Meakes v Nominal Defendant
[2011] NSWDC 9
•15 March 2011
District Court
New South Wales
Medium Neutral Citation: Meakes v Nominal Defendant [2011] NSWDC 9 Hearing dates: 17, 23, 24, 25 November, 16 December 2010 Decision date: 15 March 2011 Before: Levy SC DCJ Decision: 1. Verdict and judgment for the plaintiff in the sum of $433,565;
2. The defendant is ordered to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
3. The exhibits may be returned;
4. Liberty to apply on 7 days notice if further orders are required.
Catchwords: TORT - collision between unidentified motor vehicle and pedestrian at a city intersection - whether the collision was due to negligence of driver - whether there was contributory negligence on the part of the pedestrian - whether due inquiry and search has been established - whether plaintiff's status as a legal practitioner warranted a different standard of consideration of the discharge of the obligation of due inquiry and search compared to that required of a lay litigant; PROCEDURE - exclusion of medical opinion where reports served during the course of trial and not in accordance with the rules - whether special circumstances shown - UCPR r 31.28(4) - medical opinion on DVD evidence of plaintiff's activities - requirement to avoid ambush at trial; DAMAGES - assessment of individual heads of damage - whether superannuation losses claimable by self-employed legal practitioner Legislation Cited: Civil Procedure Act 2005, ss 56 - 58
Evidence Act 1995, ss 79 - 80
Motor Accidents Compensation Act 1999, ss 34, 126 & 136
Uniform Civil Procedure Rules 2005, r 31.28(4); Sch 7, cl 5(c)Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Blandford v Fox (1944) SR (NSW) 241
Cavanagh v Nominal Defendant [1958] HCA 57; (1958) 100 CLR 375
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Grill v General Iron Screw Collier Co. (1866) 35 LJCP 321
Harrison v Nominal Defendant (1975) ALR 680
Husher v Husher [1999] HCA 47; 197 CLR 138
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Mason v Demasi [2009] NSWCA 227
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182
McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308
Nominal Defendant v Smith (1998) 28 MVR 165
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116
Oztan v Nominal Defendant (1995) 23 MVRSC 59
Penrith City Council v Parks [2004] NSWCA 201
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Richards v Cornford (No 3) [2010] NSWCA 134
Sophie Fegan by her tutor Inga Rozenauers v Lane Cove Council House Pty Ltd [2007] NSWCA 88
State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Strinic v Singh [2009] NSWCA 15
Watts v Rake [1960] HCA 58; (1960) 108 CLR 15Category: Principal judgment Parties: Wallace Edward Meakes (Plaintiff)
The Nominal Defendant (Defendant)Representation: Counsel:
Mr H Halligan (Plaintiff)
Mr M Cleary (Defendant)
Solicitors:
Carneys (Plaintiff)
Dibbs Barker (Defendant)
File Number(s): 2009/338245
Judgment
Table of Contents
| I. | INTRODUCTION |
| Nature of case | [1] |
| Issues | [2] – [3] |
| Evidence overview | [4] – [6] |
| Credit findings | [7] – [12] |
| Summary of findings | [13] |
| Assessed heads of damage | [14] |
| II. | FINDINGS – BACKGROUND FACTS |
| Plaintiff’s background circumstances | [16] – [27] |
| Events of the collision | [28] – [48] |
| Medical evidence review | [49] – [149] |
| Exclusion of reports of Dr Dalton served during the trial | [150] – [189] |
| Surveillance and DVD film of plaintiff’s activities | [190] – [195] |
| III. | FINDINGS ON LIABILITY ISSUES |
| Issue 1 - Involvement of an unidentified motor vehicle | [197] |
| Issue 2 - Negligence | [198] – [213] |
| Issue 3 - Alleged contributory negligence | [214] – [235] |
| Issue 4 - Due inquiry and search | [236] – [266] |
| IV. | FINDINGS ON DAMAGES ISSUES |
| Injuries initially sustained in the collision on 1 August 2008 | [268] – [271] |
| Maui ocean swim on 4 September 2008 | [272 – [278] |
| Causation of plaintiff’s right shoulder problems | [279] – [299] |
| Injuries – concluded view | [300] |
| Treatment | [301] |
| Mitigation | [302] – [304] |
| Disabilities that remain | [305] – [310] |
| Effects on domestic tasks | [311] – [316] |
| Effects on social, recreational, sporting and work activities | [317] – [319] |
| Life span | [320] |
| V. | DAMAGES ASSESSMENT |
| Past diminution in earning capacity | [322] – [363] |
| Future diminution in earning capacity | [364] – [377] |
| Superannuation losses | [378] – [381] |
| Fox v Wood | [382] – [384] |
| Past domestic assistance | [385] – [403] |
| Future domestic assistance | [404] – [406] |
| Past cost of fencing contractor | [407] – [415] |
| Future cost of rural labour | [416] – [419] |
| Future out-of-pocket expenses | [420] – [427] |
| Past out-of-pocket expenses | [428] – [432] |
| Summary of damages assessments | [433] |
| VI. | DISPOSITION & ORDERS |
| Disposition | [434] |
| Orders | [435] |
I INTRODUCTION
Nature of case
The plaintiff seeks damages for injuries he claims to have received shortly before 4.00pm on Friday 1 August 2008, when he was struck by an unidentified motor vehicle whilst he was crossing the intersection of Elizabeth and Park Streets, Sydney. The plaintiff claims the identity of the owner and driver of the vehicle remains unknown despite due inquiry and search, and he therefore brings these proceedings against the Nominal Defendant pursuant to s 34 of the Motor Accidents Compensation Act 1999 [" MAC Act "].
Issues
Apart from matters associated with the plaintiff's pre-injury situation, the credibility of testimony and the assessment of damages, the following liability issues arose for determination in these proceedings:
Issue 1 : Whether the plaintiff was struck by an unidentified vehicle. My findings on this issue are set out in paragraph [197] of my judgment;
Issue 2 : Whether the driver of the unidentified vehicle was negligent. My findings on this issue are set out between paragraphs [198] to [213] of my judgment;
Issue 3 : Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent. My findings on this issue are set out between paragraphs [214] to [235] of my judgment;
Issue 4 : Whether the plaintiff has shown that the owner and the driver of the unidentified motor vehicle cannot be established after due inquiry and search. My findings on this issue are set out between paragraphs [236] to [266] of my judgment;
The issues that arise concerning the nature and extent of the plaintiff's injuries, the residual effects of any ongoing disabilities, and the effects of these matters on the plaintiff's earning capacity and his domestic activities, will be dealt with in those portions of my reasons that deal with damages.
Evidence overview
The plaintiff recounted details of his pre-injury work, leisure and social history as well as the circumstances of the collision in question. The defendant called oral evidence from Mr Kevin Lo, a witness who saw aspects of the collision and its aftermath. The plaintiff tendered affidavit evidence from his solicitor, Mr David Ford, whose evidence was directed at the issue of attempts at due inquiry and search seeking to establish the identity of the owner or driver of the unidentified motor vehicle involved in the collision. Mr Ford was cross-examined concerning the matters to which he had deposed in his affidavit.
The medical evidence tendered by the plaintiff comprised a bundle of reports from the plaintiff's treating and assessing doctors. The defendant tendered reports that related to a prior personal injury claim made by the plaintiff, as well as reports from Dr Seamus Dalton, a sports medicine and rehabilitation specialist who was also called to give oral evidence.
Financial returns, records and related analyses were tendered concerning the plaintiff's claim for loss of earning capacity, and the financial arrangements within the partnership in which he practised as a solicitor.
Credit findings
The only two matters that arose concerning the credibility of testimony involved a consideration of the evidence of the plaintiff, and the liability witness Mr Kevin Lo. This involved the reliability of the respective testimony they had given.
In my view, the plaintiff gave his evidence in a careful and straightforward manner. When his evidence was viewed as a whole, no indications emerged to suggest that his evidence was improbable or not credible. His responses to questions both in chief and in cross-examination were full and were carefully considered. In this regard I considered that the plaintiff's candid evidence that he could not recall the colour or state of the display of the traffic or pedestrian control signals at the intersection in question at the time of the collision, was a matter that weighed significantly in favour of the acceptance of the reliability of his testimony. This was in circumstances where he stated that he thought it was safe and clear for him to cross, yet he was careful to avoid merging that belief with any statement that described the state of display of the pedestrian control lights.
I considered that there was no indication from within the DVD evidence obtained from observation of the plaintiff's activities or from the medical evidence tendered to suggest that the plaintiff's account of his injuries and his resultant disabilities should not be accepted. I formed the opinion that his evidence was inherently credible and was given in a reasonable manner. I was reinforced in this view on account of Dr Dalton's comment that in the medico-legal examinations he had conducted, the plaintiff's presentation was consistent with the underlying pathology and with the findings he had made on physical examination. Accordingly, I accept the plaintiff's evidence in its entirety as being both credible and reliable.
Mr Lo's evidence was hesitant and tentative, which suggested to me that he was not confident as to the detail of what he had seen. His evidence was couched in terms of probability as to what he had seen rather than providing an account of his direct observations. Initially, he did not want to get involved in the liability investigation. Clearly, on the account of events given in evidence by him, having to give a statement about the matter was regarded by him as something of an imposition.
On considering the evidence of Mr Lo, whilst I concluded that his account of the factual events was largely based on a summary of what he thought had probably occurred, rather than representing a reliable factual account, it was broadly consistent with the account given by the plaintiff, notwithstanding that he had not seen that portion of the events where the plaintiff retrieved his bag or his glasses from the roadway.
To the extent that the respective versions of the events that occurred immediately before, during and after the collision by the plaintiff and Mr Lo are at variance, I prefer the evidence of the plaintiff not only because his evidence seemed to me to be inherently credible, and he was careful not to provide evidence beyond his actual recollection, for example, his non-recollection of the colour of the pedestrian lights, but also because Mr Lo's evidence was, in my view, largely based on a reconstruction of what he thought had occurred during the incident, rather than on what he had actually seen.
Summary of findings
I have accepted that the plaintiff was struck by an unidentified motor vehicle as he claimed. I have rejected the defence of alleged contributory negligence. I have found that due inquiry and search has failed to establish the identity of the owner or driver of the unidentified motor vehicle. I have found that the plaintiff was injured as claimed. I have assessed the plaintiff's entitlement to damages in the sum of $433,565.
