Jurleka v Gibson
[2009] WADC 134
•3 SEPTEMBER 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JURLEKA -v- GIBSON [2009] WADC 134
CORAM: SCOTT DCJ
HEARD: 10-14 & 17-18 NOVEMBER 2008; 24-27 FEBRUARY 2009
DELIVERED : 3 SEPTEMBER 2009
FILE NO/S: CIV 1987 of 2006
BETWEEN: PETER PERE JURLEKA
Plaintiff
AND
CHRISTINE MARIE GIBSON
Defendant
Catchwords:
Negligence - Personal injury - Motor vehicle collision - Quantum only - Turns on own facts
Legislation:
Nil
Result:
Damages awarded to plaintiff
Representation:
Counsel:
Plaintiff: Mr D R Clyne
Defendant: Mr B E Lawrence
Solicitors:
Plaintiff: Simon Walters
Defendant: Lawrence & Howell
Case(s) referred to in judgment(s):
CSR Ltd v Eddy [2005] HCA 64
Graham v Baker (1961) 106 CLR 340
Medlin v State Government Insurance Commission (1995) 127 ALR 180
SCOTT DCJ: In this action the plaintiff claims damages consequent upon injuries alleged to have been sustained by him in a motor vehicle collision which occurred on 27 March 2005 ("collision"). Liability is admitted by the defendant. The issue is one of damages.
Background
The plaintiff was born 19 June 1945 and was a butcher by occupation.
Collision
On 27 March 2005 the plaintiff was driving his Mercedes motor vehicle ("plaintiff's vehicle") in Balcatta when it was involved in a collision at the intersection of Main Street and Harrison Street with a motor vehicle being driven by the defendant ("defendant's vehicle").
At the time of the collision the plaintiff's vehicle was stationery at the intersection and the defendant's vehicle drove into the rear of it.
The plaintiff's vehicle was written off. The plaintiff alleges that his vehicle was pushed into the path of an oncoming vehicle although there was no collision with that vehicle.
Upon impact the plaintiff alleges that his head hit the steering wheel. The airbags of the plaintiff's vehicle did not activate.
He was taken by ambulance to Sir Charles Gairdner Hospital. He said in evidence that he experienced neck pain immediately after the collision and within 15 minutes experienced radiation of this pain behind his shoulders associated with a tingling in the index, middle and ring fingers of both hands.
Plaintiff's injuries
The injuries alleged by the plaintiff to have been suffered in the collision were primarily:
(a)strain injury to his cervical spine;
(b)soft tissue injury to his forehead and face;
(c)damage to certain of his teeth, including a fracture to the crown at tooth 14.
The symptoms alleged by the plaintiff in his statement of claim comprise:
(a)loss of consciousness on collision;
(b)pain stiffness and tenderness of his neck, radiating into both shoulders and arms;
(c)pain in his forehead, face and teeth;
(d)limitation of movement of his neck and shoulders;
(e)numbness in both hands;
(f)tingling sensation in the index, middle and ring fingers of both hands;
(g)pain in the anterior chest wall;
(h)impaired vision;
(i)psychological symptoms including depression, anxiety and mood changes; and
(j)headaches and discomfort together with sleep disturbance.
Treatment
The plaintiff was admitted to Sir Charles Gairdner Hospital on 27 March 2005 where he remained that day. He attended on his general practitioner, Dr Cummins, was prescribed Panadeine Forte and Tramadol and was referred to a physiotherapist.
He underwent physiotherapy and had acupuncture treatment which he said was not successful.
He was referred to Dr Michael Kent, a pain specialist, who administered cervical facet joint injections into C2/3, C5/6 and C6/7 and bilateral C6 nerve sleeve injections. The plaintiff said that those injections did not provide him with any relief.
He was referred to Dr Ponchard, an exercise physiologist and underwent massage and a range of exercises over 20 treatments with some success.
He underwent hydrotherapy, used heat treatment primarily from hot spas, hot baths and heat beads and has utilised a TENS machine from time to time.
He has been prescribed and has taken and continues to take a variety of analgesics and painkillers daily to cope with the neck pain, with which he alleges he has suffered and continues to suffer which radiates to both shoulders and down his arms.
He underwent EMG and nerve conduction studies on 9 May 2007 and had an MRI of his left shoulder, right shoulder, cervical spine, thoracic spine, lumbosacral spine and an angiography of his neck.
He was prescribed antidepressant medication Lexapro and subsequently Effexor by his general practitioner, Dr Cummins and was referred to Dr Semmens, a clinical psychologist for counselling with respect to managing his emotional distress.
As to dental work, tooth number 14 (upper right first premolar) underwent two root canal procedures and a rear crown.
Tooth number 26 (upper left first molar) underwent root canal procedures and a crown was fitted.
The plaintiff claims that the symptoms with which he has suffered have not reduced in their intensity since the collision and have progressively worsened and specifically:
(a)He still has constant pain in his neck and shoulders, with the pain going from his head down to and across his shoulders and into his hands. The pain is constant.
(b)He still suffers from a tingling sensation in his fingers.
(c)He continues to experience headaches radiating from his neck along both sides of his head to above his eyes. The pain is a throbbing pain.
(c)He continues to have right anterior chest wall pain which extends over the right clavicle to the chest wall. This pain is not constant but episodic.
(d)He has suffered and continues to suffer from severe depression and mood swings.
The plaintiff said in evidence that in 1980, as a consequence of a work related incident, he had low back surgery that was asymptomatic at the time of the collision.
An MRI scan undertaken on 8 May 2007 showed degenerative changes of moderate severity at C5/6 and C6/7. Advanced cervical spondylosis at C5/6 and C6/7 was also evident.
Essentially the medical practitioners who gave evidence are in accord concerning the neck and shoulder injuries sustained by the plaintiff in the collision. They opine that the plaintiff sustained a soft tissue strain
injury to his cervical spine and that injury was superimposed on the degenerative changes referred to above.
Work history
The plaintiff is Croatian by birth. He has been the principal of the business trading as Adriatic Butcher Shop since 1980 ("business").
At the date of the collision the business was and had been for some time operated by Breton Holdings Pty Ltd ("Breton Holdings") as trustee for the Balkan Trust ("Trust"). Breton Holdings is a family company and the Trust is a discretionary trust set up primarily to enable tax effective distribution of the profits from the business.
The plaintiff has always operated the business as its principal and his wife worked in the business in, primarily, a full‑time capacity until she was injured in December 2006. The plaintiff's son, Michael also worked in the business and in the later years oversaw the book work and collation of accounting information.
Primarily the business involved the retail sale of meats and smallgoods.
The business was sold to a Mr Modrakovic ("Mr Modrakovic") and settlement of the sale took place on 15 December 2007. The price paid to Breton Holdings was $270,000 inclusive of stock.
The plaintiff claims that the business was sold because, by reason of the symptoms suffered by him from the injuries from the collision he, as the principal, could no longer do the work formerly undertaken by him being that of heavy lifting to which reference is made later in this judgment and because there were ongoing difficulties in hiring and retaining employee butchers. The plaintiff also contends that because of the ongoing symptomatology he has not been able to work in the workforce since the settlement of the sale of the business and is no longer able to work.
Statement of claim
The damages claimed by the plaintiff comprise the following (in accordance with Schedule of Special Damages filed 5 November 2008 and re‑amended Schedule of Loss dated 6 February 2008):
(a)Past medical expenses insofar as they have not been paid by the defendant. The sum claimed is $13,508.73.
(b)Future medical treatment in the global amount of $50,000.
