Parker v Ashley

[2001] NSWCA 220

CITATION:	Parker v Ashley [2001] NSWCA 220
FILE NUMBER(S):	CA 40377/00
HEARING DATE(S):	21 June 2001
JUDGMENT DATE:	5 July 2001
PARTIES :	William Charles Parker (Appellant) v James William Ashley (Respondent)
JUDGMENT OF:	Davies AJA at 1; Young CJ in Eq at 34; Grove AJA at 35

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC141/99
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL:	A: Mr J Hislop QC, Mr P Gormly R: Mr M Holmes QC, Mr D Maddox
SOLICITORS:	A: W R Harvey & Associates R: T A Murphy & Co
CATCHWORDS:	District Court - motor vehicle accident - whether damages excessive - nature and extent of injuries occasioned by relevant accident - whether earning capacity impaired to extent found by trial Judge - no point of principle
LEGISLATION CITED:	Motor Accidents Act, 1988, s 39
CASES CITED:	Medlin v State Government Insurance Commission (1995) 182 CLR 1
DECISION:	Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40377/00
DC 141/99

DAVIES AJA

YOUNG CJ in EQ

GROVE AJA

THURSDAY 5 JULY 2001


WILLIAM CHARLES PARKER v JAMES WILLIAM ASHLEY

JUDGMENT

1    DAVIES AJA: This is an appeal from the judgment of a judge of the District Court of New South Wales, his Honour Judge Delaney. In proceedings in which liability for a motor vehicle accident was conceded, his Honour awarded $465,986 to James William Ashley, the respondent.

2    Mr Ashley was born on 29 October 1954. He is married with two children, one of whom suffers from spina bifida. He has been the subject of a number of most unhappy occurrences. When only an infant of eleven months, Mr Ashley suffered meningitis which left him profoundly deaf. As a result of his deafness, he has not learnt to speak. He was nevertheless able to attend school and to be educated to a degree.

3    Despite his disabilities, Mr Ashley showed great spirit. In the 1960's, he undertook weekend jobs in a truck depot. In 1970, he took up sport, eventually playing representative basketball. He engaged in outdoor activities, including scuba diving and camping. He also became an active volunteer worker within the deaf sporting community. In 1972, when aged 17, Mr Ashley obtained work as a truck driver and thereafter, until the subject accident in 1996, he worked continuously in the field of transport, driving vehicles of all types, including buses, tourist coaches and road trains. In late 1993, Mr Ashley commenced employment as a truck driver with Lindsay Brothers Transport Pty Ltd ("Lindsay Bros") and was in that employment when the subject accident occurred on 26 February 1996.

4    In the middle of 1989, Mr Ashley had several sessions of physiotherapy from a Mrs Rhonda Wright for the treatment of neck pain. No significance appears to have been attached by the medical experts to the need for this treatment.

5    On 4 May 1994, when Mr Ashley was slowing down on approaching the toll gates on the M4 Freeway, his vehicle was struck from behind by a semi-trailer which was out of control. His vehicle was propelled forward into the cars in front. Mr Ashley's neck and back, particularly his lumbar spine, were jarred. He had two to three weeks off work.

6    On 19 June 1995, Mr Ashley was injured when trapped against a wall by a pallet of goods. He consulted Dr Carroll, a general medical practitioner, who diagnosed, inter alia, a muscle tear in the left lower thoracic region and restricted spinal facet joints. Mr Ashley was also treated for back and neck problems by the physiotherapist, Mrs Wright. He returned to work on 24 July 1995.

7    Mr Ashley suffered a third injury on 25 October 1995, when lifting a heavy article at work. He suffered neck strain and was treated by Dr Carroll with manipulation. He was still off work when, on 18 November 1995, he suffered pain in his neck whilst mowing his lawn. Dr Carroll spoke of the event as a muscle spasm.

