Mark Allan Kennewell v Jason Morgan Carne - [2001] ACTSC 129

MARK ALLAN KENNEWELL v JASON MORGAN CARNE

[2001] ACTSC 129 (24 December 2001)

CATCHWORDS

DAMAGES – personal injury – motor vehicle accident – whiplash – ongoing effect on plaintiff’s earning capacity – no point of principle.

No. SC 15 of 2000

Coram: Whitlam J

Supreme Court of the ACT

Date: 24 December 2001

IN THE SUPREME COURT OF THE )

) No. SC 15 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MARK ALLAN KENNEWELL

Plaintiff

AND: JASON MORGAN CARNE

Defendant

ORDER

Judge Making Order: Whitlam J

Where Made: Sydney

Date of Order: 24 December 2001

THE COURT ORDERS THAT:

1.Judgment be entered for the plaintiff in the sum of $99,831.43.

2. The defendant pay the plaintiff’s costs.

1.This is a motor accident case. Liability has been admitted, and the only matter to be determined is the amount of damages. The accident in question occurred on 20 February 1999. Although the plaintiff is a comparatively young man who is still only in his thirties, he claims to have suffered a very significant loss of earning capacity as a result of the accident. It is desirable, therefore, to begin by tracing his early life in some detail.

2.The plaintiff was born on 23 September 1964. He told a clinical psychologist, to whom he was referred by his solicitor, that he was the fourth of five siblings in a family, who “used to move all the time” because the father was in the air force until they came to settle in Canberra in his last year of primary school. The plaintiff attended Melba High School which he left when he was 15 years of age. He then did a four year apprenticeship at a service station in Hall whilst attending courses at the TAFE Institute in Reid. In 1984 the plaintiff got his trade certificate as a motor mechanic and married his wife Yvonne.

3.The plaintiff moved with his wife to her home town, Corowa, and from 1984 to 1989 he worked there as a mechanic with an authorised dealer for several marques of motor vehicles. During this period their two children were born, a girl in 1985 and a boy in 1987.

4.In 1989 the plaintiff and his family moved to Queensland, where he went into business on his own account and ran the mechanical workshop attached to the Mobil service station at Currimundi until 1992. When his lease on the workshop ended, the plaintiff got a job as manager of the Bridgestone tyre outlet in Caloundra.

5.The family relocated to the Canberra area in 1993. The plaintiff worked for a short time with a fencing contractor where one cold morning he strained his back whilst lifting a drill. In his evidence in chief, the plaintiff said that he took time off work for “the remainder of that day”, and that he “didn’t have any recurrence of the problem”. In cross-examination, however, he agreed that he had had “trouble” with his lower back following that incident about which he consulted a doctor. The plaintiff’s general practitioner is Dr Jacob Foo, and some of the patient notes in respect of the plaintiff’s attendances at his practice in Hawker are in evidence. These notes record the plaintiff’s attendance on 8 May 1996 complaining of persistent lumbar back pain for over two years since an injury whilst “lifting heavy weight at work”. The plaintiff was certified as unfit for work for three days and was evidently asked to bring in film of an X-ray of his lumbar spine taken at the time of the lifting incident. A note of the plaintiff’s subsequent attendance on 17 May 1996 records that X-ray as showing no abnormality.

6.On 19 September 1994 the plaintiff commenced employment as a road service patrolman with NRMA Limited in Canberra. He says he enjoyed the work and found it satisfying. In particular, the shift arrangements meant that he regularly had three or four day weekends to spend with his family. It was, he says, “the best job I’ve ever had”.

7.In 1997 the plaintiff strained his left shoulder at work whilst lifting a tyre out of a boot. Dr Foo later took the following history of this injury:

“Left shoulder strain early 97 – while lifting tyre from boot of car – saw Dr at Florey sometime after in May because of no improvement. Scans suggested but not done because of refusal by NRMA. Intermittent symptoms since - ‘discomfort’.”

NRMA’s records show that the plaintiff was absent on sick leave for one day in February, for three days in May and for half a day in June during 1997. He then took three and a half months accumulated annual leave. The plaintiff and his wife took their children out of school during this period, and the whole family went off to the Northern Territory in a bus which he had converted into a mobile home. In cross-examination, the plaintiff agreed that he relaxed and pursued recreational activities while on holidays.

8.In any event, the plaintiff says that when he came back to work in October 1997 he still had trouble with his shoulder. Again, NRMA’s records show very little time off on sick leave until July 1998 when he first consulted Dr Foo (at the time he gave the history set out above) to report pain in his left arm suffered when reaching up to manipulate an electrical connection. Dr Foo’s notes then record an active management and investigation of the plaintiff’s left shoulder resulting in weeks away from work and treatment coordinated in liaison with the rehabilitation service provider for NRMA’s workers compensation insurer. This culminated in Dr Kevin Woods performing an arthroscopic subacromial decompression of the left shoulder on 23 September 1998. The plaintiff returned to work in early December 1998. However, he continued to complain of pain and stiffness in his shoulder, and in January 1999 Dr Foo referred him to Dr John Corry for evaluation and treatment of this injury. The plaintiff attended an appointment with Dr Corry on 16 February 1999.

