| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PENE -v- MURPHY [2003] WADC 96 CORAM : GROVES DCJ HEARD : 31 MARCH & 1-3 APRIL 2003 DELIVERED : 2 MAY 2003 FILE NO/S : CIV 588 of 2002 BETWEEN : EDWARD CLAUDE PENE Plaintiff
AND
KERRIN MURPHY
Defendant
Catchwords: Damages - Assessment - Personal injuries from motor vehicle accident - Soft tissue injury to cervical and lumbar spine - Pre-existing arthropathy of the cervical spine - 38 year old meat worker
Legislation: Motor Vehicle (Third Party) Insurance Act 1943, s 3C
Result: Total damages $132,705.40
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Representation:
Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr B C Sierakowski
Solicitors:
Plaintiff : Kott Gunning
Defendant : Brian C Sierakowski
Case(s) referred to in judgment(s):
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Hendrie v Rusli [2000] WASCA 249
Jarvis-Vagg v Eldrid, unreported; FCt SCt of WA; Library No 970405; 15 August 1997
Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81-192
Medlin v The State Government Insurance Commission (1995) 182 CLR 1
Paul & Anor v Rendell (1981) 34 ALR 569
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v 'Arriaza, unreported FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Bowen v Tutte (1990) Aust Torts Reports 81-043
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347
Dyjak v Kelly, unreported; FCt SCt of WA; Library No 940269; 25 May 1994
Jones v Dunkel & Anor (1959) 101 CLR 298
Moore v R Fox & Sons [1956] 1 All ER 182
Geldenhuys v Soo, unreported; FCt SCt of WA; Library No 990147; 23 March 1999
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Vassilef v BGC Marine Services (NSW) Pty Ltd [1980] Qd R 21
Wright v The Shire of Albany (1993) Aust Torts Reports 81-239
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1 GROVES DCJ: On 18 August 1999 at approximately 8.30 pm the plaintiff was controlling a Ford Falcon Utility which was being towed by another vehicle. The vehicles were proceeding in a northerly direction along Mitchell Freeway near the Ocean Reef exit. Whilst they were so proceeding a vehicle being driven by the defendant collided heavily with the rear of the plaintiff's vehicle propelling it forward and into the rear of the towing vehicle ("the accident").
2 The plaintiff claims damages for the injuries sustained and losses suffered by him. He has not worked since the date of the accident. Liability is admitted.
The plaintiff's background 3 The plaintiff was born in New Zealand on 21 August 1960. He was 38 years at the date of the accident and 42 years of age at trial. He attended school to the age of 15 years and then undertook an apprenticeship of four years in the meat trade. In 1979 he gained his qualifications in meat retailing and butchering. From 1980 to 1988 he worked as a beef boner at a meat works. From 1988 to 1994 he was engaged in two abattoir business ventures supplying meat for the pet food trade. Each business failed. In 1995 he returned to beef boning at an Invercargill abattoir. 4 On 10 August 1996 he arrived in Perth, Western Australia, where he had family and friends. Two days later he commenced work with Carabooda Limestone. This was heavy physical work and involved cutting, lifting and stacking blocks of limestone for supply to the building industry. He continued in this employment to 15 January 1999. On 20 January 1999 he commenced employment with West Australian Meat Marketing Corporation (WAMMCO) at its meat works at Spearwood. He was paid piece work rates which provided him the opportunity for high earnings. The work involved boning lamb carcasses in the freezer area. He held a hook in the left hand to hold/control the carcass. In the right hand he held a sharp knife to mark the meat before proceeding to peel the meat off the bones of the carcasses. Whilst it was lighter work than as a beef boner it was however still heavy work and repetitive. It required strength, skill, agility and speed of operation. 5 In late 1989 he had commenced a de facto relationship with Bronwyn Kaye Eade who also came to Perth shortly after his arrival. In August 1997 their daughter was born. The plaintiff and Ms Eade separated in about February 1998. They remained in contact throughout
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their separation. The plaintiff went to live at Yanchep and Ms Eade lived at Beldon. On 18 August 1999 following the accident and the plaintiff's attendance at Joondalup Hospital he went to Ms Eade's place as it was nearer than his home. Following that Ms Eade took the plaintiff to appointments, took meals to him and helped him in managing his affairs. They maintained separate residences. In April 2000 their second child a son was born. In September 2001 Ms Eade returned to New Zealand with the two children. Apart from visiting with family her departure was prompted by reason that the plaintiff was experiencing mood swings and she was not able to put up with his conduct as well as looking after two young children. They remained in communication nevertheless and after nine months Ms Eade returned to Perth with the children in May 2002 and they resumed cohabitation.
Aftermath of the accident 6 Immediately following the impact the plaintiff felt shaken. Police did not attend the scene. The plaintiff and the driver of the towing vehicle went to the Joondalup Police Station where they completed an accident report form. The plaintiff was by now experiencing pain in his neck and back and went to the Joondalup Hospital. X-rays were taken of his thoracic and lower lumbar-sacral spine. They were normal on examination. He was there for approximately four/five hours before being discharged. The next day he continued to experience pain in the right side of his neck and had a headache and he was experiencing some back stiffness. On 21 August 1999 he attended on his general practitioner, Dr Martin Croft, complaining of pain in his neck and lower back. He was prescribed anti-inflammatory medication, rest, soft collar support for his neck and physiotherapy. He attended physiotherapy and hydrotherapy. On last review by Dr Croft on 30 August 1999 he showed slight improvement in his condition. He thereafter attended on Dr Michael Slavin at the same medical practice. Dr Slavin referred him to orthopaedic surgeon, Mr Malcolm McCallum. 7 In the first six months post accident he experienced shaking and muscle spasms around the right side neck area and the shoulders. He was also experiencing pain at the back of the skull which moved around to become frontal headaches. He experienced pain down the middle of his back to his lower back and was unable to keep his head straight and could not sit straight. The physiotherapist recommended that he wear a neck collar which he did for some two/three months. He was experiencing excruciating pain in the neck and Mr McCallum referred him for a series
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of facet joint injections at the C6/7 level. That settled the pain to some extent. By mid 2000 he felt that his symptoms were stabilising and he was making progress and he then considered a return to work. He approached his employer WAMMCO but was told that because of his injuries he could not return to work and they had nothing else for him. His employment was terminated. At his own initiative he went to Commonwealth Rehabilitation Service (CRS) at Balcatta to seek their assistance in getting him back to the work force. In his words he was rejected from there and referred to Julie McCarthy & Associates, Injury Management Consultants, for assessment. Work trials were arranged but they did not go ahead because of an impasse, outside of his control, as to liability should he be injured at work in the course of the work trials. By this stage it was apparent that he would not be able to return to his pre-accident employment and alternative work options were considered. Physiotherapy was continuing and he was still under the care of Mr Callum. In December 2000 he suffered an injury to his left knee and this limited his activity. He went on to have a left knee arthroscopy and partial medial menesectomy in June 2001. 8 It was his evidence that he has sought employment through jobs advertised in newspapers and through Joblink and has made enquiries with family and friends. He sought work as a storeman, labouring, light duties in boning rooms, etc and claims to have made some 30/40 telephone calls in response to such advertisements. He has found that the employers want young, fit, computer literate persons, sometimes with forklift licence, other times B class driver's licence, police clearance, etc. He has never got beyond the initial telephone enquiry stage. He has made no written applications for jobs. 9 Prior to the accident he was physically active and engaged in diving, running, attending rugby games and socialising at hotels, etc. These things he no longer participates in. He says that he is not able to undertake these activities because of the pain which he experiences, because of his depression, he does not feel balanced, he has lost his confidence in social settings and fears that he may have a blackout consequent upon the medication which he is taking. 10 His present complaints are continuing pain and aching of variable severity in the cervical and thoracic spine, restriction of neck movement and frequent occipital headaches. Continuing medication comprises Panadeine Forte (three to four per day), Celebrex, an anti-inflammatory and Amtriptolene (Endep) an anti-depressant.
