Mckitterick v Williams & Motor Accident Commission No. DCCIV-97-620, DCCIV-98-617

[2000] SADC 119

DAVID JOHN MCKITTERICK v MATTHEW WILLIAMS; DAVID JOHN MCKITTERICK v MOTOR ACCIDENT COMMISSION
[2000] SADC 119

Judge Lunn
Civil

Introduction

1. In Action No 620/97 the plaintiff has sued Matthew Williams for damages arising out of a road accident on 21 May 1994 (“the 1st accident”).  Liability has been admitted in this action.  In Action No 617/98 the plaintiff had sued Arthur Mitchell for damages for injuries received in another road accident on 10 May 1995 (“the 2nd accident”).  Liability is in issue in this action.  Arthur Mitchell has since died and during the trial I gave leave to the plaintiff to substitute the Motor Accident Commission as the defendant in that action.  The two actions have not been consolidated.  Their trials have proceeded together with all of the evidence being treated as admissible in both actions.  The WorkCover Corporation of South Australia (“WorkCover”) was not a party to these actions and so is not bound by my findings.

The plaintiff’s history prior to the 1st accident

1. The plaintiff was born on 6 March 1952 and was 48 years of age at the time of trial.  He left school at the age of 15 after completing third year at high school.  He took up a career as a truck driver and had a good work history as a driver of heavy vehicles for various transport companies.  Much of his work was on long trips interstate.

2. On 19 February 1982 the plaintiff suffered a serious lower back injury in a road accident near Swan Hill.  He had a fractured vertebra in his lower back.  He was off work as a result of it for a couple of years, but was back to full employment by 1985.  Thereafter he claimed he had no real problems with his lower back, although he had been to a chiropractor on about four occasions subsequently when he had had some recurrence of his lower back problems.  No medical evidence was adduced about these injuries.

3. Earlier in his life the plaintiff had been married and divorced and had later been in a defacto relationship.  He had four children by these relationships.  By the time of the 1st accident he was living in his own home with his youngest teenage son.

4. At about the beginning of 1992 the plaintiff commenced working as a driver of semi-trailers for Fruitexpress.  Initially he did interstate trips driving refrigerated vans.  For some months before the 1st accident he had been regularly driving a semi-trailer containing parcel freight to Nhill in Victoria where he exchanged trailers with another driver who had come from Melbourne.  It was a nine hour return trip.  His duties as a driver included giving some assistance in loading and unloading the vehicles and covering the loads with tarpaulins.  Prior to the 1st accident he had no physical difficulties in performing these duties.

The 1st accident

1. In the 1st accident on Saturday, 21 May 1994 the plaintiff was a passenger in a car which was hit from behind with some force by the defendant’s car.  He developed a sore neck and had pain in the top of his shoulders going down into his back.  He went to the Lyell McEwin Hospital where he was xrayed but was not given any treatment.  He had headaches for some time.  On the following Monday he first saw Dr Lim who had been his general practitioner since about 1982.  He prescribed him anti-inflammatory medication and referred him for regular physiotherapy to Bronte Rundle which continued until about December 1994.  The physiotherapy gave him some immediate, but no lasting relief, from his neck symptoms.  At some stage Dr Lim also prescribed Capadex, a strong painkiller, which the plaintiff has continued to take ever since.

2. The plaintiff’s neck pain and headaches made him unfit for work as a driver immediately after the accident. Dr Lim gave him medical certificates to be off work. He regularly saw Dr Lim who continued to give him certificates. The plaintiff claimed workers compensation against Fruitexpress and received income maintenance payments under the Workers Rehabilitation and Compensation Act.

3. On 26 July 1994 a Court disqualified the plaintiff’s driving licence for six months on a conviction for exceeding the prescribed blood alcohol concentration.  If the 1st accident had not intervened, this meant that the plaintiff could not have performed his driving duties for Fruitexpress from 26 July 1994 until 25 January 1995.  It is unclear whether he would have been dismissed by Fruitexpress or whether it would have found other non-driving duties for him until the suspension expired.  The plaintiff did not inform Fruitexpress or WorkCover that his driving licence had been suspended.

4. By mid August 1994 the plaintiff had not returned to work and Dr Lim was continuing to certify him as being unfit for work.  On about 17 August there was a meeting at the premises of Fruitexpress between the plaintiff, a representative of WorkCover and Bob Fountain, the manager of Fruitexpress, to discuss the implementation of a programme for the plaintiff to return to work.  This resulted in those three persons signing a Return to Work Plan for the plaintiff to embark on a progressive course of graduated, modified duties over the following three months.  The written plan did not identify the duties and it was subject to them being approved by the plaintiff’s doctor.  In this and subsequent negotiations Mr Fountain and WorkCover envisaged that the duties would include the plaintiff driving vehicles, albeit initially lighter vehicles than semi-trailers.  The plaintiff continued to maintain that his neck restrictions and pain were still so bad that he could not drive any vehicle.  However, he did not disclose to anyone at Fruitexpress that he was legally barred from such driving because of his licence disqualification.

