Jasmin Fazlic v Jonathon Keily
[2013] ACTSC 144
•30 July 2013
JASMIN FAZLIC v JONATHON KEILY
[2013] ACTSC 144 (30 July 2013)
DAMAGES – personal injury – motor vehicle collision – injuries to neck and lower back – previously asymptomatic degenerative disease in lumbar spine – chronic pain disorder – adjustment disorder with anxiety and depression – whether subsequent assault was causally independent – substantial impairment of earning capacity – appropriate reduction for vicissitudes
Cairns v Woolworths Limited [2005] ACTSC 95
Fox v Wood (1981) 148 CLR 438
State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003
No. SC 979 of 2008
Judge: Master Harper
Supreme Court of the ACT
Date: 30 July 2013
IN THE SUPREME COURT OF THE )
) No. SC 979 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: JASMIN FAZLIC
Plaintiff
AND: JONATHON KEILY
Defendant
ORDER
Judge: Master Harper
Date: 30 July 2013
Place: Canberra
THE COURT ORDERS THAT:
the proceeding be adjourned to a date to be fixed, for submissions as to past loss of earnings, tax on workers’ compensation and costs.
The plaintiff in this action claims damages for personal injury arising out of a motor vehicle collision. The defendant has admitted that the collision was caused by his negligence.
The collision occurred at about 8.00 am on Wednesday 28 March 2007. The plaintiff and his then wife were travelling to work. The plaintiff was driving and his wife was in the front passenger seat. They were proceeding north on the Tuggeranong Parkway in heavy traffic. The car in front of the plaintiff stopped suddenly. The plaintiff was able to bring his car to a stop without colliding with the car in front, but was struck heavily from behind by the defendant’s car. The plaintiff’s evidence was that it was a very strong impact, like an explosion. The plaintiff felt immediate pain in his low back, and was very shaken up by the impact, taking some five or ten minutes to get out of the car. Police and ambulance officers attended the scene. The plaintiff declined an offer to be taken to hospital by ambulance. His car remained driveable, and he was able to continue to work. Although driveable, the car was damaged beyond economic repair and was written off by the plaintiff’s comprehensive insurer. He was paid the sum insured, to his recollection $7,500.00.
The plaintiff’s evidence about these matters was not challenged, and I accept it.
The plaintiff
The plaintiff is almost fifty years of age. He was born in Bosnia in September 1963. After school he spent some fifteen months in national service. He then qualified as a machinist, and worked in that capacity in a government factory for about eight years. At the end of that time he qualified as a primary schoolteacher, and worked as a teacher from 1992 to 1994. During 1993 he married his first wife. Following the breakup of the former Yugoslavia, there was civil war in Bosnia in the early 1990s. The city where the plaintiff and his wife were living was not occupied by Serbian forces, but was exposed to shelling from a distance, and threatened by famine. The plaintiff and his wife fled as refugees to Switzerland in 1994. They applied successfully for entry to Australia and arrived here as migrants in June 1995. The plaintiff has lived in Canberra since then.
He spent six months learning English, and then did a year of a welfare course at a technical college. At the end of that time he found employment as a fitter and machinist, and worked for a number of employers in such work until late 1999, when he started work with an organisation then called Workplaces, later LEAD, as a disability support worker.
He suffered some injuries during his years as a fitter including a broken finger. In March 1997 he was the driver of a vehicle involved in a collision which was his own fault, and suffered some injury. His evidence was that it was in his upper back and that he was told it was a muscle strain. He said that he made a full recovery from the incident within about a week. There is reference in contemporaneous records of his general practitioner that he complained of back pain in the lumbo-sacral area with minor tenderness at L4-5, but nothing to suggest that his symptoms persisted for any length of time.
In April 2001 he and his wife had a son, who is now twelve.
The plaintiff’s work as a disability support worker included some lifting and carrying of heavy equipment. His evidence was that he had no difficulty coping with the physical aspects of the work. The job, however, caused him some stress, reflected in entries in the notes of his general practitioner. He attended complaining of stress and stress-related symptoms in March 2005, July 2006 and March 2007. The note for 22 March 2007, six days before the motor vehicle collision giving rise to the present cause of action, reads “conflict at work, had been working under stress for three years, wife working only two days, attacked by disabled person, trembling, felt better on Avanza”.
Notwithstanding these entries, the evidence of the plaintiff was that he never took a day off work by reason of stress. During the whole of his employment as a disability support worker, he estimated that he had taken no more than two days sick leave a year, generally related to influenza or similar illness.
The aftermath of the collision
The plaintiff said that he ignored police advice to go home and not to drive his car on to work. It was an important day at work. A report needed to be completed, to do with government funding for his employer. He did what needed to be done, but was unable to complete everything and asked his supervisor for permission to go home early because he was in pain. The permission was granted. He went home with pain in his back and shaking. At about 6.00 pm on the evening of the collision he felt what he described as an extremely strange pain in the lower back, going into his legs so that he “didn’t feel that I had legs”. He was frightened. His wife gave him some painkillers which relieved the pain to some extent, and he went to the emergency department at Canberra Hospital. An x-ray was taken, which showed no fractures. He was given a certificate for two days off work, and went home. He did not take the days off. A little later, on 2 April 2007, he went to his general practitioner who referred him for a CT scan and gave him a prescription for painkillers.
He was entitled to workers’ compensation because his injury had happened on the way to work. The workers’ compensation insurer referred him to the practice of Dr Peter Warfe, a rehabilitation consultant.
His general practitioner sent him to see a physiotherapist in the Tuggeranong area, but the physiotherapist was young and rough. The treatment was very painful and the plaintiff did not go back to that practice.
