McFadyen v Jenson
[2015] ACTSC 12
•13 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | McFadyen v Jenson & Anor |
Citation: | [2015] ACTSC 12 |
Hearing Dates: | 11 April 2014, 26 May 2014, 16, 17 October 2014 |
DecisionDate: | 13 February 2015 |
Before: | Burns J |
Decision: | There will be judgment for the plaintiff in the sum of $104,447.95. The defendants are to pay the plaintiff’s costs of the proceedings unless some other costs order is sought within 14 days. |
Category: | Principal Judgment |
Catchwords: | TORTS – Negligence – road accident cases – liability admitted – assessment of damages. |
Parties: | David McFadyen (Plaintiff) Andrew Jenson (First Defendant) Insurance Australia Limited (Second Defendant) |
Representation: | Counsel Mr Muller (Plaintiff) Mr Pappas (Defendants) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Sparke Helmore (Defendants) | |
File Number: | SC 892 of 2011 |
Burns J:
On 7 March 2009 the plaintiff was driving a motor vehicle which was stationary in traffic on Sulwood Drive at Kambah when a vehicle driven by the first defendant collided with the rear of the plaintiff’s vehicle. The second defendant is the first defendant’s third party insurer. As a consequence of this collision the plaintiff suffered injury, although the extent of that injury is in dispute. The defendants have admitted liability, and the matter proceeded as an assessment of damages only.
The plaintiff’s evidence
The plaintiff was 17 years old at the time of the collision, and was attending year 12. He was a keen sportsman, who had played different sports from an early age. He had suffered a number of minor injuries while playing sport, but he suffered no ongoing effects of these injuries. In early 2009, prior to the 7 March accident, the plaintiff was involved in a minor, low speed collision while reversing his car in the school car park, but suffered no injury.
In 2008 he was admitted into the Gifted Sports Program at Mary MacKillop College, which involved participation in weight training and skills training alongside his academic program. In the same year he also started to do some part time work after school and on weekends at a fast food restaurant called Zing Fish. In that year he also obtained work with a landscaping firm during the school holidays. This was physically demanding work. The plaintiff testified that he did not have any problems physically undertaking that work, and in particular did not experience pain in his back. He was paid approximately $25.00 an hour.
In 2008 the plaintiff also commenced playing Division 1 AFL on weekends for Tuggeranong. He injured his sternum while playing AFL resulting in him missing a couple of games, but otherwise he completed the season without any physical restrictions, and in particular without any pain in his back.
On 7 March 2009 the plaintiff was driving on Sulwood Drive, Kambah when he stopped behind a vehicle which was waiting to make a right-hand turn. He looked in his rear vision mirror and saw a vehicle approaching from behind “fairly quickly”. This was the first defendant’s vehicle, which collided with the rear of the plaintiff’s vehicle. The plaintiff testified that he was unable to take any evasive action, and simply braced for the impact. Initially, the plaintiff felt fine, although he was shaken up. About an hour and a half after the collision he started getting pain in his lower back. He described this as a sharp stabbing pain. As the day progressed and into the next day he became stiff in his shoulders, neck and body. He attended his general practitioner either that day or the next, and was referred for physiotherapy.
When he first attended physiotherapy he had symptoms in his shoulders, neck and back, but over the subsequent weeks his pelvis also became fairly sore. He was referred for an MRI scan of his lumbar spine on 25 March 2009. The accident occurred during the school term, and the plaintiff stated he had a “few days off” in the first week after the accident. He was uncomfortable when he returned to school, and took a lot of Neurofen. He experienced a lot of stiffness throughout his whole back initially, which later became confined to his lower back. He said that he found it difficult managing his workload that semester, but the following semester his academic work was “not too bad”. He did not have any further time off school after the first week after the accident. In cross-examination the plaintiff agreed that he attended physiotherapy after the accident for a number of different conditions unrelated to any injury he sustained in the accident.