5. On 26 August 1994 WorkCover retained Mr Cox, an occupational therapist, to assist in formulating and implementing the Return to Work Plan for the plaintiff.  It appears that Dr Lim cleared the plaintiff for light duties, but the plaintiff refused to accept this.  Dr Lim then arranged for the plaintiff to see an orthopaedic surgeon, Mr Butcher, whom he first saw on 15 September.  Mr Butcher found the plaintiff to be clinically tender in his neck with a diminished range of rotation and lateral flexion.  He then thought it would be reasonable for him to return to some work on a part time basis.  He prescribed some home exercises aimed at increasing the mobility and strength of the neck.

6. Negotiations continued between Mr Cox and the plaintiff as a result of which Mr Cox formulated a Return to Work Plan for the plaintiff which was to commence on 26 September.  Mr Cox was expecting that the plaintiff would commence on light duties and would gradually undertake further duties including the driving of light vehicles and ultimately return within a few months to driving semi-trailers.  It is doubtful if the plaintiff ever agreed to such a plan because, unlike Mr Cox, he knew that he was then not legally entitled to drive any vehicle.  There was some talk of the plaintiff undertaking light duties at Nibbles which was a sister company of Fruitexpress which packed dried fruits.  The plaintiff did not wish to perform such work, but it was not established on the evidence that it was actually offered to him.  On 26 September the plaintiff attended at Fruitexpress and did some light duties such as sweeping the yard and picking up papers, but he did not return for further work after that day.  On 20 October WorkCover wrote to him intimating that it intended to suspend his weekly payments at the expiration of 21 days because he had not complied with the rehabilitation programme, but it is unclear if that suspension took effect.  In any event the plaintiff continued to receive his income maintenance payments.

7. In about late October 1994 the plaintiff’s former defacto wife delivered to Fruitexpress a copy of his driving licence showing that it had been suspended by a Court.  Mr Fountain spoke to the plaintiff shortly afterwards and asked him if his licence had been suspended.  The plaintiff denied that it had been suspended.  Mr Fountain then produced the copy of the suspended licence and told the plaintiff that he was dismissed from Fruitexpress.  Mr Fountain dismissed him not because his licence had been suspended, but because he had lied about it.  Mr Fountain then took some advice about how the plaintiff’s dismissal should be effected and wrote to him on 7 November giving reasons for the termination of the employment.  The plaintiff took proceedings for unfair dismissal which were subsequently settled on a withdrawal of the dismissal and a payment of $3,000 to the plaintiff.

8. On 9 November 1994 the plaintiff again saw Mr Butcher who considered that he was fit to drive locally although not interstate.  He did not consider that the plaintiff needed physiotherapy in the long term, but that he should do home exercises.  The plaintiff did not seek or perform any employment.  Thereafter, Dr Lim continued to give the plaintiff certificates and the weekly income maintenance payments continued.  On 29 March 1995 he saw Mr Oatey, a neurosurgeon, who reported:

   “Mr McKitterick’s condition has not stabilised in that he has improved and is continuing to do so, now some 10 months after the incident.

   It seems likely that he will continue to improve over the next 12 months and will be able to return to truck driving duties.  It is impossible to be sure that he might not get some occasional discomfort in his neck and a heavy feeling such as he describes in association with an ache in his head, shoulders, chest and back.  He should, however, be able to cope with such symptoms and manage truck driving appropriately.  Any residual disability in terms of the neck and cervical spine will, I believe, be 5% or less.”

9. By May 1995 the plaintiff was actively looking for employment as a truck driver although it is not shown that he had actually undertaken any such employment.  He said that financial pressures on him to meet the mortgage payments on his house meant that he had to obtain a greater income than he was receiving on WorkCover income maintenance payments.  In May 1995 his nett income maintenance payments had dropped back from $412 per week to $336.

Liability for the 2nd accident

1. Arthur Mitchell, the driver of the car which hit the plaintiff in the 2nd accident, had died in November 1995. Counsel for the Motor Accident Commission sought to tender pursuant to s34c of the Evidence Act a signed statement of Mr Mitchell made before his death. This was opposed by the plaintiff on the sole ground that Mr Mitchell was “a person interested” under s34c(3) of that Act, which provides:

   “(3)  Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

I reserved my decision on this application to tender.

1. In Lushington v SGIC (No 1) (1993) 168 LSJS 447 Burley J, sitting in the Supreme Court, held that a deceased driver was ‘a person interested’ for the purposes of s34c(3) in proceedings under s113 of the Motor Vehicles Act against the 3rd party insurer of the vehicle which the deceased was driving. There have since been amendments to s113 and associated legislation, but they do not affect this point. In his decision Judge Burley applied the test for “a person interested” as one of a substantial material interest rather than a complete absence of bias. This approach has recently been upheld by the Full Court in Murray-Oates v Jjadd Pty Ltd (1999) 76 SASR 38. I apply the decision of Judge Burley and adopt his reasoning. At the time that Mr Mitchell made the statement he would have anticipated that he was likely to be involved in criminal or civil proceedings arising out of the accident. There is nothing to suggest that he knew that he was going to die and hence that he would not be the defendant in any subsequent proceedings. If he had remained as the defendant in the 2nd action, there is no doubt on the authorities that he would have been classified as “a person interested”: Alste v Paramount Motors [1965] SASR 228. Accordingly, I reject the tender of the statement.