(c)Past economic loss on the basis that by reason of the injuries sustained by him, he was absent from the business for a period of 3 months after the collision and then only returned part-time as a consequence of which further staff were hired to undertake the work he would otherwise have done. To that end, the plaintiff particularised Dina Petran (6 March 2006 ‑ 2 December 2006), Zdenka Bradara (29 April 2006 – 2 June 2007), David Jones (1 January 2007 – 9 June 2007), Russell Hayhurst (26 July 2006 – 21 December 2006), Behija Alimanovic (30 May 2007 – 22 September 2007) and Hussein Halilovic (16 May 2007 – 10 August 2007) as the staff members concerned and claimed a total of $90,741 plus interest thereby totalling $98,635.46.
(In closing submissions counsel for the plaintiff conceded that the evidence did not demonstrate that further staff were employed in the business as alleged and that that claim could not be made out.)
(d)Diminished perimeter of employment in the global sum of $300,000 less a discount for retained earning capacity and contingencies in respect of the period from the date of trial until the date upon which the plaintiff attains 70 years.
(e)Past loss of superannuation benefits and interest based upon the claim for $98,635.46. (Which, for the reasons to which I have referred above, falls away by the concession on the part of counsel for the plaintiff.)
(f)Future loss of superannuation benefits at the rate of 9 per cent of the claim for diminished perimeter of employment in the sum of $300,000 viz $27,000.
(g)Past and future gratuitous services. (In his closing submissions counsel for the plaintiff conceded that there was no evidence to support a claim for gratuitous services.)
As a consequence the plaintiff's claim for damages comprises:
(a) general damages;
(b) special damages being past medical expenses;
(c) future medical treatment;
(d)diminished perimeter of employment including future loss of superannuation benefits.
Issues
The primary issues in this trial are:
(a)the nature and severity of the symptoms suffered by the plaintiff referable to the injuries sustained by him in the collision;
(b)the nature and volume of work performed by the plaintiff between the date of the collision and the date upon which the plaintiff settled the sale of the business in late December 2007;
(c)the causal connection between the injuries sustained by the plaintiff in the collision; and
(i)the plaintiff's working capacity; and
(ii)the sale by the plaintiff of the business;
(d)the plaintiff's residual working capacity.
Plaintiff's evidence – injuries, treatment and symptoms
The plaintiff gave evidence that:
(a)When he was 35 years of age he sustained a back injury when he was lifting a hindquarter of beef, resulting in a laminectomy operation. He was off work for about six to nine months.
(b)When he was 46 years of age he suffered a heart attack resulting in a triple bypass. He returned to work after three or four months.
(c)He was not suffering from any symptoms before the collision.
(d)As a result of the collision he was knocked unconscious. The first thing he remembered was waking up in the ambulance with neck and shoulder pain. He had a brace around his neck and he had a very, very painful neck.
(e)He had one tooth knocked out and eight damaged teeth.
(f)The next day he saw his general practitioner, Dr Cummins, who prescribed painkillers and referred him to a physiotherapist (New Life).
(g)He underwent physiotherapy and acupuncture treatment which was not helpful. Dr King injected him with three needles to the back of his neck and three needles to the front of his neck however that treatment did not help.
(h)He underwent 20 weeks physiotherapy with Dr Michael Ponchard and thereafter he did a series of exercises recommended by Dr Ponchard and continues to do those exercises.
(i)He has over time used treatments recommended by Dr Ponchard which included hot baths, spas, heat beads and a TENS machine for pain relief.
(j)He underwent carpel tunnel surgery in early November 2008.
(k)He has been on a variety of medications since the collision primarily analgesics and painkillers. (In Exhibit 14 there is correspondence from Northlands Health Sense Pharmacy to the solicitors for the plaintiff dated 7 October 2008 listing the medication supplied to the plaintiff.)
(l)He underwent hydrotherapy at the Balga swimming pool at a cost of $143 for a 3 month period.
(m)He has undergone treatment on his teeth from Dr Peter Mack.
The symptoms with which he has allegedly suffered and continues to suffer are:
(a)Neck pain – pain from his head down to his shoulders, across his shoulders and down into his hands. The pain is constant. He applies heat utilising heat beads and hot water and a heat collar which he acquired from Harvey Norman.
(b)Shoulder pain in respect to which he applies the same heat treatment.
(c)Depression which has been a major problem for him. He said that:
"I was born a worker – I get very emotional – and all my life I supported my family. I was very comfortable. At the moment I'm financially down and I can't do what I used to do. I can't go out and enjoy my life … I'm not enjoying my life; sports, enjoyment, fishing, stuff like – I just don't do it anymore … I used to play bocce … I used to play pool. I used to go fishing. I used to go dancing, which I love … I can't do it. …"
He has been prescribed and has taken and continues to take medication for his depression. At trial he was taking Efexor – XR 75 milligrams which he said helped him a bit.
The physical symptoms with which he suffered as a result of the motor vehicle accident have not improved and have worsened. He continues to be depressed and unable to cope.
Medical evidence – injuries and symptoms
Dr Cummins has been the plaintiff's general practitioner and has overseen his treatment. Dr Cummins reports of 12 October 2005, 11 February 2008 and 22 August 2008 were exhibits. In his report of 12 October 2005 Dr Cummins said that the plaintiff has been suffering severe neck pain and headaches as well as radiating pain down the neck and into his left shoulder and down his left arm as a result of the collision. Dr Cummins said that the plaintiff has also suffered from deteriorating vision and dental problems since the collision.
In his report of 11 February 2008 Dr Cummins added that the plaintiff experienced weakness and parenthesis in both arms, forearms and hands, daily generalised headaches and had experienced significant depression following the collision which had required counselling and anti-depressant medication.
In his report of 22 August 2008 Dr Cummins detailed the medications prescribed to the plaintiff after the collision.
Dental
The plaintiff was first seen by Dr Benjamin Negoescu. Dr Negoescu prepared a report of 13 May 2005 and although he was not called to give evidence, a report from Dr Howard dated 13 March 2006 was an exhibit and in that report he referred to and adopted the contents of Dr Negoescu's report.
Dr Negoescu said in his report that he saw the plaintiff on 9 May 2005 and his oral examination revealed:
(a)the upper right first premolar tooth (tooth 14) had a compromised crown;
(b) the upper left first molar (tooth 26) had a broken filling;
(c) the lower lateral incisors (tooth 32, 42) were chipped;
(d)data radiography detected no further abnormalities attributed to the collision.
No mention was made by Dr Negoescu or any other dental surgeon of a tooth having been knocked out as was the evidence of the plaintiff.
Dr Mack undertook a dental examination of the plaintiff on 22 May 2006 and his two reports dated 25 May 2006 and 6 June 2008 were exhibits. He said:
(a)The probability of the damage to tooth 14 being caused by the collision was 75 per cent. In his report of 6 June 2008 Dr Mack said that the root canal procedures (two roots) had been completed and the provisional crown had collapsed. The tooth did require a crown to maintain its structural integrity and that the scheduled fee would be $1620. (I note that the plaintiff in the re-amended schedule of loss under the heading "future medical treatment" claims a sum of $2270 for root canal therapy (in accordance with Dr Mack's report of 25 May 2006) however it would seem from Dr Mack's report that that root canal therapy has already been undertaken. There is no claim for reimbursement of the fee paid. From this evidence it would appear that the only sum claimed is $1620.)
(b)Tooth 26 has had two root canal procedures (three roots) completed and subsequently three posts and core intended for a crown. He said that the tooth required a crown to maintain the structural integrity at a fee of $1620. He said that the probability of that treatment being related to the collision was 65 per cent. It is not clear from the evidence whether that crown has been completed and there is no claim made by the plaintiff for that treatment. As a consequence that is not a matter with which I need to make a determination.
(c)Tooth 15 requires a posterior restoration. He said that the damage to tooth 15 may or may not be accident related. He estimated a probability of 40 per cent. The restoration cost was likely to be $140 (Dr Mack's report of 25 May 2006).
