Modistach v Human No. DCCIV-98-1307

MODISTACH V HUMAN

[2001] SADC 22

1................ JUDGE BURLEY......... On 18 September 1995 the plaintiff was involved in a motor vehicle accident. In this action, he claims damages in respect of the injuries sustained by him as a result of the accident. The vehicle driven by the defendant collided with the rear of the plaintiff’s vehicle which was then stationary. The defendant has admitted liability in relation to the accident but damages remain in dispute.

Plaintiff’s History

The following narrative is taken from the plaintiff’s evidence and from the corroborative evidence given by his mother. The plaintiff was born on 8 March 1974. He was 21 at the time of the collision. His parents separated when he was about six months of age. He was brought up by his mother. They moved from Perth to Adelaide in about 1975 and in 1976 they moved to a house at Glengowrie. They lived there together until about May 1999 when the plaintiff left home.
The plaintiff attended Glenelg Primary School to Grade 3 and he then went to Christian Brothers College (CBC) at Adelaide from Year 4 to Year 12. Having completed Year 12 he spent a year overseas as an exchange student and then he returned to Adelaide and undertook a further Matriculation year at Hamilton College.
He undertook a Bachelor of Arts Degree at the Adelaide University and completed that degree in 1997. He had undertaken some study of psychology as part of that degree. Having completed his degree he undertook a graduate diploma in psychology at Flinders University.
The plaintiff has always been a keen sportsman. At various times he has been involved in surf lifesaving, competitive swimming, football, cricket, rowing and athletics. For a short period he played soccer and he undertook tennis lessons whilst at CBC. Intermittently he also undertook snow skiing and water skiing.
When he was at Hamilton College in 1993 he began to learn martial arts. He continued with this sport until the accident and endeavoured to resume the sport after the accident. He used to train between two and four times a week depending upon work commitments. The form of martial arts for which he trained is known as Zen Do Ryu. In very broad terms it may be described as a combination of judo, ju-jitsu and karate.
The sport involved vigorous physical contact. Of this, the plaintiff said (at T17/19):
“... at the level I was at towards the end, part of the grading requirements is that you do three on one sparring where you had three opponents attacking you and you had to defend yourself against all three. We used to wear gloves and a mouthguard, obviously groin protectors, shin pads, occasionally I wore protection on the arm. It was full contact; you weren’t supposed to knock the person out but you were supposed to be realistic.”
By the time of the accident the plaintiff had reached, after nearly three years of training, the Brown Belt level. The next level was the Black Belt and the plaintiff was in training to undertake the initial steps towards advancement at that level. The plaintiff referred (at T18/27) to the physical criteria for the Black Belt award and there was no doubt that, in training, the plaintiff had, at the time of the accident, achieved a very high degree of physical fitness. Mr Pohl, an orthopaedic surgeon, gave evidence in respect of the plaintiff’s injuries. He described the plaintiff as having the fitness of an elite athlete and I accept that this is an appropriate description of the plaintiff’s physical condition at the time of the accident.
In training for the various levels of the Black Belt award, he had reached a stage where he was training at least four times a week. He described the training (at T19/27):
“An hour and a half to two hours each session, and at that level as well you have to take on your own training. Even though I was quite gifted at the martial arts, it was something I seemed to have a natural ability for and I sped up through the ranks at an accelerated rate, I guess, than what most people do. My trainer recognised this and I was actually invited to participate in - the black belts have their own special training camps as well as just nights of training during the week and the lower ranks aren’t invited to go to that, it’s for the high levels only, and I was actually invited. I was the only non-black belt participant there. I only went to a few of those of course because you’ve got to get to a certain - I was at brown belt before I got invited. I’d also - the coach of my - had noticed that I did have a natural talent. I mean, I’d been very athletic and very sporting my whole life, this was a sport I’d developed a passion for and I also found it relieved stress. I had to concentrate on what I was doing there otherwise people were going to get hurt. So because I could focus my mind on that only, just blocked out all other things in life. I found it very stress relieving, get rid of all your aggression and just with the teachings as well, you know, learning to control breathing and everything, found it assisted me in a lot of other areas in my life as well. It’s something I’ve really missed.”
Later he said (at T20/29):
“I was extremely flexible. I could - as you mentioned in your opening statement, I could do the splits going forward and sideways bar about 5 cms off the ground. I could rotate my body around to probably 170 degrees, like all the way around behind. This would have been enhanced by my training obviously, and the stretching that we did there. I think I had a predisposition towards it anyway. I think I was just naturally a bit more flexible than most people.”
The plaintiff said (at T29/3) that about three to four weeks prior to the accident he had noticed a dull ache in the mid-back and he sought some physiotherapy treatment for that condition. He had intended to go on a snow skiing trip and he said that he saw the physiotherapist on the day of the accident prior to the occurrence of the accident. The plaintiff said that the back pains did not interfere with his martial arts training. It will be necessary to return to this aspect of the plaintiff’s pre-accident physical condition.

The Accident

As to the accident the plaintiff said (at T30/11):
“I was on Leader Street next to Le Cornu’s waiting to make a right-hand turn down Second Avenue which is where my girlfriend lived; I was about to visit her. It was broad daylight, it was about 5 o’clock in the afternoon and I was stationary at the time, my indicator was on. I just got struck, I had no warning, quite violently from the rear. I was thrown forward with the impact, I had my seatbelt on so I didn’t hit the steering wheel and then as I went back my chair collapsed and I ended up lying down flat into the back seat.”
He explained that the upright part of the seat collapsed and ended up being horizontal. He said that the car was “thrown forward about 2 m slightly to the right” (T31/1).
The plaintiff was driving a manual car. He was asked (T31/9):
“Q.... Do you know what the position was with the gears and the brake immediately prior.
A...... The way I drive, I would have had it in first gear with my foot depressing the clutch; and my right foot above the accelerator waiting to engage the gears and go around the corner.
XN
Q...... Do you know what happened with your feet in the accident.
A...... I’ve got no idea, I can’t recall.”
I have set out the above passage because it constitutes one of the first of many occasions where the plaintiff reconstructed his evidence where he had no actual recollection. It is an example of where the reconstruction is excusable and probably helpful but throughout the remainder of his evidence, particularly in cross-examination, the plaintiff showed a tendency to reconstruct events where he had no actual recollection. Almost invariably, and perhaps understandably, the reconstruction tended to favour, rather than be adverse to, the plaintiff’s claim. In reviewing the plaintiff’s evidence as a whole it has been necessary to bear in mind this tendency of the plaintiff because it reflects upon the reliability of his evidence, sometimes in relation to important aspects of his claim.
The plaintiff’s vehicle had to be written off as a result of the damage caused to it by the collision. There was no head restraint on the driver’s side front seat of the vehicle.