2. There was no evidence about the circumstances of the 2nd accident other than the testimony of the plaintiff.  There is no doubt that such an accident occurred and the only matters in issue are the precise circumstances leading up to the collision in the few seconds preceding it.  While I have not found the plaintiff to be a completely truthful or reliable witness, I am not prepared to reject his uncontradicted evidence about the circumstances of this accident on the basis that he is entirely unworthy of any credit.  While what he said in his evidence was not wholly consistent with what was recorded in the hospital notes as apparently having been said by him about the circumstances of the accident I am not prepared to reject his evidence outright because of these discrepancies. At the time of his admission to hospital he was probably not in a fit state to give a coherent account of what had occurred.

3. I find that on 10 May 1995 at about 11.50am the plaintiff was riding a Harley Davidson motor cycle in a south easterly direction on the up-track of the Port Road at Woodville and was approaching the intersection of Woodville Road.  He was riding in the centre of the three lanes of the uptrack Port Road at about 50-60 kph.  Mr Mitchell’s car was travelling in the same direction as the plaintiff in the outside lane nearest the centre plantation at a similar speed to that of the plaintiff.  Mr Mitchell, without warning, moved to his left apparently with the intention of entering a service station on his left hand side of Port Road which was advertising cheap petrol.  The plaintiff did not see any indicator light on Mr Mitchell’s car signalling his intention to move to his left.  The left hand front mudguard of Mr Mitchell’s car hit the plaintiff’s right leg while the plaintiff was still riding in the centre lane.  The plaintiff had no opportunity to take evasive action.  In the collision the plaintiff’s motor bike was pushed over, he separated from it and they both slid 30 to 50 metres into the driveway of the service station before they separately came to rest.

4. I find that Mr Mitchell was negligent in changing lanes.

5. The defendant’s counsel properly conceded that if I accepted the plaintiff’s version of the circumstances of the 2nd accident there was no basis upon which to make any finding of contributory negligence against him.  Accordingly, I find that he is entitled to recover against the defendant in the 2nd accident all of his damages arising from the 2nd accident.

History after the 2nd accident

1. Immediately after the 2nd accident the plaintiff was taken to the nearby Queen Elizabeth Hospital.  Xrays revealed that he had a long undisplaced fracture of the shaft of the tibia of his right leg extending into the knee joint.  A full length fibreglass plaster cast was placed onto his right leg with an active knee brace.  He had also suffered a serious injury to the little finger of his right hand.  Bones in the finger had been broken and the tip of it had been almost amputated.  The tip was sewn back onto the finger.  He had some grazing on his right hip and general bruising and soreness.  His injuries were very painful.

2. After two days in hospital the plaintiff went home.  He was then able to walk on crutches.  He was severely restricted in what he could do and was helped in dressing, showering and housework by his teenage son Darren.  On one occasion soon after he came home his pain became so extreme that he had to call Dr Lim to give him a painkilling injection.  He was largely immobile in the first few weeks after the accident, but he gradually started to get around as his injuries healed.  After three weeks the stitches were removed from his finger.  He was on crutches for about three months and then he had to use a walking stick for a time.  He had physiotherapy from Mr Rundle on his leg after this accident in addition to continued physiotherapy on his neck.

3. After the 2nd accident Dr Lim continued to give certificates to the plaintiff that he was unfit for work as a result of the 1st accident, apparently on the grounds that his neck complaints from the 1st accident had been aggravated in the 2nd accident.  However, in August 1995 Dr Lim refused to give any further such certificates to the plaintiff.  The plaintiff then ceased to see Dr Lim and commenced to see Dr Simon Hall, another general practitioner, who was recommended by his solicitor.  Dr Simon Hall has since remained his general practitioner and has generally supervised his treatment.  He referred the plaintiff for more physiotherapy, hydrotherapy, massage treatment and gym work at the Downs Clinic.  The plaintiff complained to him about continued pain and restriction of movement in his neck.  Between 1 September 1995 and 13 November 1996 Dr Hall issued certificates that the plaintiff was only fit for modified duties as a result of the 1st accident and the plaintiff continued to receive income maintenance payments from WorkCover for that period.  The plaintiff said that in December 1995 he aggravated his neck problem while raking some loam.  In about February 1996 WorkCover arranged for Christine Roberts-Yates, an education and work skills consultant, to facilitate a job search programme for the plaintiff.  However, it was not successful as the plaintiff failed to keep appointments with Ms Roberts-Yates.  At about this time he was making some attempts to find work.  They were unsuccessful because he was claiming that he was only fit for light duties.

4. The plaintiff had again seen Dr Butcher on 24 August 1995.  He told him that his neck condition was still much the same as previously, but for reasons given later, I do not accept that.  He also told Mr Butcher that his neck had settled back to its pre-2nd accident state after several weeks.  At that time Mr Butcher considered that the plaintiff was fit for driving duties, but not for interstate driving.  Mr Butcher again saw the plaintiff on 9 May 1996 when he apparently reported some improvement in his neck.  Mr Butcher then considered that his neck condition did not preclude him from interstate truck driving. 

5. In October and November 1996 the plaintiff received $13,848 from WorkCover as lump sum redemptions for his entitlements to income maintenance payments and treatment expenses arising out of the 1st accident.  Up until about this time he had been continuing with regular treatment at the Downs Clinic, although he said that it was only producing short-term relief for his symptoms.  Prior to these redemptions he had not worked since the 1st accident apart from on 26 September 1994.

