Matthaus v Connell
[2010] WADC 75
•21 MAY 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MATTHAUS -v- CONNELL [2010] WADC 75
CORAM: GOETZE DCJ
HEARD: 29-31 MARCH & 1 APRIL 2010
DELIVERED : 21 MAY 2010
FILE NO/S: CIV 2555 of 2007
BETWEEN: STEPHAN PETER MATTHAUS
Plaintiff
AND
ADAM MATTHEW CONNELL
Defendant
Catchwords:
Motor vehicle crash - Personal injuries - Liability admitted - Assessment of damages - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Judgment for the plaintiff in the sum of $91,632.55
Representation:
Counsel:
Plaintiff: Mr D R Clyne
Defendant: Mr J R Brooksby
Solicitors:
Plaintiff: Simon Walters
Defendant: WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Husher v Husher (1999) 197 CLR 138
Jasmina Investments Pty Ltd v Vlahos [2009] WASCA 190
Mastaglia v Burns (2006) 32 WAR 427
GOETZE DCJ:
Introduction
On 13 October 2006, Stephan Peter Matthaus was involved in a motor vehicle crash when another motor vehicle, driven by Adam Matthew Connell, collided into the rear of Mr Matthau's' motor vehicle.
Mr Connell has admitted liability for his negligence.
Mr Matthaus contends that, as a result of the crash, he suffered a neck injury and numbness in his right hand.
Mr Matthaus also contends that these injuries have affected his ability to work, such that he has suffered economic loss, including the forced sale of his business.
Contrary to this, it is contended against Mr Matthaus that he suffered from his neck and hand numbness problems prior to the crash and that those problems he has had subsequent to the crash are the same problems he had prior to it. Further, it is contended that Mr Matthaus has, at all material times, been fit and remains fit to carry out his pre‑crash work, such that the sale of his business was a matter of personal choice.
I am required to resolve these issues and to determine the quantum of damage suffered by Mr Matthaus, if any.
The background of Mr Matthaus and his business
Mr Matthaus was born on 16 March 1967 in South Africa. He is presently 43 years of age.
Mr Matthaus came to Australia in 1982 and, after finishing school in New South Wales, he commenced an apprenticeship as an auto‑electrician. In 1987, he transferred to Perth, where he completed that apprenticeship.
Following his apprenticeship and after touring Europe, Mr Matthaus obtained work at Newman. He was employed there for three months, but saw the opportunity to commence and operate his own business, which he did, for a four year period from October 1989. He then undertook contract work in Papua New Guinea for one year, following which, he returned to Perth and undertook contract work, for a period of about two years, with the same employer with whom he had completed his apprenticeship.
Eventually, Mr Matthaus commenced employment at Steve's Auto Electrics in Osborne Park with a view to partnership, but prior to that partnership being achieved, he suffered severe low back injuries in a motor vehicle crash in 1998 at Lancelin. He received a negotiated settlement in respect of that crash in the sum of $266,480, including $200,000 for future loss of earning capacity and $12,500 for future medical treatment.
The 1998 motor vehicle crash prevented Mr Matthaus working as an auto-electrician for a period of time.
From the proceeds of his settlement, Mr Matthaus purchased a 5 acre property in Chittering. He also purchased auto electrical equipment and began trading on his own as an auto‑electrician but, to do so, he had to put up with a lot of back pain. He persevered with that pain until February 2005, when he purchased a rundown business, Jason's Timbers, operating from 42 King Edward Road in Osborne Park.
One of the customers of Jason's Timbers was Diedric Abraham van der Feltz. He is a Dutch baron and legal practitioner who engaged in some business consultancy work in Perth. Over a period of time, Mr Matthaus engaged Mr van der Feltz as a business consultant to provide him with business advice, including how he might improve the profit of Jason's Timbers.
Mr van der Feltz suggested that Jason's Timbers cease trading in that business name and that Mr Matthaus commence a new business, being A Class TimberSteel, with Mr van der Feltz as his business partner. Mr Matthaus followed that advice. Mr van der Feltz bought into the new business and they executed a written partnership agreement on 5 April 2006 (Exhibit 9.2). The partnership was expressed to be for an initial two year period.
Part of the business plan prepared by Mr van der Feltz was to clear the 2,800 square metres of leased land upon which Jason's Timbers operated and to operate the new business from approximately 300 square metres. The remaining land could then be cleared and sublet.
To achieve this, it was first necessary to renegotiate the lease and then to clear the leased land. Labour was employed for clearing purposes. The records reveal that this began in early May 2006 (Exhibits 5, 6.1 and 6.2).
At the same time, A Class TimberSteel began to put into practice Mr van der Feltz's plan of only manufacturing outdoor furniture of a heavy duty nature, being a timber‑steel combination, which could be concreted into the ground and which would therefore be cyclone proof. There was apparently a niche market for this kind of product.
The partnership agreement between Mr Matthaus and Mr van der Feltz provided that Mr van der Feltz would attend to all paperwork, administration and marketing and that Mr Matthaus would provide the labour for the production of the outdoor furniture.
The partnership agreement also provided that Mr Matthaus was to devote approximately 38 hours per week to the partnership and Mr van der Feltz would devote approximately 20 hours per week to it. In addition, Mr van der Feltz would work one Saturday for every two Saturdays worked by Mr Matthaus.
The partnership agreement also provided for what should occur in the event of the death or incapacity of either partner.
Although a new business, A Class TimberSteel was able to expand on the prior business of Jason's Timbers by concentrating on niche market outdoor furniture products. Orders for such products were in fact received, and the business expanded.
From time to time prior to the crash, the labour hired to clear the land was also used to assist Mr Matthaus with outdoor furniture manufacturing. Records were not kept of the hours performed by the hired labour in these different functions.
The evidence is, that, at the time of the crash suffered by Mr Matthaus A Class TimberSteel was a business on the rise. I will refer to the financial documents below.
The crash
The crash occurred on the afternoon of Friday, 13 October 2006 when Mr Matthaus was driving his Nissan Navarra utility along Mitchell Freeway in Warwick. At the same time, Mr Connell was also driving his motor vehicle on the same freeway, in the same traffic lane and in the same direction as Mr Matthaus, but behind him. As the traffic slowed, Mr Connell negligently crashed his vehicle into the rear of the vehicle being driven by Mr Matthaus, which, in turn, was shunted into the rear of the vehicle in front of his vehicle.
As a consequence of the crash, Mr Matthaus' utility suffered damage which he estimated at approximately $3,000 in value.
Mr Matthaus was able to drive his motor vehicle from the crash scene and he "patched it up" himself. The police report indicated that there was damage to the front bumper and rear tray of the utility – T25.
Injuries suffered by Mr Matthaus
Mr Matthaus was 39 years of age at the time of the crash following which he was "a little bit sore ‑ ‑ ‑ but it got worse later in the afternoon".
By reason of Mr Matthaus' prior lower back injury from the 1998 crash, he already had anti‑inflammatories at home, some of which he took after the subject crash and he "got a good night's sleep". However, because he was "hurting the next day", he went to St Andrews Medical Group and sought medical attention. He saw Dr C Yap ‑ T17.
In cross‑examination, he said that he also took painkillers but he "wouldn't say it was a good night's sleep" ‑ T26.
Dr Yap's notes indicate that Mr Matthaus attended with mild neck tenderness, particularly in rotation to both the left and right. He had mild tenderness over the left side of the cervical muscles.
Dr Yap diagnosed a cervical soft tissue sprain injury. She provided treatment by way of paracetamol and directed Mr Matthaus to a physiotherapist ‑ Exhibit 8. Dr Yap was not called to give evidence.
Mr Matthaus had stiffness and soreness in his upper back and neck with headache.
Mr Matthaus also attended at the Innaloo Medical Centre from 30 October 2006 in respect of his crash injuries. The records reveal he complained of:
1.neck pain;
2.bi‑temporal headache;
3.cervical spine mid‑line/right paraspinal pain; and
4.left occipital tenderness – Exhibit 15.
By December 2006, Mr Matthaus had responded "extremely well to [physiotherapy] treatment but the problem tends to recur associated with his work". His trouble was "localised down to the right cervical area, [then] causing him more trouble in the lower cervical spine than the upper cervical spine". He still had limitation in range of movement. It was a "little bit difficult to isolate which level is causing his main pain with some restriction down at C5 and 6 but tenderness at C7". This information was reported by the physiotherapist, Mr Jeremy Nyman to the Innaloo Medical Centre and copied to St Andrews Medical Group ‑ Exhibit 15. Mr Nyman did not give evidence.
Dr Michael Murphy, a general medical practitioner from St Andrews Medical Group, reported that he had seen Mr Matthaus on 2 and 31 July 2007.
A cervical CT scan on 3 July 2007 revealed mild multilevel cervical spondylosis. At C4/5 there was a shallow right paracentral disc bulge/protrusion projecting 2 millimetres posteriorly, mildly indenting the ventral thecal sac ‑ Exhibit 7.10.
Dr Murphy interpreted this to mean that there was mild degeneration in the cervical spine, probably compatible with Mr Matthaus' age. He reported that Mr Matthaus was able to work free of pain in the cervical region for long hours prior to the crash but, the neck injury had thereafter prevented him continuing with such long hours – Exhibit 7.9. He coped with medication and reduced hours of work. That advice is based on information provided to Dr Murphy by Mr Matthaus. Dr Murphy was of the opinion that Mr Matthaus did not have any neck symptoms prior to the subject crash – T102.
