Littlejohn v Chugg
[1987] TASSC 103
•29 July 1987
Serial No B33/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Littlejohn v Chugg [1987] TASSC 103; B33/1987
PARTIES: LITTLEJOHN
v
CHUGG
FILE NO/S: LDR 399/1986
DELIVERED ON: 29 July 1987
JUDGMENT OF: Cox J
Judgment Number: B33/1987
Number of paragraphs: 20
Serial No B33/1987
List "B"
File No LDR 399/1986
LITTLEJOHN v CHUGG
REASONS FOR JUDGMENT COX J
29 July 1987
This is an assessment of damages for injuries sustained by the plaintiff in a motor vehicle accident on the 3 September 1979 when the vehicle he was driving was struck from behind. Although the impact was comparatively minor the injuries it caused have, over the intervening years, developed to a severely disabling stage.
The plaintiff was not hospitalised after the accident, but was off work for some three weeks. He was first seen by Mr Einoder, orthopaedic surgeon, on the 25 September 1979. Mr Einoder found the plaintiff in some distress, suffering from back pain and left leg pain, but at that stage he had no specific features suggesting any serious derangement in his spine. He was treated conservatively, but 18 months later on the 9 February 1981 Mr Einoder performed a laminectomy as the result of a serious deterioration of his patient's clinical state and increasing physical signs due to a disc prolapse several months earlier. On operation Mr Einoder found a large amount of scarring in the epidural canal on the lumbar spine. He removed the extra neural scarring and decompressed the lumbar spine and nerve root canal.
At the time of his accident the plaintiff who was then 24 years of age was conducting a quite successful venture as a motor mechanic. He had been brought up on a farm in the Evandale Nile area where his parents live and after achieving his high school certificate he had undertaken an apprenticeship with a Launceston mechanical firm. On attaining his qualifications he had at first spent about nine months in New Zealand but had returned to Tasmania in consequence of his father's illness. He had then operated a service station in Evandale for about 12 months, engaging also in some contract work hay processing, and thereafter had set up his own business as a motor mechanic in that district in a workshop on his father's property. He equipped a mobile workshop and developed a successful business attending mainly to farming machinery in the district. In addition he was involved share farming in barley as well as doing some contract work at harvest time.
By the time of the accident the plaintiff's business had progressed to the stage where he had made approaches to purchase land at Evandale in order to relocate it there. As the result of the injuries sustained this plan was not proceeded with and the plaintiff struggled on for a further two years with some employed help. By October 1981 he felt unable to carry on any longer and ceased trading. For a short time he did truck driving and odd jobs and unsuccessfully sought a position as a salesman of basically rural products where there was little lifting involved.
On the 4 December 1981 the plaintiff began working for Mr R F Thomas, a seed farmer whose property was situated near Longford. For the first five months his work was as a scraper driver on contract in the Lakes district.
A scraper is a self-propelled piece of earth moving equipment. The plaintiff operated the machine mainly on the Miena Dam throughout this time and encountered a considerable amount of pain while doing so, occasionally having to arrange with Mr Thomas for a replacement driver to be sent because he was disabled by the pain. After the contract work had been completed, the plaintiff spent some weeks in Queensland on a working holiday and in August 1982 Mr Thomas offered the plaintiff a job as farmhand on his property Gayfield.
Mr Thomas, who was himself a most impressive witness, spoke highly of the plaintiff's abilities as a mechanic and as a willing worker. After a few months he promoted the plaintiff to the position of Assistant Manager of the farm. For the first year or so the plaintiff was able to cope with the work reasonably satisfactorily, but in the second year his condition progressively deteriorated. Mr Thomas was a most understanding employer and took every step to accommodate the plaintiff and to spare him work likely to exacerbate his condition. But notwithstanding the efforts of both of them, the plaintiff found himself less and less able to effectively carry out his work. The plaintiff set himself high standards and felt degraded and frustrated by his inability to meet them.
