Kassem v Fuller
[2002] WADC 256
•11 DECEMBER 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: KASSEM -v- FULLER [2002] WADC 256
CORAM: WILLIAMS DCJ
HEARD: 28-29 OCTOBER 2002
DELIVERED : 11 DECEMBER 2002
FILE NO/S: CIV 862 of 2002
BETWEEN: MUSTAFA KASSEM
Plaintiff
AND
THOMAS ANDERSON FULLER
Defendant
Catchwords:
Damages - Assessment - 59-year-old part-time taxi driver - Mild injury to cervical spine
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Plaintiff entitled to judgment against the defendant in the sum of $6,000
Representation:
Counsel:
Plaintiff: Mr D R Clyne
Defendant: Mr J G Staude
Solicitors:
Plaintiff: Simon Walters
Defendant: John G Staude
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
WILLIAMS DCJ:
Introduction
As a result of the admitted negligent driving of the defendant on the 24 November 2000, the plaintiff alleges that he suffered personal injury when his vehicle was involved in a collision at the intersection of Graham Farmer Freeway and Loftus Street, South Leederville with a vehicle being driven by the defendant.
Liability is admitted and the matter proceeds before me by way of assessment of damages.
The plaintiff's evidence
The plaintiff was born on 2 May 1943 in Lebanon. He completed year 10 at school and left school at 16 or 17 years of age. After leaving school he assisted his father in a shop for a few years and then worked at the Arab Bank Ltd as a teller for three years. He came to Australia in 1969 at the age of 26 years.
Because he spoke only French at that time he went to night school to learn English. He obtained a job at Plaistowes for four weeks and then at the Swan Brewery for seven to eight months, both jobs being on the factory floor. He then went to Sydney where he worked on the factory floor for a company manufacturing outdoor furniture. He returned to Western Australia and between 1972 and 1976 worked as a trade's assistant in the North West.
He then returned to Perth and obtained a job working for the Il Travatore Club for three years. In 1979 he was hit by a taxi whilst crossing the road as a pedestrian. According to the plaintiff he broke both knees and was unable to work thereafter. In 1985 he went back to Lebanon and remained there for two years. He returned to Perth in 1987. He did not work between 1979 and 1992 when he went to Port Hedland and opened a pizza shop. That business was unsuccessful and he sold it after four months.
According to the plaintiff between 1979, when he was hit by the taxi, and 1995 he did very little work. Because of his knees he was unable to find employment.
In 1995 he obtained a taxi driver's licence and since that time has been working part-time two to three days per week as a relief driver.
According to the plaintiff a few months prior to his accident he asked the taxi operator, a Mr Bertagni, if he could work full-time. A few weeks prior to the accident he was told by Mr Bertagni that there was a driver leaving in December and that he could become full-time.
On 24 November 2000 at about 9.00 pm he had picked up a fare from the airport to drive to City Beach. As he was coming out of the Graham Farmer Tunnel he was hit on the left by the defendant and spun around. An ambulance was called and he was taken to Sir Charles Gairdner Hospital. He was x-rayed and given tablets. He was discharged that evening and went home and rested.
The following morning he visited a general practitioner, Dr Vinar. For the next two weeks he started feeling pain in his neck and left shoulder and found it very difficult to sleep. He was given Panadeine by Dr Vinar. He also had pain in his back and bruising to his right knee. The problem with his knee disappeared after a few weeks but his back pain is still present. It is not as bad as his neck pain.
According to the plaintiff his neck pain is getting worse, especially in cold weather. His neck movements are very limited. He is unable to rotate from side to side. He also has problems with flexion and extension.
This has caused him to become very depressed and a doctor has prescribed Valium for him.
Prior to his accident he was doing 12 hour shifts. Following his accident he could do no more than three to four hour shifts. The tablets that he was taking made it too dangerous. He ceased driving a taxi completely in June 2001. Since then he just walks morning and evening.
He married in 1979 and has five daughters, three of whom are still dependant, 17-year-old twins and a 16-year-old. Prior to his accident he intended to keep driving until age 70.