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11 As much as he does around the home is to assist washing dishes and spends some time watching the children. He sits or lies down and watches television for most of the time every day. If he is feeling good he may take his daughter to the school nearby. He does no gardening or mowing of lawns. He has undertaken a computer course to gain a skill which may assist him in re-employment. On Monday morning for two hours and Friday for three hours he attends at the Job West Centre at Balcatta and voluntarily assists in teaching others how to use the computer, to log onto the internet, and to receive and send emails. That is about the extent of his knowledge of use of computers. In the evenings he may help with the children, drying them after bath time. Generally, he sleeps on the couch in the lounge room in front of television. The couch is firmer and he finds that is better for his back.
12 As to the future, he says that he does want to work and would like to develop his computer skills. He would have worked in his trade until 60 or until he died.
Evidence of Bronwyn Kaye Eade 13 Ms Eade is the plaintiff's de facto partner. They first met in 1989 and their relationship commenced late in that year. She came to Australia shortly after the plaintiff. It was her evidence that she does all the household chores, both inside and out. She said that the plaintiff doesn't stay standing for long periods. He helps with the children, however she does not like to leave them with him for too long because she is concerned that he will not keep a watchful eye on them as he is affected by his medication. 14 The plaintiff had become depressed after the accident but that had been before she went to New Zealand with the children. She has assisted him look for work. She said he is by nature a quite shy person and not naturally communicative. All he knows is physical work. She has observed him doing exercises for his neck and back most days but says he could exercise more. He had not been walking for exercise of late. She acknowledged that the plaintiff was in a physically deconditioned state.
Evidence of Janice Irene Goddard 15 Ms Goddard is an occupational physiotherapist employed by Judy McCarthy & Associates. At the request of the Insurance Commission of Western Australia (ICWA) she saw the plaintiff on 20 July 2000 to assess the plaintiff and provide recommendations for vocational rehabilitation.
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The objective was to return the plaintiff to appropriate employment. She described the plaintiff as then being keen to get back to work in the meat industry, however given his symptoms at that time she did not consider that to be an option. Because of the physical nature of the work involved and the plaintiff's reported problems of muscle spasm which could be triggered by a cold environment she proposed that he should consider other types of employment which might use his knowledge and abilities in the meat industry. 16 It was Ms Goddard's recommendation (report dated 25 July 2000) that the plaintiff engage in a structured exercise programme, undertake vocational assessment and functional capacity evaluation and that arrangements be made for a work trial. The exercise programme was proposed because the plaintiff's general physical fitness had been considerably reduced and it was considered that would impact on his ability to return to full time employment. Both Mr McCallum and Mr Anastas had recommended exercise for fitness. Despite that a programme was not arranged seemingly because the physiotherapist "…explained that due to his current situation, this would need to be done carefully as any inappropriate Exercise Programme could cause a regression to occur". A vocational assessment was undertaken but not a functional capacity evaluation. The latter was not done because a "medical clearance on medical constraints and further treatment which may impact on the recommendations (was) required." 17 The vocational assessment identified a number of alternate occupations including store person, warehouse assistant, receivables clerk and automotive spare parts assistant. 18 Ms Goddard attempted to arrange work trials for the plaintiff. Unfortunately, they did not eventuate. Workers' compensation insurers would not cover him with host employers whilst he was undertaking a work trial. ICWA indicated that it would be responsible for any aggravation or exacerbation of the injury which resulted from the motor vehicle accident. However, any new injury which might have occurred at the work trial was to be the responsibility of the employer providing the trial period. The prospective employers to whom Ms Goddard directed enquiries indicated a uniform response that they would not be involved in work trials because their workers' compensation insurers would not extend cover for any new injury sustained during the work trial. 19 Mr McCallum proposed that the plaintiff might use his knowledge and skills in teaching, such as apprentice training. Ms Goddard made
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enquiries of Bentley TAFE to ascertain whether there might be a position for a person of the plaintiff's skills. The plaintiff was granted an interview but there were no jobs then available because apprentice numbers were falling. That led to consideration to the plaintiff being assessed for his suitability to do a Work Place trainer's course, ie train the trainer. After assessment it was determined that the plaintiff did not have the skills to undertake the trainer's course. 20 In December 2000 vocational rehabilitation was put on hold by reason that side effects from the plaintiff's medication made him a safety hazard within any work place and he was not able to drive and also the inability to arrange work trials. 21 Early in January 2001 Ms Goddard became aware that the plaintiff had sustained injury to a knee and his rehabilitation and her involvement was further delayed. On 21 June 2001 she assisted the plaintiff with preparation of his Resumé (Exhibit 3). In mid July 2001 the plaintiff informed her that he was making application for social security benefit and she advised that he should attend CRS whom she considered had better facilities and more opportunities for him to participate in training courses. She arranged for the plaintiff to see a disability services officer. Over the period of her contact with the plaintiff she saw or spoke with him every two weeks on average. She said that he was always co-operative and attended meetings on time and complied with all requirements to attend assessments. 22 In the end result however she was not able to find a job situation for the plaintiff which would have suited his circumstances.
Results of x-rays and scans 23 X-rays of the plaintiff's cervical spine were taken in February 1999 (six months pre-accident) because he was then experiencing shoulder problems. These x-rays demonstrated pre-existing facet joint arthropathy (degenerative changes in the lower right cervical facet joint) at C5-6 and C6-7. (Report of Dr Ken Fitch dated 7 August 2001, Exhibit 13). 24 X-rays of the thoracic and lower lumbar-sacral spine were taken on 19 August 1999. X-rays of the thoracic spine were reported on as being within normal limits. X-rays of the lumbo-sacral spine are reported on as showing minor degenerative narrowing at the L4-5 disc and degeneration at L1-2 associated with end plate spurring. (Mr Anastas report dated 19 June 2000, Exhibit 12).