The plaintiff’s return to work

1. Almost immediately after the redemption of his workers compensation claims the plaintiff said that his neck condition improved.  In late 1996 he sought and obtained some casual driving work with J&A Transport driving semi-trailers to Sydney on two occasions for which he earned $742.  In about mid January 1997 he obtained casual employment with M Robb Pty Ltd and D&K Webber driving tip trucks in and around the Brighton Cement Works for a couple of weeks.  From about the end of January to 3 March 1997 he had casual employment driving semi-trailers for Scotts Transport carting paint around the metropolitan area.  From 3 March 1997 to 20 May 1997 he again had intermittent casual driving work with M Robb Pty Ltd and D&K Webber at the Brighton Cement Works.

2. Throughout 1996 the plaintiff had been seeing Dr Simon Hall regularly about his disabilities resulting from the accident.  Dr Hall was continuing to prescribe him Capadex.  On 7 January 1997 the plaintiff complained for the first time to Dr Hall of pain and disability in his right hip region and groin.  He complained of a “clunking” noise and sensation on occasions in the right hip.  He claimed this had been present since the 2nd accident, but he had not previously mentioned it to Dr Hall in numerous consultations with him.  In the early part of 1997 the plaintiff also complained to Dr Hall about pain and disability in his right knee.  In July 1997 Dr Hall referred the plaintiff to Mr Lewis, an orthopaedic surgeon, specialising in knees.  Mr Lewis undertook the treatment of the knee problem.  As he believed that the hip and associated problems may be related to the plaintiff’s lumbar spine he referred the plaintiff to Mr David Hall, a spinal surgeon, who first saw him on 22 December 1997.  He injected anaesthetic into some of the facet joints in the plaintiff’s lumbar spine which produced a partial relief of the symptoms.

1. On 20 May 1997 the plaintiff had commenced full time employment with Cheyan Transport Pty Ltd where he drove semi-trailers carrying cement all over the State.  However, that employment was terminated on 16 October 1997 after his ex defacto wife made unfounded allegations to his employer of criminal activity against him.  From 29 October to 2 December 1997 he had casual driving work with Scotts Transport carting wine around the metropolitan area, but this work ran out.  On 18 December he obtained employment with Northern Territory Freight Services driving semi-trailers all over the State until he resigned on 20 February 1998 because he said the long hours of work were too much for him.  He almost immediately thereafter obtained full time work with Eagle Haulage partnering another driver driving road trains to and from Alice Springs.  He left that employment on 17 May 1998 after a dispute with his employer.  He then appears to have been out of work for a few months.  In October 1998 he obtained some intermittent casual work with H P McArdle Transport relieving their regular drivers in driving semi-trailers to New South Wales.  That work finished in December 1998.  In February 1999 he obtained full time employment with WRB Transport driving semi-trailers to Sydney and this lasted until July 1999.  From 10 September to 24 September 1999 he was receiving a Newstart allowance.  From 2 October 1999 to the end of the year he had casual employment with J A Transport, which changed its name to Two Wells Transport, driving semi-trailers to Sydney, but he resigned that employment because of a disagreement about his employer’s work practices.  From 3 January to 17 January 2000 he was in receipt of a Newstart allowance.  Thereafter, he commenced permanent casual employment with West Trans Freighters which employment he still had at the time of trial.  His main duties are to take trailers from his employer’s depots to a road train marshalling yard at Two Wells.  He then tows one of the trailers for the road train to Port Augusta where it is hooked up to the rest of the road train for its journey further north and he returns to Two Wells.

2. On 15 June 1999 Mr Lewis had performed arthroscopic surgery on the plaintiff’s right knee.  He found some damage to the tibial plateau which had resulted from the fracture in the 2nd accident and which he repaired.  This surgery had been scheduled to occur some months earlier, but had been cancelled because the defendant’s insurer would not then agree to pay for it.  Prior to this surgery the plaintiff had had episodes of his knee giving way and being painful but that improved after the surgery.

The witnesses

1. I did not find the plaintiff to be an impressive or a reliable witness.  He did not have a good memory for dates.  I reject his evidence that he had told Mr Fountain that his driving licence had been disqualified soon after that occurred.  His non-participation in the Return to Work Plan in September 1994 and thereafter was because he knew that he could not legally drive and he falsely pretended that his neck condition was worse than it was to avoid having to drive and to preserve his continued income maintenance payments.  In this he intentionally deceived his employer and WorkCover and attempted to deceive this Court.  His story about his right hip and associated symptoms having commenced from the 2nd accident was false.  Prior to the redemption of his workers compensation claims arising out of the 1st accident he exaggerated the effect of his neck condition because that suited his immediate financial interests and after that he changed his focus to other alleged disabilities from the 2nd accident because that suited his subsequent purposes.  I can place little weight on his evidence on disputed matters.

2. I accept the evidence of Mr Fountain.  He was an impressive witness.  Although he was mistaken on some details, he was reliable on the major matters in dispute.  I accept the evidence of Mr Murton and Mr Cox.

