McCarthy v The Nominal Defendant

[1999] NSWSC 1194

CITATION:	McCarthy v The Nominal Defendant [1999] NSWSC 1194
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	20329/97
HEARING DATE(S):	8, 9 & 10 November 1999
JUDGMENT DATE:	9 December 1999
PARTIES :	Steven John McCarthy (Plaintiff) The Nominal Defendant (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr M Maxwell (Plaintiff) Mr A Quinlivan (Defendant)
SOLICITORS:	Matthews Dooley Gibson (Plaintiff) Hunt & Hunt (Defendant)
CATCHWORDS:	Motor vehicle accident; Liability; Damages; Negligence; Contributory Negligence; Due inquiry and search; Non economic loss; Past and future loss of earning capacity
CASES CITED:	Froom v Butcher [1976] QB 286 at 292-293 Yisrael v Chamberlain John Deer 5 MVR 491 Blandford v Fox (1944) 45 SR (NSW) 241 at 245 Lawrence v The Nominal Defendant (1984) 1 MVR 388 Slinn v The Nominal Defendant (1964) 112 CLR at 334 Harrison v The Nominal Defendant (1975) 50 ALJR 330 Nicholl v NSW Insurance Ministerial Corp MVRSC (NSW) Malec v JC Hutton (1990) 169 CLR 638
DECISION:	See paras 60 and 61

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 9 DECEMBER 1999

20329/97 - STEVEN JOHN McCARTHY v
THE NOMINAL DEFENDANT

JUDGMENT (Motor vehicle accident,

liability, damages)
1   MASTER: The plaintiff sues the defendant The Nominal Defendant for damages for personal injuries sustained by him on 20 November 1991 when he was driving a semi-trailer, and an unidentified vehicle in front of him stopped suddenly causing him to take evasive action and cross onto the incorrect side of the road and hit an oncoming semi-trailer. The plaintiff alleges that his injuries were caused by the negligence of the driver of the unidentified motor vehicle. The defendant denies liability and alleges that if liability against it is established the damages to which the plaintiff would otherwise be entitled ought to be substantially reduced by reason of the plaintiff’s own contributory negligence.

2   The plaintiff was an interstate truck driver who was employed by Cook Transport Pty Limited. He regularly drove between Sydney and Perth on an express freight route. He drove a 1982 Kenworth W model prime mover owned by his employer. The vehicle which the plaintiff was driving on the date of the accident consisted of the prime mover, a sleeping compartment (or dogbox) directly behind the prime mover and a trailer. At the time of the accident the trailer was unladen.

3   On 19 November 1991 the plaintiff had left Perth and had pulled up at the border village on the Western Australian/South Australian border. Ms Karen Burn was travelling as a passenger with the plaintiff. At the border village at about midnight they stopped, ate a meal and had a couple of hours rest. He stopped somewhere for fuel and had a coffee break. At about 6.30 to 7.00 am the plaintiff arrived at Port Augusta where he and Ms Burn took a shower. After a 45 minute break the plaintiff drove towards Adelaide. The plaintiff was as bright as a button and fully alert. Ms Burn was asleep in the sleeping compartment located at the back of the prime mover.

Negligence

4   At about 10.30 am on 20 November 1991 the plaintiff was driving his Kenworth prime mover articulated vehicle with an unladen trailer in an southerly direction along National Highway One on route to Sydney. The accident occurred about 100 metres north from the turn off to Milcowie in South Australia. The road was straight and it had a bitumen seal. There was one lane in each direction and a broken centre line. The weather was dry and clear. The road ran north to south and was in good condition.

5   The plaintiff’s account of the accident is as follows. He was travelling south along the road and there were a couple of cars and a truck ahead of him. On the other side of the road cars and trucks were travelling on the road towards him. He had clear vision for a couple of kilometres ahead. He had observed a car and truck in front of him travelling in the same direction for about 15 minutes. In front of him was a truck, followed by an early model blue Holden with black and white number plates (the unidentified vehicle), and there were two other vehicles behind the blue Holden and then the plaintiff’s semi-trailer. The two cars in front of the plaintiff’s semi-trailer overtook the blue Holden. There was a truck in front of the older model blue Holden but the truck was not holding up the traffic. The two other vehicles overtook the Holden. After that occurred, the plaintiff kept his semi-trailer about three to four car lengths behind the unidentified vehicle as this distance would enable him to stop if the unidentified vehicle were to stop gradually.