8    Dr Carroll considered that Mr Ashley had fully recovered. Mr Ashley returned to work on 27 November 1995, but took lengthy Christmas holidays and commenced work on 8 January 1996. Mr Ashley gave evidence that he had no problem driving trucks when he returned to work.

9    A fifth injury occurred on 26 February 1996. This was the accident which was the subject of the proceedings before the trial Judge. It appears that Mr Ashley was seated in a truck parked at the side of the road when his vehicle was struck from behind by another truck. It was a major collision. The impact was severe. On this occasion, as in the case of the accident on 4 May 1994, the driver of the offending vehicle was charged with offences. It appears that alcohol was involved in both accidents. Since this accident, Mr Ashley has had continuing problems with his neck and spine.

10    On 27 February 1996, Mr Ashley saw Dr Carroll who noted pain in the suboccipital, low neck, interscapular and left calf regions and various facet joint restrictions. Dr Carroll performed manipulation on 29 February and 4 March. Mr Ashley saw Mrs Wright, the physiotherapist, on 5 March. She particularly noted pain in the right scapula - the source of which might be the cervical and/or thoracic spine - and severe pain in the left hip. Mrs Wright performed six daily treatments. On 10 April 1996, an X-ray was taken of Mr Ashley's left hip but no abnormality was shown.

11    On 29 April 1996, Mr Ashley returned to work as a truck driver with light duties. However, due to the pain which ensued, he was unable to manage the work. Within days of returning to work he suffered left hip pain on lifting. He ceased work on 2 May 1996 and has not since engaged in remunerative employment.

12    Mr Ashley saw Dr Carroll's locum on 3 May 1996 concerning the hip pain. On 4 June 1996, Mr Ashley saw Dr Carroll for recurrent neck and lumbar pain. Dr Carroll noted multiple facet restrictions in the neck and lumbar area with muscle spasm. Mr Ashley was treated on that day for the neck. Dr Carroll performed manipulation of the lumbar spine on 6 and 13 June, 1, 10 and 23 July, 31 August and 30 September 1996. Mrs Wright performed physiotherapy on 19, 22, 23, 24, 25 and 29 July 1996. Due to persistent pain, Mr Ashley was referred to Dr Rosenberg, an orthopaedic surgeon.

13    Over subsequent years, Mr Ashley suffered considerable pain arising particularly from the cervical and lumbar regions of the spine. He had psychological and sexual problems. However, he sensibly took an active role in the NSW Deaf Sports and Recreation Association. He did not allow his problems to overcome him. By the middle of 1999, he had shown considerable improvement and could undertake many light activities without pain. Nevertheless, permanent restrictions on his capacity to work remained.

14    Mr Ashley gave evidence that his major problems flowed from the trauma of the accident on 26 February 1996. In cross-examination, he gave this evidence:-

"Q. Is it the case that before the February '96 motor vehicle accident you were having considerable problems with your spine, your neck, your thoracic spine and your lumbar spine?
A. No.
Q. Well you had certainly required treatment, medical treatment, to those areas from time to time before the February '96 accident, didn't you?
A. No, but it wasn't the same injury. It's very different, it's very, very different. They were, like, short little injuries that went away but the February 26 injury was a major injury, like those previous ones were like strained muscles, a lot of drivers go through things like that and they travel right throughout your body, but not like the February 26 accident."

15    The trial Judge found that Mr Ashley's ongoing problems arose from the accident in February 1996. He specifically rejected a submission put to him, and repeated in this appeal, that Mr Ashley's problems in the lumbar spine arose from the lifting incident after he returned to work in late April 1996. I agree with the trial Judge that the evidence, as a whole, is inconsistent with that submission.

16    The trial Judge held that, although Mr Ashley had had prior problems, including mild degeneration of the spine, the February 1996 accident was a material cause of Mr Ashley's pain and disability. His Honour applied the principles enunciated by Deane, Dawson, Toohey and Gaudron JJ in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6-7. His Honour's conclusion was well founded on the evidence before the Court.