Cervical spine
The plaintiff was referred to a number of medical specialists for assessment and for the preparation and submission of medico-legal reports.
In essence those specialists are in accord with respect to the injuries sustained by the plaintiff in the collision. Essentially the injuries were described as a significant cervical injury together with associated facial and internal oral injuries, the overriding problem being the pain in the cervical spine, across the shoulders and most in keeping with involvement of the C5/6 level.
Scans were undertaken by Perth Radiological Clinic on 3 May 2005 upon the referral of Dr Cummins and each of the specialists to whom the plaintiff was referred had access to and commented upon those scans. The results of the scans were as follows:
Cervical spine:
(a)Multi-level degenerative cervical spondylosis most prominent at C5/C6 and C6/C7. At C5/C6 there was moderate central spinal canal stenosis and moderate bilateral foraminal stenosis but no evidence for a discrete soft tissue protrusion. Mild central canal stenosis is present at C6/C7 with moderate left foraminal stenosis. At C4/C5 there was a shallow central posterior disk bulge/protrusion without nerve impingement.
(b)Signal abnormality within the right vertebral artery in keeping with either slow flow or occlusion.
Thoracic spine:
Mild multi-level degenerative thoracic spondylosis but no evidence for a significant protrusion or nerve compression.
Lumbosacral spine:
(a)4 – 5 millimetre extra-foraminal (far lateral) protrusion at the L3/L4 level. This impinges upon and posteriorally displaces the right L3 nerve lateral to the foramen.
(b)Post-operative change on the right at L4/L5.
(c)Facet joint degeneration at L4/L5 and L5/S1.
Left shoulder:
(a)Rotator cuff tendinopathy. No evidence for a full thickness or high grade partial thickness cuff tear.
(b)Moderate subacromial – subdeltoid bursitis.
(c)Moderate hypertrophic AC joint arthropathy.
(d)Mild longhaired biceps tendinopathy.
Right shoulder:
(a)Rotator cuff tendinopathy but no evidence for a significant cuff tear.
(b)Moderate subacromial – subdeltoid bursitis.
(c)Hypertrophic AC joint arthropathy.
(d)Low grade longhaired biceps tendinopathy.
The specialists also indicated evidence of bilateral carpel tunnel syndrome.
The medical specialists made reference to the injuries sustained by the plaintiff as they affected the plaintiff's pre-existing condition (prior to the collision). To that end the specialists accepted that the extent to which the plaintiff was experiencing any symptomatology from his pre-existing condition depended to a large extent upon the history provided to them by the plaintiff.
The relevant comments by those specialists are as follows:
Mr Richard Vaughan:
"The crash significantly changed an apparent degenerate but not symptomatic state of the cervical spine to significantly symptomatic, with the underlying degeneration found on investigations possibly accelerating." (Exhibit 4.4)
Dr Andrew Harper:
"He has sustained a strain injury to the cervical spine which has been superimposed on advanced pre-existing yet asymptomatic degenerative changes in the neck." (Exhibit 5.1)
Mr Nicholas Anastas:
"In my view this gentleman aggravated pre-existing asymptomatic degenerative changes in his cervical spine …" (Exhibit Y.4)
John Kagi:
"In my opinion this man sustained a sprain of his cervical spine in the motor vehicle accident and this was superimposed on the pre-existing degenerative changes in this region." (Exhibit 5.1)
Dr Martyn Flahive:
"…it is possible … that he did sustain a soft tissue strain injury to his cervical spine … and this has resulted in this asymptomatic moderately severe cervical spondylosis becoming symptomatic."
I will refer later in this judgment to this issue.
Heavy lifting
The essence of the plaintiff's claim for economic loss is that because of the injuries sustained by him in the collision he was unable to physically carry out the heavy lifting work which he undertook before the collision and could not work a full day.
In evidence the plaintiff said that the work involving heavy lifting in the business was as follows:
A carcass of meat was delivered to the premises and the driver would bring the carcass into the fridge out the back of the shop. The driver would hang the carcass up in the fridge.
The butcher would then take the carcass out of the fridge onto the rail and then would put it on to the block to bone it out. The carcass may weigh up to 150 kilos and he would regularly lift meat weighing 60 to 70 kilos. The block is about a metre or two from the rail.
After the butcher cut up the carcass on the block and boned it out he would then throw it onto the bench behind him so that it could be trimmed into smaller sizes of five or six kilos which he would then put into 50 kilo tubs.
The butcher would then weigh those tubs and put them on trolleys which he would then lift onto the mincer so that the meat can be minced and otherwise used.
That work was performed by the plaintiff before the collision and he said that he was no longer able to perform it thereafter.
Before the collision the plaintiff said that his usual work day would be as follows:
Monday
•He did not generally work a full day on Mondays because he would have some time off. He would open the shop. He would go to the bank and do a few things including taking his grandchild for a walk.
Tuesday - Saturday
•He would start work at or about 5 am. The employed butchers would commence work at 7 am and work until about 4 pm depending on how much there was to do.
•When he first got into work he would put the meat on trays so that it would be displayed in the two cabinets in the window of the shop. One cabinet would be for smallgoods and one for fresh meat. This would require him to take out meat from the fridge and fill up the cabinets. The meat would be in five or six kilo sizes which would then be cut up by him and other staff to suit the individual customer.
•Beef would usually be delivered on Monday he and the butcher(s) would bone out and cut up the carcasses in the manner referred to above. Pork would be delivered just about every day of the week and he and his butchers used to break the shoulders and sides of the pork, bone them out and mince them during the day in between serving customers.
•Between 5 am and 7 am he was alone in the shop and would prepare the cabinets. He would not do any butchering work in those two hours. Butchering work would not be done before 7 am until a butcher arrived.
•During the day he would, together with other staff, serve customers. He spent a lot of time with customers. The employed butcher(s) might do more of the butchering out the back of the shop and he would do more of the serving which he enjoyed.
•He would finish work at about 6 pm.
Sunday
•He would restart the smoke ovens (to cook and smoke sausages and salamis) and check the fridges.
He would work about 80 hours per week.
After collision
After the collision the plaintiff said that he could do everything in the business other than the heavy lifting. He said that with respect to the heavy lifting others did that lifting and he operated the mixer and made ingredients. He said that after the collision the only thing he couldn't do was the heavy lifting and everything else he was able to do with the help of painkillers.
Robert Marshall
The evidence of the plaintiff relating to the employment of Mr Marshall is relevant to the plaintiff's claim that it was because of the injuries sustained in the collision that he was unable to do the heavy lifting.
Mr Marshall was a butcher. At T48 there was the following exchange:
"Q.So who was the one you put on first?
A.After the accident?
Q.Yes.
A.I think Bob Marshall was the first, sir. Bob Marshall was the first bloke.
Q.And do you recall when you employed him saying 'you've got to do the heavy work because I can't'.
A.Yes, sir. That was the reason I employed the guy.
Q.And there's no doubt about that with respect to Marshall.
A.No doubt whatsoever sir."
There was then cross-examination of the plaintiff as to the wages records which included the dates upon which employees commenced employment at the business.
At T52:
"Q.And you employed him [Marshall] to do the heavy lifting for you, didn't you?
A.Yes sir I did.
Q.And you employed him … on 24 July 2004?
A.Yes sir.
Q.When was your car accident?
A.2005
Q.So he was already working there?
A.Yes sir he was.
Q.And had been there for a year doing the heavy work for you?
A.Yes sir.
Q.When you had your car accident?
A.Yes sir.
Q.Alright. Well can you explain to the court why it was that you needed him to be hired before the car accident to do the heavy work for you?
A.Reason was we were busy – busy, was one reason. The other reason I'd – I needed someone to help me out.