Dr Warfe submitted the plaintiff to a multiple-disciplinary course of rehabilitation treatment, including physiotherapy, and psychological counselling with Tom McHugh. He was given a regime of exercises.
The plaintiff’s evidence was that before the car accident he was extremely fit. He was doing seventy push-ups every morning, as well as weight-lifting. His recreational activities included swimming, football and cycling.
In May 2007 the plaintiff was referred by his general practitioner to Dr Chandran, neurosurgeon. Dr Chandran’s advice was that he was not a candidate for surgery because his injuries were at a number of levels.
The plaintiff continued to work part-time during the weeks after the accident, based on certificates issued by his general practitioner.
In August 2007 the plaintiff had an episode of pain which seems to have been caused by kidney stones. He spent a night in hospital with severe vomiting and other symptoms which persisted for a few days after his discharge. He had had kidney-stone problems some twenty-five years earlier.
At the end of August 2007 the plaintiff separated from his wife. He moved out of their house, initially to live with his mother. His wife had been injured herself in a number of car accidents. She had been on edge, and the situation at home had been tense for some years. After his accident, the plaintiff found that he could no longer cope with the situation at home. He lost his patience. He was in pain and had a limited threshold. His son stayed with his wife.
The plaintiff continued to work, between four and six hours a day depending on certificates given by his general practitioner. He relieved his pain with Panadeine Forte.
On 26 October 2007 the plaintiff was assaulted by one of the disability clients. He was driving a motor vehicle back to his office from the Woden area, along Tuggeranong Parkway. He had four clients in the car. One of the clients, who I assume was sitting in the front passenger seat, had stomach pains and needed to defecate. The client had limited vocabulary and was unable to explain in words about his problem. The client started to hit the plaintiff as he was driving along. The plaintiff tried to defendant himself and also to manage the vehicle. The incident occurred in a portion of the Parkway with a speed limit of 100 km/h. He was hit on the head a number of times. He stopped the vehicle. He realised that the client had soiled his underpants. The client calmed down and the plaintiff was able to resume the journey to the office.
It seems that this incident had some emotional impact on the plaintiff. He saw his general practitioner who gave him a certificate for a week off work, which the plaintiff took. The doctor certified him as fit to return to work but only for office duties four hours a day, that is to say without client support work. The plaintiff reported to resume in accordance with the certificate but his section manager told him there were no suitable duties. By this time the plaintiff’s evidence was that his nervous condition had dissipated. He went to work three mornings in a row but each day was told that there was no work for him. On the third day he asked the section manager to let him know by telephone when work was available. In the event the plaintiff never received such a call and never returned to work at LEAD.
At the end of 2007 he saw an advertisement for positions at LEAD including his own job. He was initially happy to see this, believing that he would be qualified for one of the jobs. He lodged an application. He was given an interview. He was not offered a position.
Soon afterwards, in December 2007, the plaintiff went back to see Dr Warfe. Dr Warfe recommended that the plaintiff be placed in a further program of some months including physiotherapy and psychological treatment sessions. The plaintiff underwent a three-month gym program with supervised exercise twice a week, funded by the workers’ compensation insurer. The plaintiff completed the course by March 2008. He was sent by the insurer for a work trial with Quest Employment Solutions in about May 2008. The position involved organising support for disabled people in allocated government housing. The plaintiff found the duties very difficult. He started working four or five hours a day. He had trouble with back pain, and became more nervous and upset as the back pain increased, to the point where he was not able to answer telephone calls. In July 2008 he ceased the placement at Quest.
The program included ten to fifteen sessions with Mr McHugh, psychologist, well into 2008. Mr McHugh recommended that the plaintiff be referred to a psychiatrist, and a referral was organised by his general practitioner. He saw Dr William Knox in August 2008. Dr Knox prescribed Effexor tablets which the plaintiff found did not help. Dr Knox also conducted a number of psychotherapy sessions, which the plaintiff said did not help either.
Meanwhile the plaintiff applied for a number of jobs in the disability area, but without success, not even being given an interview.
By the end of 2009 he had become discouraged. He came to believe that those in management positions in the disability sector in Canberra had become aware of his condition.
The plaintiff and his first wife divorced. During 2008 he made contact on the internet with Ema, whom he later married. Ema was an academic lecturer in Singapore.
Towards the end of 2008 the plaintiff and his first wife agreed on a property settlement, which enabled him to buy a house in the far southern suburbs of Canberra. He continued to live there by the time of the trial.
The plaintiff’s evidence was that he had had difficulty since the motor vehicle collision in performing housework. There were times when he could do nothing. As his pain reduced, there were some things he could do but a number of household activities triggered his pain. He had help from his mother, both when he was living with her and after he moved to his own house. I had the impression that while he was living with his mother she did almost everything for him, but I am not sure that all of this was occasioned by his injuries. Some of it may have reflected the natural instinct of a mother to help, perhaps fortified by their ethnic background. After he moved into his own house at the end of 2008, the plaintiff said that his mother came to help almost every day.
In June 2009 LEAD sent the plaintiff a letter terminating his employment.
The plaintiff’s evidence was that by the time of the hearing he was doing exercises for which he had been trained at Dr Warfe’s rehabilitation centre. He went to a pool for water therapy. He took painkillers, sometimes Panamax, a non-prescription analgesic, and sometimes Panadeine Forte, for which he needed a prescription from his general practitioner.
He said that his back pain varied from time to time. He had episodes of severe pain about once a fortnight, sometimes lasting for a couple of hours but sometimes for much longer periods. He found that frequent hot showers helped. His sleep was poor during episodes of severe pain, and this made him nervous, anxious and irritable during the day.
The plaintiff’s second wife Ema was a lecturer at a tertiary institution in Singapore. She moved to Australia to live with the plaintiff in May 2010. They had already married before that. By the time of the trial she was pregnant and expecting the birth within a month or so.