Post-accident Events

The plaintiff said that at about fifteen minutes after the accident he noticed that his back was starting to hurt a lot and that his neck was “a bit sore”. He had to lie down on the floor of his girlfriend’s house. He lay on his back and remained in that position for quite some time. Prior to the accident he had arranged to attend a work function with his girlfriend and they did so. During the course of the evening the pain increased to the extent that he left the function early and went home. He went to bed and on the following day he was stiff over his entire body. He could only move his neck slightly and his back was extremely sore. In describing the parts of the body where he experienced the pain he said (at T33/19):
“A.... Yes, the cervical part of my neck, down at the base of my neck, more predominantly but at that stage the pain had spread right through down to my shoulders. For my back it was the lumbar-sacral part of my back, it went both left and right sides. It was around through to you know, just about the sides of my body and it was extremely painful.
XN
Q...... Was this pain in the same area or in a different area from the pain that you’d had that caused you to go to the physio on three occasions.
A...... I’d never, ever had a problem with my neck, so that was all new. The pain in my back was lower.
Q...... Lower than what you’d had -
A...... At the physio. That was, I don’t know, sort of mid-pain I don’t know what the term is for that because it hasn’t been in any of the reports.
Q...... It was more in the middle of your back rather than in the lower of your back.
A...... Yes.”
It is not clear from that passage of the evidence whether the back pain experienced as a result of the motor vehicle accident was higher or lower than the back pain experienced and in respect of which he saw the physiotherapist prior to the accident. However, I think the plaintiff was trying to express the view that the back pain experienced as a result of the accident was higher in the back than the back pain experienced prior to the accident.
On the day after the accident he saw a Dr Townsend at the Morphettville Medical Centre and after that he went to the physiotherapist, whose rooms were at Plympton. When he saw the doctor he could only move his neck a few degrees in either direction.
About a week after the accident the plaintiff was treated by a chiropractor, Mr S Brown, and that treatment continued from the end of September until December 1995. He was taking Panadol for the pain experienced by him.

Employment History Since Accident

The plaintiff said he was off work for about two weeks. After that the plaintiff said that he was not able to work the same hours that he had worked prior to the accident. The evidence of Mr van Pamelen, who prepared the work rosters, does not support this aspect of the plaintiff’s case. In any event, for a few months, Mr van Pamelen assigned the plaintiff to the Sunday shift which was paid for at the double time rate. By that means the plaintiff was able to maintain his pre-accident income whilst he was rostered for the Sunday shifts.
The plaintiff in his evidence said that, since the accident, he had difficulty in carrying out the various types of employment undertaken by him since the accident. Prior to the employment he was employed at John Martins in the music department. He was a sales assistant, but he also had to do some physical work in the form of shifting stock, shop fittings and equipment. That job ceased on 7 March 1998 when John Martins closed its doors. There then followed a period of unemployment until July 1998 when he obtained a job at a Caltex service station working the night shift. He worked there for about 9 months. In early 1999 he also obtained a job with Qantas working as an aircraft cleaner. This job persisted until mid-1999.
The plaintiff said that during all of these jobs he had difficulties with the physical work involved.
The work at John Martins, at the Caltex service station and with Qantas did not involve any heavy labour. At best it could be described as varying from light to medium physical work.
He started work at Qantas on 14 January 1999. He was still working with Caltex at that time. He was offered an original period of employment of five weeks but after that period had expired he was asked to continue. He decided to give up the Caltex job and persist with the Qantas job. He resigned from Caltex on 25 March 1999. He remained with Qantas until mid-1999 when his employment was terminated.

Medical Evidence

The plaintiff called Dr John Meegan, an occupational physician, and Mr Anthony Pohl, an orthopaedic surgeon. The reports of Dr Meegan and Mr Pohl are contained in Exhibit P1. The defendant called Mr P L Fry, an orthopaedic surgeon, whose report is Exhibit D19, and Mr Madigan, a physiotherapist who treated the plaintiff before and after the accident.

It is convenient to deal with Mr Madigan’s evidence first. He has been qualified since 1986. He has been a partner in a physiotherapy practice since June 1995. Prior to that he worked for the Morphettville Physiotherapy Clinic. He first saw the plaintiff in February 1994 when he was at the Morphettville Medical Clinic. He made notes of the various attendances of the plaintiff upon him for physiotherapy treatment.
The plaintiff gave a history of having had a period of severe back pain in 1991 when he was unable to undertake strenuous physical activity for approximately six months.
Mr Madigan saw the plaintiff from time to time. In April 1995 the plaintiff complained of lower back pain. Mr Madigan saw the plaintiff again on 4 September 1995. The plaintiff complained of three months of pain across his lower back which was aggravated at night-time by lying on his back, by doing sit-ups, by carrying objects and by prolonged driving or being in any one position for too long. The plaintiff told Mr Madigan that the pain he experienced was similar to the back trouble that he had had previously. Mr Madigan examined him and found that he was tender on the left side of his lumbar spine from L2 to L3/L4.
He saw the plaintiff again on 11 September 1995. The plaintiff was still complaining of an ache in the lumbar spine after sustained sitting. He saw the plaintiff again on 18 September 1995 when he noted:
“He’s better, there’s little ache now. He had full range of extension. He was less tight on palpation.”
No further appointment was made. Mr Madigan advised him to continue with exercise and see how he went.
Mr Madigan saw the plaintiff the day after the accident and continued to treat him up to the date of the trial. The plaintiff made appointments to see Mr Madigan from time to time to deal with what Mr Madigan describes as “flare ups” in his condition. He understood that the symptoms experienced by the plaintiff for various periods of time settled to a manageable level and then flared up on occasions.
Mr Madigan’s evidence is important in relation to making an assessment of the plaintiff’s lower back condition prior to the accident. It is clear that he saw the plaintiff on the day of the accident and noted that the plaintiff’s condition had resolved and no further appointment was made. It is also clear that the plaintiff in previous years had experienced back pain and had had one significant episode of back pain in 1991 which subsequently resolved. This is to be contrasted with the condition of the plaintiff after the accident when he had to be treated for pain and disability in both the neck and the back on a much more regular basis than had previously been the case. There has been no previous history of neck pain and the treatment for the lower back pain was of quite a different order after the accident when compared with the treatment received in the years preceding the accident. This evidence assumes some significance when the evidence of the orthopaedic surgeons called by the parties is taken into account.
Mr Pohl saw the plaintiff on 30 January 1996. He took a history from the plaintiff which is broadly consistent with the evidence given by the plaintiff. He noted that the plaintiff suffered no loss of consciousness or amnesia. The plaintiff complained of pain and stiffness in the upper portion of the lower back. The plaintiff’s symptoms “were aggravated by bending forward and by prolonged posturing in a sitting, standing or lying position”. There was no history of numbness, pins and needles or weakness in his legs. The neck pain was localised in the middle and lower neck region, predominantly on the right side. Again, there were no symptoms of pins and needles, numbness or weakness in his arms. The plaintiff’s neck pain “was aggravated by prolonged posturing especially in a position of neck flexion”. The plaintiff described headaches as “frontal, bilateral and throbbing in nature”. The plaintiff told Mr Pohl that he experienced headaches every two days or so lasting from five minutes up to the whole day. The plaintiff said that he was unable to do heavy lifting. He was able to cope with his current duties (at John Martins as a casual sales assistant) but he was unable to perform at his previous level. He was restricted in such recreational activities as dancing and playing pool because these activities produced soreness. The plaintiff disclosed a previous history of “lower back strain”.
On examination Mr Pohl said in his report of 3 February 1996:
“On examination of his neck there was tenderness of the trapezius muscle on the right with palpable muscle tautness. He had a full range of neck motion with no neurological deficit. Examination of his back demonstrated tenderness and muscular tautness in the upper lumbar region on the right. There was mild restriction of back motion present such that with forward flexion his fingers could only reach to the level of the lower shin. Extension, lateral flexion and rotation were all full. There was no neurological deficit in the lower limbs. Straight leg raising was to 80° bilaterally. There was no myotomal tenderness. In short, there was no evidence of nerve root compression, tension or irritation.
SUMMARY:
As a result of a rear end collision on 18 September 1995 Mr David Modistach suffered neck and back pain. He is now left with the current residual symptoms of lower back pain, neck pain and headaches as detailed above. Consequently he describes restrictions to his work, sporting activities, recreational activities, activities of daily living and emotionally as documented above. On examination there was tenderness and tautness of the trapezius muscle on the right and the upper lumbar paravertebral muscles on the right, with mild restriction of forward flexion of his back. There was no neurological deficit.
OPINION:
Mr Modistach suffered a flexion extension injury in the rear end collision. It appears that this resulted in soft tissue injuries but no bony injury. The natural history of soft tissue injuries is to diminish with the passage of time which has been the case in this instance. As Mr Modistach’s injury was less than six months ago, I would expect further and considerable improvement to occur. His condition cannot therefore be regarded as stabilised and an assessment of permanent physical impairment would best be delayed for a further 12 months or so. I believe his prognosis is good.”
Mr Pohl provided a further report dated 23 December 1996. He noted that current residual symptoms included neck pain, lower back pain and headaches. He reported his findings on examination as follows:
“Examination of his neck demonstrated spasm of the trapezius muscle, particularly on the left in the suprascapular region and to a lesser extent on the right. There was a good range of neck motion present such that with forward flexion his chin reached his chest. Extension was normal. Lateral flexion was to 40° bilaterally and rotation was to 90° bilaterally. Sensation was intact in a C5-T1 dermatomal distribution. Motor power, tone and reflexes were normal.
Examination of his back demonstrated tenderness over the tip of the transverse process of the fourth lumbar vertebra. There was no paravertebral muscle spasm present. He had a restricted range of back motion present, with extension limited to 3/4 of the normal range. With forward flexion his fingers could reach to his ankles. Lateral flexion was to 40° bilaterally. Rotation was to 100° bilaterally. Sensation was intact in an L2-S1 dermatomal distribution. Motor power, tone and reflexes were normal. On specific examination he was hyperflexible, most likely reflecting his martial arts training. On specific testing he did not meet the criteria for generalised ligamentous laxity.”