Q.… so it's entirely false for you to say that Robert Marshall came on after the accident … to help you out. Isn't it?
A.… it is wrong but I thought it was – it was after the accident, before accident, sir.
Q.So from July 2004 until ….. the end of June 2005 both Yandi and Marshall … who were both butchers … were basically employed full-time by you?
A.Yes sir.
Q.And prior to that time … you have not had two full-time butchers on before had you in that shop for awhile?
A.Not all the time no.
Q.But in any event Marshall was put on before the accident to help you with the heavy work?
A.Yes.
Q.Alright, and Yandi and Marshall were both there the full year.
A.Yes."
At T250 the plaintiff agreed that George Yandi and Mr Marshall were working before the collision doing heavy lifting and that after the collision he had a succession of butchers doing heavy lifting.
At T291 the plaintiff agreed that after the collision he had no more butchers on then he had before the collision.
Medical specialists – instructions from plaintiff and prognoses prior to viewing surveillance DVDs
The defendant caused surveillance to be undertaken of the plaintiff over a number of periods as and from April 2006 and compiled DVDs of film of that surveillance. In time but before trial those DVDs were shown to Dr Cummins and the medical specialists who had provided medico‑legal reports.
It is relevant to briefly summarise the reported instructions given to each specialist and the respective prognoses prior to that DVD material being sighted by them.
Dr Richard Vaughan (neurosurgeon)
Dr Vaughan reviewed the plaintiff and five reports were prepared by him and exhibited. In his report of 19 March 2007 Mr Vaughan said:
"Mr Jurleka said he was working up to 100 hours per week prior to the crash, now he works perhaps up to 2 hours per day each day of the working week."
"Mr Jurleka came with his wife … Mr Jurleka moved slowly to the examination area … but had problems moving to the examining couch. He had paucity of cervical movement complaining of pain exacerbation both during the extension motion of the cervical spine and of the flexion motion. He had limited rotation as well as limited lateral bending. He had more discomfort moving to the left than to the right …"
Mr Vaughan considered the plaintiff's future work capacity to be somewhat bleak and observed that the problems of pain and depression were significant for the plaintiff. He opined that the plaintiff's future work capacity had been compromised into the foreseeable future and that he would be at risk from any work other than supervisory and that he could not cope with heavy lifting, twisting, climbing or work at low bench level. He did not see the plaintiff returning to the competitive workforce.
In his report of 7 May 2007 Mr Vaughan said that in his view it was more likely than not that the plaintiff had to sell his business because of symptoms resulting from the injuries from the collision and that the plaintiff had said to Dr Vaughan that he had never recovered from the effects of the collision and was not coping with life and the demands of business.
On each occasion that Mr Vaughan saw the plaintiff he was accompanied by his wife.
Mr Andrew C Harper (occupational physician)
Mr Harper wrote three reports which were exhibited.
In his report of 11 July 2006 he said that the symptoms related by the plaintiff were:
(a)Neck pain in which the plaintiff experienced a very dull pain extending the length of his neck and right side and radiating into the supra-scapular area. The plaintiff likened this pain to "meat being torn off". The pain severity was 7 – 9/10 and was constant.
(b)Headache radiating from his neck and along both sides of his head to above his eyes.
(c)Hand numbness and pain.
(d)Pain extending over the right clavicle to the chest wall.
On examination he said that the plaintiff was not in physical distress but that his gait was slow and his agility considerably reduced. The lumber spine back movement was considerably reduced largely due to the neck discomfort. Extension of his neck was less than 25 per cent of normal and both side flexion and rotation were approximately 25 per cent of normal.
He regarded the plaintiff unfit to work as a butcher or smallgoods man.
In his report of 24 August 2007 he said that on examination the plaintiff was in no distress. He was mildly tense but he did not appear depressed as he was when he saw him a year ago. Agility was significantly reduced. His gait was a little slow. Range of movement was reduced to neck pain not back pain. Neck movement was markedly reduced with all movements being less than 25 per cent of normal.
On examination of his wrists and hands there was clinical evidence of bilateral carpel tunnel compression.
He opined that the plaintiff remained totally incapacitated for his pre‑accident work as a butcher and smallgoods man.
In his report of 24 September 2008 Dr Harper said that until he sold his smallgoods business in December 2007 the plaintiff told him that he was attending the business on a part‑time basis doing restricted work. The plaintiff told him that he would get to work early in the morning to open the shop and prepare the window display. He would then go home after one or two hours and then return to the shop on two or three more occasions during the day and remain at work for up to half an hour, serve some customers and then go home. On each occasion that Dr Harper saw the plaintiff he was accompanied by his wife.
Dr N C Anastas (orthopaedic surgeon)
Dr Anastas wrote four reports each of which were exhibits.
He first saw the plaintiff on 15 August 2006. In his report of 15 August 2006 he said that the plaintiff told him that after the collision he did not work for a period of three months. On his return to work he attended only in a supervisory capacity, two hours a day, three to four days a week and he continues in that capacity.
The plaintiff demonstrated about 30 per cent of the normal range of rotation to the left and right and about 40 per cent of the normal range of lateral flexion to the left and right and complained of discomfort on the extremes of movement.
He was in agreement with the opinion by Mr J Kagi that the plaintiff ought to be able to resume all his pre-accident duties in his business 6 to 12 months after the collision and that he would not be left with any permanent disability.
In his report of 13 November 2007 Mr Anastas said that the plaintiff told him that he had been working only in a supervisory capacity two to three hours a day, two to three days a week.
The plaintiff complained that his neck still ached all the time and that since August 2006 his neck pain had increased in the vicinity of 60 to 70 per cent.
The plaintiff said that he had headaches which started at the back of the head and radiated down the sides to the front.
Mr Anastas attributed the increase in neck pain to the natural progression of pre-collision degenerative changes and not the collision.
Mr Anastas opined that the shoulder pain in both the plaintiff's right and left shoulder joints was referable to degenerative changes not associated with the collision.
In that report, Mr Anastas maintained that the injuries sustained by the plaintiff in the collision would have resolved and that it was the natural progression of the pre-existing degenerative changes in the cervical spine which would be a factor in compromising the plaintiff's working life.
In his report of 9 June 2008 Mr Anastas maintained his views expressed in his earlier reports. He said that the plaintiff advised him that there had been a further increase in his pain since 13 November 2007 quantifying that increase to be 8 – 9 points out of 10.
The symptomatology about the plaintiff's right and left shoulders was in Mr Anastas' view referable to degeneration not to the collision and opined that there was no change to his previous assessments of the plaintiff's work capacity which he did not consider were referrable to the injuries sustained in the collision but the natural progression of pre‑existing degenerative changes.
On each occasion that Mr Anastas saw the plaintiff he was accompanied by his wife.
Mr John Kagi (orthopaedic surgeon)
Dr Kagi wrote two reports, each were exhibits.
In his report of 5 December 2005 he said that the plaintiff told him that he did not work in his business for four to five weeks after the collision and after his return to work he had not done any physical butchering or lifting, he did supervise his employees, he did the ordering and served customers. He said he did that for seven or eight hours per day.
On examination Mr Kagi said that the loss of range of movement of the plaintiff's neck was near absolute (there was a typographical error in the report which was corrected at trial). The plaintiff complained of pain
in his neck and shoulders which was constant in nature and worse by night than day and was associated with frontal headaches occurring on a daily basis for two to three hours. The plaintiff denied any problem with his neck prior to the collision. Lateral flexion of his neck was 30 degrees to either side and lateral rotation was much the same.
Mr Kagi opined that the plaintiff's symptoms would not be likely to be permanent and within 6 to 12 months from the collision the plaintiff should be able to resume all his pre-accident duties. Any disability subsequent to that would in his opinion be more likely due to the pre‑existing degenerative changes.