As noted above, Mr Matthaus has had a previous low back injury. By reason of that injury, he was receiving analgesia, including Tramadol and anti‑inflammatories, including Voltaren, immediately prior to the subject crash. That medication for his low back also provided relief for pain resulting from his cervical injuries received in the subject crash, after which Mr Matthaus continued to see Dr Murphy to obtain repeat prescriptions for such medication. It is not possible to tell from the clinical notes provided from St Andrews Medical Group whether subsequent attendances for medication were related specifically to the subject crash injuries or the prior low back injury suffered by Mr Matthaus, or both.
In December 2007, Mr Matthaus attended at St Andrews Medical Group reporting insomnia, in part due to neck pain. It was the Tramadol which caused the insomnia.
From the records of both St Andrews Medical Group and Innaloo Medical Centre, there does not appear to have been any further attendance by Mr Matthaus at either surgery in respect of his crash injuries. He did however attend both surgeries for other reasons.
In February 2008, Mr Matthaus attended upon Dr Andrew Harper, occupational physician, at the request of his solicitor. At that time, he complained of neck pain, being a "sharp dull ache" centrally in the lower segments of his cervical spine which occurred daily, lasting from five minutes to all day. He also suffered right hand tingling in the fourth and fifth fingers and in part of the palm of the left hand, also occurring daily. These symptoms had been stable for the previous 10 months. Dr Harper's opinion was that the initial injuries were mild, as were the then residual disabilities.
Dr Harper reported that Mr Matthaus' work capacity was reduced, but he was able to continue with his pre‑crash work. In cross‑examination, Dr Harper said that Mr Matthaus could continue as he was doing in February 2008. He was then working reduced hours – T78 and he told Dr Harper that he had an assistant working for him. The records reveal that Mr Matthaus had recently had an assistant, Lazlo Major, working for him from September to December 2007 – Exhibit 6.2.
Dr Harper's opinion was that Mr Matthaus' future work capacity, at that time in February 2008, may have continued to be compromised for a further two years and possibly longer ‑ Exhibit 7.1, p 4. I take this to mean that although Mr Matthaus could continue with work in the business, he may have been required to work only reduced hours for a further two years and possibly longer. Dr Harper was not cross‑examined on this point. Two years have now passed. The evidence of Mr Matthaus is that he continues to need to work reduced hours because of neck pain.
In March 2008, Mr Matthaus attended Dr Thomas Berrigan, consultant in pain medicine and anaesthesia, upon referral from Innaloo Medical Centre.
On 10 April 2008, Dr Berrigan performed bilateral C4/5 and C5/6 facet joint injections upon Mr Matthaus who subsequently reported that he obtained good relief therefrom and that his pain was approximately 60 per cent better. He was sleeping better and working better. Rotation of his head also improved. He was prescribed slow release Panadol.
At review by Dr Berrigan on 11 July 2008, Mr Matthaus continued with his pain relief and further treatment was not required.
Dr Berrigan was then of the opinion that Mr Matthaus had partial incapacity for his usual work and that he could be compromised for a further three years. He had a 10 per cent disability in his cervical spine, the injury to which was, in his opinion, mild to moderate ‑ Exhibit 7.3, pp 2 and 3.
In his evidence, Dr Berrigan said that the success of the injections he had performed indicated that Mr Matthaus' injury was centred around the facet joints which had been reported as being "normal" in the CT scan from 3 July 2007, referred to above.
Mr Matthaus was further reviewed by Dr Harper shortly before trial. He reported, that, the symptoms advised to him by Mr Matthaus related to neck pain and right forearm pain and tingling.
Dr Harper had also been provided with all medical information relating to Mr Matthaus' prior medical history, but as with Dr Berrigan, Mr Matthaus denied any prior neck injury or symptoms at those pre‑trial reviews.
In January 2010, Dr Harper reported that he found it difficult to precisely assess Mr Matthaus' current work capacity.
Dr Harper said that Mr Matthaus had a retained capacity for normal hours of work as an auto‑electrician on trucks and heavy vehicles, but not on cars. He could also work in furniture fabrication, but he did not specify whether this was for normal hours or reduced hours – Exhibit 7.2, p 3. This was not pursued in evidence, nor was it suggested to Dr Harper that Mr Matthaus had been unable to keep up with production orders at his work resulting in a need to sell the business and so he did not provide any medical evidence underlying such matters.
Dr Harper's opinion was that Mr Matthaus' future work capacity would improve over a further one to two years, although he still has restrictions to avoid heavy lifting and working with his head in a prolonged downward position or in awkward postures and repetitively turning his head. These restrictions affect Mr Matthaus' competitiveness in the open workforce, although, they will not cause a premature retirement.
Having reviewed all medical information regarding pre‑crash neck complaints which I will detail below and having questioned Mr Matthaus regarding his crash‑caused injuries, Dr Harper was of the opinion that the current neck symptoms do not relate to the pre‑crash neck symptoms. In fact, his report states that the neck symptoms define "a definite and sustained link to the [subject] car accident" ‑ Exhibit 7.2, p 4. Dr Murphy agreed with this view ‑ Exhibit 7.9.
However, Dr Harper did believe that Mr Matthaus' right hand symptoms were at least partially attributable to a pre‑existing condition, but those hand symptoms did not contribute significantly to Mr Matthaus' current disability. Again, Dr Murphy agreed.
Dr Harper did not find any inconsistencies in the presentation offered by Mr Matthaus. Mr Matthaus has a very mild residual disability; the initial injury had been mild.
Shortly prior to the trial, Dr Berrigan also reviewed all medical information known relating to Mr Matthaus' pre‑crash cervical spine complaints. Until then, he, like Dr Harper, was not aware that Mr Matthaus had had previous neck problems. Dr Berrigan's evidence was that, the mild degeneration shown in the cervical CAT scan from July 2007 indicated that the subject motor vehicle crash had made that asymptomatic degeneration symptomatic – T86.
Dr Berrigan agreed, in cross‑examination, that a person who had treated Mr Matthaus in respect of his neck symptoms, both prior to the crash and subsequent thereto, would be able to make a clinical comparison between the pre and post‑crash symptoms – T91. Dr Harper also agreed with this proposition – T78.
Further, during cross‑examination of Dr Berrigan, the following exchange took place:
"Right. And if he had had – if he had in fact had previous pain over a number of years, presumably it was the degeneration playing up from time to time with his work?‑‑‑Yes.
And if in fact he did have symptoms prior to the accident, you wouldn't state the neck symptoms he currently had, or when you saw him and subsequently, were caused by the accident? If he'd had neck symptoms that were similar ‑ ‑ ‑?‑‑‑If he'd had neck symptoms beforehand ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ I think it's – would come down to, 'were his symptoms made worse by the accident', in that case.
And that's a question you can't answer because you didn't know anything about the symptoms before?‑‑‑That's right" – T87.
This cross‑examination did not assist the defence case because in the re‑examination of Dr Berrigan, counsel for Mr Matthaus probed further the relevance of pre‑crash neck pain. Dr Berrigan's evidence was that its relevance would depend on whether it was a daily event or something which occurred infrequently "every six months, or something like that". If there had not been any report of neck pain for two years prior to the crash, then that would be significant, such that the prior problem with the neck would be "relatively minor, or very minor" ‑ T93.
Dr Berrigan was also cross‑examined about the fact that Mr Matthaus' range of movement in the neck had decreased over the time in which he was consulted. Dr Berrigan said that some patients do have symptoms which worsen over a period of time. An alternative explanation was that Mr Matthaus' deterioration in movement based on what Dr Berrigan first noted in 2008, compared to what he noted immediately prior to trial upon review for trial purposes, was perhaps that Mr Matthaus was then "maximising his symptoms". It might also be a case of "a bad day or a good day". Symptoms from the degenerative process can fluctuate, as they can with a whiplash injury – T88.
Following pre‑trial review, Dr Berrigan reported that Mr Matthaus is still partially incapacitated for work. His condition will improve with time, but it could well last for another three years. He is moderately restricted and still has a 10 per cent disability in the cervical spine ‑ Exhibit 7.4. Dr Berrigan said that Mr Matthaus' neck pain could possibly be improved by a further facet joint injection. He explained in cross‑examination that, "in [his] experience, practically all [patients] do recover in time" from this kind of injury, although medical science is unable to explain why. Five per cent of cases do not "settle down" but, the rest do and "usually the time course is up to seven years". The more severe injuries are less likely to recover in that period of time – T89.
Defence counsel sought to highlight the prior neck problems by calling evidence from Mr Matthaus' chiropractor, Dr L Pereira, who had been treating Mr Matthaus since 21 March 1999 in respect of a lower back pain and discomfort in the right leg following the 1998 motor vehicle crash. Mr Matthaus was also treated by Dr Pereira in respect of neck pain.
The relevant consultations in respect of neck pain and shoulder symptoms began on 8 September 2001. This discomfort had "come on over a period of weeks". There was however only one consultation on that occasion as Mr Matthaus did not return for his next scheduled appointment two days later.
In cross‑examination, Mr Matthaus said that he purchased his house and moved into it during the 2002 financial year. He also purchased Bull‑Chit Auto Electronics around then. He perhaps had some muscle soreness from lifting during the move. "Possibly" the move and work caused neck pain – T52, but there is no evidence of when he moved or when he began work other than the reference to the 2002 financial year. There is no evidence to link the move or this work to the need to consult Dr Pereira in September 2001, or at any other time.