The plaintiff said in chief that he was pessimistic about his future employment prospects. He had asked the workers’ compensation insurer for help with finding work but had had no response. He was prepared to attempt any suitable position offered to him.
The plaintiff was cross-examined about the assault by a disabled client on 26 October 2007. He said that he had been hit on the left side of the head, behind the ear. This caused some swelling, as well as stress. He was asked whether the assault caused any aggravation to his back injury. His answer was “it’s hard to say, but whenever it’s stress, my back reacts more.” He was asked whether stress was something that affected his back. He answered “from accident, everything was affecting my back”.
The plaintiff agreed that he made a second workers’ compensation claim in respect of the assault. He said he had not wanted to do so, but he had a phone call from a representative of the insurer who told him that in order to be paid what he called sick leave, it was necessary for a claim to be lodged. He further said that he did not ask for a certificate for time off, but his general practitioner advised him to take a week off and gave him a certificate accordingly.
After that week, he never resumed work with his employer. He attended work on three occasions with the certificate from his general practitioner restricting him to part-time office work, and was told that there was no work available for him but that he would be telephoned if something became available. No such telephone call ever came. The plaintiff’s evidence was that he got over the assault within a week or so and that his continuing problems after that were limited to those arising from his back injury in the motor accident.
The plaintiff was asked in cross-examination about his work trial during 2008. He said he worked during that period for about two months but had to stop because of back pain and stress. These affected his concentration and he found he was unable to do the work properly.
Supporting evidence was given by the plaintiff’s new wife. She said that she had observed the plaintiff to suffer from frequent back pain, and also headaches from time to time. There were a number of tasks he was unable to perform, including lawn-mowing, roof repairs and vacuuming. As her pregnancy had advanced she had found herself less able to carry out some of these tasks herself and the plaintiff’s mother had assisted. The plaintiff was generally a cheerful and happy person but when in pain became socially withdrawn and moody, causing some friction within the marriage. His sexual capacity had been affected and he required medication in the form of Viagra to help overcome this.
The medical evidence
The only doctor to give oral evidence was Dr William Knox, a psychiatrist called at the request of counsel for the defendant for cross-examination.
Additionally in the plaintiff’s case reports by Dr S Rasaratnam, general practitioner; Mr Tom McHugh, clinical psychologist; Dr KN Chandran, neurosurgeon; Dr RV Jackson, orthopaedic surgeon; Dr RJ Brooder, neurologist; Dr P Warfe; and Dr LA Le Leu, occupational physician were tendered. Of these, Dr Rasaratnam, Mr McHugh, Dr Chandran and Dr Warfe were involved in the plaintiff’s treatment. The other doctors were qualified by the plaintiff’s solicitors for the purposes of the case.
The defendant relied on reports by Dr FH Roldan, clinical psychologist; Dr JH Silver, occupational physician; and practitioners associated with the Vocational Capacity Centre in Sydney: Professor R Pryor, vocational psychologist; and Dr B Zeman, consultant in rehabilitation medicine. I was asked to note that Dr Silver had been required by senior counsel for the plaintiff for cross-examination but was unavailable to give evidence at the time fixed for the hearing. In the circumstances senior counsel for the plaintiff withdrew his objection to the tender of the report provided that I took into account the fact that he would have cross-examined Dr Silver if the opportunity had been available.
Dr Rasaratnam had been the plaintiff’s general practitioner for some years before the motor accident. I have already made reference to entries in his notes in earlier years which were put to the plaintiff in cross-examination. He saw the plaintiff on 2 April 2007 for the first time after the accident, and gave a history of increasing low back pain following the collision. X-rays of the lumbar spine had been normal. Dr Rasaratnam found restricted movement of the lumbar spine and tenderness over the L4-5 region. He arranged a CT scan of the lumbar spine, carried out on 10 April 2007. This showed narrowing of the lumbar disc spaces with gas in the L5-S1 space, a calcified central bulge at L3-4 with some canal stenosis, and a diffuse bulge at L4-5. He referred the plaintiff to Dr Chandran.
Dr Chandran saw the plaintiff for the first time at the end of May 2007. By that time the plaintiff had already been referred by the workers’ compensation insurer to Dr Warfe’s practice where he underwent physiotherapy treatment and psychological counselling. The plaintiff continued to see Dr Rasaratnam at reasonably frequent intervals over the period of some four and half years between the car accident and the trial. Dr Rasaratnam’s opinion was that the plaintiff had had pre-existing lumbar spondylosis before the car accident, and that the accident had caused this to become symptomatic. The plaintiff had also suffered from symptoms of depression and anxiety due to conflicts at work and at home over the years. He had developed chronic back pain which was a cause of his continuing stress and depression. His prognosis was guarded and he might require physiotherapy, psychotherapy and pain management in the future.
Dr Chandran saw the plaintiff on three occasions between May and November 2007. In addition to the CT scan findings recorded by Dr Rasaratnam, Dr Chandran also noted evidence of degeneration in the associated facet joints. His opinion was that the plaintiff had had pre-existing asymptomatic multi-level degeneration in the lumbar spine before the car accident. One or more levels of the spine may have been injured in the car accident, causing his back pain and related symptoms. Surgery was not an option, and the best course was to continue with conservative treatment of the kind he was receiving through Dr Warfe’s practice.