Assessed heads of damage
The plaintiff makes a claim for 10 heads of damage. These heads of damage claimed by the plaintiff, and the damages submissions by the parties, are listed below, together with the paragraph references to my assessments of the various heads of damage claimed:
| Head of Damage claimed by plaintiff | Plaintiff’s Submissions | Defendant’s Submissions | Award | Paragraphs |
| (a) Past diminution in earning capacity | $79,300 | $10,000 | $60,000 | [322] - [363] |
| (b) Future diminution in earning capacity | $306,337 | Nil | $250,000 | [364] - [377] |
| (c) Superannuation losses | $42,453 | Nil | $34,100 | [378] - [381] |
| (d) Fox v Wood | $1,522 | $1,522 | $1,522 | [382] - [384] |
| (e) Past domestic assistance | $38,918 | Nil | $17,074 | [385] - [403] |
| (f) Future domestic assistance | $24,454 | $24,454 | $24,085 | [404] - [406] |
| (g) Past cost of fencing | $22,236 | Nil | $11,000 | [407] - [415] |
| (h) Future rural labour | $17,548 | Nil | Nil | [416] - [419] |
| (i) Future out-of-pocket expenses | $40,000 | $8,355 | $25,000 | [420] - [427] |
| (j) Past out-of-pocket expenses | $10,784 | $10,784 | $10,784 | [428] - [432] |
| Totals | $583,552 | $55,115 | $433,565 |
II. FINDINGS - BACKGROUND FACTS
Unless otherwise stated, the paragraphs that follow set out my findings on relevant matters of fact, concerning the plaintiff's pre-injury personal and professional background circumstances, and the relevant events of the collision.
Plaintiff's background circumstances
The plaintiff is presently aged 56 years. He was aged almost 54 years when he was injured. He is a solicitor and he is married to a solicitor. There are 3 children in the family aged 15, 13 and 8 years. The plaintiff holds university degrees in commerce and law. He was admitted to practise as a solicitor in 1982. He has spent his entire professional life as a solicitor in the firm Carneys. He has been a partner of that firm for many years. That firm is now an incorporated solicitor's practice. Since 1997 the plaintiff has held specialist accreditation in the practise of property law.
The defendant introduced evidence to the effect that the plaintiff has a brother who is known to practise as a barrister in personal injury litigation of various types. I considered this evidence to be of doubtful relevance. This is a matter to which I will return on the liability issue of due inquiry and search.
Before the injury which is the subject of these proceedings, the plaintiff had a long history of proficient involvement in active sports, including rugby, swimming, surfing and golf. In the years before the injury in question, he regularly devoted a significant amount of his non-working and non-family time to maintaining his physical fitness and his sporting prowess. This included regular exercise in gymnasia. He obviously took pride and satisfaction from his involvement in those activities, managing to successfully mix a busy professional and family life with his active involvement in his sporting and related activities.
Before his injury, the plaintiff maintained concurrent memberships of 7 separate social, recreational and sporting organisations, comprising rugby, surf, beach, golf and social clubs. The plaintiff's membership and involvement in the activities of these clubs enabled him, with some considerable success, to advance himself professionally by utilising professional opportunities for obtaining work for himself and for his firm from the array of personal, business, social, sporting and recreational contacts that he had managed to accumulate in the course of these activities.
The plaintiff's professional work as a solicitor was principally in the field of property law and the commercial transactions that related to such work. His work covered the range of what he described as modestly remunerated work of a goodwill nature, such as the preparation of wills, and flow-on work which included high end property transactions that were profitable to his legal practice. His client base drew heavily upon his social, sporting and recreational activities and from within his membership of the clubs I have described. Obviously, having regard to the partnership and corporate arrangements in his firm, the plaintiff's income was also derived from a share of the profits that arose from the products of the work carried out by others in the firm.
Some of the plaintiff's financial records, and the records of Carneys, the plaintiff's legal practice partnership, were tendered in evidence. Those records will be the subject of analysis in connection with my findings on the claim for diminution in earning capacity.
The plaintiff's pre-injury health was generally good. Despite having acquired a number of injuries from his sporting activities over the years, particularly to his right shoulder and to his knees whilst playing rugby, he also had been involved in 2 other motor vehicle collisions. These occurred in about 1982 and in 1994. In those incidents, the plaintiff had suffered from whiplash type injuries, from which he had recovered before the injury in question in these proceedings. There was no medical opinion establishing any relevant causative relationship between the effects of the plaintiff's prior injuries and the injuries and disabilities that arose as a result of the collision to which these proceedings relate.
Before the collision in question, the plaintiff had led an active professional and social life, and he maintained his longstanding sporting links. He also actively participated in domestic activities. He exercised daily and was interested in maintaining his physical fitness. At his preferred gymnasium, one of the several which he attended, in successive years he had been declared " King of the gym ". He successfully managed to combine his interest in exercise and sports with his professional life and he actively sought professional work from the relationships that he had made from his sporting activities, his gymnasium and club memberships and the networks that he was able to access from those involvements. He was able to structure his working hours around these activities, working between 60 and 70 hours per week before his injury. He was also able to structure the timing of some of his work away from his office, and at the premises of his clients, to enable him to make time to visit the various clubs and gymnasia to which he belonged.
Over many years as a partner of the firm Carneys, the plaintiff derived a satisfactory professional income from the work he introduced to the firm from these social, sporting and professional contacts. As a partner in his firm he not only benefited from work from within his own client base, but he also benefited from the work that others introduced into the firm in the usual manner that contributed to the distributable profits for the partnership. These arrangements continued when the partnership became incorporated. Before his injury, the plaintiff's share of the profits of the firm was of the order of 24.1 per cent. The evidence of the plaintiff's earnings will be examined in greater detail in connection with the claim for loss of earning capacity.
Before the injury in question, the plaintiff undertook his share of household and domestic activities, performing the heavier aspects of housework, gardening, weeding, lawnmowing, clearing leaves from his roof, and all the required outdoor maintenance. His home is in a heavily wooded suburban area, which required much weekly outdoor maintenance around the home, especially in the buffer zone between the bush area and his house. The lawn was on a steep slope, which required that the lawnmower be carried up and down that slope.
Before the injury in question, the plaintiff had committed himself to acquire an interest in a small rural property holding of about 100 acres for the grazing of cattle, in relation to a proposed sub-division at Ellalong in the Hunter Valley in NSW. The plaintiff had a rural background and had experience in the work required to maintain and fence such a property and had intended to himself carry out such work on the property had he not been injured. The property was formally acquired when the transaction was completed in September 2008, which was after the subject injury.
The issues that arise from the plaintiff's pre-injury social, sporting, domestic and employment activities will be examined in greater detail in connection with the specific heads of damage to which those matters relate.
Events of the collision
Shortly before 4.00pm on Friday 1 August 2008, the plaintiff had left his office in Castlereagh Street in the city, and had walked in a southerly direction along Elizabeth Street, in order to attend upon the settlement of a client transaction which was to take place at an office located in a building at the corner of Bathurst and Elizabeth Streets, a distance of some 400 m away from the plaintiff's own office. He said, and I accept, that he was walking quickly, but was not rushing. Although it was put to the plaintiff that he was rushing to this appointment, he denied that suggestion. I accept his denial not only because I thought he gave inherently credible evidence, but also because it was not relevantly contradicted by the evidence of the eyewitness who described the plaintiff as having been walking at a fast striding pace, which I do not consider to necessarily connote an impression of " rushing ".
In the course of these events, the plaintiff came to the intersection of Elizabeth Street with Park Street, where he noticed the traffic in that location at that time was very heavy. He stated that there was stationary traffic, comprising vehicles located over the south-western end of the intersection and which were partly obstructing the pedestrian crossing at that point. He described the westbound traffic in Park Street as being gridlocked before he attempted to cross the road. The gridlock extended from the intersection of Elizabeth and Park Streets, down to the Town Hall, with no vehicles moving within the gridlock. I accept the plaintiff's evidence in this regard.
At that time, when the plaintiff commenced to walk across the intersection, he noticed that there were a number of people who were walking across the intersection ahead of him, and that they were walking between the banked-up stationary vehicles that were located within the gridlocked traffic located on the south-western side of the intersection of Park Street. The plaintiff stated, and I accept, that at the time when he commenced to walk across the intersection, there was a pedestrian in the immediate vicinity to his left, and another pedestrian just in front of him by about 2 metres.
Candidly, the plaintiff stated, and I accept, that he could not recall whether there was a green walk signal in his favour, or a red don't walk signal. He stated that all he could remember was that as he reached the intersection, and before he had commenced to cross, there were people walking across the road ahead of him, and that traffic was gridlocked on the pedestrian crossing. He stated that as he walked to the south-western side of the intersection, he reached the last lane which was the closest to the kerb, which was a dedicated bus lane, and he then commenced to walk across the final part of the pedestrian crossing when he suddenly looked up and noticed that in the " millisecond " before the collision, a vehicle was upon him. He stated, and I accept, that he looked across the intersection before he crossed to make sure he was crossing properly.
In oral evidence the plaintiff stated that at this time he was 2 to 3 metres from the footpath on the south-western side of the intersection. In a diagram that had been prepared when he was interviewed by an investigator engaged by the defendant, this was described as being about 1 metre from the kerb. He said that before he was struck, he was at all times within the marked confines of the pedestrian crossing at the intersection. The plaintiff believed, and I accept, that at the time of the collision, he was the only pedestrian remaining on the crossing.
The plaintiff stated and I accept, that immediately before the collision, he did not see the approach of the vehicle that struck him, but he believed the vehicle had turned from Elizabeth Street into Park Street, that is, it had changed its direction to travel from north in Elizabeth Street to travel west in Park Street. The vehicle struck the plaintiff heavily on his left side and at a sufficient speed to cause the plaintiff to be thrown into the air and then catapulted about 3 metres backwards or sideways to the west, whereupon he fell down onto the roadway. In these events the plaintiff described being thrown into the air and about 2 feet off the ground. At the time of these events the plaintiff weighed 13 stone. He was 6 foot tall. The plaintiff stated, and I accept, that in "the brief millisecond" before the impact, he saw a white or light coloured vehicle.
When the plaintiff fell onto the roadway he landed on his right side. He was shocked by the events of the collision. Initially he was shocked and thought he was going to die. After a few moments, he gathered himself and he noticed his bag and his glasses were on the roadway. He then got up and retrieved these items.
In accepting the foregoing evidence of the plaintiff I have had due regard to the evidence of the eyewitness, Mr Kevin Lo, who was working in a nearby cafe.
In answers to questions put to him in cross-examination, Mr Lo acknowledged that he had no independent recollection of the events beyond the content of a statement that he had made to an investigator employed on behalf of the defendant. The statement was dated 2 December 2008. Mr Lo acknowledged that he had refreshed his memory from that statement.
Mr Lo stated that from his position whilst working behind the bar of the adjacent Starbucks cafe on the south-western corner of Park Street with Elizabeth Street, he had a clear view of the scene of the collision, and the roadway of Park Street, extending between Elizabeth Street and Castlereagh Street, which was parallel to Elizabeth Street, but to the west.