Shortly after the accident the plaintiff lost his driver’s licence for a speeding offence, but he accepted that he would have been physically capable of driving a motor vehicle throughout his three month suspension. After the accident he did not continue playing football because his doctor and physiotherapist advised him not to participate in sporting activities at that time. He was unable to undertake the practical component of the Gifted Sporting Program until towards the end of year 12. When he did return to physical activity he participated in Oztag, basketball, indoor hockey, touch football, versions of American football and dodgeball, although in cross-examination he said that it was at a lower level of intensity. He found he had difficulty with those activities which required him to jump a lot. He testified that when he did return to full physical activities he would suffer pain in his lower back if he overexerted himself. During that year he also obtained work supervising children in after-school care, and a short period of work at Floriade. He stated that he did not return to landscaping work because of his back, although he would have liked to continue in that work. He did not seek that type of work at the end of year 12 because he was looking for other employment.
The plaintiff testified that, in 2009, he went to a gym at Phillip for between three and six months. This was a personal choice, to assist him to stay fit and healthy. He undertook general weight exercises, such as seated rowing, light pull downs, bench presses, leg presses and calf raises. He described these as “controlled steady movements” and found that they did not aggravate his back. After this initial three or six months he joined a different gym at Tuggeranong where he undertook the same type of exercise. He continued this program of exercise until August 2013 when his membership expired. In 2011 or 2012 he attended two intermediate kickboxing lessons. At the time of the plaintiff giving evidence in April 2014, he was contemplating rejoining the gym, but he had also been using weights at home. He said that the only time he had experienced trouble with his low back at the gym was on one occasion doing dead lifts. In cross-examination the plaintiff gave evidence consistent with considerable physical ability in lifting weights and other activities after the accident.
Towards the end of 2009, the plaintiff made a decision to pursue a career as an electrician. After finishing school he commenced a pre-apprenticeship course which he completed in January 2010. He then commenced work as an apprentice electrician with Network Electrical Solutions on a starting salary of about $440.00 nett per week. Most of the work he undertook was general commercial lighting and power work. He was required to work on the ground, at heights and in confined spaces. He was also required to work on ladders. He found that if he was required to work on a ladder for a prolonged period, such as a whole day, he would be fairly sore and stiff that night and the next morning in his lower back. He found that working in confined spaces also caused his lower back to become sore, requiring him to stretch. He also found that his tool belt caused discomfort through his lower back and hips. He did not take any time off work because of these problems.
The plaintiff also stated that since the accident he sometimes gets pins and needles from his waist down to his toes during bowel movements. He has also noticed this sensation of pins and needles when travelling long distances, and sometimes laying down in awkward positions. These symptoms have not been associated with his work.
The plaintiff testified that he played six months of indoor soccer approximately two years after the accident without any difficulty. In the middle of 2012 he travelled to Thailand, and suffered some discomfort and stiffness on the flights requiring him to stretch out. At the end of 2012 he also travelled to Malaysia and Thailand and had the same difficulties. In 2013 his employer took him on a camping/water skiing holiday. The plaintiff slept in a tent and participated in water skiing. He said that the following day, and for about a week thereafter, he was extremely stiff and had pain in his lower back. In July 2013 the plaintiff camped at a music festival in Byron Bay and again experienced stiffness in his back. He said that he would occasionally suffer stiffness and soreness when sleeping in an unfamiliar bed.
The plaintiff stated that he had recently undertaken electrical work for a friend and also for his grandparents. The electrical work for his friend involved installing television points in his bedroom, which involved placing cabling in the roof space. He said that he became very stiff while on the roof, and had to come down and have a few minutes on the ground and stretch out before returning to that work. He installed a circuit oven for his grandparents, which caused him no difficulties.
The plaintiff was made redundant from his employment on 31 March 2014, at which time he was earning approximately $900.00 a week nett. He subsequently commenced work as a trades assistant for a carpentry company. This work involved demolishing old bathrooms in an office block and the demolition of workstations. At the time he gave evidence on 11 April 2014, the plaintiff had only been in this employment for about a week. He said that he found that his back became very stiff and sore when he was required to work bending down, and he needed to stretch his back for 5 minutes or so every 15 to 20 minutes. This work was much more physically demanding than his work as an apprentice electrician. He found this work through a friend, and had not sought work in the electrical trade because he was intending on travelling to Europe at the end of July 2014 for seven weeks. He had plans of seeking work in the electrical trade on his return, or possibly going into a business venture with a friend. In cross-examination the plaintiff agreed that he used a small jackhammer in the demolition work he was doing, which he thought weighed about 20 kg. He said he was able to lift that above his head without any difficulty.
