Kittelty v Davies
[2011] WADC 1
•1 FEBRUARY 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: KITTELTY -v- DAVIES [2011] WADC 1
CORAM: DERRICK DCJ
HEARD: 22-24 NOVEMBER 2010
DELIVERED : 1 FEBRUARY 2011
FILE NO/S: CIV 590 of 2008
BETWEEN: SHANE BURNETT KITTELTY
Plaintiff
AND
DANIEL DAVIES
Defendant
Catchwords:
Motor vehicle accident - Liability admitted - Assessment of damages - Loss of earning capacity - Retained earning capacity - Medical treatment costs - Non-pecuniary loss - Turns on own facts
Legislation:
District Court Rules 2005 (WA)
Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Result:
Total award - $274,915.00
Representation:
Counsel:
Plaintiff: Mr D R Clyne
Defendant: Mr P Momber
Solicitors:
Plaintiff: Kakulas Legal
Defendant: Peter Momber
Case(s) referred to in judgment(s):
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Ardlethan Options Ltd v Easdown (1915) 20 CLR 285
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Bowen v Tutte (1990) Aust Torts Reports 81-043
British Westinghouse Electric & Manufacturing Company Ltd v Underground Electric Railways Company of London Ltd [1912] AC 673
Brown v Rodrigues (unreported, WASC, Library No 970334; 3 July 1997)
Browne v Dunn (1893) 6 R 67 HL
Den Hoedt & Anor v Barwick [2006] WASCA 196
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
Fontaine v Quality Platers (1994) 12 WAR 71
Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498
Graham v Baker (1961) 106 CLR 340
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Kalavrouziotis v Howel & Kalavrouziotis (unreported, WASC, Library No 980219, 1 May 1998)
Linke & Anor v Howard [1967] SASR 83
Love v Clarona Pty Ltd (unreported, WASC; Library No 970012; 24 January 1997)
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Pene v Murphy [2004] WASCA 103
Plenty v Argus [1975] WAR 155
Southgate v Waterford (1990) 21 NSWLR 427
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Tuncel v Renown Plate Co Pty Ltd [1976] VR 501
Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167
Wakim v McNally (2002) 121 FCR 162
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485
DERRICK DCJ:
Introduction
The plaintiff claims damages for injuries he suffered as a result of a motor vehicle accident which occurred on 31 July 2005 (the accident). The defendant admits liability. The case comes before me for an assessment of damages.
The plaintiff gave evidence. In addition he adduced evidence from three civilian witnesses, his general practitioner and four expert witnesses.
The defendant was not called to give evidence. One expert witness was called on behalf of the defendant.
During closing submissions I was informed by the defendant's counsel that every endeavour had been made (I assume by the Insurance Commission of Western Australia) to find the defendant and the person who was a passenger in his car at the time of the accident but that neither the defendant nor the passenger had been located. The plaintiff's counsel did not take issue with this assertion.
The plaintiff's background and pre-accident work history
The evidence given by the plaintiff as to his background and work history prior to the accident was not disputed by the defendant. The plaintiff's evidence, which I accept, was as follows.
He was born on 9 June 1968. He is therefore currently 42 years old. He was born and raised in Perth.
He completed Year 9 of high school. He has had no further formal education.
Upon leaving school he started working as a mechanic. He did not undertake an apprenticeship. He worked as a mechanic for four years.
Following his time as a mechanic he worked as a plasterer and renderer for a short time.
After working as a plasterer and renderer he developed an interest in manufacturing. He bought a small lathe and started to manufacture various types of components from his home.
In 1995 or thereabouts he started a business of manufacturing components. He conducted his business from his home. He manufactured the components in his garage.
On 18 July 1996 he registered the business name SBK Engineering (SBK).
In 1997 he purchased a small factory unit in Osborne Park. The factory unit was approximately 65 sqm in area. He moved his business to the Osborne Park factory unit some time in 1997.
When he moved into the Osborne Park unit he had a small conventional lathe and a turret mill. He also had two furnaces. He had the furnaces because he was making moulds and dies so that he could perform die castings.
Over time following his move to the Osborne Park unit he purchased additional equipment for use in his business. The additional equipment that he purchased consisted of a second hand moulding machine to do some more die casting on and a larger conventional lathe. The larger conventional lathe enabled him to manufacture larger components.
While he was running his business from the Osborne Park unit his main customer was Elite Pool Covers Pty Ltd which traded as Elite Pool Covers (Elite). The person who ran Elite was Mr John Webb. He manufactured roller ends and roller handles for Elite's pool cover rollers.
He first started manufacturing roller ends and roller handles for Elite in around 1995. In that year he manufactured 200 to 350 sets of the components. Over subsequent years, prior to the accident, the quantity of roller ends and roller handles that Elite requested him to manufacture grew by approximately 30% to 50% per year.
He did have other customers in addition to Elite. One of his other customers was C & R Mini Craft (Mini Craft). Mini Craft engaged him to manufacture an automotive component for the original Mini car, specifically an adjustable suspension cone. He also manufactured components for an eastern states company called Car Craft.
Prior to the accident he was not making a lot of money from his business. He frequently obtained Centrelink payments to supplement his income.
During the period leading up to the accident he knew that there was a 'lot more potential work out there' if he could expand the range of components that he was able to manufacture. He wanted to expand the range of components that he could manufacture for Elite and Mini Craft. He also wanted to specialise in the automotive sector and to reach a stage where he was making components like rocker covers, manifolds, cylinder heads, and eventually engine blocks and pistons.
In order for him to be able to expand the range of components that he was able to manufacture he needed to purchase additional equipment. The additional equipment that he needed to purchase consisted in the main of a computer numerical control (CNC) machine centre and a CNC lathe. If he was going to purchase additional equipment he needed a larger workshop with full vehicle access. The Osborne Park unit was small and was over crowded with his existing equipment. Furthermore it had no vehicle or truck access. He could not get a forklift in or out of the unit.
Given that he needed a larger workshop he started looking for larger workshop premises. He found that commercial properties in Perth were expensive. He therefore came up with the idea of buying an industrial property outside of Perth. He looked at Toodyay, Northam and York.
Ultimately he found a property situated at Lot 50, 37 Elizabeth Street in York (the property) which suited his needs. The property had a large yard and provided easy access for large trucks. The property was in an industrial area but had a house on it. The property was zoned industrial with residential rights.
On or about 15 June 2005 he entered into a contract to purchase the property. Settlement of the contract did not take place until a few months after the accident. He obtained possession of the property towards the end of 2005.
The plaintiff's pre-accident medical history
The plaintiff gave some evidence about his medical history prior to the accident. His evidence in relation to this issue was not disputed by the defendant. The plaintiff's evidence, which I accept, was as follows.
He was very fit and healthy up to the age of 25. When he was 25 he became extremely sick with a flu‑type illness. His illness stopped him from working. He was confined to bed for two to two and a half months.