Mr Lo stated that he looked up and saw, from a corner of his eye, the vehicle that struck the plaintiff suddenly stop in the bus lane after it had entered the intersection from the east side of Park Street to travel to the west side of Park Street. He stated that this vehicle had been the last vehicle to enter the intersection. I infer from the context of this aspect of his evidence, that he was referring to either an apparent change of signal of the traffic control lights, or that after this vehicle had entered the intersection, there was no room for any other vehicle to enter, or there were no other vehicles attempting to enter Park Street at that point. The evidence does not permit a reasoned preference between these competing inferences.
Mr Lo stated that he believed the vehicle was in the pedestrian crossing when it had struck the plaintiff. He also confirmed that when the plaintiff had been struck he was moved forward, with his feet off the ground, having been moved from a position within the pedestrian crossing to a position about 2 m or so away from that point, and coming to rest at a point about 1 metre from the " outside of the pedestrian crossing ". That evidence was broadly consistent with the description given by the plaintiff.
Mr Lo stated that he believed the plaintiff " was one of the last few pedestrians to cross the lights ". He had described the plaintiff as " walking quicker than usual than a normal person " but nevertheless walking. In answer to question 127 of the interview statement he had given to the defendant's investigator, he described the plaintiff as having been walking at " a fast paced striding walk ". He stated that he was not sure whether there were some other pedestrians with the plaintiff at the time he was struck, but he had seen other pedestrians cross at the intersection before the plaintiff had crossed. Significantly, because he had not observed them, Mr Lo was not in a position to describe the state of the display of the traffic control signal that faced the plaintiff as he commenced to, and proceeded to, cross the intersection before he was struck by the vehicle.
In the statement he provided to the investigator, Exhibit "W", Mr Lo gave the following account of events;
"Q 27. ...could you tell me in relation to this accident and what you saw? If you could start off with what you were doing and what you saw after?
A 27. OK. I was probably, probably making drinks at the bar side of things. I usually look up occasionally just to see if we get busy or not and stuff like that. So, so then this, I saw a sudden stop of a white car, a sudden stop and then saw the, saw a pedestrian being hit and he, he lied on the road, he, he, he flew in the air for a few metres in front, probably 2 metres or so. He landed on the road. He got up almost immediately and then the driver of the car got out and then they had a minor conversation. The driver waved her off, picked up his things and then continued on his journey. I couldn't ...
Q 28. A...
A 28. ...obviously I couldn't hear the conversation and I couldn't, I didn't know what they said, I just saw the exchange.
Q 29. Just to clarify something you said then, ...
A 29. Mmm.
Q 30. ...you said the driver wa, waved off, ...
A 30. Oh...
Q 31. ...do you mean the pedestrian?
A 31. Sorry, the pedestrian wave, waved the driver off or something, something that, to that extent.
Q 32. How far away were you...
A 32. Mmm.
Q 33. ...from the incident when it occurred?
A 33. Oh probably a good 7 to 8 metres away I think would be a good estimate.
Q 34. Did you have a clear view?
A 34. I had a clear view but I did not hear it so it was all in, in sight, yes.
Q 35. Did you actually see the collision between the car and the pedestrian?
A 35. Ah, I, I think so, I saw, yeah, I remember before and after but I don't actually remember the car hitting the pedestrian. I, yeah, I don't know why."
The reference of Mr Lo's answer to Q. 27 as to the " driver having waved her off " was corrected in the oral evidence of Mr Lo as being a reference to the pedestrian having waved off the driver, consistent with Mr Lo's answer to Q 31.
In the course of these events, the plaintiff stated that a woman who appeared to be the driver of the vehicle that had struck him, had alighted from the vehicle. Initially, the plaintiff said he did not engage in any conversation with her, nor she with him. The plaintiff later agreed that the driver had walked towards him, saying something, but he could not recall what it was that she had said. At the time the plaintiff heard a man in the vicinity of these events say something to the effect that he had been responsible for the collision in the sense that he had distracted the driver of the vehicle at the time. In the context in which these events occurred, and from the limited detail of the description, it was difficult to form a concluded view of the true significance of what the plaintiff had heard in this regard.
The plaintiff described the woman whom he thought was the driver of the vehicle to be just over 5 feet in height, and aged between 35 and 45 years. He could not recall whether she had any distinguishing features. No-one gave him any particulars of identification of either the owner, or the driver of the vehicle. The plaintiff acknowledged that he did not ask the woman for her particulars, and he also acknowledged that he did not record any particulars in relation to the registration of the vehicle that had struck him.
Mr Lo described the driver as being a lady of Indian appearance with dark complexion and dark hair, apparently aged between 35 and 40 years. Mr Lo stated that he saw the driver get out of the vehicle and that she and the plaintiff were making hand gestures to each other and moving their lips indicating to him that there had been " a minor exchange of words " for a couple of seconds, following which the plaintiff walked off in a southerly direction along the footpath of Elizabeth Street. Mr Lo stated that at that time, the vehicle was still in the stationary position it had been in within the bus lane when it had come to a stop after striking the plaintiff. At that point Mr Lo had turned away from the scene and had started talking to colleagues, and did not later see the vehicle move away from the scene of the collision.
Following, or in the course of these events, the plaintiff felt pre-occupied by his commitment to attend to the requirements of a complicated multiparty exchange of contracts as part of a broader transaction he had been engaged to carry out on behalf of a client. As a consequence of such pre-occupation, at the time he removed himself from the roadway, he stated, and I accept, that he did not appreciate the full significance or extent of his injuries. He apparently waved the woman away, as was described by Mr Lo, and then he himself left the scene in order to attend to his pre-arranged appointment to deal with the affairs of his client. He did so about a minute after the collision, without beforehand thinking of seeking details of the vehicle that had struck him, or its driver, or any witnesses to the incident. Before he had left the scene, no-one had approached the plaintiff to provide him with any details of the vehicle in question, or its driver, or the details of any witnesses.
As the plaintiff proceeded to walk away from the scene in order to keep his scheduled appointment at a nearby office, he came to realise that he was limping, and that he had a sharp pain in the left side of his chest in the rib area, as well as having a pain in his right side and to the right shoulder region, to the right side from the point of his shoulder down to his wrist, having earlier landed on the roadway on his right shoulder and his right knee. The plaintiff said that it felt painful and he felt he was heavily bruised. He was also aware that he had abrasions to his right knee and right elbow, and he was aware that he was bleeding.
The plaintiff attended to the completion of the transaction at hand, and then, realising he would have difficulty attending his next engagement which was at Cronulla, he returned to his office, where he rested for a few hours and then went home, where he rested over the weekend. During the weekend, a neighbour, who was a medical practitioner, advised him to seek an x-ray and to seek medical assistance. He then arranged to see his general practitioner in the city on the following Monday, 4 August 2008.
Medical evidence review
The plaintiff has consulted, and has been assessed by, a number of medical practitioners. Before arriving at my credit findings, I will review the medical reports that were tendered by the parties. The reports and opinions from those assessments are summarised in the paragraphs that follow, commencing with a review of the plaintiff's pre-injury health and injury history, and then reviewing the treatment and assessment reports that followed the incident in question.
Reports relating to the plaintiff's prior health before the collision in question
The defendant tendered a number of medical and allied reports, and a personal injury claim form that pre-dated the collision in question. These related to the previous injury sustained by the plaintiff on 16 December 1994. Those documents are summarised in the paragraphs that immediately follow.
Previous whiplash injuries in 1982 and 1994
The plaintiff was injured in a traffic collision on 16 December 1994 when he was a passenger in a taxi that collided with another vehicle. He made a claim for damages for a whiplash injury to the neck that resulted from that collision. The claim form was tendered as Exhibit "1". The plaintiff's answer to question 37 within that exhibit frankly disclosed a prior whiplash injury that he had sustained in about 1982. He was questioned about the circumstances and the effects of that injury. He said that at the time of the hearing of this case, he could no longer recall the details of the 1982 incident, although he had sufficient recall of the facts in 1994, at which time he disclosed that he had been injured in 1982.
I do not regard the plaintiff's lack of recollection of a 1982 whiplash injury that occurred some 28 years ago to be remarkable or extraordinary, especially given common knowledge of the at times, non-enduring, nature of human memory over time for events of only passing significance. The plaintiff obviously recalled something of those events 6 years ago when he filled in the 1994 claim form where he disclosed the 1982 injury. I consider his surprised lack of recollection about the 1982 incident was genuine and I do not regard this as a matter that ought to be seen as being detrimental to his credit as a witness.
I accept the plaintiff's evidence that the effects of his prior whiplash injuries had well and truly resolved by the time of the collision which is the subject of these proceedings. I am reinforced in this view by the fact that the plaintiff's medical records from the practice of Dr Hingerty and Dr Greig make no mention of any matters or problems that could be seen as relating to the plaintiff's prior whiplash injuries.
Plaintiff's pre-accident health
In 1980 the plaintiff sustained a shoulder injury whilst playing rugby union. This has left him with a minor shoulder deformity. He has also suffered knee injuries for which he was treated conservatively. Before the injury which is the subject of these proceedings, neither of these problems had prevented the plaintiff from playing golf, swimming, exercising, including in the gymnasium, or from undertaking any physical activity that he wanted to pursue.
The records of Dr Hingerty and Dr Greig reveal that in the period 15 August 2001 and the time of the plaintiff's injury on 1 August 2009, a period of 9 years, the matters for which the plaintiff sought medical advice from that practice related to minor matters including transient respiratory viral complaints, health screening and occasional advice over his prior history of sporting injuries to his knees and related orthopaedic advice and treatment.
In my view the plaintiff's pre-injury medical records do not contradict the plaintiff's evidence that he was in relatively good general health before he was injured on 1 August 2009. I infer from the context and the provenance of the medico-legal reports that have been tendered, and from the fact that the defendant has had access to the plaintiff's pre-injury medical records, that if there were medical reports or records that contradicted the plaintiff's evidence, or which would have pointed to any relevant matters that diminished the force of that evidence, they would have been tendered in the proceedings.
Prior injury to right shoulder in 1980
The plaintiff's medical records show that on 21 November 2008 the plaintiff's general practitioner gave consideration to the plaintiff's history of prior injury to the right shoulder. The relevant entry states:
"1980 playing union for
Manly against Syd Uni
Dropped on R shoulder
# clavicle.
Wired by orthopod ? John Collins
Has had no problem with this since.
Rx Panadeine Forte for new shoulder injury.
R shoulder not doing well.
Seeing Dr Stephen Quain again next week."
I infer from this record that the plaintiff discussed the significance of his prior shoulder injury with his general practitioner at that time and stated that before the injury on 1 August 2008, his prior right shoulder injury, being a fractured right clavicle, had not been problematic for him after it had been successfully treated. Further, I accept the evidence of Dr Dalton to the effect that the plaintiff's previous fracture of the right clavicle was not contributing to his symptoms that were referrable to the collision in question.