Dr Vinar sent him to see Dr Peter Anderson, a rehabilitation physician. He has been seeing Dr Anderson every month or six weeks. Following his accident he was originally on sickness benefits but is now on a disability pension.
In cross-examination the plaintiff was shown the defendant's summary of the plaintiff's discovered tax returns which indicates the following:
| FINANCIAL YEAR | SOURCES OF INCOME | AVERAGE GROSS INCOME FROM EXERTION | AVERAGE GROSS WEEKLY EARNINGS FROM EXERTION |
| 1995 | Sunset Pizza Bar | $2,694.00 | $51.81 |
| Centrelink | $8,327.00 | ||
| Interest | $117.00 | ||
| 1996 | Belmont Pizza Bar | $288.00 | |
| Centrelink | $6,581.00 | ||
| Business income (taxi driving) | $1,247.00 | $29.52 | |
| 1997 | Centrelink | $5,488.00 | |
| Taxi driving | $3,319.00 | $63.83 | |
| 1998 | Centrelink | $5,932.00 | |
| Taxi driving | $2,782.00 | $53.50 | |
| 1999 | Centrelink | $6,805.00 | |
| Taxi driving | $1,887.00 | $36.29 | |
| 2000 | Centrelink | $6,636.00 | |
| Taxi driving | $3,369.00 | $64.79 | |
| 2001 | Centrelink | $6,870.00 | |
| Other income | $380.00 |
The plaintiff was cross-examined in relation to these figures which he stated were correct.
It was his evidence that for the year ended 30 June 1995 he only worked at the Sunset Pizza Bar and earned $2,694 and the balance of his income was for unemployment benefits.
For the year ending 30 June 1996 he earned $288 from the Belmont Pizza Bar. At that time he was fit for work but not heavy work. He also earned $1,247 for taxi driving which he did during the last six months of that year.
When asked as to why he was not more successful in the taxi industry he stated that he was unlucky in taxi driving.
According to the plaintiff between 1995 and the date of his accident he never drove full-time. He first inquired about the possibility of driving full-time a couple of months before his accident because he was having difficulty managing financially.
During the period when he worked part-time he usually worked Monday, Thursday and Saturday night shifts from 6.00 pm to 6.00 am.
He accepted that for the year ending 30 June 2000 that his net income from taxi driving was $3,369 or $64.79 per week which worked out at about $21 per shift.
For the year ending 30 June 2001 his gross earnings from taxi driving was $3,012.
According to the plaintiff prior to his accident he was working approximately three days per week doing a 12 hour shift. Following his accident he tried to keep working and he continued to lease the taxi until 21 June 2001. At that time he stopped working completely.
The plaintiff accepted that following his accident he still did the same number of days but it was his evidence he worked less hours after the accident. He accepted that for the year ending 30 June 2001 his lease payments totalled $7,408.40 and that he worked for 104 shifts.
He was not aware of how much he could earn without that affecting social security allowances but he had allowances reduced because of what he did earn.
At the present time he receives $183 per week by way of a disability pension. His wife receives the same amount for a back problem. Both he and his wife each have a car. He smokes 15 cigarettes a day at a cost of $8.90 for a pack of 30 cigarettes. He agreed that the disability pension paid more than a Newstart allowance. He had been in a Homeswest house for seven years and pays rent of $97 per week. He receives no allowance for the children.
He agreed that Exhibit 5, which is a record of his lease payments between 1 July 2000 and 25 June 2001, indicate that he worked a total of 104 shifts. He worked 43 shifts prior to his accident on 24 November 2000 at an average of 2.05 shifts per week. After his accident until he ceased work he worked for 61 shifts or an average of 1.97 shifts per week. If a car was available he drove it. However after the accident he only worked three to four hours per shift and his income went down.
He agreed that his tax returns were a true record of his income and that what was on the tax returns was correct. He accepted that although he was not earning a lot of money he would have an idea of how much he earns.
He was shown Exhibit 1, and in particular, his taxation return for the year 2001, and accepted that the profit shown was $381.