6   The plaintiff had been travelling behind the blue Holden car for some minutes. He was travelling at about 90 kilometres per hour. The speed limit was 100 kilometres per hour. According to the plaintiff the unidentified vehicle stopped dead in the middle of the southbound lane. The brake lights at the rear of the Holden did not light up. He applied the brakes on his semi-trailer hard, the wheels of his prime mover stopped rotating and locked. If the brake lights on the Holden had come on he would have had time to pull up (t 45). At the time the plaintiff’s vehicle braked it was two or three car lengths behind (t 50). The trailer and prime mover locked up and the cabin started to rotate clockwise. The cabin of the prime mover was forced over the white line as it was being pushed by the trailer. The plaintiff saw that he was three to four metres away from an oncoming semi-trailer approaching from the north. The prime mover and the trailer jack knifed. The right hand side of the plaintiff’s cabin hit the bull bar and right hand side of a truck being driven by Mr Cook which was approaching in the opposite direction on its correct side of the road. Mr Phillip Francis Cook had a passenger in his vehicle, a Mr Franz Ronald Denk.

7   The plaintiff gave evidence that he was not wearing a seat belt and when he saw that the crash was imminent he either jumped or was thrown left to the passenger side of the vehicle. He said that the windscreen was broken on the passenger side and the gear stick had been broken. The plaintiff’s evidence was that the lower left rear of the cabin and door had been crushed. He landed in the passenger floor well in front of the seat. He did not lose consciousness. He heard a lot of crashes and stayed there until his vehicle came to rest. The plaintiff’s semi-trailer finished up 100 feet down the road on the correct side of the road. The front wheels of the prime mover were buried into the dirt.

8   According to the plaintiff the rear wall of the truck’s cabin had caved in such that it would have come into contact with the driver’s seat. The driver’s seat had been bolted to a metal sheet in the floor of the truck. The plaintiff gave evidence that the bolts had become disconnected in some way and the whole box had been ripped off the floor. The driver’s seat had come forward and left towards the gear stick. I shall return to consider the subject of intrusion into the driver’s space under the heading of contributory negligence. The right mud guard and bonnet which had been made of fibreglass were damaged. The driver’s door was bent in half. The plaintiff climbed out of the passenger side window and said that he went over to assist the driver in the other semi-trailer. He had blood pouring out of his head. It is my view that the plaintiff is mistaken when he said that he went over to assist the driver of the other semi-trailer as this evidence conflicts with that of Mr Cook and Mr Denk, the driver and passenger respectively in the other vehicle.

9   The sleeper box on the plaintiff’s vehicle became dislodged and Ms Burns climbed out of it. The plaintiff helped her out of the side door. The plaintiff denied that he was not paying attention and found himself boring down on the unidentified vehicle. He was positive that the door on the unidentified vehicle was not open as if that had been the case he would have taken the door of the Holden off. The plaintiff acknowledged that if he had seen the Holden on the road from a distance of 100 metres, he would have had enough time and distance to pull up safely.

10   The road traffic accident report dated 21 November 1991 (Ex L) records a similar version of events to that given by the plaintiff. It refers to the vehicle in front of the plaintiff’s vehicle “stopping suddenly”. The SGIC accident report form completed by the plaintiff on 22 February 1993 (Ex F) records the car travelling in front of the plaintiff’s truck and braking very suddenly without warning. In all other respects these reports are consistent with the version the plaintiff gave in evidence.

11   Mr Cook gave evidence. He has been a truck driver for 31 years. He had a good recall of the collision. Mr Cook was driving a Kenworth Labourer with 36 foot wide weight saver tipper which was carrying 22 tons of barley. About 30 minutes prior to the accident he had loaded the barley at Milcowie and was travelling towards the Port Pirie silos. Mr Cook was heading north and had just come over a small rise in the road. He had clear vision of the straight road in front. He did not notice any cars travelling northward ahead of him. He was travelling at about 90 kilometres per hour. He noticed a semi-trailer travelling south in the opposite direction. He places the other semi as travelling at about 90 kilometres per hour. Mr Cook’s truck was in top gear. He was not wearing a seat belt nor was his passenger Mr Denk. He saw an older model HQ blue Holden with a white roof travelling south in front of the semi-trailer. The semi was four to five car lengths behind the Holden. Mr Cook said that the Holden “dropped anchor” and the semi hit the brakes. He did not believe that the Holden had come to a dead stop before the semi’s tyres started smoking (t 83). Later Mr Cook said that the plaintiff dropped anchors before the Holden became stationary and the Holden was still moving forwards by the time the plaintiff slammed on his brakes. In re-examination Mr Cook said that he got the impression that the Holden was slowing down and the Holden’s driver did not just hit the brakes and “go voom”.

12   Mr Cook saw smoke coming from the tyre hub on the semi and the semi pulled to the right. It was his view that the plaintiff did everything to avoid hitting the Holden. There was about 50 metres between the blue Holden and the semi-trailer when the semi-trailer “locked her up”. Mr Cook realised that he was in trouble and had to get his vehicle out of the way so he turned his vehicle hard to the left and put his foot on the accelerator so that he was heading towards a paddock. He saw the prime mover jack knife and move towards his vehicle.