After the two to two and a half month period he had some ongoing flu‑like symptoms consisting of prolonged muscle and joint soreness, sore lymph nodes, a sore throat and a sore stomach. These symptoms persisted for a couple of years.
When he was aged 31 he again became sick with very similar symptoms to those he had suffered from when he was 25. He was bedridden for around five weeks. He continued to suffer from the symptoms for two to three years. The symptoms cleared up totally approximately a year before the accident. At the time of the accident he was fit and healthy.
The accident
Facts not in dispute
On 31 July 2005 the plaintiff was riding his Suzuki DR 250R motorcycle in a south‑easterly direction along Amelia Street, Westminster towards the intersection of Amelia Street and Westminster Avenue. There was a stop sign at the intersection. The plaintiff slowed down to stop at the stop sign.
At the same time the defendant was driving his car in a south‑easterly direction along Amelia Street towards the intersection of Amelia Street and Westminster Avenue. However, when the defendant arrived at the intersection he failed to stop his car behind the plaintiff's stationary or almost stationary motorcycle. Instead he negligently drove into the back of the plaintiff's motorcycle pushing the motorcycle forward some relatively short distance, approximately two metres.
The rear wheel of the plaintiff's motorcycle wedged in the front of the defendant's car. Consequently the motorcycle remained upright. The plaintiff did not fall off the motorcycle onto the ground as a result of the collision.
After the collision the plaintiff made his way to the verge and lay down for a short while. He was in shock and a little shaken up. He exchanged details with the defendant.
While the plaintiff was on the verge the defendant and the defendant's passenger dislodged the plaintiff's motorcycle from the front of the defendant's car.
The collision caused some minor damage to the plaintiff's motorcycle. The rear chain guard, rear mud guard, brake lights and indicator lights were damaged. The plaintiff was able to ride his motorcycle home after the accident.
The plaintiff repaired the damage to his motorcycle himself. He spent less than $100 buying the parts that he needed to repair the damage. He did not ride the motorcycle again after the accident.
Facts in dispute
The plaintiff testified that when the defendant's car hit the rear of his motorcycle the impact caused his hands to come off the handle bars and for him to be thrown backwards so that his head and back hit the bonnet of the defendant's car. He said that as he was thrown backwards his legs hit the underneath of the handle bars. He said that he was left 'sort of' sitting on his motorcycle and the bonnet of the defendant's car. He said that he rolled off his motorcycle and the bonnet of the defendant's car and crawled to the verge.
The defendant does not accept that the plaintiff was forced or thrown backwards by the collision onto the bonnet of the defendant's car. I will return to this issue later in these reasons.
The plaintiff's evidence as to his post-accident condition
The plaintiff's evidence as to his condition immediately following and since the accident was in substance as follows.
When he got home from the accident he had a sore head, neck and back. He also had bruised shins. He felt a 'bit sore all over'. He laid down to rest.
After a few hours his pain became worse. It was mainly in his lower back and neck that his pain worsened.
He did not initially see a doctor about his pain. He hoped that he would be better within a few days. He continued to rest. He took Panadol and Nurofen for his pain. He ended up taking three weeks off work following the accident.
He first went to see a doctor about one or two weeks after the accident. He saw his general practitioner, Dr Hoffman. At the time he went to see Dr Hoffman he was suffering from severe lower back pain and neck pain. Dr Hoffman examined him and referred him for x‑rays.
Since the accident he has continued to suffer from pain in his lower back and neck. The severity of his pain varies. Any type of physical activity makes his pain worse.
His lower back pain is his biggest problem. He has neck pain but this is not as bad as his lower back pain.
When he gets severe pain in his back or neck the only way he can obtain pain relief is to rest. He has to lie down and try not to move. The length of time for which he needs to rest depends on the severity of his pain. The minimum amount of rest time that he needs is two to three hours. On other occasions it will take two to three weeks of complete rest for his pain to dissipate or become manageable. The last occasion that he had to rest for this amount of time in order for his pain to resolve was two to three weeks ago.
He sees Dr Hoffman on a regular and ongoing basis. Doctor Hoffman prescribes Panadeine Forte for his pain and the anti‑inflammatory Voltaren. He takes on average three Panadeine Forte tablets per day. He takes two 50 mg Voltaren tablets per day. He occasionally uses Nurofen if he is out of Panadeine Forte.
Dr Hoffman has also referred him for physiotherapy. He saw the first physiotherapist that he was referred to on five or six occasions. These physiotherapy sessions were paid for by Medicare under a Medicare care plan. His condition did not improve as a result of this course of physiotherapy.
He currently receives treatment from a physiotherapist on Dr Hoffman's referral. He sees the physiotherapist once every three weeks. The physiotherapy provides him with some short term pain relief.
The accident and the ongoing pain that he has suffered as a result thereof has totally changed his lifestyle. He can no longer ride motocross. He can no longer cycle, run, jog or undertake weight training. He has a lot less social life than he did before the accident.
He does his own housework. He cooks when he feels up to doing so. If he does not feel capable of cooking he prepares something quick and easy. He uses his microwave a lot.
He does not have a garden so he does not have to do much gardening. He needs to keep the weeds under control. He manages to do this.
He does not drive if he is experiencing severe pain. Driving can cause him discomfort particularly if he has to drive from York to Perth which takes approximately one and a half hours.
The plaintiff's move to the property following the accident
The plaintiff gave the following evidence about his move to the property after the accident.
The house on the property had been vandalised. Accordingly, after he obtained possession of the property he had to carry out some repairs to the house to make it liveable. During this time he was living between his house in Nollamara and the house on the property.
The repair work that he carried out to the house included arranging for smashed windows to be replaced, repairing a big hole in the floorboards, patching walls that had been 'smashed in', painting his bedroom ceiling and undertaking a general clean up of the house. He only just managed to paint his bedroom ceiling. Performing this task caused him so much pain that he did not undertake other painting that he had planned to do to his bedroom walls and the lounge room ceiling.
In addition to repairing the house he purchased a second hand 190 sqm shed to put on the property as his workshop. He erected the shed himself. He erected the shed a little bit at a time. It took him six to seven months to erect the shed.
In around April 2006 he moved all of his business equipment from the Osborne Park unit to the property. He arranged for a transport company to do this. He started 'fully' working from the property in around April 2006.
In 2007 he purchased a CNC machine centre and a CNC lathe (the CNC equipment) so that he could manufacture an increased range of components and thereby expand his business capacity.
The defendant did not dispute the evidence given by the plaintiff in relation to the timing of his move to the property, his erection of the shed, his movement of his business to the property and the purchase of the CNC equipment. Nor did the defendant dispute the plaintiff's evidence about the state of the property when he took possession of it. I accept the evidence that the plaintiff gave in relation to these issues.
The defendant did not accept the plaintiff's evidence as to the pain he suffered from when carrying out repairs to the property. I will return to the issue of the plaintiff's pain symptoms shortly.