The plaintiff was living with his parents at the time of the accident, which continued through to the date of hearing. Immediately after the accident he was unable to undertake his usual domestic chores, such as making his bed, which continued for about a month. He was unable to undertake heavier chores, such as mowing the lawns, for about two months. He said that he had not returned to playing AFL for Tuggeranong since the accident. For about six months after the accident he was unable to undertake activities like golf, but more recently he had returned to them without any problems.
The plaintiff testified that for approximately six months after the accident he was nervous travelling in cars, although that subsequently resolved. He denied having told Dr Griffith in July 2009 that he was not driving a motor vehicle because he was too apprehensive. He found that travelling long distances in cars caused stiffness and pain in his lower back, which may last for anything from a few minutes to a couple of days after the travel.
He said that since the accident he had never been entirely pain-free, although some weeks were better than others. He was not taking any medication at the time he gave evidence, and said that he had only taken Neurofen for a month or two after the accident. He said that he did not take medication because he did not think it was good for his body, and he preferred physiotherapy and trying to stay fit and healthy. He said that he attended physiotherapy every six to eight weeks, but sometimes more frequently depending upon his back. His girlfriend also massaged his back on occasion, which he found helpful.
In cross-examination the plaintiff stated that he had only told his lawyers about the camping/water skiing trip and the camping trip to the music festival a few days prior to the hearing. He was cross-examined with a view to suggesting that he had not totally informed a number of the medico-legal doctors of his ability to participate in sports and other activities after the accident with a view to obtaining a larger judgment. The plaintiff testified that he had honestly answered all questions asked of him by those experts. In my opinion, it was understandable that the plaintiff may not volunteer information not sought by those experts. The plaintiff was not to know what the experts considered important, and it should be remembered that he was still quite young at the time of those interviews. That is not to say that any difference between the evidence given by the plaintiff in the hearing and the information elicited by the experts is irrelevant. To the extent that the evidence of the plaintiff reveals a greater capacity to undertake activities than may have been suggested by the information elicited by the expert witnesses, this Court must consider whether any conclusions arrived at by the experts can be sustained. Unfortunately, a number of the medical experts appear to have concluded that the plaintiff was more significantly disabled than his evidence before this Court would suggest.
The plaintiff denied the suggestion that he had not returned to playing AFL football for Tuggeranong in 2010 because of his employment as an apprentice electrician. He said that he could not recall having made any such comment to his physiotherapist. The treatment notes from the plaintiff’s physiotherapist has an entry on 25 January 2010 which reads, in part,: “no social footy. Not sure about footy this year as it depends on work, electrical apprentice”. I make two comments about this. First, the notes from the physiotherapist are very sparse and it is not clear in what context these supposed statements were made. Secondly, and more importantly, even if the note accurately records something that was said by the plaintiff, it was said months before the 2010 football season and it would not have been surprising if the plaintiff was uncertain at that time about whether he could continue to play first grade AFL and undertake his apprenticeship. The statement recorded by the physiotherapist does not purport to be an ex post facto explanation by the plaintiff why he did not play football in 2010.
In cross-examination it became clear that the plaintiff could not reliably estimate or gauge the speed of the first defendant’s vehicle immediately prior to the collision. He had told a number of medical practitioners that he believed it was travelling between 60 and 80 km an hour, but I am satisfied that this was in part an assumption based upon the speed limit in the area being 80 km an hour and the fact that he believed that the first defendant’s vehicle did not brake before the collision. I accept his evidence that he believed that the defendant’s vehicle was travelling “fairly quickly”, but in my opinion an estimate of 60 to 80 km an hour is unreliable. Photographs of the damage occasioned to the plaintiff’s vehicle in the collision do not suggest a high-speed collision, although I accept that there may have been structural damage to the plaintiff’s vehicle not easily observable in the photographs. The plaintiff denied that he had told a number of medical practitioners that both cars had been written off in the collision.