In his report of 13 May 2008 Mr Kagi said that the plaintiff told him that he had not worked since he sold his business on 15 February (sic) 2007. He said that the plaintiff said that prior to that he only worked between half and two hours per day in a supervisory role in the business.
Dr Kagi's opinion was that the plaintiff was suffering from age related degenerative change in the cervical spine principally at C5/C6 and C6/C7 levels.
The symptoms in the plaintiff's hands were, Dr Kagi said, straight forward carpel tunnel syndromes bearing no relationship to the collision.
The discomfort and stiffness in the plaintiff's shoulders apart from that radiating from the cervical spine were due to age and not the result of any injuries sustained in the collision.
Any incapacity he opined was due to the age related changes in the plaintiff's neck and shoulder which pre-existed the collision.
Dr Martyn Flahive (occupational physician)
Dr Flahive wrote three reports, each of which were exhibited.
In his report of 14 August 2007 he said:
•The plaintiff told him that Dr Cummins commenced him on anti-depressant medication, namely Lexapro.
•The plaintiff told him that he was off work completely for four months after the collision but then returned to work in a supervisory role during the course of which he served customers with the meat that had been chopped, and made the seasoning. He did not work every day and when he did work it was only for 1½ to 2 hours per day.
•The plaintiff told him that he would normally get up at 8 am and read the paper, have a shower, and go to open the shop before coming home to watch television, listen to music or just relax. (During the course of his evidence at trial Dr Flahive said that this was the note he took. It seems to me that the note is not likely to be an accurate reflection of the time which the plaintiff was likely to have told him he opened the shop having regard to the evidence of others at the trial).
•On his examination of the plaintiff's cervical spine the plaintiff had quite marked restriction of movement with him only being able to flex 20 degrees and on repeat testing, 15 degrees. Extension was 15 degrees, lateral flexion was 10 degrees to the left and 5 degrees to the right and rotation was 30 degrees to the right and 10 degrees to the left.
•The plaintiff also presented with marked restriction in his lumbar spine movements with him only able to flex initially to 10 degrees and when he reported pain in his neck and with encouragement to hold his neck straight, to 30 degrees. Extension was only 10 degrees. Lateral flexion was one third normal range. Rotation was restricted and on Sham rotation he reported pain in his neck of 20 degrees. To that end Dr Flahive commented:
"The cause of him presenting with marked restriction in his lumbar spine movement is unclear. Both with flexion and even on Sham rotation there was no neck movement. Potentially this may suggest that he does have some ongoing disability in relation to his longstanding lumbar spine degenerative disease."
•The plaintiff had a poor history of lower back injury but reported to him that had been asymptomatic for many years. On examination he referred to the plaintiff's presentation with restriction of movement in the lumbar spine which he observed did not fit any known clinical pattern.
•He observed that the plaintiff appeared to him to have sustained a soft tissue strain injury to his cervical spine and this had resulted in his asymptomatic moderately severe cervical spondolosis becoming asymptomatic. He also referred to the finding of impingement syndrome in both shoulders which he said might be related to the collision but equally could be related to the plaintiff's occupation given the type of work that he undertakes.
•He observed symptoms suggestive of carpel tunnel syndrome which he considered was unlikely to be related to the collision and more
likely related to other factors including the plaintiff's age and many years of working as a butcher.
•He considered that the plaintiff was going to have difficulty in undertaking heavy manual work such as working as a butcher primarily related to his ongoing neck complaints although there was, he observed, ongoing incapacity as a result of his shoulder complaints and carpel tunnel syndrome and more recent symptoms of angina.
•He noted that the plaintiff had been using Durogesic patches to manage some of his pain symptoms.
•The plaintiff related to him that he was working 1½ to 2 hours a day, working two to three days, namely four to five hours per week.
In his report of 10 April 2008 Dr Flahive said that the plaintiff was reviewed on that day accompanied by his wife and;
•On that day the plaintiff told him that the neck pain was at a level of 8 to 9 out of 10 all of the time although if he took an analgesic tablet it reduced to 5 to 6 out of 10.
•The plaintiff said he was constantly troubled by shoulder pain which was 9 to 10 out of 10 reduced to 6 to 8 out of 10 if he took pain killers.
•The plaintiff also related that he experienced headaches on a daily basis at a level of 9 out of 10 reduced to 6 to 8 out of 10 if he took medication.
•The plaintiff said that he continued to be troubled by intermittent tingling in his hands.
•On examination there was still significant limitation of the nature earlier reported. He observed marked loss of strength in the plaintiff's right arm which strongly suggested to him that since his last review the plaintiff had had a cerebrovascular ischemic event.
•Before commenting further in respect of the plaintiff's work capacity he wished to review the results of any investigations which the plaintiff may have undergone for his vertebral artery occlusion in respect to which the plaintiff had undergone corrective angioplasty.
•Observed that:
"in relation to his ongoing symptomology from the motor vehicle crash, I have some difficulty in fully explaining his current presentation on a patho-anatomical basis."
"… given his presentation and examination findings it is apparent that Mr Jurleka does have a number of medical conditions that are unrelated to the crash and will affect his capacity for driving and employment."
•Observed that the plaintiff throughout most of the consultation and examination had restricted use of cervical spine movements and seemed somewhat more unwell than at Dr Flahive's last review. He observed that there was little in the way of extra movement informally with the plaintiff looking straight ahead when asked to read his weight off the scales and also when getting up from the examination couch. When getting dressed he continued to look straight ahead and sought the assistance of his wife.
Psychiatric condition
Dr C.Nick De Felice
Dr De Felice wrote three reports which were exhibits. In his report of 17 April 2007 Dr De Felice:
•Said that the plaintiff told him that in the first six months after his collision he was not able to go into the shop save for an hour or so to open and shut, to supervise and do the pays. The plaintiff said that he probably worked six hours a week or so going in every day for an hour or two, sometimes more.
•Said that the plaintiff told him that he went to Croatia in mid-2005 and that there was a period of time when his business often dropped off a little but on his return from Croatia he realised that his business was not what it should have been, realised that he couldn't do the things he used to do and with this started to become depressed.
•Said that the plaintiff told him that his GP (Dr Cummins) started him on anti-depressant medication which seemed to have been Lexapro.
•Opined that the plaintiff had suffered from a major depressive disorder precipitated by the pain and limitations he had experienced and the subsequent effects on his business. In his opinion the psychiatric symptoms limited the plaintiff's work capacity and that that limitation would be in addition to any physical limitations.
•Said that his view was that the depressive symptoms suffered by the plaintiff were intimately linked to those of his pain and physical problems and that if his pain and physical problems were to fully
resolve he considered that the plaintiff's depressive symptoms would substantially improve.
The plaintiff's presentation to each of the medical specialists was consistent. He presented with significant limitations and related ongoing significant symptomatology which prevented him from working a full day or any period near a full day in the business after the collision.
Time spent by plaintiff in business after collision
Plaintiff's evidence
The evidence given by the plaintiff with respect to the time he spent working in the business after the collision is a central issue because it is his case that because of the injuries which he sustained in the collision he was unable to do the heavy lifting in the business and was unable, because of his symptoms, to spend the time in the business which was required of him.
To this end the plaintiff's evidence was inherently inconsistent. Specifically:
•At T58 there was the following exchange:
"Q.After the accident what's the longest period of time you ever stayed at the business in any one day?
A.… half an hour, two hours, because I talked to my customers; 20 minutes.
Q. - well you'd go there for half an hour. Then what would you do?
A.… I'd go home.
Q.And what would you do at home?
A.… sitting down watching television.
Q.And then what would you do?
A.Then I'd go to bed sir.
Q.And then would you go back to the shop again?