Mr Pohl thought at the time of writing his second report that the plaintiff’s prognosis was guarded. He said that it was over two years since the motor vehicle accident but in fact it was over only one year since the accident. He recommended that an MRI scan be undertaken of the cervical lumbar spine to see whether there was any intervertebral disc injury. He thought that the plaintiff’s “current condition reflects something in the order of 3% whole body permanent physical impairment and loss of physical function based on the Guides to the Evaluation of Permanent Impairment of the American Medical Association”. However, he emphasised that the assessment he made was one of physical impairment and not disability. He also referred in his report to an episode of back pain in 1990 which had been treated and, he understood, had fully resolved.
Dr Meegan’s first report was dated 30 January 1997. He took a history broadly consistent with the plaintiff’s evidence at trial. He noted the previous condition of intermittent low back pain with some postures in martial arts. The plaintiff gave a history of aggravation of his symptoms when he recommenced martial arts training. The medical history since the accident taken by Dr Meegan was similar to that taken by Mr Pohl. Dr Meegan was of the view that at January 1997 the plaintiff was likely to be left with a degree of neck and back pain for at least another year or two and allowed for some symptoms on a continuing and permanent basis.
In February 1997, Dr Meegan reported that he had arranged for a bone scan to be taken and that it disclosed nothing abnormal. In his report of 8 December 1998 he noted that the plaintiff continued to suffer a degree of neck and back pain and that there would be minor functional limitation for the foreseeable future. By the time of the report of 8 December 1998, Dr Meegan had available to him the results of an MRI scan of the cervical spine which showed a small broad based disc bulge at C3/4 a little more prominent on the right of the mid-line. There were no other abnormalities noted. An MRI scan of the lumbar spine demonstrated a small posterior annular tear with generalised bulge at L5/S1. He thought that the annular tear may relate to the motor vehicle accident. He thought that the low back pain experienced by the plaintiff has a facet joint and discogenic origin. He was of the view that the plaintiff had lost five per cent full efficient use of his cervical spine and 10 per cent of his lumbar spine.
Mr Pohl was provided with a copy of Dr Meegan’s report of 8 December 1998 and he agreed with Dr Meegan’s opinion that there was a loss of five per cent full efficient use of the cervical spine and a loss of ten per cent full efficient use of the lumbar spine.
Mr Fry saw the plaintiff on 5 July 1999 and provided a report of 6 July 1999. Mr Fry took a history broadly consistent with the plaintiff’s evidence at trial. He noted a disclosure of back injury in 1991 whilst the plaintiff was playing soccer. He understood that it was a minor injury which settled in about three weeks. He also noted the back troubles experienced by the plaintiff three or four weeks prior to the motor vehicle accident.
He asked the plaintiff to indicate the site of the earlier back soreness experienced in weeks preceding the accident. The plaintiff indicated the thoraco/lumbar junction. He noted that the pain experienced as a result of the accident was at the lumbo-sacral junction.
The plaintiff told him that his neck was substantially better than it was originally, although he experienced pain in the neck five days out of seven. Mr Fry’s findings on examination were as follows:-
“Examination of the neck revealed a little tenderness at C6 centrally, and little tenderness in the trapezius musculature quite laterally on either side adjacent to the acromion edge. The rest of the neck was not tender. Movements of the neck to the right were full, with tension discomfort on the left hand side occurring at the extreme. Rotation movements to the left were slightly decreased in range, and again caused discomfort. Flexion/extension was full in range, with extension causing discomfort in the neck. There was no evidence of neurological abnormality peripherally.
In the lumbar spine there was tenderness that overlay the left lumbar sacral facet area generally. There was no tenderness elsewhere. From the erect position he had full normal forward flexion with no symptoms produced. Extension was normal, done quickly, and without symptoms. Hyperextension of the back was full in range, with a little pain at the extreme. There was no evidence of neurological abnormality peripherally.”
Mr Fry gave the following opinion:-
“The motor accident was a rear end one, with no complicating secondary impact. Mr Modistach was restrained by his seatbelt, taken by surprise, and was looking ahead when the impact occurred. It appeared that there had been simply extension strains of the neck and the lower back caused, and in each area some soft tissue damage done.
In the neck this appears to have been quite non-specific, and there is no evidence of any particular structure having been affected. The usual course of stiffness, soreness, headaches etc occurred, with gradual resolution over time, but there is still some stiffness that can be seen in the neck on examination, and it is this persistent stiffness that accounts for the variability and persistence of his symptoms. Fortunately, the appearances of abnormality are relatively slight, and although deliberate mobilisation of the neck by self exercise might have an improving effect, given that his problems have now been present for some four years it is unlikely to be complete. I would regard his present situation as likely to be the permanent one. He has a small impairment of the neck, and in general terms is in the vicinity of 5% impairment of the region.
The lumbar spine appears to have had very much the same thing happen to it. While the MRI shows degenerative change at L5/S1 in association with a disc tear and some annular bulging, the significance of this in relationship to the motor accident is unclear. The motor accident certainly did not cause the degeneration, that was there already. In association with degeneration annular disc tears are common, as is slight bulging. This too may well have preceded the motor accident. Equally, the possibility exists that the motor accident caused some discogenic damage. However, given an overview of the history and situation generally in the back since the time of the accident, I think this rather doubtful. It is much more likely that there has been mere simple straining of an already abnormal area with a consequent persistence of symptoms that might not have otherwise occurred in a more normal back. Further treatment is unlikely to be helpful, although at the same time general mobilisation of the area and the maintenance of trunkal fitness by such things as regular swimming is certainly worthwhile and to be recommended. He has a small impairment of the back, it amounts to 7 or 8% loss of function of that region.
Mr Modistach by virtue of neck and lower backaches has had some restrictions upon what he can do physically imposed upon him, at work or away from it. Clearly given his history of study etc, he is unlikely to be doing heavy manual work as a future career. He would in fact be unfit for this if he were to decide to do it. For the type of work that his studies etc, suggest he will take, he is fit, and will remain fit. Fundamentally the accident has merely reduced his capacity for heavy manual work.”
In his evidence at trial Mr Pohl explained the mechanism of the neck injury and its relationship to the disc disease found to be present in the neck by the MRI scan. He was of the view that the forces involved in the collision could have produced a severe injury to a neck that had a discogenic disease, which was a degenerative condition. The force of the collision would have added to the degenerative disease and the likelihood is that the cause of the pain experienced by the plaintiff in the neck after the accident was the discogenic disease. He applied the same reasoning to the plaintiff experiencing pain in the lower back. The MRI scan demonstrated disc injury which was part of a degenerative condition which, in turn, was affected by the trauma sustained at the lower back level as a result of the collision.
