Ngo v Honing
[2003] WADC 62
•17 MARCH 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: NGO -v- HONING [2003] WADC 62
CORAM: MARTINO DCJ
HEARD: 18 & 19 SEPTEMBER 2002, 4 & 5 MARCH 2003
DELIVERED : 17 MARCH 2003
FILE NO/S: CIV 3281 of 2001
BETWEEN: BINH XUAN NGO
Plaintiff
AND
ROBERT HONING
Defendant
Catchwords:
Negligence - Motor vehicle collision - Defendant's van leaving shopping centre carpark and entering road on which plaintiff was driving his car - Apportionment
Damages - Personal injuries - Economic loss - Plaintiff and wife in business together
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943, s 3C
Result:
Defendant negligent
Plaintiff's negligence contributed to his injuries
Reduction of 10 per cent for contributory negligence
Damages assessed at $21,400
Award $19,260
Representation:
Counsel:
Plaintiff: Mr A S Stavrianou
Defendant: Mr B C Sierakowski
Solicitors:
Plaintiff: Simon Walters
Defendant: Brian C Sierakowski
Case(s) referred to in judgment(s):
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Sibley v Kais (1967) 118 CLR 424
Trigwell v Trigwell (1997) 18 WAR 83
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Mooney v Kinghorn & Anor (1996) 24 MVR 348
Tsakonakos v Hill (1989) 10 MVR 247
MARTINO DCJ:
Introduction
In the afternoon of 21 October 2000 the plaintiff was driving his Toyota Camry in a north‑east direction along Wiluna Street in Yokine. The Flinders Square Shopping Centre is on Wiluna Street, to the left of drivers travelling in the direction in which the plaintiff was travelling.
As the plaintiff approached the shopping centre the defendant drove his van out of the carpark of the shopping centre into Wiluna Street. The plaintiff's vehicle collided with the right hand side of the defendant's van.
The plaintiff claims that the motor vehicle accident was caused by the defendant's negligent driving and that he suffered personal injuries in the accident. By his defence the defendant denies that he was negligent and denies that the plaintiff suffered injuries. The defendant also contends that if the plaintiff suffered any injuries they were caused or contributed to by the plaintiff's negligent driving. In his closing submissions counsel for the defendant submitted that there was no doubt that the defendant had been negligent and that the issue on liability was the extent to which the plaintiff had been guilty of contributory negligence.
There was some inconsistency in the name of streets in the pleadings and in the evidence. This was caused by the fact that street names change in that area. In the statement of claim the accident is described as having occurred on Flinders Street, while in the defence it is described as having occurred on Wiluna Street. However there was no dispute about the actual location of the accident, which was on Wiluna Street. In his evidence the plaintiff said he entered Wiluna Street from lights on Charles Street, however Charles Street becomes Wanneroo Road shortly before Wiluna Street and the traffic lights are at the intersection of Wanneroo Road and Wiluna Street.
The accident
The accident occurred at approximately 2.15 pm. The weather was fine and visibility was good. The plaintiff had taken his wife to hospital at approximately 5 o'clock that morning for the birth of their fourth child. He was returning to his home to check on his three children. He was alone in his car. The plaintiff was familiar with the area in which the accident occurred.
The plaintiff entered Wiluna Street after having turned right from Wanneroo Road. Wiluna Street has two lanes running in each direction. Immediately to the north‑east of the entrance to the Flinders Square Shopping Centre carpark Wiluna Street has a third lane for cars travelling south‑west on Wiluna Street making a right turn into the carpark. To the south‑west of the carpark entrance there is a bus bay which enables a bus to stop without obstructing either of the lanes. Wiluna Street is a straight road from Charles Street to the entrance to the Flinders Square Shopping Centre carpark. The plaintiff estimated the distance from Charles Street to the entrance as being approximately 200 metres to 300 metres. Senior Constable B J Brandhoff, who arrived at the accident scene approximately an hour after the accident had occurred, estimated the distance at approximately 500 metres. Each person's evidence was only an estimate and I am unable to determine the precise distance and can conclude only that it is several hundred metres.