The plaintiff's evidence as to his work capacity following the accident
The plaintiff's evidence as to the amount of work that he has been able to perform since the accident, and the effect that the accident has had on his business, was to the following effect.
When he returned to work after the accident he was limited in the amount of work that he could do. However, he did not have 'huge amounts of work anyway so it wasn't so bad'. He did as much work as he possibly could. Sometimes he could do an hour of work per day. On other days he could do five or six hours work. Sometimes he was not able to work for a couple of weeks.
Since the accident he has not been able to work full‑time in his business due to his pain symptoms. The amount of time that he can work varies from week to week. There have been some weeks where he has been able to work 40 hours. On other occasions he has been unable to work at all for two to three weeks. On average he is able to work 10 to 15 hours per week. He has not received any Centrelink payments since the accident.
His work involves a lot of physical hands on work and bending and lifting. When he is casting he has to lift and manage aluminium ingots which need to be fed into the furnace. The ingots vary in weight from 7 to 12 kilograms. He has to ladle out metal from the furnace to pour into moulds and dies. He has to pick up and move castings. The castings have to be cut off in the bandsaw. The components often need to be linished which involves removing excess material on a sanding belt. He has to load and unload components from one part of the workshop to another. All of these tasks involve bending, lifting and physical exertion. Anything that involves bending, lifting and physical exertion makes his pain worse to the extent that he cannot keep working. It is for this reason that his pain symptoms prevent him from working for more than an average of 10 to 15 hours per week.
Since the accident there have been many orders placed with him by customers that he has refused to accept because his pain symptoms would prevent him from doing the requested work.
After the accident Mini Craft lodged a purchase order requiring him to manufacture a variety of components for Minis. The order was for him to manufacture the required quantity of one component before commencing to manufacture the next of the required components. The agreement was for him to manufacture all of the required components over a period of one or two years.
Mini Craft placed the order with him before he purchased the CNC equipment. He arranged for Mini Craft to place the order with him before he purchased the CNC equipment so that he knew that he would have plenty of work to do once he had bought the equipment.
His pain symptoms have prevented him from manufacturing the vast majority of the components the subject of the Mini Craft order. He has managed to manufacture only 15 drive flanges.
He still intends to attempt to meet Mini Craft’s order which has not been formally withdrawn. It is, however, possible that Mini Craft could withdraw the order and take its business elsewhere.
On 18 August 2009 he made sample components for the managing director of a company called Foundry Holdings Pty Ltd which trades as The Edge Australia (Edge). Edge's business is the manufacturing of various off‑road vehicles. The managing director of Edge is Mr Tony Sanger. One of the samples was of a component referred to as a CV Hub which is used in one of Edge's off road vehicles.
After reviewing the sample Mr Sanger requested him to manufacture 100 of the CV Hub components for Edge. He accepted the job. However, he has not been able to manufacture the requested components because of his pain symptoms. He believes that Mr Sanger is still willing for him to fill the order and that there are many other components that Mr Sanger would like to him manufacture.
Over the past two and a half years he has managed to undertake some work for Kostecki Engine Centre (KEC). The manager of KEC is Mr Andrew Kostecki. At the request of Mr Kostecki he has manufactured rocker covers for KEC. He has managed to keep up with Mr Kostecki's orders because he only orders in small quantities. Mr Kostecki wants him to do other jobs. However, he is unable to do so due to his pain.
He still manufactures a small number of components for Elite. However, the components that he manufactures constitute only a very small percentage of the total amount of components that Elite purchases.
At the end of 2006 Elite requested him to manufacture a quantity of roller ends and roller handles. He took on the work. However, he could not keep up with Elite's demands due to his severe pain. He informed Mr Webb of his difficulties. Elite was desperate for the components. The result was that Mr Webb sent some of Elite’s workers to his workshop in York to assist him with the manufacturing process.
He has not considered obtaining work as an employed machinist because he would have the same problems as he currently has. His pain symptoms would prevent him working more hours than he currently works.
When he first purchased the CNC equipment it took him a couple of months to teach himself how to use the equipment. Accordingly, during this time he was not in a position to fill any orders made. However, it is not the case that he has not been able to fill orders placed with him since the accident because he cannot use the CNC equipment. He can use the equipment.
Evidence given by civilian witnesses
The three civilian witnesses called by the plaintiff were Mr Tony Sanger, Mr John Webb and a Mr Conno Onofaro. None of these witnesses were cross‑examined. I accept the evidence that each of them gave, a summary of which is as follows.
Tony Sanger
Mr Sanger is the managing director of Edge. His business has been operating for about 20 years. His business engages in the design and manufacture of off road buggies.
He first met the plaintiff four to five years ago as a result of the plaintiff attending his work premises and offering services in the engineering field. After speaking to the plaintiff he gave the plaintiff some drawings of a rack and pinion steering housing component. It was a new design that he had been working with but had not got to the point of manufacturing. The plaintiff was doing casting and simple machining and this is what was required for the component. He therefore gave the plaintiff the job of manufacturing a sample of the component.
Several weeks later the plaintiff returned with the sample that he had manufactured. The sample was good work and the plaintiff was offering to manufacture the component at a fair price. The plaintiff was able to offer him 'what he was after'. It was better for him to deal with the plaintiff rather than a large company where he could get lost in the system. He therefore started working with the plaintiff. The plaintiff started producing some prototypes with the idea of manufacturing the components for him in the future.
Ultimately he placed an order with the plaintiff for the manufacture of some components. However, a few weeks after the order had been placed the plaintiff contacted him and said that he could not fill the order due to health reasons. As a result the ordered components were never provided by the plaintiff.
Over the past few years the cost of Edge's machining contracting has been $8000 to $10,000 a month. If the plaintiff had been able to accept orders from him the plaintiff could potentially have been given a good portion of this machining work.
John Webb
Mr Webb is the managing director of Elite. He established his business in 1989. Depending on the season his business employs between 15 to 30 staff.
His business operates in Western Australia and New South Wales. It has distributors in most other states. It exports products as well.
He has known the plaintiff for 15 to 17 years. He knows the plaintiff as one of Elite's suppliers.
Elite has 30 to 40 regular suppliers, ten of whom are major suppliers. The plaintiff is one of the major suppliers.
Elite started using the plaintiff as a supplier in the early 1990s. The plaintiff initially performed casting work for an aluminium component that was used in Elite's winders so that the pool covers could be pulled on and off.
The plaintiff was a very good tradesman. He set up an application and production system so that he could manufacture the products for Elite cost efficiently.
Over the years the 'dollar value' of the components that Elite has requested the plaintiff to manufacture has increased as Elite's business has grown. Originally the value was around $20,000. It is now around $150,000 per year in 'big years'.