Dr Sarah Thompson - former treating general practitioner
On 17 December 1994 the plaintiff attended Dr Sarah Thompson, a general practitioner, for assessment and treatment following his involvement in a motor vehicle collision on the previous evening. In her letter of 22 March 1995 Dr Thompson referred to the plaintiff as having sustained a whiplash injury to his neck for which he took Panadol for pain relief. She advised a course of Naprosyn, and that he abstain from sport until the pain had subsided. Her initial view was that she believed that the plaintiff should make a full recovery from his injury but she understood he continued to experience intermittent pain in the neck radiating to both shoulders leading to a temporary restriction in physical activities. Dr Thompson's letter made no reference to any specific shoulder injury.
Mr Robert Heaphy - former treating physiotherapist
On 9 May 1995 the plaintiff attended the physiotherapy practice of Mr Robert Heaphy for treatment of bilateral neck pain and stiffness, which was worse on the right side. Mr Heaphy recorded that the plaintiff's symptoms had been present for the previous 5 months and had led to a reduction and cessation of activities which caused him pain, including his participation in swimming, golf, tennis, and which led him to miss an overseas swimming event.
Mr Heaphy recorded the plaintiff's subjective complaints of frequent pain and stiffness in the neck depending upon the varied activities in which he involved himself. He also noted his objective findings on examination which included a 20 per cent reduction of neck rotation to the right and neck extension, being painfully and slightly restricted at the end of a range of movement, the pain being experienced low down the right side of the neck. Mr Heaphy initially treated the plaintiff with heat, joint mobilisation procedures, muscle stretches, ultrasound and a programme of home exercises and postural supports to be continued in conjunction with the taking of regular anti-inflammatory medication.
Mr Heaphy continued his treatment of the plaintiff until 31 October 1995, at which time the plaintiff reported continued neck discomfort during and after various sports and exercises and a regular cracking or creaking sensation that occurred when the plaintiff's neck was rotated to the left more than to the right. At that stage, which was 11 months after the 1994 injury, Mr Heaphy predicted that it was likely the plaintiff would continue to have a restriction on his neck for up to 2 years after his injury, and would gradually continue to improve in his condition.
Ms Helen Gibson - former treating physiotherapist
On 14 November 1995 the plaintiff consulted Ms Helen Gibson, a manipulative physiotherapist, for ongoing treatment of neck pain and stiffness on both sides and radiating into the scapular area. Ms Gibson reported that the plaintiff had told her that his symptoms were aggravated by many of his normal daily activities such as lifting his young child, sitting or playing tennis, as well as experiencing stiffness on arising from bed in the mornings.
On her physical examination of the plaintiff, Ms Gibson noted the plaintiff had poor muscle control around the scapulo-thoracic region, with a related tendency for poor neck and shoulder posture, which was a specific sign in a patient who was otherwise extremely strong and fit, as was the case with the plaintiff. She also noted a very poor pattern of cervical extension and dysfunction of the C5/6 and C6/7 segment, initially more severe on the right, but also with significant left sided restrictions of movement. She noted stiffness in the mid to upper spinal segments and marked muscle spasm and tenderness in the interscapular muscles with the upper trapezius muscles being also very tight.
The impression conveyed by Ms Gibson was that the plaintiff had suffered soft tissue damage to the lower cervical spine, for which she recommended a specific programme of physiotherapy treatment comprising soft tissue release and mobilisation combined with postural exercises. She noted that it was possible that this program could continue for up to 6 months as the plaintiff wanted to return to his previous high level of physical activity.
Dr David Roebuck - former consultant orthopaedic surgeon
On 5 December 1995, at the request of his solicitors, the plaintiff was assessed by Dr David Roebuck, a consultant orthopaedic surgeon. Dr Roebuck reviewed the plaintiff's history and recorded his complaints about the pain he had been experiencing on both sides of the neck, more on the right than the left, and radiating down towards the inter scapular area. He noted that the plaintiff was receiving physiotherapy at that time.
On his physical examination of the plaintiff, Dr Roebuck noted this revealed evidence of a classical trapezius musculo-ligamentous injury of the cervical spine with tenderness over the occipital insertion in the trapezius and the scapular pectoral girdle insertion of the trapezius. His physical examination indicated a positive trigger point in both trapezius muscles, indicating that the plaintiff had muscular irritation but otherwise had a good range of cervical spine movements. He reviewed x-rays which showed nothing of significance.
Dr Roebuck stated his view that the plaintiff had a soft tissue injury to the cervical spine which had left him with residual symptoms which he regarded as being permanent. Dr Roebuck also thought that the plaintiff's condition was permanent and static, and that even if the symptoms were to subside, he would still be left with disability and permanent impairment, including restriction in his employability, whether or not the plaintiff had pain. He expressed the plaintiff's impairment for employability as involving heavy work or work involving heavy or repetitive neck movement, or work involving prolonged posture and mobilisation of his neck, such as keyboard work.
As things turned out, Dr Roebuck's prognosis did not prevail. Instead, the plaintiff stated, and I accept, that the symptoms from the 1994 injury (incorrectly referred to in the transcript at T139.31 as the 1995 injury) lasted for a further 6 months, or 12 months as a maximum.
Reports from plaintiff's treating and assessing doctors following the collision in question
Following his injuries which are the subject of these proceedings, the plaintiff has been seen for treatment and medico-legal assessment by a number of practitioners. Reports of those practitioners are summarised in the paragraphs that immediately follow.
Dr Mary Hingerty - treating general practitioner
On 4 August 2008, the plaintiff consulted his general practitioner, Dr Mary Hingerty, who initially referred him for radiological examination. Dr Hingerty's note of the plaintiff's injuries was that he reported pain in his left ribs following the collision, and abrasions to the right knee and right elbow after he had fallen onto those parts, after being struck by the vehicle. Tenderness was noted in the ribs and spleen area. A tetanus toxin injection was administered. Panadeine Forte was also prescribed.
On 22 August 2008 the plaintiff again consulted Dr Hingerty who noted that the plaintiff had been sleeping on his right side to spare his left rib area on this occasion. She made a note of the plaintiff's report of pain in the right shoulder, with the occurrence of pain being reported by the plaintiff when lifting his right arm and when rolling onto his right shoulder at night. The defendant argued the absence of a causal connection between the plaintiff's injuries and the subsequent development of complaints concerning his right shoulder. This is an issue to which I will return in stating my reasons concerning the identification of the plaintiff's injuries that arose from the collision in question.
Dr Hingerty referred the plaintiff for x-ray and ultrasound studies in connection with his injuries.
On 10 September 2008 the plaintiff again consulted Dr Hingerty. She noted the complaint of 3.00am wakening when the plaintiff was laying on the right shoulder. Following a review of the radiological and ultrasound studies, Dr Hingerty referred the plaintiff to Dr Stephen Quain, an orthopaedic surgeon who specialised in the management of shoulder injuries. Dr Quain then assumed the continuing care and management of the plaintiff's right shoulder injury.
Dr Charmaine MacDonald - radiologist
On 5 August 2008, at the referral of his general practitioner, Dr Charmaine MacDonald carried out an x-ray examination of the plaintiff's left ribs. This examination did not reveal any abnormalities. Dr MacDonald also carried out an ultrasound examination of the plaintiff's abdomen and spleen. No abnormalities were identified in those areas. X-rays revealed an old wire fixation of the scapula. That wiring was described as having fragmented, and early osteoarthritis was noted in the left scapho-trapezium-trapezoid joint.
Dr Ursula Ridley - radiologist
On 8 September 2008, at the referral of his general practitioner, Dr Ursula Ridley carried out an x-ray and ultrasound study of the plaintiff's right shoulder. This revealed a fracture of the distal third of the right clavicle with inferior displacement of the distal fragment, together with degeneration in the acromioclavicular joint. Ultrasound studies revealed a partial tear of the right supraspinatus tendon in the articular surface of the mid-section of the tendon, and a suggestion of a small tear in the right infraspinatus tendon, with some thickening of the subacromial bursa and limitation in the range of abduction to a maximum of 90 degrees.
Workcover certificates from treating doctors
A series of Workcover medical certificates were variously issued to the plaintiff by Dr Hingerty and by Dr Quain, between 22 August 2008 to 10 September 2008, and on 27 May 2009. The latter certificate was issued by Dr Quain in respect of a surgical procedure he had performed on the plaintiff for a right rotator cuff repair carried out on 16 April 2009. These certificates were relevant to a workers' compensation claim lodged by the plaintiff with his firm's insurer in respect of his treatment expenses.
Dr Stephen Quain - treating orthopaedic surgeon
On 15 September 2008 the plaintiff was first examined for assessment by Dr Quain. He initially thought that the plaintiff probably had partial thickness tears in his right shoulder which would settle with simple strengthening exercises.
On 27 October 2008 Dr Quain gave the plaintiff an injection of local anaesthetic and hydrocortisone into the subacromial region of his right shoulder because of persisting impingement type pain in that area. Initially, Dr Quain did not consider that the plaintiff needed any surgical treatment for his right shoulder injury, however, that management plan was subsequently changed.
On 16 April 2009 Dr Quain carried out a surgical repair of the plaintiff's right rotator cuff tear. Dr Quain's post-operative correspondence noted that at the operation it was found that there was a moderate subacromial spur with a supraspinatus tear, including long head of the biceps and the superior portion of the subscapularis tendons.
Subsequently, Dr Quain's operation report dated 16 April 2009 was tendered : Exhibit "U". The report referred to the surgical procedure of right rotator cuff repair and biceps tenodesis. The report went on to record the following detail :
" OPERATIVE FINDINGS: a moderate subacromial spur, a small full thickness anterior supraspinatus tear with some delamination consistent with the MRI. The long head of the biceps was thin and could not be initially found but appeared to be subluxated out of the grove[sic for groove]. The superior portion of the subscapularis was thinned as part of the repair, a tenodesis of the biceps was performed."
Dr Quain was not called or required to give evidence to explain the probable aetiology of these findings. This was a matter of some significance given the opinions expressed in the oral evidence of Dr Dalton as to his views on the origin and causes of the plaintiff's right shoulder problems. This is a matter to which I shall return when analysing the evidence of Dr Dalton.
According to the correspondence, post-operatively, Dr Quain recommended that the plaintiff observe a period of rest with his arm in a sling for about 4 weeks, and to then undergo a programme of supervised physiotherapy. The plaintiff followed those recommendations. Dr Quain noted that the plaintiff would remain restricted in his recreational sports and activities, including on his hobby farm, and that stabilisation would take approximately one year following the operation.
On 27 April 2009 the plaintiff underwent a post-operative examination by Dr Quain following the earlier procedure for right shoulder rotator cuff repair and biceps tenodesis. A simple passive range of exercises was prescribed and a further post-operative examination was scheduled to take place in a further month.