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25 A CT scan of the cervical spine was undertaken on 10 November 1999. The scan performed from C4 to T4 showed marked hypertrophic degenerative facet joint change on the right at C4-5 with resulting narrowing of the right intervertebral foramina at that level (Mr Anastas report dated 19 June 2000, Exhibit 12). The radiologist commented on the degenerative facet joint changes at C5 on the right.
26 A bone scan was done on 21 January 2000. The report mentions that "presumably a known fracture had occurred at C7" and that persistent arthropathy was present in the C6-7 fact joint on the right side and above that level on the left. No cause for sacral iliac joint pain was identified (report of Mr Anastas dated 19 June 2000).
Dr Michael Slavin 27 Dr Slavin has been a general medical practitioner since 1943. He first saw the plaintiff following the motor vehicle accident on 24 September 1999. He was not aware that the plaintiff had previously been seeing Dr Croft at the same medical practice. 28 He referred the plaintiff to Mr McCallum for his expert opinion and Dr Slavin's own opinions reflect the opinions of Mr McCallum. On 28 April 2000 he reported: "Mr Edward Pene has made good progress, and in the opinion of the orthopaedic surgeon (Dr McCallum) and myself is able to commence light duties starting with two hours daily and gradually increasing the time in accordance with his progress." 29 From that time onwards Dr Slavin has always held to the view that the plaintiff was fit to return to light duties initially on a part-time basis but building up to full time. 30 He considered the plaintiff's condition to be stable in that he still has pain in the neck and some stiffness in the back. The plaintiff's medical records indicated that on 12 November 1997, two years before the accident, he had attended Dr Croft and complained of right side neck pain and stiffness. He was given two weeks off work. 31 In cross-examination Dr Slavin acknowledged that the pre-existing pathology in the cervical spine, which he described as pre-existing arthritis in the neck, could have eventually limited the plaintiff's working life as a boner. The plaintiff's complaint on attendance with Dr Slavin had
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been of neck pain and no mention was made of back pain. Dr Slavin did not become aware of that until after it had been reported on by McCallum.
Evidence of Mr Peter Watson 32 Mr Watson is a neurosurgeon who reviewed the plaintiff on 26 September 2002 at the request of the plaintiff's solicitors (report Exhibit 7). The plaintiff presented with complaints of cervical spine pain in both the right and left paraspinal muscles, associated headache in the occiptal region and pain radiating out to the shoulders. He also complained of lower back pain across the L4/5 and L5/S1 segments and pain radiating into the buttocks. He denied any symptoms affecting his neck or back prior to the accident. 33 On examination Mr Watson found the plaintiff to have 80 per cent normal range of movement of the cervical spine. On examination of the lumbar spine he found that the plaintiff was able to flex comfortably, to touch toes and his straight leg raising was not impaired. Upon review of x-rays and bone scans he noted degenerative changes seen in the cervical spine, particularly around the facet joints. They were indicated by increased uptake (hot spots) in the bone scan. In Mr Watson's opinion appearances on the CT scan did not suggest evidence of previous fracture but rather facet joint arthropathy. X-rays of the lumbar spine demonstrated degenerative changes at L1/2 and L4/5. 34 He related ongoing soft tissue and ligamentous injuries of both the cervical spine and lumbar spine to the motor vehicle accident. He described the plaintiff's condition as being essentially a man with symptomatic cervical spine and lower lumbar spinal pains. He recommended a continuation of conservative treatment and expected that the plaintiff would continue to make recovery to a further 20 or 30 per cent over time. He was not of opinion that the plaintiff would return to work as a boner in the meat industry, however he believed that he was capable of carrying out work of a more sedentary nature. Other occupations might include store person, process worker, quality assurance officer, sales assistant, courier (depending on amount of driving and lifting to be undertaken) or driveway attendant. 35 In cross-examination he said that the pre-existing facet degenerative changes were not of significance. Whilst he agreed that there was a possibility that in the future the degenerative changes could have prevented the plaintiff from working as a boner he maintained that was speculative. His basis for saying that was that there was no prior evidence
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that the plaintiff's condition was symptomatic. He was apparently not aware of the November 1997 complaint to Dr Croft or the complaint requiring x-rays in February 1999.
Evidence of Malcolm James McCallum 36 Mr McCallum is an orthopaedic surgeon. He initially saw the plaintiff on 17 January 2000. His presentment he described as "looking quite odd" with his head tilted and shaking. He found the plaintiff to be a vague historian and rambling in his responses and difficult to keep to the point. 37 Mr McCallum's examination of the lower spine revealed an unstable left sacro-iliac joint with tenderness over that joint. There was also tenderness of the thoracic spine on the left side over the costo-transverse joints. He found examination of the cervical spine difficult because of the plaintiff's build and marked spasm of the muscles of the neck on the left side and less so on the right side. On viewing the x-rays he observed significant arthritis in the facet joint at C4/5 with hypertrophic degenerative facet joint changes at that level. He requested a bone scan which was performed on 21 January 2000 which in his report of 25 January 2000 he said "…shows that the prime cause of his neck pain is probably, but unfortunately not definitely, his right C6/7 facet joint…". 38 He referred the plaintiff for a facet joint block at C6/7 on the right side. 39 When he next saw the plaintiff on 29 February 2000 he noted a dramatic change. The involuntary shaking had ceased. The plaintiff was holding his head up straight, he was smiling and he was able to make sense out of the answers to his questioning. Mr McCallum was buoyed by the plaintiff's appearance. His report of that date noted that the plaintiff had full rotation to the left and about 80 per cent normal rotation to the right. 40 Again, when he saw the plaintiff on 27 March 2000 he noted further improvement in the plaintiff's neck condition although his report noted the plaintiff's complaint of pain both on the left and right side of his neck, the right side still more severe than the left. The report does not indicate any complaint of low back pain. He described "…back pain…present, this is mid line posteriorly in the thoracic spinal area" which Mr McCallum indicated as being between the shoulder blades in the T4/7 area. Mr McCallum expressed the view that although the plaintiff was not fit
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for work then as a meat boner he was hopeful that with his present rate of improvement that he may well get back to that trade. On review on 26 May 2000 Mr McCallum noted there was still limited left lateral flexion, extension and right lateral rotation of the cervical spine. On examination he again noted that the plaintiff was "tender over both sacro-iliac joints…". His report recommended "…doing water running now as we are getting up to the stage where we need to get his muscle tone back towards normal. With his neck being so sore his general physical condition has deteriorated markedly. If we are going to get him back to physical work our only chance is to improve his overall physical fitness." 41 In cross-examination he agreed that physical fitness was important in getting the plaintiff back to work after being physically deconditioned. He did not set an exercise regime for the plaintiff and left that for the physiotherapist to arrange. 42 After he next saw the plaintiff he reported on 26 June 2000 that although the plaintiff was keen to get back to work he (Mr McCallaum) did not then think that the plaintiff was fit to return as a boner. 43 From his first consultation Mr McCallum held to the view that as a consequence of the accident the plaintiff had displaced his left sacro-iliac joint and that it was unstable. He expressed the view that this type of injury was not uncommon in motor vehicle accidents and described its causation as being that at the time of impact the person will have their foot hard on the brake to reduce the force of an impact or otherwise braced with the consequence of great force traversing through the leg up into the pelvis and be productive of injury in the sacro-iliac joint. He considered that bladder and bowel functioning (as to which he had noted in his first report that there was some difficulty with) were a product of that type of injury as well as soreness over the left symphysis pubis and over the left sacro tuberous ligament (cheek bones). Under vigorous cross-examination suggesting that this was an unsubstantiated theory on his part Mr McCallum stood by his diagnosis of the injury and conclusion as to the causative factors of these complaints. That was so despite the fact that the plaintiff had not indicated pain in the sacro-iliac area to other doctors, that the bone scan did not indicate pathology in the area and that others, notably Dr Silver, Dr Fitch and Mr Anastas refuted emphatically the possibility of that type of injury either to this plaintiff or in the circumstances postulated.