Two years later, on 1 September 2003, Mr Matthaus again attended Dr Pereira with neck pain because he had slept awkwardly. This was followed up on 15 September 2003 when the neck pain had eased slightly, but, the neck was still quite sore. Again, Mr Matthaus failed to keep his next appointment.
One year later, on 12 August 2004, Mr Matthaus awoke with a sore and stiff neck. Then on 11 November 2004, Mr Matthaus again had a sore, stiff and tight neck. A second appointment was not made following these consultations because Mr Matthaus had not attended earlier follow‑up appointments.
Mr Matthaus also attended Dr Pereira on 17 May 2003, 3 June 2003, 11 February 2004, 1 March 2005 and 9 May 2005 for lower back pain.
Mr Matthaus did not then attend Dr Pereira until after the crash. Those attendances were on 10 and 12 April 2007, when he reported with neck pain. He did not keep his next scheduled appointment.
Mr Matthaus was seen more regularly in July and August 2007 but, he then failed to attend an appointment and he did not attend again until January 2008, when he had five appointments during that month in respect of neck pain. He has not been seen since.
Dr Pereira assessed Mr Matthaus as having a chronic neck biomechanical dysfunction ie, the joint does not move correctly – T169, resulting in incorrect proprioceptor responses to the brain. He never completed a course of management to give the joint a full range of movement.
Dr Pereira's report dated 15 October 2008, states that he was of the opinion that:
"… it is very hard to distinguish what is the result of the recent MVA and what was related to work and pre‑existing biomechanical dysfunction as the patient never really corrected any of the biomechanical problems and was mainly treating symptoms" – Exhibit 12.
In evidence, Dr Pereira said that:
"… it is impossible to tell you. Unless you were – you could examine him just before he had his injury and examine him straight after the injury – you don't know the difference" ‑ T171.
However, Dr Pereira said that Mr Matthaus' post‑crash symptoms were "very similar" to pre‑crash symptoms, although Dr Pereira had not seen Mr Matthaus for nearly two years prior to the crash and for some six months after it.
Dr Pereira did not bring with him to the trial any contemporaneous records and he was only able to give reconstructed evidence of what he believed would have been the case when Mr Matthaus attended for treatment. After an objection from Mr Matthaus' counsel, defence counsel did not pursue his line of questioning and there is therefore no additional evidence to give further meaning to Dr Pereira's opinion as detailed above. Indeed, defence counsel conceded that he "couldn't characterize [Dr Pereira's evidence] as impressive" – T224.
Defence counsel also called Dr John Low, occupational physician, who saw Mr Matthaus on 22 October 2007 and 27 January 2010. He provided two reports, being Exhibits 10.2 and 10.3.
At the first consultation, Mr Matthaus told Dr Low, that, "he felt a bit sore at the back of the head the next day" after the crash. Two weeks later, "he noticed stiffness and locking in the neck. … He experienced sharp pain when turning his head". He was referred to physiotherapy, which he attended on a regular basis until Christmas 2006 and then "whilst away interstate, he developed a severe headache lasting two days which was relieved by acupuncture". Mr Matthaus reported to Dr Low that he attended a chiropractor for treatment following his return to Perth.
Mr Matthaus told Dr Low, that, the tingling in the right hand had occurred over "the past two or three months", prior to October 2007. He was then working 25 to 30 hours a week in his outdoor furniture business.
Mr Matthaus reported to Dr Low that there had been no change in his condition for some time. He had good days and bad days. Voltaren relieved his pain.
Mr Matthaus did not reveal any past medical history relating to pre‑crash neck pain.
Following the first consultation, Dr Low was of the opinion that Mr Matthaus had suffered a soft tissue injury to the cervical spine as a result of the subject car crash.
Dr Low did not think that the tingling in the right hand was due to the crash by reason of the length of time between the onset of the symptoms from the date of the crash. Rather, there was another cause, namely the repetitive nature of his work.
Dr Low did not think that Mr Matthaus had been adversely affected in terms of capacity for work, household, social or recreational pursuits. He was fit for full‑time work, but would require an occasional analgesic or anti‑inflammatory medication. He had suffered a minor permanent disability ‑ Exhibit 10.2.
Dr Low again reviewed Mr Matthaus in January 2010, when there was no improvement in his condition. He continued to take Tramadol, Panadol and Voltaren. There was mild restriction in rotation to both sides of the cervical spine and with forward flexion. Such restriction was associated with pain. There was also pain at the base of the neck of the mid‑line with lateral flexion to both sides.
Dr Low was then of the opinion that Mr Matthaus suffers at most a mild soft tissue injury to the cervical spine as a result of the subject crash. The extent of his current condition attributable to that crash is minor. Dr Low was by then aware of the documented history of previous recurrent cervical spine complaints. It was difficult for Dr Low to know whether Mr Matthaus now suffers an aggravation of a pre‑existing injury or condition. Dr Low did not anticipate any additional permanent disability as a result of the crash in October 2006. There was no requirement for future treatment or interventions ‑ Exhibit 10.3.
Dr Low noted in his second report that Mr Matthaus stated at review in January 2010 that there had not been any improvement in his condition since 2007. Dr Low was critical of Mr Matthaus not reporting improvement following the facet joint injections. He also said that previously, Mr Matthaus complained only of pain to the midline and base of the neck area, but in January 2010, pain extended to the left and right sides of the cervical spine – T148‑149.
Dr Low began his second report by noting, amongst other things, that:
(a)Mr Matthaus suffered a neck injury in the 1998 crash; and
(b)Mr Matthaus did not attend a medical practitioner for 17 days after the subject crash.
Dr Low was incorrect on each of these two points. In cross‑examination, he said that he did not rely on either of these points in coming to his opinion, but if that is so, then it might be asked why he should comment thereon at all in his report. He had relied on Dr Pereira's report and the fact that Mr Matthaus had not disclosed either to him, Dr Harper or to Dr Berrigan, that, he had had prior neck problems. Dr Low said that this revealed it to be:
"… likely that he would have recurrent neck problems, because he saw the chiropractor several times over the years" – T157.
Yet the visits are as set out in [64] and [66] – [68] inclusive above, which Dr Low then conceded were "modest attendances" and this concession has to be viewed in light of Dr Berrigan's evidence referred to at [60] above.
The 1998 crash was disclosed to Dr Low by Mr Matthaus in the first consultation. Dr Low reported that following that crash, Mr Matthaus:
"… followed a similar pattern of having to sell his business due to ongoing pain and dysfunction" ‑ Exhibit 10.3, p 6.
When cross‑examined about the relevance of this to his opinion, Dr Low said that:
"… pain is subjective, so they're psycho‑social issues – maybe psycho‑social issues involved in presentation of pain and dysfunction. So this is a definite barrier to successful recovery and rehabilitation" ‑ T158.
However, neither of Dr Low's two reports refers to psycho‑social issues. Further, Dr Low was incorrect about the sale of a business after the 1998 crash. There was therefore no similar pattern to follow. Mr Matthaus was not cross‑examined about sale of a business after the 1998 crash, no doubt because there was no such sale.
Dr Low's later report also referred to "significant litigation following a motor vehicle crash in 1998 with a substantial payout". The following exchange about this comment took place during cross‑examination:
You're suggesting then, are you that he's the last sort of person who gets injured and involves himself in litigation?‑‑‑It looks to me like that is the case.
That's not a medical assessment. That's one for his Honour isn't it?‑‑‑Not really. Because if we want to know, medically, why this person is not getting better despite such a minor incident, we've got to consider all factors, physical and non‑physical. And this is one big glaring phys – non‑physical factor that we have to take into account" – T159.
It looked to Dr Low that a "pattern of behaviour" had developed – T159. However, there is no evidence that there had been litigation following the 1998, let alone "significant litigation", but the claim was settled. The evidence suggests that Mr Matthaus was a front seat passenger (Exhibit 14) and so the inference is open that liability was admitted. There is nothing unusual about settling a claim for damages for personal injuries following a motor vehicle crash. Mr Matthaus cannot be criticised for having settled his claim following the 1998 crash, without more.
Further, Dr Low relied on the fact that Mr Matthaus had returned to work notwithstanding that Dr J Ker, consultant physician in rehabilitation medicine, had reported on 7 August 2000 in respect of the 1998 crash injuries, that, in Dr Low's words, Mr Matthaus "could never, you know‑ could not work effectively …" ‑ T159.
Dr Low described the subject crash as "minor" – T159. Nothing much turns on that description, but he said that neither motor vehicle was towed away, yet on checking his notes, it was apparent that "the car behind was towed away" – T159. His notes also indicated that Mr Matthaus' car had in fact also struck the vehicle in front, such that there were two collisions and he then said that the crash was "reasonably minor" – T160. He had also factored the estimated cost of car repairs into his assessment of Mr Matthaus.
Dr Low also relied on Mr Matthaus having claimed right hand symptoms for the first time following the subject crash, yet, he had previously sought medical advice in respect thereof. This was therefore an inconsistency, and Dr Low was correct in this respect because defence counsel also tendered into evidence a medical report dated 17 July 2006, from Mr Richard Morgan, general surgeon, to whom Mr Matthaus had been referred by Dr Murphy in respect of "numbness affecting all his right hand and fingers worse at night or when driving" ‑ Exhibit 13. Further studies were required. Evidence was not provided of the results of those further studies, if any.
Dr Low also claimed inconsistencies from Mr Matthaus in the facts that he was regularly prescribed Tramadol, Voltaren and Panadeine Forte prior to the subject crash and that the 1998 crash involved "significant litigation", but, Dr Low realised himself during the course of his cross‑examination that these were not inconsistencies at all – T161.