On one occasion approximately three to five years ago Elite's summer business doubled as a result of the water crisis. Consequently Elite needed additional components. It was at this time that he found out that the plaintiff could not keep up with Elite's requirements due to an injury he had. In one or two instances he had to send Elite's staff to the plaintiff's workshop in York to run the equipment and produce the components under the plaintiff's control so that the necessary components were manufactured. He had to do this because the components were not the sort of thing that he could take to another foundry in Perth.
Elite still uses the plaintiff on small runs, prototype runs and mainly for the commercial markets; 'things that aren't as fast moving [for which the plaintiff] can keep his stock levels up'. The plaintiff still has problems supplying large runs in quick times.
The plaintiff is unable to provide the quantity of the components required by Elite. Therefore Elite now obtains these components from a company in China. The value of the work that Elite is sending to the Chinese company is currently between $150 000 and $190 000 per year. If the plaintiff was able to do the work required by Elite cost efficiently the plaintiff could have the work that is currently being sent to China in addition to the work that he still performs for Elite which is worth approximately $45,000.
The components manufactured by the plaintiff for Elite are made out of a commodity, namely aluminium. Therefore the only component that changes is labour cost. Given that the plaintiff runs a relatively small business with minimal overheads he is able to keep his labour costs down.
Conno Onofaro
Mr Onofaro is the operator of Mini Craft. Mini Craft has been in operation for approximately 21 years.
Mini Craft specialises in the repair of, and provision of spare parts for, British based motor vehicles such as the Mini and the MG. The gross annual turnover of Mini Craft is just short of $1 million.
He first met the plaintiff when the plaintiff approached him in around 1995 with a component for the Mini. The component was a Hi/Lo adjuster which is a modification for Minis to adjust the suspension height. The component was available from other suppliers but the version of the component provided by the plaintiff was his own design and was slightly different.
Mini Craft purchased the component. It still purchases the component from the plaintiff.
Mini Craft has required the plaintiff to make other components for its business, for example, a drive flange and thermostat housing.
Over the years Mini Craft has offered a great deal of work to the plaintiff. Mini Craft has obtained quotes from the plaintiff. However, it has not been able 'to get the work out of' the plaintiff.
A few years ago, he cannot remember exactly when, Mini Craft did place a purchase order with the plaintiff for the manufacturing of a number of different components for the Mini. The purchase order was made on the basis of quotes provided by the plaintiff. The work the subject of the order has not been completed by the plaintiff. The plaintiff has only made one of the components which were a combination of two of the drive flanges which were the subject of the purchase order.
Mini Craft now obtains some of the other components the subject of the purchase order from other suppliers. Mini Craft is unable to obtain the balance of the components and it deals with second hand components when it can get them. If the plaintiff could perform the work and manufacture the components the subject of the purchase order, Mini Craft would acquire the components from the plaintiff.
He has noticed that the speed with which the plaintiff fills orders has reduced dramatically. However the work performed by the plaintiff is still of a very good quality.
Medical evidence
It is convenient at this point to refer to the medical evidence adduced in relation to the plaintiff's injuries, pain symptoms, psychiatric condition and work capacity. In relation to these issues the plaintiff adduced evidence from Dr Daniel Hoffman, Dr Nicole Leeks, Dr John Ker and Dr Stephen Proud. The defendant adduced evidence from Mr Nicholas Anastas.
The evidence of Dr Hoffman, Dr Leeks, Dr Proud and Mr Anastas was comprised of reports that they had prepared in relation to the plaintiff supplemented by oral evidence. Dr Ker's evidence was adduced by the tendering by consent and in his absence of the reports that he had prepared in relation to the plaintiff. The tender was consented to on the basis that the defendant, although he did not require Dr Ker for cross‑examination, did not accept the opinions expressed by Dr Ker in his reports.
Dr Daniel Hoffman
Dr Hoffman is the plaintiff's general practitioner.
Dr Hoffman first saw the plaintiff in relation to the accident on 18 August 2005. At that consultation the plaintiff told him that he had been involved in a motor vehicle accident in which he had been hit from behind while on a motorcycle. The plaintiff said that he had been suffering from persistent low back pain and neck pain since the accident.
Dr Hoffman carried out an examination of the plaintiff. The examination revealed marked tenderness of the paralumbar muscles and the cervical spine. He arranged for x‑rays to be taken of the plaintiff's spine. The x‑rays were normal. He diagnosed the plaintiff as suffering from moderately severe soft tissue injury of the lower back and neck caused by the accident. He prescribed anti‑inflammatory medication and referred the plaintiff for physiotherapy.
Since 18 August 2005 the plaintiff has attended Dr Hoffman's surgery in relation to his neck and lower back pain on 14 October 2005, 10 January 2006, 14 June 2006, 11 October 2006, 4 January 2007, 4 July 2007, 3 October 2007, 27 November 2007, 23 January 2008, 27 February 2008, 26 March 2008, 30 April 2008, 11 June 2008, 25 July 2008, 10 September 2008, 28 October 2008, 17 December 2008, 29 January 2009, 3 March 2009, 3 April 2009, 5 May 2009, 28 July 2009, 1 September 2009, 22 October 2009, 29 October 2009, 20 January 2010, 21 April 2010, 25 June 2010, 28 July 2010, 29 September 2010 and 29 October 2010. On all but one or two of these occasions Dr Hoffman has been the doctor from his surgery who has seen the plaintiff. At each of these consultations the plaintiff has been prescribed strong pain killer medication (Panadeine Forte) and anti‑inflammatory medication. The plaintiff has also been referred for physiotherapy treatment.
During his evidence Dr Hoffman said that he has a vague recollection of the plaintiff saying to him at 'some stage along the road' that in the accident he had been thrown back onto the bonnet of the car that drove into the rear of his motorcycle. He cannot remember when the plaintiff said this to him. He did not make a note of the plaintiff saying this to him.
Dr Nicole Leeks
Dr Leeks is a consultant orthopaedic surgeon. She gave her evidence at a de bene esse hearing on 14 December 2007.
Dr Leeks saw and examined the plaintiff on 5 December 2007.
The plaintiff told Dr Leeks the following about the accident. He was riding his motorcycle and was stationary at a traffic stop sign. He was wearing a helmet. He heard a screech and subsequently his motorcycle was hit from behind by a Ford Falcon sedan. The car pushed his motorcycle forward approximately two metres and the rear tyre of his motorcycle became caught in the front end of the car. His motorcycle remained upright. He was sore straight away in the low back region and also in the neck. He drove home where his pain became worse.
The plaintiff told Dr Leeks that he continued to have significant pain in both the cervical and lumbar regions. He described the pain as being felt in the midline at the base of the neck and also at the L5/S1 level. He said that the pain occasionally radiated into his buttocks. He reported experiencing constant background pain that was aggravated by movement, twisting and occasionally sneezing.
The plaintiff described to Dr Leeks severe episodes of pain that occurred probably one or twice every fortnight. He told Dr Leeks that this pain was eased by lying down and that consequently he spends two to three days in bed to get over each episode.