Dr Warfe provided a detailed report in June 2009. He saw the plaintiff again for the purpose of the report, but had not been involved in his treatment for a little over a year before that. He had seen the plaintiff for the first time in May 2007. His opinion at that time was that his problem was degenerative lumbo-sacral spine disease, possibly accompanied by an acute lumbo-sacral strain, but with no evidence of neurological involvement. He also appeared to be suffering secondary lumbo-sacral and abdominal wall muscular weakness, and moderate anxiety and depression. Dr Warfe arranged a supervised rehabilitation program designed to improve physical function, assist pain management, improve posture, increase strength and enhance mobility. This was approved by the workers’ compensation insurer, and continued over some eight weeks, with the involvement of a psychologist, Mr McHugh.
At the end of the program, in August 2007, the plaintiff reported that the lower back pain was markedly reduced. He was by then working six hours a day five days week, and coping well with this workload. He seemed relaxed and much happier. Dr Warfe recommended that he attend a gym program over the following three months to maintain gains made to date and support increased working hours in the future. This was also approved by the insurer.
Dr Warfe next saw the plaintiff in December 2007. His lower back condition had deteriorated. He had had an episode of renal colic which had aggravated his lower back pain, and in October 2007 had been assaulted by a client while driving, which also aggravated the low back pain and increased his stress. He had ceased work after this assault because his employer could not offer him light duties with reduced hours. He was also by this time going through a difficult divorce, and had problems coping with the behaviour of his son. He presented as agitated and preoccupied. Low back movements were restricted, and painful at the limits. Dr Warfe recommended a further three-month gym program which the insurer approved.
Dr Warfe saw the plaintiff again in March 2008, following the gym program. His lower back condition was markedly improved and the back pain much reduced although he continued to experience intermittent mild discomfort in the lower back. He was not working but his rehabilitation provider was assisting him with a job search. Movements of the lumbo-sacral spin were normal with minimal discomfort at the limits. Dr Warfe recommended that the plaintiff cease the gym program and manage his own exercise program as instructed. He informed the insurer and the rehabilitation provider that it was critical for the plaintiff’s recovery that a graduated return to work be arranged for him. He was in Dr Warfe’s opinion fit for light office work, with breaks and frequent task rotation.
Dr Warfe saw the plaintiff again in June 2009, for the purpose of the report he had been asked to prepare. The plaintiff told him that the low back pain remained essentially unchanged but varied in severity and frequency. He reported that an office work trial over ten weeks in May 2008 had ultimately been unsuccessful. Since then the plaintiff had not been employed, though he wished to return to the workforce for financial and social reasons. He felt socially isolated and his sleep was disturbed. He appeared anxious, and stuttered and was occasionally tearful during the consultation. His lumbo-sacral spine movements were reduced since the previous examination, with mild discomfort.
Dr Warfe said that on the balance of probability, the plaintiff had been suffering degenerative lumbar spine disease, and anxiety related to perceived workplace conflict, at the time of the car accident. His low back condition appeared to have been aggravated by the accident. Dr Warfe accepted that the degenerative condition of the lumbar spine may have been asymptomatic prior to the accident. By June 2009 the plaintiff was in Dr Warfe’s opinion suffering from degenerative lumbar spine disease with an adjustment disorder characterised by moderate anxiety and depression. His prognosis was guarded by reason of the natural history of degenerative lumbar disease, the chronic nature of his condition, the associated adjustment disorder, perceived protracted workplace conflict, unsuccessful vocational rehabilitation to date, and social isolation. He would need monthly medical consultations for prescriptions for analgesic and possibly anti-inflammatory agents. Depending on his progress, he might require further eight-week periods of intense physical and psychological rehabilitation, followed by physiotherapy to maintain lower back function. He would probably require continuing psychological support for the following year or two.
Mr McHugh reported in September 2008. He had by then seen the plaintiff over nine sessions between May and August 2007, and a further twelve sessions between April and June 2008. The plaintiff presented as an over-anxious personality with some mild obsessive traits. He was depressed and anxious. He had poor sleep patterns causing frequent fatigue. He displayed high levels of emotional lability, irritability and anxious rumination. He had become socially isolated.
Mr McHugh thought that the plaintiff was suffering from an adjustment disorder with anxiety and depression. His symptoms also fulfilled the criteria for a chronic pain disorder with depressed and anxious mood. His psychological difficulties were caused by the car accident. Prior to the accident he had been by nature a somewhat anxious and nervous individual, but well within the bounds of normality. He had been socially and psychologically functional.
The plaintiff was referred by Dr Rasaratnam to Dr Knox in August 2008. Dr Knox diagnosed a major depressive disorder at that time, accompanied by a good deal of anxiety.
In a report to the plaintiff’s solicitors in August 2009, Dr Knox, having seen the plaintiff for the purpose of the report, diagnosed a generalised anxiety disorder, and a major depressive disorder of moderate severity. He further diagnosed a pain disorder associated with both psychological factors and a general medical condition. The plaintiff continued to present as very anxious. He had low self-esteem and low motivation for social and leisure activities. He had lost confidence in relation to applying for jobs. His prognosis was poor. He had little prospect of re-entering the workforce and would probably remain mentally ill. The motor accident had been a major contributing factor. If it had not occurred, the plaintiff, despite some other difficulties, would have been generally well and working satisfactorily by August 2009.
Dr Knox saw the plaintiff again in September 2011, a few days before the hearing, for a further report. He found that the plaintiff’s depression had worsened. He continued to be anxious. His self-esteem remained very low and he was socially isolated, despite having remarried. He was often irritable and frustrated. He appeared sad and worried, with a high level of hopelessness and helplessness. In Dr Knox’s opinion, the motor vehicle accident was the chief agent of his decline in health. Each of the conditions previously diagnosed was continuing and likely to persist, and the motor accident was a major contributor. He was unfit for employment and his prospects for future employment were very poor. He might have obtained some assistance from a course of some twenty counselling sessions by a psychologist.