The plaintiff’s present occupation is that of cable adviser. He works for Foxtel and by way of door to door sales, invites people to subscribe to Foxtel pay television. The job can consist of house to house canvassing or canvassing in high density housing areas. The former involves much more walking than the latter. The plaintiff has said in evidence that he has difficulty in putting in a full day’s work in relation to, in particular, house to house canvassing because of the walking involved. Mr Pohl’s advice was that with such an occupation, the plaintiff would experience pain and tiredness if he did not have the opportunity to rest from time to time (T273/2).
During the course of his evidence, Mr Pohl had to deal with the question of whether the accident was responsible for the continuing symptoms experienced by the plaintiff or whether it could be traced to disc disease in the neck and the spine which was present at the time of the accident. Mr Pohl said it was very difficult to determine whether or not there was actual disc disease at the time of the accident because trauma can cause the type of degenerative change that was disclosed on the MRI scan of the neck and lumbar spine. Mr Fry did not agree with this view. There is the added complication of previous back pain having been experienced by the plaintiff, in particular the intermittent back pain for several months prior to the accident.
It seems to me, taking Mr Pohl’s evidence both in his reports and at trial as a whole, he is of the view that the most likely positions were either that the trauma of the accident caused the disc disease in the neck and the spine or, alternatively, aggravated it to the extent as disclosed in the MRI scans. In either event, for the purposes of this case, the injury to the neck and the spine suffered by the plaintiff is to be regarded as the cause of the subsequent pain, discomfort and disability. Mr Fry, on the other hand, thought that this was not the case and, taking his opinion to its logical conclusion, it could not be said that the trauma experienced in the accident has led to the long-term disability experienced by the plaintiff.
It was put to Mr Pohl during cross-examination that on the assumption that the plaintiff had experienced low back pain for a period in excess of three months prior to the accident and had received treatment from a physiotherapist for the condition, that was a factor which had to be taken into account in explaining the pain and disability experienced by the plaintiff after the accident. Mr Pohl was of the view that the physical condition of the plaintiff prior to the accident was akin to that of an elite athlete and that in his experience such athletes often experienced aches and pains which limited their physical activity only from time to time as opposed to the plaintiff’s post-accident condition which presented a continuing and permanent disability.
I accept his opinion that this is a crucial difference. I also accept and find that the disability experienced by the plaintiff prior to the accident in relation to the low back pain he suffered from caused an intermittent disability, whereas the disability experienced by the plaintiff after the accident was a continuing disability. For example, he was unable to resume his martial arts training because he found that such training increased his symptoms of pain. At best, the occurrence of the pain and disability experienced by the plaintiff may indicate that he experienced degenerative disease in the lower back prior to the accident, but this does not mean that the conclusion should be drawn that it was substantially responsible for the continuing pain and disability experienced by the plaintiff after the accident. Of particular importance is the fact that prior to the accident the plaintiff’s training schedule in the martial arts was largely uninterrupted but, after the accident, it had to be abandoned.
Mr Fry’s evidence was, for the most part, directed towards the question of whether or not it is probable that the accident caused injury to the discs in the neck and lower back and as to whether or not the plaintiff’s pre-existing back condition had any bearing upon the pain and disability experienced by the plaintiff after the accident. He thought that the accident did not cause disc damage because the symptoms reported by the plaintiff both before and after the accident gave the contrary indication. He proceeded on the assumption that there was degeneration in the neck and the spine prior to the accident which had become symptomatic and that even if the accident had not occurred, it was likely that in the future the plaintiff would experience from time to time similar pain and disability.
Putting aside the question of whether the accident caused either original damage or additional damage to the discs in the neck and lower back, I think it is a reasonable hypothesis that, given the lower back condition of the plaintiff prior to the accident, it is likely that he would have experienced back pain and disability in the future from time to time. The same cannot be said of the neck because there was no history of pain and disability in the neck prior to the accident.
As to the question of whether the accident caused or added to degenerative change in the disc, I do not think it is possible to make a finding in that regard. Neither the evidence of Mr Pohl nor the evidence of Mr Fry reveals either facts or opinion that enables such a determination to be made. At the end of the day it is probably not necessary to do so.
I think the evidence of each of the orthopaedic surgeons is to the effect that the physical capabilities and disabilities of the plaintiff in the neck and the lower back before and after the accident are the best indicators of what damage was done as a result of the accident and the future consequences of that damage. On the one hand, it was the defendant’s contention that the plaintiff had an actively symptomatic back for several months prior to the accident to the extent that the symptoms experienced after the accident, although temporarily exacerbated, were in reality the product of the back condition that existed prior to the accident. On the other hand, the plaintiff contended that, although he experienced problems with his back prior to the accident, he was able to carry out his employment and sporting and social activities without significant difficulty and the difficulties which were experienced were intermittent. This is to be compared with his post-accident condition when he had to relinquish vigorous sporting activities and had difficulties in carrying out various forms of employment, both on a continuing basis.
I think it is significant that after the accident the plaintiff had to contend not only with a lower back condition but also the pain and disability associated with his neck condition. The neck injury was significant and it has continued to trouble the plaintiff. In addition, I accept his evidence that his lower back condition was worse after the accident. The combination of those two factors leads, in my view, to the conclusion that the injuries sustained by the plaintiff to the neck and back as a result of the collision are the predominant causative factor of the pain and disability experienced by the plaintiff since the accident.
In arriving at that conclusion, I take into account that the plaintiff tended, in his evidence, to minimise his pre-accident condition and emphasised his post-accident condition. Nevertheless, I think it is significant that, with his present employment, he is unable to perform the functions of that employment to the same degree as an able-bodied person.
The plaintiff called Mr Baker, one of his fellow employees, who gave evidence as to the way in which the task of canvassing for pay television contracts was carried out. It is a physically and mentally demanding job. Mr Baker was clearly able to perform the necessary tasks with an ease that was not available to the plaintiff because of his back and neck conditions. I am not persuaded that, had the accident not occurred, the plaintiff would have been so disabled in any event. Although I think the plaintiff from time to time in his evidence tended to exaggerate the difficulties that he experienced, and to attribute setbacks in his employment, such as the employment with Qantas, to the existence of his disabilities, it has been established by the plaintiff that the predominant cause of his difficulties with employment are the product of the injuries sustained by him in the motor vehicle accident rather than the pre-existing condition. But, it also follows, that in assessing damages, I must make allowance for the fact that the plaintiff would have from time to time experienced pain and disability in his lower back as a result of the degenerative condition that existed as at the date of the accident even if the accident had not occurred.