Evidence of Virginia McFadyen
Virginia McFadyen is the mother of the plaintiff, and is the manager of an early childhood and education centre. She testified that when she saw the plaintiff after the accident he was pale and appeared agitated. She described the plaintiff as someone who just gets on with his life. She said that she had attended numerous doctors and physiotherapist appointments with the plaintiff after the accident. The plaintiff also told her that he found it difficult concentrating in class, and that he would get headaches. She said that after the accident he was restless for quite a few months. She believed that his academic performance at school had suffered. He was also very uneasy when travelling as a passenger in the car after the accident. She said that even after he regained his licence, she continued to drive him to appointments for a couple of months.
Mrs McFadyen also testified that, after the accident, the plaintiff did not participate in sport on the weekends anymore and did not participate in physical education at school until September 2009, some six months after the accident. She said that even after he returned to physical education at school, he would complain that his back was hurting most evenings and he would take long hot showers. This continued after he finished school and commenced employment. She stated that she purchased another car for the plaintiff later in 2009, but she still continued, on occasion, to drive him to appointments. On some occasions they would meet at the appointment.
After the accident she had seen the plaintiff exercising at home, doing core strengthening and muscle strengthening exercises. He continued to do those exercises as at the date of the hearing.
In cross-examination Mrs McFadyen said that, after the accident, her husband made a claim for the damage to the vehicle driven by the plaintiff on his policy with NRMA. She said that that the vehicle was written off by the insurance company. She said that after the accident the back tray in the station wagon was buckled, and she was told that there was structural damage underneath the back of the tray. She agreed that it was possible that the plaintiff had been away from school for less than a week after the accident. She also agreed that after the accident the plaintiff did not have access to a family car to drive, and that his licence was suspended for a period of three months about one month after the accident. She was aware that the plaintiff had engaged in physical exercise after the accident, but was apparently unaware of the full extent of his participation.
Medical evidence
Evidence of Dr Griffith
Dr G Griffith, a consultant surgeon, provided a report for the plaintiff dated 14 July 2009 after a consultation on 8 July 2009. He noted the history of the plaintiff’s involvement in a motor vehicle accident. He also had access to a number of x-rays of the plaintiff’s spine. He noted that the plaintiff suffered pre-existing spondylosis and spondylolisthesis. He was of the opinion that the plaintiff suffered the following conditions as a result of the accident:
(a)nervous shock, which had resolved by the time of consultation;
(b)acute musculoligamentous sprain of the cervical and cervicodorsal soft tissues;
(c)acute musculoligamentous strain lower lumbar soft tissues, which had resolved by the time of consultation; and
(d)acute aggravation of grade 2 spondylolisthesis at the lumbosacral junction with possible precipitation of disc bulge at L4/ 5.
He identified the following sequelae:
(a)persistent lower lumbar myalgia in the region of the spondylolisthesis (ongoing);
(b)Post traumatic injury with signs of radiologically demonstrated bone oedema of the vertebral spines at the L1 and L2 (not clinically significant except for minor tenderness at that level);
(c)transient acute adjustment disorder with manifestations of depression and anxiety, which had largely resolved by the time of consultation with the exception of severe and persisting amaxophobia and avoidance behaviour in regard to driving.
Dr Griffith considered the plaintiff’s spondylolisthesis to be stable. The prognosis for the L4/5 disc was one of desiccation and shrinkage, which may have already occurred. He considered the prognosis for the plaintiff’s psychological state was excellent. He recommended that recovery from the plaintiff’s residual symptoms could be expedited by a series of injections, analgesia as required and attendance on a psychologist.