3. I accept that all of the medical witnesses were doing their best to assist the Court.  However, the plaintiff frequently had not been frank and honest with them about the nature, extent and duration of his symptoms.  Many of the conclusions of the doctors were based on their acceptance of what the plaintiff told them, but I can only rely on those conclusions insofar as they were based on what I find to be true histories of what occurred.  Dr Lim was not called.  Neither party suggested that any inference should be drawn from the failure of the other to do so.  Some of his medical certificates to WorkCover were tendered, but only for the limited purpose of showing that such certificates were given on the days stated and not as to the accuracy of the conclusions expressed in them.

Ruling on expert evidence from Mr Lewis

1. In the evidence-in-chief of Mr Lewis, the orthopaedic knee specialist called by the plaintiff, the defendant’s counsel objected to the following question:

   “His evidence has been that he is now driving trucks too and from Port Augusta, about an eight hour round trip.  Given the nature of the injuries that he has, that you have diagnosed and treated to his right hip and leg, would it be consistent with those injuries for him to complain of pain while he is driving.”

The basis of the objection was that this topic had not been dealt with in the written reports of Mr Lewis which had been disclosed under Rule 38.01.  When I indicated that I intended to uphold the objection by applying R38.01(7) the plaintiff’s counsel made an oral application that I dispense with compliance with R38.01 in relation to the matter.  (I interpreted the application to encompass not only the specific topic of the question which I was about to disallow but also other expert evidence on the future employability of the plaintiff.)  No application was made under R38.01(7) for leave to adduce particular expert evidence without having supplied the necessary report.  The only ground put forward in support of the application was that it would be unfair to apply R38.01 against the plaintiff in the circumstances of this case.  Reports from Mr Lewis were tendered which were dated 21 October 1997, 9 February 1998, 10 February 1999 and 9 February 2000.  In addition correspondence in 1997 between Mr Lewis and Dr S Hall was tendered without objection.  There was nothing to suggest that Mr Lewis had ever been requested to give an opinion on the matter in question or in relation to the plaintiff’s future employability generally.  Presumably, if he had been requested to give such a report, he would have supplied it.  The topic was one which was clearly relevant on the pleadings and of obvious significance in the assessment of damages for future economic loss arising out of the 2nd accident.  Nothing was put forward by the plaintiff to explain why the necessary report had not been obtained from Mr Lewis on these topics and R38.01 complied with in respect of it.

1. Although the terms of R38 and the relevant practice directions have changed somewhat since the Full Court considered them in Trebilcock v The Nominal Defendant (1991) 58 SASR 213, the intent of R38.01, as was recognised by the Full Court in that decision, is still to ensure that proper notice of the expert evidence to be adduced by a party at a trial is given to the other parties at an appropriate time before trial. As I stated in Trebilcock v The Nominal Defendant (No 2) (1992) 164 LSJS 177 the onus is on the party seeking the dispensation from R38.01 to put forward some explanation for the omission and to show in the circumstances there is some special situation where justice dictates that it would be unfair to the plaintiff to apply R38.01 against him. Nothing of that sort was shown here. I do not know why the plaintiff did not obtain the necessary report from Mr Lewis and supply it to the defendant. It is not for me to speculate about it. There was no proper basis upon which to grant the dispensation, and accordingly it was refused.

2. When this point was argued in the course of the trial everyone concerned, including myself, mistakenly believed that R38.02(3) was the source of the power to grant any such dispensation.  However, that rule applies only to the Supreme Court, and not to the District Court.  The dispensing power of the District Court is only the general one in R3.04(a), but that does not make any difference to what I have decided.  A similar result would also have followed if an application had been made under R38.01(7) for leave to adduce the expert evidence from Mr Lewis.

Neck injury

1. In the 1st accident the plaintiff suffered some form of musculo-ligamentous soft tissue injury to his neck.  In order to preserve and prolong his receipts of workers compensation income maintenance payments the plaintiff exaggerated the duration and extent of his symptoms from this neck injury.  However, I accept that he had some significant neck injury arising from the 1st accident for a substantial time and is likely to continue to have some minor symptoms from it.  The symptoms from it were aggravated to some extent by the 2nd accident but, as he told Mr Butcher, the effect of this aggravation only lasted for several weeks.

Right leg and knee injuries

1. As a result of the 2nd accident the plaintiff suffered a major and painful injury to his right leg.  Apart from his knee problem this leg injury has satisfactorily healed.  I accept the opinion of Mr Lewis, which is supported by Mr Marshall, and not contradicted by Mr Jose, that the injuries to the right knee, as disclosed in the arthroscopic surgery in June 1999, are likely to lead to significant degenerative arthritic changes in the plaintiff’s right knee over the next ten to twenty years.  It is likely, but not certain, that these changes will produce symptoms of substantial pain and restriction in his use of the right knee.  They may become sufficiently severe so as to require him to undergo knee replacement surgery in ten to fifteen years time.  If the degenerative changes do produce substantial symptoms, they are likely to affect the plaintiff’s future earning capacity while the symptoms persist.  If the plaintiff has the knee replacement operation he is likely to be off work for up to eight months.  Although there was no direct evidence on the question, I infer that if he has the knee replacement operation his employability after his period of recuperation will be largely restored.  If the plaintiff has some future disability in his right knee from the degenerative changes, which is not sufficiently severe to warrant the major knee replacement surgery, his future employability is likely to be affected by such a disability to a lesser extent, but possibly for the rest of his working life.