13   Mr Cook heard a double bang, the first bang occurred up near his cabin. The first bang dug out the bull bar on the driver’s side and broke the right hand tank on his vehicle. The second hit took out the tri-axel on his trailer. Both doors of Mr Cook’s semi-trailer were jammed. He got out the driver’s side window and Mr Denk got out of the passenger side window. He could smell diesel so got up the embankment and sat down. He saw a Telecom employee grab Mr McCarthy and put a towel around his head. He said that Mr McCarthy was “A mess mate. There was blood everywhere.” Mr Cook did not feel too good either and sustained back injuries although he did not lose consciousness. The blue vehicle was gone by that stage.

14   Mr Cook said that Mr McCarthy had two passengers, a male and a female. Both the plaintiff and Mr Denk, Mr Cook’s passenger, disagree and say that there was only the plaintiff and the female passenger in the plaintiff’s vehicle. It is my view that Mr Cook is mistaken about a male passenger being in the plaintiff’s vehicle at the time of the accident.

15   Mr Cook said that the door of the blue Holden was not open. He said that the Holden was travelling at about 90 kilometres and that the plaintiff’s truck travelling behind was not gaining on the Holden. He did not think that the truck and the Holden were separated by about 100 metres. It is also Mr Cook’s view that had the plaintiff’s truck been 100 metres behind the Holden when the Holden braked the plaintiff could have pulled his truck up safely.

16   Mr Denk who was a passenger in Mr Cook’s vehicle gave evidence. He first saw the Holden a couple of metres ahead. The first time that he realised that there could be a problem was when the semi-trailer which the plaintiff was driving was 150 metres from the Holden. The Holden looked like it was moving very slowly like it was almost stopped. He said that he saw the car door open when they were only a second or two away from it. He put it at being between 100 and 150 metres at least. He estimated that when the Holden door opened the plaintiff’s vehicle was 100 metres behind but that could be out by 10 to 20 metres. He thought the driver of the Holden was an elderly gentleman who opened the door and reached out to picked something up. The car door was open for a couple of seconds then it was closed and the driver proceeded to drive off. He gave a similar story to the police in a telephone interview on 27 June 1994, which is about two and a half years after the accident (Ex 4). According to Dr Denk the Holden started to drive off and the truck behind it had already started to brake as it was not driving in a straight line any more. He described the impact between the two semis as being significant. He climbed out of the passenger window and saw that the plaintiff was being attended to by some Telecom people. He said that there was no male passenger in the plaintiff’s vehicle. Mr Denk said that he was not concentrating on the road as he was a passenger and was sightseeing as well.

17   Mr Denk has a fairly clear recollection about the actual incident but the rest of his recollection is a little hazy. When the Holden stopped he did not assess the speed of the truck. Once he realised that the Holden was stopping he concentrated on the road because he could see that an accident was imminent. He did not think that at the time that the blue vehicle commenced to stop the truck was four car lengths behind. However he was of the opinion the plaintiff did all that he could to avoid the accident.

18   I accept the evidence of the experienced truck drivers, the plaintiff and Mr Cook that the plaintiff’s semi was three to four car lengths behind the blue Holden which was a reasonable distance on a National highway. The plaintiff was travelling within the speed limit at 90 kilometres per hour. I find the Holden stopped suddenly without warning middle of the southbound lane. The rear brake lights of the Holden did not light up. The plaintiff applied his brakes on his prime mover and did all he could to avoid a collision with the Holden. The brakes in his vehicle locked causing the cabin of his vehicle to go onto the wrong side of the road into the path of the oncoming semi-trailer driven by Mr Cook. The driver of the unidentified vehicle, namely the blue Holden had a duty of care to all the users of the road. He had a duty to take reasonable care to avoid foreseeable injury to other road users such as the plaintiff. It was foreseeable to the driver of the blue Holden that if he stopped his car suddenly, without warning in the middle of a lane on National Highway One, a truck or other vehicle may not have enough time to bring his vehicle to a stop behind the Holden or may swerve to avoid an accident with the Holden and go onto the wrong side of the road into the path of oncoming traffic. The driver of the unidentified vehicle breached the duty of care he owed to the plaintiff and was negligent.

Contributory Negligence

19   The defendant alleges that the plaintiff was guilty of contributory negligence in that he failed to keep a proper lookout; failed to brake soon enough or at all in time to avoid a collision; failed to take care for his own safety; was driving too fast in the circumstances so as to be able to perform a normal braking procedure to avoid other vehicles on the road; was being inattentive and failed to wear a seat belt. The situation of danger was created by the unidentified vehicle which must bear the far greater responsibility. The evidence of Mr Cook and Mr Denk which I prefer, is that the Holden did not stop dead but stopped suddenly. If the plaintiff had applied his brakes sooner than he did, the amount of damage he suffered may have been less. However it is acknowledged that it is likely on the balance of probabilities that had the driver of the Holden applied his brakes in the normal manner, the plaintiff would have been able to bring his vehicle to a stop without incident and the accident would not have occurred. Also if the Holden’s brake lights had been working, the plaintiff may have had earlier warning that the car in front was braking. In considering the question of apportionment the court is required to reduce the damages recoverable “to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”. The inquiry is not concerned with the cause of the accident but with the cause of damage - see Froom v Butcher [1976] QB 286 at 292-293. It is my view that the plaintiff’s damages should be reduced by 15% for contributory negligence.