The plaintiff did not describe to Dr Leeks any major problems with his daily living activities or activities around the house. He did report that since the accident he was no longer able to participate in motocross or BMX racing.
Dr Leeks undertook a physical examination of the plaintiff. Her examination revealed the following:
1.There was no pain to palpation of the cervical spine;
2.The plaintiff displayed slightly limited lateral flexion to the right and slightly limited lateral rotation to the left. Otherwise the cervical range of motion was full and no pain was described;
3.With respect to the thoracolumbar spine there was no deformity or scoliosis and no paraspinal muscle spasm. The plaintiff had good range of motion of the lumbar spine and was able to put his fingertip to the floor with no apparent discomfort. Some discomfort was described with extension of the lumbar spine;
4.Straight leg raising was intact and pain free; and
5.The plaintiff had good power and normal sensation in the lower limbs and his reflexes were intact and normal.
At the time of her examination of the plaintiff Dr Leeks was in possession of x‑rays of the plaintiff's spine. The x‑rays showed early degenerative change in the lumbar spine but no other abnormality.
On the basis of what the plaintiff had told her and her examination of the plaintiff, Dr Leeks concluded that the plaintiff had suffered a moderately severe soft tissue injury to the cervical and the lumbar spine caused by the accident. Given that the plaintiff had not described any pre-accident symptoms related to the cervical or lumbar spine region, Dr Leeks also concluded that the plaintiff's pain symptoms had developed as a result of the accident.
Dr Leeks formed the view that the plaintiff was and would remain fit for full‑time light duties but that in the future he may not be able to perform full‑time labouring occupations or occupations that demand heavy physical tasks. She considered that the plaintiff's prognosis was generally favourable and that institution of an appropriate physiotherapy regime should alleviate many of his symptoms. She considered that the plaintiff's condition had stabilised and was unlikely to differ significantly in the short to medium term.
At the time of her assessment of the plaintiff Dr Leeks formed the opinion that the plaintiff's ongoing restrictions to the function of his lumbar spine, including lifting, bending and carrying heavy objects, equated to an impairment of 6% of the spinal column as a whole. However, in cross‑examination Dr Leeks was unable to say with any certainty why she had assessed the plaintiff as having the 6% impairment. In re‑examination she said that when she had re‑read the report that she had prepared after assessing the plaintiff the only reason that she could find for giving the plaintiff a 6% whole impairment was the description that he had given to her of his functional limitations. Dr Leeks also said in re-examination that she was of the opinion that if she had reviewed the plaintiff subsequently her opinion as to his 6% whole impairment would have changed.
Dr John Ker
Dr Ker is a consultant physician in rehabilitation medicine.
Report dated 12 March 2007
The first of Dr Ker's relevant reports is dated 12 March 2007. The report deals with the first of Dr Ker's consultations with the plaintiff which took place on 19 February 2007. The report reveals the following.
The plaintiff told Dr Ker that he had stopped his motorcycle at a stop sign and was hit from behind by a four‑wheel drive vehicle. The plaintiff said that his motorcycle was pushed approximately two metres forward and that the rear wheel of the motorcycle became caught in the roo‑bar of the four-wheel drive vehicle so that the motorcycle did not fall to the ground. The plaintiff said that the impact caused him to be thrown forward and that after a few hours he became aware of pain primarily in his low back and his neck.
As to his ongoing pain symptoms, the plaintiff told Dr Ker that since the accident he had experienced central neck pain which varied in its intensity and which had never fully resolved. The plaintiff reported that the neck pain would radiate in part upwards towards the cranium and also to the right and left of the midline towards the shoulders and could be quite intrusive. The plaintiff indicated that from time to time he was also aware of some subtle paraesthesia associated with the neck pain. The plaintiff said that the neck pain was exacerbated by undertaking any sudden spinal movements. The plaintiff reported that he would get headache with his neck pain which was predominantly occipital in location.
The plaintiff also reported to Dr Ker central lumbar back pain with radiation to the right and left of the midline and occasional radiation to the buttocks. The plaintiff said that the back pain varied in its intensity, again related to his activity. The plaintiff reported that because of his back pain he had reduced any physically demanding work tasks because this resulted in him having more acute and intrusive pain which had, from time to time, resulted in his lower limbs giving way.
At the time of his consultation with the plaintiff Dr Ker had access to x‑rays of the plaintiff's spine. The x‑rays demonstrated subtle changes in the articular processes at the L3 level but little in the way of other abnormality.
Dr Ker's clinical examination of the plaintiff demonstrated the plaintiff to be in no obvious distress. Dr Ker felt that the plaintiff undertook on request quite a satisfactory range of cervical spine movements. Although the plaintiff reported that the extremes of cervical extension and rotation to the left produced some low right‑sided cervical pain, there was in Dr Ker's view little in the way of any movement restriction.
On examination the plaintiff did describe to Dr Ker discomfort on firm palpation of the occipital condyles left and right and also in the horizontal fibres of the trapezius muscle to the right of the midline above the spine of the scapular. Dr Ker did not find any curtailment of the plaintiff's range of shoulder movements and there was no suggestion of abnormal neurological signs in either upper limb.
With respect to the thoracolumbar spine the plaintiff on examination described to Dr Ker some discomfort centrally in the lower lumbar spine. Dr Ker detected no evidence of protective muscle spasm in this location. Dr Ker thought that the plaintiff undertook quite a reasonable range of thoracolumbar spinal movement without specific curtailment of that range of movement.
On the basis of the information provided to him and his clinical examination of the plaintiff Dr Ker arrived at the primary diagnosis of a strain injury of a muscular ligamentous type to the cervical and lumbar spine. He formed the view that the injury could be considered moderate in nature. The injury had not involved any major structural abnormality to the spine nor neurological impairment.
On the basis of his understanding that the plaintiff was asymptomatic prior to the accident, Dr Ker concluded that the plaintiff's symptoms had developed as a result of the injury that he suffered during the accident.
Dr Ker formed the view that the plaintiff was not fit for general labouring work but that he was fit for full‑time restricted work duties. Dr Ker considered that the plaintiff 'will not be specifically unfit to carry out duties in casting and machinery component manufacturer [sic], however, clearly in this work he will need to be selective as to the forms of casting work he undertakes so as [sic] these are not substantively physically demanding of him'. Dr Ker thought that an alternative would be for the plaintiff to consider changes in his manufacturing process so that his work utilised lifting machinery rather than relying on manual lifting techniques.
As to the plaintiff's future work capacity Dr Ker considered that the plaintiff 'may remain fit for restricted work duties and as a consequence suffer some diminished scope of employment in that he would be unable to maintain his previous, pre‑accident work on an ongoing basis'. He considered that the plaintiff had some degree of ongoing restriction of lifting, bending and carrying capacity as it applied to his spine which he quantified as a 6% impairment of the spinal column function.