It therefore appears that Dr Low has based his opinion on matters at least including:
(a)"psycho‑social issues" not disclosed in his report;
(b)an erroneous sale of a business after the 1998 crash;
(c)a "pattern of behaviour", including "significant" litigation;
(d)incorrect information about the crash details;
(e)failure to advise of prior neck and right hand medical problems; and
(f)failure to advise of prior neck pain improvement following facet joint injection.
Dr Low was not a treating doctor, but one to whom Mr Matthaus was referred for medico‑legal purposes. Accepting that, he does nonetheless appear to have formed a harsh view of Mr Matthaus, based on some erroneous facts, especially "psycho‑social issues" and his assertion that a "pattern of behaviour" had developed following the two motor vehicle crashes with consequential injuries arising from each, the need to sell a business after each crash and litigation seeking damages. This was, he said "one big glaring phys ‑ non‑physical factor that we have to take into account". However, this statement is not otherwise supported by any evidence apart from that which Dr Low himself gave. Indeed, Mr Matthaus did not submit a claim with respect to this subject crash until mid‑2007, as noted by Dr Low in his second report ‑ Exhibit 10.3, p 1. That is hardly consistent with the "pattern of behaviour" suggested by Dr Low.
Defence counsel also provided a copy of the report referred to above from Dr Ker, consultant physician in rehabilitation medicine – Exhibit 14.
Dr Ker's report detailed the history of medical treatment provided as a result of the 1998 crash and Mr Matthaus' permanent disabilities arising therefrom, including a contusional soft tissue injury to the anterior aspect of the sternum together with an injury to the L4/5 intervertebral disc and damage to the L5 nerve root. He also had a congenital abnormality at the lumbarsacral junction. It was thought that he would suffer increased back pain and stiffness over the years. His back pathology prevented "him from sustaining work as an auto electrician" – Exhibit 14, p 3.
The question which then arises is the causation of Mr Matthaus' present neck and hand complaints. Were they caused by the subject crash, or are they a recurrence of the pre‑crash condition?
In Jasmina Investments Pty Ltd v Vlahos [2009] WASCA 190, Buss JA explained at [24] the relevant causation principle in this way:
"It is not necessary that the [defendant's] negligent act or omission be the sole cause of the [plaintiff's] injury. Causation will be established if the relevant act or omission contributed materially to the damage suffered. See March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 514 (Mason CJ); Chappel [27] (McHugh J).
A court may infer causation by reference to the objective facts and probabilities. Direct evidence is not essential. See Rosenbergv Percival (2001) 205 CLR 434 at [44] (McHugh J).
Causation is, in essence, a question of fact. It is not susceptible of reduction to any one philosophical or scientific formula, such as the 'but for' test. Rather, it is to be resolved as a matter of common sense and experience. See Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268, 277 - 278 (Dixon CJ, Fullagar & Kitto JJ); March, 515 (Mason CJ), 522 - 523 (Deane J), 524 (Toohey J); Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 6 (Deane, Dawson, Toohey & Gaudron JJ). The 'but for' test, applied as a negative criterion of causation, has an important role to play. It is not, however, a comprehensive and exclusive test of causation. See March, 515 (Mason CJ); Bennett v Minister for Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 - 413 (Mason CJ, Deane & Toohey JJ); Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870 [32] (Gummow, Hayne & Heydon JJ)."
At trial, Mr Matthaus could not recall neck problems prior to the crash, but he did refer to a stiff neck from sleeping. He said that:
"… everybody sleeps awkward sometimes I guess. It might have been a stiff neck, I don't know. But nothing – nothing severe. I don't – not that I recall. … after [Dr Pereira] did my lower back, whenever I hurt somewhere I just go and see him" ‑ T22.
Mr Matthaus described stiffness and pain in the neck since the crash and how this caused difficulties with his work ‑ T17, 18, 21‑23, 44, 54, 72. This is consistent with the report of the physiotherapist, Mr Nyman, confirming such complaints by December 2006. Mr Matthaus did not have headaches prior to the crash – T53 and T74.
Mr Matthaus was not really challenged in cross‑examination that he has had neck symptoms since the crash. Rather, the defence contends that those symptoms predated the crash.
Mr Matthaus managed in his work at Jason's Timbers and A Class TimberSteel prior to the crash. His evidence is to the effect, that, by reason of the crash injuries, he could not cope with that work subsequent to the crash. As Dr Harper reported, Mr Matthaus has restrictions to avoid working with his head in a "prolonged downward position" – Exhibit 7.1, p 4 and Exhibit 7.2, p 3. Yet, at times, his work at A Class TimberSteel required him to do just that.
Mr Matthaus is not a sophisticated person. He is a bad historian who really paid little or no regard to a few infrequent stiff neck episodes, some following a bad night's sleep. He did not appreciate their significance, if any, when attending medicos in relation to the subject crash injuries. He did not recall them even when those medicos knew of, and asked about, his attendances upon Dr Pereira.
This should be viewed against the background of significant injury from the 1998 crash and the stoic manner in which Mr Matthaus endeavoured to return to work thereafter, looking for something compatible with his low back injury. Viewed in that context, his neck complaints were not significant and had been forgotten by him. That, it seems, explains why the chiropractic treatment on the neck was not reported to Dr Harper, Dr Berrigan and Dr Low, to each of whom he did report the fact of the 1998 crash with its low back injury because that was significant. Mr Matthaus did not try to deliberately hide the pre‑crash neck symptoms. Rather, when his attention was directed to them, he acknowledged them as best he could. Even in his evidence at trial, he did not really recall them – T22 and T50 and my finding is that that was not because of any endeavour to hide them, but because of their insignificance, to him at least.
Mr van der Feltz gave evidence of Mr Matthaus' inability to do his work T121, 126, 132‑133, 135 and 136. His evidence was that prior to the crash, he saw Mr Matthaus work "day in, day out, six, seven days a week" at Jason's Timbers. But after the crash, they "decided to close on Saturdays" because Mr Matthaus "just needed to recover a bit during the weekend" from work "during the week" – T132.
Mr van der Feltz said that Mr Matthaus could not keep up with the production required at A Class TimberSteel and that therefore, it was necessary to utilize hired labour but, if Mr Matthaus "had not had the accident we wouldn't have needed a labourer" – T132. Mr van der Feltz also said that Mr Matthaus had told him about his neck problem. This is hearsay as to the neck problem, but it is evidence of complaint. There was no evidence from Mr van der Feltz that Mr Matthaus complained about his back prior to the crash and Mr van der Feltz did not notice that Mr Matthaus' back caused him any problem prior to the crash. Indeed, it appears that it was only after the crash that Mr van der Feltz learned of the 1998 back injury suffered by Mr Matthaus – T133.
Mr Matthaus mentioned to Mr Mr van der Feltz the:
"… feeling in his hand, but it was mainly his neck that he was complaining about, and he used – he would, you know, comment to the ‑ the office and then use – use pills and ‑ ‑ ‑ " – T135.
The evidence of Mr van der Feltz is consistent with Mr Matthaus' evidence of neck pain following from the crash.
From an objective medical viewpoint, the neck symptoms suffered by Mr Matthaus were of such significance as to require a referral to Dr Berrigan who performed the injections which provided pain relief of approximately 60 per cent. No‑one is suggesting that Mr Matthaus was in such a pain state prior to the crash that he required such injections. Not even defence counsel suggested that that was inappropriate medical treatment.
On the evidence, there was only sporadic trouble prior to the crash, requiring one or two chiropractic treatments per episode over the course of three years with no further requirement for chiropractic treatment after November 2004 for an almost two year period leading up to the crash. Mr Matthaus was working at Jason's Timbers from February 2005 and then at A Class TimberSteel for six months prior to the crash without the need for any neck treatment.
Prior to the crash, Mr Matthaus could perform the required work at Jason's Timbers and A Class TimberSteel even with his low back pain because that work was mostly performed whilst standing up with his low back in an upright position, but at times his neck had to be bent forwards. He also had to lift, hold things together, carry timber and weld. These were not problems prior to the subject crash, but they were following that crash – T17, 21 and 73.
There is no reason to not accept the evidence of Mr Matthaus that the crash caused his neck injury. Further, there is no reason to not accept his evidence and the evidence of Mr van der Feltz as to the effect of the crash caused neck injury upon Mr Matthaus and his ability to work. It is consistent with the evidence of Dr Harper, Dr Murphy and Dr Berrigan and to a limited extent, with Dr Low's evidence.
I accept the medical evidence of Dr Harper, Dr Murphy and Dr Berrigan and find that the post‑crash neck condition was caused by the crash and is not the consequence of any pre‑crash ailment which only caused infrequent symptoms which had not required even limited chiropractic treatment for about two years prior to the crash.
There is not only direct evidence from Mr Matthaus and the medicos of the crash causing Mr Matthaus' neck problems, but such can, in any event be inferred as a matter of "common sense and experience" from the whole of the evidence, per Buss JA in Jasmina Investments, (supra) and see Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 564.
On the direct evidence of Dr Harper and Dr Murphy, the post‑crash neck injury does not relate to the pre‑crash neck complaints. Dr Harper had Dr Berrigan's first report to hand when he wrote his second report ‑ Exhibit 7.2. He thought that, because the last chiropractic neck treatment prior to the crash was in 2004, the post‑crash neck symptoms did not relate to a pre‑crash neck condition. He saw a definite and sustained link to the crash. Dr Murphy agreed. Dr Harper accepted in cross‑examination however that he did not have any information from Mr Matthaus on which to compare his pre and post‑crash neck symptoms – T78.