A.No. I'd go to the shop at the night time to close the shop and sometimes even the girl that worked for me, Betty –
she used to – when I had a day off with a crook day – when I was crook and wasn't feeling well, she would close the shop for me and bring the money to my house."
•At T59:
"Q.So sometimes you'd go in early in the morning. Yes?
A.Yes …
Q.Well, how often?
A.Two, three, four times a week, twice a week; depends if I need the beef.
Q.And what would you do after you got the meat delivered?
A.Well, once the butchers get in then I'd go home."
The plaintiff was then shown the DVDs of video surveillance. The first occasion upon which the plaintiff was aware that he was being filmed was in or about June 2008.
•At T69:
"Q.Have you ever gone into work a straight 8 hour day since the accident?
A.No sir.
Q.Have you ever worked more than 8 hour days since the accident?
A.No."
•At T82:
"Q.Have you ever worked once for a 12 hour day?
A.I could have done if I had a short of staff. I could have done, sir, yes.
Q.How often could you have done it?
A.Not many times. When I couldn't get the staff, a few times, half a dozen times, ten times, 5 times, 6 times. I can't remember but I have been there.
Q.12 hours a day, for the whole day?
A.12, no. 12 hours a day, definitely not.
Q.Well that's what I'm asking you. Have you ever once worked a 12 hour day, or 11 and a ½ hour day, since the accident?
A.No. 11½, 12 hours, never.
Q.Never?
A.No.
Q.Never been at the business for 11½ to 12 hours once?
A.Like I said again to you sir if I was short of staff I could have been yes.
Q.The truth of the matter Mr Jurleka is that after the accident you began going into the business at 5.30 in the morning just as you did before the accident.
A.Yes.
Q.You would open up the business and work there until your staff arrived.
A.Yes sir.
Q.And your customers arrived and you would stay there all day, most days, until you closed up.
A.Not all the time sir.
Q.That's the truth of the matter isn't it?
A.Not all the time sir.
•At T82:
"Q.Yes, but you worked a 12 hour day.
A.With the help of painkillers.
Q.But you did do it?
A.Not all the time. I had to work sometimes. When I couldn't get the staff."
•At T90 (referring to 12 May 2006):
"Q.How long did you stay there working for?
A.Like I said to you, it varied. When I couldn't get the staff we'd be there all day. Sometimes half an hour, sometimes two, sometimes three.
•At T111E (referring to 25 July 2006):
"Q.Then you have worked a 12 hour day?
A.No I haven't. Never have done a 12 hour day sir. No. Because I would, again – I would go and then come back. I never would constantly – like I said to you short on staff, yes I have. With help from the painkillers, yes I have sir. I have been there.
•At T113:
"Q.And in fact you agree with you probably worked 12 hours a day on 25 July [2006]?
A.Occasionally I have done sir yes.
•At T116 the plaintiff said:
"Like I said to you sir there were days there were days where I was there a whole day, I don't deny that, but I wasn't there all the time … like every day of the week. I – I come and go."
Further down that page of the transcript, in the context of a discussion about him not leaving the shop he said "it happened many times".
•At T125 the plaintiff said:
"There were days I was there all day. I was there all day occasionally."
•The plaintiff then says in answer to a proposition put to him by counsel for the defendant that the defendant would ask me to infer that the plaintiff worked 12 hours on the Tuesday, 12 hours on Wednesday, 12 hours on Friday, the plaintiff said:
"I'm telling you the truth. No, never 12 hours a day. I could have go and I come back … but never was there 12 hours."
Plaintiff's answers to interrogatories
The plaintiff swore an affidavit on 26 September 2007 in answer to interrogatories administered by the defendant. By the time that the plaintiff was cross-examined about his answers to the interrogatories he had sighted the surveillance DVDs and had been cross-examined with respect thereto.
Question 2(a)
"Since the accident on average how many days per week have you normally attended at the business". The plaintiff answered "Between 2 – 3 days per week occasionally 4".
The plaintiff gave evidence with respect to this question in the following terms at T136:
"Q.Now we have just taken you from Monday to Saturday and you attended every day of week; didn't you?
A.Yeah, it varied. Yes. Yes..
Q.Yes. Every day of that week?
A.Couple of hours, 3 hours … half an hour. 20 minutes, 10 minutes. It varied. … I would come and go."
Question 2(c)
"Since the accident on average at what hour of the day did you normally commence work at the business?" The plaintiff answered:
"This varies, depending upon when I am needed. I go in every morning to open the shop and see what needs to be done during the day perhaps for 1 – 2 hours. In the middle of the day for 1 hour or so and in the afternoon an hour or so. Then I go to close the shop at closing time."
Then at T149 there was the following exchange:
"Q.Right. But most times on the film where you've been watched, you got to work before 6 am.
A.Yes, sir.
Q.So why didn't you say in your answer to interrogatories 'after the accident, I still get to work at 6am'.
A.To open up a – to wait to get the deliveries and all that. I … not every day. Not every day I wasn't."
In cross-examination there was the following exchange at T137:
"Q.So what you are suggesting then, is a short attendance – and when you say 'to open the shop', you meant at 8.30?
A.7 o'clock. 7 o'clock I open it."
Question 2(f)
"Since the accident on average how many days per week did you usually spend carrying out work normally described as butchering work?"
To which the answer was:
"None since the accident."
At T138 there was the following exchange:
"Q.Isn't cutting up the meat – cutting up the meat on the butchers block in the shop, in front of the customers, isn't that butchering work?
A.Sir, it is. Lifting – and its got a lot of lifting to do in my …
Q.Why didn't you say 'I can do cutting up work but not lifting work'?
A.Well, sir I'm a butcher. I'm not a lawyer. Probably the way I express myself."
Question 2(k)
"Since the accident on average what is the maximum of hours you have attended at the business in any one day?"
To which the answer was:
"Approximately 3 hours."
There was this exchange at T139:
"Q.Since the accident?
A.2 hours, 3 hours, 5 hours, ½ an hour, 10 minutes, 20 minutes. Depends … but being there and work is different things."
Question 2(l)
"Since the accident on average what is the maximum number of hours that you have attended at the business in any one week?"
To which the answer was:
"Approximately 18 hours."
There was then this exchange at T139:
"Q.Let's look at the answer.
A.About – in one week – about 25 hours. 20 – 25 hours a week."
Question 4
"In the year prior to the accident at any one time how many employees did you have working in your business?"
To which the answer was:
"One butcher, one apprentice, myself and my wife."
At T141 he conceded that the truth was that there were two butchers and one apprentice and he agreed that the answer was incorrect. He said that he signed the answer to the interrogatories but probably never checked it properly and that the answer was definitely wrong.
Then at T205 there was the following exchange:
"Q.After the accident, your normal pattern, most days of the week was to get to your shop and open it up before 6 am. Is that true or not true?
A.… true, yes, sir, sir, true."
Then at T235 and T236 the plaintiff agreed that after the accident most of the time he was at work before 6 am and stacked the shelves/cabinets with trays of meat.
At T237:
"Q.Why didn't you say in your interrogatory that you were at the shop at 6 am in the morning?
A.Well, no one asked me. If they'd asked I would have told you."
Bosja Jurleka
Mrs Jurleka gave evidence.
She said that after he was injured the plaintiff was not able to carry a half quarter or body of beef, or lift meat into the mincer. He was just there to tell the staff what needed to be done, to order meat, to call suppliers and check what had arrived. That was all he was able to do.
She said that after he was injured the customers would be served by the female staff. The plaintiff did not serve customers all of the time only occasionally.
She said that her husband may have stayed at the business for a full day. She said that before he was injured the plaintiff did everything in the business. He was a butcher, a smallgoods man and served customers.
She said that Mr Marshall did all of the butchering because the plaintiff was not able to do so.