The plaintiff's evidence was that he was travelling in the left lane ie. the lane closest to the left side of the road and that as he turned into Wiluna Street from Wanneroo Road there was a car behind him and a car in the right lane slightly behind his. After entering Wiluna Street he accelerated to 60 kilometres an hour. There are two shopping centres on Wiluna Street, both were to the plaintiff's left as he was driving along the street. The first shopping centre is the Dog Swamp Shopping Centre.
The plaintiff drove past that shopping centre and approached the Flinders Square Shopping Centre. When the plaintiff's car was approximately five metres from the exit he saw the defendant's van. In his evidence‑in‑chief the plaintiff said that he saw a car coming from the carpark exit, that when he first saw the defendant's van he tried to avoid a collision and that he did not see the defendant's van stop before it entered Wiluna Street. However it was not clear from his evidence‑in‑chief where the defendant's van was when he first saw it (T24, T26 and T27). In cross‑examination the plaintiff's evidence on this issue was made clear. He did not see the defendant's van until it was already on Wiluna Street and he does not know whether or not it stopped before exiting the carpark (T102). The plaintiff's evidence was that he applied the brakes of his car and steered his car towards the right lane, but could not avoid colliding with the defendant's van. His evidence was that the collision occurred in the left lane. After the collision the plaintiff's vehicle rolled back into the exit from the carpark. The plaintiff was unable to say where the defendant's van came to rest after the collision.
The defendant intended to turn right into Wiluna Street and to travel in a south‑west direction on Wiluna Street, towards Wanneroo Road. Like the plaintiff the defendant was familiar with the area in which the accident occurred. The defendant had a passenger in the van with him. The van was a white, long wheel base van which ran on liquid petroleum gas. It did not have rapid acceleration.
The defendant's evidence was that he stopped at the exit from the carpark. There was a bus stopped in the bus bay to his right. The bus obstructed his vision to the right and so he waited for the bus to leave the bay before he entered Wiluna Street. Once the bus had left the bay and passed him the defendant looked in both directions. The road was clear on both sides and he entered Wiluna Street. The defendant crossed the first lane on Wiluna Street, he entered the second lane and approached the lane into which he would turn right. He looked to his left again to check the road was clear. He then looked to his right again and saw a dark greyish shape coming towards him. The defendant's evidence was that the collision occurred in the right lane ie. the lane closest to the centre of the road and that after the collision his car came to rest in the lane for vehicles turning right into the carpark. After the accident the defendant sat at the nearby bus stop. He saw that fuel was leaking from his van. A bystander turned off the LPG tank in his van.
The day after the accident the defendant made a written statement about the accident to give to the police. In that statement he did not refer to the presence of a bus in the bus lane. Mr Honing's evidence was that he did not refer to the bus in the statement because he did not think it important. Counsel for the defendant did not suggest to the plaintiff that there had been a bus in the bus lane, in fact, he suggested that there was no bus in the lane. The plaintiff agreed with the suggestion (T118).
After the accident the plaintiff and the defendant were taken to hospital. They travelled in the same ambulance. The plaintiff's evidence was that in the ambulance the defendant asked him how he was, told the plaintiff that he knew that the accident was the defendant's fault and apologised. The defendant's evidence was that he did not have any conversation with the plaintiff.
Senior Constable Brandhoff arrived at the accident scene after the plaintiff and the defendant had been taken to hospital. He prepared a report on the accident and drew a rough map of the scene. He had little independent recollection of the accident or the scene. On the map Constable Brandhoff marked two lines. Constable Brandhoff's evidence was that those lines are his representation of skid marks, although he could not recall seeing skid marks on the road. It was suggested to Constable Brandhoff that the marks might represent fuel stains, but he thought that unlikely, based upon his usual practice of sketching accident scenes. The drawing is not to scale and there was no evidence about the length of the skid marks, if that is what they were.