17    I need not discuss the medical evidence. The medical reports were generally consistent, save that of Dr I J Bryan, an orthopaedic surgeon, whose contrary opinion was not pressed in the appeal. The substance of Mr Ashley's condition was described by Dr W G Donaldson, an orthopaedic surgeon, in these terms:-

"This 44 year old heavy truck driver who is profoundly deaf and mute suffered similar injuries in road traffic accidents on 4th May, 1995 and 26th February, 1996 wherein on each occasion he seems to have suffered an acute musculoligamentous strain of his neck and lower back superimposed upon some slight changes of degenerative spondylosis in the lumbar region no doubt caused by a lifetime of heavy labouring work. His symptoms have been slow to settle, however, despite seemingly adequate physiotherapy and medication he has had in the past. He has also experienced ongoing discomfort about the side of his left hip which is akin to the complaint of trochanteric bursitis which can occur spontaneously in older somewhat obese women for which he has had some injections of cortisone locally without, by his account, any relief. This is a condition that generally resolves itself with rest, the application of heat and antiinflammatory medication. … If physiotherapy in the past has not already relieved his symptoms I see little benefit to be gained by further regular ongoing attendance for manual treatments. He should continue to practise spinal exercises to mobilise his neck and back when his spine feels stiff.
He thought the force of the first accident was more substantial than that of the last but obviously each has contributed to his ongoing complaints. You have asked me to apportion blame as best as I can. It would be an educated guess of mine to say that perhaps the second accident is responsible for 55% of his current problems and the first accident for 45% for he was able to work after the first accident but he has not been able to continue to do so since the second accident and he has also had further pain about the left hip which was not present after the first though he had not fully recovered from the first accident by the time he had strained his back in other incidents at work and again in the second motor accident."

18    Professor Robin J E D Higgs, an orthopaedic surgeon, and Dr Joan Chen, a consultant physician in occupational medicine, also agreed that Mr Ashley suffered a musculo-ligamentous sprain of his cervical and lumbar spine due to the February 1996 accident and that the left hip pain could be attributed to trochanteric bursitis. Dr Chen queried whether the bursitis was due to the February 1996 accident. However, the fact that Mrs Wright noted and treated the left hip pain in March 1996, that the left hip was X-rayed on 10 April 1996 whilst Mr Ashley was off work and that the pain in the left hip flared up again after returning to work in late April, suggests a connection with the February 1996 accident.

19    The trial Judge reached the conclusion that Mr Ashley was a truthful man and that the history showed that, prior to suffering the injuries I have mentioned, Mr Ashley had not been a person who had avoided seeking and obtaining work. His Honour pointed to the fact that, between 1972 and 1996, Mr Ashley had been continuously engaged in the work-force. The trial Judge mentioned that Mr Ashley had been proud of his achievements. Truck driving had been his passion. The trial Judge rejected the submission that Mr Ashley had been malingering or exaggerating his problems. He also rejected a submission that a videotape of Mr Ashley's activities, which had been taken surreptitiously, was in any way inconsistent with the description of the disabilities which Mr Ashley gave in his evidence.

20    Having accepted that Mr Ashley was genuine in his complaints, the trial Judge understandably rejected Dr Bryan's view that Mr Ashley did not suffer the pain and disabilities of which he complained.

21    Since leaving work on 2 May 1996, Mr Ashley has not engaged in remunerative employment. Although Mr Ashley's physical disabilities, which may have been enhanced by a post-traumatic stress disorder from which he also suffered, are not in themselves major disabilities, they do prevent his returning to truck driving of the type in which he had been engaged prior to the accident in February 1996. They also prevent him from undertaking any heavy labouring work or lifting and even from sitting for any great length of time. Although Mr Ashley is able to drive, he must take frequent breaks. The trial Judge concluded:-

"… Dr Carroll, Dr Higgs and Dr Mastroianni all say that he is unfit for his pre-accident employment and I accept those opinions. I accept those opinions on the basis of the pain and discomfort that he has, the difficulties with his headaches and restriction of concentration, and I find that [he] is now totally and permanently unable to work as a truck driver, or to work in the driving industry in any capacity where any need for communication is required."