He was then shown the records for the year ending 30 June 2001 which comprise Exhibit 3. He accepted that those documents showed he had a gross income of approximately $9,500 and lease payments of $7,756. He agreed that none of those figures appeared in his income tax return for the year ending 30 June 2001.
For the year ending 30 June 2000 he agreed that his income was $14,078, his lease payments were $9,132, his petrol was $1,427 and his net profit was $3,459.
Other evidence for the plaintiff
Mr Francesco Bertagni is the proprietor of Bertagni Automotive Engineering Pty Ltd which firm is involved in mechanical repairs and taxi management. He owns five taxis, all of which are leased out. He first met the plaintiff about 1990 and the plaintiff commenced driving a taxi for him in 1995 or 1996. He drove on a part-time basis as a relief fill in.
He recalled that in November 2000 the vehicle being driven by the plaintiff was involved in an accident. It was Mr Bertagni's evidence that some two months prior to the accident the plaintiff had asked him if he could become a full-time taxi driver. Mr Bertagni told the plaintiff that if anything came up he would have the right of first refusal. Once a driver became full-time it was compulsory for the driver to do six shifts of 12 hours per week. The rates for the lease of taxis varied with the particular shift.
Following his accident the plaintiff continued to drive a taxi for a period of time and then handed in his lease. He last drove a taxi on 25 June 2001.
According to Mr Bertagni the plaintiff said that he wanted to work full-time because he had a few bills to pay. That was the first time that he had asked to work full-time in five years of driving his taxis.
Some time later he had a second discussion with the plaintiff whereby he told him he had a full-time driver ceasing and the plaintiff would have the right of first refusal of that position.
The medical evidence
In a report dated 12 March 2001 Dr Matthew Bragg, the Registrar of the Department of Emergency Medicine at Sir Charles Gairdner Hospital, stated that he assessed the plaintiff at 21.40 hours on 24 November 2000. On examination he was alert, not distressed and his vital signs were stable. A thorough physical examination revealed:
"1.Mild anterior patella tenderness on the right knee with a small amount of prepatella fluid but no ligament laxity and full range of movement of the knee joint with no pain.
2.Tender posterior neck in the midline overlying the 3rd to 5th central spinous processes but with no muscle spasm or bruising. X-rays of the cervical spine were quite normal and there was reasonable active range of movement following x-ray clearance.
The clinical and radiological findings were consistent with soft tissue injuries of the posterior neck and anterior right knee.
Treatment consisted of simple analgesia only."
Based on his assessment Dr Bragg would have expected an early and complete recovery from these injuries. No follow-up in the Emergency Department was arranged and Dr Bragg had no further contact with the plaintiff and was therefore unable to comment on any current referred symptoms.
Dr Peter Anderson is a specialist in rehabilitation medicine. He saw the plaintiff for the first occasion on 30 May 2001 some six months after his accident. At that time the plaintiff was complaining of headaches and pain and stiffness in the cervical spine. Dr Anderson made arrangements to have a further x-ray of the cervical spine and an MRI scan of the cervical spine to clarify outstanding medico legal issues.
On 27 June 2001 Dr Anderson reported that the MRI scans showed that the plaintiff had degenerative change of moderate significance of the C4/5, C5/6 and C6/7 levels of the cervical spine with a central intervertebral disc bulge into the epidural space at each level.
Dr Anderson recommended that he obtain an infra red heat lamp and use a cervical traction set at home.
Dr Anderson reviewed him on 24 July 2001 when Dr Anderson noted that he was using the infra red heat lamp, cervical traction at home and was taking Tamazipan and Panadeine standard tablets in order to control his cervical symptoms.
Dr Anderson reviewed him on 20 August 2001 when he recommended that the plaintiff take leave from the taxi lease hoping that his condition would improve with the passage of time. I note that the plaintiff had in fact ceased taxi driving on 25 June 2001 some two months prior to this date.
Dr Anderson saw the plaintiff again on 6 November 2001 when he reported that he did not think the plaintiff was fit to drive a taxi at that time or in the foreseeable future.
