Pavy v Carvel
[2000] WADC 301
•23 NOVEMBER 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PAVY -v- CARVEL [2000] WADC 301
CORAM: COMMISSIONER MARTINO
HEARD: 26, 27, 28 APRIL 2000
DELIVERED : 23 NOVEMBER 2000
FILE NO/S: CIV 4782 of 1998
BETWEEN: MICHAEL JOHN PAVY
Plaintiff
AND
MATTHEW PAUL CARVEL
Defendant
Catchwords:
Damages - Personal injuries - Motor vehicle accident - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Damages assessed at $100,763
Representation:
Counsel:
Plaintiff: Mr T Lampropoulos
Defendant: Mr P R Momber
Solicitors:
Plaintiff: Simon Walters
Defendant: Peter Momber
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
COMMISSIONER MARTINO:
Introduction
This action came on for hearing for an assessment of damages for personal injuries claimed to have been suffered by the plaintiff in a motor vehicle accident on 13 October 1997. The defendant has admitted that the accident was caused by his negligent driving.
The plaintiff
The plaintiff was born on 30 June 1975 and lives at Gidgegannup. He completed year 12 of his secondary education.
After leaving high school he worked at a goat dairy for approximately three years doing general farm hand duties. Towards the end of that three years he commenced working on a marron farm, again doing general farm hand duties. He remained working on the marron farm for approximately two to three years.
In January 1996 he commenced working for Aquaculture Earth Moving as a machine operator. He remained there until June 1996. He operated an excavator to build marron and fish ponds on farming properties. From approximately September 1996 to December 1996 he worked as a machine operator with the East Metropolitan Regional Council. He ceased that employment to become self employed. He obtained a bank loan in the sum of $60,000 and bought into the business of Aquaculture Earth Moving. That business was restructured as Aquaculture Earth Moving Pty Ltd, the plaintiff owned one share of the company and was a director of it. The other share was owned by Brett Geddes O'Brien who was also a director of the company. Mr O'Brien has a Bachelor of Science and a Master of Science in research. He has an interest in the development and operation of marron and fish farms and he carries on other businesses in commercial aquaculture development and environmental consultancy. The arrangement between the plaintiff and Mr O'Brien was that the plaintiff operated the earthmover owned by the company and handled the day to day administration. In his other businesses Mr O'Brien would design marron and fish farms. Aquaculture Earth Moving would then build the farms that Mr O'Brien had designed.
On the plaintiff acquiring an interest in the business of Aquaculture Earth Moving it had one excavator. The plaintiff was paid wages for operating the excavator and his supervisory duties. The amount of his wages was dependant upon the number of hours worked. He also received a 50 per cent share of the dividends in the company.
The plaintiff commenced work as working director of the company in the week ended 10 January 1997. The business of the company is seasonal with demand being highest in summer. The plaintiff worked from January 1997 until 30 June 1997. He then ceased operating the excavator because of a lack of work. From that time he was involved in general maintenance and servicing of the excavator and he constructed a couple of ponds on his parents' Gidgegannup property. He was about to recommence operating the excavator when he was involved in the motor vehicle accident on 13 October 1997.
The motor vehicle accident and its consequences
On 13 October 1997 the plaintiff was a back seat passenger in a motor vehicle being driven by his father on Reserve Road, Gidgegannup. His mother and two sisters were also in the vehicle with him. The vehicle in which he was travelling collided head on with a vehicle being driven by the defendant.
The plaintiff was taken by ambulance to Royal Perth Hospital. At the hospital he reported pain in the chest and right ankle. He was examined and found to have minor abrasions on the chest, sternal tenderness, several abrasions on the abdomen and tenderness at the right ankle. X-rays were taken and no fractures were seen. He was assessed as having suffered abrasions and soft tissue injuries, he was supplied with analgesics and discharged.
On 16 October 1997 the plaintiff attended upon the surgery of his general practitioner Dr Caravella where he saw Dr Brindle. He attended because of ongoing chest pain from the motor vehicle accident Dr Brindle provided him with analgesics.
