Jose v Ogg - [1999] WADC 62

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JOSE -v- OGG [1999] WADC 62

CORAM: CHARTERS DCJ

HEARD: 30 AUGUST 1999

DELIVERED : 10 SEPTEMBER 1999

FILE NO/S: CIV 4606 of 1998

BETWEEN: CHRISTOPHER SHANE JOSE
Plaintiff
AND
JASON OGG
Defendant

Catchwords:

Damages - Assessment - Turns on its own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages awarded of $26,997.05

Representation:

Counsel:

Plaintiff: Mr B S Spinks
Defendant: Mr N C Monahan

Solicitors:

Plaintiff: Marks Healy Sands
Defendant: State Crown Solicitor

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Arthur Robinson and Grafton (Pty Ltd) v Carter (1968) 122 CLR 649
Cullen v Trappell (1979-1980) 146 CLR 1
Gamser v The Nominal Defendant (1976) 136 CLR 145
GMH Ltd v Whetstone (1988) 50 SASR 199
Griffith v Kerkemeyer (1977) 139 CLR 161
Jaensch v Coffey (1983-1984) 155 CLR 549
Medlin v The State Government Insurance Commission (1995) A Tort Rep 81-322
Victoria Stevedoring Pty Ltd v Farlowe (1963) VR 594