She said that when Mr Marshall was employed he was not employed to do the heavy butchering work. That evidence is not consistent with the evidence of the plaintiff.
In respect to the reasons why the business was sold there was the following exchange at T436:
"Q.Why was the business sold?
A.Because I was no longer there … because I wasn't anymore there that I could put my time. So, there was so much hard time to keep people working for you. … We couldn't keep even butchers. We couldn't keep even the ladies, you know."
At T445 she said with respect to the sale initially to Ms Bradara that she and the plaintiff realised that they could not carry on anymore because the plaintiff wasn't getting any better and staff was a problem and "we as a family decided that we going to sell it".
Mrs Jurleka generally accompanied the plaintiff when he attended appointments with the medical specialists who prepared reports.
Zdenka Bradara
She worked at the shop for 12 or 13 months commencing April 2006 to May 2007.
She generally commenced work at 8 am and left by 3 pm, although sometimes she stayed until 5.30 pm.
She said that the work cutting up the big carcasses was undertaken by Russell Hayhurst who was a butcher. She said that the butcher did not do the big cutting.
She said that usually Mr Hayhurst put everything in the window. That evidence was not consistent with the evidence of the plaintiff.
She said that the plaintiff took a lot of painkillers. She said that some days the plaintiff often stayed in the shop the full time that she was there. She said that he would be in the shop 3, 4, 5 hours and then he went, and then closed the shop. Sometimes it was just 1 hour. Sometimes he was there all day.
Surveillance – DVDs
The defendant arranged for surveillance of the plaintiff from 1 April 2006.
Until 24 May 2006 spot checks were carried out by surveillance operatives and then there were periods of more continuous observation being:
•24 July 2006, 25 July 2006, 26 July 2006, 27 July 2006 (Craig Olsen);
•28 July 2006, 29 July 2006 (Debbie Palmer and William Gupanis), 31 July 2006 (Debbie Palmer).
•25 May 2007 (Debbie Palmer), 26 May 2007 (Debbie Palmer and Golfo Rompotis);
•5 June 2007 (Debbie Palmer), 6 June 2007 (Debbie Palmer and Craig Olsen), 7 June 2007 (Debbie Palmer and Golfo Rompotis), 8 June 2007 (William Gupanis), 9 June 2007 (Debbie Palmer);
•9 October 2007 (Debbie Palmer and Golfo Rompotis), 10 October 2007, 11 October 2007, 12 October 2007 (William Gupanis).
There were then further spot checks carried out on:
•20 October 2007 (Golfo Rompotis);
•24 October 2007 (William Gupanis, Debbie Palmer and Golfo Rompotis);
•20 December 2007 (William Gupanis and Golfo Rompotis);
•21 December 2007 (William Gupanis);
•22 December 2007 (William Gupanis and Golfo Rompotis);
•23 December 2007 (William Gupanis);
•24 December 2007 (William Gupanis).
The log books of the surveillance operatives were exhibited at trial and a summary of those log book entries was contained in the defendant's closing submissions which, for ease of reference, I have reflected below:
| Monday 24 July 2006 | Investigator – Craig Olsen – Exhibit U |
| 5.52am | Plaintiff's Renault sighted at the back of the shop |
| 6.33am | Plaintiff was observed placing trays of meat in display cabinets |
| 9.26am | Plaintiff left the business and was followed |
| Plaintiff carried out a number of activities and was filmed carrying them out throughout the day | |
| 03.20pm | Plaintiff returned to the business and parked at the rear |
| 03.47pm | Film was taken of plaintiff inside the shop working |
| 05.33 – 5.40pm | The plaintiff brought his car to the front of the shop, locked the shop and left the premises. Film was taken |
| Tuesday 25 July 2007 | Investigator – Craig Olsen Exhibit U |
| 5.40am | Film taken of plaintiff arriving at the business |
| 9.14am | Plaintiff sighted |
| 10.00am | Plaintiff sighted |
| 12.24pm | Plaintiff's car confirmed at rear of shop |
| 02.06pm | Plaintiff sighted |
| 02.13pm | Plaintiff filmed inside the shop |
| 05.43pm | Plaintiff observed driving his vehicle from the back of the shop to the front and then closing the shop, film taken |
| Wednesday 26 July 2006 | Investigator – Craig Olsen – Exhibit U |
| 0.536am | Plaintiff filmed arriving at business |
| 02.05pm | Plaintiff sighted |
| 02.51pm | Plaintiff filmed at business |
| 03.29pm | Plaintiff's wife drives away, her car is left at shop |
| 04.35pm | Plaintiff's wife returns |
| 04.50pm | Plaintiff sighted, film taken |
| 05.01 – 05.37pm | Plaintiff drives to front of shop and is filmed closing the shop at the end of the day |
| Thursday 27 July 2006 | Investigator – Craig Olsen – Exhibit U |
| 05.30am | Plaintiff filmed arriving |
| 06.51am | Plaintiff left in his Renault van and had returned by 7am |
| 09.58am | Wife left her car and took the Renault van |
| 11.42pm | Wife returned with the Renault van |
| 12.10pm | Plaintiff's van sighted in the car park |
| 01.12pm | Debbie Palmer arrives with another and observes the plaintiff at the rear of the shop but no film was taken |
| 3.30pm | Plaintiff is not sighted in the shop |
| 05.00pm | Plaintiff is filmed taking the Renault van to the front of the shop |
| 05.33pm | Plaintiff locks up and goes home |
| Friday 28 July 2006 | Investigator – Debbie Palmer – Exhibit V and Investigator – Golfo Rompotis – Exhibit W |
| 07.02am | Plaintiff not observed arriving but is seen on film at this time letting his wife into the shop |
| 08.09am | Plaintiff is sighted by Golfo Rompotis at the rear of the shop |
| 08.17am | Rompotis sights him at the rear of the shop in front of a carcass |
| 10.14am | Plaintiff not sighted |
| 12.06pm | Palmer sees the plaintiff serving at the counter |
| 01.46pm | Rompotis arrives and film was taken until 2.05pm |
| 03.59pm | Palmer sights the plaintiff serving customers |
| 04.44pm | Palmer sights the plaintiff working at the counter |
| 04.49pm | Palmer sees the plaintiff in his van arrive in front |
| 05.42pm | Plaintiff filmed by Palmer closing the shop |
| Saturday 29 July 2006 | Investigator – Debbie Palmer – Exhibit V and Investigator – William Gupanis – Exhibit X |
| 05.41pm | Palmer sees plaintiff arrive and takes film of him walking to the shop |
| 07.40am | Plaintiff lets person into shop, film taken |
| 07.42am | Palmer observes the plaintiff serving in the shop |
| 10.01am | Plaintiff is not sighted |
| 12.19pm | Palmer sights plaintiff in the shop working |
| 01.08pm | Palmer sights plaintiff in the shop working |
| 02.30pm | Gupanis arrives |
| 02.36pm | Both Palmer and Gupanis enter shop and take film |
| 03.00pm | Palmer leaves but Gupanis stays |
| 04.38pm | Plaintiff drives his van to the front of the shop |
| 04.36pm | Plaintiff leaves and is filmed doing so |
| Monday 31 July 2006 | Investigator – Debbie Palmer – Exhibit V |
| 06.43am | Plaintiff's car sighted in rear car park when Palmer arrived at that time |
| 07.51am | Film taken of plaintiff letting in a customer |
| 09.40am | Plaintiff left the shop and was followed that day and filmed doing various activities away from the shop by Palmer |
| 03.41pm | Plaintiff arrived back at the business at this time |
| 05.39pm | Plaintiff was filmed closing the shop |
| Friday 25 May 2007 | Investigator – Debbie Palmer – Exhibit V |
| 05.40am | Plaintiff arrives and is filmed |
| 06.21am | Plaintiff lets in male. This activity is filmed |
| 10.30am | Plaintiff not sighted |
| 03.00pm | Palmer leaves. Alternative investigator arrives but he was not called to give evidence |
| 03.45pm | Palmer returns |
| 04.21[pm | Plaintiff filmed in the shop |
| 05.19pm | Plaintiff's car driven from the rear to the front of the shop |
| 05.20 – 5.35pm | Film taken of plaintiff closing up and leaving the shop |
The plaintiff, in his evidence, said that his intention was to carry on the business until age 68 or perhaps 70.