20   Both parties tendered experts’ reports and those experts were cross examined. The main issue in dispute was whether the plaintiff would have suffered injuries of the same magnitude had he been wearing either a lap belt or a lapsash seat belt. In New South Wales at the time of the accident truck drivers did not have to wear a seat belt where the vehicle was over two tonne. However, it is accepted that it is safer for road users to wear a seat belt in case of an accident. The plaintiff referred to Yisrael v Chamberlain John Deer 5 MVR 491 where Clarke JA stated that it is necessary for a defendant who seeks to charge a plaintiff with contributory negligence on the ground that he was not wearing a seat belt at the relevant time to prove that the seat belt with which the relevant vehicle was equipped was available to the injured person and was in good working order. The plaintiff admitted that the prime mover had a seat belt, but was not asked the type of seat belt ie., lap or sash seat belt. However, there was no evidence as to whether or not the seat belt was in working order. Although the plaintiff was not the owner of the vehicle, he had regular use of it. I do not infer that the seat belt was operative. The defendant has not made out its case that the plaintiff failed to wear a seat belt. I do not make any reduction for contributory negligence for failure to wear a seat belt.

21   If I am wrong on the onus of proof in relation to the wearing of the seat belt I will consider whether the plaintiff would have suffered injuries of the same magnitude had he been wearing a seat belt. Both experts agreed that there was damage to the right rear of the cabin. The plaintiff gave evidence outlined previously that the driver’s seat was dislodged and that the driver’s occupant space was invaded, but from the photographs and the evidence of Mr Griffiths I do not think this is so. It is difficult to say whether the plaintiff would suffer injuries of a lesser or greater magnitude.

22   Mr Griffiths, a biomedical and mechanical engineer referred to the accident as being a typical sideswipe incident where the vehicles disengaged each continuing in its original direction. This does not accord with Mr Cook’s version that there were two distinct bangs and the plaintiff heard a lot of crashes until they came to a stop. Mr Griffiths stated:

“If he had worn a lap only, or a lapsash seatbelt, he would have been restrained in his seating position, and would have been able to “ride down” the impact, while the right front corner of his truck was engaged in the side swipe incident with the right hand side of PHILIP COOK’s vehicle. He would not have been thrown uncontrollably around his truck cabin interior. He would not have received the injury to his C6 vertebra. Any minor lacerations or bruising he received would have been considerably reduced in magnitude, because he would have had the benefit of “ride down” of the impact, and any contact of his body with interior surfaces of the vehicle would not have had the full weight of the rest of his body behind them.”

23   Mr Grant Johnson, a consulting engineer stated:

“The impact configuration and impact forces, in my opinion, are sufficient for a driver (restrained only by a lap belt) to have experienced sufficient upper torso excursion forward and to the left, such that it would result in a head strike of the left side of the steering wheel or whatever components were positioned on the dashboard and centre console to the left of the steering wheel. In my opinion the magnitude of this force was sufficiently great that I cannot concur with Mr Griffiths’ conclusions that it would have resulted in only minor bruising and grazing. This would especially be the case if there were solid structures in this vicinity which could have been struck by Mr McCarthy’s head as it travelled forwards and to the left.”

24   Taking into account the evidence of the plaintiff and Mr Cook, it is my view that even if the plaintiff had been restrained by a seat belt in the driver’s seat, it is more likely than not that he would have hit his head on the steering wheel or dashboard in the accident and suffered injuries to his neck. He would have suffered injuries of a greater magnitude than mere cuts and bruises. I am not satisfied on the balance of probabilities that had the plaintiff been wearing a seat belt he would have suffered injuries of a lesser magnitude in the accident.

Due inquiry and search

25   Advertisements were placed in the Recorder, a paper circulating in the Port Pirie area on 12 April 1994 (Ex K) and the Advertiser, a paper circulating in the Adelaide area (Ex J). They described how the accident occurred and referred to an unidentified motor vehicle that may have been a blue HQ Holden sedan which was involved with a Kenworth truck No NX 32BH and trailer No TAN 743. The advertisements asked that any person who witnessed the accident or had any information as to the identity of the unidentified vehicle should contact the plaintiff’s solicitors. It is agreed that there was no response to those advertisements. It is also agreed that the police did not locate the unidentified vehicle.

26   At the scene of the accident the plaintiff asked the person who rendered assistance to him and Mr Cook if they were able to assist with the registration number of the unidentified vehicle. The plaintiff gave evidence that he told the police about the blue Holden and the police said that they had had a look for the blue Holden.