The Plaintiff’s Evidence (cont)

At the time of the accident the plaintiff was extremely fit. He weighed 72 kilograms. After the accident his weight increased to 84 kilograms but his weight has since reduced to his current weight of 74 kilograms.
As a child he undertook casual work at Adelaide Oval catering and in his final year at CBC he worked for McDonalds on a casual basis. After he returned from Brazil he commenced the BA degree course at the Adelaide University. In August of that year he commenced work as a casual employee at John Martins. He worked in the music department and remained in that employment until March 1998 when John Martins closed down. When he left that employment his hourly rate of pay was about $14.70.
The motor vehicle accident occurred in the plaintiff’s second year at Adelaide University.
The plaintiff said (T29/3) that at about three to four weeks prior to the accident he noticed a dull ache in his mid-back and that he sought physiotherapy treatment for that condition. He made no mention of the fact that he had experienced the pain for several months prior to consulting the physiotherapist which I think is a significant omission. It indicates to me a selective memory in relation to a matter which the plaintiff, when he gave evidence, must have known was significant in the assessment of his pre-accident condition.
It appears that the plaintiff returned to work in early October 1995. Mr van Pamelen allowed the plaintiff to avoid the heavier work associated with his job.
The plaintiff estimated that he lost approximately 175 hours of work as a result of not being rostered for work after the accident to the same extent as he had been before the accident. I am unable to rely upon this evidence because it consisted more of assertion than fact and is contrary to Mr van Pamelen’s evidence which was to the effect that the plaintiff worked the same number of hours after the accident as before, apart from the initial two weeks.
An examination of the wage records for John Martins indicates that, rather than working less hours after the accident, the plaintiff worked more hours than the previous year for the months of October, November and December. In explanation the plaintiff said that his claim was based not on a reduction of hours when compared with the previous year but on a lost opportunity to do additional work. I take that to mean that he relies upon evidence he gave about examination of rosters and forming the conclusion that there was additional work available but it was not given to him because of his injuries. I have already indicated that I cannot accept that evidence because there is no basis for that conclusion provided. I think the most satisfactory explanation of the position is to be obtained from the evidence of Mr van Pamelen, who was responsible for drawing up the rosters at John Martins in the music department before and after the accident. He summarised his position (at T461) that he endeavoured to give to the plaintiff after the accident the same shift hours as the plaintiff had had before the accident and, to some extent, he anticipated the inability of the plaintiff to attend because of medical appointments and such reason by allocating extra shifts where possible. He also referred to the rosters, the records of which were maintained for about twelve months, and that he had noticed on some of the rosters after the accident the plaintiff’s name had been crossed off but no explanation was given as to why his name had been crossed off. The plaintiff attributed the crossing off to an allocation of that particular shift to other personnel, but it may equally have been that his name was deleted from the roster because he was unable to attend at the time rostered.