On 27 May 2009 Dr Quain reviewed the plaintiff 6 weeks post-operatively. He felt the plaintiff was progressing quite well but needed assistance with physiotherapy. At that time he certified the plaintiff to be fit for his usual work as a lawyer, and confirmed that he was able to drive. Another examination was planned after a further 6 weeks had passed.
On 8 July 2009 Dr Quain re-examined the plaintiff and noted that physiotherapy supervision was being provided once per week. Dr Quain noted that the plaintiff still had moderate pain at night but was using his right arm normally for the activities of daily living. He described his measurements of the plaintiff's right upper limb movements and noted restrictions.
On 11 September 2009 Dr Quain re-examined the plaintiff and noted continued slow improvement of symptoms with physiotherapy but he also noted a continued problem with pain at night. He noted the plaintiff required the occasional use of Panadeine Forte. He also noted an improved but still restricted range of forward flexion of the right upper limb.
On 7 December 2009 Dr Quain saw the plaintiff again and noted he had become a little dispirited and frustrated by the slowness of his recovery, also noting some continuing night pain. On that occasion, the plaintiff complained to Dr Quain that he did not use his right arm normally on the computer, and had not yet been able to do any gardening or farm work, and had not resumed sports such as swimming and golf to the level that he would have liked. Dr Quain also recorded a history of the plaintiff feeling depressed over the previous 2 months, the reasons for this being unclear to Dr Quain, because at the time, the plaintiff had been experiencing repeated chest and upper respiratory infections.
At this last consultation, Dr Quain reassured the plaintiff that recovery from rotator cuff repair surgery can be frustratingly slow. He advised that despite the somewhat restricted shoulder movements, the plaintiff should be encouraged to again take up golf with limitations and restrictions of the extent to which he would play, avoiding the use of the driver, and perhaps restricting himself to 5 or 6 holes to avoid causing harm to his right shoulder. Dr Quain also encouraged the plaintiff to start gentle swimming, but not surfing, and not to do multiple laps when swimming.
Although Dr Quain suggested that he review the plaintiff in a further 4 months for a 1 year post-operative follow-up, no further report was tendered from Dr Quain after his 7 December 2009 report, although there was evidence that the plaintiff had been reviewed by Dr Quain in 2010, as was noted in the report of Dr Mastroianni. There is no evidence that a further report had been obtained from Dr Quain.
Dr Douglas Lingard - cortisone injection under ultrasound guidance
Pre-operatively, on 22 December 2008, at the referral of Dr Quain, and under ultrasound guidance, Dr Douglas Lingard injected the plaintiff's right shoulder with a mixture of cortisone or Celestone and local anaesthetic, with a subsequent report that this had provided some relief of the plaintiff's shoulder symptoms.
Dr Craig Harris - MRI radiologist
Pre-operatively, on 3 March 2009, at the request of Dr Quain, the plaintiff underwent MRI scanning of his right shoulder. The scans were reported upon by Dr Craig Harris, who reported on the scans as follows:
" COMMENT :
Focal supraspinatus full thickness tear, on a background of intermediate grade partial thickness articular sided tearing and severe tendinosis. The tear extends across the rotator interval into the subscapularis superior 5mm there is a high grade articular sided tear allowing medial subluxation of the long head of biceps, which is grossly thickened and hyperintense in keeping with severe tendinosis, with a longitudinal split tear. There is early atrophic change of the superior fibres of subscapularis muscle belly, the remaining cuff musculature is intact.
There is bursitis.
Minor degenerative signal at the biceps anchor / labral attachment withouit discrete SLAP tear, minor labral degenerative change is evident. Small joint effusion with low grade synovitis."
Dr Harris stated that the presence of bursitis and synovitis as well as an un-united clavicular fracture was ascribed by the plaintiff to be due to a previous football injury.
Dr Tom Mastroianni - consultant occupational physician
On 30 October 2009, at the request of his solicitors, the plaintiff was examined by Dr Tom Mastroianni, a consultant occupational physician. Following his review of the plaintiff's history, and a review of the medical reports which had been supplied to him for that purpose, Dr Mastroianni noted that the plaintiff's right shoulder was still very restricted at the time of his examination. He also recorded the plaintiff's complaint that whenever he used his right arm, his experience of pain intensified, and that he could not sleep on his right shoulder or do any heavy lifting. He also noted that the plaintiff no longer performed gardening and had not returned to any sporting activities, including participation in tennis, golf and swimming.
On his examination of the plaintiff, Dr Mastroianni noted the presence of a prominent right clavicle due to a previous fracture, as well as a well-healed but depressed and pale 7cm surgical scar across the point of the shoulder. He also noted tenderness over the point of the shoulder, with shoulder movements being very restricted. He recorded marked wasting of the right shoulder girdle and 2cm wasting of the upper right and dominant arm.
Dr Mastroianni expressed the opinion that the plaintiff had a 21 per cent upper extremity impairment according to the AMA Whole Person Impairment scales. It was not necessary to delve into these percentages, as following the MAS assessment process, a claim for non-economic loss was not open for the plaintiff to pursue.
Dr Mastroianni noted the continued presence of pain and restricted movements at 6 months post-operatively. He thought that such lack of progress in someone who was as fit as the plaintiff, was a poor prognostic sign, although he expected some degree of improvement over the 12 months that would follow his examination of the plaintiff. He expressed a guarded view of the plaintiff's prognosis and stated that the plaintiff could not perform heavy lifting, repetitive movements with the right arm or activities above chest height.
Dr Mastroianni expressed views concerning the plaintiff's need for future treatment and domestic and allied assistance. These recommendations will be considered separately in the context of the assessment of the plaintiff's entitlement to damages.
Dr Lew Perides - MAS assessor
On 19 May 2010 the plaintiff was assessed by Dr Lew Perides, a general practitioner and Medical Assessment Service ["MAS"] assessor appointed by the Motor Accidents Authority ["MAA"].
Dr Perides reviewed the plaintiff's medical history and he recorded the plaintiff's concern over the lack of restoration of the normal range of movement of his right shoulder. He noted the complaints of difficulty carrying a heavy bag in the right arm, and of the curtailment of a lot of his normal recreational activities, including golf. He also noted the plaintiff's complaint of difficulty maintaining his rural property, and of him receiving help with lawnmowing at home.
Dr Perides conducted a physical examination of the plaintiff's right shoulder and noted significant reductions in the range of measured active movement in flexion, extension, adduction, abduction and external rotation, there being no restriction with internal rotation movements. Dr Perides was of the opinion that the plaintiff's presentation was consistent with the reports that he had sighted, and he stated that the plaintiff had presented in a straightforward manner. From the comments made by Dr Perides, I infer that the plaintiff had co-operated fully with the examination conducted by Dr Perides.
In considering the report of Dr Mastroianni dated 03 (sic for 30) October 2009, Dr Perides noted a less restricted range of movements of the right shoulder on his own examination which was conducted some 7 months after Dr Mastroianni had examined the plaintiff, and he noted that his own findings concerning the plaintiff's restricted shoulder movements were essentially similar to those recorded by Dr Quain in his report dated 7 December 2009, thereby suggesting that the improvement anticipated by Dr Mastroianni had in fact occurred as predicted.
Dr Perides confirmed that apart from the right shoulder injury, the plaintiff's other soft tissue injuries sustained in the incident in question had resolved quite quickly, but nevertheless leaving him with a reduced range of right shoulder movement and a surgical scar.
Dr Perides confirmed that the plaintiff's previous right shoulder fracture had not been caused by the collision in question.
Reports commissioned by the defendant for the purpose of these proceedings
The defendant has had the plaintiff medically assessed by Dr Seamus Dalton, a consultant physician with sports medicine and rehabilitation qualifications. Initially, the defendant sought to rely upon 3 reports by Dr Dalton. These were dated 20 February 2009, 1 June 2010 and 18 October 2010. There were 2 subsequent reports dated 22 November 2010 and 25 November 2010. The tender of these latter 2 reports was objected to and after argument, the tender was rejected. The basis for that rejection appears between paragraphs [150] to [189] of my reasons.
In deference to the causation arguments raised by the defendant, I will set out a detailed summary with relevant extracts and subsequent analysis of the reports of Dr Dalton.
First report of Dr Seamus Dalton - 20 February 2009
Dr Dalton first examined the plaintiff on 17 February 2009 and following that examination he prepared his report dated 20 February 2009.
Dr Dalton reviewed the plaintiff's history, including a history of orthopaedic and musculoskeletal injuries, and a history of the incident and the subsequent course of the plaintiff's symptoms and treatment. Dr Dalton included in his historical summary the fact that the plaintiff had a history of prior problems in both knees which required treatment, including unknown surgical treatment, from 2 doctors from within the same practice that had Dr Dalton's name on the letterhead, namely Dr Crichton and Dr Cross.
Dr Dalton identified the plaintiff's principal complaint that related to the collision in question as being his right shoulder symptoms comprising an awareness of a dull ache in the right deltoid region and in the right upper arm at rest, with the experience of pain in connection with sleeping on the right side, and occasional waking at night. Dr Dalton also noted the history of soreness in the plaintiff's right shoulder with movement into abduction or elevation, particularly in the upper ranges. The plaintiff reported that these problems had caused him to avoid lifting with his right arm and had caused resultant frustration due to inability to resume his pre-injury sporting activities comprising weight training in the gym, surfing and swimming.
Dr Dalton stated that on his first examination of the plaintiff there was "no visible signs of muscle wasting or deformity of the biceps muscle belly". It appeared from that description, that Dr Dalton's finding in this regard was based on observations rather than on measurements of the biceps muscle. In fact Dr Dalton explained in oral evidence that his notes did not disclose that he had made any measurements of muscle wasting.
Dr Dalton drew attention to the fact that the plaintiff had what he considered to be a very muscular upper torso with a protracted posture due to muscle imbalance. He noted that he had observed a painful arc of the plaintiff's right shoulder, with movements in the range 50 degrees to 160 degrees of elevation. He also noted what he described as mild slight restriction of internal rotation at the right shoulder. He also noted that in the prone position, there was relative weakness of the scapular stabilisers with external rotation and extension of the right shoulder, associated with some pain when lying in the prone position.
Dr Dalton gave his initial diagnosis without the benefit of the information available from the MRI scan taken of the plaintiff's right shoulder on 3 March 2009, some 14 days following his examination. Dr Dalton made the following initial diagnostic comment:
"... The mechanism of injury whereby Mr Meakes apparently fell on his right elbow could well have aggravated an underlying degenerative rotator cuff tendonopathy. I think it is unlikely that an acute or significant rotator cuff tear was sustained at that time given the clinical notes of Dr Hingerty and his reported symptoms, but he may well have sustained an injury to the rotator cuff tendons as a result of the fall. It is equally possible that a mild injury or aggravation was sustained at that time and was further aggravated by the need to sleep on his right shoulder following the injury to his left chest. It is quite clear however that following the subject accident Mr Meakes has developed symptoms and signs of a symptomatic rotator cuff tendonopathy of his right shoulder which has failed to respond to treatment to date and which impacted on his ability to undertake his normal social and recreational activities.