In October 1997 the plaintiff began using the excavating machine at home. He used it to put gravel into a truck. The truck held two bucket loads. The plaintiff drove the truck to take the gravel to the driveway. He carted approximately 10 truckloads. He tipped out the loads onto the driveway. The loads were then levelled out by a tractor. The plaintiff did some of this levelling out. Approximately 100 metres of driveway was covered. The job took one day.
On 1 November 1997 the plaintiff saw Dr Caravella. He reported that he was still experiencing pain in the neck along with pain in the thoracic spine region which he said was worse at night and first thing in the morning and was aggravated by work on his excavator machine. This work was the work at his home. He had not by then recommenced work for Aquaculture Earth Moving. He also said that he was having some persisting anterior chest wall pain and that his symptoms meant that he had been able to work only part time since the time of the injury. The examination by Dr Caravella revealed moderate restriction of movements in his neck and the thoracic spine region along with tenderness in the same spinal segments.
Although Dr Caravella has recorded on 1 November 1997 that the plaintiff was still suffering from chest pain in fact this was the first occasion that he had complained to a medical practitioner of neck pain. The plaintiff's explanation was that once the neck and other pains started settling he started to appreciate his neck pain. I accept this as a reasonable explanation of what occurred.
On about 7 November 1997 the plaintiff recommenced doing excavating work for his company. He found difficulty doing his work due to the pain he was suffering. This pain restricted the time he could work and his efficiency.
The plaintiff continued to see Dr Caravella who referred him to Mr T Berrigan, a consultant in pain management and anaesthesia. Mr Berrigan first saw the plaintiff in May 1998. The plaintiff's main problems at that time were neck pain and headaches. Mr Berrigan thought the plaintiff had sustained a typical whiplash or acute spinal strain injury in the accident. He did not think it was too severe and he thought the prognosis was good and that the plaintiff should settle within a fairly reasonable period of time. He performed nerve blocks on the plaintiff's occipital nerves. On 16 June 1998 Mr Berrigan performed facet blocks at the C2/3 level of the spine. On 20 August 1998 Dr Berrigan prescribed the use of a TENS machine. These treatments did not provide any lasting relief of the plaintiff's symptoms.
The plaintiff changed his general medical practitioner. He commenced seeing Dr C Turner on 6 August 1998. The plaintiff's evidence in par 42 of his statement of evidence (Exhibit 4) that he commenced seeing Dr Turner in around November 1998 is not correct as appears from Dr Turner's report dated 19 November 1998 (p 42 of Exhibit 1).
Dr Whiteside is a general medical practitioner who practices in the field of the treatment of acute and chronic pain. The plaintiff saw Dr Whiteside on 8 October 1998. In his statement the plaintiff said at par 35 that Dr Caravella referred him to Dr Whiteside, that is not correct as appears from Dr Whiteside's report dated 8 October 1998 (p 8 of Exhibit 1). The plaintiff informed Dr Whiteside that he was suffering headaches and also pain over the right upper buttock and an aching pain into the leg. That was the first occasion on which he complained of buttock and leg pain after the accident. Dr Whiteside injected procaine into the plaintiff's muscles in his neck, spine, shoulder, right hip and leg. This was a very painful procedure. The plaintiff had several of those injections. His right hip and leg pain had ceased by the end of 1988, however he continued to suffer head and neck pain.
Dr Whiteside referred the plaintiff to Mr Phillip Hardcastle, a medical practitioner in the field of orthopaedic and spinal disorders. Mr Hardcastle saw the plaintiff on 22 January 1999. At that time the plaintiff's main problem was headaches. Dr Whiteside's treatment had relieved the plaintiff's right hip and leg pain and it was a fairly minor problem. Dr Hardcastle recommended that the plaintiff undergo an isometric exercise programme and use analgesics intermittently.
The plaintiff receives chiropractic treatment from Mr P Bryner every now and then and does some self massage to his neck. He avoids activities which trigger his pain. When the pain is triggered off he rests. He tries not to take pain killers too much.
The effect of the plaintiff's injuries on his working activities
As I have mentioned did some earthmoving activities at home in October 1997. He recommenced work with Aquaculture Earth Moving on 7 November 1997. He was doing the same excavating work as he had been doing prior to the accident. He found that pain restricted his capacity to work, both the hours he could work without a break and his efficiency. In about June 1998 he began to reduce the hours he worked and to employ or contract others to do the excavating work he would have done if he had not been injured.