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44 In cross-examination he acknowledged that the pre-existing localised significant arthritic condition C6/7 in the future would probably cause the plaintiff not to be able to continue as a meat boner. He considered that if the plaintiff lasted another 10 years in that trade he would have been doing well as "the job is heavy and workers get multiple trauma and these things all start adding up".
45 When he reported on 3 July 2000 he was of opinion that the plaintiff was then fit to work as a customer service operator, console operator, driveway attendant, courier work and stores duties, etc. Again he emphasised the importance of an exercise regime to get him fit for a return to work. 46 In his report of 27 December 2000 he concluded that the plaintiff had a 7 per cent permanent residual disability of the cervical spine such assessment being for his accident related injury and not taking into account consequential headaches.
Dr John Hodgson Silver 47 Dr Silver is an occupational physician. ICWA referred the plaintiff to him for medical review. Dr Silver saw the plaintiff on 20 January 2000. He was called to give evidence on behalf of the defence. 48 In taking a history Dr Silver found the plaintiff to be "rambling and vague" and described his presentation as "bizarre". Upon examination he found him to be uncooperative. The plaintiff described his then present complaints as "shaking", a pain that he said is constant "in my neck and back – it never changes" and "I get depressed". On presentment Dr Silver found inconsistencies with the history given. He noted that the plaintiff stood with a bizarre posture and demonstrated no cervical spinal movement whatsoever when asked to actively move his head and passive movements were firmly resisted and reduced to nil. He noted that the x-rays and scans: "…reveal minor degenerative changes only in the lumbar spine, but more marked degenerative changes in the cervical spine although there is no neural compromise reported." 49 It was Dr Silver's opinion that the plaintiff had suffered soft tissue injuries to the cervical and lumbar regions and possibly either aggravated or made symptomatic some pre-existing degenerative disease as a result
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of the motor vehicle accident. His opinion in his report of 20 January 2000 (Exhibit 8) further states: "Apart from this man's abnormal behaviour during the examination, he demonstrates significant Abnormal Illness Behaviour in the form of his exaggeration, response to simulated force, straight leg raising discrepancy and both superficial and non-anatomical tenderness, and it is clear that this man has a major non-organic component to his presentation. I would also point out the inconsistency of this man's allegedly worsening symptoms and almost total invalidity to the point where he is unable to do his own housekeeping, his apparent lack of any formal treatment or investigation in a four month period." 50 The results of a bone scan which were taken on the day following the plaintiff's consultation with Dr Silver were later reviewed by Dr Silver. The bone scan indicated a "hot spot" in the C6/7 area where degenerative change had been noted which suggested inflammation in that region. The pathology was restricted to that area. The region of the lumbar spine was not inflamed. In Dr Silver's opinion the bone scan confirmed his earlier conclusion that the plaintiff may have suffered either a soft tissue injury or an aggravation of an underlying degenerative problem in his neck, or both. It remained his opinion that whatever the cause there should be gradual improvement over time. 51 In cross-examination he was pressed as to complaint of pain in the sacro-iliac. He said that the plaintiff indicated pain from the neck to the sacrum (tail bone) down the mid line. He did not indicate pain in the lateral regions, ie the sacro-iliac. 52 The plaintiff had reported to him that his pain was worsening as time went by. Dr Silver opined that such was not consistent with the natural history for this type of injury. In his experience whether it was soft tissue injury or an aggravation of an underlying degenerative problem the natural history of either condition is for gradual improvement rather than deterioration.
Evidence of Nicholas Constantine Anastas 53 Mr Anastas, an orthopaedic surgeon, was called to give evidence on behalf of the defendant. (Reports Exhibit 12). He first saw the plaintiff on 19 June 2000 some 10 months after the accident.
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54 Upon examination of the cervical spine he found tenderness in the trapezius muscle behind each shoulder, in the muscles at the back of his neck and on either side of the spine. He found 80 per cent of the normal range of movement present with discomfort at the extremes. As to the thoracic spine he found tenderness in the muscles medial to each scapular with multiple tender areas over the thoracic spinous processes. As to the lumbo-sacral spine he found tenderness at the lumbo-sacral junction, over his sacrum and over his coccyx. At the time of examination he was aware of Mr McCallum's expressed view as to sacro-iliac injury. He carefully examined this area. He did not find any tenderness over the sacro-iliac joints. There was full flexion, good extension and lateral flexion present with discomfort at the extreme of extension. He could not find any clinical evidence to suggest a lesion at his sacro-iliac joint. There was no sacro-iliac joint tenderness, stressing the sacro-iliac joint did not cause discomfort and the active straight leg raise test was negative.