I have previously referred to the cross‑examination of Dr Berrigan. He was asked about pre‑existing pain "over a number of years" and "similar symptoms", as to which Dr Berrigan said that it "would come down to 'were his symptoms made worse by the accident.' …".
He commented upon this further in re‑examination as noted at [60] above. The complaints of neck pain to the chiropractor were in September 2001, September 2003 (two consultations), August 2004 and November 2004 with nothing further for almost two years prior to the crash. On Dr Berrigan's evidence, that is significant in comparison with complaints of post‑crash neck pain from Mr Matthaus, because the pre‑crash symptoms had only occurred infrequently and, to use Dr Berrigan's words, those symptoms should be described as "relatively minor, or very minor".
Further, Mr Matthaus received physiotherapy after the crash up to December 2006 and then, acupuncture in January 2007, for severe headaches, but he never attended Dr Pereira prior to the crash with the frequency with which he did after the crash in July or August 2007 ("more regular appointments") or January 2008 ("five appointments") ‑ Exhibit 12. Dr Pereira found it "very hard to distinguish what is a result of the recent MVA and what was related to work and pre‑existing biomechanical dysfunction" (Exhibit 12) but, as defence counsel pointed out, Dr Pereira could not be characterised as an "impressive witness". I do not place much weight on his evidence.
Dr Low, on the other hand, said in his report dated 7 February 2010 that:
"… it is difficult to say from the current information obtained (due to the inconsistency in the history presented and that documented by the chiropractor) whether [Mr Matthaus] suffers an aggravation of a pre‑existing injury or condition but I believe that the contribution of the motor vehicle crash to his current complaint is minor" – Exhibit 10.3.
Further, Dr Low thought that the radiological findings were not relevant to Mr Matthaus' current presentation as these findings were frequently identified in an asymptomatic individual. However, following the facet joint injections by Dr Berrigan, Mr Matthaus experienced improvement in his pain state by some 60 per cent. It was Dr Berrigan's opinion that the pain experienced by Mr Matthaus emanated from the facet joints, yet the radiological report, dated 3 July 2007, was that the facet joints were seen to be normal throughout the cervical spine. But it cannot be said, that, whatever caused the post‑crash pain was such as to require facet joint injections prior to the crash.
However, notwithstanding Dr Harper's view that the right hand symptoms are at least partially attributable to a pre‑existing condition, counsel for Mr Matthaus did not believe that there was enough evidence to assert a claim for compensation in respect of the hand – T220. Those conditions, and more, had been reported previously to Mr Morgan and further, the repetitive nature of Mr Matthaus' work can give rise to this condition irrespective of the motor crash, as set out by Dr Low in his first report.
Dr Harper's evidence was that it might be a further one to two years in which there will be a compromise of future working capacity. His view was that Mr Matthaus has a very mild disability.
Dr Berrigan's opinion is that Mr Matthaus has a 10 per cent disability of the cervical spine. He has a mild to moderate injury following the subject crash. He could be compromised for a further three years.
I accept this evidence from Dr Harper and from Dr Berrigan in particular, because he was a treating doctor who performed the facet joint injections and who could see for himself the effect thereof upon Mr Matthaus. Even Dr Low accepted a mild soft tissue injury of the cervical spine as a result of the subject crash.
Section 3 of the Motor Vehicle (Third Party Insurance) Act requires a determination of the claim for pain and suffering and loss of amenities on the basis of a most extreme case. An appropriate award of damages is 12.5 per cent of a most extreme case in respect of which the current award is $24,375, essentially because of the injury itself and the period of time in which Mr Matthaus has suffered his injury, now being three and a half years. He has also had facet joint injections. Such injections only provided temporary relief, being an approximate 60 per cent reduction in pain. Further, the pain was exacerbated by Mr Matthaus' work performance, such that he had to endure it at work from the time of the crash up until the sale of A Class TimberSteel. The pain continues to the present and he will also be required to endure it for a further unknown period of time. I set out below the effect of the crash injury upon Mr Matthaus' work.
Past medical expenses
The parties have agreed that the sum of $1,757.55 be allowed for past medical expenses.
Future medical treatment
In his report dated 11 February 2009, Dr Berrigan has estimated the cost of analgesics for Mr Matthaus as being $100 per month. This is confirmed in his later report dated 17 March 2010.
Dr Berrigan reported that Mr Matthaus' symptoms could last for another three years. Dr Harper reported that his work capacity could be affected for a further one to two years. Thus it can be inferred that there might be a need for medication during such period.
Dr Low reported that analgesic requirements relate to the 1998 low back claim as evidenced by the notes from St Andrews Medical Group and to a certain extent, from Innaloo Medical Centre. Dr Murphy gave evidence that the medication for Mr Matthaus' low back pain, in effect, covers his cervical symptoms – T96.
Dr Ker reported that the low back disc pathology may advance further and result in more intensive back pain of a mechanical nature. Any such advance will continue to require medication which should also cover any need for medication for any neck condition arising from the subject crash.
Therefore, the probability is that the medication which Mr Matthaus requires for his low back will also cover the requirement for medication in respect of his neck condition and to that extent, there is no need for future medical treatment in respect of the neck injury.
There may be some requirement for future treatment by way of periodical reviews which may be required by a general practitioner, with perhaps some specific physiotherapy or chiropractic treatment. A future injection might also be possible on Dr Berrigan's evidence and in that regard, I will allow the sum of $500.
Economic loss
I have previously described the way in which Mr Matthaus came to be in partnership with Mr van der Feltz.
From about May 2006, Mr Matthaus and Mr van der Feltz organised the clearing of the total area of land upon which Jason's Timbers had operated. They only required about 300 square metres of that total area for A Class TimberSteel, with the remainder thereof being subdivided and sublet for use as a drive‑through coffee shop and a garden centre. That clearing work and erection of the coffee shop was completed by 14 December 2006. The clearing work for the nursery was completed by January 2007 ‑ T121 and T122.
Mr van der Feltz organised a new head lease of the entire area relating to the 2,800 square metres from 1 May 2007. That lease was for five years, with two further five year options for renewal. He also arranged for the subleases of the garden centre and the coffee shop. They too are each for five years, together with two five year options for renewal. As it happens, the rent received on the subleases returns a very healthy profit to Mr Matthaus and Mr van der Feltz on the cost of their head lease.
Following the crash, Mr van der Feltz did not seek to invoke cl 10 of the partnership agreement relating to the incapacity of Mr Matthaus.
In April 2007, Mr van der Feltz hoped that Mr Matthaus would recover from his motor vehicle crash injuries, "but that didn't seem to eventuate" – T130. The business was then making money and Mr van der Feltz was "definitely optimistic" that it would return a greater profit. The turnover increased. Repeat orders were being received. Labour costs went down from the start of 2007 because the land clearing was then complete. The business was unable to find sufficient skilled labourers to assist Mr Matthaus in the production of outdoor furniture.
Nevertheless, in April 2007, Mr van der Feltz and Mr Matthaus terminated their then partnership. Thereafter they immediately executed two new partnership deeds, both on 20 April 2007, the first being for A Class TimberSteel, again for a two year period, and the second in respect of the head lease and the two subleases. Mr Matthaus gave evidence that the old and the new partnership agreements for A Class TimberSteel both required him to provide all labour for the manufacture of outdoor products. Employed labour, he said, was not part of either agreement ‑ T72.
Mr Matthaus was cross‑examined regarding the new partnership agreement executed in April 2007 requiring him to work a minimum of 38 hours per week. He knew that that was his part of the partnership agreement. He committed himself to doing that and saw no reason why he could not do that. He said both that he was working those hours if need be, and also, that he was only able to partly meet that commitment. He could not meet those hours all the time, even though such was expected of him – T113‑115.
Mr Matthaus gave evidence that the work of A Class TimberSteel was physically demanding, but he was managing prior to the crash. Prior to the crash, neck pain had not been a problem at work for Mr Matthaus. He was then able to weld, because he was upright – T16. He had difficulties with carrying steel, holding things together, welding, carrying timber – T17.
However, after the crash, Mr Matthaus required help to "carry steel, lifting and unloading stuff off the trailers, from the sandblaster, cutting packs of timber, any – any of the physical things I was having trouble with" – T73.
Mr Matthaus had trouble after the crash in dealing with such office work as he performed, namely designing products and in sending emails which he said "weren't so stressful on my neck". However, "bending my neck forward for periods of time, hurt. It still does. … and then bend ‑ leaning forward, doing the sketching. I just found all sorts of problems starting to occur" – T18.
Bending forward is the worst aggravator of neck pain – T21. Mr Matthaus did not have to bend his back to perform welding – T39. Mr van der Feltz said that Mr Matthaus "could not even keep up with ‑ with the – with the welding" – T131.
Mr van der Feltz gave evidence that Mr Matthaus' working capacity was clearly different after the crash on 13 October 2006 compared to what it had been before the crash ‑ T121. There had been labourers employed by the partnership prior to the crash in order to clear the yard so as to enable the subleasing to occur. Those labourers began working for the partnership in early May 2006.
Mr van der Feltz said that prior to the crash, Mr Matthaus made the furniture but, on occasions, he did obtain assistance from labourers in the furniture business, if required rather than have labourers clearing the yard. However, after the crash, Mr Matthaus could not perform all of his pre‑crash tasks. He needed help. He required to have a rest and he could not keep up with the required production ‑ T123.