Opinion evidence of W J Apgar
The plaintiff called William Jack Apgar to give opinion evidence about the accident. Mr Apgar is an engineer who holds a Master of Science in Civil Engineering. He has experience in the investigation of motor vehicle collisions.
The evidence that the plaintiff wished to adduce from Mr Apgar is contained in his report dated 9 September 2002. Much of the opinion contained in that report was inadmissible, containing Mr Apgar's opinion on matters such as who was to blame for the accident and the extent to which the plaintiff was alert immediately before the accident. Counsel for the plaintiff conceded that much of Mr Apgar's opinion was inadmissible, and sought to tender the report to give evidence from Mr Apgar on only two matters: "... that the speed of impact was relatively low ... I estimate that the speed of impact was very approximately between 20 and 40 km/hr" and "The National Safety Council of WA indicates that for a speed of 60 km/hr the average stopping distance should be 37 metres for reaction and braking."
Mr Apgar's opinion on the speed of the plaintiff's car at the time of the collision was clearly a broad and very approximate estimate only. In cross‑examination Mr Apgar agreed that if the plaintiff had been travelling at 60 kilometres an hour and saw the defendant's vehicle when it was five metres away there would have been little, if any, reduction in his speed before the collision. The only conclusion I draw from his evidence is that the plaintiff was not travelling at a very high speed. I do not conclude from Mr Apgar's evidence that the maximum speed of the plaintiff's car at the time of impact was 40 kilometres an hour.
Findings as to accident
Both the plaintiff and the defendant were honest witnesses attempting to recall the circumstances of the accident as best they could. I find that the plaintiff entered Wiluna Street from Wanneroo Road and accelerated to approximately 60 kilometres an hour. In Wiluna Street the plaintiff drove his car in the left lane. At the time he entered Wiluna Street there was a car to his right slightly behind him and a car behind him in the left lane.
When the defendant approached Wiluna Street from the carpark he stopped his car at the exit. Although the plaintiff's evidence in cross‑examination was that there was no bus at the bus stop, there was no reference to a bus in the statement the defendant made the day after the accident and although his counsel does not appear to have been aware that the defendant saw a bus I accept the defendant's evidence that there was a bus at the bus bay when he stopped at the exit and that he did not mention it in his statement to police because he did not consider it important. I conclude that the plaintiff did not notice the bus present in the lane.
After the bus had left the lane the defendant entered Wiluna Street. Before doing so he looked in both directions. He did not notice the plaintiff's car because, although he looked in the direction from which the plaintiff was travelling, he failed to pay sufficient attention to the vehicles on Wiluna Street to notice the plaintiff's car.
Immediately before the accident the plaintiff was travelling in the left lane. He did not notice the defendant's van until it was on Wiluna Street. Initially the plaintiff's view was blocked by the bus, but once the bus had moved on the plaintiff would have been able to see the defendant's van which was stationary at the carpark exit. However the plaintiff failed to notice the van. When the plaintiff noticed the defendant's van it was close to him. The plaintiff estimated the distance at five metres and that was the approximate distance. The plaintiff attempted to avoid the collision by turning his car to the right and by applying his brakes, but was unable to prevent his car striking the right of the defendant's van.
The plaintiff's attempt to avoid the collision by turning to the right caused some change to his direction. The plaintiff's car moved towards the right lane before the collision and it is possible that it entered the right lane. In the heat of the accident neither the plaintiff nor the defendant would have been paying close attention to the lane in which the accident occurred and I am unable to conclude how far the plaintiff had moved to his right before the collision.