Dr Ker considered that it was unlikely that the plaintiff's disability would increase over time and that the plaintiff's prognosis was in general terms favourable. He considered that the plaintiff's residual symptoms would be overcome and that his level of day‑to‑day physical function would improve and remain improved.
Report dated 9 July 2008
Dr Ker's second relevant report dated 9 July 2008 relates to a consultation which he had with the plaintiff on 4 July 2008. The report reveals the following.
The plaintiff reported to Dr Ker that he was continuing to experience symptoms of spinal pain and movement restriction. The plaintiff felt that there had been no substantive improvement in his symptoms of pain and stiffness.
The plaintiff reported to Dr Ker that he continued to experience pain in the cervical region, specifically midline pain low in the cervical spine which radiated outwards towards the right and left of the midline. The plaintiff also described the presence of occipital headache associated with the neck pain. The plaintiff said that the intrusiveness of his neck pain was governed by his level of activity.
The plaintiff's second principal area of complaint was with respect to the mid and lower lumbar spine. He reported pain largely midline with no substantive radiation into either buttock, but varying muscle tension in his lumbar spine which curtailed his spinal mobility.
When Dr Ker clinically examined the plaintiff he found that there was no direct tenderness over the plaintiff's scalp. Dr Ker thought that the plaintiff's range of cervical spine movements were somewhat restricted with cervical extension of 15 degrees and flexion achieved with the chin to 2 cm from the manubrium sternum. The plaintiff was a little cautious in undertaking the extremes of rotation to right and left.
On examination the plaintiff did report discomfort on firm palpation over the lowest three cervical spinous processes and to the right and left of the midline in that location. However Dr Ker did not find curtailment of the plaintiff's range of shoulder movements. His neurological examination of each upper limb was within normal limits.
When Dr Ker came to examine the plaintiff in the prone position on the examination couch, he found that the plaintiff described diffuse discomfort over the lower two lumbar spinous processes. This was reproduced by back extension of 15 degrees. However, the plaintiff flexed his fingertips to his ankles in the long sitting position. Although the plaintiff described discomfort to the extremes of rotation to right and left these rotational movements were satisfactorily undertaken. There was no suggestion of any neurological impairment in either lower limb.
The plaintiff informed Dr Ker that as a result of his cervical and lumbar pain his ability to undertake work in his engineering business was curtailed to the extent that he was only able to undertake limited hours of work each week. The plaintiff reported that he found this frustrating because having pursued self‑employment he was not able to take advantage of all the contracts offered to him.
Dr Ker formed the view that the plaintiff's condition had not changed materially since he had seen the plaintiff on 19 February 2007. Dr Ker's diagnosis of the plaintiff's condition remained primarily a strain injury of musculo‑ligamentous type to the cervical region and lumbar region. He considered this to be an injury of moderate severity. He found no evidence of substantive structural abnormality in the plaintiff's spine.
Dr Ker remained hopeful that over time the plaintiff would be able to continue with his current work tasks for an increased number of hours each week.
Dr Ker considered that his quantification of the plaintiff's impaired function as an impairment of 6% of the spinal column function remained appropriate. He formed the view that given that around three years had elapsed since the accident the impairment should be considered permanent.
Dr Ker remained of the view that the plaintiff's prognosis was generally favourable. He believed that the plaintiff was making gains albeit relatively slowly.
Report dated 20 August 2010
The third of Dr Ker's relevant reports is dated 20 August 2010. It deals with a consultation which Dr Ker had with the plaintiff on 13 August 2010. The report reveals the following.
The plaintiff informed Dr Ker that he continued to experience neck pain and back pain. The plaintiff described his neck pain as predominantly central in his cervical spine and most evident low in the cervical spine. The plaintiff said that the neck pain resulted in some curtailment of his neck mobility. He said that when his neck pain is intrusive it is associated with muscle tightness to the right and left of the midline in the extensor muscles of his neck. He said that the neck pain can lead to the development of a headache. The plaintiff did not describe any specific radiation of neck pain into either upper limb and there was no suggestion of weakness, sensory loss or altered sensation in either upper limb.
The plaintiff also reported to Dr Ker that he experiences headache two or three days per week. The plaintiff described the headache as predominantly occipital in location and being unassociated with any overt auditory or visual symptoms. The plaintiff said that the headache seems to respond to analgesic medication with paracetamol and codeine.
The plaintiff also complained to Dr Ker of ongoing back pain in the mid‑lumbar spine region with curtailment of his range of back movements. The plaintiff said that when his back pain is more intrusive it can radiate into the buttocks but rarely below this. The plaintiff did not provide any history of weakness of sensory impairment in either lower limb.
The plaintiff informed Dr Ker that his back pain could be rendered more intrusive with prolonged stooping, for example by performing work tasks at a bench. He said his back pain was eased by resting although it did disturb his sleep. He said that he is able to tolerate sitting and motor vehicle driving but finds that with prolonged standing the low back pain is reproduced.
When Dr Ker examined the plaintiff he found that the plaintiff was able to undress and dress without restriction. Dr Ker's observations of the plaintiff's active range of cervical spine movements demonstrated that he had full extension but lacked the last 10 degrees of cervical flexion. The plaintiff was initially cautious in undertaking rotation movements of the cervical spine to the right but these were accomplished through a normal range.
The plaintiff exhibited no direct tenderness over the cranium, but did describe midline discomfort in the cervical spine extending from the spinous process of C4 to the spinous process of T1. Dr Ker did not find protective muscle spasm in the extensile muscles of the plaintiff's neck, or in the horizontal fibres of trapezius. Although the plaintiff was a little reluctant to fully abduct both shoulders through active movement he demonstrated near full bilateral shoulder movements. Dr Ker did not find curtailment of the plaintiff's mobility or neurological function in either upper limb.
When Dr Ker came to examine the plaintiff in the prone position he again noted tenderness in the mid‑lumbar spine from L2 to L4. There was no protective muscle spasm in the extensor muscles of the plaintiff's back. Notwithstanding this the plaintiff's maximal back extension was less than 10 degrees and this reproduced low back pain. The plaintiff had easy rotation movements of full range in the upright seated position. In the long sitting position he could only flex with fingertips between mid and the low third of tibia bilaterally.
The plaintiff's straight leg raising was to 70 degrees primarily due to hamstring tightness. There was no suggestion of any nerve root tension signs or neurological impairment in either lower limb. There was no history to suggest the presence of any former neuropathic bowel or bladder disturbance.
Dr Ker concluded that the plaintiff's range of lumbar spine movements appeared to be curtailed.
Dr Ker considered that the plaintiff had clearly established his capacity for part time light work. Further, on the basis of his clinical examination of the plaintiff Dr Ker considered that the plaintiff was able to work for longer than 15 hours each week but that given the curtailment of the plaintiff's lumbar spine flexion movements that he had witnessed during the consultation the plaintiff was not fit to work on a full‑time basis. Dr Ker formed the view that the plaintiff's incapacity to sustain full‑time work arose primarily as a result of his painful restriction of lumbar spine movements and to a lesser extent the repeated occurrence of neck pain and headache with sustained upper limb activity.
