King v WesTrac Equipment Pty Ltd
[2003] WADC 126
•11 JUNE 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: KING -v- WESTRAC EQUIPMENT PTY LTD [2003] WADC 126
CORAM: HH JACKSON DCJ
HEARD: 3-6 FEBRUARY 2003
DELIVERED : 11 JUNE 2003
FILE NO/S: CIV 1316 of 2001
BETWEEN: STANLEY JAMES KING
Plaintiff
AND
WESTRAC EQUIPMENT PTY LTD
Defendant
Catchwords:
Negligence - Liability admitted - Assessment of damages - Neck and shoulder injury
Legislation:
Nil
Result:
Damages assessed in the sum of $282,257.66 plus a figure to be determined for past special damages
Representation:
Counsel:
Plaintiff: Mr B L Nugawela
Defendant: Mr D R Clyne
Solicitors:
Plaintiff: Chapmans
Defendant: Pynt & Partners
Case(s) referred to in judgment(s):
Linsell v Robson [1976] NSWLR 249
Purkess v Crittenden (1965) 114 CLR 164
Reynolds v Roche Bros Pty Ltd [1999] WASCA 141
Ta v Lucky Imports and Export Co Pty Ltd [2002] WASCA 65
Thomas v O'Shea (1989) A Tort Rep 8-251
Wade v Alsopp (1976) 10 ALJR 353; 50 ALJR 643
Watts v Rake (1960) 108 CLR 158
Case(s) also cited:
Nil
HH JACKSON DCJ: The plaintiff was born on 19 July 1955. On 17 March 2000 whilst operating machinery at Telfer Gold Mine operated by Newcrest Mining he was injured when a hose containing oil burst and he was struck by a window panel and sprayed with oil under high pressure from behind.
Trial commenced on the basis that both liability and quantum were in issue. On 4 February, after two days of trial, Mr Clyne for the defendant advised that the question of liability was now admitted. Thereafter and now the matter is therefore one for assessment of damages only. The hearing was protracted and disrupted by the late production of documents and the like. It might also be mentioned that the plaintiff's Chronology of Relevant Events, filed in the proceedings as required, does not mention the facts for example of the plaintiff's employment as a limousine driver or trades assistant although it does list a number of job application rejections.
Pleadings
The Statement of Claim pleads:
"8.As a result of the accident and the consequent injuries the Plaintiff suffers from residual disabilities and has been endured and continues to endure pain suffering inconvenience and loss of enjoyment of life.
Particulars of the Plaintiff's Residual Disabilities and loss of enjoyment of life
(a)Pain and discomfort in neck
(b)stress, depression irritability and anger
(c)inability to stand and or sit for extended periods
(d)loss of movement of neck
(e)difficulty performing tasks that require movement of neck
(f)reduced enjoyment of marital and sexual relations
(g)inability to engage in pre‑accident social and recreational activities.
9.As a result of the injuries sustained in the accident the Plaintiff has required and may require in the future, gratuitous assistance.
10.As a result of the injuries sustained in the accident, the Plaintiff has sustained past and future economic loss and loss of earning capacity.
Particulars of Past and Future Economic Loss and Loss of Earning Capacity.
(a)The Plaintiff is now unfit for the full range of his pre‑accident duties
(b)the Plaintiff has had to obtain alternative employment and has been restricted in the range of employment opportunities now open to him
(c)the value of the Plaintiff services to any employer has been severely reduced
(d)the Plaintiff has lost and will lose employer funded superannuation contributions
11.As a result of the accident the Plaintiff has incurred special damages."
Apart from denying the claim generally the Defence pleads as follows:
"7.The defendant says further that if, which is not admitted, the plaintiff is suffering residual disability, loss or damage as alleged in the plaintiff's statement of claim then such residual disability, loss or damage is caused by the plaintiff's underlying significant degenerative changes present at C5/6 and not the injury allegedly sustained by the plaintiff on the material date.
8.The defendant says further that if the plaintiff has or will suffer economic loss as alleged in the statement of claim, such loss is caused by:
aThe plaintiff's failure to adequately mitigate his loss by seeking or obtaining full time employment reasonably available to him, in vocations such as
limousine, taxi or courier driver or similar type employment or, after appropriate rehabilitation, his pre‑accident employment or similar type employment; or
bThe plaintiff's redundancy from Newcrest Mining in or around July 2002; or
cA combination of (a) and (b) above."
Plaintiff
The plaintiff completed year eight at school and worked as a roof tiler, and since 1976 in the mining industry as a quarry labourer, truck driver and shovel operator. He has operated a wide range of heavy equipment used in mining operations by a number of large companies. He commenced employment with Newcrest Mining in about January 1997 working on a fly in fly out basis doing 12 hour shifts twelve days in succession.
The plaintiff suffered from a back injury in 1997 from which he recovered. Nothing is said to arise therefrom. He has been found also to have been suffering degenerative change at C5/6 at the time of the accident.
At the time of the accident, he was sitting in the cab of a Komatsu 1600 excavator with a lap sash seatbelt on and was struck in the back of the head and neck by the rear window of the cab and thrown straight forward. The window glass was pushed out by oil from a hose behind it. He was covered in oil. He was shaken, his head throbbed and ached and he was taken to the first aid post where his neck was placed in a brace and he was given an injection. After he had been seen by a doctor he was taken by aeroplane and ambulance to Port Hedland where he remained for two days. X-rays were taken of his neck. He was in pain and given painkilling injections. He then came to Perth and saw his general practitioner Dr Shulman regularly for a period. He was referred to Dr Peter Silbert. He said he was in pain for some months such that he could not do things involving his shoulder, neck and head and he got little sleep. Dr Silbert referred him for an MRI scan, prescribed painkillers and referred him to a pain management specialist, Dr G Gee, who arranged massage and psychology consultations. Dr Silbert also arranged a cortisone injection at the C5/C6 level on 24 August 2000: see Exhibit 2. It produced little relief. He continued to have pain once or twice daily or
more in the neck area which shot to the head and behind the ear, across the right shoulder and into the right arm. That pain pattern continued up to trial. After sleeping the pain has gone down the arm to the fingers which tingle. The pain is also associated with about two headaches each week, lasting at least two hours each. At trial he was taking two to four Panadeine Forte and one Naprosyn daily or every two days.
The plaintiff at trial was living with his three children separately from his wife. Prior to the accident he was working away from home two weeks out of three. Whilst at home, he said, he did a lot of the housework to allow his wife a rest.
After the accident, he became moody and frustrated and their relationship commenced to deteriorate and arguments and bickering to develop. Because of the pain produced during sleep by her movement he asked her to sleep separately. He was unable to help with housework. In about June 2000, some three months after the accident after an argument during which he struck her for the first time, his wife told him she was leaving. Nearly a year later his wife moved back in, but he found her changed, more independent. She left again in October 2002. Because of headaches their physical relationship had ended.
The children are now 16, 15 and 12 years. His daughter helps a lot with washing. He has employed someone to mow the lawns at $15 each three weeks. He and the children share the vacuuming and cleaning of the house.
His employment with Newcrest Mining continued until July 2000 although he was off work during that time. On 13 July 2000 he returned for a two weeks work trial but later in July the mine shut down and he was made redundant.
During the work trial driving a truck the movement of his body produced pain. He worked pegging wooden pegs which was acceptable but travelling in vehicles on rough ground produced pain. He told his supervisor this. He received a final workers' compensation payout of $44,800 in February 2001.