CHARTERS DCJ: The plaintiff is a 30 year old former factory hand who claims damages resulting from personal injury by accident suffered in a motor vehicle accident on 8 November 1996.
Liability is not in issue and I am to determine only the question of damages.
On 8 November 1996 the plaintiff was the driver of a motor vehicle which whilst stationary was struck from behind by a vehicle driven by the defendant.
At the time of the accident the plaintiff was working as a factory hand with a company known as Gosh Leather.
He left school at the age of 16 in Year 11 and after about five years completed an apprenticeship as an electrician. At the age of about 21 he moved to Perth to find work as an electrician but because of difficulty in finding such work he worked for Gosh Leather until 12 September 1997.
Following the motor vehicle accident the plaintiff saw a general medical practitioner, Dr Hughes, on 11 November, and complained of stiffness in the neck. Some days later he noticed he was suffering headaches, dizzy spells and lethargy.
Dr Hughes referred the plaintiff to a chiropractor whose treatment did not help. Thereafter he had myofascial therapy, massage therapy and involved himself in some swimming. The plaintiff has seen a general practitioner, Dr Withers, about every two months since that time.
Currently he suffers from neck pain, pain between the shoulder blades and sometimes the lower back, with, on occasions, severe headaches.
The plaintiff might have taken a couple of days off work from Gosh Leather as sick leave but continued to work with that employer until 15 September 1997.
With Gosh Leather the plaintiff worked on a machine called a toggler - a platform upon which leather hides are stretched and this work required bending over a tub, pulling out the hides and throwing them onto the frame. He described this as heavy work which occupied an eight hour day apart from breaks and lunch. After the accident the plaintiff found it harder to do this work and says he had to leave that employment. He did not want to leave but could not deal with the pain that resulted from that activity.
The plaintiff commenced employment with Westec Pty Ltd on 15 September 1997 as an electrician and remained in that employment until 24 March 1998. The plaintiff stayed at Gosh Leather until he was assured of employment with Westec.
With Westec the plaintiff was involved in repairing commercial and domestic dishwashers, glass washers, ovens, stoves and coffee machines and some of the work involved heavy lifting and working in confined spaces. He claimed that this resulted in an increase in headaches but it is plain that his employer was otherwise not satisfied with his work - as the plaintiff put it "because I hadn't been in my trade for a while, so I was rusty and it was something different that I hadn't done before so I was still learning".
After leaving Westec on 24 March 1998 the plaintiff was employed by Coral West Pty Ltd as an electrician for 20 weeks finishing on 14 August 1998. There the work involved working in confined areas where he had to "contort" himself and twist around which caused neck pains and headaches. That was work on a casual basis. He was then employed for six weeks by J F Covich & Co and left that employment on about 24 September 1998. Mr Covich did not think that the plaintiff's standard of work was what it should have been and, the plaintiff said, his work was slower because of his disability.
There then followed a period of unemployment for nine weeks.
Finally, the plaintiff was employed by JSE Electrical Pty Ltd on 29 November 1998 and is employed with that company to the present time at Paraburdoo.
I find that the plaintiff suffered an injury typical of an extension injury in the neck - a predominantly musculo-ligamentous or soft tissue injury to the cervical region and to a lesser extent to the lumbar region of the spine. The latter injury is now relatively insignificant.
Restriction of movement is minimal and less than 10 per cent but the plaintiff does tire easily. His neck movements are mildly restricted in all directions with some pain at the extremes of movement. Movements of the lumbar spine are normal.
Accepting as I do the evidence of Professor Taylor and supported by Professor Mastaglia the "current disability in terms of restricted movement is minimal and less than 10%".
The plaintiff related an episode of dizziness during which he blacked out but that I am satisfied has no real relationship to the accident. There is no significant neurological injury.
The plaintiff is prevented from involving himself in some of his earlier sporting activities such as football though I am not satisfied that he cannot ride a bicycle or swim.
I turn now to the heads of damage.
Past economic loss
There was no loss of earning with the employer Gosh Leather.
I accept that the plaintiff left Gosh Leather because of the effects of that work activity upon his neck.
From 15 September 1997 to 24 March 1998 the plaintiff suffered a net loss of earnings of $1,569.24 being the difference between pre‑accident earnings he would have received and his actual earnings. From 1 April 1998 to 14 August 1998 (20 weeks) he lost earnings of $1,348.40; from 17 August to 24 September 1998 he lost no earnings; from 25 September to 28 November 1998 he was unemployed and lost earnings of $4,060.98. The total loss of lost earnings is $6,978.62. I accept that the injury did result in symptoms which rendered the plaintiff less capable of doing his work with Gosh Leather and this resulted in his leaving that employment. The plaintiff showed himself to be well motivated thereafter and did what he could to find employment within his physical capabilities and this attempt was in part successful. Applying the "but for" test I accept the causal relationship between his accident caused injury and the loss of earnings.
The plaintiff lost as employer funded superannuation contributions of $409.99 and interest of 6 per cent over 12 months of $443.30.
I accept these claims and award the plaintiff under this head the sum of $7,832.
Future economic loss
The plaintiff clearly is well able currently to earn well in excess of the earnings he received from Gosh Leather.
Nevertheless there is the possibility, though in my opinion it is very slight, that in the future he may find the accident caused symptoms will increase to the extent that he cannot sustain work as an electrician or may have the odd period away from work. On account of this slight possibility I award the plaintiff by way of future potential loss of earning the sum of $5,000.
Special damages
The plaintiff has attended a medical practitioner and outlaid $360.
I accept the claim for travelling expenses totalling $238.50.
I reject his claim, small though it may be, for the outlay of expenses to a local swimming pool - swimming was one of his pastimes prior to the accident and was part of his ordinary programme to maintain fitness.
I reject his claim for $145 for consultation fee for a psychologist. There was no necessity for such a consultation.
The expenses paid by the State Government Insurance Commission as medical, pharmaceutical and other treatment will not be added to the judgment but the sum of $744.55 payable to the Health Insurance Commission, which I understand to be agreed, will be added to the judgment sum. I shall hear counsel further upon this if necessary.
Under this head I award the plaintiff $1,343.05.
Future medical treatment
The plaintiff claims $649.50 for various drugs and that claim I accept. It is a modest claim.
He also claims visits to a medical practitioner for the following two years totalling $372 and that claim I also accept.
He seeks furthermore costs in the future of a diagnostic local anaesthetic facet block and radio frequency rhizotomy of $1,589 but the prospect of his undergoing this treatment is remote. For this claim I would award him a little over 25 per cent of that cost - $400.
Under this head I award the plaintiff $1,422.

General damages

The plaintiff has suffered some discomfort and pain and he has lost the opportunity to involve himself in some of his pre‑accident sporting activities.
Nevertheless the injury is of a non‑incapacitating character and the plaintiff will suffer little in the future.
Under the Motor Vehicle (Third Party Insurance) Act as amended on 1 July 1999 I am to assess the proportion of the plaintiff's non‑pecuniary loss of the maximum amount that may be awarded - $219,000. That proportion, having regard to the medical evidence, I assess as 10 per cent. The plaintiff will receive the sum of $21,900 less $10,500.
Under this head I award $11,400.
Summary of awards

Past economic loss

Future economic loss

Special damages

Future medical treatment

General damages

$ 7,832.00

$ 5,000.00

$ 1,343.05

$ 1,422.00

$11,400.00

$26,997.05

There will be judgment for the plaintiff in the sum of $26,997.05.