The plaintiff attempted to give an explanation (T163-164) but what he said is inconsistent with the evidence of Mr van Pamelen, whose evidence on the topic I prefer.
I accept that the plaintiff had some difficulty in carrying out his duties as a sales assistant with John Martins. He was on his feet for most of the time and his back became quite painful after he had been on his feet for extended periods. He also suffered from headaches. He had to take pain killing medication for his neck and back and for the headaches he suffered. He would occasionally have to miss a rostered shift because he was not well enough to attend work. On occasions he would have to leave a shift early because of the pain experienced by him.
The plaintiff also had difficulties with studying. At the time of the accident he was in his second year of the Bachelor of Arts degree. He had difficulty in concentrating at lectures because of neck pain. With prolonged sitting when studying he experienced neck and back pain and headaches. He was unable to put in the required hours of study and his university results suffered.
In his first year of university, 1994, he passed all subjects except Psychology I. He withdrew from that because his grandmother died during the first semester. In 1995, he had to withdraw from two subjects in the second semester because he was away from the university for about six weeks as a result of the accident.
The evidence both from the plaintiff and by way of the official academic transcript from the University of Adelaide (P3) is somewhat confusing in relation to the time that it took the plaintiff to complete his Bachelor of Arts degree. It shows that he undertook studies in 1994, 1995 and 1996. The fourth component of the academic transcript refers to “Bachelor of Arts (pre-1996)” and underneath that there are shown three third year subjects and one first year subject. I am not sure what the significance of the designation “pre-1996” is but, combined with the evidence of the plaintiff that he took four years to complete his degree having commenced in 1994, it must follow that the subjects listed in the fourth part of the official academic transcript refer to subjects undertaken in 1997.
The transcript reveals that over the four years of study the plaintiff obtained four passes, four credits and five distinctions. I find that the plaintiff had both the ability and the application to undertake tertiary studies and that, apart from the withdrawal from Psychology I in 1994 as a result of the death of his grandmother, he would have completed his degree within the ordinary three year period had he not experienced difficulties with study as a result of the injuries sustained by him in the motor vehicle accident. In addition, I infer that, had the accident not occurred, the plaintiff would have been able to make up Psychology I within the three year period by overloading. Consequently, I accept that the injuries sustained by him in the motor vehicle accident caused him to take four years to complete the degree rather than the normal three years. That additional year has a bearing upon the measure of the plaintiff’s economic loss prior to trial because it has had the effect of delaying by one year his entry into the permanent workforce.
The plaintiff, having completed the BA degree, undertook a Diploma in Psychology. It is a one year, full-time course but was not undertaken as such by the plaintiff. It has not been claimed that the accident was responsible for the additional year in this case. The plaintiff said (T52/17) that he failed one subject of the diploma which he had to complete in 1999.
The plaintiff had difficulty with sleeping following the accident because of the headaches and back pain experienced by him. This was worse for approximately 18 months after the accident and, although he still has difficulty with sleep, the condition has gradually improved.
The social life of the plaintiff deteriorated after the accident. His relationship with his girlfriend eventually came to an end and he had less contact with friends and acquaintances because he was not able to socialise to the same degree after the accident as before.
The plaintiff attempted to resume his martial arts training in early 1996 but he was unable to do so because the physical activity aggravated his symptoms. He attempted to do so again in August 1996 and August 1997 but for the same reason could not manage the physical activity.
After John Martins closed down the plaintiff made a number of attempts to obtain work as a sales assistant in various businesses but was not successful. He was also offered work by Mr Peter Szeitz, who gave evidence. Mr Szeitz has a fencing business and the plaintiff was offered work as a labourer. He was unable to accept that offer because he was incapable of doing heavy work.
Mr Szeitz also gave evidence as to the plaintiff’s ability as a martial arts exponent. Mr Szeitz, who was undertaking the third level of the Black Belt, thought that the plaintiff was very good. He also spoke in general terms about the type of training undertaken by people involved in martial arts. From his description it is apparent that an exponent must have a very high level of fitness in order to advance within the martial arts ranks. He thought that the plaintiff was a keen competitor.
Mr Szeitz’s evidence as to the job offer is not all that clear. It appears that at training sessions he would, through the instructor, make an announcement that he had work available as a labourer for anyone interested. It is not clear from his evidence that he made a specific offer individually to the plaintiff and it is not clear whether or not the offer was made before or after the accident. However, it is probable that, had the plaintiff asked Mr Szeitz for employment after the accident, he would have been able to employ the plaintiff for 20 to 25 hours per week at a pay rate ranging from $10.00 to $15.00 per hour. Nevertheless, given the plaintiff’s work history prior to the accident, I think it is unlikely that the plaintiff would have sought labouring work after John Martins closed down even if the accident had not occurred. His education and work experience are strong indications that the plaintiff would have confined himself to employment other than heavy labouring.
During the course of cross-examination of Mr Szeitz, questions were put to him on the assumption that the plaintiff had made an approach to Mr Szeitz for work. The answer given by Mr Szeitz was more directed towards the general announcements that were made at training sessions rather than specific requests made by individuals. I therefore do not think that Mr Szeitz had a specific recollection of an approach being made by the plaintiff to him for employment. I do not think that the plaintiff made such an approach. It would be extraordinary that such a request would be made for labouring work because the plaintiff clearly knew that he was incapable of such work. The plaintiff said as much in evidence (T60/4).
With regard to the availability of work from Mr Szeitz, it was, according to the plaintiff (T175 et seq), discussed by him with Mr Szeitz at a time when he was undertaking the Graduate Diploma in Psychology. It is probable that the plaintiff would not have been able to undertake that work even had he been able to do so because for at least three days a week he would be at university and it is apparent that Mr Szeitz was offering more or less full-time employment over a normal five day working week commencing at about 7.30 am and finishing at about 2.00 pm. The plaintiff said that he understood that the working day with Mr Szeitz might finish as early as 11 o’clock which, in light of Mr Szeitz’s evidence, was an entirely erroneous assumption.
Eventually the plaintiff, in July 1996, obtained work at a Caltex service station at Collinswood. He was employed for the midnight to 7.00 am shift. The job included cleaning the premises and food equipment. The plaintiff complained that this type of work brought on his symptoms and that he had to have pain killers. He worked approximately two shifts a week on average each of 7 hours duration. The details are set out in Exhibit P5.
The plaintiff also complained about his inability to perform adequately in relation to the job he obtained with Qantas as an aircraft cleaner. His evidence was very detailed in the assertions he made about how difficult it was for him to carry out the physical work. During the trial the plaintiff gave me the impression that he was “gilding the lily” in a pronounced way with regard to these complaints, and having re-read the evidence, that impression has been reinforced.
The injuries sustained by the plaintiff in the collision, although significant, were not severe. The medical experts agree that he has been left with relatively small residual disability: in the order of three per cent in the neck and eight to ten per cent in the lower back. It is possible that the explanation for what appears to be an exaggeration on the part of the plaintiff is that he has a low tolerance for pain, but I do not think that that represents the truth of the matter. The whole tenor of the plaintiff’s evidence is directed towards maximising the injuries and disabilities experienced by him. I do not believe the plaintiff’s evidence that the injuries that he sustained have led to the interference in his ability to work to the degree maintained by the plaintiff. Certainly he sustained a significant injury and certainly there has resulted from that injury permanent physical disabilities which preclude him from continuing with the vigorous training involved in martial arts, but I do not accept that, whenever he undertook physical work of a relatively light nature he always suffered pain and headaches from such work and had to take medication for the relief of his symptoms. The nature of the physical injuries sustained by the plaintiff as identified by the orthopaedic surgeons does not substantiate the plaintiff’s contentions.
The plaintiff obtained employment with Qantas in early 1999 as an aircraft cleaner, initially for a period of five weeks. He remained with Qantas after that five week period, but initially for the first few months of employment with Qantas he was also working at the Caltex service station. He left the employment at the Caltex service station on 25 March 1999. The plaintiff continued to work with Qantas until mid-1999 when his employment was terminated. In late September 1999 he obtained employment with Foxtel as a cable adviser. He still holds that employment.
The plaintiff gave evidence about his career aspirations. In relation to the martial arts, he wanted eventually to set up his own instruction school. He also wished to pursue a career in psychology. He said that he had hoped to obtain an honours psychology degree followed by a masters degree and then, in due course, work in the human resources field ending up with his own practice.
Although he gave such evidence, his claim for damages has not been pursued in that light. I think there is a good reason for this: the plaintiff had never at any stage come close to being able to pursue such a career. His arts degree included one psychology subject, namely Psychology I. If he had a real intention to pursue psychology as a career he must have known that it was necessary for him to do Psychology II and Psychology III at the very least. He has, in addition, a Diploma in Psychology, but it could not be suggested that that would qualify him to become a registered psychologist. The plaintiff asserted in evidence that the Diploma in Psychology obtained by him was really the equivalent of Psychology II and III and once obtained would enable a masters degree to be undertaken. However, he said further in examination-in-chief that it was necessary to obtain an honours degree and that only the top five per cent of those who did obtain such a degree were able to proceed to a masters degree. He said that he was not selected for an honours degree.
I must approach the question of future employment by reference to the type of employment that he has been able to obtain since completing his qualifications and what his qualifications may enable him to do in the future. Mr Fry correctly recognised that in view of his educational qualifications he could be expected to have a “white collar” career. However, he would be in competition with the many arts graduates emerging from Australia’s universities.
I think that his expectations are more realistically set by reference to prospective employment with human resources firms and working his way up through the employment structure to the extent of his relatively limited qualifications.
The unrealistic nature of the plaintiff’s aspirations with regard to a future career is also to be found in the types of employment that he has sought and which are listed in Exhibit P6. He has applied for positions which require a person with much more experience than the plaintiff possesses.
As to his future job prospects his understanding is that (T333/18-27) that Foxtel are willing to keep him on as a long term prospect with a view to advancement.
Mrs Flanagan gave evidence which corroborated in a material way the physical condition and activities of the plaintiff both before and after the accident. I accept her evidence and have relied upon it in particular in relation to my finding that prior to the accident the plaintiff, although he may have had occasional troubles with his lower back, was able to maintain a normal life, whereas after the accident he was physically limited to the extent of having to give up martial arts training and was incapable of performing heavy work. She confirmed that after the accident he was significantly limited in any physical activities that he would undertake, that he regularly had to take pain killers to control the headaches and pain that he suffered from, that his sleeping was interrupted, that he put on a lot of weight and that his ability to study was adversely affected.
She used to assist by applying liniment to his back and neck. He has been unable to perform the gardening work and house maintenance that he previously attended to.
She also confirmed the back injury that the plaintiff sustained in about 1991. It occurred whilst he was kicking a soccer ball on a handball court. As a result, he was unable to play Australian Rules football for a period of time but he did assist with boundary umpiring.