After being made redundant he saw Dr Silbert and Dr Shulman and was certified totally unfit for work for a period. Later Dr Shulman provided a letter so that he could undergo work trials and he commenced to seek employment especially driving buses or limousines. A bundle of job applications is Exhibit 4. It shows that he sought work as a bus driver in Perth in March 2001. In July 2001 he commenced work with
Manhattan Limousines. The work is casual and part-time, between 10 and 15 hours per week in summer and four to eight in winter. Sometimes pain and the effects of painkilling medication make the work unacceptable. After an hour or so driving itself becomes uncomfortable.
In July 2001 he also obtained work for two weeks at Gonninan's in Bayswater as a trades assistant helping fitters. The work was not hard. In fact it lasted for 14 weeks during which he worked up to 50 hours per week. He said that at times his neck and shoulder ached. He consulted Dr Shulman who advised him to consider reducing his hours which he did. At the time the work was coming to an end and he gave it up.
The plaintiff has had physiotherapy since the accident at first twice weekly then weekly, at Ballajura Physiotherapy Clinic. Various fees are contained in a bundle of accounts totalling $8,242. After February 2001 they were paid for by the plaintiff. He also had massage arranged by Dr Gee until five or six months prior to trial. Both medical and massage accounts are contained in a Book of Paid Special Damages, Exhibit 3. Fees for medico‑legal reports are excluded from that exhibit.
Under cross‑examination by Mr Clyne the plaintiff agreed that he had returned for a work trial in July 2000 at Dr Silbert's suggestion and stayed two weeks until made redundant. On return Dr Shulman certified him unfit for work. In August 2000 he was advised by Dr Silbert to look for other work. Dr Silbert arranged a consultation with Work Pac who sought work on his behalf.
He agreed that in addition to the employment he had described in evidence‑in‑chief he had driven a limousine in late 2000 on two occasions at $20 per hour for a friend. He also agreed that he carried out an unpaid work trial driving a freezer truck for three days which did not lead to further work. He also earned "2 or 3 hundred dollars" selling Amway products in late 2000 and early 2001. In essence, the plaintiff's evidence is that although he had hoped to earn income from this source he had probably incurred a loss. Various money entries relating to his involvement are shown on credit card statements: Exhibit 7, and on Amway statements; Exhibit 8. The matter became one of disagreement between himself and his wife. A summary of the figures disclosed provided by the plaintiff's solicitors suggests a considerable loss but the plaintiff agrees some of the products purchased were for his own use.
Finally, he admitted that he had hydroponically cultivated three crops of cannabis plants, two plants at a time, at first saying it was for his own
use. However, he ultimately admitted having sold various quantities. While some pages are missing from his 2002 diary and other entries are crossed out the plaintiff accepts that legible entries show sales totalling some $4,000. Part of the plaintiff's 2002 diary is Exhibit 6.
He said his primary interest was in finding driving work around Perth. He agreed that whilst working as a trades' assistant in mid 2001 he had on occasions also worked part-time during the same evenings driving a limousine.
Diary entries in July 2001 suggest that the plaintiff made inquiries about employment as a nursery hand and as a factory hand, for example. A copy of the plaintiff's 2001 diary is Exhibit 9. He said he also inquired about such employment as Shire rubbish disposal, stores and deliveries. The plaintiff confirmed however that he had made no job applications during 2002 or January 2003.
He agreed that since the trades assistant work at Gonninan's ended he has not sought full-time employment as a trades' assistant or otherwise. He ascribed this to his physical limitations, application rejections and the need to be in Perth. He agreed that he is employable but limited in regards to certain work. He denied applying for jobs only in order to demonstrate that he could not get work. He could not work on minesites because of his neck. He was not trained as an instructor or clerical worker or to use computers. His education limits his employability. He also agreed that he was receiving a single parent benefit on the basis of an income less than he had earned. In re-examination he said that he had commenced on social security benefits in October 2002.
He agreed that when he sought work through Work Pac in June 2001 he had indicated that he sought casual work in the metropolitan area: see Exhibit 14. Work Pac specialises in labour hire involving fixed term and temporary work for trades people in the mining and construction industries predominantly on a casual basis.
He was questioned about various telephone calls summarised by Work Pac employees and said to have taken place between himself and them. However nothing of significance comes of that, I think, other than to confirm that during the relevant period, February 2000 to December 2002, the plaintiff was in contact with Work Pac concerning possible employment opportunities especially in the iron ore industry in and around Perth. The accuracy of the entries, when doubted by the plaintiff, was not proven.
Mrs L J King
Mrs L J King, the plaintiff's estranged wife, gave evidence essentially confirming that prior to his accident, on his weeks at home, he did the gardening and assisted with housework but that after the accident he complained of pain and headaches and that his ability to assist was greatly diminished as was their physical relationship. The plaintiff became moody and argumentative. She confirmed his evidence about their break-up and the subsequent family arrangements. She confirmed also that she was unhappy with the plaintiff's ventures selling Amway products and growing cannabis over about 12 months in a shed.
Mr M A Hearle
Mr Hearle, the mobile equipment, heavy-duty maintenance superintendent and manager of the Telfer Goldmine, gave evidence that the mine had closed in July 2000 although plans were in hand to re-open in 2003. He had inquired into and prepared a report on the accident. Given that liability is not now in issue it is not now necessary to review his evidence on that.
Medical evidence
Dr G B Shulman
Dr Shulman, a general practitioner, saw the plaintiff on 20 March 2000 and thereafter on numerous occasions. He had previously been the plaintiff's general practitioner. There is no relevant prior medical history referred to in Dr Shulman's evidence. His reports are Exhibits 12A-E. His clinical notes are Exhibit 12F and a number of medical certificates Exhibit 12G. On 14 March 2002 he reported:
"Mr King's condition is unchanged from what it was some months ago. I believe that it has now stabilised. …
Mr King's major problem is that of neck ache. This is associated with pain radiation to his right arm and hand, and headaches.
Mr King has constant stiffness and discomfort of his neck. If he turns suddenly, he may get a severe shooting pain to his right shoulder. After a severe exacerbation of neck ache, the 'neuralgia' in his right arm can persist for several days. He
suffers insomnia as a result of neck ache and right arm pain and numbness. He gets 2 or 3 headaches per week, which respond to strong analgesics (two panadeine forte). He has not had a migraine for some time.
On examination today, I noted the following with regard to Mr King's cervical movements:
Right and left lateral flexion approximately 50% of expected full range of normal movement (FROM)
Right lateral rotation, approx. 50% of expected FROM
Left lateral rotation, approx. 75% of expected FROM
Anterior flexion, and posterior extension, approx. normal.
I do not expect Mr King to show much further improvement, as it has been 2 years since date of accident. I do expect the onset of worsening osteoarthritis at an earlier age of that expected, perhaps at 60 years.
Ongoing medication will be that of strong analgesics and non-steroidal anti-inflammatory agents (NSAIDS) as needed. At present, he takes an average of 2 to 4 panadeine forte per day. At times he takes none, but at others, when associated with severe neck ache, he takes several.
Mr King still finds physiotherapy and massage beneficial. He does not abuse this, and only goes for treatment for severe exacerbations of neck ache, approximately twice a month. I believe that this management will continue for several years.
I would hope that Mr King would not have surgery in the future. However he is at a greater risk than others as his neck is more prone to injury or degeneration. This type of surgery would be that of laminectomy and fusion, costing in the region of $10,000 to $15,000 – a more accurate estimate can be obtained from an appropriate Neurosurgeon.