9.On the morning of 20 February 1999 the subject accident occurred. The plaintiff was driving an NRMA road service vehicle which was stationary and facing south at the intersection of Coulter Drive and Southern Cross Drive in Belconnen when it was struck from behind by the defendant’s vehicle. He has no clear recollection of what happened to the vehicle or to him immediately following the collision. The plaintiff recalls another NRMA patrolman attending the scene and assisting him to get to hospital. At hospital he felt nauseous and disoriented and had a “tremendous amount of pain” in his neck. A report from Calvary Hospital confirms that the plaintiff was seen in the Emergency Department at approximately 11am on the day of the accident; that he complained of pain in his neck and a tingling sensation in his left leg and gave a history of low back pain in the past; that on examination he was alert and oriented, his neurological examination was normal, his cervical spine demonstrated no mid-line tenderness but some tenderness on the right side and muscle power was intact; that a diagnosis of strain injury to the cervical spine was made and he was put into an intermittent soft cervical collar and given analgesics with a medical certificate for two days and a recommendation for physiotherapy; and that an X-ray of his cervical spine confirmed that there was no fracture or serious bony/joint injury.

10.The plaintiff saw Dr Foo two days after the accident. At this stage the neck pain was persisting, but he now complained of headaches, dizziness and lower back pain. On 25 February 1999 the plaintiff told Dr Foo that the neck pain had improved but the low back pain was still severe. He was also referred for these problems to Dr Corry, whom he saw again on 3 March 1999.

11.Dr Corry reported on his treatment of the plaintiff as follows:

“At this visit [3 March 1999] he informed me that he had been involved in a motor vehicle accident on 20 February 1999. He was apparently working in a NRMA truck when the [sic] it was struck in the rear at moderate speed. He felt immediate dizziness and nausea and there was neck pain. He has been off work since that event and he was requiring to take two to four Panadeine Forte each day in order to control symptoms. At the time of this examination he was noted to be wearing a cervical collar and that neck movement was obviously painful and limited. I prescribed analgesics and recommended that he start on a gentle neck mobilising exercise program to maintain the capacity. He was also instructed in some shoulder exercises to perform. I arranged for a CT of the cervical spine and this was performed on 11 March 1999, and this was within normal limits. Assessment of cervical function was performed with dynamometry on 21 April 1999 and showed a mild level of deficit.

At review on 25 March 1999, it was clear that he was gradually improving, but I certified him as remaining unfit for work for a further month. He was keen to proceed with some further treatment and had physiotherapy with Jenny Kellett, including massage and exercises. By 15 April 1999 there was significant improvement and [he] had a near full range of cervical movements.

I last reviewed him on 4 May 1999, at which time pain levels had decreased to only low grade symptoms, and he was looking forward to returning to work the following Monday.”

The physiotherapy with Ms Kellett was arranged by Dr Foo. She treated the plaintiff for neck and back pain between 4 March and 15 April 1999. At the end of March 1999 Dr Foo noted that the plaintiff was “anxious when driving especially on busy roads” and referred him for counselling to a clinical psychologist, Margaret Groube. (Dr Foo appears to have been of the view that at this time the plaintiff “was suffering from a post traumatic stress disorder”.) The plaintiff saw Ms Groube in April 1999. She thought that his presenting condition was “consistent with a diagnosis of Adjustment Disorder with mixed anxiety and depressed mood.”

12.The plaintiff returned to work on 10 May 1999, and on 3 June 1999 Dr Foo certified him fit to return to full-time work “on the roads” with a restriction on heavy lifting. In July 1999 the plaintiff sought medical attention at the Florey Medical Centre and also from Dr Foo, to whom he complained of pain in his mid-back which had increased since returning to work and which had been aggravated by a particular lifting incident on 6 July. Dr Foo ordered a bone scan of his lumbar region, the results of which were negative. According to NRMA’s records, the plaintiff was away from work for a total of six days’ sick leave in July 1999. On 11 August 1999 he saw Dr Foo complaining of more severe headaches and neck pain. The plaintiff was again referred to Ms Kellett for physiotherapy which was provided between 12 and 26 August, at the end of which period his cervical range of movement was “very close to normal”. This treatment did not occasion any days off work. When reviewed by Dr Foo on 13 December 1999, however, the plaintiff complained of “fairly constant” pain interfering with his work and of requiring regular analgesics. He saw Dr Foo again on 16 December 1999 and was evidently provided with a certificate for two days off work before Christmas.