Assessment of Damages

The plaintiff claims for the loss of 175 hours work between the date of the accident and the end of December 1995. This produces a gross loss of $2,353.00. In view of my findings that the plaintiff’s evidence supporting this claim is both insufficient and contrary to Mr van Pamelen’s evidence, this aspect of the plaintiff’s claim must fail, except for the first two weeks after the accident.
No damages are recoverable in respect of the first week because of the provisions of Section 35A of the Wrongs Act. As to the second week, it was the plaintiff’s evidence that he would have been on holidays and, therefore, as a casual employee, he would not have earned wages during that week. There is no evidence that the plaintiff was entitled to holiday pay and, consequently, no allowance may be made for this week.
The plaintiff, in addition, claims the loss of a four or five hour shift from the beginning of 1996. It was submitted that this produced a gross loss of $6,899.00. This aspect of the plaintiff’s claim is again contrary to the evidence of Mr van Pamelen which is to the effect that, by and large, the plaintiff was allocated the same number of shifts after the accident as he was given prior to the accident. This aspect of the plaintiff’s claim cannot succeed.
It was submitted in the alternative that when the plaintiff’s earnings after the accident were compared with his earnings for the same period in the previous financial year, a weekly net loss after taxation of $80.00 arose. The comparisons were for the period 4 November 1994 to 30 June 1995, a period of nearly 31 weeks, and the period commencing 1 July 1995 to 30 June 1996, a full financial year. The total period from the date of the accident until the date that his employment with John Martins ceased (7 March 1998) was 129 weeks, which produces a total net loss of just in excess of $10,000.00.
I do not think that the calculation for loss of income until March 1998 can be calculated in this way. During the course of his address, Mr James, counsel for the defendant, handed up a graphical representation of hours worked by the plaintiff at John Martins both before and after the accident. By reference to the graph it appears that the hours worked by the plaintiff from the date of the accident until the end of 1996 were not markedly dissimilar from the hours worked prior to the accident. This was consistent with the evidence given by Mr van Pamelen. The same may be said of the period from early 1997 until March 1998. Nevertheless, it seems to me that, from the date of the accident, the plaintiff had a diminished working capacity which must have affected the amount that he earned whilst he was employed at John Martins. He was unable to complete some shifts, he was unable to attend for shifts for which he was rostered and he had to attend for medical appointments which would have interfered with his ability to undertake gainful employment. The evidence is, understandably, not very precise and I think it is necessary to take a broad axe to this aspect of the plaintiff’s claim. I think an allowance of $5,000.00 ought to be made for the period from the date of the accident until March 1998. Such a sum, net after taxation, represents no more than the loss of one five hour shift per fortnight from the date of the accident until March 1998 and, as such, I think it is a fair allowance for loss of earning capacity during that period.
The loss of employment with John Martins was the result of the closure of that business rather than the plaintiff’s disabilities. Consequently, whether or not the accident occurred, the plaintiff would have been in a position where he was looking for work as from early March 1998. He could only look for part-time casual work because he was still studying. He made a number of job applications after early March 1998 which resulted in him obtaining employment at the Caltex service station in July 1998. He then continued with part-time employment either with Caltex or Qantas until about mid-1999. I can see no financial loss attributable to the plaintiff’s injuries occurring between March 1998 and July 1999. By mid-1999 the plaintiff was again in a position where he had to look for work because the casual employment that he had with Qantas came to an end.
The plaintiff has claimed a component of economic loss arising from the fact that it took him a year longer to complete his degree than normal and thus his entry into the permanent workforce was delayed for a period of twelve months. I have earlier in these reasons indicated that I accept that contention and it is now necessary to attempt to quantify the damages that should be awarded in respect of that aspect of the plaintiff’s claim for economic loss. I must take into account that during the twelve month period that an entry into the permanent workforce was deferred, he was in part-time employment and the amount thereby earned must be offset against what he might have earned had he been in full-time employment. It was contended by Mr Birchall, counsel for the plaintiff, that the measure of the loss is approximately $200 dollars net per week on the basis of comparison of his earnings when he was at Qantas and what he might have earned had he been in full-time employment. It is impossible to be precise about this aspect of the plaintiff’s claim but I think the $200.00 difference contended for is not unreasonable. In the written submission forming part of Mr Birchall’s final address, the claim is made for a period of 20 weeks and it is not clear to me why that aspect of the claim is confined to a period of 20 weeks rather than 52 weeks which represents the year of delayed entry into the workforce. I think that the sum of $10,000.00 should be allowed in respect of this aspect of the plaintiff’s claim. In addition, I award the agreed sum of $2,000.00 representing additional HECS fees and Union fees.