It is possible that in the ambulance on the way to hospital after the accident some general conversation about how the plaintiff was feeling took place between the plaintiff and the defendant, which the defendant does not now recall. I do not accept the plaintiff's evidence that the defendant said he knew that the accident was his fault. It may be that the defendant made a general statement regretting that the accident took place. I conclude from the defendant's evidence that he did not believe that the accident was his fault, and so it is unlikely that the defendant said that he knew it was his fault. English is not the plaintiff's first language and it may be that he misunderstood what the defendant said.
Liability for the accident
The concession made by the defendant's counsel that the defendant had been negligent was correctly made. The defendant had an obligation to exercise reasonable care to avoid a collision. His failure to see the plaintiff's car was the result of his failure to exercise reasonable care in observing where vehicles were on Wiluna Street before he entered it.
As the defendant was leaving a carpark entering a road he had an obligation to give way to vehicles on Wiluna Street: Road Traffic Code 1975, reg 606. However that obligation does not absolve the plaintiff from his obligation to exercise reasonable care: Sibley v Kais (1967) 118 CLR 424. The plaintiff did not see the defendant's van until it was on Wiluna Street, approximately five metres from his car. Initially the plaintiff's vision of the carpark was obstructed by a bus in the bus lane on Wiluna Street, but once the bus had moved on he had an unobstructed view. If he had been paying attention he would have seen the defendant's van and seen it move from a stationary position at the exit. If he had seen the defendant's van commence to move the plaintiff could have commenced to slow his van earlier than he did and he would have been in a position to avoid the collision. I conclude that the plaintiff's negligence contributed to any injuries suffered by the plaintiff.
The apportionment of liability between the plaintiff and the defendant involves a comparison of each person's culpability ie. of the degree of departure from the standard of care of the reasonable person and of the relative importance of the acts of each of the plaintiff and the defendant in causing the damage. It is necessary to examine the whole conduct of each party in relation to the circumstances of the accident: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492.
In my opinion both the degree of the defendant's departure from a reasonable person's standard of care and the relative importance of the defendant's conduct in causing the damage were greater than those of the plaintiff. The defendant's failure to notice the plaintiff's car travelling on a lane on the road he was to cross over was more culpable than the plaintiff's failure to see the defendant's van in the carpark. The entry of the defendant's van into the plaintiff's path was both more culpable and important in causing the accident than the failure of the plaintiff to control his car so as to avoid colliding with the van that crossed his path. I conclude that the appropriate apportionment is that the defendant bears 90 per cent of the liability for injuries suffered by the plaintiff in the accident.
The plaintiff
The plaintiff was born on 30 November 1957 in what was then South Vietnam. He went to school in Vietnam and left school at the age of 15 or 16. After leaving school the plaintiff served in the South Vietnamese army. He did not receive any vocational qualifications or training while in the army. The plaintiff's service in the army ceased on the re‑unification of Vietnam.
On leaving the army the plaintiff worked in his family's small grocery business for two to three years. He learnt to drive a truck, hoping to obtain employment as a truck driver. He obtained employment with a seafood company checking deliveries of seafood. He worked in that employment for approximately 2‑1/2 years.
There were difficulties for the plaintiff in Vietnam because he and members of his family had been in the South Vietnamese army and so the plaintiff decided to leave the country. He left Vietnam on his own in 1982 and travelled to a refugee camp in Indonesia. He remained in that refugee camp for approximately three years. The Australian government accepted the plaintiff as a refugee and he arrived in Perth in 1985.
When the plaintiff arrived in Perth he could not speak English. He initially lived in hostel accommodation for a few weeks where he did a course in English. The plaintiff's command of English remains poor. He gave evidence at trial through an interpreter.
Approximately two to three months after he arrived in Australia the plaintiff obtained employment cleaning a food hall. He carried out that work for approximately two months and then obtained employment at an air‑conditioning company where, after some training, his work was to weld pipes. The plaintiff remained in that employment for approximately 2‑1/2 years.