Panadeine forte costs about $20 for 20 tablets.
Naprosyn costs approximately $20 for 50 tablets.
Physiotherapy costs approximately $45 per session.
Mr King's current complaints as described above, result directly from injuries sustained in his accident of 17th March 2000, in the course of his employment as a plant operator.
Mr King is not worried or incapacitated by his lower back problem (of 1997). I believe that if it had not been for the neck injury of 17th March 2000, he would have been able to work to age 65 as a plant operator.
Mr King is now totally unfit to work as a plant operator. This unfitness is due to injuries sustained at work on 17th March 2000.
Mr King is able to do casual work as a limousine driver, as long as he works part-time. At present he is working weekends, and the occasional night. I am aware that on occasion he is not able to work due to neck ache. If he continues to work at this rate, I do believe he will be able to continue such duties till age 65.
Mr King is unable to do work above shoulder level, except with extreme difficulty and discomfort. He would find it very difficult to work in confined spaces, and do repetitive bending and lifting. He would need assistance to do heavy home duties such as gardening."
Earlier reports and notes confirmed that after the accident the plaintiff had been unfit for his previous employment and was suffering severe pain and headaches as the result of severe soft tissue whiplash with right occipital nerve neuropraxia and cervical facet joint strains. Facet joint injection and physiotherapy had provided only some temporary relief. The plaintiff had been referred to massage and to a pain management specialist and had undergone work trials. In mid 2001 he had worked as a trades' assistant and coped with extended hours. Dr Shulman said he had discussed this with the plaintiff and together it was decided that as the plaintiff was suffering degenerating symptoms that work should cease. The plaintiff had also told Dr Shulman of his work driving limousines and selling Amway products. In August Dr Shulman assessed the plaintiff as fit to work part-time for 20 hours per week at not heavy work. In October 2000 he thought the plaintiff could work full time driving a limousine or a truck other than a heavy truck. Dr Shulman doubted the assessment made by Dr P Connaughton in May 2002 that the plaintiff could be rehabilitated to full time work operating a shovel or excavator in a minesite.
Dr P L Silbert
Dr Silbert, a consultant neurologist, saw the plaintiff on referral from Dr Shulman on 8 April 2000 and thereafter on several occasions until 27 March 2001. His reports are Exhibit 10 and a bundle tendered as Exhibit 10A. After reviewing his earlier reports and other reports and certificates he summarised the position in Exhibit 10, dated 24 April 2002:
"Mr King was referred by Dr Shulman, and reviewed initially on 8 April 2000. His symptoms at that review related to the work incident of 17 March 2000. He stated that he was injured when a hydraulic hose blew out on the excavator that he was driving. Oil under high pressure blew out the window behind his feet, knocking him on the right occiput, with the window fragments then going forward to break the front windscreen in view of the significant force involved. He was stunned, but there was no loss of consciousness.
Initially following the incident he had upper cervical discomfort, and significant bruising. I reviewed him in view of ongoing right upper cervical discomfort, which radiated to the occiput, and mastoid region. There was associated cervical tightness, and at times this spread to the left side. He had an associated generalised pressing muscle contraction headache and poor quality sleep with vague numbness involving the fourth and fifth digits.
At my initial review I noted focal tenderness over the right C2/3 facet joint, with reduced sensation in the distribution of the right greater occipital nerve. Cervical spine range of movement was about 75% of normal in all directions.
On the basis of that assessment, I felt that he had a "whiplash type injury" to the right upper cervical spine, but in addition from the direct trauma there was a neuroptaxia (bruising) involving the right greater occipital nerve. I thought this was contributing to his pain and sensory disturbance, with dysaesthesic symptoms.
I recommended that he continue with physiotherapy, and take Amitriptyline 10mg nocte.
At review on 13 April 2000, his muscle contraction headaches had resolved, but he had ongoing right greater occipital neuralgia. In view of daytime sedation, I reduced his Amitriptyline.
At review on 28 April 2000, he had persisting focal discomfort involving the right greater occipital nerve. He described symptoms of a tingling sensation involving the right side of his tongue with certain neck movements, and I explained to him that this relates to the neck tongue syndrome of Lance, which relates to proceptive fibres destined for the tongue, communicating with the second cervical nerve root. The plan was for him to continue with physiotherapy treatment for these.
At review on 12 June 2000, his cervical symptoms had continued, but his right arm ache had become more prominent. We discussed various work issues, and I arranged for a cervical MRI scan.
At review on 21 August 2000, I noted that the cervical MRI scan demonstrated disc degeneration at the C5/6 level, with moderate central canal spinal stenosis. There was a slight retrolisthesis at C5 on C6, with slight flattening of the cord. A smaller disc bulge was present at the C6/7 level.
Clinically at the review on 21 August 2000, I noted tenderness over the right C5/6 facet joint, and felt that symptoms at this level explained most of his lower cervical symptoms as opposed to the upper cervical symptoms which were referred from the C2/3 facet joint, and right greater occipital neuralgia.
I arranged for a C5/6 facet joint and at review on 6 September 2000, noted that there had been only about a 10% benefit, but that the pain was initially aggravated, confirming that was his symptomatic level. I noted that he had a good work ethic, and was anxious to return to the workplace.
At review on 27 September 2000 his cervical and right arm discomfort continued. I referred him to Dr Gee regarding any place for more invasive treatment (such as an epidural), and he was initially treated with massage and exercise, with reasonable symptomatic control but ongoing symptoms.
At review on 22 January 2001, his headaches were more throbbing, and generalised. I felt there was probably a vascular component, although there was a cervicogenic contributor to the onset. He was given a trial of Inderal, with some improvement in his vascular headaches. He also reported a benign vascular sexual headache, which is commonly seen in healthy individuals, and was considered unrelated to his work incident. A cranial MRI/MRA was arranged, and considered to be normal.
3. What were the findings on examination?
The most notable findings at the initial examination were of focal tenderness over the right C2/3 facet joint, and over the right greater occipital nerve. Reduced sensation was noted in the distribution of the right greater occipital nerve, consistent with a neuropraxia (bruising) injury to the nerve, most likely on the basis of direct trauma. He had more diffuse tenderness over the right cervical musculature, but at subsequent evaluations had more focal tenderness over the right C5/6 facet joint.
4. Were your findings consistent with his complaints?
Yes. On all occasions Mr King was very genuine in his presentation, and his clinical symptoms were consistent with the imaging and examination findings.
5. Diagnosis:
As a result of the work incident of 17 March 2000, Mr King sustained a whiplash type injury to the cervical spine.
He sustained an injury to the right upper cervical spine facet joint (C2/3), with direct trauma to the right greater occipital nerve resulting initially in a neuropraxia. The sensory disturbance in the distribution of the greater occipital nerve has subsequently resolved, but he has persisting dysfunction of the right C2/3 facet joint, which predisposes him to right sided cervicogenic headaches.
The right-sided cervicogenic headaches are a contributor to vascular (migraine) headaches, although the migraine headaches themselves represent an inherent tendency. This is best interpreted as a further precipitant of migraine, just as sleep deprivation and bright sunlight can precipitate migraine in some patients.
His other injury was to the C5/6 segmental level. He has right C5/6 facet joint dysfunction. It is noted that he had C5/6 spinal stenosis on his MRI scan, with disc degeneration and retrolisthesis at that level. The significant degenerative changes were likely to be pre-existing, but rendered symptomatic by the whiplash type injury.
