Laver v Evans

[2007] NSWDC 19

CITATION:	LAVER v EVANS [2007] NSWDC 19
HEARING DATE(S):	20-21 February 2007
EX TEMPORE JUDGMENT DATE:	26 February 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $103,000.00; 2. Defendant to pay the plaintiff’s costs of the proceedings; 3. Exhibits to be retained for 28 days.
CATCHWORDS:	School leaver - assessment of income earning capacity
PARTIES:	Jye LAVER bht Gillian LAVER Joanne EVANS
FILE NUMBER(S):	Newcastle 131/06
COUNSEL:	T R Edwards - plaintiff J Guihot - defendant
SOLICITORS:	Bale Boshev Lawyers - plaintiff Turner Whelan - defendant

JUDGMENT

HER HONOUR

1 In this matter the plaintiff, Jye Laver, was injured in a motor vehicle accident on 14 May 2003. At the time, he was fourteen years old. He is now eighteen. He was a rear seat passenger in a motor vehicle that ran off the road. Breach of the duty of care is admitted. Not meeting the threshold of ten per cent whole person impairment, the matter came before the court for assessment of future loss of income earning capacity and future medical expenses.

2 The injuries that were claimed are set out in the statement of particulars as follows:

abdominal injury requiring removal of a section of the bowel;
scarring;
injury to the thoracic and lumbar spines;
injury to the right knee;
injury to head;
scarring injury to right hip;
inability to undertake normal sporting activities; and loss of time from school.

3 The issue which was debated during the course of the hearing was the extent to which the plaintiff had in fact suffered injuries and their ongoing effect upon his capacity to earn income.

4 The defendant argued that the injuries were of little consequence and that I should allow the plaintiff a modest buffer only.

5 For the plaintiff it was argued that his injuries were significant and therefore I should accept that he had suffered from a thirty per cent reduction in his income earning capacity.

6 The plaintiff’s evidence was that he finished year 12 at the end of 2006. He stated that he was not academically inclined and he had no intention to go on to university. His plan was to take up an apprenticeship as a plumber or a motor mechanic. In years 11 and 12 he undertook a TAFE pre-apprenticeship course in motor mechanics. At the age of fifteen he had obtained work as a kitchen hand in a local restaurant, one to two days a week for three or four hours a day. After leaving school he has worked with a plumber for three days. On 12 February 2007 he started road building work with Boral.

7 The evidence concerning the plaintiff’s injuries was as follows.

8 The injury of major concern after the accident was a rupture to the small bowel. Abdominal surgery was undertaken at the John Hunter Hospital to resect the small bowel, as a result of which the plaintiff has been left with an eight centimetre scar in the centre of his torso. He also has a small circular scar on his left flank. Fortunately, he has recovered from this injury with no ongoing consequence.

9 He was discharged from the hospital and told to rest for a period of six weeks. He returned to school, he said, after about one or two weeks. He said he noticed pain in his back and knees on discharge from the hospital, which he had expected to resolve.

10 The plaintiff said that prior to the accident he had been a keen sportsman with particular affection for surfing and soccer. He was not permitted to surf or play sport for six weeks after surgery.

11 He said the pain in his knees and his back increased as he became more active during this six week period. He noticed back pain in particular on the bus going to school when travelling over a bumpy dirt road. He noticed his knee pain when he returned to soccer six weeks after the accident.

12 He complains of ongoing back and knee pain to the current date. There is no evidence of any particular treatment of his conditions except for the occasional use of pain killing medication. The plaintiff described his back symptoms as stiffness on rising so that his brother has from time to time helped him to tie up his shoes.

13 After playing soccer, he said, he felt like an old person. However he has since the accident returned to playing a full season of competition soccer, although he said he was not playing at his pre-accident level. His evidence was that immediately prior to the accident he had been selected for a representative soccer team. Since the accident this offer has not been repeated.

14 He has returned to surfing, but with less frequency than before the accident.

15 The plaintiff said his pain levels had been stable over the last twelve months, although they had increased to some degree since he started working full time.

16 The defendant pointed to a number of what it said were anomalies in the plaintiff’s case.

17 There is a report of Dr Roy who undertook the abdominal surgery. The report is dated June 2003 at a time when he was reviewing the plaintiff after surgery. There was no record made of any complaint of back or knee problems. The plaintiff said he had not complained at this time because he was still of the view that his pain would resolve. In August 2003 Dr Roy recorded that the plaintiff reported back pain since he started playing soccer.

18 There was confusion on the medical reports as to precisely which knee had been injured in the course of the accident. Some of the reports refer to the right and others refer to the left.

19 The defendant pointed to the plaintiff’s continued participation in surfing and soccer as sports involving a considerable amount of vigour and fitness. In April 2005 the plaintiff was struck by a wake board and was involved in two overnight stays in hospital for observations for a skull fracture. Questioned why he was wake boarding when he suffered from back and knee pain, the plaintiff’s response was that he was trying to lead a normal life like most young people of his age.

20 I have already pointed to the absence of evidence of medical consultation or treatment for either of the back or knee areas claimed to be affected.

21 Ms Harris, the plaintiff’s mother, said that the distance from their home to medical facilities can be up to eighty kilometres. She said her motor vehicle is unreliable and the plaintiff, in any event, is not keen on going to doctors.