The plaintiff married in 1988. Shortly before his marriage he ceased his work at the air‑conditioning company and commenced business with his wife as tailors and dressmakers. The plaintiff had no training or skills as a tailor. He received some training from his wife. The plaintiff visited Vietnam in 1998 and while in that country he received three weeks' training as a tailor.
In 1989 the plaintiff commenced a part‑time business preparing and serving Chinese and Vietnamese food at a food hall. That business operated from Thursday to Sunday. The plaintiff continued to operate that business until 1992 when the building which housed the food hall was demolished for re‑development. The plaintiff then returned to working in the family tailoring and dressmaking business full‑time.
The plaintiff's hours of work were from 9 am to 5 pm Monday to Friday and from 9 am to 2 pm on Saturday, with some after hours work when the plaintiff and his wife could not finish all their work during their business' normal opening hours. The plaintiff estimated that he worked approximately 10 hours a day. The plaintiff's main tasks were to assist his wife. His wife has no formal qualifications as a tailor but has received training. She was also born in Vietnam, however she went to school in Australia to Year 12 and speaks English well. The plaintiff's wife looks after the books and paperwork of the business.
The plaintiff and his wife continue to carry on the business. Initially they carried it on from premises in Fitzgerald Street in North Perth, but they now carry it on from their home.
The plaintiff and his wife have four children. The first child was born in 1990. The youngest was born on the day of the accident.
The plaintiff's evidence as to the consequences of the accident
The impact of the plaintiff's car striking the defendant's van caused the plaintiff's chest to strike the steering wheel of his car. The plaintiff's evidence was that he felt pain in his chest, his back and his neck.
Since the accident the plaintiff has suffered sharp pain in his left chest, his back and his neck. He takes medication for his pain.
The inability of the plaintiff to be present at the birth of his child on the day of the accident distressed the plaintiff. He was present at the birth of his other children. Prior to the accident the plaintiff spent a lot of time with his older children, taking them to activities on weekends such as ice‑skating. The plaintiff's activities with his children have diminished substantially since the accident. He no longer takes them ice‑skating because he is concerned that because of his restrictions, if anything happened to his children, he could not do anything to help them.
The plaintiff participated in the sport of tae kwon do before the accident. The plaintiff's evidence was that the pain in his chest and back prevents him from engaging in that activity.
Prior to the accident the plaintiff and his wife participated equally in the work of the business, although his wife was responsible for the paperwork. They shared the profits of the business between them for the family as a whole and did not keep moneys separately from each other. Prior to the accident the plaintiff had agreed with his wife that on the birth of their fourth child he would take on the responsibility of running the business and his wife would be primarily responsible for the care of the children.
The plaintiff gave evidence that the pain he suffers restricts him in his work as a tailor because if he wants to change positions, such as from a seated to a standing position he must do so slowly otherwise it causes some pain. The business was closed for approximately a month after the accident and birth of the plaintiff's youngest child. When the plaintiff returned to work after that break he was able to work only four hours a day. He increased that to approximately 4‑1/2 hours to five hours a day by the commencement of the trial. The plaintiff and his wife have employed staff in the business to replace the plaintiff's labour.
The plaintiff gave the bulk of his evidence in September 2002. When the matter was re‑listed in March 2003 he was re‑called to give further evidence. His evidence was that his condition had improved a little since September and that he still works four hours a day and sometimes a little bit more than that. The plaintiff's hours of work had increased by half an hour a day since he gave evidence in September.
Prior to the accident the plaintiff suffered pain in the kidney area. Approximately two months after the accident he felt sharp pain in that area and received an injection from a doctor. After the injection he had not needed further medical treatment for symptoms in the area of his kidneys.
Treatment and examination of the plaintiff by medical practitioners
After the accident the plaintiff was taken by ambulance to Royal Perth Hospital where he was seen in the emergency department. At the hospital a doctor observed slight bruising over the plaintiff's right anterior upper chest and slight central chest tenderness. The plaintiff was given analgesics and he was discharged from the hospital with a diagnosis of a blunt soft tissue chest injury.