Dr Knox gave oral evidence by telephone. He adhered to his 2009 opinion that the motor vehicle accident had been a major contributing factor in the plaintiff’s impaired health, and that if it had not occurred, he would probably be generally well and still in employment.
Dr Jackson, orthopaedic surgeon, saw the plaintiff twice, in May 2007 and October 2008, for the purpose of reports arranged by his solicitors. The first appointment was only two months after the collision. Dr Jackson conducted a full physical examination and took a detailed history from the plaintiff. He accepted that the plaintiff had suffered a low back injury in the collision. The x-rays and CT scans made it clear that there had been extensive pre-accident degenerative damage in the plaintiff’s lumbar spine, but it was quite possible that before the accident these had been asymptomatic. The plaintiff had sustained a significant aggravation of those changes in the accident. The prognosis was guarded. There was potential for improvement of the symptoms, but it would not be uncommon for some degree of symptomatology to remain indefinitely.
Dr Jackson saw the plaintiff again in October 2008. By that time the plaintiff had been through the assault incident, the renal colic problems, and the rehabilitation program. The plaintiff complained of constant low back pain, varying in severity. He was not working, having had a failed work trial earlier in the year. He was able to do little around his house and garden. Dr Jackson remained of the same opinion as to causation and prognosis.
Dr Brooder saw the plaintiff in December 2008. He also took a detailed history and conducted a full physical examination. He accepted that the plaintiff’s symptoms had been caused by the car accident and had persisted over the nearly two years since then. He accepted that the plaintiff had been unable to continue in employment. The plaintiff complained of intermittent aching posterior cervical pain, which Dr Brooder attributed to secondary muscle spasm consequent on the low back pain syndrome. He thought it likely that the low back pain syndrome would continue to some degree indefinitely, although the plaintiff might benefit from a further pain management program including physiotherapy and counselling.
Dr Le Leu saw the plaintiff in June 2009. He saw him twice, two weeks apart, because the plaintiff was so flustered at the first interview. There had apparently been some misunderstanding about the venue for the assessment.
Dr Le Leu took a lengthy history and conducted a full examination. He concluded that the plaintiff had suffered mild exacerbation of pre-existing degeneration of the cervical spine, almost completely overshadowed by exacerbation of pre-existing degeneration of the lumbar spine, and exacerbation of pre-existing anxiety and depression, difficult to separate from anxiety and depression symptoms resulting from his employment. Dr Le Leu accepted that the neck and low back symptoms had not been present before the motor accident. He said that it was often the case that once asymptomatic degeneration of the spine was made symptomatic, it stayed that way for reasons which were not always clear. This was likely to be the case with the plaintiff’s neck and low back. It would be difficult to determine how much of the plaintiff’s anxiety and depression arose from the motor accident. Dr Le Leu would defer to the opinion of a psychiatrist on that question.
Dr Roldan saw the plaintiff in January 2009. He was provided with copies of previous reports and a set of general practitioner’s records. The plaintiff presented to him with flatness of affect, some tearfulness and underlying anxiety manifested in verbosity. Dr Rolden had the impression that the plaintiff was defensive as to his pre-accident history of psychological matters, with a tendency to attribute all his difficulties to the motor accident and to minimise the effects of stressors unrelated to the accident. He diagnosed the plaintiff as suffering from an adjustment disorder with mixed anxious and depressed mood, reactive to a combination of stressors including physical discomfort. The plaintiff exhibited significant overt pain behaviour during the consultation.
In Dr Roldan’s opinion, the plaintiff’s psychological condition had been contributed to by a number of stressful events, including physical assaults in the course of his work and other conflicts at work. He thought it likely that before the car accident the plaintiff might have experienced some episodes of major depression and might also have had some symptoms of adjustment disorder. He thought that following the motor accident the plaintiff’s pre-existing psychological difficulties might have been exacerbated, initially by physical discomfort and associated restrictions, and later by the assault episode in October 2007. The adjustment disorder from which he was suffering was reactive to a combination of factors, some of which were unrelated to the motor accident. Indeed, the accident-unrelated symptoms were probably a significant contributor. Dr Roldan thought that the plaintiff would benefit from a graduated return to work program. He thought that the plaintiff’s psychological progress had been complicated by personal stressors which were likely to augment his perception of physical discomfort and disability, as well as to interfere with his ability to implement relaxation techniques and other pain management approaches.
Dr Silver saw the plaintiff in February 2009. He described the plaintiff as pleasant but evasive and rationalising as well as garrulous. He thought that the plaintiff’s complaints of constant and unrelenting low back pain were significantly and consciously embellished. He said that the plaintiff rationalised that all of his symptoms were interrelated and that they prevented him from working.
Dr Silver seemed influenced by a conclusion that the collision had been only a moderate one. He recorded a history that there had been significant damage to the rear of the car, which remained drivable but was later written off for perhaps five or six thousand dollars. There had been no damage to the front seats of the car. He referred in his report to the fact that the biomechanics of rear end collisions are such that the inertia of the occupant of the vehicle causes the occupant to be pushed backwards into the seat, and therefore, where there is no damage to the seat, no lumbar injury is expected. There is nothing in Dr Silver’s qualifications which satisfies me that he has the appropriate expertise to express an opinion of that kind. It led to Dr Silver coming to the opinion that any injury to the lumbar spine must have been “rather innocuous”. Accordingly he considered the plaintiff physically capable of working full time at his pre-accident duties. He said that back pain was a well-known concomitant of anxiety states (not an opinion expressed by any of the other medical experts in the case) and that in those circumstances it was easy to appreciate that a person in the plaintiff’s tenuous emotional state would blame it on the accident.