55 Mr Anastas expressly distanced himself from the views which Mr McCallum had expressed regarding causation of sacro-iliac joint injury being accident related. It was his evidence that it would take a forceful direct blow to displace the sacro-iliac joint and that would be causative of excruciating pain. The plaintiff had never presented with the sort of pain level which would be experienced had that type of injury occurred. He described the joint as being the second largest joint in the body and had there been any problem in that area it would be obvious on a bone scan. The bone scan did not show any pathology in the sacro-iliac joint. 56 He described the plaintiff as presenting in an ordinary way as a person who had sustained a soft tissue injury to his cervical spine and thoraco lumbar spine in a motor vehicle accident. The plaintiff had impressed him as being a person who was keen to get back to work and he found him to be a genuine patient. Given the degenerative changes in the cervical spine and his age he expected that there would be an increase in pain rather than an improvement with age. He considered that possibly this would have impacted on him at some stage in his working life to the extent that he may not have been able to continue as a meat boner. 57 At the time of his review, viz 19 June 2000, the plaintiff advised that he was looking for work and considered that he would be fit for full time lighter boning duties. Mr Anastas' opinion was that he was then fit "…to engage full time in the duty of a customer service officer, console operator, driveway attendant, courier work, light store duties, light cleaning duties and spare parts sales, etc." He recommended a
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programme of isometric neck exercises and lower back exercises to strengthen the muscles in the affected areas. He saw no point in continuing with physiotherapy or hydrotherapy. His prognosis was that the plaintiff's condition would continue to improve with further time and that eventually he would make a complete recovery. 58 Mr Anastas saw the plaintiff again on 20 February 2001 when the plaintiff informed him that his condition had improved. The plaintiff reported neck pain was now only intermittent but complained of having upper back pain most of the time. He no longer had low back pain. Again, on examination, Mr Anastas found his cervical spine had about 80 per cent of the normal range of movement present with discomfort at the extreme of rotation, lateral flexion and extension. 59 Mr Anastas' opinion was that the plaintiff was then fit to return to his pre-accident occupation as a butcher/boner 60 By letter dated 31 July 2000 Mr Anastas responded to enquiry as to the plaintiff's prognosis to Judy McCarthy & Associates. He advised a programme of isometric neck exercises and lower back exercises, medication of simple analgesics, oral anti-inflammatory analgesics and massaging of anti-inflammatory analgesic cream into the tender areas. He repeated his diagnosis and also advised that he could find no clinical evidence to suggest a lesion at his sacro-iliac joint. He advised against engaging in very heavy lifting, repetitive heavy lifting or prolonged bending. He did not think that a Functional Capacity Evaluation was necessary, that being on the basis of his opinion that the plaintiff was fit for full time light boning duties and other lighter occupation.
Evidence of Kenneth Duncan Fitch 61 Dr Fitch is a sports physician. The plaintiff was referred to him by the defendant's solicitors. He saw the plaintiff on 7 August 2001. (Report Exhibit 13). The plaintiff complained of pain in the lower thoracic spine and the lower lumbar spine. He indicated that cold weather and stress precipitated occipital headaches which were occurring once or twice a week. On examination Dr Fitch found tenderness over the cervical spine in the region of C4/7 particularly over the right facet joints. The range of all movements was somewhat reduced with the greatest reduction between 30-40 per cent in the lateral flexion to the left, rotation to the right and extension. In the thoraco-lumbar spine there was tenderness between T9-12 and also L4-S1. The range of movement of the lumbar spine was less restricted than the neck.
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62 He was aware from having read earlier medical reports of Mr McCallum's opinion concerning injury in the area of the sacro-iliac joint. On examination Mr Fitch could find no clinical or radiological evidence of injury to this area to support such a finding. The sacro-iliac joints were normal to his examination. He described the sacro-iliac joint as being very strong, as having very little movement and being rigid and not easily damaged. On Mr McCallum's theory as to how injury to that joint might have been occasioned Dr Fitch expressed the opinion that if there were such forces as indicated he would expect to find substantial injury in this type of accident in the lumbar joint/lower facet joints at L4/S1. That had not been the case here. Then he would expect hip injury before injury in the sacro-iliac joint. He specifically tested for sacro-iliac joint dysfunction and could find no evidence of injury or pain in this area.
63 He described the plaintiff as not being at a high level of fitness but said that he was not totally out of shape. His advice to him had been that he should undertake swimming as a means of exercising and strengthening the musculature around the spine and by using a snorkel it would avoid the necessity to move the head side to side. He opined that with a properly structured exercise programme to get fit there was no reason why the plaintiff would not have got back to work as a boner if he were motivated. He expressed as a strong possibility that if he got back to fitness that he would have got back to boning. The difficulty he identified was that the longer the plaintiff was out of the work force then the more difficult it would be for him to get back to that trade. 64 His evidence also raised some doubt regarding the headaches. It is his experience that such headaches don't come from the lower facet joints (C4/5) but usually from higher up the cervical spine (C2/3). The headaches may not be related to the site of the pre-existing cervical facet joint osteoarthrosis. 65 It was Dr Fitch's opinion that the plaintiff's neck and back preclude him from now resuming work as a boner/butcher. He assessed him however as being fit for work in the types of lighter occupations identified by Mr Anastas. 66 It was his prognosis that the plaintiff will have persistent problems with his neck and that part of these are pre-existing. Further improvement could be achieved with a regular swimming programme using snorkel and flippers.
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Evidence of Elizabeth Jane Moyle
67 Ms Moyle is a labour market economist and consultant employed by WorkFocus Australia Pty Ltd. She produced an Employability Report (Exhibit 14) and also identified a report of Professor Charles Mulvey (Exhibit 10 tendered by consent). She described the process leading to her involvement as being first a Vocational Assessment of the person, then a Physical Performance Evaluation and from those a set of realistic occupations are presented to her on which to make her assessment as to job availability in those fields. Her report summarises the current labour market environment in the occupations of Light Process Worker, Quality Assurance Inspector and Sales Assistant (Retail). In the first two of those occupations employment prospects at the present time are described as "limited". In the third employment prospects are described as "good". 68 She acknowledged however that many factors will influence the employability of a particular person. Competition in all fields is very keen. It is more competitive for new entrants into an occupation than for experienced persons. An older person with a disability will be disadvantaged. Work as a Quality Assurance Inspector is generally a management job obtained after years of experience in the particular industry. Previous experience as a Sales Assistant will help to get a job. In this field it is noted that unemployment is high although there is a high turnover of workers making jobs more available.
Evidence of David Robert James Gill 69 Dr Gill is an orthopaedic surgeon. On 5 June 2001 he undertook surgery on the plaintiff for a left knee arthroscopy and partial medial meniscectomy. The plaintiff was given an exercise regime to follow through post operation. He reviewed the plaintiff at two weeks and six weeks post operation. He described the surgery as uncomplicated with a good recovery. At six week review the recovery was consistent with what he would have expected, ie he had no reason not to believe that the plaintiff undertook the exercise regime. His report (Exhibit 15) indicated that provided the plaintiff avoided repeated squatting or kneeling which would likely worsen symptoms he would be able to make a successful return to work but avoiding putting any heavy loads on the knee.
Findings as to the extent of the plaintiff's injuries 70 Consistent with the findings of the medical specialists I am satisfied that the plaintiff sustained the following injuries in the accident.