On 24 October 2000 the plaintiff attended at the surgery of his general medical practitioner Dr Kanungo, where he was seen by his Dr Gleave of that practice. Dr Gleave examined the plaintiff and found he was suffering from a tender chest wall. The plaintiff returned to Dr Kanungo's surgery on 30 October 2000 when he was seen by Dr Tin. At that consultation the plaintiff complained of a painful left chest. Dr Kanungo saw the plaintiff on 18 November 2000. The plaintiff informed Dr Kanungo that he was suffering left sided chest pain which was made worse on sneezing and also complained of pain in the left side of his neck and in the left paraspinous area of the upper lumbar region. The plaintiff has continued to see his general medical practitioner and to report pain in the chest area and his thoracic spine for which he has been prescribed analgesics. In 1997 the plaintiff was found to have kidney stones which cause left sided pain. The kidney stones are unrelated to the motor vehicle accident. The plaintiff has had treatment for the kidney stones but they have not been removed. In Dr Kanungo's opinion the plaintiff is fit for work. He considered that there had been inconsistencies in the plaintiff's complaints of symptoms and restrictions. Dr Kanungo recommended that the plaintiff undertake light physical exercise to build up his physical fitness.
On 15 October 2001 Dr John Saunders reviewed the plaintiff for assessment at the request of the Insurance Commission of WA. Dr Saunders is a medical practitioner who practises as a rehabilitation specialist. The plaintiff informed Dr Saunders that he was suffering symptoms in the area of his chest and in the movement of his left arm which restricted his capacity to work, engage in martial arts sport and take part in activities with his children. Examination of the plaintiff also showed some pain at the limit of movements of the neck. After his review of the plaintiff Dr Saunders was of the opinion that the plaintiff appeared to have suffered a soft tissue injury to his neck and lower chest wall. It appeared to Dr Saunders that the plaintiff had a significant excessive and abnormal injury disability conviction because there were discrepancies between the plaintiff's complaints and the objective clinical signs. Dr Saunders considered the plaintiff's main limitation to be his inability to maintain physical activities and he recommended that the plaintiff be enrolled in a physical activity program as he needed to be re‑educated in returning to full physical activity. Dr Saunders did not consider that the plaintiff was likely to suffer any permanent or partial disability in the future and he did not consider that his future working capacity would be compromised in any way.
Dr Saunders saw the plaintiff again on 24 October 2002. Dr Saunders found that there was a significant difference in the plaintiff's presentation on that day compared with his presentation on 15 October 2001. On the first occasion the plaintiff's clinical signs were limited with very little abnormality. On 24 October 2002 the plaintiff complained of pain in the neck, shoulders and back together with an inability at times to move the left shoulder. In Dr Saunders' opinion there were considerable discrepancies between the plaintiff's complaints and the objective clinical findings. A bone scan revealed that the plaintiff had some obstruction of the pelvicalyceal system in addition to a kidney stone. These conditions were likely to cause occasions of acute pain and probably chronic long term pain. Dr Saunders would have expected the plaintiff to have made a full recovery from his injuries within three months to six months. In Dr Saunders' opinion no objective clinical diagnosis could be made for the plaintiff's complaints of symptoms relating to his neck, chest, back or arm and there were no restrictions on the plaintiff's work capacity.
Mr Andrew Harper is a specialist occupational physician and public health medicine physician. Mr Harper saw the plaintiff on 22 November 2001 at the request of the plaintiff's solicitors. At that consultation the plaintiff told Mr Harper that his symptoms included left loin pain, left anterior chest pain, shortness of breath and a cough, fatigue, poor memory and mood changes. The plaintiff informed Mr Harper that prior to the accident he worked as a tailor eight hours to nine hours a day, but that at the time of the consultation he was tailoring from 9 am to 12 pm and in the afternoon he was resting intermittently and supervising an assistant. Mr Harper's opinion was that the plaintiff appeared to have suffered a direct injury to his chest wall in the motor vehicle accident which had resulted in ongoing symptoms of pain with shortness of breath and cough. In his opinion those symptoms restricted the plaintiff's capacity to work and his activities. The restrictions on activities were to avoid twisting, reaching up, reaching down, forward bending, prolonged standing and prolonged sitting.