In September 1998 the plaintiff went into a dredging business called Mud Suckers with two partners. This involved operating a dredge on a floating pontoon. The plaintiff did a couple of jobs on the dredge but found that he could not leave the operators and diggers for Aquaculture Earth Movers without supervision. One of his partners in the dredging business took over and employed a driver for the dredge. The plaintiff still has a share in the business but no longer has any active involvement in it.
In the 1998/1999 financial year Aquaculture Earth Moving commenced doing work under a contract which was different from the construction of the marron and fish farm ponds that it had previously been doing. Under that contract it worked on the construction of the Burswood Golf Course. This was a much larger job than previously done and was work of a different kind to that with which the plaintiff was familiar. The company made a loss that financial year of $36,124. Because the company was working in a field with which its principals were not familiar and on which it underestimated the cost of the works it is difficult to assess the extent to which the plaintiff's restrictions were productive of economic loss.
The future of the plaintiff's condition
There is a range of views as to the future of the plaintiff's condition. The plaintiff is pessimistic about his prospects of returning to work on an excavator.
In Dr Whiteside's opinion the plaintiff is permanently restricted to work of a supervisory nature and he is unlikely to be able to return to work as a driver of heavy earthmoving equipment.
In his report dated 16 February 1999 (p 34 of Exhibit 1) Mr Hardcastle expressed the opinion that the plaintiff had suffered a tear in the posterior aspect of C5/6. That opinion was expressed after having seen the results of an MRI scan. In his report dated 24 March 2000 Mr Hardcastle did not refer to any such tear. He explained that the reason for that was that the plaintiff was no longer troubled by significant pain in that area (Transcript p 129 – 131).
In Mr Hardcastle's opinion the plaintiff would be fit for light duties occupations for the foreseeable future and after the age of 50 he will have to reduce his working time by approximately 30 per cent.
In his report dated 6 April 2000 Dr Turner (p 43 of Exhibit 1) expressed the opinion that for the foreseeable future the plaintiff will be unable to drive an excavator or do heavy lifting.
Mr Berrigan, in his report dated 5 April 2000, (p 49 of Exhibit 1) expressed the opinion that in time the plaintiff's spinal symptoms will settle, although that may take several years. In his opinion the plaintiff should then be able to return to machinery operating. He estimated that the plaintiff's work capacities would be compromised for up to three years.
The plaintiff's solicitor arranged for the plaintiff to be seen by Professor A C Harper, occupational physician. In his report dated 31 March 2000 (p 29 of Exhibit 1) Professor Harper expressed the opinion that the plaintiff's work capacity would gradually improve in future years and that the plaintiff has a reasonable chance of returning to normal work capacity in the long term but may continue to be restricted for a further two, three or more years.
The defendant's solicitor arranged for the plaintiff to be reviewed by Mr N C Anastas, orthopaedic surgeon. In his report dated 4 April 2000 (Exhibit 3) Mr Anastas expressed the opinion the plaintiff could gradually return to full time work operating an excavator.
I accept the evidence of Mr Berrigan and Professor Harper. I conclude that the plaintiff is presently unfit for work as an excavator driver and is likely to remain so unfit for a further period of approximately three years. I have come to this conclusion primarily upon the evidence of Professor Harper. Professor Harper's expertise is in the area of a person's functional capacity including work capacity. He gave his evidence in a manner which indicated that he was balanced in his views.
The effect of the injuries on the plaintiff's earnings and earning capacity
I am satisfied that the plaintiff's injuries have caused significant restrictions in the plaintiff's capacity to work in that they have prevented him from working as an excavator operator. However it is difficult to determine the extent to which these restrictions have been or will be productive of economic loss. There are two reasons for that difficulty. The first is that the plaintiff had only been working as a director of Aquaculture Earth Moving from January 1997 when he suffered his injuries on 13 October 1997 so there was no full year's earnings history that can be used as a guide. The second reason is that in the 1998/1999 financial year the company worked on the Burswood Golf Course contract, which was an area of work with which it was not familiar and which made a loss. That loss was the company's loss and not the plaintiff's but it does mean that the company is unlikely to continue with that line of work and so it is difficult to know whether the amount of excavator machine operating time in that year is representative of likely future operating time.