Dr Ker considered that in the absence of major pathology on previous investigation of the plaintiff's cervical and lumbar spine it remained appropriate to regard the plaintiff's prognosis as generally favourable.
Dr Ker remained of the view that his earlier quantification of a 6% impairment of the spinal column function as a whole remained appropriate.
Dr Ker considered that given that the plaintiff's disabilities had been in existence for a period approaching five years, they should be regarded as permanent.
Dr Stephen Proud
Dr Proud is a consultant psychiatrist.
First consultation
Dr Proud first saw the plaintiff on 28 May 2008. He interviewed the plaintiff and conducted a mental state examination of the plaintiff.
When he interviewed the plaintiff about the accident, the plaintiff told him that he was on a stationary motorcycle when he was hit from behind. The plaintiff said that he had suffered no loss of consciousness and no fractures but that he had suffered soft tissue injuries. The plaintiff reported that the soft tissue injuries had resulted in chronic low back and neck pain, worse with strain and associated with intermittent paraesthesia in his arms and legs. The plaintiff said that he had also developed some sadness and irritability since the accident, and that he was particularly sad and irritable when his pain was severe.
The plaintiff reported to Dr Proud that his motivation, concentration and ability to sleep fluctuated depending on his pain level. The plaintiff said that he had normal energy and that his libido was low. He said that he had withdrawn socially, was interpersonally irritable and that his depression had limited his libido. The plaintiff said that his pain intermittently affected his sexual ability.
Dr Proud's mental state examination of the plaintiff revealed an irritable, cautious, mildly depressed person.
On the basis of his interview of the plaintiff and his mental state examination, Dr Proud diagnosed the plaintiff as suffering an Adjustment Disorder with Depressed Mood with Moderate Severity, Chronic DSM‑IV‑TR criteria. Dr Proud formed the opinion that the adjustment disorder was wholly the result of the pain and disability that the plaintiff had suffered as a result of the accident. Dr Proud considered that the major symptoms of the plaintiff's disorder were fluctuating levels of motivation and concentration, impaired ability to sleep and low libido.
Dr Proud concluded that from a psychiatric point of view the plaintiff only had a mild incapacity to work and that his major incapacity to work or undergo rehabilitation was secondary to his pain. He considered that the plaintiff's adjustment disorder did not prevent the plaintiff from undergoing rehabilitation.
Dr Proud formed the view that the major factor limiting the plaintiff's future work capacity was his physical condition rather than his psychiatric condition. He considered that the plaintiff's adjustment disorder with depressed mood conferred a mild across the board incapacity to work, particularly in those situations where there were high cognitive interpersonal and stress demands.
Dr Proud considered that according to the Social Security Act Psychiatric Impairment Rating Scale and with respect only to the adjustment disorder, the plaintiff had a permanent psychiatric disability of 10% which takes into account future adaptation and response to treatment. He considered that the plaintiff would be left with mild but regular symptoms.
Second consultation
Dr Proud saw the plaintiff for a second time on 10 November 2010. During this consultation the plaintiff still complained of chronic neck and low back pain present at rest and worse with strain, with intermittent paraesthesia in his arms and legs. The plaintiff said that on a simple linear scale of zero to 10 where zero is no pain and 10 is the worst pain, his neck pain was on average three and his low back pain was on average four. The plaintiff said that he had no thoughts of suicide but that his mood was irritable, angry and flat compared to how it was before the accident. The plaintiff said that his energy was the same as it was before the accident but that his libido was less. He said that his motivation fluctuated as did his ability to fall off to sleep and stay asleep. He said that some days his pain kept him awake. He said that he was withdrawn socially and did not bother to wear clean clothes or shave or look after himself as well as he used to unless he had to attend appointments.
Based on his interview of the plaintiff Dr Proud formed the opinion that the plaintiff was suffering from Adjustment Disorder with Depressed and Anxious Mood of Moderate Severity Chronic according to DSM‑IV‑TR criteria. He considered that the plaintiff's residual depressive and anxiety symptoms were mild to moderate, were mainly due to his ongoing pain and disability and were causing impairments in his life outside of work in the sense of interpersonal irritability, social withdrawal, less motivation to look after himself and slight errors in bookkeeping. He considered that the adjustment disorder would give the plaintiff a very mild impairment to work especially in those aspects of his occupation where fine attention to detail was required, or the plaintiff was required to promote his business or interact positively with customers. He considered that the plaintiff's prognosis was poor, that is, that his condition was likely to continue for the foreseeable future.
Dr Proud remained of the view that using the Social Security Act Psychiatric Impairment Rating Scale, the plaintiff was left with a permanent psychiatric disability of 10% because he was left with mild but regular symptoms for the foreseeable future.
Basis for diagnosis
During his evidence Dr Proud accepted that when coming to a psychiatric diagnosis he is dependent to a very large extent on what the patient tells him. When he was asked how he goes from this point to forming a psychiatric diagnosis or opinion, he said that he takes a sceptical approach but assumes, unless there is evidence to the contrary, that he is being told the truth 'within the bounds of scepticism'. He said he would then look for 'face validity'. That is, he would ask whether ordinary people in the situation of the patient would perhaps suffer the particular disorder in question. He said that he would then look for internal integrity between the symptoms declared and what he saw on mental status examination.
Dr Proud accepted that he did not carry out any in situ work based test to determine the impact of the plaintiff psychiatric condition on his work capacity. He said, in effect, that his opinion as to the impact of the plaintiff's psychiatric condition on his work capacity was based on his knowledge of the common consequences of the adjustment disorder suffered by the plaintiff. His views were a general statement as to how depression affects one's ability to work in the workplace. He accepted that depression does not affect everybody in the same way.
Dr Proud said that he did not recall the plaintiff telling him that when he was hit from behind he was forced backwards so that he fell backwards onto the bonnet of the car that had hit him. His notes of his sessions with the plaintiff did not contain any reference to the plaintiff saying this.
Mr Nicholas Anastas
Mr Anastas is a consultant orthopaedic surgeon. He saw the plaintiff on 30 March 2009.
In relation to the accident the plaintiff told Mr Anastas that he was riding his motorcycle and that while he was stationary a vehicle collided with the rear of his motorcycle. The plaintiff said that as a result of the impact the rear wheel of his motorcycle was caught in the front of the vehicle and that he was pushed about two metres. The plaintiff said that he was wearing a helmet, gloves and shoes. The plaintiff said that immediately after the accident he was aware of pain at the back of his neck and lower back. The plaintiff said his neck and low back pain increased in severity after about 12 hours.
The plaintiff did not tell Mr Anastas that he was thrown back onto the defendant's car.
The plaintiff informed Mr Anastas that since the accident his neck ached all the time, although the pain varied in severity. He reported that his neck pain radiated across the back of both shoulders. He said that since the onset of the neck pain it had improved a little.