Opinion
Given his age, the history of previous injuries (notably the fracture of his distal clavicle) and his sporting pursuits over the years it is entirely possible that the rotator cuff tears identified on ultrasound were degenerate and pre-existed the subject accident. That scenario is not usual but it is quite clear from the history and Mr Meakes (sic) normal social and recreational activities that such pathology had not been symptomatic prior to the subject accident. There is also the possibility that a small tear resulted from the fall that was sustained at that time. Further investigation with an MRI scan of his right shoulder would clarify the extent of the underlying rotator cuff tendinosis and/or tears and would go some way to determining whether those changes are more likely to be acute or chronic. The results of that investigation may also influence any decision regarding further treatment.
This man's complaints are consistent with the mechanism of injury and findings of examination. No inconsistency between his reported symptoms and restrictions and my findings on clinical examination were noted. No signs of pain or illness behaviour were apparent at this assessment."
Second report of Dr Dalton - 1 June 2010
It was not immediately clear from the terms of Dr Dalton's second report dated 1 June 2010, which was prepared in response to an unidentified letter of request, as to whether Dr Dalton had in fact re-examined the plaintiff between the time when his first report was sent, and when his second report was prepared. The reference in the second report to "clinical examination today" , which appears at page 4 of the report, was clarified in Dr Dalton's oral evidence when he confirmed that " today " was a reference to 16 February 2010 and not 1 June 2010, the latter date being the date on which he signed off on his second report.
In his second report, Dr Dalton referred to the 3 March 2009 MRI report of the plaintiff's right shoulder in the following terms:
"... Subsequent to that [earlier] assessment Mr Meakes underwent an MRI of his right shoulder which was performed on 3 March 2009. That revealed a severe insertional supraspinatus tendonosis with a full thickness tear measuring approximately 4 mm in width and without significant retraction. There was also some intermediate articular surface tearing extending over approximately 12 mm extending to the footprint on the greater tuberosity. The tear extended across the rotator interval with a high grade articular surface partial thickness tear of the subscapularis allowing medial subluxation of the long head of biceps tendon which was noted to be grossly thickened and hyper-intense in keeping with severe tendonosis. A longitudinal split tear within the long head of biceps tendon was reported. There was also evidence of early atrophic change in the superior fibres of the subscapularis muscle belly"
Dr Dalton's second report went on to state:
"... Mr Meakes told me that he feels that his nocturnal pain is much as it was prior to surgery. He has started doing some gentle breaststroke but has not resumed weight-training in the gym. He feels that his shoulder is worse than it was prior to surgery and that his condition has plateaued. He finds this very frustrating as not only does he have ongoing pain but he has also lost muscle bulk and strength as a result of not being able to maintain his weights in the gym. He has resigned his memberships from the gym and also the golf club given that he hasn't been able to play a proper round of golf since the MVA.
Mr Meakes told me that he purchased a rural property and farm in 2009 but he has been unable to do the fencing and other manual tasks around the property on account of his shoulder.
His shoulder pain has also limited his capacity to do home maintenance and at the moment his son mows the lawn"
Dr Dalton's second report records that the plaintiff's only significant reported residual problem to be with his right shoulder, with pain localised mainly to the posterior aspect of the shoulder and an awareness of pain with both active and passive elevation of the right arm. An associated problem was reported to be the experience of pain when sleeping on the right side, with occasional waking at night. Dr Dalton also noted the plaintiff's complaint of limitation of the ability to do strengthening exercises in both passive and active elevation of the right shoulder.
In his second report, Dr Dalton's description of his clinical examination of the plaintiff made no reference to any observations or measurements of any muscle wasting of the plaintiff's right upper limb or shoulder. His second report stated:
"Clinical examination
He displayed full active elevation of the left shoulder with 150 degrees of forward elevation and 145 degrees of active abduction.
This compared to the right shoulder where he had 105 degrees of active flexion and 90 degrees of active abduction. External rotation with his arm by his side was unrestricted but external rotation in the 90 degree abducted position was limited to 70 degrees. He reported pain with passive elevation of the shoulder beyond 90 degrees at which point he displayed some guarding and muscle co-contraction.
When lying supine I was able to achieve a near full-range of external rotation in abduction although this was associated with some pain at end-range. His pain was felt posteriorly. Passive elevation was limited by pain and muscle guarding with palpable co-contraction of the latissimus dorsi. Pain was clearly felt at the posterior aspect of the shoulder with tenderness over the posterior rotator cuff and in the posterior axilla.
He reported pain with resisted abduction, flexion, internal and external rotation. Pain was felt with all isometric testing of the rotator cuff muscles. Overall, his shoulder appeared to be more irritable than it was at his last assessment and there has been a definite loss of both passive and active glenohumeral motion"
Dr Dalton was of the opinion that the plaintiff did not appear to have benefited symptomatically or functionally as a result of the surgery that Dr Quain had performed on him on 16 April 2009. He observed that the plaintiff was affected by some muscle imbalance and muscle co-contraction which could be contributing to his pain, which appeared to Dr Dalton to be of mechanical origin, and localised to the posterior aspect of the right shoulder. He also observed that recovery from rotator cuff repair surgery could take a variable course, and was often delayed as a result of post-traumatic capsulitis. He was also of the opinion that the plaintiff had developed post-operative stiffness in his right shoulder, which was a recognized complication of shoulder surgery in his age group, and that this had left him with a less than full range of elevation movement of the shoulder.
Dr Dalton expressed the following view:
"...In my opinion, he presents with symptoms and classical signs which are consistent with a symptomatic rotator cuff tendinopathy, mild capsulitis, as well as some scapulohumeral dysfunction related to muscle co-contraction and guarding in response to his pain. It is difficult to determine whether the rotator cuff repair is intact given his general irritability during the examination but if he fails to improve then further investigation with an MR arthrogram would help to determine whether the rotator cuff repair remains intact and the extent to which there is post surgical scarring and capsulitis."
Dr Dalton also observed that unfortunately for the plaintiff, his frustration appears to be greater, given that his right shoulder function now appeared to be less than it was prior to the surgery, and Dr Dalton appeared to have accepted that this had an impact on the plaintiff's normal domestic, social and recreational activities, as the following extract of his report, confirms:
"... He is unable to play golf, exercise in the gym or undertake physical tasks on his rural property but his reported complaints and disabilities are consistent with the underlying pathology and findings on examination. Unfortunately, he reports that his symptoms are worse and his loss of function is greater since undergoing surgery and that was confirmed with my clinical examination today. However, his condition has not stabilized and there is some potential for further recovery at this stage."
Dr Dalton confirmed that there were no inconsistencies between the plaintiff's reported symptoms, complaints and restrictions, and his findings on clinical examination. He noted that the plaintiff's condition had not yet stabilised, and he pointed to the possibility that there may be some improvement with the passage of time. He suggested ongoing physiotherapy and other forms of treatment for a further 3-6 months, including attention to the correction of the plaintiff's posture and muscle imbalance.
On the question of the aetiology of the plaintiff's right shoulder problems, Dr Dalton referred to his original assessment in Sydney 2009 and stated:
"... At the time of that report I opined that more likely than not the rotator cuff tendinopathy was degenerate (sic for degenerative) and pre-existing at the time of the fall but there was the possibility that a small rotator cuff tear was sustained at that time, although that appeared to be unlikely given his presenting symptoms when he was initially assessed by Dr Hingerty. It is my view that more likely than not Mr Meakes had a pre-existing rotator cuff tendinopathy which subsequently became symptomatic. ..."
Dr Dalton took the view that when he saw the plaintiff in February 2009, before the 3 March 2009 MRI scan had taken place, the plaintiff's condition did not warrant surgery. Obviously, Dr Quain took a different view in recommending surgery to the plaintiff
Significantly, in his second report, after reviewing the pre-operative MRI scan of the plaintiff's right shoulder, Dr Dalton expressed the following view:
"... It is also my view that the [tendon] pathology noted at the time of surgery was to a large extent representative of a degenerative rotator cuff tendinopathy with tearing. Unfortunately, it is often difficult to determine if and when surgery is required in such cases and the results of surgery can be unpredictable with an accepted risk of post-traumatic stiffness and ongoing symptoms related to the underlying degenerative tendinopathy."
The above opinion was expressed by Dr Dalton without access to Dr Quain's operation note. The clinical basis upon which Dr Dalton expressed the view that the pathology seen at surgery was largely representative of a degenerative tendinopathy with tearing, was not self-evident in his report. This issue was later explored in Dr Dalton's oral evidence.
Third report of Dr Dalton - 18 October 2010
Dr Dalton saw the plaintiff for a third time on 7 September 2010 and this led to the preparation of his third report which was dated 18 October 2010. The letter of request for a third report from Dr Dalton was tendered in evidence as Exhibit "T". That letter enclosed the medical reports and materials that I have already summarised in a preceding section of these reasons. In that letter, Dr Dalton was asked to comment on the plaintiff's injuries, his current complaints, his disabilities, the prognosis, the effect of the plaintiff's injury on his work ability, his need for future treatment and the costs of such treatment.
In his third report, Dr Dalton updated the plaintiff's history and confirmed that the plaintiff had ceased physiotherapy in July 2010, but had nevertheless continued his exercises at home. The report also recorded the plaintiff's statement that Dr Quain had told him that his shoulder condition had plateaued and was unlikely to change.
Dr Dalton noted the plaintiff's ongoing complaint of residual sharp transient pain at the posterior aspect of the right shoulder on sudden movements but which was not present at rest. He noted that the plaintiff still experienced pain on sleeping on his right side, which caused him to wake at night. He also noted the plaintiff continued to occasionally take painkillers at night. Dr Dalton also recorded the plaintiff still lacked mobility of the shoulder in elevation and abduction and had an inability to resume normal weight training, being restricted to only light weights. Dr Dalton recorded a history that the plaintiff had not returned to the gym, had not resumed playing golf, and had not undertaken physical activities on his property, such as fencing. Essentially, he was of the view that the plaintiff's current complaints, his level of function and the findings revealed on his examination, had not significantly changed from the examination he had carried out on the plaintiff on 16 February 2010.