Mr van der Feltz said that:
"If Stephan had not had the accident we wouldn't have needed a labourer and would have kept the business anyway, because he would have been able to keep up with production" – T132.
Mr van der Feltz went on to describe how Mr Matthaus had previously worked at Jason's Timbers "day in, day out, six, seven days a week" – T132. Following the crash, it was necessary to close the business on weekends "because Stephan just needed to recover a bit during the weekend from – from the work during ‑ during the week" – T132.
He said that Mr Matthaus:
"couldn't [complete all orders] – he could not physically work five, six days a week welding up frames and – and – and he definitely couldn't do all the work with – with screwing the timber on and everything stopped. The welding he was best at, but he couldn't do it as the way he did it before" – T125.
Mr van der Feltz gave evidence of the unsatisfactory work performed by labourers in production work for A Class TimberSteel. They might, for example, be instructed how to cut timber, but, notwithstanding such instruction, they would still cut it incorrectly and then that would mean that such timber could not be used and the profits would disappear – T123 – 124.
As Mr Matthaus could not do all of the production work after the crash, and satisfactory labour could not be found to assist him, Mr van der Feltz worked as a labourer to Mr Matthaus. Such work included sanding, oiling, and screwing down boards. Mr Matthaus was unable to continue with the welding. Welding requires the welder to bend the head and that is what Mr Matthaus could not do. It was not possible to obtain a welder at that time – T131. The reason for that, it was explained, was that, during the economic boom, labourers and welders were not seeking work in Perth but rather, they were seeking higher wages in mining areas in outlying regions. Mr van der Feltz could not weld.
At some stage, a large order was received from Ngarda Alliance together with a repeat order from the Point Samson Tavern. Ngarda Alliance was pushing to have its order produced, but that and the Point Samson Tavern order could not both be concluded at the same time.
Mr van der Feltz knew from a business point of view, that, it was bad business to rely heavily on one customer and to fail to keep up with the orders of other customers, and if it were not possible to do so, then, the business should be sold to someone who could keep up with the orders, notwithstanding that it was still in its infancy and had not yet reached its full potential – T124‑125.
It was clear to Mr van der Feltz that the partnership could not meet the orders to hand. His reasoning was that Mr Matthaus could not do more work "because of the accident" – T126.
In consequence of all of these matters, Mr van der Feltz determined that it was appropriate to sell the business of A Class TimberSteel rather than risk losing repeat customers. If that custom was lost, then, the value of the business would necessarily be substantially reduced.
Mr van der Feltz also said that had the partnership been able to obtain decent labour, then, he and Mr Matthaus would not have been forced to sell A Class TimberSteel and he would have continued with that business. He said that Mr Matthaus:
"… needed someone to help with production and we needed someone to help with production because Stephan could not keep up. …We couldn't find anybody to help with production that was suitable and that's why we were – we saw ourselves forced to sell the business, which we didn't want to do, because it was making good money. … If we would have got a whole competent labourer, I would have worked less and we would have got on the ‑ ‑ ‑ kept the business. … and probably if – if Stephan hadn't – well, probably – if Stephan had not had the accident we wouldn't have needed a labourer and would have kept the business anyway, because he would have been able to keep up with production. Because in a situation like with that big order from [Ngarda Alliance] Gap Ridge Village, you would have said, 'Look, I'm going to work six days a week' and one of the things we did, after that accident, before then, as you can see in the partnership agreements, we were open on Saturdays. Stephan would work two Saturdays for one Saturday that I would work. We decided to close on Saturdays, because Stephan – because Stephan just needed to recover a bit during the weekend from – from the work during – during the week. And before that, when he'd had Jason's Timbers and I've seen that, he – he would work there day in, day out, six, seven days a week" – T132.
Mr van der Feltz said that had it not been for the crash, the partnership in respect of A Class TimberSteel would have subsisted until at least about now before Mr van der Feltz would have considered selling that business. This is because he wanted the business to show a consistent profit over a reasonable period of years before he would sell – T126.
In the end, Mr van der Feltz summarised his evidence as to the reason for selling the business as follows:
"We sold the – the – the business because we had to, and I wouldn't say that we got a fairly healthy income from the ‑ sublease from A Class TimberSteel, if that's what you're – you're aiming at. I was never in this business for the money. As I said to you, I am a Baron. I'm a wealthy person. I didn't do it for the money for me but I did enjoy the business. At that time, I had no inclination whatsoever to sell the business, but I did not want to work the hours that I worked and I didn't want to do the work that I was doing. Stephan was not keeping up with the work. He couldn't do the work. Physically he couldn't do the work. The – the A Class TimberSteel is leasing an area of 300 square metres on King Edward from us at $2000 a month. That is ridiculously low. That same area would probably be worth double or if not triple to another tenant. We had to sell the business. We had to sell it for far less than it was actually worth. Had we kept it for another at least two, three years, or had we leased either the area at market rate, but we couldn't find anybody to buy the business and neither one of us wanted to sell the business and just say, 'well, we'll just aim for – for – for a high rent' because you don't know what you're getting and we knew we've got A Class TimberSteel there. It's a good business. We built the business" ‑ T135 – T136.
Mr Matthaus rejected cross‑examination to the effect that the business was sold to make a tidy profit. He thought that the profit could have been greater. He would have preferred not to sell, but decent labour could not be located. Mr Matthaus said that if skilled people were employed at a higher cost, then, that would have reduced profits and the earnings from the business were not that much. The real problem was that he could not keep up with production – T71. Mr Matthaus would have preferred to continue making furniture – T68.
I find as a fact that the business was sold for the reasons advanced in the uncontradicted evidence of Mr van der Feltz and Mr Matthaus. If it had not been for the crash caused neck injury to Mr Matthaus, then the partnership would have subsisted until at least April 2010, in accordance with the partnership agreement.
A Class TimberSteel was sold by contract dated 6 June 2008 to Mr and Mrs Noel Wood for the sum of $112,500 comprising $7,500 for goodwill, $85,000 for plant, equipment and stock and $20,000 for incomplete orders ‑ Exhibit 9.1.
Mr Noel Wood gave evidence that he and his wife purchased A Class TimberSteel from Mr Matthaus and Mr van der Feltz. He and his wife:
"… run it pretty well. My son does come and give us a day a week just to help us out, but just the two of us. Possibly if it keeps going we might look at putting someone else on but we'll see how it pans out" ‑ Exhibit 2, p 5.
Mr Wood indicated that the sales had grown since he and his wife purchased the business, but he did not disclose the 2009 or any later sales figures.
Mr Wood gave evidence about the heavy nature of the work in the business. He said at T4, Exhibit 2:
"It is quite demanding. You've got to – we use a lot of team lifting or forklift, even when we get packs of steel in we run them in on trolleys and lift them up in pairs. We don't do it all on our own. But the tables, once they're put together we need the forklift to move them around. To bolt seats and so forth on, you've got to be flexible to get down underneath to put them together" ‑ Exhibit 2, p 4.
Mr Wood's evidence was that his wife does all the quotes and office work and he cuts the steel and welds the frames with power tools.
Mr van der Feltz was also aware that, in addition to A Class TimberSteel, Mr Matthaus also operated an auto electrical business, being Bull‑Chit Auto Electrics, doing an "odd job here and there, … because he had to keep his qualifications … valid" – T135. Mr Matthaus continues to operate that auto electric business which is something he can do if he keeps working on trucks and drilling equipment, but he has limitations at least insofar as cars are concerned.
Mr Matthaus told Dr Harper that after selling A Class TimberSteel, he only performed odd jobs during the next 12 months as he endeavoured to rest as advised to do by one of his doctors. But he said that he cannot "relax". He has a "big mortgage" and "children" – T168. He resumed work in September 2009 for financial reasons, at first doing nine hours per week. This had increased to 15 hours by December 2009. Mr Matthaus told Dr Low that he took eight to nine months off after selling A Class TimberSteel.
On 12 June 2009, Mr Matthaus purchased a truck for Bull‑Chit Auto Electronics utilising benefits of the Commonwealth government's economic stimulus plan. The cost of the truck was $42,485. He has sought to obtain work with it, as it is less stressful for his neck – T68, but it has not yet provided a real stimulus to his income. It has however provided significant taxation benefits.
As noted above, Mr Matthaus has had the benefit of receiving his half share of the sale proceeds from A Class TimberSteel. A large proportion of those funds have been invested in the truck. He also increased his turnover in Bull‑Chit Auto Electronics by an approximate $10,000 in the financial year ended 2009. Later figures are not to hand. He presently charges $60 per hour, which equates to $110,400 gross per annum over 40 hours per week for 46 weeks a year, so as to allow for four weeks annual leave and 10 days of statutory holidays. As noted above, his hours are presently limited and no doubt many of his overheads are fixed without reference to hours worked per week. It is difficult to speculate on the future financial returns of this business.
Mr Matthaus' gross income from all sources has been as follows:
Bull‑Chit Auto Electronics
Jason's Timbers
A Class TimberSteel
Leases
2003
$36,205
2004
$23,953
2005
$15,813
($3,378)
2006
$756
($22,372)
($14,928)
2007
($9,209)
$15,085
$11,873
2008
($11,460)
$37,862
$48,183
2009
($36,224)
$99,550
The known financial year sales of labour and parts in Bull‑Chit Auto Electrics as follows:
2006$ 2,128
2007$ 4,508
2008$ 4,748
2009$15,400
It is not possible to further separate labour from the cost of parts in the above figures.
