enough not to be physically demanding. It involved carrying and lifting during relatively short periods. Loss of that employment, well suited to the plaintiff's capability, was a consequence of the accident and was hard to replace. However, elevation of that problem to one of incapacity or total impairment is not warranted.
Allowing for the short term effects of the compensible injury, as distinct from his long term disability, it is appropriate to accept that for at least three years after the date of the accident, he was unable to undertake any work. His claim up until 30 June 1999 amounts to $23,961.27 which will be allowed. Between 1 July and 1 December 1999, the approximate date of the release, he would have earned $13,243.82 which will be allowed. From the sum of $37,205.09, the amount of $15,000 ought be deducted, leaving a balance of $22,205.09 as the compensible amount. Allowing for a further period of, say, 18 months' total impairment between 1 December 1999 and 30 June 2001, a total of 82 weeks, a gross return based on the award figures of $613.14 and $634.26 per week, amounting to $51,375.72 would have been payable.
The gross sum of $73,581.81 will require further calculation to take into account taxation and Medicare components, together with the Fox v Wood component.
The above figures do not take into account payments made by the employer and the insurer to the plaintiff. Those sums have been agreed in the following amounts:
| (1) Weekly payments of compensation (a) 14 June 1998 – 30 June 1998 (b) 1 July 1998 – 30 June 1999 (c) 1 July 1999 – 5 September 1999 | $1,113.40 |
| (2) Gross payment by employer to plaintiff and as tax | $17,380.82 |
| Total | $24,160.67 |
From 1 July 2001, the calculation is more problematic. The Court does not accept that the plaintiff was disabled to an extent that work was impossible. It does not accept his account that he was unemployable, nor that the terms of his relationship with the Invermay Newsagency were as stated by him, either in duration or recompense. His efforts to obtain work were desultory. It does accept that any employment, actual or possible, would have produced less income and that such loss is compensible.
The period between July 2001 and 2003 is that during which the plaintiff was, on the evidence, capable of limited work. His capacity was impaired as a combined consequence of his general health and disability and the accident. Given the extent of his eye condition, it is problematic whether he would have been able to continue with his employment with Redline. He was, in the opinion of his medical advisers, unwell, and in all probability precluded from commercial driving if his condition was known to his employer. However, that form of impairment was not a consequence of the accident. He retained some physical capacity and ought not be compensated for loss as if he retained the capacity for commercial driving and was precluded from any employment because of his back injury. It is impossible to accurately assess loss, but it is not unreasonable to estimate, as a proportion of his loss of income or at least heavily discounting for contingency, a loss of $30,000 for the period.
His current earnings are unknown. The Court does not accept that he is currently unemployed, nor that he has been so since July 2003. No compensation will be awarded for this period.
The sum which will be awarded is, subject to taxation provisions, calculated as:
11 June 1998 – 30 June 2001 $51,375.72 1 July 2001 – 1 December 2003 $30,000.00 1 December 2003 – date of judgment Nil $81,375.72 Less paid as compensation $15,000.00 $66,375.72
Past medical expenses
Payment by the Health Insurance Commission and the workers compensation insurer have been agreed in the respective sums of $3,881.55 and $1,375.40. The quantum of the cost of additional medication of $1,472.49 and the provision of rehabilitation services by CRS Australia of $9,463 was not challenged at trial and those sums will be awarded in an amount of $16,192.44.
Past travelling and domestic services
There is no dispute that the plaintiff underwent physiotherapy and attended a medical practitioner on many occasions following the accident. The costs expended claimed at $225.80 will be allowed. A friend of the plaintiff who gave evidence at trial corroborated the account that the home of the plaintiff was not well maintained and was often in a poor and unhygienic state, a combination of alcohol use, depression and lack of purpose, not all of which can be directly attributed to the accident. However, given the varying components of the plaintiff's condition and his reasonably established lifestyle before the accident, it is appropriate to make some allowance for the paid assistance provided by his mother until October 2001 when, because of her health, she was unable to continue. It is accepted that at the suggestion of others, a commercial service "Dial a Genie" was engaged during 2002 for cleaning until the plaintiff could no longer afford payment. The sum of $1,720 will be awarded for the domestic service and $864 for the commercial service, making a total of $2,869.80.