13.On 7 February 2000 the plaintiff saw Dr Foo complaining of episodes of “overwhelming anxiety” for which, he says, he “attended” Calvary Hospital. Dr Foo certified him unfit for work and he missed a total of nine days off work in February 2000. NRMA arranged to have the plaintiff assessed by Dr Philippa Harvey-Sutton, a consultant occupational physician, on 22 March 2000. However, the day before that consultation, Dr Foo wrote to NRMA that he had advised the plaintiff “to avoid doing any overtime for the time being”. In May 2000 the plaintiff had three days sick leave and in June 2000 another three days off. At the end of June 2000 he took two weeks annual leave as his wife was having surgery. The plaintiff was reassessed by Dr Harvey-Sutton on 30 June 2000. He complained to her that he found the afternoon shifts which he had commenced to perform that month “more difficult because of the length of the day and the pain in his neck and the headaches would be building up even before he began the shift”. Dr Harvey-Sutton suggested that the plaintiff temporarily cease roadwork and do inspections or office work, but she thought that in the long-term future he would be able to continue working as a road service patrol officer. Dr Foo also wrote to NRMA on 19 July 2000 expressing the view that it would be best if the plaintiff only worked morning shifts “for the next 3 months”.

14.On 3 October 2000 Dr Foo wrote indicating of the plaintiff:

“…that he is unlikely to be able to return to rotating shifts without an aggravation of his condition.

His condition has remained static over the last several months and is unlikely to improve significantly in the near future. It is unlikely that he will be able to work through afternoon and evening shifts on a regular basis without having to cut short his shift due to aggravation of his pain.”

15.NRMA then asked the plaintiff to attend a meeting on 11 October 2000 to discuss his rehabilitation and ongoing employment. Following that meeting Ross Stephenson, NRMA’s Regional manager (Motoring Assistance) for the ACT, wrote to the plaintiff confirming that NRMA was “unable to accommodate your current work restrictions on a permanent basis” and that he had three months to find another job within the NRMA or elsewhere. Mr Stephenson further informed the plaintiff that, if he was unable to secure “a suitable position” by 11 January 2001 and he was still “restricted in resuming the normal rotating roster within your current position”, NRMA would consider terminating his employment.

16.On 8 December 2000 the plaintiff completed a termination advice resigning from NRMA, notifying 22 December 2000 as his last day of work, and giving ill health as his reason for leaving. On 2 January 2001 he applied for a job as service adviser with Gerald Slaven, a car dealership in Belconnen, and was accepted to start work straightaway on probation. On 5 February 2001 that employment was terminated because the service manager of the business found him to be unsuitable for the position “for which he was employed”.

17.On 7 February 2001 the plaintiff applied for a job as “mechanic/registration inspector” with Discount Tyre Service’s branch at Fyshwick. In his application he indicated he was not physically capable of performing “occasional heavy lifting” required by the job on account of “back & neck & shoulder injuries”. Nonetheless, he was offered the job and commenced work on 12 February 2001 on a probationary basis as a weekly employee after the first week. The plaintiff resigned from this job on Friday, 11 May 2001 giving his health as the reason. On Monday, 14 May 2001, he commenced a casual job with Keir’s Coaches driving handicapped children to and from school. Later, on 22 May 2001, the plaintiff commenced employment as a registration inspector at the Phillip branch of Discount Tyre Service for five hours a day. At time of trial he was continuing in both these jobs.

18.Against the above background I turn to consider the plaintiff’s evidence. His condition immediately before the subject motor accident is interesting and instructive. After all, it took him just as long to get back to work after the shoulder operation as it did after this accident. In evidence-in-chief the plaintiff said that, when he went back to work after his shoulder operation, he resumed his normal duties without any modification. Although his shoulder would still give him problems and was a “little bit weaker”, he was able to work as a patrolman. However, in cross-examination, a rather more complicated picture emerged. The plaintiff agreed that prior to the operation on his shoulder he could not do his usual work as a patrolman, most of which was “very light”, and that he was restricted to providing technical advice over the telephone. In January 1999, when he complained to Dr Foo of continuing problems with his left shoulder, the plaintiff specifically instanced a lack of strength when working on cylinder heads, even though such tasks were not part of his job as patrolman. The plaintiff recalled seeing Dr Corry shortly before the motor accident. He did not recall telling Dr Corry at that time in relation to his left shoulder that he now felt a pulsing pain spreading down his left arm into the palm of his hand, but he agreed that he possibly told Dr Corry he had lost strength in his left arm. Dr Corry gave evidence about his consultation with the plaintiff on 16 February 1999. Dr Corry said that the plaintiff made significant complaints which warranted further investigation, and he agreed that the pulsing pain described as spreading down the left arm (of which he confirmed the plaintiff did complain) was a worrying development. Dr Corry arranged an ultrasound of the shoulder which did not show any continuing pathology. However, when the plaintiff saw Dr Corry after the motor accident, he never complained again about the injury to his left shoulder and the pulsing pain in the arm. Although Dr Corry said that the symptoms relating to the whiplash trauma may have been dominating the plaintiff’s situation, he agreed that such symptoms were very mild by May 1999 and would not mask the matters relating to the left shoulder and arm about which the plaintiff had complained in mid-February 1999. Dr Corry was unable to explain the cause of any pain pulsing down the plaintiff’s left arm into the palm of his hand. The doctor was unable to identify any structural cause for such pain and agreed that it was possible there was a psychosocial explanation for this complaint.