Mr Harper saw the plaintiff on 6 February 2002. The plaintiff continued to have left sided pain which was closely related to the length of time for which he stood. The plaintiff's neck symptoms were improving. The plaintiff' left sided pain suggested to Mr Harper that the plaintiff was suffering from kidney stones. Mr Harper saw the plaintiff on 3 May 2002 and 5 September 2002.
At the last consultation the plaintiff informed Mr Harper that he was working approximately two hours in the morning and two hours in the afternoon, with a rest for two hours to three hours in the middle of the day. The plaintiff reported to Mr Harper that he was still suffering significant symptoms and restrictions.
In Mr Harper's opinion the plaintiff suffered a soft tissue injury to the anterior chest wall and a strain injury to his thoracic spine in the motor vehicle accident and the plaintiff is depressed. Mr Harper assesses the plaintiff as being capable of part‑time restricted work as a tailor doing approximately four hours' work a day with restrictions in time spent sitting, standing, reaching with the left arm, bending and lifting. Mr Harper expects improvements in the plaintiff's work capacity in time, but it may take a further two years or more for the plaintiff to regain his pre‑accident level of work capacity. He recommends that the plaintiff engage in a supervised rehabilitation program, counselling and ongoing care from his family doctor. Mr Harper also recommends that the plaintiff reduce his consumption of strong analgesic medication.
Mr Harper considers that the initial injuries suffered by the plaintiff were relatively mild in severity and agreed that symptoms from injuries of the kind and severity suffered by the plaintiff would normally be expected to settle within six months. Nevertheless Mr Harper considers that the plaintiff suffers symptoms and restrictions which were caused by the motor vehicle accident. In his opinion the plaintiff is one of a minority of people who take longer than normal to recover from the injuries he suffered.
The plaintiff's solicitors arranged for the plaintiff to see Dr Jack Edelman on 16 October 2002. Dr Edelman is a specialist rheumatologist medical practitioner. In Dr Edelman's opinion the plaintiff suffered soft tissue injuries that would continue to improve. He would ordinarily expect injuries of the kind suffered by the plaintiff to have improved sufficiently to enable him to return to full work duties within six months. The plaintiff's work capacity has been compromised in the short term but in the next six months or so he should improve enough to get back to work. In Dr Edelman's opinion an exercise regime would be worthwhile. The approximate cost of that regime would be $400.
Findings as to consequences of accident and award for non-pecuniary loss
I find that the plaintiff is an honest witness who is suffering the symptoms of which he complains. The symptoms of low left sided pain are likely to have been caused by his kidney stones and obstruction of the pelvicalyceal system, but the pain in the neck, shoulders and back and the restriction of movement of the left shoulder are, I conclude, caused by the injuries suffered in the motor vehicle accident. I accept that it is unusual for injuries of the kind suffered by the plaintiff to have caused symptoms to last for as long as they have in this case. I conclude that the plaintiff is one of a minority of people for whom the symptoms do last longer.
The plaintiff's symptoms have restricted the plaintiff's capacity to work in the family business. Prior to the accident the plaintiff was working approximately 10 hours a day. The plaintiff's estimates of his hours of work since the accident are approximations only. After the accident he was working approximately four hours a day. By September 2002 he was working approximately 4‑1/2 hours a day. By March 2003 he was working approximately five hours a day.
The plaintiff's symptoms are likely to gradually improve and to resolve within six months.