He married in November 1983. Shortly before his marriage the plaintiff experienced a very severe bout of back pain. He had been driving a tractor on a paddock when it passed over a deep wheel rut jolting him. The pain was so severe he could scarcely move and had to call base on his CB radio to summon help. Eventually he was taken by ambulance to hospital where he remained for about nine days.
In October 1984 he resigned from Mr Thomas's employ and moved with his wife to a house owned by her parents at Westbury, which they occupied together for 12 months. For the first two to three months he was employed selling front end loaders and sheep handlers for a New Zealand company. The work took him all over the State. He was unable, because of his back pain, to continue this work and then attempted to procure employment as a salesman of real estate or used cars. For the remainder of the year he was unemployed, notwithstanding his efforts to obtain work. For most of this time, as his wife was employed, he was ineligible for unemployment benefits and it caused him considerable loss of self esteem to think that his wife should be forced in effect to support him. He became moody and depressed, his pain and sleeplessness increased and by the end of that period of a year they agreed to separate on a trial basis. In fact they have not resumed cohabitation since that time.
The plaintiff stayed on in the house at Westbury for a further two to three months and eventually procured a job in December 1985 with a firm called Landwise Distributors. This job again involved extensive travel to promote and distribute a tractor attachment for weed control. In January 1986 he moved into a house in Launceston on his own. In March 1986, after demonstrating the product at the Wynyard Show, he suffered another severe bout of pain in the middle of the night. Again he was in excruciating pain for some hours before he was able to crawl to the telephone and summon his general practitioner who had him put in hospital for the best part of a week. After a further two weeks rest at home he tendered his resignation and has not worked nor sought work since.
About one month prior to the trial a male friend from Burnie moved into the house with the plaintiff as a border. How permanent this arrangement is was not made clear. The plaintiff is able to undertake his own housework, but cannot persist with it for more than about ten minutes without having to go and sit down and rest because of the pain in his back and hip. By virtue of these disabilities he lacks any confidence that he could engage in paid employment. He spends most of his days on his own, pottering around the house, taking a short walk or two to procure provisions from the nearby shop and watching television. Occasionally he attends a rural clearing sale, or goes to the Killafaddy stock sales for interest's sake. Sometimes friends ask him to mind their small children, which he is glad to do. His sleep pattern is poor. He says he gets one good night's sleep in a fortnight, while for the rest of the time he lies in bed tossing and turning, occasionally listening to the radio or getting up and walking around trying to get relief from his pain. Three or four times since the episode following the Wynyard Show he has had bad bouts of pain necessitating hospital attention. In January 1987 he became so depressed he contemplated taking his own life. He was seen by psychiatrist, Dr Sale, and admitted as an in patient for about a week to the Lindsay Miller Clinic. Since April 1986 his only income has been a Social Service benefit and he has had to live extremely frugally.
Mr Einoder gave evidence that in his opinion the plaintiff is suffering from arachnoiditis or inflammation of the tissues holding the nerves together. This condition can take years to develop and there is no way of predicting when its progression will stop. He has had several epidural injections of cortisone to relieve the afflicted nerves and some of these treatments have given temporary relief to acute episodes of pain. In Mr Einoder's view the plaintiff should avoid any strenuous activities or repetitive twisting, bending, jarring, coughing or lifting. He is not suited to a job which requires sitting all day, or driving a poorly suspended vehicle and, although he can physically do the activities just mentioned, they tend to cause a swelling of the diseased nerves in the spine constricting the nerves and causing acute pain. Mr Einoder could recommend no further specific treatment.
Mr Einoder, when asked whether the tractor incident at Gayfield just before the plaintiff's marriage would have caused a new injury or rather a flare up of symptoms, expressed the view that it would more likely be the latter. He said an incident like that would be likely to precipitate a bout of acute pain on top of his chronic pain "because of an exacerbation of his condition rather than a new event".