On 28 November 2001 Dr Anderson wrote:
"I would support an application for the Disability Support Pension on the grounds that restriction of movement in the cervical spine attracts a 10 percent impairment rating with loss of approximately half the normal range. He has nerve root symptoms associated with the cervical pain and shoulder girdle pain, identified of moderate proportions on his investigations. These factors contribute a further 10 percent impairment rating.
I have not encouraged this man to resume employment for the reasons given in this letter. Alternative employment is not available to him, now at the age of 58. Application and granting of the Disability Support Pension within the association with the preclusion period is strongly recommended on the basis of this information."
On 11 October 2002 Dr Anderson reported that in his judgment the plaintiff's permanent impairment status remained at the 20 per cent level being 10 per cent on account of the stiffness of the cervical spine and 10 per cent on account of the cervical spine headaches and referred pain to his shoulder girdle and left arm. He could not see the plaintiff returning to his occupation as a taxi driver in the foreseeable future.
In cross-examination Dr Anderson accepted that the injury to the plaintiff's neck aggravated a pre-existing genetic condition. He also accepted that he had not seen the plaintiff pre-accident and did not see him until six or seven months after his accident and that he was dependent on what the plaintiff told him.
Dr Anderson confirmed that when he saw the plaintiff on 30 May 2001 and on 27 June 2001 that he made no note about the plaintiff's work. When he made his comments about the plaintiff's work position he did not know that the plaintiff was only earning $64 a week pre-accident.
Dr Gino Mastaglia is a physician in rheumatology. He first saw the plaintiff on 4 February 2002 at the request of the plaintiff's solicitor. At that time the plaintiff's concerns were of a painful neck, with stiffness and headache and back pain with stiffness to the point where he had not returned to work since his accident and was then obtaining benefits from Centrelink.
This, of course, is not the case because the plaintiff did in fact continue to work until 25 June 2001.
Dr Mastaglia was of the view that he was unfit for gainful employment especially as a taxi driver. It was at that time he considered that he had a permanent residual disability of the cervical spine measuring 35 per cent and similarly 35 per cent residual disability of the lumbar spine.
It was his opinion that the plaintiff had sustained a soft tissue injury to the cervical and lumbar areas, and aggravation of pre-existing asymptomatic spondylosis in the cervical and lumbar areas.
Dr Mastaglia again saw the plaintiff at the request of his solicitors on 22 October 2002. At that time the situation was largely unchanged. However he reassessed the plaintiff as having a 20 per cent physical permanent disability of the cervical and thoracic lumbar area. He described the injury as of a mild to moderate nature.
In cross-examination Dr Mastaglia confirmed that the plaintiff had complained of both neck and back pain. The plaintiff also told him that he had not worked since the accident but had attempted to go back for three to four weeks. He told Dr Mastaglia that he suffered low back pain following the accident.
The plaintiff also told him that the lumbar pain was constant and radiated into the buttocks and thighs.
He confirmed that his assessment was based on what the plaintiff had told him. The change from 35 per cent disability to 20 per cent disability was because he thought that the original assessment was excessive.
Dr Andrew C Harper is an occupational physician. He saw the plaintiff on 6 September 2002 at the request of the plaintiff's solicitor.
Dr Harper was of the opinion that the plaintiff had sustained a strain injury to the cervical spine superimposed upon pre-existing mild degenerative changes. He had also at that stage developed a dependency to Valium. At that time he was incapacitated for work as a taxi driver and his future work capacity was uncertain. Dr Harper considered that the plaintiff's condition was stable and did not require further treatment. He considered that the initial injury was mild and the residual disability of the cervical spine was mild.
In cross-examination Dr Harper stated that the plaintiff did not mention low back pain to him. The plaintiff told him that he was working three to four days a week prior to his accident and that after the accident he did not work. He said he had tried to return one month after the accident but it was too dangerous.
General findings
I am unable to accept the plaintiff as a witness of credit in these proceedings.