22 The medical evidence does not support the defendant’s claim that the plaintiff’s income earning capacity is unaffected by his injuries. Dr Hagan examined the plaintiff in November 2004 for the Motor Accidents Authority. He accepted that the plaintiff had suffered injuries to his neck and right knee, but stated that those injuries had resolved. He accepted that there had been an injury to the thoraco-lumbar spine with no evidence of fracture. He described the plaintiff’s symptoms as mild and he diagnosed a likely musculo-ligamentous injury.

23 Dr Harrington reported in September 2006 that the plaintiff had suffered an accident of some high violence. He referred at page three of his report to a force that went through his lower body sufficient to tear his intestine and he said that he did not think a young person should be having pain of sufficient significance to take anti-inflammatories three years after the accident unless there was significant soft tissue damage of a structured nature.

24 In the same report Dr Harrington raised concerns about the noted absence of medical attention to what appeared to be a complaint of significant back pain and he said that treatment would be worthwhile. He also noted that the plaintiff continued with soccer and surfing.

25 On 17 November 2006 Dr Harrington reported that he did not think soccer would have much to do with it, but the thing that was of concern was that he had an accident of considerable violence which was enough to rupture his bowel. He then said,

One could say that the soft tissue injury to his lumbar spine, where most of his symptoms could obviously be significant, may limit what he can do in a vocational sense.

26 After the complaint made to Dr Roy in August 2003 of back pain, the plaintiff was referred to Dr Ho’s orthopaedic registrar at the John Hunter Hospital, Dr Gill. He reported on 25 September 2003 that the plaintiff was unable to run, jump, play soccer or run for any significant period of time. Some x-rays and scans were taken and a bone scan was taken which he said demonstrated no evidence of injury and he said that the examination at that time was close to normal.

27 Dr Sage in September 2006 also noted that he could find no evidence of injury on examination, but he noted that there had been some restriction of movement in the lumbar spine. He said at page seven of his report that the type of seatbelt injury which had injured the small bowel often also ruptured the ligaments in the upper lumbar spine. He noted that a bone scan would not be sensitive to ligamentous injuries.

28 Dr Sage was of the opinion that, having regard to the evidence of significant aggravation of the plaintiff’s back the day after playing soccer, labouring positions would also cause him problems and he would not be fit for that work. He said, of course, no employer will take him on with a history of back problems.

29 Dr Berry examined the plaintiff in December 2006. He noted mild tenderness at L4/S1 and movement at two-thirds of the normal range. He said the findings were consistent with the compression injury to the abdomen and musculo-ligamentous injury of the back. Dr Berry said the plaintiff was likely to have difficulty with heavy manual occupations, heavy lifting, repetitive bending and prolonged crouching and stooping.

30 Assessment of the plaintiff’s loss of income earning capacity is of course hampered by the very limited evidence of his work capacity or of any inclination to alternative employment. I have noted already that he worked, while at school, in a restaurant on a part time basis which he said he managed because of the short hours of three to four hours a day. He said that he passed the motor mechanics course with difficulty in some of the tasks involved in that course.

31 He was questioned as to why he continued with the course if it caused him pain. His response was that, having embarked upon the course, he could not change to some other stream of education and if he had not continued, he would not have passed.

32 He was also asked why, having not been able to manage the motor mechanics course, he thought he could handle plumbing work with Mr Clark which he undertook after leaving school. He said he thought if he could play soccer, he could handle plumbing work, but he found that some of the tasks which involved climbing, bending and crouching caused him significant problems.

33 His work with Boral requires him to undertake measurements and assessments of quantities and he said it does not involve significant physical activity. He does have some problems because of the requirement to stand for prolonged periods.

34 Having regard to the evidence, my findings are as follows.

1. I accept that the plaintiff has suffered injury to his thoraco-lumbar spine. His complaints in that area are consistent. That they were first recorded in August 2003 is not of concern to me. There was no evidence of any other intervening incident that could explain the back symptoms and the plaintiff’s evidence that he thought that the back pain would resolve is a reasonable explanation.

2.There was no medical evidence to support ongoing complaints in respect of the knees or in respect of the neck.

3.The plaintiff is young, with a level of immaturity. He is unsophisticated. I do not think that he has the capacity to maintain the façade of a malingerer sufficient to persuade all of the doctors whose reports are in evidence that his employment prospects will be affected by the condition of his back.

4.There was no evidence to indicate that the wake board incident resulted in any further disability affecting the plaintiff’s earning capacity.

5.The school reports do indicate that there is a level of intelligence which has not been borne out by his school results. I consider that, with some maturity and perhaps some more vigorous encouragement, the plaintiff may be able to apply himself to securing skills that will diminish his potential loss of earning capacity.

35 For this reason I have selected the mid range of loss provided by his counsel as appropriate, that is, $150 a week, and I have further discounted that sum by thirty per cent to account for vicissitudes and the indication that he has the capacity to train into a career not requiring manual labour. The amount allowed has been rounded out to $101,000. I have also allowed a small buffer for pain killing medication and potential treatment of $2,000.

36 The result is that there will be verdict and judgment for the plaintiff in the sum of $103,000.

37 The defendant is to pay the plaintiff’s costs of the proceedings.

38 The exhibits will be retained for 28 days.

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