In Graham v Baker (1961) 106 CLR 340 Dixon CJ, Kitto and Taylor JJ said (at 347):
"An injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss."
In CSR Ltd v Eddy [2005] HCA 64 the High Court said that:
"Although the damages recoverable in relation to reduced future income are damages for loss of earning capacity, not damages for loss of earnings simpliciter, those damages are awardable only to the extent that the loss has been or may be productive of financial loss. Hence the valuation of the loss of earning capacity involves the consideration of what monies could have been produced by the exercise of the plaintiff's former earning capacity."
Prior to 15 December 2007 the income earned by the plaintiff was from the conduct of the business of which he was the principal but of which the proprietor was Breton Holdings as trustee for the Trust. As I have said earlier, the Trust was a discretionary trust and the plaintiff derived an income from drawing a wage and from a distribution of profits.
It is not an impediment to the plaintiff's claim that the structure of the business was such that he was not the sole proprietor. I accept that the plaintiff was the effective principal and the ultimate beneficiaries of the profits for the business were the plaintiff and his family.
The question is whether the plaintiff's earning capacity has been diminished by reason of the injuries sustained by him in the collision.
I have already found that the inability of the plaintiff to undertake heavy lifting as he claimed was not caused by injuries sustained by him in the collision but was caused by his pre-existing degenerative conditions and ongoing changes. By reason of that finding the plaintiff's claim for diminished perimeter of employment must fail.
Even if I am wrong in my finding that there was not a causal connection between the plaintiff's inability to undertake heavy lifting and the injuries sustained by him in the collision, the claim for diminished perimeter of employment must in any event fail.
In Medlin v State Government Insurance Commission (1995) 127 ALR 180 Deane, Dawson, Toohey and Gaudron JJ said (at 186):
"The necessary causation between a defendant's negligence and a termination of a plaintiff's employment, in the sense that the termination of the employment is the product of an accident‑caused loss of earning capacity, can exist notwithstanding the fact that the immediate trigger of the termination of the employment was the plaintiff's own decision to retire prematurely. If, for example, it appears that a plaintiff's decision to retire prematurely would not have been made were it not for the fact that the effect of accident-caused injuries is that continuation of employment would subject him or her to constant pain and serious risk of further injury, it may well be that common sense dictates the conclusion that the plaintiff's decision to retire prematurely was a natural step in a change of causation which sufficed to designate, for the purposes of the law of negligence, the termination of employment as a product of those injuries."
At 187:
"In these circumstances the relevant question was not whether the plaintiff 'should' have continued in his university post or whether his decision to retire was not 'reasonable' but whether, in the context, of what was reasonable between the plaintiff and the defendant in determining the defendant's liability and damages, the premature termination of the plaintiff's employment was the product of the plaintiff's loss of earning capacity, notwithstanding that it was brought about by his own decision to accept voluntary retirement...
A plaintiff is not precluded from recovering damages for loss of earning capacity merely by reason of the fact that he or she voluntarily left employment which was unsuitable or in which he or she was unhappy. The continued availability of such employment will, of course, be relevant to the question of the existence and extent of any loss of earning capacity and the finding that a plaintiff's termination of employment was not the product of an accident-caused loss of earning capacity will necessarily preclude the calculation of damages on the basis that it was. Such a finding does not, however, mean that damages cannot be recovered for loss of earning capacity in relation to the period subsequent to the termination of that employment if there is in fact an accident‑caused loss of earning capacity which has been or will be productive of financial loss during that subsequent period."
In this case, the plaintiff was an employee of the business, albeit as its principal. There were a number of tasks which the plaintiff and others in the business performed. In evidence the plaintiff said that before the collision and after the collision butchers employed in the business undertook heavy lifting leaving the plaintiff to do the smallgoods and, primarily, to serve customers which was the role he most enjoyed.
The accounts for the business show that between the date of the collision and the settlement of the sale of the business in December 2007, there was no diminution in turnover or profit (taking into account superannuation contributions) and there was no evidence that the plaintiff's remuneration was diminished at all let alone diminished by reason of any change in the work undertaken by him referable to injuries sustained by him in the collision.
The plaintiff gave evidence that it was difficult to retain butchers. Some evidence was given by Mr Modrakovic to that end as well, however, Mr Modrakovic, who was not a butcher, was still the proprietor of the business when he gave his evidence in February 2009. He necessarily employed butchers in the operation of his business.
As a consequence any injury sustained by the plaintiff in the collision was not productive of financial loss and the plaintiff's decision to cause the business to be sold was not, in any event, a natural step in a chain of causation resulting in the sale of the business as a product of those injuries. On the evidence before me there was no reason why the business could not have continued to be conducted in the same manner as it was conducted before and after the collision.
The plaintiff has not made out his claim that his earning capacity was diminished.
As I have said, the plaintiff's stated claim for past economic loss has, as plaintiff's counsel conceded, not been made out. Although the plaintiff was off work for some weeks after the collision there is no claim made that any loss was suffered by him. For the reasons to which I have referred earlier with respect to the financial history of the business, that must be the case.
The plaintiff was, I find, injured in the collision. He suffered a soft tissue injury to his cervical spine, he suffered some dental damage and he suffered from some depression and anxiety referrable to that collision. The injury to his cervical spine aggravated pre-existing conditions with which he suffered. The existence of the pre-existing degenerative condition of his neck would have delayed recovery (Mr Kagi). As I have said the symptoms for the injury to his cervical spine was likely, I find, to have settled by no later than the settlement of the sale of the business. Any ongoing symptoms suffered by him are referable to the changes in the degenerative conditions with which the plaintiff suffered before the collision.
To that end, his claim, as I find it, is restricted to:
(a)General damages for pain and suffering and loss of amenities. The present limit for non-pecuniary pursuant to s 3(C) of the Motor Vehicle (Third Party Insurance) Act 1943 is $327,000. The plaintiff suffered a soft tissue injury to his cervical spine and suffered from depression and anxiety referable to the pain and limitations consequent upon that injury which was superimposed on the existing neck condition. In addition he suffered some injuries to his teeth which required some ongoing treatment. As I say, I find that the physical symptoms resulting from the cervical spine injury would have resolved no later than December 2007 and the symptoms of depression and anxiety with which the plaintiff suffered would, after that period, be referrable to the pain and limitations related to the changes in the pre‑existing degenerative conditions. The allowance determined according to the severity of the non-pecuniary loss, as it bears to the maximum amount to be awarded is, in my view, 12½ per cent, equating to $40,875. The threshold amount is $16,500 leaving the award under this head in the sum of $24,375.
(b)Past special damages unpaid – the amount claimed by the plaintiff is $13,508.73 in accordance with the plaintiff's schedule of special damages. As I understand it, save for the sum of $520, which the defendant contends has been paid (T717) the balance unpaid is $12,988.73. That sum is awarded.
(c)Future dental work being the fixing of a crown to tooth 14 in the sum of $1620 and restoration work to tooth 15 in the sum of $140 which totals $1760.
The plaintiff is entitled to damages totalling $39,123.73 made up as follows:
Non-pecuniary loss $24,375.00
Past special damages unpaid $12,988.73
Future dental work $ 1,760.00
Total$39,123.73
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