6. Prognosis:
Mr King will have an ongoing tendency to headaches, both cervicogenic, migraine and muscle contraction headaches. This would be associated with right upper cervical discomfort, relating to his right C2/3 facet joint dysfunction. This tendency will persist.
He will have ongoing right mid-lower cervical discomfort relating to the right C5/6 facet joint, which relates to symptomatic segmental problems at that level. This is likely to persist and slowly progress with the passage of time, primarily due to progression of underlying degenerative changes.
7.Given your findings at last examination, are you of the opinion the claimant at that stage was totally and permanently unfit for his pre-accident duties?
Yes. Mr King's previous employment was driving excavators on uneven ground. In view of his cervical discomfort he would be unable to return to this type of activity. At one stage during his rehabilitation he was driving a truck for prolonged periods, and found this resulted in cervical discomfort. Throughout his evaluations, I was impressed with his work ethic and desire to return to employment.
8.Do you consider the claimant could return to such duties with further (and if so what) rehabilitation or work hardening?
With his underlying C5/6 segmental problems (which are in part degenerative, but were activated by the work incident of 17 March 2000), I do not feel that even with work hardening he would be able to return to his pre-accident duties driving an excavator. The right upper cervical problems (C2/3), would also pose a restriction on returning to those work duties, as the irregular ground and tendency to be jolted in the excavator cabin would be likely to render his cervical problems symptomatic.
9.In your view, is the claimant fit for full time work in his current occupation as a limousine driver?
At the time I last reviewed Mr King in early 2001, I would consider him fit for full time employment in his current occupation as a limousine driver.
10.In your opinion, what other occupations would the worker be fit for given his experience and symptoms. Specifically is there anything preventing him from retraining as a plant operator/trainer?
I am not specifically aware of the work environment if he were to retrain as a plant operator/trainer, but he may be able to work in this capacity. He would probably have difficulty working as a plant operator as his employment, as it involves frequent neck movement and turning …
11.Are there any non accident related injuries or conditions from which the claimant suffers which are likely to impact on his capacity to perform his pre-accident duties in any event.
Mr King has spinal stenosis, but was asymptomatic for this at the time of the initial work injury. Whilst it is possible that this could have progressed with the passage of time, there is an equal probability that he would have been able to work till 65 years of age without being symptomatic from this."
Giving oral evidence Mr Silbert explained in more detail a number of his medical findings. He has not seen the plaintiff since 27 March 2001.
He agreed that the plaintiff's restricted range of neck movement could be at least partly the result of pre-accident degenerative change. However that change had both been rendered symptomatic and accelerated by the accident.
At first Mr Silbert had been optimistic that the plaintiff could return to his pre-accident employment but that had proven to be wrong. In October 2000 he had thought the plaintiff was then able to work as a truck or bus driver or chauffeur. In March 2001 he noted that whilst driving a truck for prolonged periods the plaintiff had suffered cervical discomfort. Driving heavy equipment on uneven ground on mine sites involving unpredictable jerking, bouncing, whiplash type movement was consistent with the symptoms the plaintiff had described and now inappropriate for
him. He had suffered significant deconditioning since the accident as well as the accident injuries themselves. He would not be passed in an occupational physical examination and his potential job prospects and insurability would therefore suffer. He would not expect the C2/3 condition to change; the C5/6 one will degenerate.
Dr P A Connaughton
The defendant call Dr Connaughton, an occupational physician, who saw the plaintiff for medico-legal purposes on 12 May 2000 and 2 May 2002. His reports are Exhibits 13A and 13B. Dr Connaughton had previously reviewed the plaintiff in 1997 and thereafter over a low back claim which was aggravated in September 1998.
On 1 June 2000 he reported:
"HISTORY
At about 3.00pm on Friday 17 March 2000 he was operating a 1600 excavator. He was just starting to lift the bucket of the excavator when suddenly 'my head was in my lap'. He did not know what had occurred at the time but now knows that a 10 mm hydraulic hose broke, oil struck the rear window of the excavator and dislodged it such that it came forward and hit the back of his head and neck. The front and side window were also smashed.
He does not think that he lost consciousness but said that he was 'stunned'. He does not however recall hearing any bang associated with the window coming out of place, and does not actually recall it striking his head. That history suggests the possibility of a very brief loss of consciousness.
There was oil everywhere within the cab, and of relevance he initially thought that it was blood. He immediately shut off the machine.
He felt 'like jelly' and noted pain in his head and neck. He was taken to the Medical Centre and said that he was 'drifting in and out'.
MANAGEMENT
He was flown by RFDS to Port Hedland. X-rays were taken and he was given medications. He was kept in for two nights and then returned to Perth.
Since then he has had physiotherapy second daily. He feels that has been of significant benefit and that it has particularly decreased the feeling of pressure in the head and neck.
He has been seen by Dr Peter Silbert, consultant Neurologist. He is also under the care of his GP, Dr Shulman.
He has been given home exercises by the Physiotherapist.
Medications included Endone ½ at night, Naprosyn 4 or 5 per day and Tramal. He takes 5 mg of Amitriptyline at night.
He has been advised to continue with the physiotherapy.
REHABILITATION
He has been referred to Work Pac. His doctor has suggested that he perform alternative duties in Perth for four hours per day. He said that he has been told that nothing is available. He is keen to perform some restricted duties however.
CURRENT SYMPTOMS
The left side of his neck feels quite good but it is not 100%. He has pain in the right side of the upper neck – describing a needle like pain on right rotation which can shoot up to the rear of the head and across the neck, and sometimes radiates to both eyes. That can occur once a day, but depends on activity and movement.
He has noted a numb feeling and sharp pain on the inside of his mouth and tongue on the right about 30 seconds after the sharp pain in his neck. That can occur six times a day and last up to 5 minutes. That has been diagnosed as the 'neck-tongue' syndrome by Dr Silbert.
He finds that he can't sleep on his right side because he can have numbness on the right side affecting the 4th and 5th fingers, and rarely on the left side.
He previously had throbbing when he tried to sleep on his back, and pain on rolling over-but that is less frequent now.
Overall he thinks he is about a third improved compared to March.
On direct discussion about sleep disturbance he said that previously he was awake the whole night, but that has decreased on his current medications. He does not report having any nightmares but said that he thinks about the accident quite a lot particularly when he is beginning to doze off. He has thoughts about what could possibly have happened to him – for example either 'losing my head' or his arm, depending on which way the rear windscreen of the vehicle may have broken. He also said that he can still recall the smell of the hot oil on him. He was initially very anxious at the time when he thought he was covered in blood before he discovered it was oil.
He does feel that he will continue to progressively improve however.
EXAMINATION
On the day of review he reported having increased symptoms because he had driven through traffic to my appointment. He finds that driving for more than about 15 minutes can aggravate his symptoms.
He also uses a TENS machine.
He related the history clearly and made a good effort on testing the range of movements.
He indicated maximal symptoms along the right side of the neck, particularly over the right C2/3 facet joint. Neck movements were moderately restricted with maximal pain on right rotation to 40 degrees, right lateral flexion and on extension to three quarters normal range. Left rotation was 50 degrees, and forward flexion was to 2 cm less than the full range – with some pulling on the right.
Examination of the colour, temperature, pulse and reflexes in both upper limbs was normal. He had a normal range of movements in all of the joints, except for the right shoulder
reporting some twinging on abduction between 140 and 160 degrees and flexion to 160 degrees. On the left he could abduct and flex to 160 degrees. Shoulder heights were equal and the muscle bulk was full.