Dr Griffith provided a second report dated 23 August 2013. He noted that since he had last seen the plaintiff on 8 July 2009, the plaintiff complained of continuing symptoms in his lower back, which had slowly decreased in intensity over that time. Dr Griffin noted that there was no evidence that the accident had resulted in significant mechanical disruption to the known structural deficiencies in the plaintiff’s spine. The plaintiff told Dr Griffith that there had been steady improvement overall, but with some exacerbation of symptoms in the lumbar region on occasions. He noted that the plaintiff was in the third year of his electrical apprenticeship, and had not been required to take time off work due to his symptoms.
Dr Griffith confirmed his previous diagnosis of the injuries sustained by the plaintiff in the accident, and their consequences. He noted that the acute musculoligamentous sprains had all resolved and that there was no progression of his spondylolisthesis. He said:
Any acute aggravation in regard to precipitation of pain post-accident has been proven not to be associated with structural injury but with this constitutional abnormality.
He noted that the lumbar myalgia persisted, but was intermittent and not particularly intrusive. He noted that the plaintiff’s adjustment disorder and amaxophobia had resolved. The prognosis was one of gradual resolution of his symptoms whilst the spondylolisthesis was essentially stable. He thought that the spondylolisthesis could cause long-term problems “decades hence”, but presently required no active treatment. Dr Griffith said that injection of steroid and local anaesthetic into the point of focal tenderness opposite the L2 disc would be appropriate to produce symptomatic relief from his lumbar point of focal tenderness in the paravertebral musculature, however his persisting pain was not sufficiently intrusive to justify analgesics.
Evidence of Dr Brooder
A consultant neurologist, Dr Ron Brooder, provided two reports on behalf of the plaintiff. In his first report, dated 3 March 2012, Dr Brooder noted the history of a motor vehicle accident with subsequent pain in the plaintiff’s lower back and his posterior cervical region. At the time that he saw the plaintiff on 7 February 2012 the plaintiff was still complaining of persisting symptoms. The plaintiff complained of intermittent and at times relatively constant, although variable, aching pain extending from his mid lumbar region into his lower back. His pain was induced or aggravated by work activities that involved prolonged or repeated forward bending or using a ladder. His pain was also induced or aggravated by prolonged sitting, particularly when driving. Dr Brooder noted that the plaintiff had been able to continue with full-time employment as an apprentice electrician. Dr Brooder noted that the plaintiff had a pre-existing condition in his spine:
Mr McFadyen had pre-existing bilateral pars interarticularis defects at the L5 – S1 level associated with a grade 2 spondylolytic anterolisthesis at the L5 – S1 level associated with early degenerative changes involving his L5 – S1 intervertebral disc with disc height loss and slight narrowing of the intervertebral foramina.
Dr Brooder expressed the opinion that the plaintiff’s persistent intermittent back pain was consistent with a diagnosis of aggravation to the degenerative changes involving his L5 – S1 intervertebral disc. He concluded:
I consider that Mr McFadyen’s long-term prognosis is somewhat guarded.
Mr McFadyen has now been subject to persistent intermittent back pain over a period of almost 3 years and over that period of time, although there had been an improvement in his back pain, his back pain has persisted and has remained essentially unchanged over a period of more than six months. In addition, he has degenerative changes involving his L5 – S1 intervertebral disc, which were previously asymptomatic and have now been aggravated and rendered symptomatic by the injuries sustained in the motor vehicle accident on 7 March 2009. I would consider that he is going to remain subject to persistent intermittent back pain and an associated disability to some degree indefinitely.
In his second report dated 11 March 2014 Dr Brooder noted that the plaintiff continued to complain of symptomology since his last report. The plaintiff told Dr Brooder that his back pain continued to be induced or aggravated by any increase in physical activity and more particularly by activities that involve prolonged or repeated forward bending, particularly in awkward positions. Dr Brooder considered the plaintiff’s prognosis remained somewhat guarded, and that it was likely that he would continue to suffer persistent intermittent back pain and associated disability to some degree indefinitely.
Dr Brooder was also examined by the plaintiff’s counsel during the hearing with a view to eliciting an opinion that the plaintiff’s ongoing back pain was the result of an increase in the degree of spondylolisthesis caused by the accident on 7 March 2009. Dr Brooder did not embrace that proposition, saying, “I could say it’s a possibility but it remains a theoretical possibility”. Dr Brooder also expressed the opinion that continuing physiotherapy for the plaintiff could be justified if it caused an improvement, or prevented a deterioration, in his pain levels.