This is particularly apparent in relation to the plaintiff's evidence in respect to his earnings. For the year ending 30 June 2001 the plaintiff accepted that the document comprising Exhibit 5, being a record of lease payments for 1 July 2000 to 25 June 2001, was a true record of his leasing payments for that period. He accepted that he was not earning a lot of money but he also said that he would have an idea of how much money he was earning. He then stated that the tax return for the year ending 30 June 2001 was a true record of income. That document being part of Exhibit 1 showed him as having business income $3,012 and a profit of $381.
However a breakdown of Exhibit 3 shows an entirely different position. For the period commencing 1 July 2000 to 30 September 2000 his gross income from taxi driving was $2,689. His lease payments were $1,905. During that period he drove 27 shifts at an average gross takings of $99.93.
For the quarter commencing 1 October 2000 and finishing on 31 December 2000 his gross income was $3,000 and his lease payments were $2,385.60. During that period he drove 33 shifts at an average gross takings of $90.90.
For the third quarter commencing on 1 January 2001 and ending on 31 March 2001 his gross takings were $2,275 and his lease payments were $1,914. During that period he drove 26 shifts for an average gross taking of $87.50 per shift.
For the period beginning on 1 April 2001 and ending on 25 June 2001, being the last date on which he drove the taxi, his gross takings were $1,550 and his lease payments were $1,552.50. During that period he drove 23 shifts at an average gross takings of $87.39.
It is apparent that during that period his gross income was approximately $9,500 and his lease payments totalled $7,756.
When these matters were pointed out to the plaintiff he accepted that there must be an error in his tax return. That is clearly the case and the figures in the tax return appear to reflect the figures for the second quarter.
However I was unable to accept the plaintiff's evidence that he would not know how much his gross earnings from taxi driving would be to the extent that he would not know whether the figure was $3,000 or $9,500. That is in effect his evidence to me. If his gross earnings were $3,012, that is gross takings of approximately $58 per week. That would nowhere near cover his lease payments and in my view the plaintiff would know immediately that that was the position. However gross earnings for the year of $9,500 would amount to gross takings per week of $182. That is more than three times as much. I am unable to accept the plaintiff's evidence that he would not know whether gross earnings for the year were $3,000 or $9,500.
His lease payments for that year were $7,756 and had to be paid on each occasion prior to him taking the taxi out on a shift. In my view he must have known that he was at least clearing his lease payments when driving the taxi. On the figures shown from Exhibit 3 of gross income of $9,500 and lease payments of $7,756, there is a difference of $1,744 or an average of $33 per week. Even that figure would not be the net profit because there has been no amount for fuel deducted from that figure.
I also note that the figures above indicate that the plaintiff earned his highest gross earnings in the second quarter and did the most shifts during that quarter which is the quarter during which his accident occurred.
Furthermore, in my view, the plaintiff has been untruthful with his doctors.
When he saw Dr Anderson on 1 June 2001 and on 27 June 2001 he did not say anything about his work situation. When he did tell Dr Anderson about his work he said that he had not worked since the accident.
That is clearly not the case since he has worked until 25 June 2001.
Furthermore he told Dr Mastaglia that he had not worked since the accident but that he had attempted to go back to work for three to four weeks.
The plaintiff also told Dr Andrew Harper that he did not work after the accident. He had attempted to return one month after the accident but found it too dangerous.
Neither Dr Mastaglia or Dr Harper were treating doctors and both saw the plaintiff at the request of his solicitors. The plaintiff would have known that his visits to those doctors were to assist with his claim in respect to the accident. I therefore find that the plaintiff's answers to the doctors were made with the purpose of advancing the plaintiff's cause without regard to the truth of those answers.
A third area of inconsistency in my view is the fact that the plaintiff did not tell Dr Anderson that he had suffered an injury to his back. It was not until he saw Dr Mastaglia on 4 February 2002 that he complained about his back. When he saw Dr Harper on 6 September 2002 he made no complaint about a back injury.
Assessment of damages
The plaintiff claims damages for loss of amenities being pain and suffering and loss of enjoyment of life both past and future.