That finding was well based on the evidence which the trial Judge had before him.

22    The principal problem with respect to employment is not that Mr Ashley would not have the physical capacity to undertake certain remunerated employment if it were offered to him but that, because he is deaf and unable to speak, there are very few avenues of work which are in fact available to him. Mr Ashley is a bad risk for compensation. He cannot undertake activities that involve a telephone or radio or communication with people who are not able to use sign language. Moreover, he has worked and has preferred to work out of doors. He has no interest in clerical work and has only a limited ability to use a computer. In the light of all these factors, Mr Ashley is, as the trial Judge found, virtually unemployable.

23    A vocational assessment report by the Commonwealth Rehabilitation Service, dated 16 May 1997, referred to Mr Ashley's capacity to do several types of work but went on to say:-

"I also made contact with Graham Weir, Deaf Consultant Blacktown CRS. Graham advised me that most profoundly deaf people work in trades and labouring positions. He further noted that very few have the required quality of literacy skills to handle office based work in a hearing work environment. He also added that many deaf people find it stressful to communicate in a hearing work environment and prefer to work in a deaf working environment. He suggested that I contact Deafness Resources Australia (Ph. 9204.2970) at Parramatta for job availability.
I telephoned Deafness Resources Australia and they informed me that they have no positions available at the present. They employ hearing and deaf people in a clerical positions and computer usage is a high component of the job, though not mandatory to obtain the job as on the job training is provided. The person I spoke to did not know when they would next be recruiting as it depended on when positions become vacant.
Given the restrictions imposed upon Mr Ashley by his deafness, back injury, post traumatic stress it will be difficult for him to seek employment in the open labour market. Added to this is his extreme motivation to work for the deaf community and reluctance to seek employment elsewhere at this time. Therefore it will be necessary to investigate whether the insurance company are willing to allow Mr Ashley to work in a voluntary capacity with a potential to obtain a grant at a later date. Mr Ashley forwarded a contact name for assistance with paid employment and grants (it is recorded in the recommendations)."

24    That report noted that most profoundly deaf people work in outdoor occupations and that very few have the skills or personality to handle office based work in a hearing work environment. This comment very much reflected Mr Ashley's background. The report also referred to the very restricted opportunities there were for remunerated employment. At the time the report was written, no such work opportunity in organisations which assist deaf people had been identified.

25    Other parts of the report, which I have not mentioned, referred to the fact that Mr Ashley's best avenue for employment was within the deaf community. Mr Ashley had, for some years, been working on a voluntary basis in the NSW Deaf Sports and Recreation Association, of which he is presently Chief Executive Officer. Mr Ashley was hoping that the Association would be able to provide paid employment if Government funding became available. The report noted that there was a potential for that to occur.

26 Mr Ashley has indeed shown reluctance to seek remunerated employment. However, he was, until 3 March 1999, still an employee of Lindsay Bros. Mr Ashley gave evidence that he was reluctant to seek other employment whilst he was still working for Lindsay Bros. Counsel for the appellant has raised the issue arising under s 39 of the Motor Accidents Act, 1988 and has submitted that Mr Ashley failed to mitigate his loss. This particular submission was not in fact raised in the notice of appeal and does not appear to have been raised before the trial Judge. In any event, I would not conclude that Mr Ashley failed to take any step that he ought to have taken. The step which he did take, of working up to 30 hours a week on a voluntary basis for the NSW Deaf Sports and Recreation Association, seems to have been well suited to him and the most promising step which he could take with a view to obtaining future employment. His position as Chief Executive Officer of that Association at least makes him well known in the deaf community and gives him an opportunity to benefit from any Government grant which may be given to assist the Association, or, in the event that that does not arise, to obtain whatever employment is available for deaf workers.