I prefer the estimate of Dr Edelman to that of Mr Harper because the plaintiff's injuries are soft tissue injuries which, for most people, would ordinarily have resolved by now. Although they have not yet done so the plaintiff's condition has improved and he has increased his hours of work. I also prefer Dr Edelman's opinion as to the most appropriate form of treatment for the future, namely an exercise regime. In my view with the improvement of the plaintiff's soft tissue injuries the treatment recommended by Mr Harper is unlikely to be required.
The award of damages to the plaintiff for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the most extreme case: Motor Vehicle (Third Party Insurance) Act 1943, s 3C; Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997. I assess the plaintiff's non‑pecuniary loss as being 7.5 per cent of the most extreme case. On that basis the award for non‑pecuniary loss is $6,000.
Economic loss suffered by the plaintiff
The plaintiff's income since the year ended 30 June 1997 has been as follows:
Year Ended Taxable Income After Tax Income
30 June 1997 $ 5,100 $ 5,100
30 June 1998 $ 4,004 $ 4,004
30 June 1999 $ 5,011 $ 5,011
30 June 2000 $20,718 $19,118
30 June 2001 $ 2,955 $ 2,955
30 June 2002 $ 6,832 $ 6,832
The plaintiff's wife's income over that time has been as follows:
Year Ended Taxable Income After Tax Income
30 June 1997 $16,819 $14,934
30 June 1998 $16,183 $14,699
30 June 1999 $17,370 $15,621
30 June 2000 $ 1,965 $ 1,965
30 June 2001 $15,947 $14,407
30 June 2002 $11,903 $11,050
For the years ended 30 June 1999, 2000, 2001 and 2002 the plaintiff and the wife have incurred a taxable loss on a residential property from which they have received rental income. The loss suffered by each of the plaintiff and his wife in those years has been $1,989, $1,412, $6,748 and $596.
In my view in order to assess the extent to which the plaintiff's injuries have been productive of economic loss it is necessary to look at the combined income of the plaintiff and his wife without reference to the loss incurred from the rental property. The reason why it is necessary to look at the combined income is that the plaintiff and his wife work in the business they own, they shared the work equally before the accident and as between themselves did not deal with the moneys received from the business separately. The combined taxable income of the husband and wife without the inclusion of the loss incurred from the rental property would have been as follows:
Year Ended Combined Taxable Income
30 June 1997 $21,919
30 June 1998 $20,187
30 June 1999 $26,359
30 June 2000 $25,507
30 June 2001 $32,398
30 June 2002 $19,927
The total of payments made by the business to contractors since the accident has been $30,692. The plaintiff has claimed that his loss of earning capacity for the past is that sum. However it is only the extent to which the plaintiff's injuries have been productive of economic loss for which damages for pre‑trial loss of earning capacity can be awarded, and it is only the extent to which those injuries will be or may be productive of economic loss in the future that damages can be awarded for post‑trial loss of earning capacity: Trigwell v Trigwell (1997) 18 WAR 83.
The accident occurred on 21 October 2000. The combined income in the year ended 30 June 2000 was $25,507. The combined income in the following year, which was the year in which the accident occurred, was $32,398. For the last financial year the combined income was $19,927. I cannot conclude that this reduction was entirely due to the plaintiff's reduction in capacity, due to the performance of the business in the previous year, the year in which the accident occurred. While the plaintiff has suffered and will, for the next six months, continue to suffer some economic loss as a result of his injuries it is not possible to assess that loss with any precision and it is necessary for me to make a broad assessment of the loss. On the basis of my findings of fact I assess the plaintiff's past and future loss of earning capacity at $15,000 inclusive of interest on the past loss.
Summary
The plaintiff is guilty of contributory negligence to the extent of 10 per cent. I assess his damages as follows:
Non‑pecuniary loss (7.5% most extreme case) $ 6,000
Future treatment costs (exercise regime) $ 400
Past and future loss of earning capacity $15,000
Total $21,400
After a reduction of 10 per cent for his contributory negligence the award in the plaintiff's favour is $19,260.
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