27   At the scene of the accident Mr Cook spoke to a woman who had been driving a white station wagon. She told him that an older man with a limp who drove a blue Holden had pulled her up at the top of the rise to the south. The older man told her that there was a horrific accident and could she get on her radio and call for help. Mr Cook passed on the information from this woman to the police at the scene. He also saw two Telecom employees talking to the police. Mr Cook spoke to the police about the blue Holden. He also had a conversation with the police on two or three occasions over the next few months concerning the identity of the driver of the blue Holden. He was told that they had not been successful. Mr Denk also spoke to the police at the scene of the accident and drew a diagram. Two and a half years later he made a statement to police and referred to the blue Holden.

28   The plaintiff must prove that all reasonable means practicable were used to try and establish the identity of the vehicle - see Blandford v Fox (1944) 45 SR (NSW) 241 at 245 and Lawrence v The Nominal Defendant (1984) 1 MVR 388. Where inquiries provide leads they should be followed up - see Slinn v The Nominal Defendant (1964) 112 CLR at 334. It is necessary for a plaintiff suing the Nominal Defendant to adduce evidence upon which it can be found that the identity of the vehicle which caused the injury cannot after due inquiry and search be established. This does not mean that the inquiry and search must have been made by or on behalf of the plaintiff. Nor need there be in every case some activity, separate and independent of an inquiry, which can be designated as a search. The word “due” accommodates to the circumstances of the case the nature and extent of the inquiry and search which is required. In Harrison v. The Nominal Defendant (1975) 50 ALJR 330 it was held that it is unnecessary for a plaintiff to take steps that are unlikely to yield results merely for the purpose of form or ritual of apparent compliance with the section.

29   In Nicholl v NSW Insurance Ministerial Corp, Motor Vehicle Reports SC (NSW), Simpson J says that the combined effect of the decisions of Slinn and Cavangh is that a plaintiff may rely on enquiries made by others but is not bound by inadequacies in those enquiries if not in a position to make or have made appropriate enquiries himself or herself.

30   It is my view that the police were appraised of the description of the unidentified vehicle immediately after the accident. They searched for the vehicle without success. No-one at the scene of the accident knew the registration number of the blue Holden other than the number plates were black and white. Advertisements, admittedly two and a half years after the accident, were placed in a local newspaper and other newspapers circulating in South Australia with no response. It is my view that the plaintiff has made all reasonable means to try and establish the identity of the vehicle. He has conducted a due enquiry and search.

Non economic loss

31   The plaintiff was born 22 August 1953 in Sydney. He attended Lynwood Park primary school followed by Blacktown high school. In 1969 he left high school after completing fourth form. Between 1969 and 1972 he was an apprentice bricklayer with Oswald Siebalds. He completed that apprenticeship but did not attend a Tafe course. In 1972 the plaintiff married. Also in that year he was issued with a class 5B licence and commenced employment as a truck offsider/loader.

32   Between 1972 and 1987 he was employed as a truck driver doing mainly interstate truck driving. He was employed on a casual basis spasmodically for three to four years by F & J Murphy which has now gone into liquidation. In that job he had to secure his own loading. He was not sure how much time he had off but he could work for about one and a half months and then have a week off. He also worked with Wells Transport and other different companies. He says he had plenty of work.

33   In 1987 he became employed by Cook Transport Pty Limited as an interstate truck driver. Essentially he was travelling between Sydney to Perth return on an express freight route. He worked with his employer every week of the year and usually each week he made a return trip from Sydney to Perth. In 1989 he was issued with a Western Australian licence. As he had been a truck driver nearly all of his working life he intended to continue on in this employment until the age of 65 years. He says that he would have continued to work with Cook Transport and had a job with them as long as he wanted it.

34   Prior to the accident the plaintiff had been in good health. The plaintiff was taken by ambulance to Port Pirie hospital where he remained for a few hours. X-rays were taken of his skull, cervical spine and forearm. He was given some pain killers and he was suffering some pain in his head. After he was released from hospital he was taken back to the scene of the accident and collected some of his possessions. He was taken to the bus depot at Adelaide and he caught a bus back to Sydney. The trip back to Sydney was very painful as he could not lift his head up and his head felt like a bowling ball. The pain was excruciating.

35   On 24 November 1991 the plaintiff attended Liverpool hospital. He was suffering a massive pain in his head and neck, pain in his right forearm and tingling in his fingers in both hands. He had x-rays of his head, neck and chest and came under the care of Dr Magee-Collett. The x-ray of the cervical spine showed that mild changes of cervical spondylosis were present with some disc space narrowing at CV6/7 and moderate osteophytic encroachment of the neural foramina at this level on both sides. The plaintiff was given a philadelphia collar and he was told to keep it on for a period of six weeks. He was released from hospital and underwent physiotherapy for about three weeks. The plaintiff said that the physiotherapy did not help and he felt like he was getting worse.