He was wearing a TENS machine with the leads at the base of the neck. There were signs of previous taping of his upper neck.
X-RAYS
He did not bring his x-rays with him.
DIAGNOSIS AND COMMENTS
…
He has sustained a soft tissue injury to the back of the head and the cervical spine – specifically with pain arising from an injury to the right C2/3 facet joint. His symptoms and clinical presentation is consistent with the history and clinical findings. Regarding his referred symptoms to the mouth and tongue Dr Silbert has diagnosed the 'neck-tongue' syndrome.
He reports that there has been significant improvement in his condition, however he still has a significant level of symptoms particularly on neck rotation, and driving is limited. He is therefore not fit to return to site to work as a Plant Operator – as he would not cope with those activities. I think it would be beneficial for his rehabilitation in the long term if it was possible to identify some suitable alternative clerical or administrative duties for him in Perth.
I think it is important that he continues to have further review by Dr Silbert. If symptoms do not continue to progressively improve then one option would include a cervical facet joint block. I think it is reasonable that he continue with physiotherapy and gentle stretches and exercises. My approach would be to progressively decrease the frequency of physiotherapy as his self-management activities increased.
He should maintain general cardiovascular fitness by walking for example.
He has some anxiety associated with the nature of the accident and his concerns at the time – and I suggested that he is reviewed by a Clinical Psychologist for some counselling. He was receptive to that suggestion and I suggested that he discuss that with his GP.
…
Regarding prognosis it is my impression that his symptoms will only slowly decrease over time and that it may be many months before he is able to gradually re-introduce all of his pre-accident plant operating activities – because of the vibration and neck rotation which is part of that work. In addition his lumbar symptoms, following his injury in April 1997, were relatively slow to decrease, and he later reported that they had not completely resolved.
In reply to your specific enquiries –
1–5The history and clinical findings… are consistent with the nature of the injury….
6.He has made a partial recovery, based on his reporting of symptoms
7.I am not aware of any underlying pathology.
8, 9, 10.As indicated above he is not fit for his full time normal duties – but could at least perform some part time administrative or clerical duties for four hours per day.
11.I expect that he will eventually return to full time plant operating work.
12.It is too soon to assess any permanent disability.
13.Regarding prognosis I think his recovery is likely to be relatively slow, and it is possible that in the long term he will be left with a degree of ongoing and variable right neck discomfort."
On 2 May 2002 Dr Connaughton wrote a report following a further review of the plaintiff that day.
"Since I saw Mr King almost two years ago he reports –
(a)He has been under the care of Dr Peter Silbert, Neurologist and Dr Geoffrey Gee, Pain Specialist. He thinks it is about six to eight months since he last saw them. He had an MRI scan. He had a right C5/6 facet joint injection in August 2000 – but that was of no benefit.
(b)He said that in conversation with his Specialists the option of surgery was mentioned. He thinks it is possible that he might need surgery. He would like the neck "fixed". He has not however seen a Surgeon – and I would understand there are no actual plans for referral or other treatments such as facet joint injections.
(c)He sees a physiotherapist weekly. It was previously twice a week but he decreased that about three months ago. He reports transient benefit from the physiotherapy treatment for one or two days but his symptoms then slowly return.
(d)He has a home gym and lifts some light weights for exercise about three times a week.
(e)If his symptoms are bad he takes Panadeine Forte. He estimates averaging perhaps between six and twelve per week and a similar amount of Naprosyn. He is on no other medication and reports that he is otherwise in good health with no other medical conditions.
SYMPTOMS
He said that 'nothing has changed very much" in the past two years. He thinks that he may in fact be a little bit worse. He notes stiffness particularly in winter.
He reports different symptoms including –
(a)Sharp pains on the right side of the neck on right rotation which can radiate up to behind the right ear and to the right arm – he indicates the middle of the right trapezius and also the scapula. That occurs on a "regular" basis, estimating ten to twelve times a day. He can have heaviness at the base of the neck or in the eyes.
(b)A 'pretty constant' uncomfortable or aching feeling affecting the right neck, shoulder girdle and upper arm.
(c)At night he wakes up two or three times a night and the referred pain extends as far as the 4th and 5th fingers on the right.
FUNCTION
I had a degree of difficulty clarifying his level of function. Since July 2001 he has been driving a limousine part time. He averages ten to fifteen hours per week. They are new cars and he is 'not bad' when driving. He has to turn his upper body when he wants to rotate to the right.
He reports that he cannot do any heavy work or continuous work above shoulder height. He couldn't swing a shovel or prune overhead. He can do some light weeding. He can go shopping.
He is 'wary' not to aggravate his symptoms.
He manages his 16 year old son's football team. They train twice a week and play on the weekends – but it is a managerial role rather than physical.
REHABILITATION AND CLAIM ISSUES
His rehabilitation was previously via Work Pac. He had a graded return to work assisting the surveyors. He was unable to drive trucks. The Telfer Gold Mine however ceased production in July 2000.
He finalised his Workers' Compensation claim which was paid out about a week or so before HIH went into receivership.
…
He said that he applied for a lot of jobs and got a lot of rejections because of his history of a Workers' Compensation claim and he has been told that 'liability' was too great. He applied for work as a Transperth bus driver but was rejected. He said that he has not applied to mining companies because he doesn't want to burn his bridges. He would hope to get his neck 'fixed' and also to 'get the all clear' first.
He has 25 years experience operating machinery in the mining industry. He feels that he is unable to return to mining work.
I discussed with him the duties of an excavator or shovel operator. He has experience operating shovels and excavators – he worked for four years at Paraburdoo, five years at Mt Newman and five years at Telfer. He has operated P & H and Komatsu shovels. He said he would do that if he could but he doesn't think he would be offered those jobs because of 'liability' issues.
EXAMINATION
On the day of review he reported having his average level of symptoms. He had not taken Panadeine Forte since the preceding day or Naprosyn for a couple of days. He had a noticeably jovial, chatty demeanour.
He indicates symptoms to the right at C5/6 and C2/3 and also over the upper scapula. His height is 171cm and weight 91kg.
On examination of the hands and arms the colour, temperature, pulse, reflexes, muscle bulk and joint movements are normal. The right forearm circumference is 4mm greater than the left, consistent with right-handedness. The reflexes are symmetrical. I noted some moderate callusing and ingrained dirt on the left thumb more than the right.
He has a full range of left shoulder movements but reports some tingling in the left trapezius on full flexion and a pushing feeling in the right neck on full abduction.
On testing right shoulder movements he has quite a good range however he reports some symptoms on every test. On flexion he reports pain in the right side of the neck, on extension, soreness in the right trapezius, adduction is to 165 degrees with pushing on the right side of the neck. He has trapezius symptoms on crossed adduction and also on internal rotation.
He is noticeably cautious on formally testing neck movements – and is somewhat more restricted than on casual observation. He tends to exclaim on some tests – for example right rotation, lateral flexion and extension. He reports a sharp right-sided pain on right rotation between 30 and 40 degrees, lateral flexion
to 20 degrees and extension to only a third normal range. On left rotation he reports right sided pulling from 30 to 45 degrees and on lateral flexion to 25 degrees. Forward flexion is to three quarters average range with central pulling between C1 and C7.
The shoulder heights are equal with good muscle bulk.