Dr Dalton noted the plaintiff still continued to exhibit " a somewhat protracted posture with mild restriction of cervical rotation ". Dr Dalton compared his findings on examination on 7 September 2010, with his findings on examination on 16 February 2010. In this regard, Dr Dalton stated:
"... He still presents with a somewhat protracted posture with mild restriction of right cervical rotation. Examination of the shoulder revealed no difference in mobility from when he was examined in February 2010. Active movements are still limited to 105 degrees active flexion and 90 degrees active abduction of the right shoulder with mild restriction of external rotation in the abducted position but no loss of external rotation in neutral abduction.
As before he still displayed some guarding and muscle co-contraction with passive elevation of the shoulder but when lying supine I was able to achieve almost full range of external rotation in abduction. Passive elevation and flexion of the arm was limited by pain with associated muscle guarding. There was visible and palpable co-contraction of the latissimus dorsi muscle and Mr Meakes reported pain felt at the posterior aspect of the shoulder with some tenderness in the posterior axilla and over the posterior rotator cuff muscles.
As before, he reported pain with resisted abduction, flexion, internal and external rotation. Overall, I felt his shoulder was somewhat less irritable than it had been at his last assessment".
The interval between these assessments on 16 February 2010 and 7 September 2010 was 7 months.
Dr Dalton expressed the opinion that the plaintiff had not yet exhausted his options for treatment. He thought it was worthwhile for the plaintiff to pursue soft tissue therapy and muscle energy release, as he thought some of the plaintiff's loss of shoulder elevation was due to muscle guarding and co-contraction, which may benefit from such therapy. In oral evidence Dr Dalton explained that the factors of co-contraction and guarding were not necessarily intentional, and could operate concurrently. He thought that an MR arthrogram would be of assistance in determining whether the surgical repair of the plaintiff's rotator cuff had remained intact, and could determine the extent to which there was post-surgical scarring and capsulitis which may be restricting his shoulder joint movement.
I have come to that conclusion by taking a broad average of the described hours for outdoor work, which amounts to a little over 1.1 hours per week : [1.5 hours x 26 weeks = 39 hours] + [1.5 hours x 26 weeks divided by 2 =19.5 hours] = 58.5 hours divided by 52 = 1.12 hours per week.
The analysis thus far reveals the total work described above amounts to between 5 to 6 hours per week, or a little more than that. It is that evidence which has led the defendant to submit that the statutory threshold for damages for domestic assistance has not been met. Although it is clear that the evidence does not support the submission made on behalf of the plaintiff for 14.5 hours per week of domestic assistance, I am not persuaded that the statutory threshold pursuant to s 128 of the MAC Act has not been met.
Following my review of the evidence, as outlined above, I am persuaded that since his injury the plaintiff has on average, received a little over 6 hours per week of domestic assistance provided gratuitously by his family in circumstances where uninjured, he attended to the described tasks himself without such assistance.
Whilst I am satisfied that the plaintiff has the physical limitations he described, and whilst I am also satisfied that he has received the assistance from his family as he has described, I propose to briefly review the medical evidence in order to otherwise satisfy myself that the plaintiff actually needed the assistance that has been provided.
In his report dated 7 July 2009, the plaintiff's treating orthopaedic surgeon, Dr Quain observed that the plaintiff was still restricted in his recreational sports and some activities with his sons on his hobby farm. At that time he thought that stabilisation of the effects of the injury would not occur for about 1 year from the date of the operative repair, namely April 2010.
In his report dated 7 December 2009, Dr Quain expressed the view that it was too early for him to assess the degree of any residual permanent impairment in the plaintiff's right shoulder which he had been treating, but he expressed the view there will be some impairment in terms of strength, and in particular, limitation in the range of motion. He made no comments on the need for domestic assistance but it could be reasonably inferred from the comments I have cited, that consistent with his evidence, the plaintiff could be expected to continue to have some difficulties with domestic and related tasks involving strength and range of motion of the right shoulder. I do not consider the absence of any comment from Dr Quain concerning a continuing need for domestic assistance to constitute a rejection of the plaintiff's need for assistance of the kind under consideration.
In his report dated 30 October 2009, Dr Mastroianni stated that he thought the plaintiff needed assistance with handyman work as he cannot lift any appliances or tools. Dr Mastroianni also recorded his view that the plaintiff was no longer able to attend to housework tasks that involved mopping and vacuuming. He said this extended to the plaintiff not being able to do the gardening and needing someone to do the lawns for him. Dr Mastroianni estimated that the plaintiff would need 4 hours of domestic assistance per week plus 4 hours per fortnight for lawn maintenance. In the context in which that opinion was given, I took these estimates to be averages, and not necessarily definitive or prescriptive limits on the parameters for such assistance.
In his report dated 19 May 2010, Dr Perides noted that the plaintiff' received help from his 3 sons with regard to lawn mowing at home. Dr Perides also noted the plaintiff had difficulty maintaining his rural property, and that his normal recreational activities, including his golfing, had been curtailed. Dr Perides indicated that the plaintiff's right shoulder impairment was permanent. Dr Perides made no reference to any need in the plaintiff for domestic assistance. I do not take the absence of any such comments to indicate that he did not consider there was such a need. Rather, I take the absence of such commentary to be consistent with the limited remit of Dr Perides, which was, to identify the degree of whole person impairment for the purposes of a MAS assessment, which involves a separate consideration.
In his report dated 20 February 2009, Dr Dalton expressed the view that the plaintiff did not need any domestic or household assistance at that time or in the foreseeable future. When viewed on its own, I find that opinion difficult to accept in view of the plaintiff's specific evidence of his restrictions, and the initial impression recorded by Dr Quain who obviously had the advantage of a clinical assessment as the plaintiff's treating specialist. I also take that view because Dr Dalton did not dispute the disabilities claimed by the plaintiff. However, Dr Dalton then went on to modify this view.
In his report dated 1 June 2010, which was based on an examination that took place on 16 February 2010, Dr Dalton recorded the plaintiff's complaints of inability to attend to the fencing of his farm, as well as other manual tasks, as well as a limited capacity to do home maintenance, noting that his sons mowed the lawns at home. At that time, Dr Dalton expressed the view the plaintiff did not require assistance with light domestic or household tasks, noting that he received gratuitous assistance with lawnmowing. Dr Dalton conceded the plaintiff may require assistance with more demanding physical tasks concerning home maintenance, which was a different view to the one he had expressed in his report dated 20 February 2009. He also stated it was difficult to predict whether the plaintiff would regain full function and use of his right shoulder in order to resume full pre-injury activities.
In his report dated 18 October 2010, Dr Dalton noted ongoing deficits of shoulder mobility and noted that the plaintiff had not undertaken physical activities on his property, such as fencing. Other than stating that his " opinions are unchanged from those ... expressed in [his] report of 1 June 2010 " he made no reference to any need the plaintiff might have for domestic assistance and the like.
The foregoing review of the medical evidence leads me to the view that the preponderance of the medical evidence supports the plaintiff's case for an allowance in his damages award for domestic assistance on the basis claimed. In this regard, I accept the evidence of the plaintiff as to the extent to which he has received those services and I find that this was due to an injury caused need.
I do not accept that such services have been provided to the extent of 14.5 hours per week as was submitted because the evidence only permits a finding of a little over 6 hours per week. Whilst I consider that the plaintiff's evidence of the description of hours of assistance provided by others was not intended to be precise, I nevertheless consider that evidence comfortably satisfies me that the services were provided for at least 6 hours per week in respect of the past.
In coming to this view I also had regard to my impression that the plaintiff tended to understate his evidence with regard to damages issues. Allowing for a degree of imprecision, on the evidence, I propose to limit the award for such damages for past services to 6 hours per week, whilst also acknowledging that it is likely the plaintiff received the benefit of a greater number of such hours of assistance. In the Appendix to these reasons I have calculated the value of 6 hours per week of gratuitous domestic assistance in accordance with the rates prescribed by s 128(4) of the MAC Act , in the amount of $17,074.82.
I therefore award the plaintiff damages for past gratuitous domestic assistance services in the amount of $17,074 .
Future domestic assistance
The plaintiff makes a claim for the cost of future domestic assistance of one hour per week at $35 per hour projected over the remainder of his life span, in the identified sum of $24,454. That sum incorporated a 15 per cent discount. The defendant does not challenge that approach, assuming that medical causation has been established in the plaintiff's favour. As the issue of the causal connection between the plaintiff's right shoulder problems has already been established in the plaintiff's favour, I propose to make an award of the order of the amount claimed, subject to an adjustment for the correct 5 per cent multiplier. The plaintiff's submission proceeded upon the basis of a 30 year multiplier of 822 whereas the required multiplier is for 29 years, which is 809.6. This yields an amount of $28,336.
The basis upon which to discount that sum for vicissitudes is not readily apparent as the actuarial tables that are used for the projection already take mortality into account and there is no evidence that the plaintiff would have required this kind of assistance in any event. On the other hand, there is the possibility that the plaintiff's need for domestic assistance may lessen in future years if he were to downsize his home. In the circumstances, I will accede to the plaintiff's submitted approach and apply a 15 per cent discount, which yields an amount of $24,085.
I therefore award the plaintiff damages for past paid assistance in the amount of $24,085 .
Past cost of employing a fencing contractor
The plaintiff makes a claim for the cost of erecting fencing on his rural property at Ellalong. The amount claimed is in the sum of $22,236.76 : Exhibit "H".
The defendant submitted that the claim should be rejected because it was not pleaded. Alternatively, the defendant submitted that the costs associated with the Ellalong property should have been shared equally between the 3 families who had a co-ownership interest in the property, and not just the plaintiff, after allowing a deduction for materials, for which expense would have been incurred in any event. The defendant further submitted that since the labour component of the claim could not be identified within Exhibit "H', the claim should be disallowed.
The unchallenged evidence, which I accept, was that but for his injury, the fencing work in question would have been carried out by the plaintiff himself, as it was within his skill set, having grown up on a rural property. I accept that the work in question would have been carried out by the plaintiff himself without having to engage the services of a fencing contractor, as set out in the terms of Exhibit "H".
Although the claim for fencing costs was not formally pleaded in the statement of particulars of the claim, I am satisfied that this issue has not ambushed the defendant, nor has it caused unfair surprise or prejudice. I take that view because of the correspondence and email material which has been tendered: Exhibit "A". This shows that the solicitor for the plaintiff flagged the issue to the solicitor for the defendant by letter dated 30 September 2010, and the issue was placed on the agenda for a settlement conference on 28 October 2010, where that settlement conference was due to be held on 5 November 2010.
I have considered the defendant's argument that the plaintiff only acquired his interest in the rural property after he was injured. I do not consider that to preclude the plaintiff from recovery of this head of damage. I take that view because, although in a completion sense, the property in question was not formally acquired by the plaintiff until after his injury, the plans for the acquisition had been in place for some time beforehand, and the plaintiff had made the commitment to acquire it. In those circumstances, I do not consider this component of the plaintiff's claim to be remote so as to render the fencing costs, or any portion of them, unrecoverable as damages.