The plaintiff reported experiencing one to two headaches per week. He said that the headaches lasted for a day or so. He said that the ache was at the back of his head and was throbbing in nature.
I have taken the cost of the general practitioner consultations, the pain medication, the anti‑inflammatory medication and the physiotherapy sessions from the plaintiff's particulars of damages filed pursuant to r 45C(3) of the District Court Rules 2005 (WA). These figures were not disputed by the defendant.
I also think that it is appropriate to make an allowance of $1 per week to cover the cost of travelling to and from medical treatment sessions. This is the amount claimed by the plaintiff.
According to the prospective life expectancy table produced by the Australia Bureau of Statistics, the plaintiff will live to 81 years of age and therefore has a life expectancy of 39 years: Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15 [4] and [68]-[74]; (2007) 229 CLR 498, 500 and 517. This is the life expectancy relied on by the plaintiff. The weekly multiplier for 39 years is 803.2. Accordingly, I calculate damages for future medical and treatment expenses as follows:
$3 + $4.40 + 2.10 + $8 + $1 x 803.2 +$4,000 = $18,859.20.
I therefore award damages in the amount of $18,859 for future medical treatment costs.
Future service needs
The plaintiff claims damages in the sum of $42,798 for the cost of future commercial domestic assistance which he asserts that he will require.
This aspect of the plaintiff's claim is based on the evidence given by Ms Jodrell. I have already referred to the evidence given by Ms Jodrell in relation to her assessment of the plaintiff and his ability to continue to work in his manufacturing business.
As to the plaintiff's need for domestic assistance, Ms Jodrell formed the view that the plaintiff was able to carry out all personal care tasks but that he has some limitation in tasks which require repetitive bending and lifting or which place strain on his neck and back. She considered that while the plaintiff can engage in short bursts of activity he cannot sustain the activity and that the consequences of activity are increased pain levels. Ms Jodrell therefore concluded that in order to 'optimise [his] ability to engage in work activities it would be reasonable to provide him with some weekly domestic assistance'. She recommended that the following domestic assistance be provided:
1.Bathroom and toilet cleaning – 30 minutes per week;
2.Shifting furniture, vacuuming, mopping floors, high dusting – 30 minutes per week;
3.Change bed linen – 10 minutes per week;
4.Hang out heavy laundry – 10 minutes per week;
5.Miscellaneous tasks (tidy low cupboards, clean oven, change light globes, clean exhaust fan) – 10 minutes per week.
Ms Jodrell also recommended that the plaintiff receive two hours of assistance every six months for the purpose of spraying weeds in the yard of the property.
Ms Jodrell's recommendations are not supported by Dr Ker. In a letter that he wrote to the plaintiff's solicitors dated 25 October 2010 in response to Ms Jodrell's report, Dr Ker expressed the view that the plaintiff's level of functioning was 'not so impaired as for him to require domestic assistance in his home'.
During his closing submissions counsel for the plaintiff recognised that the plaintiff had not sought domestic assistance since the accident and that there is the possibility that he might not do so in the future. However, he submitted that an allowance should be made for the prospect that on some occasions the plaintiff may be confined to bed for a lengthy period and that in those circumstances some domestic assistance will be required. He conceded that there should be a significant discount from the claimed amount of $42,798 'because of what the plaintiff had done thus far'.
I have already awarded damages to the plaintiff for loss of earning capacity. Therefore it seems to me that if I award the plaintiff damages for domestic assistance in order to 'optimise his ability to engage in work activities' he will be over compensated for his injuries. In any event, on the evidence before me I am not satisfied that there is any appreciable possibility that the plaintiff will require domestic assistance in the future. He has managed without any assistance up until now despite sometimes being confined to bed for lengthy periods due to his pain being aggravated as a result of him working in his manufacturing business. Moreover, his evidence reveals that he is capable of performing the type of routine domestic tasks identified by Ms Jodrell provided that he limits the amount of time that he spends performing the tasks in any one session. Accordingly, I decline to make any damages award in respect of the plaintiff's claim for future commercial domestic assistance.
General damages
The plaintiff claims general damages for pain and suffering and loss of enjoyment of life.
By s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (the Act) a limit is imposed on the award of damages that can be made for non‑pecuniary loss, that is, for pain and suffering and loss of enjoyment of life: the Act, s 3C(1).
Section 3C(2) of the Act provides that I must assess damages for the plaintiff's 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 currently be awarded is $337,000. Section 3C(3) provides that the maximum amount may only be awarded for a case that is assessed to be a 'most extreme case'.
Sections 3C(2) and 3C(3) do not require me in assessing damages for non‑pecuniary loss to envisage a number of examples of cases which may fall within the most extreme category and to compare the injuries in question with all of them before arriving at an appropriate percentage: Den Hoedt & Anor v Barwick [2006] WASCA 196 [5], [7] and [95]-[97]. The methodology that I am required to apply is that described by Gleeson CJ, Kirby P and Meagher JA in Southgate v Waterford (1990) 21 NSWLR 427, 440-442; Den Hoedt v Barwick [5], [7] and [95]-[97]. I am required to conceive 'a most extreme case', quadriplegia being an example, and then apportion the amount to be awarded somewhere between nil and the maximum available, keeping in mind that the maximum is only available for a most extreme case: Den Hoedt v Barwick [5], [7] and [95]-[97].
In this case the plaintiff suffers chronic mild cervical neck pain and chronic mild to moderate lower back pain. If he engages in activity that involves repetitive bending, lifting, twisting or stooping his pain is aggravated and can become quite debilitating. Clearly, if the plaintiff undertakes employment that does not involve this type of activity the occasions on which his pain will be aggravated will be considerably reduced. The plaintiff's pain symptoms will not improve significantly if at all for the remainder of his life.
The plaintiff's recreational activities are limited. He can no longer engage in leisure pursuits that he used to enjoy participating in. His ability to undertake household chores is affected but not destroyed. He is limited in the distances that he can drive in any one period.
The plaintiff has a chronic adjustment disorder.
Having regard to what might be considered a most extreme case, and having regard to the aspects of non‑pecuniary loss which the plaintiff has suffered, I have concluded that his damages for non‑pecuniary loss should be assessed at 8.5% of a most extreme case. The current maximum payable for a most extreme case is, as I have already mentioned $337,000 so that 8.5% of a most extreme case is $28,645. From this amount I must deduct the amount of $17,000 being the current amount B prescribed under the Act: the Act, s 3C(5). The result is that I award damages in the amount of $11,645 for the plaintiff's non‑pecuniary loss.
Summary of award
I award the plaintiff damages as follows:
Past loss of earning capacity $110,350.00
Future loss of earning capacity $131,061.00
Past medical treatment costs $ 3,000.00
Future medial treatment costs $ 18,859.00
General damages $ 11,645.00
Total award $274,915.00
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