X-RAYS
I enclose a copy of the report of the MRI scan of 22 June 2000 – indicating minimal retrolisthesis of C5 on C6 with moderate disc bulging and a broad based central and right paramedian disc protrusion causing moderate central spinal stenosis. There was also mild to moderate disc bulging and C6/7 with a right posterolateral annular tear and shallow disc protrusion but no foraminal narrowing.
DIAGNOSIS AND COMMENTS
In summary Mr King reports ongoing pains in the right neck and shoulder girdle with referred symptoms to the right upper limb as outlined above.
When I previously saw him in May 2000 clinically I felt that pain was mainly arising from the right C2/3 facet joint. The MRI scan however reveals changes at C5/6 and C6/7 – and it is probable that a component of his symptoms is resulting from one or both of those disc changes at C5/6 and C6/7. There is however no clinical indication of radiculopathy – and in my view it is most unlikely that surgery would be recommended.
When I saw him two months after the injury he estimated that he had improved by about a third. Today he estimates that there has either been no improvement or he feels a little bit worse. I would have expected gradual or progressive improvement in symptoms and I have some difficulty in explaining his reported lack of improvement. As noted he was somewhat cautious on some aspects of the clinical examination.
With regard to management it is not my view that the regular physiotherapy is of any lasting or overall benefit. It is appropriate that he continues with regular exercises. Other treatment options would include –
(a)A trial of low dose anti-depressants at night – which can assist with referred symptoms and sleep disturbance.
(b) A trial of a soft collar at night.
(c) Consideration of a facet joint black at the C2/3 level.
Regarding his rehabilitation and fitness for work in my view it is unfortunate that the Telfer Gold Mine closed – because otherwise the graded return to work programme would have continued. We had previously been successful in rehabilitation following his earlier low back injury. I believe that the ongoing unresolved claim issues will tend to have an adverse effect on him returning to work in the mining industry. It is my view that he could be rehabilitated to full time operation of a shovel or excavator on a mine site – given the ergonomics and work demands of those jobs. He has extensive mining experience and in my view it is a reasonable, achievable goal. The assistance of a rehabilitation provider could be considered. I would not initially recommend that he return to some other positions however – such as operating for lifts, loaders or bulldozers.
He is fit to continue work as a limousine driver and could work full time.."
In evidence–in–chief Dr Connaughton said he had had difficulty establishing with the plaintiff his level of activity and capacity. He had not been told of the plaintiff's work as a trades' assistant, which was important and would have reinforced Dr Connaugton's opinion. Dr Connaughton had spent time at the mine and was familiar with the machinery involved. He had spent time in the various machines whilst they were operating, as part of his work as an occupational physician. His conclusion that the plaintiff would be able to return to his previous employment was based on the type of injury, passage of time, symptoms, clinical and X-ray findings, work involved and "importantly" the plaintiff's prior work experience. He expected that there would have been significant improvement over two years, given that the plaintiff reported significant improvement over the first two months. The natural history of neck injuries suggests that after two years whilst the plaintiff might have residual symptoms change would be expected. Passive physiotherapy is not however, effective in the long term, save for limited temporary relief of symptoms.
Cross-examined Dr Connaughton said that he initially saw no reason to doubt the plaintiff's accuracy in reporting function and symptoms but that on the second visit he was concerned by a number of factors including differences between the range of movements on formal examination compared to casual observation. He did not believe that initially he had been unduly optimistic. He found it significant that it had been some 8 months since the plaintiff consulted specialists, his medication use and that he was guarded or cautious on examination. He stressed that the plaintiff's duties as a plant operator at Telfer were not limited to operating shovels and excavators but included larger equipment including loaders. Numbers of such workers, some with more significant injuries, had been fully rehabilitated as had the plaintiff following his earlier injury.
Other Medical Reports
A report from Ms F Kromhout, physiotherapist, dated 1 May 2002was tendered by consent: Exhibit 15. It reads:
"Stanley King has been attending Physiotherapy Clinic since a work related injury which occurred on the 17/3/2000. He presented to the clinic on the 27 of March complaining of constant central cervical pain with intermittent headaches and intermittent upper and mid thoracic pain. He also had a sensation of tingling on the postero-lateral aspect of both arms to the tips of his fingers bilaterally. He was reporting intermittent blurred vision and nausea at the time of the accident. He reported that in the initial stages that sitting or maintaining a posture for more than 10 to 15 minutes aggravated his symptoms significantly.
Stanley has progressed through rehabilitation and numerous treatment techniques. At the present time Stanley is attending at Ballajura Physiotherapy Clinic for one treatment of physiotherapy per week with a massage every 2 to 3 weeks depending on his symptoms. Stanley will consistently attend and complain of pain extending from the cervical spine to the supra clavicular region and down the postero-lateral aspect of his arm. He is also now experiencing pain referring down the right side of the cervical spine down towards the medial scapular border. Stanley always reports a sensation of heaviness and 'fuzziness' within his vision. He improves with physiotherapy treatment and is able to gain relief from the
pressure, blurred vision and pain. Stanley benefits significantly also from massage due to the tension and tightness that develops in all muscles around the cervical and thoracic and lumbar region.
Stanley is still extremely limited in rotation to the right and experiences sharp jabs of pain with rotation to the right and extension and retraction based movements. Stanley will continue with physiotherapy with massage therapy and continue with his exercises in order to maintain symptoms. He is slowly worsening with the symptoms that he presents to myself. He is obviously getting increased pain from the injured level of C5/6 in his cervical spine."
Submissions
For the plaintiff Mr Nugawela argues that the plaintiff should be regarded as both a credible witness and one who has established both loss of earning capacity and inability to obtain new employment, consistent with his medical advice.
He urges me to prefer the evidence of Dr Shulman and Dr Silbert to that of Dr Connaughton.
Mr Nugawela concedes that on some matters the plaintiff's evidence was unsatisfactory or that it was difficult to reach adequate conclusions on and that in some respects the plaintiff's limited education and lack of paperwork skills contributed to this.
He also concedes that the plaintiff is able to do some forms of manual labour. However the plaintiff's evidence is that the work he has done is relatively light and that he could not continue even that indefinitely without symptoms. His medical advice indeed was to cease work in that case.
The Plaintiff has suffered a severe or significant injury, which has caused or contributed to his marriage breakdown.
Mr Clyne for the defendant accepted that the plaintiff had suffered an injury to the back of the head and consequently was off work form 17 March 2000 to 13 July 2000. At that time he returned to lighter duties which were interrupted when the mine closed on 27 July. On 28 July Dr Shulman whilst certifying the plaintiff unfit for work for 30 days therefrom was of the opinion that the plaintiff was fit for light stores work
part-time and would be able to return to his pre-accident duties in the longer term.
The plaintiff was certified unfit by Dr Shulman until January/February 2001 during which time he received workers' compensation payments. However on 12 October 2000 Dr Silbert certified the plaintiff fit to work as a truck, bus or limousine driver. In early November the plaintiff at least twice did work as a limousine driver.
Whereas the plaintiff says he unsuccessfully sought various other employment between March and June 2001 Mr Clyne then argues that the recorded accounts of various telephone calls by the plaintiff to Work Pac and various of the plaintiff's diary entries suggest that the plaintiff was both doing work he has not declared and placed limits on the work he was prepared to accept at least after his wife left the home in June 2001.
The plaintiff admits considering and attempting driving a freezer truck in January 2001. Whilst the plaintiff says he did so for only three days, Mr Clyne says that medical notes and the plaintiff's diary entries suggest it was for a longer period, perhaps three weeks. Whilst the details are unclear Mr Clyne invites a finding that the plaintiff was working more than he says in this period. He did not disclose for income tax purposes his limousine driving, the freezer truck driving, and his involvement with Amway. Mr Clyne says the Amway related documents may well not disclose the true picture (and were not produced before trial).