36   Between 1991 and 1996 he consulted his local general practitioner Dr House when he was staying at his mother’s house at Blacktown. He resided with his mother on and off from 1991 to 1996. During this time he suffered from neck pain, headaches, back pain and pain down the back of his legs. He was prescribed medication of Endone, Valium, Panadeine Forte and Prozac to be taken every day. He felt that this medication regime did not help. While he lived with his mother he said that he was not capable of doing any work and spent his time generally laying around the house. His mother did his washing, cooking, cleaning and took care of the outside duties such as mowing the lawn as the plaintiff said his physical condition left him unable to assist. Prior to the accident he says he would have carried out these duties himself.

Subsequent motor vehicle accident on 4 January 1997 and its effect on the plaintiff's injuries sustained in the 20 November 1991 accident

37   On 4 January 1997 the plaintiff was involved in a motor vehicle accident. He was a passenger in a motor vehicle which hit a tree. He suffered an orbital blow out of his right eye. He had the top of his forehead ripped out and his eye came out. He had an operation on his eye and was left with some scarring on his forehead above his right eye. As a result of this accident his vision is blurred. This accident heightened the pain and the soreness in his neck and back but he was sore all over. He said that prior to this accident in 1997 his back and neck could not have got any worse with the pain. He could undergo a further operation to his right eye in relation to the blurred vision but that operation carries a big risk which he is not prepared to take. He says that even if his eye was fixed he still would not be able to work because of the pain in his neck and back. In relation to the 1997 accident an arbitration award was made on 30 November 1998.

38   The plaintiff says that he has had constant lower back pain every day since 1991. The plaintiff’s version does not accord with the contemporaneous records of Drs McGee-Collett and Buckley who saw the plaintiff after the first accident and before the second accident. I accept the plaintiff’s history of back pain as recorded by these doctors. The plaintiff denied that he told Drs McGee-Collett and Buckley that the lower pain only came upon him now and again. According to the plaintiff the pain has got progressively worse. He denied that the level of neck and back pain became worse after the 1997 accident. According to the plaintiff, except for a short time after the accident the pain reverted to what it was before the 1997 accident except that he now had blurred vision as well. The plaintiff says that for two days of most weeks he ends up in bed because of his back. The plaintiff agreed that he told Dr Webster in 1998 that the absolute worst pain he had was persistent back pain which had been significantly worsened by the 1997 accident.

39   Dr McGee-Collett was the plaintiff’s treating neurological surgeon who initially saw him at Liverpool hospital. It is not disputed that the plaintiff suffered a fracture of the C6 and C7 radioculopathy in the 1991 accident. The plaintiff’s cervical spine at that time showed early degenerative change. The injury to the C7 caused the plaintiff to have permanent numbness to his right middle and index fingers. In February 1992 Dr McGee-Collett recorded that the plaintiff had a persistently stiff neck but there was no mention of any back pain. In February 1993 Dr McGee-Collett recorded “nagging neck pain” and bilateral leg pain extending down posterior aspect of both thighs as far as the knees. The plaintiff had intermittent low back pain. In May 1996 Dr McGee-Collett recorded that the plaintiff’s major problem was chronic neck pain and every two to three weeks the plaintiff experienced a bout of lower back pain with pain extending down the back of both thighs as far as the knees for a period of two to three days before spontaneous resolution.

40   Dr Buckley interviewed and examined the plaintiff on 21 April 1996. Dr Buckley detailed the plaintiff’s neck pain as being constantly present. Like Dr McGee-Collett he recorded that the plaintiff’s back was not usually too bad but he did have severe exacerbation lasting a few days. The last exacerbation was the month prior to the consultation. Dr Buckley’s prognosis was that the cervical and lumber impairment would be associated with osteoarthritic change and remissions of back and neck pain.

41   When the plaintiff lived at Mulgoa the property had 300 acres of land and he did not maintain these lawns. Either Amy Ripti mowed the lawns or someone else did. Ms Ripti did the plaintiff’s washing and carried out all the household chores.

42   In October 1997 the plaintiff moved to Port Macquarie and now lives in a housing commission house. He shares the house with Krystyna Wasiuta and her daughter. The plaintiff said that the pain in the lower base of his back down to his knees stopped him doing outside work at Mulgoa and Port Macquarie. The plaintiff had a motor vehicle and when he lived at Mulgoa he used it to drive to the shops. He still owns a motor vehicle but is unable to drive it because he cannot turn his head to see what is behind him so he had to stop driving.