General damages and loss of amenity
The approach to the assessment of general damages differs from that taken in relation to future economic loss. Before the accident, the plaintiff, despite his disabilities, led a reasonably settled existence and had adjusted, as far as he was able, to his circumstances. He had remained single and no account is taken of the ending of a relationship which he claimed to have resulted from the accident. There were other complications, some of which might have been caused by his diabetes and general personality. However, in other respects his account of lifestyle and social contacts is corroborated by Dale Quinn, one of Mr James' few remaining friends. The plaintiff had been active in sport, especially indoor cricket which, with age, had led to his involvement as an umpire. His social life revolved around that sporting activity and to a lesser extent, his work. His interests were in the keeping of dogs, some outdoor activity such as wood gathering, sport and home social life. His consumption of alcohol was moderate to heavy, depending on circumstances, and doubtless his bachelor life was "rough and ready". But with his work with Redline, it is likely that he had accommodated himself to a niche in life. Loss of his work related, sporting and social niche is attributable to the accident. He had been coping with his varying forms of adversity and while careless of his own health and well-being, he was "making do" with what he had. The Court accepts the account given by Mr Quinn that following the accident, the conduct of Mr James deteriorated. It may be that existing personality traits became accentuated through his reaction to pain, discomfort and loss of employment. It may be that he lacked insight or emotional resources to cope with his condition and developed a sense of indifference and "helplessness". But, change there was to his niche in life, and the detriment of change is a direct consequence of the accident or, at least, the defendant has not been able to disentangle the "strands" giving rise to change (Watts v Rake (supra)). Whilst in this case it is possible to disentangle the varying factors affecting future employment, it is not the case when dealing with the whole person and general amenity. His active life will be foreshortened by reason of other ailments and this factor will not be treated as compensible, but in relation to general enjoyment of life and past accommodation of vicissitudes, the defendant has not, on the evidence, disentangled the elements. It is accepted that the plaintiff has suffered from discomfort and loss of amenity and, despite his exaggeration and sense of "victimhood" and helplessness, the detriment is significant. The appropriate award is in the sum of $40,000.
Future medical expenses
This assessment is complicated by the question of life expectancy. The particulars of claim are predicated upon a life expectancy of 79 years and the necessity of constant medication, medical expenses and associated costs during the whole of that period. That basis of claim is not accepted. The working life of the plaintiff has been foreshortened, irrespective of the accident, by reasons of the diabetes and other health factors. The claim for medication and treatment is made on the basis of continuing pain and psychological sequelae attributable to the compensible injury. That is not accepted. Much of the pain-related effects can be remedied by a "fusion" operation and if, as the plaintiff avers, he has commenced a regime of "alcohol management", much of his psychological problem ought resolve. The likelihood of relief through "spinal fusion" and its cost has been separately considered and accommodated in this assessment. The Court does not accept the need for the treatment and associated treatment beyond 5 – 8 years. The quantum of the various claims under this heading is not disputed, but the period of treatment necessary has been placed in issue. The claim by the plaintiff made under this heading (particulars 6.2, 6.3 and 6.4) discounted at 7 per cent, amounts to $17,958. Allowing for the likely period of need, the beneficial effect of "fusion", and general contingency, the compensible amount will be assessed in the sum of $4,000.
Future domestic assistance
The claim here is for permanent assistance with "heavier domestic chores" calculated to amount to $11,520 (particular 6.5). The claim is accepted only in part. The condition of the plaintiff from the consequences of the accident ought improve and long term effects caused by the pre-existing condition not treated as a compensible injury. It may be that finalisation of these proceedings will permit the plaintiff to put in place an appropriate domestic regime and resolve his drink-related problem with its associated factors of depression and "self-indifference" or helplessness. Allowing for an ongoing period of two years as part of the process of rehabilitation and recovery, a sum of $1,500 (slightly discounted) will be allowed.
Spinal fusion
Mr Schofield, a consulting surgeon, agrees that the plaintiff is a good candidate for this procedure and would benefit from it. In his evidence he stated during cross-examination:
"You mentioned the possibility of a spinal fusion? … Yes.
In your report. Is he a good or a poor character for a spinal fusion? I think if he generally wants to get better, wants to return to work. Not of his previous work, but, you know similar to, I think he is a good candidate.
All right and the estimated cost of that I think you have put at $20,000.00? About that yes.
And were that procedure to be performed on him, what is the likelihood of a successful outcome? A 98 percent success rate on fusion and probably a 75 to 80 percent chance of a reasonably good functional result as far as scales of a personal feeling are concerned. Digital analogue scale in other words.