There is no evidence the plaintiff suffered any loss prior to June 1998 and no claim for loss in the period from the accident to June 1998 had been made in the plaintiff's schedule of past loss. The claim in that schedule is for $59,533 gross which is the total of amounts paid to other excavator operators: par 58 and par 63 of the plaintiff's statement exhibit 4.
However in my view it is necessary to deduct from that sum the amount actually received by the plaintiff for supervisory duties. That is because if not for his injuries the plaintiff would have operated the excavator and would not have been paid a supervisors wage, only an operator's wage: par 66 of the plaintiff's statement exhibit 4.
In that paragraph the plaintiff has expressed the opinion that as a result of this increasing wages costs the company's net profit has been reduced so dividends payable to him would have been reduced. I am not prepared to allow any claim on this basis and indeed no such claim is made in the plaintiff's schedule of past loss. The reasons for my not making any allowance are that any such loss is the company's and not the plaintiff's and because the company's loss in the 1998/1999 financial year was the result of its Burswood Golf Course contract.
I assess the plaintiff's loss of earnings for the period from June 1998 to trial at the end of April 2000 as follows:
| Gross amount paid to contractors and employees | $59,533 |
| Less amounts paid to plaintiff (par 59 and par 63 Exhibit 4) | $22,070 |
| Balance | $37,453 |
| Less 25 per cent being the approximate amount of income tax payable | $ 9,365 |
| Balance | $28,098 |
This is for a period of approximately 22 months and equates to a net monthly loss of approximately $1,277. There have been approximately seven months since trial and so I assess the past loss as being a further $8,939. The total past loss of earnings is therefore $37,037.
I calculate the past loss of superannuation as follows:
| Gross loss for 22 month period | $37,463 |
| Monthly gross loss over that 22 month period | $ 1,702 |
| Gross loss in seven month period since trial | $11,914 |
| Total past gross loss | $41,377 |
| Superannuation contributions at 7 per cent | $ 3,456 |
| Less 30 per cent for fund management fees and taxes | $ 1,036 |
| Balance | $ 2,420 |
I calculate interest on the combined loss of $39,457 as follows:
Period: 29 months = 2.42 years/$39,457 x 2.42 x 3 per cent = $2,864.
For the future I have concluded that the plaintiff's restrictions will last for a further three years. It is likely that the plaintiff's business relationship with Mr O'Brien will cease but he will continue to obtain work from Mr O'Brien ‑ Transcript p 21. In my view therefore it is appropriate to calculate the future loss on the same basis as the past loss. The monthly past loss of earnings was $1,277 this equates to a weekly loss of $294. The multiplier for three years is 143.6.
$294 x 143.6 = $42,218
Less 6 per cent for contingencies $2,533
Balance $39,685
To calculate future loss of superannuation I start with a monthly gross loss of $1,702 which equates to $392 per week. 8 per cent of that figure is approximately $31.
$31 x 143.6 = $4,451 Less 6 per cent for contingencies $ 267 Balance $4,184 Less 30 per cent for fund fees and taxes $1,255 Balance
$2,929
The plaintiff claims future treatment costs. It is not possible to be precise as to what those costs will be and I assess them at $1,000 on a global basis.
Special damages have been agreed at $1,473.95 and in addition there are travelling expenses of $1,854 making a total of $3,328 in round terms.
The plaintiff suffered moderately serious injuries in the motor vehicle accident which caused him to undergo painful treatment. He still suffers from headaches and neck aches and he has had to make significant adjustments to his employment activities and recreational activities. I assess the plaintiff's case as being 10 per cent of the most extreme case and assess his damages at $11,500 net. In summary therefore I asses the plaintiff's damages as follows:
Past loss of earnings $ 37,037 Past loss of superannuation $ 2,420 Interest $ 2,864 Future loss of earnings $ 39,685 Future loss of superannuation $ 2,929 Future treatment costs $ 1,000 Special damages $ 3,328 General damages $ 11,500 Total $100,763
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