Although there is a superficial attraction to the argument that the expenses should be divided between the 3 families interested in the Ellalong property, in view of the fact that the work involved would have been undertaken by the plaintiff personally, I consider the relevant measure of damage was the value of his personal contribution that had to be replaced by externally employed labour. That was a task the plaintiff had planned to do without employing labour and he was unable to fulfil that plan . The fact that labour was employed to carry out work the plaintiff would have otherwise carried out does not mean that the relevant cost should be identified as being only the component that related to the plaintiff.
The foregoing conclusion gives rise to the need to consider the defendant's argument that it should not be required to bear the cost of the materials required for the fencing work in question. There is no evidence that the plaintiff would have obtained such materials by means of his own manual labour. Accordingly, I consider it necessary to reduce the claim on account of the cost of the materials that would have inevitably been required for the job.
Notwithstanding the absence of evidence of the costs of the materials component of the fencing costs, I do not consider it to be fair or reasonable to accept the defendant's argument that as a consequence of the non-identification of the labour component, no damages for fencing costs should be awarded. In this regard, notwithstanding the absence of evidence providing a differentiation between the cost of labour and materials, I consider it appropriate to make a conservative apportionment for that factor. Doing the best I can in the circumstances, albeit that it is somewhat arbitrary to do so, I apportion half of the claimed expenses to represent the cost of materials.
I therefore award the plaintiff damages for the cost of expenses paid to a fencing contractor in the rounded down amount of $11,000 .
Future cost of rural labour
The plaintiff makes a claim for the future cost of rural labour on the Ellalong property. The claim is for $50 per week projected at 5 per cent over 10 years (x 412.9) and discounted by 15 per cent to yield the claimed amount of $17, 548.25.
In contrast, the defendant submitted that there was no satisfactory basis within the evidence for any award for damages for future costs of rural labour.
Although the plaintiff seeks an inference that he will continue to need assistance with heavy labouring tasks on the farm, in my view, the state of the evidence does not permit a non-speculative and reasoned analysis for an award of future costs of farm expenses. In my view, this category of claimed future cost is different to the claim for past fencing costs, where I have accepted the evidence of the plaintiff to the effect that he would have undertaken the fencing tasks on the property by himself had he not been injured. I do not consider that the evidence reasonably permits me to safely draw a similar inference with regard to the plaintiff carrying out labouring tasks on his rural property in the future, had he not been injured. I do not consider that the specific evidence of the plaintiff to the effect that he intended to carry out the fencing of the property should by inference also extend to the ongoing weekly costs of work on the property.
Accordingly, I decline to award the plaintiff any damages for the claimed cost of future expenses in connection with the plaintiff's interest in the rural property at Ellalong.
Future out-of-pocket expenses
The plaintiff makes a claim for future treatment expenses in the global sum of $40,000. This claim was based upon the following components:
(a) General practitioner consultations, averaging approximately 12 per annum at $60 each, which is the equivalent of $720 per annum or $13.84 per week;
(b) Specialist consultation with a rehabilitation physician approximating 3 to 4 consultations per annum at an average cost of $160 per consultation, which is the equivalent of $640 per annum or $12.30 per week;
(c) Physiotherapy consultations variously required during episodes of exacerbations and for muscle strengthening, comprising approximately 12 consultations per annum at $75 per consultation, which is the equivalent of $864 (sic for $900) per annum or $16.61 (sic for $17.30) per week;
(d) Medication for analgesia and anti-inflammatory effects, estimated at $780 per annum or $15 per week.
These amounts were identified as totalling $3004 per annum or $57 per week. On behalf of the plaintiff it was submitted that the projection of $57 per week at 5 per cent over 29 years (x 825) yielded $47,025, which, when reduced by 15 per cent for vicissitudes, amounted to $39,971.25, which was then rounded up to $40,000.
The defendant criticised the claim for $40,000 as being " grossly excessive ". It is not necessary to engage with the vituperative epithet contained in that submission : Grill v General Iron Screw Collier Co. (1866) 35 LJCP 321, at p 330 per Willes J. The defendant submitted that the sum of $15 per week projected at 5 per cent over the plaintiff's remaining life span of 29 years (x 555) would be reasonable, in order to allow for the cost of intermittent analgesia, intermittent physiotherapy, occasional medical reviews and the like. The defendant submitted that the resultant amount of $8355 would be more appropriate to the circumstances.
A survey of the medical evidence tendered in the proceedings revealed that there was some support for the plaintiff's claim in respect of the following treatment modalities:
(a) There may be a need for an orthopaedic specialist to administer 1 or 2 cortisone injections at a cost of $300 per injection : Report of Dr Mastroianni, 30 October 2009, page 4;
(b) A 4 month course of physiotherapy was envisaged in 2009: Report of Dr Mastroianni, 30 October 2009, page 4;
(c) General practitioner consultations were suggested to take place every few months and related prescription pharmaceutical expenses were anticipated. This was estimated to cost between $1200 and $1500 per year: Report of Dr Mastroianni, 30 October 2009, page 4;
(d) Some further rehabilitation treatment has been recommended by Dr Dalton. That suggested treatment persevering with more physiotherapy, including some further soft tissue therapy and some muscle energy release therapy. The plaintiff has stated that in the next year he intends to pursue that option, albeit that there is no indication of its likely success.
In addition to the above items, in view of the permanency of the plaintiff's shoulder condition, I consider that it would be reasonable to make some sort of allowance to provide for occasional consultations over time with an orthopaedic specialist such as Dr Quain, or a rehabilitation medicine specialist, to monitor the plaintiff's condition and progress.
Having regard to these factors, I consider that a lump sum buffer amount to compensate the plaintiff for these matters would be appropriate. In this regard, I consider that on the evidence, the amount claimed on behalf of the plaintiff in the sum of $40,000 seems too high and to a degree, artificially calculated.
Based on the evidence that I have reviewed as outlined above, and given the likely intermittent nature of the treatment that has been suggested, I propose to make a global allowance for the plaintiff's future treatment needs. I consider that an amount of $25,000 is reasonable, being both fair to the plaintiff and not unfair to the defendant. This amount is the rough equivalent to the projection of a little over $30 per week at 5 per cent over the plaintiff's remaining life span of 29 years. I consider that comparison demonstrates the amount I have assessed to be reasonable and fairly reflective of the plaintiff's likely need for future treatment.
I therefore award the plaintiff damages for future out-of-pocket expenses in the amount of $25,000.
Past out-of-pocket expenses
The plaintiff made a claim for out-of-pocket expenses comprising the following amounts:
(a) Physiotherapy expenses comprising 13 treatments totalling $1,230, travelling expenses of $389.24 and pharmaceutical expenses of $79.65. These amounts totalled $1,698.89 : Exhibit "O". Of this sum the plaintiff has already been paid an amount of $35, leaving a balance either paid or payable in the sum of $1,663.24.
(b) Medical expenses repayable to Medicare in the sum of $93.05 : Exhibit "P".
(c) Medical expenses comprising fees paid by the workers' compensation insurer to Dr Quain, Dr McCarthy whom I infer was either a surgical assistant to Dr Quain or an anaesthetist, accommodation fees as an inpatient at St Vincent's Private Hospital, and miscellaneous expenses reimbursed to the plaintiff in the total amount of $9,027.23 and excluding any weekly compensation payments : Exhibit "Q".
These amounts are in the total amount of $10,783.52. The defendant's submissions have rounded this amount up to $10,784.
The defendant's position with regard to its alleged liability for these expenses was based on the causation argument which it mounted and which I have rejected. The defendant does not dispute that the amounts claimed, or any components within the claimed amounts, are otherwise unreasonable. In this regard, I consider that each component of the amounts claimed by the plaintiff are themselves inherently reasonable.
Consistent with my finding that the treatment incurred by the plaintiff was necessitated by the effects of his injuries, I accept that the amounts claimed by the plaintiff are recoverable from the defendant as damages for the reasonable cost of his injury-related treatment.
I therefore award the plaintiff damages for past out-of-pocket expenses in the amount of $10,784.
Summary of damages assessment
My assessment of the Plaintiff's damages is summarised as follows:
| (a) Past diminution in earning capacity | $60,000 |
| (b) Future diminution in earning capacity | $250,000 |
| (c) Superannuation losses | $34,100 |
| (d) Fox v Wood | $1,522 |
| (e) Past domestic assistance | $17,074 |
| (f) Future domestic assistance | $24,085 |
| (g) Past cost of fencing | $11,000 |
| (h) Future cost of rural labour | $Nil |
| (i) Future out-of-pocket expenses | $25,000 |
| (j) Past out-of-pocket expenses | $10,784 |
| Total | $433,565 |
VI. DISPOSITION AND ORDERS
Disposition
The plaintiff has succeeded in establishing his claim on all issues in dispute between the parties. He is therefore entitled to an order for the payment of his costs of the proceedings by the defendant on the ordinary basis, unless he can show that he is otherwise entitled.
Orders
I make the following orders:
(1) Verdict and judgment for the plaintiff in the sum of $433,565;
(2) The defendant is ordered to pay the plaintiff's costs on the ordinary basis, unless otherwise ordered;
(3) The exhibits may be returned;
(4) Liberty to apply on 7 days notice if further orders are required.
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APPENDIX
CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO MOTOR ACCIDENTS ACT 1999, s 128(4)
[6 hours per week]
| PERIOD | WEEKS | WEEKLY s.128(4) RATE | HOURLY s.128(4) RATE | AMOUNT FOR 6 HOURS PER WEEK | |
| 1. | 02.08.2008 to 15.08.2008 | 1.85 | $921.60 | $23.04 | $255.74 |
| 2. | 16.08.2008 to 21.11.2008 | 13.85 | $933.50 | $23.34 | $1,939.55 |
| 3. | 22.11.2008 to 20.02.2009 | 12.85 | $938.50 | $23.46 | $1,808.76 |
| 4. | 21.02.2009 to 15.05.2009 | 12 | $946.40 | $23.66 | $1,703.52 |
| 5. | 16.05.2009 to 21.08.2009 | 13.85 | $939.00 | $23.48 | $1,951.18 |
| 6. | 22.08.2009 to 20.11.2009 | 12.85 | $959.90 | $23.99 | $1,849.62 |
| 7. | 21.11.2009 to 19.02.2010 | 12.85 | $969.40 | $24.23 | $1,868.13 |
| 8. | 20.02.2010 to 21.05.2010 | 12.85 | $989.90 | $24.74 | $1,907.45 |
| 9. | 22.05.2010 to 17.11.2010 | 25.57 | $986.90 | $24.67 | $3,784.87 |
| TOTAL | $17,074.82 |
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Decision last updated: 23 March 2011
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