Finger injury

1. The injury to the right little finger has fully healed and has not left the plaintiff with any residual disability.

Lower back and right hip problems

1. I deal with these two complaints together.  Most of the medical evidence was that they were related, but it is possible they may have independent causes.

2. On the plaintiff’s admission to hospital immediately after the 2nd accident it was noted that he had a graze over his right hip.  The hip was xrayed but no injury was reported.  He received no treatment there for any right hip complaint.  On 16 April 1996 he complained to Mr Hoare, a surgeon who was examining him for medico-legal purposes on behalf of his own solicitors, that “he gets aching discomfort in his right hip.”  Mr Hoare generally examined the plaintiff, but did not report on any abnormality of the hip.  Earlier on 22 February 1996 the plaintiff had been examined by Mr Jose, a surgeon retained by the defendant.  In the course of a thorough examination he did not make any complaint to Mr Jose of any right hip or low back problem.  The first complaint by him of any significant pain and problems in his right hip was to Dr Simon Hall on 7 January 1997.  Thereafter, he complained to all of the doctors who saw him about it and presented it as his major complaint.  He complained not of pain in the lower back as such, but of pain in the groin, hip and right buttock and of a clunking or clicking sensation in the right hip.  He falsely told doctors that he had experienced these problems in his hip since soon after the 2nd accident, but I reject his evidence that that was the case.  He did not complain of low back pain as such.  Mr David Hall attributed these hip and associated problems to referred pain from degenerative discs in his lumbar spine.  Other doctors said that the pain in the hip was due to the slipping of the ilio psoas tendon over the pelvic brim.  Whatever their cause I do not accept that these hip and associated problems resulted from the 2nd accident.  On what I have found the history of those complaints to be, Mr David Hall agreed it was unlikely that the problem emanated from the 2nd accident.  I accept the opinion of Mr Jose that it is likely those problems have some other cause.  Insofar as there may have been low back problems separate from the hip problem it is not proved, for similar reasons, that they resulted from the 2nd accident.

Assessment on the 1st accident

1. As a result of the 1st accident the plaintiff suffered a total loss of his earning capacity until he lost his driver’s licence on 26 July 1994.  In that period his neck condition was such that he was totally unfit for any employment.  Under s35a(1)(d) of the Wrongs Act he is not entitled to damages for the first week of such incapacity.

2. From 26 July 1994 to 25 January 1995 the plaintiff was unable to work as a driver because of the loss of his licence.  If the 1st accident had not occurred, it is not clear whether he would have been dismissed by Fruitexpress on 26 July 1994 upon it becoming aware that he had lost his licence.  Mr Fountain’s reason for dismissing him in late October 1994 was because he had lied about losing his licence, and not merely because he had lost it.  Mr Fountain had a good regard for the plaintiff as a driver, and, if there had been no accident, and the plaintiff had volunteered to him on 26 July that he had lost his licence, it is possible, but far from certain, that Mr Fountain would have found non-driving duties for him for six months rather than dismiss him.  Nevertheless, it is probable that he would have been dismissed.  Based on the evidence of Mr Butcher I find that by no later than 15 September 1994 the plaintiff had recovered sufficiently to be able to perform some work at least on a part time basis.  As Mr Butcher’s opinion was based on an acceptance of the plaintiff’s statements about his symptoms it is likely that he had a somewhat greater earning capacity at this time than was reported by Mr Butcher.  Based on Mr Butcher’s next examination on 9 November 1994 I find that the plaintiff was at least by that time fit for local driving work.  However, based on Mr Fountain’s experience of the difficulties in performing long distance driving while suffering from a whiplash injury, I accept that the plaintiff at this time was not sufficiently fit for interstate driving.  In this six month period the plaintiff would not have been likely to have earned very much if the 1st accident had not occurred.  His chances of obtaining other than driving work were not great.  His earning capacity in this period, and particularly in the later part of it, was not substantially impaired by his neck problem.

3. From 26 January 1995 until the 2nd accident on 10 May 1995 the plaintiff was capable of local driving and similar work, and was only restricted by his neck injuries from interstate driving.  Whenever the plaintiff has been motivated to find such work he has generally been able to do so.  Thus it is likely that he could have earned significant amounts in this period if he had sought to work, but he was content to live on his income maintenance payments before they reduced at the end of the first year.  However, he could not utilise his working capacity to the full as in the opinion of Mr Butcher he was still not fit for interstate driving.