19.I have earlier summarized the essentially simple account of immediate symptoms given by the plaintiff in his evidence-in-chief, where I have referred to the hospital report for the day of the accident. I note too that the plaintiff also said that at the hospital he had problems with his back whilst being moved during radiography and had a tingling sensation in his toes “while they were doing tests”.

20.The plaintiff has remained under the care of Dr Foo at all times since the accident. The only medical specialist to whom he has been referred for treatment is Dr Corry, who is a well-known rehabilitation and pain consultant in Canberra. I have already set out Dr Corry’s description of his treatment of the plaintiff. Dr Corry confirmed that during that period the plaintiff never complained of back pain.

21.The mental health of the plaintiff is problematic. Ms Groube was the only person to whom Dr Foo referred the plaintiff for psychological treatment. When she saw him in April 1999, she found him impatient, distressed and frustrated with worry about his future at work and his financial status. The plaintiff said in chief that Dr Foo was providing him antidepressant medication at this time, although Dr Foo does not say so in any of his reports. The plaintiff also said that at the time of the referral to Ms Groube he was having problems with his moods and anxiety. He said that the only time he had experienced such symptoms prior to the motor vehicle accident was a single occasion back in Queensland when the pressure was “on” in his own business and he took off to the beach with a “six pack of stubbies” for the rest of the day.

22.The plaintiff said that, when he returned to normal duties on the roads, he had difficulties with headaches and was more abrupt in dealings with members of the public. The plaintiff’s solicitors arranged to have his psychological condition assessed in July 1999 by Dr Bruce Stevens, a clinical psychologist. Dr Stevens prepared a report dated 1 September 1999 saying that the plaintiff did not suffer from post-traumatic stress disorder, but diagnosing a mild pain disorder and an adjustment disorder with symptoms of depression.

23.The attendance at Calvary Hospital in February 2000 remains a mystery. There is no report from either the hospital or any doctor explaining this episode. In his evidence the plaintiff seemed to suggest his anxiety was precipitated by problems he had been having for some time backing vehicles down driveways using rear-vision mirrors. In any event, when Dr Foo wrote to NRMA on 21 March 2000 about the plaintiff avoiding overtime, Dr Foo again referred to his “post traumatic stress disorder”. (It does not appear that Dr Foo had seen the report from Dr Stevens.) Dr Foo certainly confirmed, in a report dated 2 July 2001, that since 1999 he has prescribed antidepressants for the plaintiff’s periods of depressed moods, irritability and nocturnal waking and that he has also prescribed sleeping tablets. The plaintiff gave evidence that he found work easier when he stopped overtime, though he continued to take painkillers whilst at work.

24.The financial year ended 30 June 2000 had seen the plaintiff back at work with NRMA on normal duties for most of the time and with comparatively little time off for sickness. It emerged in cross-examination that it may also have been a busy year for a small business as a motor mechanic conducted by the plaintiff from his residence. The plaintiff said that he always declared in his tax return any income from such work, but that he also did work on his own car and for friends for which he did not charge. The business had run at a loss in previous years, but the plaintiff agreed that the business possibly made a profit of $6,300 in the year ended 30 June 2000. The plaintiff was remarkably unforthcoming about what kind of work he may have done in order to generate such a profit. The plaintiff agreed his mechanical work for NRMA was of the “lightest type”, but he was unable to recall what sort of work he had carried out in his own side business. I formed the distinct impression that the plaintiff was not doing his best to answer questions on this topic. He did, however, grudgingly allow that during the year ended 30 June 2000 he “quite possibly” did hard physical work from time to time in his own business.

25.The plaintiff’s unwillingness to perform rotating shifts led inevitably to the termination of his job as an NRMA patrolman. He said that he found he was fatigued at night, that he suffered migraine headaches which were not relieved by medication, and that he was not sleeping well. As I have already mentioned, Dr Foo supported the plaintiff’s wish to work only the morning shift. In cross-examination, he confirmed that by the time of the meeting called by NRMA in October 2000 he was able to do the work of a patrolman, but that he had difficulty working the late shifts. Specifically, the plaintiff said that he had no problems with the physical nature of the work which was “the same whichever hour of the day you worked”. He reluctantly agreed, when pressed, that he knew patrolmen had to be prepared to take part in the rotating shift arrangement. The plaintiff seemed to suggest in his evidence that such a realization only dawned on him when he received NRMA’s letter dated 24 October 2000, but I do not accept that. He must have grasped what would be the consequences of his unwillingness to work afternoon and evening shifts. Mr Stephenson also gave evidence. He drove the plaintiff to Sydney for his first appointment with Dr Harvey-Sutton and during the journey the plaintiff acknowledged that if he was unable to undertake full patrol duties he may need to look for employment elsewhere.

26.After the meeting on 11 October 2000 the plaintiff did not apply for any other jobs at NRMA. He did discuss with Mr Stephenson informally the prospect of employment giving technical advice over the telephone, but no such jobs were vacant in Canberra at that time. The plaintiff did not want a clerical job. He wanted to stay in the motor industry so he looked for work as a service adviser or service manager.