In cross-examination, Dr Brooder said that he had gained the impression that the collision between the defendant’s and plaintiff’s motor vehicles was a high-speed collision. He agreed that at the initial consultation with the plaintiff in March 2012 the plaintiff presented without any apparent disability. In cross-examination Dr Brooder was taken to the plaintiff’s history of participation in sport, exercise and work subsequent to the accident, and in particular to the demolition work that the plaintiff was undertaking with the jackhammer, and he was asked whether those activities were inconsistent with his understanding of the plaintiff’s level of disability. Dr Brooder said “It would suggest that his pain was not associated with a marked disability, yes”.
Evidence of Dr Le Leu
The plaintiff also tendered a report from an occupational physician, Dr Leon Le Leu, dated 8 October 2012. He concluded that the plaintiff had suffered a musculoligamentous injury to the lumbar spine, trauma to the spine producing bone oedema, aggravation of pre-existing but previously asymptomatic anterolisthesis to symptomatic level and a temporary anxiety state. Dr Le Leu opined that, as the plaintiff had sustained one aggravation to his previously asymptomatic anterolisthesis, he was more likely to suffer a further aggravation in the future. He recommended that the plaintiff not work in fields with high physical requirements and that he avoid, so far as possible, working in awkward postures or confined spaces. He said that the plaintiff should avoid lifting, pushing, pulling or carrying anything greater than 15 kg.
Evidence of Dr Bradfield
A report dated 2 August 2011 was also provided by a general practitioner, Dr Donald Bradfield. He saw the plaintiff on 4 April 2011 and on 8 June 2011. The plaintiff reported continuing pain in his lower back particularly at about the L3 level, but located from about T12/L1 to the lumbar sacral area. He reported some paraesthesia down both legs and pain radiating to both calves. He also reported some discomfort when wearing a tool belt. Dr Bradfield noted that the plaintiff had been attending physiotherapy and using simple analgesia.
Evidence of Dr Stubbs
A report from Dr Geoffrey Stubbs, an orthopaedic surgeon, dated 9 March 2011 was tendered on behalf of the defendant. Dr Stubbs interviewed and examined the plaintiff on 8 March 2011 and noted that the plaintiff was a 20-year-old apprentice electrician complaining of persisting low back pain following a motor vehicle accident on 7 March 2009. Dr Stubbs records the plaintiff’s initial complaint as low back and neck discomfort with associated stiffness. The plaintiff told him that he had been referred for physiotherapy, which he continued to attend as required. It was Dr Stubbs’ opinion that the plaintiff had suffered a typical acute whiplash injury which had subsequently settled. There was a concurrent spondolisthesis which was asymptomatic prior to the accident and was so at the time of examination by Dr Stubbs. Dr Stubbs noted that the plaintiff had a physically demanding job and was not having any difficulties in his work. He considered the plaintiff fit to play any of the codes of football he played prior to the accident.
Dr Stubbs provided a second report dated 30 January 2014 after further interviewing and examining the plaintiff on 29 January 2014. He noted that the plaintiff continued to go to physiotherapy occasionally, and that the plaintiff reported continuously working although he had not returned to playing football because, Dr Stubbs said, the plaintiff’s physiotherapist had advised him not to because of his low back spondolisthesis. Dr Stubbs referred to literature relating to the incidence of low back injury caused by sporting injury in those suffering low back spondolisthesis and concluded that it did not support the proposition that the plaintiff was at increased risk of low back injury by participating in contact sports such as football. Dr Stubbs expressed the opinion that there was no reason to believe that the plaintiff’s spondolisthesis had been made symptomatic by the accident. He believed that the plaintiff had suffered a soft tissue injury which had resolved.