The only known gross sales from Jason's Timbers were for the 2006 financial year, being $292,932.
Further, the gross financial year sales from A Class TimberSteel were as follows:
2006$ 21,152
2007$164,910
2008$182,322
In Mastaglia v Burns (2006) 32 WAR 427 at [89] Martin CJ said that when considering economic loss, regard is to be had to the "lost earning capacity, not simply lost earnings". Further, at [163], Buss JA said that:
"A plaintiff who has suffered personal injuries as a result of a defendant's negligence should receive damages 'in a sum which, so far as money can do so, will put him in the same position as he would have been in if … the tort had not been committed': Butler v The Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191."
Before proceeding further, it is necessary to note that the partnership of Mr Matthaus and Mr van der Feltz, trading as A Class TimberSteel, was a true commercial partnership to which each partner brought different and unique skills. They agreed between themselves to the payment of an equal salary to each and to an equal division of profits and losses based on their respective skills notwithstanding their expected, but different hours of, contribution to the partnership. In this regard, even though Mr Matthaus was to provide all the manufacturing skills and hence be the sole income producer of the partnership in terms of product, it would not have flourished had Mr van der Feltz not had his managerial and marketing input into it. From these facts, and the terms of both partnership deeds relating to A Class TimberSteel, it is not just a matter of inference that the skills each of the two partners brought to the business were to be regarded as equal.
Mr Matthaus and Mr van der Feltz were not a husband and wife team who formed a partnership for taxation benefits and one in which only one party was truly working and earning all the income of the partnership and the other not so working. Mr Matthaus would never, in this partnership, have had the whole of the partnership income under his control or at his disposal unless he purchased Mr van der Feltz's interest in the partnership. The partnership agreement cannot be ignored, as to which see Mastaglia v Burns (supra) at [147] and [176], noting that notwithstanding the difference in approach between the majority justices of appeal, being McLure JA, as she then was, and Buss JA, that, the result is the same when considering past loss whilst the partnership was operating.
Past economic loss
Mr Matthaus claims past economic loss as follows:
(a)a share in the profit of orders referred to in the contract of sale dated 6 June 2008 to Mr and Mrs Wood in respect of which $20,000 was received in respect of $71,500 of incomplete orders;
(b)for his reduced hours in the business of A Class TimberSteel;
(c)the cost of his substitute labour in that business; and
(d)loss after the sale of the business to date.
From the Bar table, counsel for Mr Matthaus indicated that the business operated on approximately two thirds overheads. That would reduce the claim for incomplete orders of $71,500 referred to in the contract of sale to less than an approximate $24,000. $20,000 was received therefor as outlined above leaving the maximum claim of less than $4,000 of which, Mr Matthaus would only be entitled to half. In any event, counsel for Mr Matthaus accepted that such claim is in respect of damage which is too remote and is not claimable – T9.
Accepting that compensation is to be provided for the loss of earning capacity, it is to be noted that the only detailed evidence of Mr Matthaus' reduced hours impacting on the non‑fulfilment of orders is that detailed in the contract of sale to Mr and Mrs Wood. Otherwise, there is no evidence of loss of sales because Mr Matthaus was only able to work reduced hours. The inference is that substitute labour compensated for his reduced hours. It follows that the claim for Mr Matthaus' reduced hours is met by the claim for the cost of substitute labour which was employed for the purpose of meeting Mr Matthaus' reduced capacity in the business.
Dr Harper's first report, dated 18 February 2008, referred to Mr Matthaus' work capacity being reduced, although Mr Matthaus could continue as a furniture fabricator. He was, then however, advised against work as an auto‑electrician, driver or administrator ‑ Exhibit 7.1, p 4.
Dr Harper's second report, dated 9 March 2010, permitted normal hours of work as an auto‑electrician only on trucks and heavy vehicles. He could also be a driver. He could work in furniture fabrication, but, Dr Harper did not comment about hours of work in furniture fabrication ‑ Exhibit 7.2, p 3.
Mr Matthaus was cross‑examined on the basis that he knew that Dr Harper had reported that he was fit to carry out work manufacturing furniture. Mr Matthaus agreed – T63. However, Dr Harper was aware that following the crash he only worked reduced hours in that business. He was also aware that he had had an assistant. Dr Harper was not asked in evidence whether his opinion, so put to Mr Matthaus, was in respect of normal weekly hours or reduced hours. He did say in cross‑examination that in February 2008, Mr Matthaus could continue work as he was then doing – T78. At that time he was then working reduced hours. Certainly it is the case that Dr Harper found it difficult to precisely assess Mr Matthaus' work capacity.
Dr Harper reported that Mr Matthaus could work on a full‑time basis with restrictions. He was not further examined as to the detail of that opinion.
I have however previously referred to Dr Harper's opinion that Mr Matthaus is still restricted from working with his head in a prolonged downward position or in an awkward position or repetitively turning his head. He is also to avoid heavy lifting. These restrictions apply directly to the work he performed at A Class TimberSteel, however it is to be noted that he had difficulty with lifting prior to the crash.
Dr Berrigan thought that Mr Matthaus would have been partially incapacitated from his usual occupation from the date of the crash and that he continues to remain partially incapacitated with a 10 per cent disability in the cervical spine.
There is therefore medical evidence from Dr Harper and Dr Berrigan of a reduced working capacity since the crash which is consistent with the evidence of Mr Matthaus and Mr van der Feltz. I am therefore satisfied, that, and make findings of fact, that, the neck injury suffered by Mr Matthaus in the crash has interfered with his ability to work in the production of heavy duty furniture, but which work he was able to perform prior to the subject crash, notwithstanding the 1998 low back injuries. This reduced capacity caused Mr Matthaus to reduce his hours of work in A Class TimberSteel. Dr Murphy's evidence is consistent with that finding and even Dr Low accepted that Mr Matthaus suffers at most a mild soft tissue injury to the cervical spine as to which, the crash is a minor contributor. It is therefore not disputed that he has a neck injury.
One difficulty is to assess the past economic loss in light of the fact that several labourers were employed in A Class TimberSteel but, they were not all times directly manufacturing furniture products. Rather, such labour was mainly utilised for the other purpose of clearing the land in order to sublease parts of it as a garden centre and a drive‑through coffee shop. That labour would have been employed for clearing purposes in any event. The breakdown of the different work performed by that labour was not detailed in evidence.
Mr Matthaus' claim for his reduced hours in the partnership is properly calculated by reference to the cost of substitute labour to replace him and to perform the production work which he was unable to do. A schedule of all employees working in the business, and their respective incomes, is detailed in Exhibits 5, 6.1, and 6.2. Payments in the 2007 financial year to labourers employed in the business after the crash, noting that there were no payments between December 2006 and February 2007, were as follows:
From 13 October 2006 to 15 December 2006
From 1 February 2007 to 30 June 2007
1.
R Griffiths, from 13 October 2006 to 24 November 2006
$2,857.10
‑
2.
D Carson, 1 November 2006
$ 738.37
‑
3.
K Mason, 24 November 2006
$ 415.90
‑
4.
J Maloney, from 15 December 2006 to 5 June 2007
$ 837.77
$6,522.36
5.
B Mollet, from 16 March 2007 to 4 May 2007
‑
$3,753.00
6.
J Born, 13 June 2007 to 21 June 2007
‑___
$4,894.14
$ 491.00
$10,766.36
Payments to labourers in the 2008 financial year, noting that there were no payments after 1 December 2009, were as follows:
7.
M Cavanagh, 10 August 2007
‑
$114.15
8.
S Currie, from 6 September 2007 to 7 September 2007
‑
$216.97
9.
L Major, from 21 September 2007 to 6 December 2007
‑
$5,293.20
$5,624.32
In respect of the employee R Griffiths, the sum of $925.21 was paid on 13 October 2006, being the date of the crash, and given the other dates of payments to her and the amounts thereof, all within the region of $800 to $1,000 per fortnight, it can be inferred, that, the $925.21 paid on 13 October 2006 related to earlier earnings during the period before the crash and accordingly, those earnings have been excluded from the above figures.
The wages of B Mollet were incurred solely as a substitute office worker for Mr van der Feltz when he worked on production – T30. All labour from February 2007 can be directly attributed to production because the clearing for, and the erection of, the coffee shop had been completed by December 2006, save for the fit‑out thereof – T121. The garden centre land was cleared by January 2007 – T122.
It is of course impossible to determine the precise cost of substitute labour for furniture production from 13 October 2006 to 15 December 2006. However, the figure is somewhere between zero and $4,849.14.
Payments after the completion of the clearing works from 1 February 2007 to 1 December 2007, and therefore in respect of furniture production, can be readily determined at $16,390.68. This figure can be broken down into $10,766.36 for the 2007 financial year and $5,624.32 for the 2008 financial year.
The total of all payments made to substitute labour from the date of the crash is the sum of $21,239.82.
Mr Matthaus earned $15,085 and $37,862 gross from A Class TimberSteel in the financial years ending 30 June 2007 and 2008 respectively. Thereafter, had the business not been sold, the income from it could reasonably have been expected to increase, as it has done, in accordance with the evidence of Mr Wood.
The lower earnings in the 2007 financial year are explained not only by the creation of a new business following a loss in the 2006 year, but also by reference to the fact that most of the substitute labour was employed in the 2007 financial year.