27.Ironically the service adviser’s job that the plaintiff sought when he left NRMA turned out to involve clerical work most of the day. At Gerald Slaven he found customers bringing their cars in for service to be much more difficult to deal with than NRMA members on the road, and he found that he disliked the long hours he worked from 7.30am until 6.00pm. When the plaintiff’s employment there was terminated, he was told that there had been several complaints from customers. His next job at Fyshwick included counter sales, roadworthiness inspections and managing mechanics. The plaintiff was able to do this work, but he was required over time to do mechanical work, some of which caused neck pain followed by migraine headaches. The headaches interfered with his sleep. The plaintiff was not sacked but left this job of his own accord. In cross-examination, he even suggested symptoms of depression had caused him trouble in that job.

28.The plaintiff now drives a 21-seater light bus for about an hour in the morning and an hour in the afternoon. The bus route involves picking children up and dropping them off at their homes on all kinds of streets in the Canberra suburbs. In the middle of the day he mostly does inspection work for roadworthiness certificates. The plaintiff was adamant that he no longer does mechanical work, although he occasionally lifts and moves tyres around. He said he copes reasonably well with these two jobs, but at time of trial he was concerned that the inspection job was only likely to be available for a further three months after which another employee in the firm was expected to regain his authority to certify vehicles’ roadworthiness. The plaintiff said that he takes anti-depressant medication each morning, “non-drowsy” painkillers during the day and a painkiller and a “relaxant” at night.

29.The plaintiff and his family live in a rented house in Dunlop. At the time of the accident he and his wife were living in a house at Evatt that they were “paying off”. The plaintiff said that his present accommodation was something “we didn’t desire at all” and that he would certainly purchase a “home” if financial circumstances permitted. In cross-examination, the plaintiff agreed that he tried to give the impression by his evidence-in-chief that he and his wife were obliged to sell the house because things were “tough” since he left NRMA. However, it transpired that the house at Evatt was sold well before he left NRMA and part of the proceeds had been used to purchase a block of land on which it was quite obviously always intended to build a house after this case is over. The plaintiff also grudgingly agreed that whilst he was employed by NRMA the workers compensation insurer made payments to cover any shortfall in his actual earnings so that he did not lose any money after the accident. The plaintiff denied that he wished to give a false picture of his financial circumstances, but I do not accept his denial. The plaintiff’s wife also said in her evidence-in-chief that the house at Evatt was sold because of financial worries and the plaintiff’s uncertain job prospects at NRMA. In cross-examination, it became apparent that she did not know details of her husband’s income at the time when the house was sold, and I do not accept her evidence as to the reason for its sale.

30.Indeed, I am not satisfied that at the time of the accident the plaintiff wished to remain employed as an NRMA patrolman indefinitely. In his evidence-in-chief, having recounted how he enjoyed his work at NRMA before he strained his shoulder in 1997, he was asked whether he saw himself continuing in that job “on a long-term basis” and he answered that he “had no plans at all to leave that position”. This answer was, on one view, equivocal, and counsel for the defendant pursued the plaintiff on this topic in cross-examination. He then denied that he wanted to create the impression that he intended to stay with NRMA for the rest of his working life. The plaintiff agreed that by mid-2000 he had had enough of working at nights and over weekends and that he was looking at other avenues. So far as the plaintiff’s wife was concerned, she could not recall discussing his future at NRMA with the plaintiff at that time.

31.The plaintiff said that he still suffers headaches constantly and that he has “broken sleep”. He finds he now becomes irritable in situations he could cope with before the accident, such as when his children misbehave. The plaintiff said that he tries to remain positive even though “it’s like the future I was building for my family has been snatched”. He instanced that he would have wished to buy his daughter a car and that now he could not entertain that possibility. The plaintiff said that before the accident he enjoyed playing social golf, but that he did not do so now because it affected his neck. He said that he now tended not to want to go places socially. The plaintiff’s wife said that before the accident he was a happy, gregarious and fairly outgoing sort of a person, but since the accident he was a lot more irritable and no longer seemed to have a positive outlook. She also noticed that he did not sleep soundly as he had before the accident. The plaintiff’s wife said that they now left social events early and that they did not go on as many family outings as before the accident.

32.The house at Dunlop where they are presently living was, the plaintiff said, chosen specifically because it required very low maintenance. However, at their former residence the plaintiff estimated that after the accident his wife and children might spend two or three hours a week on chores around the house that he had previously done but that he then found “aggravated my symptoms”.