Dr Stubbs was cross-examined by the plaintiff. He said that on the basis of his notes of the initial examination he did not believe that the plaintiff had any continuing symptoms at the time of that examination. Dr Stubbs said that he had conducted a number of provocative tests designed to provoke pain, which had been negative. He agreed that the plaintiff presented as a fairly stoic individual, and that there was no sign of exaggeration of complaints. Dr Stubbs said that the plaintiff had told him that he had seen a physiotherapist recently for a check up.
Evidence of Dr Pascall
A report dated 7 March 2012 from Dr Virginia Pascall, an occupational physician, was also tendered by the defendant. Dr Pascall examined the plaintiff on 10 January 2012 and noted that he complained of continuing back pain, which he said he had adapted to. The plaintiff said that he had back pain every day, but it did not restrict him. He complained of pins and needles in his legs when he did not exercise or if seated for too long or if straining with his bowels. Sometimes the requirements of his work aggravated his back. He told Dr Pascall that he went to the gym, but avoided dead lifts of 50 kg and squats with weights. He said that for a period of about two years after the accident he was anxious when in a car. Dr Pascall expressed the opinion that the plaintiff’s restrictions and treatment needs were partially attributable to the motor vehicle accident, although in the immediate months after the accident the treatment needs were solely attributable to the accident. She considered the plaintiff’s need for treatment in relation to pre-existing conditions, such as his spondolisthesis, most likely came about because of muscular weakness that arose from the pain of the muscular strain he sustained in the accident. It was her opinion that the pain of the muscular strain in the lumbar region resulted in muscular weakness which made the spodolisthesis symptomatic. She considered the plaintiff fit to continue in his occupation as an apprentice electrician without restriction.
Defendants’ submissions
In submissions, the defendants conceded that the plaintiff had been involved in an accident in circumstances giving rise to an entitlement to damages, but disputed the severity of the accident as described by the plaintiff. As I earlier noted, the estimate of the speed of the first defendant’s vehicle prior to the collision as given by the plaintiff is not reliable, but I accept his evidence that, from his perspective, it was a substantial collision. I am more readily able to make this finding as the first defendant did not give any evidence to contradict that of the plaintiff. I accept that the vehicle driven by the plaintiff was written off as a consequence of the collision, although this is not necessarily a good indicator of the severity of the accident.
The defendants submitted that the plaintiff had exaggerated the ongoing effect of his injuries in his evidence. I found the plaintiff to be a generally reliable and honest witness, who gave evidence, on a number of occasions, which did not assist his case. For example, the only evidence that he had engaged in activities such as water skiing and camping came from the plaintiff himself, and if he had been intent upon exaggerating his claim it would have been easy for him to have omitted this evidence. I found that the plaintiff was willing to make appropriate concessions in cross-examination. I assessed the plaintiff as being an honest witness.
Consideration
In my opinion, the plaintiff suffered a soft tissue injury to his spine in the accident, which made symptomatic his previous asymptomatic spondolisthesis, as described by Dr Pascall. I am satisfied that Dr Stubbs’ opinion is not reliable, because it makes no reference to the ongoing pain suffered by the plaintiff. In that regard, I am satisfied that the plaintiff has suffered ongoing pain and disability in his lower back as he described in his evidence. I am satisfied that he is a fairly stoic individual not given to frequent use of painkilling medication. In my opinion, there must have been some failure of communication between the plaintiff and Dr Stubbs, as it makes no sense for the plaintiff to have communicated to Dr Stubbs that he had no ongoing pain when, at about the same time, he was telling other medical practitioners that he had ongoing pain. It particularly makes no sense when one observes that the plaintiff knew that Dr Stubbs was examining him for the defendants for the purposes of the plaintiff’s claim for damages arising out of the accident. If it was the intention of the plaintiff to exaggerate his claim for the purposes of inflating damages, it is inconceivable that, of all the medical practitioners he spoke to, he would deny any ongoing effects of the accident to the defendants’ medical examiner.