4. From the 2nd accident until at least 24 August 1995 the plaintiff was totally incapacitated for work as a result of his leg injury in the 2nd accident.  Even if the 2nd accident had not occurred, his loss of earning capacity after 10 May 1995 as a result of the 1st accident was minimal and he was generally fit by this time for any type of intrastate driving work.  Much of his subsequent work history was of this type.  On 10 May he had been successful in obtaining work as a driver although the 2nd accident prevented him from taking it up.  His only loss of earning capacity from his neck injuries was his inability to perform interstate driving.  In Mr Butcher’s opinion he was not fit for this until August 1996, but it is unclear when between his examinations by Mr Butcher on 24 August 1995 and 9 May 1996, he became fit for interstate driving.  As Mr Butcher accepted what I have found to be the plaintiff’s exaggerated symptoms it is likely that it was closer to August 1995 than to May 1996.  There was no evidence that the plaintiff’s level of earnings was any greater from interstate driving than from intrastate driving.  It is unclear whether, if he had made reasonable attempts to get work after he recovered from the 2nd accident, he could have fully utilised his earning capacity in intrastate driving without having to resort to interstate driving until he was fit for it.  There is a small chance that he suffered some loss of earning capacity after the 2nd accident from his neck injury from the 1st accident through not being fit for a few months to perform interstate driving.  While he suffered some neck symptoms as a result of the 1st accident after 24 August 1995, and will continue to suffer them, they are not of such magnitude as to affect his earning capacity significantly.  They are rather to be reflected in the allowance for non economic loss that he will suffer more pain and discomfort in working with those disabilities than he would if there had been no 1st accident.

5. I accept the plaintiff’s submission that from July 1993 to the 1st accident his average weekly nett income had been $492 which converts to $634 gross.  But for the 1st accident and his loss of licence it is likely that those earnings would have continued and that up until the 2nd accident he would have earned about $24,600 nett or $31,700 gross.  In the period from the 1st accident to 30 October 1996 the plaintiff received from Fruitexpress and/or WorkCover gross income maintenance payments totalling $67,045.  However, on the findings which I have made his loss of earning capacity from the 1st accident did not significantly extend beyond 10 May 1995, and certainly not beyond May 1996.  In the event that the plaintiff would have lost his employment with Fruitexpress after the 1st accident it is likely that he would have had some period of unemployment from when he again became fit for work in the time in which it took him to find suitable new employment, and particularly in light of the reluctance of employers to hire people with recent workers compensation claims.  I assess damages for past economic loss arising out of the 1st accident at $10,000.  As the plaintiff is liable to repay this amount to WorkCover it is assessed on the gross sums that have been paid without any deduction for income tax: Fox v Wood (1981) 148 CLR 438. I allow nothing for future economic loss arising out of the 1st accident.

6. I reject the plaintiff’s argument that as he was in receipt of workers compensation as a result of the 1st accident his loss of earning capacity from that accident at common law is to be measured by reference to his liability to repay income maintenance received under the Workers Rehabilitation and Compensation Act. This approach is not justified by Fox v Wood (above), as was suggested.

7. As a result of his neck disabilities from the 1st accident the plaintiff was impeded for sometime in pursuing his chief hobby of riding motor cycles and to a lesser degree in his hobby of fishing.  He will continue to suffer some pain and discomfort in his neck in the future.  On the scale of 0-60 under s35a(1)(b) of the Wrongs Act I assign a numerical value of 6 for the plaintiff’s past and future non economic loss arising out of the 1st accident.  The multiplier was agreed at $1,430 and there will be an award of $8,580 on this head.

1. Between 21 May 1994 and 8 May 1996 WorkCover paid out $7,804 for numerous medical, physiotherapy, radiology, massage and similar services to the plaintiff which were alleged to have been incurred in relation to the 1st accident.  In addition WorkCover paid on a similar basis chemist expenses totalling $42 incurred between 8 June 1994 and 12 January 1995 and travelling expenses for medical and like appointments totalling $951 incurred between 21 July 1994 and 13 February 1996.  The only evidence of these items were printouts of the payments made by WorkCover showing the dates, the payees and the very general nature of the services provided.  I do not consider that the substantial amount of physiotherapy, massage and like treatment was reasonably justified.  To some extent the plaintiff was perpetuating the treatments to give the appearance that his neck symptoms were worse than they were.  The defendant conceded that it should be liable for all physiotherapy services to August 1994.  (The defendant’s written address referred to a period of twelve months but from what was said in the oral address that appears to have been a mistake.) As the extended physiotherapy treatment was not providing any substantial benefit to he plaintiff I consider on the opinion of Mr Jose that generally it should not be allowed past August 1994.  Insofar as the plaintiff’s treating doctors approved of the use of physiotherapy after this time it was because the plaintiff was exaggerating his symptoms.  On a broad axe basis I allow a small amount of physiotherapy, massage and hydrotherapy fees at a later time on the basis that there were probably a few flare-ups of the neck condition which would have justified short term treatment of this type for symptomatic relief.  Insofar as WorkCover have paid for physiotherapy treatment occurring after the 2nd accident for injuries attributable to the 2nd accident the plaintiff cannot recover damages for those expenses in any of his claims arising out of either accident.  I was not provided with any calculation of the items which should be disallowed from those paid by WorkCover on the basis that such treatment was not justified after August 1994.  The defendant did not dispute the other items of special damage which had been paid by WorkCover.  There was one account for Dr Lim for $20.55 which had not been paid by WorkCover.  On the items claimed, as set out above, I allow damages of $6,000.

2. A small broad axe assessment is to be made for future painkillers for where there are any flare-ups of the neck condition.  I allow $100 on this head.

3. In summary the assessment in the first action is as follows:

Past economic loss  $      10,000

Non economic loss   8,580

Past special damages   6,000

Future special damages       100

TOTAL  $      24,680

No pre-judgment interest is assessable in this action as both the past economic loss and the past special damages have been paid through WorkCover.