27    I turn now to the question of damages. On the issue of non-economic loss, the trial Judge allowed $82,000, being 32 per cent of a most extreme case. It has been submitted on behalf of the appellant that the injuries sustained by Mr Ashley on 26 February 1996 and their sequelae were not significant, that Mr Ashley did not complain of injury at the accident scene and was not conveyed to hospital. It was said that Mr Ashley's signs of disability, if any, were minimal, that Mr Ashley was not on medication or in receipt of treatment, that, on any view of the medical evidence, the injuries were musculo-ligamentous in nature only, and that the surveillance video had demonstrated a significant capacity. It was submitted that there was no proper basis for the conclusion of the trial Judge that the injury had destroyed Mr Ashley's whole lifestyle and that compensation at the level of approximately one-third of a most extreme case was out of proportion to the injuries which Mr Ashley had suffered.

28    In my opinion, the allowance made by the trial Judge was fully justified. The trial Judge said:-

"The effect of this injury on this plaintiff has been to destroy his life; to destroy his aspirations and to destroy his interests and undermine his confidence in himself, as well as the effect it has on him being able to provide for his family."

29    This comment by the trial Judge was sound. The accident turned Mr Ashley from a person who was employed as a truck driver, a fact of which he was extremely proud, into a person who could not obtain remunerated employment. Mr Ashley had been an active sportsman, particularly in basketball, and had been active in many outdoor activities. Mr Ashley gave evidence that, since the accident, apart from the work that he did for the NSW Deaf Sports and Recreation Association, "All I do is sit at home and twiddle my thumbs". He has had sexual problems because of the pain which he suffered during sexual intercourse. He has been unable to mow the lawn, having to leave that to his wife who, in addition to her activities in and around the home, including looking after the children, has had to earn the family income. The change in Mr Ashley's lifestyle, the effective destruction of his ability to obtain remunerated employment and the diminishment of his standing in his family have had a very substantial effect upon him. The trial Judge's assessment was a discretionary assessment which appears to me to have been well within the range available.

30    On the issue of future economic loss, the trial Judge assumed Mr Ashley would have worked to age 65. He, therefore, made allowance for nineteen years. The trial Judge commenced with a net wage loss of $584. His Honour reduced that to $450 per week, a reduction of 23 per cent. His Honour then increased the usual allowance for vicissitudes by 10 per cent, giving a discount of 25 per cent. The final figure was $220,000. It will be noted that the total discounts amounted to a little under 50 per cent.

31    In my opinion, there was no error in his Honour's approach to the assessment of this issue. His Honour had to make allowance for the possibility that Mr Ashley might obtain remunerative employment in the future. His Honour had to make allowance for the fact that, even had he not had the accident on 26 February 1996, Mr Ashley may have suffered problems in the cervical, thoracic and/or lumbar regions of his spine. In my opinion, the discount which his Honour allowed was well within the range of his Honour's discretion.

32    Counsel for the appellant raised the point that there was a medical report by Dr T Mastroianni, dated 28 August 1998, which referred to a complaint by Mr Ashley that he had problems with his left knee, ankle and foot as a result of the motor vehicle accident. Dr Mastroianni said that, at the time of the report, Mr Ashley was unfit for any work due to the acute left knee condition, which was inflamed. The submission was put that allowance should be made for these conditions which, in themselves, rendered Mr Ashley unfit for work. The trial Judge found that these conditions were not related to the accident. However, as the trial Judge pointed out, the only reference to these complaints was in Dr Mastroianni's report. No mention of them was made in any other report or in the oral evidence which was given. His Honour made no allowance for the conditions. Having regard to the fact that it was not shown that the conditions had anything but minimal significance, there was no cause to make an allowance.

33    In the circumstances, I would dismiss the appeal with costs.

34    YOUNG CJ in EQ: I agree with Davies AJA.

35    GROVE AJA: I agree with Davies AJA.

**********