There is, in my view, no additional basis upon which damages for loss of earning capacity up to the date of trial should be awarded, apart from the period of employment with Foxtel. After the plaintiff lost his employment with John Martins he was, subject to the deferral of his entry into the workforce by a period of twelve months, in the same position as he would have been had the accident not occurred. In other words, I do not think it has been established that after March 1998, when his employment ceased with John Martins, until he gained employment with Foxtel, his inability to gain employment was attributable to the injuries that he had sustained in the accident. Rather, the gaps in employment were caused by ordinary market forces which apply to any person seeking either part-time or full-time employment in the workforce. To the extent that reliance has been placed upon availability of work from Mr Szeitz, for the reasons given previously, I do not think that the plaintiff would have taken up such work even if the accident had not occurred.
In arriving at my conclusions as to the measure of damages for past loss of earning capacity, I have taken into account the difficulties that the plaintiff obviously had in carrying out the employment that he had with John Martins, the Caltex service station, Qantas and Foxtel. Those difficulties in themselves did not generate an income loss.
I turn to the period of employment with Foxtel. When comparing the evidence of the plaintiff with the evidence of Mr Baker, his co-worker at Foxtel, it seems to me that some allowance must be made for the period of work at Foxtel because the limitations that the plaintiff experienced in relation to carrying out that work probably resulted in him earning less income than an able-bodied co-worker. It is difficult to know what sort of allowance should be made because the income was based on sales either by way of commission or by way of a retainer plus bonuses.
Mr Birchall put his submission as follows:-
“Baker has earned this financial year $24,269 gross with tax of $7,236 (427.22). Thus he has earned $17,033 net in 20 weeks.
In the same period the plaintiff has earned $15,968.00 gross, tax has been $3,852.00 giving a net of $12,116.00. This gives an average net wage of $605.00 per week.
The difference between Baker and the plaintiff is approximately $245.00 per week, although Baker will do better on tax adjustment for the motor vehicle allowance of $180.00 per week as his tax rate is considerably higher. Also, any other deductions will result in increasing his net at a higher rate than the plaintiff’s.
In addition to the above, the plaintiff has lost his cumulative sick leave which means that in the event of illness etc he does not have this to fall back on. He has also been paid holiday pay when in fact he was not on holidays so his earnings are higher than in real terms they should be. Note 48 hours annual leave paid in the week of 24 December 1999 and 40 hours annual leave in the week of 9 June 2000. Also 33 hours of annual leave paid on 25 August 2000. The total of annual paid is 121 hours. Of this amount 33 hours have been paid since 1 July 2000. In the week of 25 August 2000 the net wage was $533.50. The hourly rate was thus $13.33. There is thus a loss of $440.00 over any difference between Baker and the plaintiff, leaving aside any question of loss of sick leave. This amounts to a further loss to the plaintiff of $22.00 per week in the relevant period. Accordingly, it is submitted that the incurred losses are of the order of $245.00 per week, plus $22.00 per week, plus loss of sick leave entitlement.
To 16 November 2000 there have been approximately 59 weeks of work at Foxtel.
Accordingly, it is submitted that past economic loss at Foxtel is of the order of $275.00 per week net for 59 weeks or $16,225.00.
The plaintiff is entitled to interest at commercial rates on all incurred loss of earning capacity.”
For the 20 week period there is a weekly difference of approximately $245.00 net between the two. It is impossible to say who is the better salesman and for the purposes of this exercise I think I must assume that their respective talents in that regard are roughly the same. I also have to assume that the potential customers canvassed by the two of them gave rise to similar sales. In the light of the requirement to make such assumptions the assessment of damages for loss of earning capacity must necessarily be approximate. The figures provided by Mr Birchall in his written submissions are helpful as a check but cannot be used without a discount being made for the assumptions which underly the assessment.
A claim has been made for loss of superannuation benefits but the only basis for the assessment of such a claim is limited to an increase in the damages allowed for past and future loss of earning capacity. It has been put on the basis that because his ability to earn income has been diminished and that that will continue into the future, he has lost the benefit of additional employer contribution towards compulsory superannuation. No evidence has been called specifically in that regard but it has been submitted that I should make some allowance in both damages for past loss of earning capacity and future loss of earning capacity to reflect that loss. I think I can do no more than take that into account in a positive way when assessing those components of loss. I take this additional loss into account in respect of both those categories.
I think in these circumstances that an overall loss of something in the order of $200.00 per week for the 59 week period is justifiable. This produces the sum of $11,800.00 which I have rounded up to $12,000.00. I allow that sum for losses incurred during the plaintiff’s employment with Foxtel until the trial.
As to future economic loss, I think the net weekly loss of $200.00 (including the superannuation component) intrudes into the future, but not in the sense that the plaintiff will permanently be subject to such a financial loss. It is clear from his evidence that there is potential for advancement within the Foxtel organisation. The plaintiff said in evidence that his expectation was that he could advance his position by being promoted to a managerial position. There is no doubt in my mind that he is capable of performing well in respect of such a position and that his physical disabilities would not interfere with his performance of managerial duties to the extent that he earned less income than an able-bodied person in such a position. I think the probabilities are that he will advance to such a position by no later than the expiration of a period of two years from the date of trial. I must also take into account that he may not remain with Foxtel and that his loss of earning capacity may produce a greater financial loss. In those circumstances, I consider that an allowance of $25,000.00 should be made for future loss of earning capacity.
As to non-economic loss, I must assign a number between 0 and 60 to reflect the severity of the injuries and their consequences and multiply that by $1,450.00. I think the appropriate number to be assigned, in view of my findings relating to the nature and extent of the plaintiff’s injuries and disabilities is 7. I allow the sum of $10,150.00 for non-economic loss.
The plaintiff’s medical expenses have been largely paid but evidence was given of some unpaid expenses during the course of trial which are as follows:
“Panadeine - one packet per week at $1.85  $499.50
since the accident. 270 weeks x $1.85 (117.26)
Deep Heat etc, say 15 tubes at $6.00   $80.00
(118.27)
Voltaren Gel, say 15 at $19.00 (118.12)  $285.00
Skiing forfeited accommodation  $220.00
and Transport (120.37-121.07)   $50.00
Desk and Chair (130.21)  $420.00
See invoice Keen Office Furnishing with
respect to chair and desk.”
These total $1550.00 approximately. I allow that sum.
The plaintiff will incur medical expenses in the future but the extent and duration of that aspect of the plaintiff’s claim is quite indeterminate. I do not think it appropriate, as submitted by Mr Birchall, to allow for a weekly consultation plus the expenses of medication, nor do I think the calculation should be based on an actuarial figure for the remainder of the plaintiff’s life. The injuries sustained by him, although significant, were not serious and it is likely that the condition of the plaintiff’s neck and spine was degenerative at the time of the accident and that degeneration would have continued, particularly if he persisted with martial arts. In all the circumstances I think an allowance of $5,000.00 is appropriate.
In summary my assessment is as follows:
Non-economic loss  $10,150.00
Special damages   1,550.00
Future medical expenses   5,000.00
HECS and Union fees   2,000.00
Past loss of earning capacity   27,000.00
Future loss of earning capacity   25,000.00
  $70,700.00
I will hear counsel as to interest and costs.

[2001] SADC 22

23 February 2001