In July 2001 he commenced casual part-time work as a limousine driver with Manhattan Limousines and in addition he also obtained what turned out to be some 3 months work as a trades assistant.
Since that employment ended the plaintiff has not sought further employment.
In addition to what he argues is the plaintiff's reluctance to tell the whole truth and to produce the relevant documents relating to it. Mr Clyne argues that the plaintiff has at first been untruthful about, and then minimised, his involvement in cultivating and selling cannabis, whilst at the same time drawing Social Security benefits.
In Dr Connaughton's view the plaintiff can work now and with some exercise and work hardening return to his pre-accident employment. Mr Clyne argues that the plaintiff has decided to take alternatives to employment perhaps for domestic family reasons.
General damages
There is no doubt that the plaintiff suffered significant injury. In my view however he has for some time, say from mid 2001, been physically able to obtain and maintain employment but has not fulfilled his physical potential, allowing his remaining symptoms to limit his activity. He has become somewhat physically deconditioned. At the same time has sought little medical assistance.
I assess general damages in the sum of $35,000. It is difficult to be adamant about the medical evidence. I think some allowance has to be had to Dr Connaughton's view that the plaintiff could have been fully rehabilitated to his former work. His domestic situation, age and pre-existing degeneration must however also be had regard to.
Past economic loss
At the time of the accident the plaintiff was earning about $870 net per week. A "book of economic loss" documents is Exhibit 1. It shows his taxable earnings and income tax assessments as follows:
| Year ending | Taxable Income | Tax payable |
| 1.6.1996‑30.6.1997 | $57,463 | $18,070.81 |
| 1.7.1997‑30.6.1998 | $57,527 | $17,039.69 |
| 1.7.1998‑30.6.1999 | $60,512 | $18,442.64 |
| 1.7.1999‑30.6.2000 | $61,282 | $18,804.54 |
| 1.7.2000‑30.6.2001 | $51,991 | $12,216.22 |
| 1.7.2001‑30.6.2002 | $22,684 | $3,185.20 |
During the three months that the plaintiff worked both as a trades assistant and part-time as a limousine driver he earned some $10,000 or thereabouts, approximately $710 per week gross.
Also by consent the plaintiff tendered, first, an extract of the Transport Workers' Passenger Vehicles Award showing hourly rates for drivers of buses carrying less than 25 adult persons and for those carrying more. He also tendered a copy of the Transport Workers' General Award showing different rates for various grades of operators of different equipment categories. These together are Exhibit 17.
As to both general damages and past loss of income Mr Clyne concedes an award to early November 2000. Thereafter he says the position is entirely unclear. The symptoms have ameliorated and treatment has been very modest. The plaintiff's working history has not been honestly and fully declared. He has not seen Dr Silbert since March 2001.
In written closing submissions, submissions, supported by oral argument, Mr Nugawela put the following propositions:
"8.For the purpose of this illustration, the plaintiff accepts Dr Silbert's evidence that he would have been fit to drive a limousine full- time from January 2001 onwards (p 7, Plaintiff's Book of Medical Reports). This is even though Dr Shulman's view was that the plaintiff should only drive limousines part-time, It is also noted that the plaintiff stated that when he drives for prolonged periods, his neck and shoulders ache and that he has difficulty rotating his head.
Between 17 March 2000 – January 2001
$870.00 net per week x 10 months (4.33 weeks) = $37,671.00
Because the plaintiff was in receipt of weekly payments of compensation at the time, this figure must be grossed up by 30% to take into account income tax (the estimate of 30% is based on average tax paid during financial year 2000 – see p 62, Plaintiff's Book of Economic Loss Documents).
Therefore:
$37,671.00 x 1.3 = $48,972.30
From the last mentioned figure, because a substantial amount has to be refunded to the workers' compensation insurer, no claim for interest is made. However, add 8% superannuation less 30% Jongen discount over this 10 months period = $2,285.36."
Although Mr Clyne argued that the point of time at which these calculations should end and the next commence I prefer Mr Nugawela's submissions on the matter and I accept those calculations.
I turn now to the subsequent period. Mr Nugawela argues:
"January 2001 to date:
Based on Dr Silbert's assessment alone, the plaintiff accepts for the purposes of this illustration (somewhat conservatively) that the plaintiff could arguably have worked full-time as a chauffeur/limousine driver, or (with greater reservation), even a freezer truck driver during this period.
The plaintiff's income as a limousine driver was at an hourly casual rate. Even if he could have worked as a truck driver (without any heavy loading above shoulder height) this is unlikely to have been as a Grade 5 truck driver (see Transport Worker's (General) Award extract, at p 4). Any work above Grade 5 is likely to be off sealed roads. An adult Grade 5 truck driver would earn $507.30 gross per week. It may be that the more appropriate award is the Transport Worker's (Passenger Vehicles) Award (see extract of same). In either event, the rate of pay is approximately $500.00 gross per week ($375.00 net per week). Therefore, past loss for this period (January 2001 – February 2003) can be:
($870.00 - $375.00) x 2 years
=$51,480.00
There is no need to make a Fox v Wood allowance because the plaintiff settled his worker's compensation claim in February 2001 and weekly payments of compensation would have ceased then. However, interest at 6% is claimed over 2 years = $6,177.60. In addition, past loss of superannuation for this period can be: $66,924.00 (grossing up the net loss) x 9% x 2 years x 70% (30% Jongen discount)
= $8,432.00"
Orally Mr Nugawela argued that these calculations are conservative in light of the plaintiff's evidence of his past symptoms following employment.
In my view however these calculations are optimistic.
In Linsell v Robson [1976] NSWLR 249, Hutley JA said, at p 251:
"This Court has laid down in clear terms what is required of a plaintiff who claims to have lost part, but not all, of his earning
capacity… He is required to provide evidence, not only of what he could earn prior to his injury but what he is capable of learning since his injury… This is not a case, in my opinion, where the evidentiary burden has passed to the defendant. The efforts of the plaintiff were very meagre, and, only after considerable efforts to obtain an occupation have been made and failed, does the burden pass to the defendant to show that there is something the plaintiff can do."
Those propositions apply here. His Honour added that a court may award only a nominal sum for loss of earning capacity if the evidence is inadequate.
Whilst Mr Nugawela's basis for submissions are logical given the evidence they rely on, the proposition that Dr Connaughton's evidence that the plaintiff could have been rehabilitated to his former employment is rejected. There is however at least a significant chance that Dr Connaughton is correct. The plaintiff has failed to give the possibility a full testing. Nor is there evidence of his having fully mitigated his loss short of that course. In the result some doubt is cast on his true loss. I allow $40,000.
Future economic loss
Mr Nugawela's submissions formulated the matter thus:
"9.The defence of pre-existing degeneration at C5/6 (paragraph 7, Amended Defence) is not made out. No doctor could disentangle the radiologically evident but asymptomatic pre-existing degenerative condition (not even Dr Connaughton). Dr Silbert said that the accident rendered the asymptomatic degeneration at the C5/6 level, symptomatic. Dr Shulman confirmed that this pre-existing degenerative condition was asymptomatic. The prognosis is that the plaintiff's condition will not improve. According to both Doctors Silbert and Shulman, the accident accelerated the normal degenerative processes in the plaintiff's spine. Dr Silbert said that because of the accident the plaintiff's employability is likely to reduce even further with the effluxion of time. There was multiple pathology due to the accident.