43   Ms Wasiuta gave evidence. She has known the plaintiff for nine years and now is a tenant in the plaintiff’s house with her 9 year old daughter. Between 1992 and 1997 Ms Wasiuta saw the plaintiff every couple of months for a few hours. She said that during that time when she saw him he was always complaining about the pain in his lower back and neck. Since October 1997 to date, since she has been occupying the same house, she says that the plaintiff complains about headaches, neck pain, shoulder pain, lower back pain and pain in his legs when ever he is walking. Ms Wasiuta said that when the plaintiff is watching television he has to hold his head up and he can get fidgety and uncomfortable. He lies down every day when the pain comes in his back. She attends to the domestic tasks as the plaintiff does not do anything around the house. She has observed him taking medication in the morning and afternoon. She says that after medication he becomes drowsy and he is unable to focus properly and gets agitated, angry and anxious. She said that the physeptone makes him feel sick. She said that he cannot drive as the medication makes him drowsy and he is not able to turn his neck.

44   In relation to the 1997 accident, his complaints to her were mainly about his eye and face. Ms Wasiuta said that the plaintiff complained that the accident in 1997 aggravated his neck. He did not mention his back. She said that the pain in his neck was always there from the beginning and that after the accident it was the same.

45   At the present time the plaintiff says he is not capable of doing any work. He suffers from constant lower back pain and neck pain. He has headaches every day and has numbness in the index and second fingers on his right hand and numbness in his right big toe. The pain in his back runs down his legs to his knees and 18 months ago he started taking physeptone which is a close derivative of methadone. He takes these tablets four times per day and gains relief for one hour when the tablets kick in. He had tried swimming but it was too painful. He tried the exercises given to him by a pain clinic but they were too painful and created more pain. Physiotherapy is not of any benefit to him.

46   It is my view that the plaintiff has exaggerated the level of pain to his lower back he suffers as a result of the first accident. I find that after the first accident the plaintiff suffered lower back which radiated pain down the back of both thighs as far as his knees for a few days every three weeks to a month. The low back pain would then resolve itself. Prior to the 1991 accident he had some degenerative changes in his lumbar cervical spine which were asymptomatic. The plaintiff has suffered constant severe neck pain and numbness in his right middle and index fingers caused by the C7 radioculopathy which were caused by the 1991 accident. He has had numbness in the right toe on his right foot since the accident. His lower back pain was aggravated by the second accident which became constant and more severe after that accident. His neck pain was always constant and after an initial heightening of pain after the second accident it went back to its pre 1997 condition. He has daily headaches of cervical spine origin. He needs to take painkillers for his neck. He cannot go back to truck driving or work involving heavy labour. He cannot drive a car for long distances. The plaintiff’s life has been significantly impaired. He was 38 years of age at the time of his accident. I assess the plaintiff's non economic loss at 50% of the most extreme case. This sum amounts to $136,500.

Past and future loss of earning capacity

47   The plaintiff submitted that since the accident he has and will remain totally unfit for any work, ie., he has no residual earning capacity. He claims past and future economic loss at the rate of $500 nett per week. It is common ground that the plaintiff is not fit to go back to work as a truck driver or undertake a job involving heavy labour. It is agreed that in the three years prior to the accident the plaintiff earned an average of $500 nett per week. The defendant conceded that the plaintiff was unfit for work for a period of six months after the accident.

48   Up until 1997 the plaintiff thought he would get better and go back to work but he did not. He says that he is incapable of working as a storeman as he is unable to lift anything. He said that he did not go back to work prior to 1997 “because if he could have he would have done so”.

49   Dr Buckley’s view was that the plaintiff’s work capacity as at 1996 was that he should not undertake heavy manual labour, lifting should be restricted to no more than 16 kg and he should have a five minute break every hour when he can sit down rather than stand. He should not be required to work for long periods with his arms above shoulder height or at benches lower than his waist. Dr Buckley believed that the plaintiff should be capable of full time work and is capable of undertaking work such as a shop assistant, light factory work, stores and similar duties.

50   Dr House in his report dated 8 May 1996 expected that the plaintiff would continue to have pain and restriction of working ability for the rest of his life. Dr McGee-Collett considered that there was no prospect of the plaintiff returning to his previous occupation as a truck driver and little prospect for a significant improvement in his quality of life or occupation prospects. Dr Farey said that as he had not undertaken gainful employment since his initial injury, statistically he would not return to work. He holds the view that the second injury ensured that he would not return to any form of gainful employment. Dr Douglas in his report dated 20 August 1997 stated that that as the plaintiff did not have any clerical training he was probably unfit for clerical or sedentary work, and secondly if he were to carry out light physical work he would need to rest frequently , would not be able to look up, to bend repeatedly nor lift heavy loads. Dr Griffith in his report dated 20 September 1997 and Dr Bencsik in his report dated 27 October 1999 say that the plaintiff is permanently unable to perform any gainful employment as the plaintiff would be limited in the ways outlined by Dr Douglas.