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(a) A whiplash injury causing soft tissue injury of moderate severity to the neck. (b) Aggravation of pre-existing cervical facet joint osteoarthrosis at the C5/6 and C6/7 level. (c) Soft tissue injury of minor severity in the area of the thoracic spine. (d) Thoraco lumbar facet joint sprain secondary to flexion/extension injury. (e) Minor soft tissue injuries in the area of the chest and ribs. 71 As a consequence of the neck related injuries the plaintiff has experienced headaches of varying intensity initially on a regular basis but subsequently less frequently. They may be precipitated by cold weather or stressful situations. 72 The consensus of medical opinion is that with time the symptoms would resolve further. If the plaintiff were motivated to engage in a structured and continuing exercising programme that would assist in resolution of those symptoms. The symptoms have settled to a defined and consistent level and with time will fully resolve. 73 The plaintiff also claimed in particulars to his statement of claim that as a consequence of his circumstances he developed psychological/psychiatric depression as a result of prolonged disability and incapacity to work. No evidence was called by the plaintiff from appropriately qualified medical specialists which supports that allegation. Minor depression, in a simple sense, consequent upon disappointments or set backs along the plaintiff's path to recovery no doubt occurred and I am prepared to accept that. However, there is no evidence to suggest psychological illness or any depressive disorder in a medical sense. 74 Treatment of the plaintiff's injuries has been conservative. There has not been and it is not indicated that any invasive treatment will be required in the future. Only Mr McCallum suggested that the neck condition may come to fusion. However, for reasons later expressed, I do not accept that view. 75 I reject the finding of Mr McCallum of sacro-iliac injury. The premise from which Mr McCallum's theory proceeded was not supported by the evidence. First, there was no evidence from the plaintiff that prior
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to the initial impact into the rear of his vehicle that his foot was firmly pressed on the foot brake or firmly braced. After that impact he did apply his foot to the brake before impact with the towing vehicle but he was not specific so far as a detail of that was concerned. Accordingly, in the circumstances of the evidence in this trial, I cannot accept that the basis for the assertion and upon which it is reliant has been established. Secondly, both Mr Anastas and Dr Fitch were emphatic that an injury of the type described by Mr McCallum would require a heavy impact to the area of the sacro-iliac and that injury of the necessary magnitude would produce excruciating pain. There was no evidence from the plaintiff as to either of those matters. Thirdly, the plaintiff made no complaint of any injury in the area of the sacro-iliac. He described pain in the area of the coccyx. I do not accept that as being indicative of injury or pain in the area of the sacro-iliac. Finally, on the bone scan there was no pathology of injury in the area of the sacro-iliac reported.
Findings as to plaintiff's capacity for work 76 Mr Anastas expressed the opinion (report 20 February 2001) that the plaintiff was fit to return to his pre-accident work as a butcher/boner. With respect to him the reasons for him expressing that view hardly supported that conclusion. The fact that his condition had improved since previously seen, that he was no longer complaining of low back pain and that he had been looking for work in that trade do not support a subjective medical opinion that he is fit for the work. Mr Anastas also includes amongst his reasons the fact that whereas neck pain had previously been present all the time it was now only intermittent and the fact that the plaintiff complained of having upper back pain most of the time as being supportive of the conclusion that he was fit to resume work. Those reasons in fact do not support that conclusion and if anything tend to weigh against it. I reject Mr Anastas' conclusion. 77 On the other hand Drs Watson, Fitch, McCallum and Slavin each express the opinion that the plaintiff will not return to work as a meat boner. I accept their conclusions to that effect. 78 I do however find that as from, at the latest, 1 July 2000 the plaintiff was fit to engage in lighter type work in a range of occupations. Dr Croft anticipated full recovery, most likely within three to six months post accident. On 28 April 2000 Dr Slavin reported that it was his opinion that the plaintiff was "…able to commence light duties starting with two hours daily and gradually increasing the time in accordance with his progress". That opinion was said also to reflect the opinion of Mr McCallum. By his
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report of 3 July 2000 Mr McCallum indicated that the plaintiff could do a number of lighter duty type occupations. Likewise, by his report of 19 June 2000, Mr Anastas expressed the opinion that the plaintiff was fit for full time lighter boning duties, or to engage full time in the areas of customer service officer, console operator, driveway attendant, courier work, light stores duties, light cleaning duties and spare parts sales. 79 The plaintiff had indicated to Mr McCallum that he was keen to get back to his pre-accident employment and in fact, as noted in Mr Anastas' report of 19 June 2000 he was already then in the process of looking for work. He had of his own initiative been back to WAMMCO and to CRS and a return to work plan with costings was prepared. Apparently because of financial reasons the defendant's third party insurer, was not willing to fund that programme and referred the plaintiff off to Judy McCarthy & Associates. He attended on Ms Goddard of that business on 20 July 2000. He was keen to get back to work but recognised that if he were to be working in cold conditions that may cause spasms in the neck muscles and would cause him difficulty in returning to working as a boner. It was explained to him that he should consider other types of employment. Ms Goddard reported her recommendations for the plaintiff's return to the work force to ICWA. As I have identified earlier in these reasons the recommendations were not adopted. Nevertheless, the plaintiff was co-operative with Ms Goddard and attended all meetings and did all that was requested of him. Work trials did not eventuate for reasons which were beyond the control of the plaintiff. 80 I note in passing that by the time the plaintiff first attended on Ms Goddard both Mr McCallum and Mr Anastas had recommended that the plaintiff engage in an exercise regime so as to improve his fitness preparatory to returning to work. In Mr McCallum's evidence he said that it was a matter for the physiotherapist to indicate an appropriate programme to the plaintiff. Seemingly however this advice was not acted upon. When Ms Goddard contacted the physiotherapist prior to her report of 25 July 2000 in the context of the plaintiff being generally physically unfit and that needing to be addressed before any work trial was organised the physiotherapist responded that "…this would need to be done carefully as any inappropriate Exercise Programme could cause a regression to occur." That was reiterated in early October 2000 when Ms Goddard had further contact with the physiotherapist (report 15 November 2000). As a consequence the plaintiff's fitness was not being worked upon and he remained generally unfit. I observe that it seems to me inappropriate that the injury management consultant should be guided by or rely upon the advice of the physiotherapist's view rather
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than ensuring that the recommendations made by the medical specialists were being put into effect. More aggressive management in accordance with the specialist's advice at a time when the plaintiff was strongly motivated may well have produced a more favourable outcome. In the meantime the plaintiff was in limbo and for all that the physiotherapist and injury management consultant did, it did not get the plaintiff fit or into any form of work. 81 So it is that during this period of time leading up to the plaintiff sustaining injury to his left knee he did all that was being required of him and it cannot be said that he acted unreasonably and did not do anything insofar as mitigating his loss by getting back to some form of work was concerned. Therefore I find that although the plaintiff was fit for lighter duties from July to December 2000 the fact that he did not obtain employment was through no fault of his own. 82 On 14 December 2000 the plaintiff suffered a fall and injury was caused to his left knee. He attended on Dr Slavin and eventually came to surgery on 5 June 2001. For this period of time the plaintiff could not have engaged in his pre-accident occupation and for at least three months of that time being operative and post operative could not have engaged in any employment at all. Accordingly, I find that this period of time should be excised in considering the plaintiff's past economic loss.