(a)C2/C3 facet joint injury. This causes or contributes to the onset of cervicogenic headaches, which in turn contributes to the onset of vascular headaches;
(b)C5/C6 facet joint injury – this explains the radiation of pain into the arm and occasional tingling in the distribution of the 2 little fingers on the right hand. This also explains the plaintiff's constant dull ache in the neck/shoulder girdle region;
(c)Rendering symptomatic a pre-existing asymptomatic retrolisthesis at C5/6;
(d)Accelerating the otherwise normal rate of pre-existing degeneration."
Orally Mr Nugawela argued that in light of authorities such as Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164 the onus is on the defendant to reasonably precisely show the effects of a pre-existing condition relied upon by it:
"10.There has been no suggestion during this trial that the plaintiff's failure to undergo a fusion operation (or for that matter any particular form of treatment) amounts to a failure to mitigate. This was put to no doctor and is not pleaded in the Amended Defence. Both Dr Shulman and Dr Silbert said that whether or not the plaintiff undergoes this operation is a matter of personal choice. There is no failure on the plaintiff's part to accept any doctors' advice/recommendation in this respect.
11.When the plaintiff applies for jobs in the future, he will have to disclose two injuries – the 1997 back injury (qualum talem); and the March 2000 neck injury. His chances of returning to his pre-accident income levels are remote. The chances of a surgical cure (or improvement) are indeterminate. The plaintiff will never be able to return to his pre-accident occupation as an all round operator of heavy mining equipment (which is the only work he has known for over two decades).
12.It is a rebuttal presumption of law that the plaintiff would have worked to age 65. The court can also take judicial comfort of the following:
(a)Immediately prior to the accident, he was looking for work at a mine as an all rounder on a two week on/one week off roster in the iron ore industry;
(b)In 1997, he also wanted to switch to the iron ore industry with McMahons in Cataby;
(c)He has worked in the mining industry in excess of 20 years;
(d)Australia's Government Retirement Income/social Security policies is to encourage work at age 70.
13.Accordingly, the gross calculation of future economic loss should be based on the plaintiff's lost pre-accident earning capacity, less any retained earning capacity. To that must be applied a discount for contingencies. In not dissimilar circumstances, his Honour Justice Ipp in Reynolds v Roche Bros Pty Ltd [1999] WASCA 141, at 40:
'The calculation on which his Honour assessed the damages was made on the basis that the appellant would work from the date of judgment until the age of 65 years, every day, at the retained earning capacity. Work may not be consistently available in the future or he may become ill. This does not appear to have been taken into account by the learned Judge.'
To make a very high discount for contingencies in this case would be a double-deduction because the plaintiff's calculation is already based on the fiction that he has returned to work full-time as a chauffeur/truck driver (since January 2001) The standard discount for contingencies in Western Australia is 2% to 6%. In Reynolds, the Full Court reduced the learned trial Judge's discount for contingencies from 20% to 10%.
In all the circumstances, a calculation for future economic loss can be:
($870.00 - $375.00) x 581.8 x 85%(15% reduction for contingencies)
= $244,792 (remembering also that Dr Shulman is of the view that the plaintiff should only work part-time as a limousine driver, and the plaintiff's evidence of his symptoms when driving all day).
Superannuation at 9% of this net figure (making no Jongen discount because this is calculated on an after tax income) = $22,031"
Mr Nugawela argues that there is no evidence that the plaintiff would not, save from the accident, have continued in his employment as an operator of heavy mining equipment to age 65. Dr Silbert thought it as likely as not. The plaintiff had been doing the work for some 22 years. Whilst the law starts from such a position in my view it is more likely that before age 65 the plaintiff would have preferred to live in a more congenial environment closer to his family and that increasing age and a degenerative cervical joint would have made such work less attractive or even impossible.
In the context of the present case Mr Nugawela drew my attention to Wade v Alsopp (1976) 10 ALJR 353; 50 ALJR 643 and Reynolds v Roche Bros Pty Ltd [1999] WASCA 141. He argues that the plaintiff will have difficulty finding and retaining full time employment given his pre-existing limitations and disabilities and his present injury so that the court should neither underestimate the loss in earning capacity nor allow too great a discount for contingencies.
He concedes though that the plaintiff can now work full time as a truck or limousine driver. As I said above I also take into consideration the evidence of Dr Connaughton that in his view the plaintiff could in any event have been rehabilitated to his previous work.
Mr Clyne argues that this is a modest future economic loss claim. He points also to the plaintiff's age, and pre-existing degenerative neck. The plaintiff, he argues, has not reached the point of establishing loss of pre-accident earning capacity and inability to find alternative employment, such that an evidentiary burden shifts to the defendant on that issue: Ta v Lucky Imports and Export Co Pty Ltd [2002] WASCA 65 referring to Thomas v O'Shea (1989) A Tort Rep 8-251 and Linsell v Robson [1976] NSWLR 249. In any event the defendant says it has established that the plaintiff has significant retained earning capacity.
I allow on a global basis, and without attempting to make a pseudo-scientific calculation of such imponderables, a figure of $150,000.
Past special damages
Workers' compensation payments made to the plaintiff are agreed at $18,757.88. Special damages paid by the plaintiff total $6,319.05. The Health Insurance Commission has given notice of charge amounting to $408.55. As I understand the final position Mr Clyne accepts those figures but I will ask counsel for confirmation.
Future special damages
Mr Nugawela argues that:
"16.The evidence justifies an allowance for future medication and a visit to the general practitioner once every 3 months:
$24,45 every 3 months (GP visit) = $8.15 per week
$30.00 per month (medication costs) = $6.92 per week
Total weekly expense = $15.07 per week. A calculation can be:
$15.07 x 581.8 = $8,767 (there should be no reduction for contingencies because these needs are only calculated to age 65).
In addition, an allowance should be made for the possibility of surgery.
In addition, an allowance should be made for some physiotherapy or even a massage treatments for short-term pain relief (especially if it is to be assumed that the Plaintiff is to start full-time work immediately as a truck/limousine driver and also assuming that he does not lose a single day off this work at age 65).
In all the circumstances a claim is made globally for future special damages of $15,000."
The plaintiff presently takes Naprosyn anti-inflammatories at a cost of $40 or thereabouts each two months and Panadeine Forte at a cost of
about $20 each one to two months. Dr Shulman's evidence is that prescriptions for these medications will require consultations with a general practitioner indefinitely but that such prescriptions can be for three months and six months supply respectively each time.
I think the claim again optimistic.
No medical evidence supported the future use of spinal surgery. I allow $5,000.
Gratuitous services (past and future including interest)
Mr Nugawela argues:
"17.There is support in the medical evidence that the Plaintiff would need assistance doing the heavier housework (gardening) – see Dr Shulman's report (p 18, Book of Medical Reports). The Plaintiff also said that he has engaged and pays a lawnmower man. A modest allowance of $10,000 can be awarded."
Mr Clyne argues that no claim for loss of gratuitous services has been made out, given the paucity of evidence of incapacity and of services specifically for his benefit. I agree. No allowance is made under this head.
Conclusions
For these reasons I assess damages as follows:
General damages: $ 35,000.00
Past economic loss: $ 91,257.66
Future economic loss: $150,000.00
Future special damages: $ 5,000.00
$282,257.66
In addition I seek counsel's confirmation as to the figure to be allowed for past special damages.
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