51   Mr O J Burchett, vocational psychologist in his report dated 4 August 1998 says that the plaintiff has transferable skills in customer service, time management, communication and organising abilities that could be applicable in a range of entry level jobs in the business and clerical fields. He says that in light of this data and with the qualification mentioned the plaintiff’s most suitable vocational possibilities are likely to be found in the associate professionals and intermediate or elementary clerical, sales and service workers categories of the Australian Standard Classification of Occupations. Some of the specific occupations that he could consider include ticket seller, betting agency counter clerk, museum or gallery attendant, hand packer - light industries, product assembler - light industries, tourist information officer, telemarketer, caretaker and car park attendant. If the plaintiff is prepared to undertake further training, he could consider motel manager, caravan park manager and shop manager.

52   It is my view that the plaintiff would have continued to be employed as a truck driver until the age of 65 years. The plaintiff is now a 46 year old man who until the accident on 20 November 1991, was in almost continual employment as a truck driver. He has not worked since this accident. He has been educated to fourth form at school and has had no other formal education. He was unfit for full time work up to 22 February 1993. He is permanently unfit for truck driving or a courier which involve rotation of the neck and work involving heavy labour. (See report of Dr McGee-Collett). After 22 February 1993, the plaintiff was capable of part time work of three days duration, lesser hours for five days provided the work did not involve heavy lifting, prolonged standing, and where he would be able to take rests. I assess the plaintiff’s loss of earning capacity at $200 per week nett. The difference between the earnings as a truck driver ($500 nett per week) and less $200 nett per week. The weekly loss of wages from 22 February 1993 to date and for future is assessed at $300 nett per week.

53   Past economic loss from 19 November 1991 to 22 February 1993 = 65 weeks x $300 nett = $19,500.

54   From 22 February 1993 to date, past economic loss is calculated at 52 x 6 + 44 weeks = 356 at $300 nett per week = $106,800.

55   Future economic loss is 19 years (multiplier 646.2) at $300 nett per week less 15% for vicissitudes = $164,781.00.

Out-of-pocket expenses

56   The amount claimed is for the sum of $1,688.05 which is repayable to the Health Insurance Commission (Ex A). I allow this sum.

Future medication

57   The plaintiff currently takes physeptone for pain. It costs $13.30 per week (t 28). It is my view that as a result of the accident the plaintiff will continue to experience pain in his neck and to a lesser extent in his lower back and will required pain killers for the rest of his life. I allow this sum $13.30 x multiplier 870.8 = $11,581.64.

Future surgery and medical treatment

58   In 1996 Dr Buckley opined that the plaintiff may undergo one cervical discectomy and anterior fusion, one lumbar laminectomy and discectomy during his life. These operations cost $8,026 each in 1996. Dr Bencsik suggested that a surgical cervical fusion may benefit the plaintiff but he believed that the plaintiff would be unlikely to accept the surgical procedure. The costs of a spinal fusion is $10,050. Dr Brimage in his report dated 28 October 1999 says that there is a greater than 50% chance of the plaintiff undergoing surgery to the spine some time in the next 15 years and costs it at $10,000. Dr Farey in his report dated 2 October 1998 is of the opinion that the plaintiff is unlikely to require surgery in the future. The plaintiff did not find physiotherapy or the pain clinic of any assistance so I would not allow any amounts for these items. Although Dr Buckley suggested spinal surgery prior to the second accident, the need for the operation may have become more of a reality after the second accident. It is unlikely that the plaintiff would choose to undergo spinal surgery. However, he may change his mind in the future. In accordance with Malec v J C Hutton (1990) 169 CLR 638 an award for damages should reflect this possibility. I make an allowance of $3,500.

59   Dr Brimage suggested that it would be in the plaintiff’s best interest to be treated and monitored by a neurologist who could prescribe medication such as Epilim, amitriptyline or buclizire. The costs of these medications used would approximate at $1,000 per year and the visits would approximate at $1,000 per year. The plaintiff does not seem to gain much benefit from medication. I have already allowed for the cost of Physeptone. He may in the future use a different medication which costs the same. However I agree that as the plaintiff appears to be on a very strong painkiller, it is reasonable that he be allowed to visit a specialist every couple of years. I will also make some allowance for additional medication in the future. Doing the best I can, I allow $15,000.

60   The defendant is to pay the plaintiff’s costs as agreed or assessed.

SCHEDULE


$

(1) Non economic loss 136,500.00

(2) Out-of-pocket expenses 1,688.05

(3) Past economic loss 126,300.00

(4) Future economic loss 164,781.00

(5) Future medication 26,581.64

(6) Future surgery 3,500.00
459,350.69
(7) Less 15% for contributory negligence 68,902.60

Total 390,448.09

61   I propose to enter judgment that the defendant pay to the plaintiff the sum of $390,448.09 once the calculations have been checked by the parties. The defendant is to pay the plaintiff’s costs as agreed or assessed.

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Last Modified: 12/09/1999