The plaintiff was born on 2 May 1943 and is presently aged 59 years. His accident occurred on 24 November 2000. At the time the plaintiff was a self-employed taxi driver on a part-time basis and Exhibit 5 would indicate that he was doing approximately two shifts per week.
The plaintiff alleges in par 4(a) of the statement of claim that he suffered soft tissue injuries to the cervical and lumbar spine and the right knee. Insofar as to the injury of the right knee is concerned, it is my finding that it resolved within a very short time. I am not prepared to accept that he suffered an injury to his lumbar spine. As I have said previously, he made no complaint in relation to his lumbar spine until he saw Dr Mastaglia on 4 February 2002, some 14 months after his accident.
I am not therefore prepared to accept that he suffered any injury to the lumbar spine.
I find that the plaintiff suffered a soft tissue injury to the cervical spine.
Following the motor vehicle accident the plaintiff attended at Sir Charles Gairdner Hospital and was not seen again at that hospital. It was the plaintiff's evidence that he attended a general practitioner but there is no report from any general practitioner before the plaintiff saw Dr Anderson and neither was any claim made for payment of medical accounts by a general practitioner (see Exhibit 7).
Thereafter he attended Dr Anderson who treated him conservatively with a heat lamp and heat bags. His attendances upon Dr Mastaglia and Dr Harper were at the request of his solicitor for the purposes of a report.
Dr Bragg at Sir Charles Gairdner Hospital expected an early complete recovery.
The plaintiff saw Dr Anderson between 30 May 2001 and 29 January 2002 on eight occasions. Since that time it would appear from Exhibit 7 that he has seen Dr Liu on 12 April 2002 and 17 April 2002.
I accept the evidence from Dr Harper that the plaintiff has suffered a mild residual disability of the cervical spine. I prefer the evidence of Dr Harper as to the plaintiff's condition to that of Dr Anderson and Dr Mastaglia. Dr Anderson was very defensive of his assessment of the plaintiff's condition during cross‑examination in that he was not prepared to directly answer counsel's questions. He tended to go into a lengthy explanation on each occasion to justify his position. Dr Mastaglia was happy to reduce his original assessment of a 35 per cent disability of the cervical spine and a 35 per cent disability of the lumbar spine to a 20 per cent disability of each on the basis that he thought the original assessment to be excessive. There was in my view no evidence that the plaintiff suffered an injury to his lumbar spine.
Pursuant to s 3C(2) of the Motor Vehicle (Third Party Insurance) Act 1943 I am required to assess non-pecuniary loss as a proportion determined according to the severity of the non-pecuniary loss of the maximum amount that may be awarded. The maximum amount that may be awarded for non-pecuniary loss at the present time is $240,000. The maximum amount may be awarded only in a most extreme case (s 3C(3)). I am of the view that the plaintiff's non-pecuniary loss should be assessed on the basis of 7½ per cent of a most extreme case. Seven and a half per cent of a most extreme case is $18,000.
From that amount I am required to deduct amount B (threshold‑deductible) which presently stands at $12,000.
It follows that the plaintiff is entitled to the sum of $6,000 for loss of amenities, being pain and suffering, loss of enjoyment of life, both past and future.
The plaintiff claims past economic loss and interest on past economic loss as follows:
"Prior to the date of the accident the Plaintiff earned $66.51 net per week from part-time taxi driving. As a result of accident injuries, the Plaintiff was absent from work from the date of the accident until 1 December 2000, a period of one week, and claims $66.51.
In addition the Plaintiff was to have started full-time taxi driving from 1 December 2000, one week after the date of the accident. As a result of the injuries suffered in the motor vehicle accident of 24 November 2000 the Plaintiff was unable to work full time as a taxi driver, but was obliged to reduce his hours and the number of shifts worked. The Plaintiff would have earned approximately $400.00 per week from 1 December 2000 to the date of the Trial or 99 weeks or $39,600.00. The Plaintiff claims this sum; less the amount he actually earned as a driver (or $380.00); $39,220.00.