General damages for loss of amenities 83 The plaintiff is entitled to general damages for the accident itself and for the consequent pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. 84 The award of damages for loss of enjoyment of life and amenities generally requires a consideration of s 3C of the Motor Vehicle (Third Party Insurance) Amendment Act 1994 ("the Act"). This section imposes limitations upon an award of damages for non-pecuniary loss and it applies to the present case. Section 3C(3) provides that the maximum amount of damages that may be awarded for non-pecuniary loss is, at the present time, $240,000 and that that amount may be awarded "only in a most extreme case". 85 In Wylde v 'Arriaza, unreported FCt SCt of WA; Library No 970359; 23 July 1997 the court adopted the same approach to the Act as the New
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South Wales Court of Appeal did to the Motor Accidents Act 1988 (NSW). In Southgate v Waterford (1990) 21 NSWLR 427 at 440 the court said: "There are a number of ways by which trial Judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly because the task in hand is that of awarding damages for 'non-economic loss' it is appropriate for the trial Judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the Judge to consider and make findings on the evidence relevant to those heads of damage formally considered in the award of general damages. Then it is necessary for the Judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constituted 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the Judge fixes keeping in mind that the cap of a statutory maximum is retained for a 'most extreme case'." 86 The task is to find the right proportion between a most extreme case and the present. As to what might constitute a most extreme case see also Murray J in Hendrie v Rusli [2000] WASCA 249. 87 It is necessary that I make findings of fact consistent with my assessment of the evidence. 88 I repeat all of my findings in relation to the nature of the plaintiff's injuries, the diagnosis and prognosis. The accident was undoubtedly a traumatic experience. Despite conservative treatment and physiotherapy the plaintiff's condition was continuing for almost six months post-accident until he had the facet joint injections following his first attendance on Mr McCallum. In the following months Mr McCallum was more than pleased with the plaintiff's progress and it was not long thereafter that the plaintiff felt that he was ready to get back to work. There then followed what might be described as a number of disappointments which undoubtedly impacted upon his rehabilitation along the way. They included being told by his employer that he was retrenched, the CRS rehabilitation plan being rejected by ICWA, being
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persuaded to an acceptance of the realisation that he would not go back to his previous form of employment, the fact that work trials could not proceed for reasons beyond his control, and being informed after review that he was not suited to be trained as a trainer in the meat industry. He had also on his evidence made 30 or 40 calls in response to job advertisements but all to no avail. From being an extremely fit 110 kg he lost some 40 kg and then when he did put on weight it was fat rather than muscle. He was and is now unfit. A loss of self-esteem and associated anxiety and depression and his dependence on the prescribed medication have all impacted on his daily life. 89 Defence counsel suggested that his separation from his de facto and children might have been a contributing factor to his state of depression. The separation preceded the accident by almost 18 months. It was because of the plaintiff's change of moods, etc, undoubtedly consequent upon the accident and his frustrations associated therewith, that his de facto left for New Zealand and was away for nine months. Rather than being a contributing factor to his overall depressed state I think the converse is the case in that his post accident difficulties were causative of the fact of the period of separation which in turn caused him to be depressed. 90 As the medical specialists have indicated he may continue to have some ongoing pain, however that is to be balanced against the fact that he can take steps to help himself by engaging in an appropriate exercise regime. All is not lost and there is a continuing onus upon him to improve his situation if he wishes to feel better about himself and re-engage in an active and satisfying life style. He is not disabled from work altogether. 91 Having regard to those matters and to the evidence generally I find that the plaintiff's initial injuries and symptoms, their progression and treatment, their current status and the effect that they have had and will have on the plaintiff's enjoyment of life puts the plaintiff's case at 15 per cent of a most extreme case. That percentage of the maximum amount that may be awarded of $240,000 equates to $36,000. By s 3C(5) of the Act, if the amount of non-pecuniary loss is assessed to be more than $12,000 but not more than $36,500 then from the award made is to be deducted the sum of $12,000. Therefore 15% = $36,000 reduced by $12,000 = $24,000. 92 Accordingly general damages will be allowed in the sum of $24,000.
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Past loss of earnings
93 The plaintiff has particularised his past loss of earnings as follows (adjusted to date of judgment): 9 August 1999 to 1 July 2000 (45 weeks)
$636.66 gross or $480.32 net weekly $ 21,614.40
1 July 2000 to 30 June 2001
$690 gross or $541.00 net weekly $ 28,132.00
1 July 2001 to judgment 30 April 2003 (95 weeks)
$741.00 gross or $576.00 net weekly $ 54,720.00 Total $104,162.40 94 Defence counsel accepts that the rates for the plaintiff's earnings are appropriate. The calculation to 1 July 2000 will be allowed. As to the 2000/2001 financial year there will be a reduction of one quarter to allow for the fact as I have earlier found that for three months of that year the plaintiff would otherwise have been incapacitated by reason of the injury to his knee. He was otherwise under the guidance of the injury management consultants for most of that year and abided their advice and recommendations. He cannot be penalised for not obtaining employment himself in those circumstances. 95 As to the period from 1 July 2001 to judgment an adjustment must be made to reflect the fact as I find that the plaintiff has failed to mitigate his loss during that period. On the evidence he was fit to engage in work involving lighter duties in a range of vocations. His evidence was that over an undefined period he has made thirty or forty telephone calls in response to job advertisements but on no occasion got any further than that. No written applications for employment were made. No other evidence was led which would indicate or confirm the attempts said to have been made to gain employment and the responses to those enquiries. I do not accept such evidence as there was as being sufficient to satisfy me that all reasonable attempts have been made by the plaintiff to obtain employment. 96 On the other hand I am accepting of the fact that there are a number of matters which will have had an adverse impact upon the plaintiff's attempts to gain employment. He is disadvantaged in the labour market by reason of his limited education and his lack of skills (other than a meat boner) and the fact that he is not a naturally communicative person. The labour market survey indicates that there is keen competition for jobs, he
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has no previous experience in alternative employment, is a late entrant into any new job market and is a person with a disability. He is not however totally and permanently incapacitated and is employable. I am not satisfied that during this period the plaintiff made all reasonable attempts to gain employment. 97 To recognise these matters it is appropriate that for the period 1 July 2001 to judgment that the amount proposed be reduced by 50 per cent. 98 It is agreed that the sum allowed be reduced by the amount which ICWA has advanced to the plaintiff pending trial. That sum is $45,153. 99 The claim for past loss of earnings will be allowed in the following amount.
19 August 1999 to 1 July 2000 $21,614.40 1 July 2000 to 30 June 2001 $21,099.00 1 July 2001 to judgment $27,360.00 $70,073.40 Less ICWA advances $45,153.00 $24,920.40
Interest on past economic loss 100 I calculate the sum of interest by use of the following formula: Interest equals half of (total loss x annual rate of interest x total time in years). Interest equals half of ($24,920.40 x 6% x 3.66 years). Interest equals half of ($1,495.22 x 3.66) Equals half of ($5,472.52) Equals $2,736.26. 101 I award the plaintiff damages for interest on past economic loss in the sum of $2,736.26.