33.Two doctors have given oral evidence in this case, Dr Corry and Dr Garth Eaton. Dr Corry is the only medical specialist who has treated the plaintiff since the accident, and I have earlier reproduced his report on that treatment. Dr Corry said that when he concluded his treatment he was very optimistic that the plaintiff would make a good recovery. The plaintiff’s range of movement in his cervical spine indicated no major structural damage. By May 1999 the plaintiff complained of no symptoms in relation to his balance and vision, which Dr Corry agreed had on the plaintiff’s own account caused him major anxiety, and his neck symptoms were mild. Dr Corry considered that the plaintiff would be able to resume duties as an NRMA patrolman, which he agreed was, so far as physical activity was concerned, a job involving the lightest type of work likely to be carried out by motor mechanics, although he added the rider that it occasionally involved “some strength-demanding tasks”, such as changing a tyre. Dr Corry had anticipated no deterioration in the plaintiff’s condition. The plaintifff’s solicitors arranged for Dr Corry to assess their client on 18 April 2001, and a report prepared following that examination is in evidence. On this occasion the plaintiff gave a history of persisting pain in the upper neck region associated with right-sided headache being experienced ever since Dr Corry’s final review in May 1999. The plaintiff also complained of a less severe lower dorsal pain. (Dr Corry clarified this complaint as relating to the T11-T12 level in the thoracic area, and not to the plaintiff’s lumbar spine, of which, as I have earlier mentioned, no complaint was made to Dr Corry.) In his report Dr Corry speculated about possible causes for the symptoms now claimed by the plaintiff. Dr Corry agreed, however, that his objective findings on clinical examination of the plaintiff were consistent with the presentation of a person of almost complete normality. Dr Corry said that his conclusion that there had been a deterioration in the plaintiff’s condition was entirely reliant on the history given. Dr Corry agreed that any possible pathological explanation for such a deterioration, such as facet joint dysfunction, had yet to be established on any diagnostic test. Dr Corry further agreed that what he called psychosocial influences, such as secondary gain, which were not physiologically based, were a further possibility. Finally, Dr Corry agreed that modifying work methodologies for activities requiring strength could have enabled the plaintiff, even if he had a significant level of pain in his neck which interfered with such tasks, to continue as an NRMA patrolman.

34.Dr Eaton is an occupational physician to whom the plaintiff was sent for assessment by his solicitor on 1 March 2000 and 9 February 2001. At the first examination the plaintiff complained of back pain, and at the second he did not. However, his main complaint on both occasions concerned ongoing headaches and neck pain. In his report following the first examination Dr Eaton made a number of recommendations, none of which was taken up by the plaintiff, but significantly he also expressed his belief that further physiotherapy would not give sustained relief. Dr Eaton agreed that his findings at the second examination in terms of movement and flexibility were completely consistent with a picture of clinical normality. Pressed in cross-examination as to whether his guarded prognosis that the plaintiff was likely to suffer ongoing pain and disability indefinitely depended upon his acceptance of the reliability of the history given to him, Dr Eaton sought to explain away the objective findings of his examination on the basis that “[that] day may have been a good day” and that on another day the plaintiff might be totally different.

35.Reports from Dr Foo, Dr Stevens and a Dr Graeme Griffith are also in evidence. Dr Griffith is a consultant surgeon to whom the plaintiff was sent for assessment by his solicitor. He saw the plaintiff on 23 June 1999 and 21 March 2001. (After the second appointment Dr Griffith noted in his subsequent report factual qualifications to his prior report which the plaintiff had “pointed out”). Dr Griffith’s initial prognosis for the plaintiff’s symptoms in his neck and back was for a complete recovery. In his second report Dr Griffith said he saw little point in continuing physiotherapy, but adhered to his prognosis for a complete recovery which, he said, could be dramatically expedited with treatments he recommended.

36.Dr Stevens’s diagnoses following the plaintiff’s interviews in July 1999 have already been mentioned. At that time Dr Stevens reported his opinion that the plaintiff’s symptoms of depression were linked to a continuing pain condition and should improve with any future improvement in the pain. Dr Stevens saw the plaintiff again briefly on 2 February 2001 and restated his “original” diagnosis of adjustment disorder with symptoms of depression. I am unable to discern how it was that Dr Stevens arrived at this diagnosis. The criteria for such a disorder are set out in his first report. Criterion A requires the identification of a psychosocial stressor. Dr Stevens leaves the reader of his report to guess the event or change that he has in mind. No single event or set of difficulties or problems immediately springs to mind. The plaintiff had not lost his job or anything like that. Indeed, in July 1999 the focus of the plaintiff’s concern was his back, problems with which even he only half-heartedly attributes to the motor accident. Furthermore, the plaintiff’s test scores on the depression scale were within the range of an average pain patient. Dr Stevens does not explain how he made the clinical judgment that the plaintiff’s response to any changes in his work situation (if those be the stressors he had in mind) was so maladaptive as to meet Criterion B for the disorder.

37.Finally, there is Dr Foo. In a report dated 2 July 2001 Dr Foo described the symptoms and disabilities for which the plaintiff had consulted him since November 1999 as follows:

“- Episodes of ‘anxiety’, ‘overwhelming feelings’ which interfere with his concentration

-Difficulty breathing

-Occasional dizziness

-Periods of depressed moods, irritability, nocturnal waking, which required treatment with antidepressants (Zoloft)

-Persisting neck pain, which is aggravated by physical work

-Constant headaches

-Difficulty driving for prolonged periods

-Difficulty sitting for longer than 20 minutes at a time

-Need for frequent use of analgesics averaging 2-4 prodeine daily, and sleeping tablets (normison)”

Dr Foo was of the opinion that his “present symptoms and disabilities will remain in the long term”.