The Plaintiff claims a total of $39,286.51 in past economic loss and interest at 6% or $2,357.19, or a total of $41,577.19 in past economic losses and interest."
With regard to the claim for the one week following the accident of $66.51, it is not the case that the plaintiff did not work during that week. The plaintiff's accident was on 24 November 2000 and Exhibit 5 indicates that the plaintiff worked on 27 and 30 November 2000 and again on 1 December 2000. That is at least as regular as he was working pre‑accident.
The plaintiff then claims on the basis that one week after his accident his earnings would have been $400 net per week.
In my view the plaintiff's past work history indicate that that is very unlikely to be the case. The plaintiff has a clear dependency on social security and did almost no work between 1979 and 1995. He obtained his taxi licence at the end of 1995. Thereafter he leased a taxi and the plaintiff's income is shown in his schedule previously set out in these reasons for judgment.
The plaintiff adopts these tax returns and they show very little income at all.
With respect to the income tax return for the year ended 2001, the plaintiff's business income was shown as $3,012 but the actual income was $9,500. As I have previously stated I am not prepared to accept that the plaintiff would not have known how much he was earning.
Exhibit 5 indicates that for the year ended 30 June 2001 the plaintiff did 43 shifts before his accident and 61 shifts following his accident. His weekly rate of shifts did not change.
When he saw Dr Anderson on 30 May 2001 and 27 June 2001 he did not say anything about his work. Exhibit 4 indicates that he cancelled his Australian Business Number and his goods and services tax registration effective as of 1 July 2001. He ceased work on 25 June 2001 and it was well after that time that Dr Anderson was asked if he could work as a taxi driver.
The plaintiff and his wife are each on a disability pension.
Looking at the plaintiff's work history between 1979 and the date of the accident, I find it most implausible that one week following the accident the plaintiff intended to move to full-time taxi driving involving six shifts a week of 12 hours a shift.
I am not prepared to accept the plaintiff's evidence on this aspect. Neither am I prepared to accept the evidence of Mr Bertagni on this aspect. In my view this evidence has been manufactured to support a loss of earnings claim.
Between the date of the plaintiff's accident on 24 November 2000 and 25 June 2001 when he ceased work the plaintiff continued to work the same number of shifts as he did pre-accident.
Between 1 July 2000 and 24 November 2000 the plaintiff worked 43 shifts, an average of 2.05 per week. Following his accident, between the date of his accident and 25 June 2001, he worked 61 shifts or an average of 1.97 per week.
In my view on those figures there is no evidence to support a loss of earnings claim.
In my view the plaintiff has simply concluded that he is better off going on to a disability pension and not working at all. He agreed that he received more by way of a disability pension than he received from Centrelink.
In my view the plaintiff has not established that he is entitled to any past loss of earning capacity.
The plaintiff claims future loss of earning capacity as follows:
"But for the motor vehicle accident the Plaintiff would have worked until the age of 70 years, earning approximately $400.00 net per week. The Plaintiff claims that loss; $400.00 net per week, multiplied by the 11 year multiplier (423.8) or $169,520.00, less 10% for contingencies, or a total of $152,928.00."
For reasons already stated when dealing with past loss of earning capacity, I am of the view that the plaintiff has not suffered any future loss of earning capacity and I do not propose to allow any amount under this heading.