Assessment on the 2nd accident

1. It is not clear on the evidence when the plaintiff was first fit enough to resume work after the 2nd accident.  As I have found above, the impairment to his earning capacity after the 2nd accident resulted almost wholly from that accident rather than from the 1st accident.  As mentioned earlier the plaintiff was in continued receipt of weekly income maintenance payments from WorkCover and was not motivated to resume employment as was evidenced by his lack of co-operation with Ms Roberts-Yates.  As mentioned previously but for the 2nd accident the plaintiff could have expected to have earned about $492 per week nett after tax until 30 October 1996.  He was receiving $480 per week gross from WorkCover.  He is not to be compensated for any loss of earning capacity arising from the 2nd accident up until 30 October 1996 which would be represented by these benefits which he had received from WorkCover: Manser v Spry (1994) 181 CLR 428. (It was agreed by the parties before me that the plaintiff was not liable to repay to WorkCover any damages arising out of the 2nd accident.) In this period up to 30 October 1996 he is entitled to recover his loss of earning capacity resulting from the 2nd accident which is represented by the difference between the $492 per week and the WorkCover payments received, but only insofar as that loss would have been incurred if he had taken reasonable steps to obtain and hold down suitable employment. If from late in 1995 he had genuinely sought work, it is likely that he would have obtained at least some and would not have suffered up until 30 October 1996 the full loss of the difference between the $492 per week and the $480 per week.

2. From late in 1996 after the workers compensation redemptions were paid the plaintiff did his best to obtain employment and was fairly successful in doing so.  His hip and neck problems did not significantly impair his earning capacity in this period.  As he had been out of the work force for some time as a result of the 2nd accident it is understandable that he took some time to find acceptable long term employment as he now has with West Trans Freighters.  Some of his other employment prior to this was lost through causes which would have been likely to have occurred even if there had been no accidents.  From the beginning of 1997 to trial the plaintiff has earned about $65,000.  After making some allowance for periods of unemployment and periods of part time casual employment that would be likely to have occurred in any event in his transition between employment I assess past economic loss arising out of the 2nd accident at $12,000, which takes into account allowances for the workers compensation income maintenance payments received after 10 May 1995 and the tax payable on the gross earnings.

3. There was no evidence to suggest that the plaintiff’s present employment with West Trans Freighters, or similar employment, will not continue in the foreseeable future.  The plaintiff has been able to obtain and hold down this employment in spite of his neck and hip disabilities.  At present he has no significant disability arising out of the 2nd accident which impairs his earning capacity.  However, as the condition of his right knee deteriorates there is a likelihood that the pain and restriction of use which that deterioration may well generate will impair his future earning capacity to a significant extent.  That impairment is likely to be resolved once he has recuperated from any knee replacement operation, but it could endure for a long period, although to a lesser degree, if his symptoms are not serious enough to warrant the knee replacement operation.  I assess damages for future economic loss arising out of the 2nd accident at $40,000.

4. The plaintiff suffered considerable pain and inconvenience immediately after the 2nd accident during his period of recuperation and is likely to do so again when his knee deteriorates.  On the scale of 0-60 I assign a value for past and future non economic loss of 9 and on the agreed multiplier of $1,450 assess damages for non economic loss at $13,050.

5. A small broad axe allowance is to be made for gratuitous services rendered to the plaintiff by his teenage son during his convalescence which I assess at $600.

6. A number of the special damages arising out of the 2nd accident have already been paid by WorkCover or the defendant’s insurer.  I ignore them for the purposes of this judgment.

7. An amount of $4,680 was claimed for the hire of a special chair from the Back Centre which the plaintiff used in his recuperation.  It was not reasonable for the plaintiff to have used this chair for more than two months.  I only allow $280 for his item.

8. I do not allow the special damages which are attributable to the hip problem as were identified in the agreed schedule submitted by the parties.  I allow the outstanding balance of special damages claimed as set out in the agreed schedule at $1,309.  In all the past special damages will be allowed at $1,589.

9. If the plaintiff has to have a knee replacement operation its present cost would be between $15,000 and $20,000.  It is not certain that such an operation will be needed.  If the plaintiff does not have the operation, he may still well need some other medical, physiotherapy and like treatment for likely future problems with his knee.  While much of his consumption of painkillers is attributable to his hip and neck problems some allowance is to be made for future painkilling medication for any knee problems.  Damages for future special damages arising out of the 2nd accident are assessed at $10,000.

10. Interest is to be allowed on the past economic loss at a commercial rate from when the loss was incurred.  Interest is to be allowed on the damages for past gratuitous services at 4% per annum.  I fix a lump sum in lieu of such interest at $1,500.

11. In summary the plaintiff’s damages for the 2nd accident are assessed as follows:

Past economic loss  $      12,000

Future economic loss  40,000

Non economic loss  13,050

Gratuitous services   600

Past special damages   1,589

Future special damages  10,000

Interest    1,500

TOTAL  $      78,739

Summary

·.. I reject the defendant’s tender of the statement of Arthur Mitchell deceased.

·.. I find the late Arthur Mitchell guilty of negligence, but the plaintiff not guilty of any contributory negligence.

·.. In the first action there will be judgment for the plaintiff for $24,680 inclusive of interest.

·.. In the second action there will be judgment for the plaintiff for $78,739 inclusive of interest.