Dr Silver accepted that the plaintiff suffered in the motor accident an aggravation of pre-existing but asymptomatic lumbar degenerative disease. He thought, however, that the plaintiff’s symptoms were grossly embellished. He also thought that there was a major psychological overlay on a manifestation of somatisation influencing his presentation. He thought that the plaintiff was fit for semi-sedentary activities and could work full-time if he chose, in an administrative or managerial capacity. He thought that the plaintiff did not really need help with housework or gardening, and would not do so in the future.
In a supplementary report, Dr Silver was asked whether he would expect that a degenerative back condition, such as the one the plaintiff was suffering from at the time of the accident, would have manifested itself at some point in the plaintiff’s life, if the accident had not occurred. He said that on the balance of probabilities it would do so, but when it would occur was a matter of conjecture. As I have mentioned, Dr Silver did not give oral evidence and it is unclear whether his opinion was that the plaintiff’s low back condition might have become symptomatic in the absence of any traumatic event, or whether he was positing the likelihood that the plaintiff would suffer some other traumatic event at some time in his life.
In the supplementary report, Dr Silver also expressed the opinion that the plaintiff had a psychological personality issue which might benefit from psychological treatment including cognitive behaviour therapy, but that this was a personality issue not secondary to the motor accident.
The solicitors for the defendant sent the plaintiff to the Vocational Capacity Centre in Sydney in April 2011, for assessment by Dr Zeman and Professor Pryor. They had been provided with copies of available medical reports. Dr Zeman thought that the plaintiff exhibited abnormal illness behaviour. He accepted that the car accident had exacerbated pre-existing lumbar and cervical and degenerative disease. He also found that the plaintiff suffered from anxiety pre-dating the car accident, with subsequent additional causes not significantly related to the accident. He did not in Dr Zeman’s view require medical treatment and was fit for his previous work and generally fit for light and sedentary work. He required some assistance for heavy household and gardening tasks for about two hours a week. Dr Zeman said that at least half of that need was caused by the pre-existing degenerative disease. It is difficult to know what to make of that aspect of Dr Zeman’s opinion, bearing in mind that he accepted that the plaintiff was asymptomatic prior to the car accident. It may be that the opinion is grounded on a medical concept of causation which differs from the legal concept.
Professor Pryor said that the plaintiff seemed preoccupied with his problems, although cooperative and friendly. He was loquacious and disposed to self-justification. He became emotional and tearful on a couple of occasions during the assessment but regained his composure fairly quickly. He showed a tendency to over-elaborate his answers. Professor Pryor thought that there might be reasonable prospects for a return to employment on a graduated basis, with appropriate supportive supervision. There were a number of occupations for which he might be suited, some of which would require additional training. These included general clerk, stock clerk, office cashier, library assistant, mail clerk and coding clerk; or, with additional training, optical dispenser, optical mechanic, or musical instrument repairer. This opinion, Professor Pryor acknowledged, was based upon the plaintiff’s psychological state and did not take account of his physical limitations, which were outside Professor Pryor’s area of expertise.
Both Professor Pryor and Dr Zeman accepted that the plaintiff was not capable of returning to his pre-injury employment as a disability support worker. He was physically capable of light manual, semi-sedentary and sedentary work, at the intermediate level in terms of numeracy, literacy and intellectual capacity. He would need to commence with part-time employment, with a view to progress to full-time employment over time. He might require vocational retraining.
In September 2011, shortly before the hearing, Dr Le Leu was provided with copies of most of the reports by then in existence. He generally agreed with Dr Rasaratnam, Dr Jackson, Dr Chandran, Dr Brooder and Dr Warfe. As to the defendant’s doctors, he made no comment on Dr Roldan’s report, being in an area outside his field of expertise. He generally disagreed with Dr Silver’s opinion. He seemed a little critical of the opinions of Professor Pryor and Dr Zeman about the occupations available to the plaintiff, saying that the published criteria for the jobs gave almost no information about their physical requirements. Having read all of the reports, he adhered generally to his earlier opinion. He thought that there were some jobs the plaintiff could physically cope with but was unaware whether he had the appropriate education, experience or training for them. These included such occupations as museum guide, business manager, research officer, bank teller, proof reader, switchboard operator and receptionist.
Consideration of the evidence
Unlike Dr Silver, I did not gain the impression that the plaintiff was consciously or even subconsciously embellishing his evidence. Generally he seemed to me to be doing his best to give his evidence honestly and truthfully. Like many plaintiffs, he was, I have no doubt, motivated to make the best of his day in court, but I do not say that critically of him. I was generally impressed with his demeanour and accepted him as a witness whose evidence could be relied upon.
There was nothing contentious in his wife’s evidence and she was not really challenged.
The only medical witness in the plaintiff’s case who was subjected to any challenge was Dr Knox. Counsel for the defendant sought to have Dr Knox concede that the plaintiff’s psychological problems were to a greater extent caused by the assault incident of October 2007 rather than the motor vehicle collision. Dr Knox withstood the challenge and I accept his opinion. No other psychiatric opinion was tendered to contradict it.
Generally speaking all of the treating doctors and almost all of the medico-legal witnesses arrived at an opinion about causation, diagnosis and prognosis in the same area. The witness who did not was Dr Silver, and I acknowledge that I did not have the opportunity to see his evidence tested orally. However, it seems to me that his opinion was infected by an inaccurate assumption about the severity of the impact in the motor vehicle collision, and by an assessment of the plaintiff’s credibility with which I disagree and, it seems, enjoys no support from any of the other medical experts. Where Dr Silver’s opinion differs from the opinions of the other medical witnesses (particularly those in his own field, Dr Warfe and Dr Le Leu) I prefer their evidence to his.