And work capacity, is it the same percentage as well? I think he has an excellent chance to return to work because his other discs are normal.
So, I just want to pursue this a bit more. A he's a good candidate for that sort of surgery? I would like him to lose a bit of weight but I don't think that's a factor against it. A lot of my patients are overweight and they lose weight after the surgery because they can become active.
We were told yesterday by Dr Maclaine-Cross that since November 2003 he seems to have cut back significantly his alcohol consumption and is losing weight. If we accept that, he seems to be of the right frame of mind now, doesn't he? Yes.
So, we are agreed that he is a good candidate and were it to be performed, you say there is an excellent chance that he would be able to return to his pre-accident employment duties or work of that nature? Yes.
HIS HONOUR: Now, let me just see if I follow that. He is a good candidate is step one. When you do these operations they have got about a 98 percent chance of successful, that's the operation itself succeeding.
WITNESS: With a one level fusion, with the modern methods that I use, the statistics are.
HIS HONOUR: Right and step three is what Mr McElwaine then took you to. 75 to 80 percent of his function result and here you have muddied the waters a bit by saying the patient would feel – well, does function result mean I am not suffering pain and then we go to step four which is Mr McElwaine's question which I think I understand you answer and that is, and functional result means he could resume the sort of activities of lifting, bus work or delivery work. You see the four steps?
WITNESS: Yes.
HIS HONOUR: And you have agreed to the fourth one that Mr McElwaine put to you?
WITNESS: Yes.
HIS HONOUR: Thank you. I follow that."
The plaintiff does not object to the procedure which has a good chance of success. However, the opinion of Mr Schofield that the procedure would afford an "excellent" opportunity for a return to work is confined to the "back condition" of the plaintiff and does not take into account other factors such as vision and the other effects of diabetes. Again, it is for the defendant to disentangle the threads. Success of the procedure might at least enhance the physical well-being of the plaintiff and enable him to obtain gainful employment. The estimated cost of the procedure is $20,000 and it can be performed in the near future. Some discount is made for the possibility that the plaintiff might change his mind or defer the procedure to some time in the future. Rather than attempting a "discounting" calculation, the reduction will be that of contingency. The sum of $18,000 is awarded as a specific item of future loss.
Loss of future earnings
It is unlikely that the plaintiff would have been, irrespective of the accident, able to lead an active working life beyond the next five years. He remains able to perform certain types of work. The injury caused by the accident has not caused all of the conditions which have brought about impairment and, in any event, the physical injury is likely to resolve before the five year period. His continued employment delivering newspapers during the night and early morning and his deteriorating eyesight is not a matter relevant to this assessment. The above factors make precise calculation impossible. Whilst it is for the defendant to show that the plaintiff has a residual earning capacity (Thomas v O'Shea [1989] Aust Tort R 80-251), it has done so here in general terms. The Court is satisfied that the plaintiff has residual capacity, but the failure of the plaintiff to disclose present earnings, his lack of credibility, and the complex nature of his medical condition and its prognosis, make assessment impossible except in the most general terms.
It is accepted that the accident component of his injury and condition will result in diminution of earning capacity, at least in the short term. A broad brush approach will be taken on the basis of a diminution of earnings over a three year period. Accepting the figures provided for past employment, the present undertaking of paid work, and heavily discounting for contingencies, a figure of $300 per week for a three year period will be used for the calculation of the discounted amount. A net figure of $250 will be assumed and using the multiplier of 142, the amount awarded is calculated at $35,500. The evidence given at trial as to superannuation is of no value, and given the paucity of evidence and his current activity in the delivery of newspapers, no provision is made in the award for superannuation.
| 55 Total | |
| General Damages | $40,000.00 |
| Loss of Past Earnings (subject to calculation) | $66,375.00 |
| Moneys paid by insurer | $6,779.85 |
| Moneys paid by employer | $17,380.82 |
| Past Medical Expenses | $16,192.44 |
| Past Travelling and Domestic Expenses | $2,869.80 |
| Future Medical Expenses and Spinal Operation | $19,500.00 |
| Future Domestic Assistance | $1,500.00 |
| Loss of Future Income | $35,500.00 |
Counsel are invited to prepare appropriate calculations for the taxation and associated provisions with respect to past loss. It will then be for the plaintiff's counsel to move for judgment in the final amount.
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