The plaintiff claims future medical treatment as follows:
"According to Professor Gino Mastaglia's report of 4 February 2002, the Plaintiff will require monthly General Practitioner reviews to monitor his condition, renew prescriptions and to obtain advice and (supported by Professor Harper in his report of 6 September 2002) treatment of his Valium dependency at a cost of $45.00 per month. In addition, according to the medical report of Professor Mastaglia of 22 October 2002, the Plaintiff will require the continued consumption of analgesic, antidepressant and anti-inflammatory medication indefinitely (supported by Mr Peter Anderson's report of 11 November 2002). According to the report of Professor Mastaglia of 22 October and Professor Harper's report of 6 September 2002, the Plaintiff will also require a supervised exercise program and a pool member ship (sic) indefinitely; and according to Professor Harper, specific treatment for his drug dependency. Given that according to the Australian Life Table - 1996-98 the Plaintiff would have a further life expectancy of 20.99 years, the Plaintiff claims the following:
| Item | Cost | Replace | Weekly Cost (to first replace ment | Total Replace ments | Total (weekly x replace ments multiplier) | Replace ments + Original Item |
| Pool Membership | $450.00 pa | Annual | $8.65 | 20 | (8.65 x 50.7 x 20) = $8,771.10 | $9,221.10 |
| Supervised exercise program | $1,000.00 pa | Annual | $19.23 | 20 | ($19.23 x 50.7 x 20) = $19,499.22 | $20,499.00 |
| General Practitioner Reviews | ($45.00 x 12) $540.00 pa | Annual | $10.38 | 20 | $10.38 x 50.7 x 20) = $10,525.32 | $11,065.32 |
| Tramadol | $34.60 (for 20 - lasting 10 days) $1,262.00 pa | Annual | $24.26 | 20 | $24.26 x 50.7 x 20) = $24,599.64 | $25,861.64 |
| Diazepam | $12.45 (for 50 lasting 25 days) $181.77pa | Annual | $3.49 | 20 | $3.49 x 50.7 x 20) = $3,538.86 | $3,720.63 |
| Naproxen | $26.10 (for 28 lasting 28 days) $340.23pa | Annual | $6.54 | 20 | $6.54 x 50.7 x 20) = $6,631.56 | $6,971.79 |
| Drug dependency treatment | $1,000.00 (global) | NA | NA | NA | NA | $1,000.00 |
| TOTAL | $78,339.48" |
In my view this claim is not substantiated by the evidence.
In the first place Dr Mastaglia (not Professor as stated in the schedule) in his report of 4 February 2002 does not state that the plaintiff will require monthly general practitioner reviews to monitor his condition, renew prescriptions and to obtain advice and treatment of his Valium dependency at a cost of $45 per month. The most he says is that the plaintiff is to continue with Panadeine Forte two or three times a day and anti-depressant at night, indefinitely. The cost of these medications on the Centrelink benefits is $7.20 a month. Further, this is supported by Dr Harper in his report of 6 September 2002 where he says that the plaintiff requires specific treatment for his drug dependency, the cost of which would need to be assessed by his treating doctors. Dr Harper would recommend hydrotherapy ($400) and an exercise program with supervision ($1,000). He requires follow-up by his family doctor ($500). Dr Harper did not see an indication for invasive measures or further investigations.
In his report of 22 October 2002 Dr Mastaglia says that the plaintiff is in need of regular review by his general practitioners at least on a monthly basis. The evidence does not support this proposition and I do not accept it. In the two years since his accident the plaintiff has only claimed for two visits to a general practitioner on 12 April 2002 and 17 April 2002 (see Exhibit 7). Both of those visits were on Dr Liu.
Dr Mastaglia says that the plaintiff needs to continue using the heat pack and the traction kit at home. He can do that at no cost.
Dr Mastaglia says that he also needs an exercise program to involve walking, pool and even general weights program to try and improve muscle tone generally and also improve cardiovascular status. His cardiovascular status has nothing to do with his motor vehicle accident. As for the other matters it is clear that the plaintiff has lived a very sedentary life for many decades and is most unlikely to take up either a pool or a weights program. He has given evidence that he walks and there is no cost involved in that.
Exhibit 7 indicates that the plaintiff has claimed two visits upon a general practitioner. Exhibit 6, being a list of prescription dates, shows a handful of prescriptions over the last two years at a cost of $3.60 per prescription. The total cost appears to be about $60 to $70. This is another grossly exaggerated head of damage being claimed by the plaintiff. I would not allow anything under this heading.
Conclusion
It follows that the plaintiff is entitled to damages as follows:
Loss of amenities $6,000
Past loss of earning capacity Nil
Future loss of earning capacity Nil
Future medical treatment Nil
The plaintiff is entitled to judgment against the defendant in the sum of $6,000.
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