38.It is common ground that the plaintiff suffered a whiplash injury to his neck in the subject motor accident. The nature and extent of that injury are, however, very much in issue. It is not contended, and the evidence does not suggest, that the plaintiff presently suffers from any disability as the result of the pre-accident injury to his left shoulder. Nor do I find that the plaintiff suffered an injury to his back in that accident, though it is clear that in its immediate aftermath and for a short time afterwards there was an exacerbation of a back condition which had previously flared up from time to time. No complaint about the back was made to Dr Corry in 1999, although he had physiotherapy for his lumbar spine in March 1999. He hurt his back again in a discrete incident in July 1999, and yet he received no physiotherapy for his back in the following month.

39.I accept that the plaintiff suffered pain in his neck and headaches after the accident, but I am satisfied that the pain has significantly decreased to the point where it occurs comparatively rarely. So too I find that his headaches have almost disappeared. In other words, I do not believe the plaintiff’s evidence that he suffers constant headaches. The plaintiff did not strike me as a stoic. He underwent a shoulder operation after he was previously disabled from working. Indeed, he continued to complain about pain in his shoulder right up to the time of the accident, but hardly at all afterwards. This behaviour confirms me in my view that the plaintiff is certainly not backward in making the most of any ailment. The plaintiff did not hurry, and he was not hurried, back to work. Yet since that time he has undertaken none of the treatment modalities suggested by doctors and health professionals who have assessed him. His counsel contends that the plaintiff has done everything Dr Foo has recommended. It is instructive that, in Dr Foo’s catalogue of the plaintiff’s most recent complaints, neck pain comes well down the list after his emotional problems. I do not accept Dr Stevens’s opinion about his psychological condition, and I find that the plaintiff has never suffered a full-blown mental disorder. If he had, he would have sought treatment. I have no doubt that the plaintiff experienced feelings of anger and frustration from time to time as a result of physical pain in his neck and resultant headaches. Also I accept that his sleeping patterns would have been disrupted. I can understand why he used painkillers and sleeping tablets, but on the evidence I am unable to see why his neck injury has resulted in a present need for antidepressant medication.

40.I am satisfied that the plaintiff has exaggerated the effects of the neck injury upon him. It is true that Dr Harvey-Sutton recommended in mid-2000 that he temporarily cease work on the roads, but all the doctors at this time reassured him that he would be fit for work as a patrolman. Indeed, the plaintiff said he could do such work. His explanation that he could not do the late shifts because the pain and headaches built up during the day is not convincing. The plaintiff was obviously able to do some work in his own business up to this time, but he was remarkably unforthcoming as to the physical nature of such work and its effect upon him. The plaintiff struck me as an intelligent man. I am not sure to what extent he has consciously exaggerated his symptoms. No doubt, this case has loomed large in his life. I think it is significant that he was astute early on in the piece carefully to check what it was Dr Griffith had said in his final report. My impression was that he was very guarded in his evidence and careful not to say anything that could possibly be adverse to his interests. The plaintiff deliberately adjusted his neck posture from time to time, both in the witness box and in the well of the courtroom, in a fashion that I thought was meant to convey discomfort.

41.In particular, the plaintiff did not describe with any precision what kind of activities had given him problems with his neck. He can apparently cope with his present inspection duties, which he acknowledged involved bending his neck and turning his head in various uncomfortable positions. The mechanical work that supposedly caused the plaintiff problems at Fyshwick was never specified. Indeed, it may be remarked that apart from his own side business he had not worked as a mechanic since 1994. The disruption to the plaintiff’s family life would have been extremely annoying during the early part of 1999. But I find that his pain and suffering are mainly in the past and that his enjoyment of life should pick up once this case is over. There may be occasions in the future when he will experience a pain in his neck which reminds him of this accident and its immediate consequences. I do not believe his claim to suffer constant headaches, and I find that in future it is likely any headaches will be sporadic and not in any way disabling in a work sense. I assess the plaintiff’s general damages in the sum of $40,000. I attribute $32,000 of that sum to the past, which at a rate of 2% per annum generates interest amounting to approximately $1,800. The total award for general damages is $41,800.

42.The amount of out-of-pocket expenses up to time of trial has been agreed. They include the sum of $12,609.12 for medical, chemist, physiotherapy and rehabilitation payments made by NRMA’s workers compensation insurer and the sum of $101.20 in Medicare benefits paid by the Commonwealth. I have already remarked on the limited amount of treatment that the plaintiff has undergone, and I propose to allow all these amounts as having been properly incurred, although their connexion with the plaintiff’s injury was not conceded by the defendant. The total amount for such special damages is $12,710.32.

43.The plaintiff makes a substantial claim for loss of earnings to date. I do not understand his calculation of the amounts he lost until he ceased employment with NRMA to be controversial. These relate to the periods he was off work entirely and to the loss of shift allowances and overtime. These sums amount to $13,311.74. The plaintiff claims losses after he left NRMA by reference to an after tax weekly wage of $794.26, which he says is the amount he would have earned had he continued after 22 December 2000 as an NRMA patrolman. The amount claimed for wage loss after that date is calculated by reference to the difference between that amount and his actual earnings.