As to the plaintiff’s employability, I am satisfied that he is unable to return to work of the kind he was doing before the car accident. I accept that from a psychological perspective, his prospects for future employment are very poor (to quote Dr Knox). He seems keen to get back into the workforce, and I am sure that if he could do so this would be beneficial for him in many ways, including psychologically, socially and financially. But I am not optimistic that he will succeed in doing so. I accept that there are a number of job classifications for which he would be suited physically. But I must take into account the fact that he is almost fifty years of age and that English is not his first language. He has, and will continue to have, low back pain of varying intensity. He has low self-esteem and a tendency to be socially withdrawn. The defendant has called no evidence of the availability of employment for someone in his position. I can, I think, assume that for many jobs theoretically within his capacity, there would be likely to be other applicants with more appeal to employers. I am quite unable to find that he is likely within any calculable time period to find employment. All I can do is to recognise that possibility as one of the possible positive vicissitudes for him.
Counsel for the defendant properly focused on episodes prior to the car accident where the plaintiff had complained of physical and psychological problems. Despite all of that, I am satisfied that the plaintiff was able to work until the car accident without any appreciable time off. I am not satisfied on the medical evidence or the evidence generally that there was anything about the plaintiff’s pre-accident physical or psychological condition which was likely to be reflected in any reduction in earning capacity for the balance of his probable working life.
Counsel for the defendant also sought to persuade me that the assault by a disabled client in the car in October 2007 should be seen as a novus actus interveniens, in effect responsible for all of the problems after that event.
I have previously had occasion to set out the correct approach to the assessment of damages for an earlier injury where the plaintiff suffers a subsequent injury – see for example Cairns v Woolworths Limited [2005] ACTSC 95 at [204] where I said:
The correct approach was explained by Malcolm CJ in State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003, a decision of the Full Court of the Supreme Court of Western Australia. In that case the plaintiff had been injured in a motor accident, and three years later in a work accident. His Honour said at page 67, 577:
In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows:
(1) Where the further injury results from a subsequent accident which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
(3) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.
Counsel for the defendant sought to persuade me that the assault in October 2007 fell into the third of Malcolm CJ’s categories. Senior counsel for the plaintiff argued that it fell into the second category. It seems to me that the plaintiff’s evidence and the medical evidence generally support the submission of senior counsel for the plaintiff. There will be cases where the distinction between the second and third categories will be clear, such as where both injuries are solely physical in nature and to different parts of the body. There will be factual situations where the position will be less clear. I am satisfied that the damage to the plaintiff occasioned by the assault was greater by reason of aggravation of the injury sustained in the motor vehicle collision. I am satisfied that following the assault, the plaintiff suffered an increase in his lower back symptoms, and I am satisfied that he suffered an increase in his psychological symptoms which had been present since the car accident.
Since the injury in Cairns, causation in negligence is now governed by s 45 of the Civil Law (Wrongs) Act 2002, but the section does not alter the approach spelt out by Malcolm CJ in Oakley.
Malcolm CJ was really talking about causation. I am satisfied that the motor accident was a cause of the plaintiff’s physical and psychological symptoms following the assault, to the extent that these were more pronounced than his symptoms immediately before the assault. Clearly the assault itself was also a cause of the aggravation, but that is not my concern for present purposes.
It is only the additional damage resulting from the aggravation which is to be treated as having been caused by the defendant’s negligence. Senior counsel submits that the assault worsened the plaintiff’s condition only for a short closed period. I am not sure that the totality of the evidence supports that finding. It seems likely that the assault aggravated the plaintiff’s low back symptoms for only a brief period, but that it worsened his mental state for a rather longer period.
I am satisfied that since the plaintiff ceased work in October 2007 he has been totally incapacitated for employment, as a result of the combination of his chronic low back pain and his psychological condition.
I am satisfied that but for the injuries sustained in the motor vehicle collision the plaintiff would probably have been able to continue working notwithstanding the other events in his life, including the assault of 26 October 2007.
The plaintiff has been substantially if not totally incapacitated for work by the injury in the motor vehicle accident. He will remain so indefinitely. It is possible that he will eventually find employment, and this would be very much to his benefit, but I have no real optimism that he will do so. I find that he has poor prospects of re-entry to the workforce.
If it had not been for the motor vehicle accident, the plaintiff would probably have continued to work with his then employer full-time on conditions the same as or similar to those at the time of the accident.
By mid-2008 the net income per week applicable to the plaintiff’s position, after tax, was $777.67 per week. This reflected some tax benefit arising from his employment by a not-for-profit organisation in the community sector. There was some speculation at trial as to whether this benefit has continued to date or will continue into the future but the evidence does not persuade me that there has been any change. Senior counsel for the plaintiff submits that I should allow, to date and for the future, a marginal increase to reflect general increases in rates of pay, to $800.00 net per week, and I propose to adopt that figure for calculation purposes.
Damages
I accept that the plaintiff has suffered from low back pain of varying intensity over the years since the motor accident in March 2007. I accept that at times the pain has been severe and disabling. It has been responsible for a high degree of interference of the plaintiff’s enjoyment of life. He has been and remains unable to enjoy the recreational activities he previously did. He has lost the benefits of employment which, as a number of the doctors have said, have an importance well beyond the resultant loss of income. He continues to suffer from an adjustment disorder with anxiety and depression, and this has interfered with his relationships with other people. Senior counsel for the plaintiff submitted that an appropriate award for general damages would be $120,000.00. Counsel for the defendant accepted that an award of $80,000.00 would be justifiable. This was on the basis that I accepted the defendant’s medical evidence including that of Dr Silver which I do not accept where it is inconsistent with the other medical evidence. The defendant’s figure was also put in the context of the submission that the assault of October 2007 was a novus actus causally independent of the motor accident, a submission I reject.