Mr van der Feltz was also providing labour during 2007 and then in 2008 to assist Mr Matthaus and that contributed to the decision to sell the business because Mr van der Feltz neither wished to work the hours he was required to do, nor did he wish to work at all, and Mr Matthaus could not perform all of the work ‑ T135.
In addition, some allowance should be made for superannuation and workers' compensation insurance as they are each part of the total cost of the substitute labour, notwithstanding that these matters were not dealt with in evidence other than that there is reference to superannuation and insurance in the financial documents.
The cash payment records identify payments in respect of employees' superannuation, but not after L Major ceased work. This last payment was made on 23 June 2008 – Exhibit 5, p 42. From the tax returns of the partnership, superannuation payments in the sums of $1,999 and $751 were made in the 2007 and 2008 years respectively – Exhibit 4 pp 84 and 95. This is a total of $2,750.
Employers are required by law to pay superannuation at the rate of 9 per cent of each employee's earnings. Thus, on the earnings between 13 October 2006 and 15 December 2006, superannuation of $436.42 was required to be paid. On the earnings from 1 February 2007 to 6 December 2007, superannuation of $1,475.16 was required to be paid. This is a total of $1,911.58.
The first wages were paid on 5 May 2006. Insurance payments were made to SGIO and CGU, but the insurance interest in respect of those payments was not disclosed.
The first monthly payment to SGIO of $251.26 was on 15 May 2006. Those payments continued until 15 March 2007. A payment was not made in April 2007, but from May 2007 until September 2007, monthly payments were reduced to $135.30. Thereafter, the payments ceased.
The first payment to CGU of $343.16 was on 30 June 2006, but that was probably a payment for two monthly instalments being May and June 2006, because thereafter until April 2007, the monthly payments were in the sum of $171.58. From May 2007, these instalments reduced to $129.91. Later in January 2008, they increased to $132.64.
From September 2007, additional payments were made to CGU in the sum of $135.30, but, it was at this time that the payments to SGIO ceased. The payments were for the same amount. This leads to an inference that the SGIO policy may have been replaced by another with CGU. In April 2008, the payments reduced to $42.48 per month and they ceased in July 2008, as did the other monthly payments of insurance.
The tax returns indicate that insurance premiums in the sums of $4,027 and $1,596 respectively were paid in 2007 and 2008 financial years (Exhibit P4, pp 84 and 95).
The 2009 tax return indicates that a refund in the sum of $863 was received from CGU for insurance premiums during the 2009 financial year (Exhibit 4, p 105), but the detail is not known. The cash receipts schedule shows the figure received from CGU to be the sum of $1,167.25 (Exhibit 5, p 57).
It is impossible to say which payments were made for workers' compensation, but it was a requirement by law to effect such insurance and there is evidence of payments to insurers, although such payments continued well beyond the employment of labour having ceased. Between May 2006 and April 2008, amounts in excess of $3,000 each were paid first, to SGIO and then CGU if the latter took over the policy from the former and secondly, in respect of the other CGU policy.
It is therefore not possible to calculate the precise total cost of substitute labour to the partnership after allowing for wages, superannuation and workers' compensation insurance. This cost is spread over the 2007 and 2008 financial years, with approximately two thirds of that cost being incurred in the 2007 financial year and the remainder in the following year.
I have already found that following the subject crash, Mr Matthaus had a reduced working capacity in the business of A Class TimberSteel and that that incapacity directly impacted on his ability to work in that business, such that he in fact worked reduced hours. I also find that substitute labour was hired to cover for his reduced capacity, together with Mr van der Feltz who himself engaged in that labour, which he would not otherwise have done, had it not been for the crash. That in turn led to some of the employed labour being utilised in the office to cover for Mr van der Feltz whilst he assisted Mr Matthaus.
The total cost of labour was met by the partnership, not solely by Mr Matthaus. A provision should be made for the cost of substitute labour to cover only an allowance for the production of outdoor furniture and not for clearing the leased premises. Therefore, the true cost to the partnership to December 2007 is the cost of the substitute labour in respect of furniture production, the exact amount of which cannot be precisely ascertained. Further, Mr van der Feltz supplied additional labour at no cost, whilst there was a cost of labour to replace him in the office when he assisted Mr Matthaus with production.
As the partnership agreement provided for an equal division of the profit and loss, the loss suffered by Mr Matthaus is one half of the cost of the substitute labour. This cost applies until at least the termination of the partnership as reflecting what Mr Matthaus would have had under his control and at his disposal had it not been for the crash injury.
The partnership concerning A Class TimberSteel was terminated on the sale of the business, but my finding is that it would have subsisted in accordance with the partnership agreement until April 2010, at least, if not for the crash. Mr Matthaus may have wanted it to continue thereafter, but Mr van der Feltz may not have agreed to do so. The interests of both partners in the business may have been sold or Mr van der Feltz may have sold his interest in it to Mr Matthaus. This was not explored in evidence.
No income has been received from A Class TimberSteel at all after the sale of it and the termination of the partnership relating to it. Settlement took place on 18 July 2008 and possession was then delivered.
Some provision needs to be made for past loss of earning capacity in that Mr Matthaus suffered partial loss of capacity to earn income before the sale of the business and he has earned nothing from it after the sale of the business.
However, upon receipt of his share of the sale proceeds, being $62,500, Mr Matthaus has had the benefit of investing that share, although he purchased his truck from those sale proceeds 11 months later, which thereby reduced the amount remaining for investment.
Further, Mr Matthaus should reasonably be expected to have mitigated his loss of earnings from A Class TimberSteel by engaging more fully in his business of Bull‑Chit Auto Electronics. He said that he was advised to rest after selling A Class TimberSteel, but the source of that advice was not provided in evidence. However, he would not have rested had he kept on with A Class TimberSteel. He indicated that there was an economic slowdown after the sale of A Class TimberSteel. It was during that slowdown that he purchased his truck with significant taxation benefits. He thought that work with it would be easier on his neck.
It is not possible to determine what Mr Matthaus' actual work income is from Bull‑Chit Auto Electronics because the sales figures include both labour and parts but, regard should be had to Mr Matthaus starting up a full‑time business from July 2008 in a trade for which he is qualified. Given his 1998 low back injury, he is restricted and can only perform certain work in that trade.
The claim for past economic loss must therefore allow for one half of the cost to the partnership of substitute labour, including some provision for superannuation and workers' compensation. Further, the claim also includes provision for the reasonable expectation of earnings of Mr Matthaus from A Class TimberSteel from the date of sale thereof to at least the expiration of the partnership in April 2010.
However, such past loss is to be mitigated by income received on the sale proceeds of A Class TimberSteel and the earnings from Bull‑Chit Auto Electrics, which can reasonably be expected to have increased since July 2008. Further, any amount should be reduced for income tax and the Medicare levy for such past loss. Finally, some provision needs to be made for interest on past economic loss.
Given that the evidence does not permit a precise calculation of past economic loss of earning capacity, I propose to allow a global sum of $40,000 therefor.
Future economic loss
The crash occurred some three and a half years ago. Resolution of Mr Matthaus' symptoms is expected to be sooner rather than later. Dr Berrigan expressed the outer limit for resolution in 95 per cent of all cases to be 7 years. He also thought that a further facet joint injection would possibly improve Mr Matthaus' condition.
Dr Harper reported that Mr Matthaus' work capacity would improve over the next one to two years. He is presently restricted to working reduced hours as a furniture fabricator which is the work he was doing prior to the crash and the evidence from Mr Woods is that A Class TimberSteel has continued to provide improved profits. Having been forced to sell that business, Mr Matthaus is earning a reduced income from auto electrics as he re‑establishes a business in that trade. He is not qualified for anything else.
Dr Berrigan also said that Mr Matthaus remains partially restricted from working in his usual occupation. That occupation was, at all material times, outdoor furniture production. I have already made findings of fact to that effect.
Mr Matthaus does have restrictions in employment as an auto‑electrician as reported by Dr Harper. Dr Low also reported that he still had a mild cervical spine soft tissue injury notwithstanding that the contribution of that injury to the crash is minor. As manufacturing outdoor furniture cannot be attempted, at least into the near term, Mr Matthaus has fallen back on his trade to earn an income. He is trying to do that, but he still has limitations in that regard. He has to build up his business. He is not a sophisticated person as I have noted and he does not have Mr van der Feltz to help him build up that business in the same way that he ceased trading as Jason's Timbers and began A Class TimberSteel. I have previously commented that it is difficult to speculate on the future financial performance of this business. It depends on the hours with which Mr Matthaus can cope working in it and it also depends upon him building up a clientele in what is effectively a new business.
Prior to the crash, Mr Matthaus had the capacity to perform the furniture production work of A Class TimberSteel. He exercised that capacity and he earned the known income that it provided. The crash caused him to lose that capacity and he will not recover that capacity for some unknown future time, but such is expected to be less than three and a half years from now.
I will allow $25,000 for future economic loss, noting here that the previous partnership does not restrict an assessment of future economic loss – Husher v Husher (1999) 197 CLR 138 at [18].
Superannuation
I make no provision for superannuation as claimed by reason that Mr Matthaus was self‑employed at the time of the crash and that his earnings, in total and from which he should make any contribution desired to superannuation, are those set out in the financial records and which have been transferred into his tax returns.
Summary
There are no other claims for damage. I am therefore prepared to allow damages as follows:
Loss of amenities $24,375.00
Past medical expenses $ 1,757.55
Future medical expenses $ 500.00
Past economic loss $40,000.00
Future economic loss $25,000.00
Total$91,632.55
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