44.At present the plaintiff earns $200 per week cash in hand for his bus driving job and the sum of $374.75 per week after tax from Discount Tyres Service at Phillip. Counsel for the defendant vigorously contests the claim for loss of earnings after the plaintiff left NRMA. He submits that the plaintiff was not sacked by NRMA and that it was his choice to leave in the face of overwhelming medical opinion that he would be fit for his job. There is, in my view, force in these submissions. I am satisfied that the plaintiff had, indeed, had enough of the occasionally long and unsociable hours involved in his work. I find that the plaintiff was quite content to end his employment with NRMA and that he never had a definite plan to make a life-long career as an NRMA patrolman. My impression is that he sought out the job with Gerald Slaven as the start of a new career and that, when it did not turn out as he had hoped, he took up a succession of temporary and part-time jobs to “keep food on the table” as he put it. I have formed the definite view that the plaintiff is marking time until this case is over. This does not mean, however, that the plaintiff should not succeed on his claim for loss of earnings to date. On balance, I am satisfied that at least up to now the plaintiff had support for his decision to seek other work from Dr Foo and that he was therefore justified in the somewhat less than robust approach to the job market that he has exhibited up to date. The arithmetic of his wage loss to date of trial after he left NRMA was agreed at $10,882.54. The difference per week at date of trial was $219.51. An allowance at that rate for approximately 24 weeks since trial amounts to $5,268.24. I assess the total amount of loss of earnings to date at $29,462.52. In fixing that sum, I am fully conscious of the fact that the plaintiff’s claim is calculated by reference to a rate of pay current at NRMA two years ago. The plaintiff received $20,003.55 in weekly workers compensation payments. Interest will be allowed on the difference of $9,458.99 for the whole period since the accident at a rate of 5 per cent per annum. This produces a figure of $1,343.69. Income tax of $4,514.90 was paid on the workers compensation payments to be repaid by the plaintiff.

45.A claim was also made for the value of services provided by members of the plaintiff’s family in accordance with the principles laid down in Griffiths v Kerkemeyer (1977) 139 CLR 161. I am not satisfied on all of the evidence that the assistance provided by the plaintiff’s wife and children around the house at Evatt went beyond the normal give and take of domestic relationships. I find that in the future the plaintiff will be able to undertake the tasks around the house that he did before the accident. I propose to make no award under this head.

46.The plaintiff’s claim for future economic loss relates to both loss of earning capacity and future out-of-pocket expenses. As to the latter, the plaintiff estimated the cost of his current medication as about $20 per week, he said that he visits Dr Foo once a month at a cost of $38 per visit and he also said that the frequency any physiotherapy varies. At trial the plaintiff said he had not had physiotherapy for two or three weeks. Dr Eaton said the cost of standard physiotherapy was $50 – 60 per visit. Counsel for the plaintiff emphasizes too that since he left NRMA the plaintiff has not benefited from superannuation support from an employer when he otherwise could have expected minimally to enjoy levels of contribution required under the superannuation guarantee scheme. (I should say I have had regard to this factor in fixing an amount of past wage loss occasioned by the injuries suffered in this accident.) I find that the plaintiff is likely to suffer very little, if any, wage loss in the future as a result of this accident. The medical evidence suggests that he is fit to perform his pre-accident work as an NRMA patrolman. I think it is significant that the plaintiff now works two jobs spanning seven hours a day. It may be that there are a few aspects of a motor mechanic’s work that he would be unable to do from time to time because of neck pain, but he has not worked as a motor mechanic since 1994. The ongoing effects of his neck injury are relatively slight. Their impact on his job prospects in the future should be negligible. The plaintiff has failed to make out his case that his future earning capacity has been damaged in any way that is likely to produce financial loss. I am also unconvinced that he is likely in future to require ongoing medical treatment for his neck as a result of this accident. There may be a few visits in the next couple of years as the plaintiff comes to grips with the rest of his life. It may also be expected that it may take some weeks and even a few false starts before the plaintiff resumes the full-time work of which I find he is capable. In those circumstances I will award a very small buffer or “cushion” of $10,000 for future economic loss.

47.The components of the plaintiff’s damages are thus:

General damages (including interest)	$41,800.00
Out-of-pocket expenses	$12,710.32
Past loss of earning capacity (including interest)	$30,806.21
Income tax on workers compensation payments	$4,514.90
Future economic loss	$10,000.00
$99,831.43

There will be judgment for that amount. The defendant must pay the plaintiff’s costs.

I certify that the forty-seven (47) preceding paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Date: 21 December 2001

Counsel for the plaintiff: GA Stretton

Instructing solicitor: pappas j, attorney

Counsel for the defendant: SG Campbell

Instructing solicitors: Phillips Fox

Dates of hearing: 5 July 2001

Date of judgment: 24 December 2001