I am quite satisfied that the plaintiff is suffering from debilitating and painful arachnoiditis and that his present condition and the troubles he has had, including those acute bouts, are the direct consequence of the injuries he sustained in the motor vehicle accident. I regard him as an honest and genuine witness and I am in no doubt that, despite his best endeavours to remain in gainful employment, the relentless progress of his disease finally forced him to submit in April 1986 to desisting from work. I find that he is not presently employable and that it is unrealistic to suppose that he could ever engage in paid employment.
It was suggested that with an award of damages as capital he could perhaps engage in some fresh enterprise such as the maintenance of small engines at his own pace. In my view such an enterprise could only be marginally viable. He cannot expect to be able to engage in it regularly and few customers would be content with a haphazard service. It may well be that the possession of a capital sum will enable him to engage in some mechanical work which would stimulate his interest, distract him from his sufferings and lift his morale, and once this protracted litigation has been resolved I would anticipate a significant improvement in his mood, perhaps from such an endeavour, 'but I think it quite unrealistic to suppose that it would produce a financial return of any consequence or anything more than a small proportion of what he might otherwise have earned had he not been injured.
The plaintiff is left in chronic pain varying in intensity from a dull ache most of the time to quite severe pain after prolonged exertion. In addition there are the periodic bouts of very acute pain necessitating hospitalisation and occasional epidural injections.
Dr Sale considered that the chronic pain was the principal cause of the plaintiff's depression, although he acknowledged that there were contributing factors, including the plaintiff's medication, his involvement in long standing litigation, the frugality of his circumstances and resentment of the fact that he learnt he was under surveillance. Medication was changed and Dr Sale was of the opinion that a conclusion of the litigation and amelioration of his financial situation and a process of developing other areas of his life which his pre–occupation with his present problems has caused to fall into disuse would probably lead to a significant improvement in his mood. Even then the doctor was guarded in his prognosis and said that there is a risk of periodic relapses into acute depression as the plaintiff encounters any further crisis in his life, for his ability to dead with those crises is reduced. I would certainly anticipate that with the conclusion of the litigation and the independence an award of damages will give him a substantial improvement in his morale will result.
The plaintiff has suffered a severe disruption to his life and a serious diminution in his ability to enjoy it. He was an energetic worker with trade skills. He showed his initiative in embarking upon enterprises outside the immediate field of his trade qualifications and he was an enthusiastic member of the rural youth organisation, participating in its running at a quite senior level. He was an active, likeable, outdoors man enjoying a normal social life and deriving considerable satisfaction from all fields of endeavour. His injuries have deprived him of the ability to engage in any of these fields. His injuries restrict his ability to engage in sexual intercourse and his marriage has broken down. I am in no doubt that they have been a significant contributing factor to his separation, although there may be other complications. Even if a reconciliation can be effected his injuries will continue to impose strains on his relationship with his wife. He is entitled to substantial damages for his pain and suffering and for his loss of amenities and enjoyment of life. I award $40,000 under this general head.
Counsel were agreed on a number of matters relating to other heads of damages. It was agreed that a sum of $4,500 should be awarded for future medical and pharmaceutical requirements, that his loss of nett income until the 10 April 1986 was $20,996 and that thereafter it continued at the rate of $225 per week. To the date of' this judgment that will represent a further sum of $15,225. As well it was agreed that he had an anticipated working life henceforward of 33 years. Using the sum of $225 as his present nett weekly loss, the present value of that sum over a 33 year period, using 3% tables, is $247,500. In the circumstances a discount in the order of 20% represents, in my view, a fair allowance on the one hand for any small increase in his ability to supplement his income by his own labours using capital from the damages awarded to finance some modest business endeavour and on the other hand for the general vicissitudes of life. For future economic loss I therefore award a rounded off figure of $200, 000.
The plaintiff will have judgment for $280,720, made up as follows:–
General damages for pain and suffering etc. 540,000.00
Medical and pharmaceutical requirements 4,500.00
Past loss of income 36,221.00
Future economic loss 200,000.00
$280,721.00
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