Whilst the plaintiff has suffered ongoing pain and disability in his lower back, I am satisfied that this continues at a relatively low level. It does not stop him from working, and there is no reliable evidence that he will need to take substantial time off employment in the future because of the effects of the accident. He may, from time to time, have a flare-up in his back pain requiring him to take short periods of time off work. In my opinion, the question of any damages for future economic loss is best dealt with by way of a modest buffer. I accept that the plaintiff’s ongoing pain and disability in his lower back has reduced his capacity to engage in contact sports that he engaged in prior to the accident, however I am also satisfied that his reduction in participation in sports is also partly the result of the demands of his employment and concerns about his pre-existing lower back condition. The evidence establishes that the plaintiff has been capable of continuing with an exercise program involving lifting weights on a regular basis.
I accept that, for a period of approximately six months after the accident, the plaintiff was nervous when travelling in motor vehicles as a consequence of the accident. The plaintiff was physically capable of driving a motor vehicle throughout this period, and the fact that he did not drive for a period was, I am satisfied, mainly attributable to the loss of his driver’s licence and the fact that he did not have a car available to him.
There was some dispute between the parties about the appropriate allowance for past out-of-pocket expenses, with the defendants suggesting that only those amounts paid by the third party insurer to date, totalling $2,805.60, should be allowed. This suggestion, as I understand it, was based upon the proposition that the plaintiff had suffered a mild soft tissue injury only, which had not rendered his underlying spondolisthesis symptomatic. As I have previously noted, I am satisfied that the accident did render symptomatic the underlying spondolisthesis and that the plaintiff’s evidence about his ongoing symptoms of pain and discomfort are reliable. As such, I will allow the full amount claimed by the plaintiff and supported by invoices tendered in the proceedings, being $4,586.95. I note that $2,805.60 has been paid by the defendants, leaving a balance of $1,781.35. I will allow interest on that sum at 4.5 percent for five years, totalling $481.00.
The plaintiff made a claim for past economic loss based upon a loss of capacity to return to landscaping work in his final year of school. The plaintiff particularised this loss in the sum of $6,000.00. In addition, he claims for a buffer for short periods of unemployment following his redundancy from Network Electrical and following his recent return from overseas. In my opinion there is no basis for the latter claim. With respect to the first claim, the plaintiff’s taxation return for the 2009 year shows a gross income of $1,100.00 for landscaping work from Out and About Landscape Design and Construction, and $444.00 from Capital Landscape Contractors Pty Ltd. There was no evidence led by the plaintiff about the availability of landscaping work to him during the 2009 school year, and his evidence was to the effect that after school finished he was looking for employment as an apprentice. On balance, it is probable that the plaintiff would have sought out work in the landscaping field between March and December 2009 but for the accident. It is not possible, however, to say with precision how much of that work would have been available to him, and how much he would have earned in consequence. I will allow a sum of $3,000.00 inclusive of interest for this aspect of the claim.
The plaintiff’s claim with respect to future economic loss was limited to a claim for a buffer in the sum of $15,000.00. This is a modest sum which I allow.
I assess future out-of-pocket expenses in the sum of $3000.00 based upon the evidence of Dr Brooder.
It is also impossible to accurately assess damages for past domestic assistance. I accept that for a period after the accident the plaintiff was unable to undertake his usual domestic chores, and required greater assistance from his mother in particular. The plaintiff claimed, in his final submissions, an amount in the sum of $3010.00 based upon 86 hours of assistance at $35.00 an hour. The evidence simply does not support that level of assistance having been provided to the plaintiff as a result of his injuries, as opposed to as a consequence of his loss of licence. I will allow 30 hours of assistance at $35.00 an hour, which I will round off to $1,000.00.
I assess damages as follows:
General damages $70,000.00,of which $45,000.00 is attributable to past
Interest on past general damages at 2 per cent for six years$5,400.00
Past economic loss $3,000.00
Past out-of-pocket expenses $4,586.95
Interest $481.00
Future economic loss $15,000.00
Future out-of-pocket expenses $3,000.00
Past domestic assistance $1,000.00
Superannuation (11% of economic loss) $1,980.00
Total$104,447.95
There will be judgment for the plaintiff in the sum of $104,447.95. The defendants are to pay the plaintiff’s costs of the proceedings unless some other costs order is sought within 14 days.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 13 February 2015 |
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