I am persuaded that the figure of $120,000.00 is an appropriate award for general damages for pain and suffering and loss of enjoyment of life. I apportion that figure equally between the past and future, so that interest is to be awarded on $60,000.00 for the period of six years and four months, at the approved rate of 4% per annum. The sum of $60,000.00 should be seen as notionally apportioned over the period since the accident, a little more heavily weighted to the months immediately after the accident. For interest I award $8,000.00.
Treatment expenses to the date of trial were agreed at $31,472.00. By that time, the plaintiff was not incurring a great deal of expense for treatment, but was needing to see his general practitioner from time to time for prescriptions for painkillers. He must have spent some money over the period of nearly two years since trial on doctors and chemists. I allow for past out-of-pocket expenses the sum of $33,000.00. Virtually all of the expenditure had been paid for by the workers’ compensation insurer and there is no claim by the plaintiff for interest on that component.
A claim is made for future expenses in the form of a buffer. There is evidence that the plaintiff would benefit from further psychological counselling, but I am not sure that he will choose to spend his damages in that way, although he may do so. He will continue to see his general practitioner for prescriptions for medication. When he can afford it, he may decide to have further physiotherapy or massage therapy. This component of his damages is not one which lends itself to a mathematical approach, although I note that the plaintiff will shortly turn fifty and that there is no reason to suppose that his life expectancy has been shortened by his injury or otherwise. I recognise, though, that he will receive the damages immediately and that his future expenditure will be spaced out over many years into the future. For future treatment expenses I award $20,000.00.
The claim for past lost of earnings is a little more complicated. Senior counsel for the plaintiff provided a helpful schedule handed up with his closing submissions, which I adopt. For the period from the date of the accident until 27 July 2008, when the work trial ended, he had received workers’ compensation of $35,586.00, which his counsel was prepared to accept as the equivalent value of his compensable loss, including tax (the Fox v Wood component). This seems to me reasonable.
For the period from 27 July 2008 to the commencement of the trial on 12 September 2011, I accept that the plaintiff was unable to earn income by reason of his injuries, and that he lost $126,340.00 for that period, including the Fox v Wood component.
For the period since trial, I adopt $800.00 net per week as the amount the plaintiff would probably have earned if it had not been for his injury. It seems likely that he has remained on workers’ compensation since then and that the workers’ compensation insurer has deducted tax from his periodical payments and accounted for the tax to the Australian Tax Office, but that the plaintiff will be obliged to repay the gross amount to the insurer out of his damages. His damages will therefore need to include a component equal to the deducted tax: Fox v Wood (1981) 148 CLR 438. It will be necessary for the solicitors to check this figure with the insurer before I am able to arrive at final figures and direct the entry of judgment. It will be necessary also to know this figure in order to calculate interest on past loss of earnings as a component of the plaintiff’s damages. It will be necessary for me to stand the matter over for a short period to enable these figures to be ascertained.
As to loss of earning capacity for the future, the plaintiff will be fifty on 13 September 2013. Senior counsel for the plaintiff urges me to adopt sixty-seven as his probable retiring age if it had not been for the accident. The plaintiff gave no evidence about whether he had given any consideration prior to the accident as to retirement. A fixed retiring age for the Australian workforce seems no longer in vogue. There are some who retire at fifty-five, some at sixty, some at sixty-five, while some work to age seventy and beyond. I assume that sixty-seven has been selected as the age at which it is expected that the age pension will become available, although I have not been taken to the legislation about this and am uncertain whether a male of the plaintiff’s age may not still become eligible under present law for the age pension at age sixty-five. That age seems to me a reasonable one to use as a base for the calculation of loss of earning capacity for the future.
The multiplier for a man aged fifty to age sixty-five is 632. Assuming earnings of $800.00 net per week, the notional value of the plaintiff’s earning capacity for the next fifteen years would be $505,600.00. Having regard to the evidence as to his potential residual earning capacity, and the possibility that he may ultimately be able to exercise some of that capacity and choose to do so, senior counsel for the plaintiff submitted that it would be reasonable to discount the total figure by one third rather than the conventional 15% for vicissitudes. This seems to me a reasonable approach. This would reduce the full value figure to $337,000.00. That seems to me an appropriate measure of the plaintiff’s impaired earning capacity for the future and I award that amount.
Senior counsel for the plaintiff submitted that I should allow 9% of the amounts awarded for past and future loss of earning capacity, to compensate for loss of superannuation benefits. Counsel for the defendant did not submit that this approach was incorrect. I propose to adopt it. I shall need to revisit the figure for the past. For the future, I award $30,330.00 for loss of superannuation benefits.
The plaintiff makes a claim for the commercial value of services provided by his first wife, his mother, his second wife and friends, for help around the house and garden. I am satisfied that he has made out this part of the claim. It is not something which can be calculated mathematically. The need caused by his injury and its sequelae will have been reflected in periods of assistance which will have varied from day to day and from week to week over the years. In the absence of evidence, I am inclined to choose a rate of about $20.00 per hour at the time of the accident, increasing with inflation to perhaps $25.00 per hour at the present time. I allow $10,000.00 for the past Griffiths v Kerkemeyer component including interest, and $10,000.00 for the future.
I propose to publish these reasons and to stand the matter over to give the parties an opportunity, if possible, to reach agreement on a total award of damages, or in the alternative, to return with submissions as to the figures I should adopt for the calculation of the past loss of earnings component of the award, upon which will depend interest on that component and the past loss of superannuation benefits.
I shall hear the parties as to costs.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 30 July 2013
Counsel for the plaintiff: Mr RL Crowe SC
Solicitor for the plaintiff: Maliganis Edwards Johnson
Counsel for the defendant: Mr SM Whybrow
Solicitor for the defendant: DLA Piper
Date of hearing: 12, 13 September 2011
Date of judgment: 30 July 2013
3
0