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Loss of past superannuation benefits
102 The net past loss of earnings (before deduction of the ICWA advances) is $70,073.40. This equates to $91,447.20 gross. I take the applicable contribution rate as being 8 per cent. Gross earnings $91,447.20 x 8% = $7,315.78 103 In accordance with Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81-192 that amount will be reduced by 30 per cent to make allowance for deductions for tax, fund expenses and the risk of fund losses. $7,315.78 – 30% = $5,121.
The assessment of loss of future earning capacity 104 The plaintiff seeks damages for loss of earning capacity and as Deane, Dawson, Toohey and Gaudron JJ pointed out in Medlin v The State Government Insurance Commission (1995) 182 CLR 1 at 3 that imposes upon him an obligation to satisfy the Court of two things: "The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the 'diminution of…earning capacity is or may be productive of financial loss'. (Graham v Baker(1961) 106 CLR 34 at 437." 105 In Paul & Anor v Rendell (1981) 34 ALR 569 at 471 Lord Diplock said as follows: "…and the assessment of future economic loss involves a double exercise in the part of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured." 106 The following statement by White J at p10 of his judgment in Jarvis-Vagg v Eldrid, unreported; FCt SCt of WA; Library No 970405; 15 August 1997 is apposite in a case such as this:
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"His Honour had to make an assessment as best he could as to the likely future which would have been enjoyed by the appellant had he not been injured and to compare that with the likely future which he would in fact have following his injuries. There could be no uncertainty as to either of the assessments." 107 In Jarvis-Vagg v Eldrid (supra) Kennedy J set out the following at pp3-4 of his judgment: "In assessing the damages for future or potential events it is necessary to bear in mind the observations of Deane, Gaudron and McHugh JJ in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 642-643: 'When liability has been established and a common law court has to assess damages its approach to events that allegedly would have occurred but cannot now occur or that allegedly might occur is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred it is treated as not having occurred. Hence in respect of events which have or have not occurred damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred or might or might not yet occur the approach of the Court is different. The future may be predicted and the hypothetical my be conjectured. But questions as to the future or hypothetical effect of physical injury to degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the Court will take that chance into account in assessing the damages. Where proof is necessarily unattainable it
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would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus the Court assesses the degree of probability that an event would have occurred or might occur and adjusts its award to damages to reflect the degree of probability'." 108 The plaintiff has presented the claim for future loss of earning capacity as follows: Plaintiff's age – 42 years (43 years on 21.8.03).
Therefore approximately 42.65 years old. Years to retirement at age 65 – approximately 22.35.
6% multiplier for 22 years = 647, therefore
appropriate approximate multiplier 109 The plaintiff proposes that this amount should simply be reduced by 30 per cent for contingencies and retained earning capacity. 110 Defence counsel accepts that calculation as representing a total loss. However consideration must be given to the plaintiff's retained earning capacity and to contingencies generally. 111 On the one hand the consensus of medical opinion indicated that by reason of the pre-existing degenerative changes in the cervical spine it was possible, given the nature of that work, that at some time in the future the neck condition would have been such as to cause the plaintiff to cease work in that occupation. The best estimate made by Mr McCallum was that he would be lucky to have stayed in that work for another 10 years. If he had been able to stay in that occupation then no doubt he would have been better placed to take up a less arduous or physically demanding job, for example as a quality control inspector, or as a trainer. On the other hand as Professor Mulvey's report indicates 80 per cent of boners engaged at meat works are under 40 years of age. Broadly stated it is a job for younger, fit and strong men, although that is not to say that older and experienced men are not capable of doing the work. Seasonal factors also will come into play including drought, reduced stock numbers, closure of meatworks, etc.
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112 The possibility that the plaintiff might be re-trained as a trainer was considered by the injury management consultants. In the end result it was determined that the plaintiff was not suitable for this vocation. Therefore it is not appropriate that his future loss be arrived at, as was suggested by defence counsel, simply on the basis that an allowance be made for a period of say three years for re-training with no loss thereafter.
113 Nor do I accept, as plaintiff's counsel suggested, that a "global" discount of 30 per cent should be applied to cater for all contingencies. As inexact as the science may be in some cases, it is possible in this case to be more precise in the calculation of future economic loss. The plaintiff has a retained earning capacity. He is fit to work in a number of vocations involving lighter duties, those vocations having been identified by Mr McCallum and Mr Anastas and others as including customer service officer, driveway attendant, courier work, light store duties, light cleaning duties, spare part sales and consul operator, etc. The Labour Market Employability Report indicates that there are opportunities as a light process worker. I am satisfied that the plaintiff has the competence and skill to be engaged in a range of work which this category encompasses. Whether or not he has the motivation is a matter for him. 114 The current average weekly earnings of a light process worker is $619.48 gross per week or $494.48 net per week, that is approximately $100 per week less than the $590 per week being the net weekly amount upon which the plaintiff has calculated future loss. On the sum of $100 per week applying the appropriate multiplier of 647 gives a future loss of $64,700. 115 Regard also must be had to the usual contingencies. As was said in Black v Motor Vehicle Insurance Trust [1986] WAR 32 at 34 Wallace J (Burt CJ and Brinsden J concurring) said: "It is erroneous always to make a deduction for contingencies as Windeyer J had to say in Bresatz v Przibilla (1962) CLR 544. The Court should in each case have regard to the facts of that case, that very learned Judge continued at 543-544 – 'It is a mistake to suppose that it necessarily involves a "scaling down". What it involves depends not on arithmetic but on considering what the future may have held for the particular individual concerned. He might have fallen sick from time to time, been away from work and unpaid. He might have become unemployed and
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unable to get work. He might have been injured in circumstances in which he would receive no compensation from any source. He might have met an untimely death. Allowance must be made for these "contingencies" or the "vicissitudes of life" as they are glibly called. But this ought not to be done by ignoring the individual case and making some arbitrary subtraction. … Moreover the generalisation that there must be a "scaling down" for contingencies seems mistaken. All "contingencies" are not adverse: all "vicissitudes" are not harmful. A particular plaintiff might have had prospects of changes of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune! Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad.'" 116 The discount for contingencies include the normal vicissitudes of life, including but not limited to, the possibility of retirement earlier than age 65, the lack of continuing work and seasonal factors impacting upon the meat industry and the general fluctuation in income being dependent upon work being available, etc. On the other hand, positive contingencies include the inability to exercise retained earning capacity, the difficulty of obtaining and maintaining alternative work, the evidence of increases in income and the need to take care and prepare for the future. 117 Until the accident the plaintiff had a history of continuous employment and of high earnings. He was seemingly a reliable employee who was skilled and competent in his field of endeavour. However, he may not have been able to continue in his pre-accident employment through to retiring age (as to which see Mr McCallum's evidence). As against that the plaintiff, now 42 years of age, is thrown onto a job market where there may be limited opportunities for a person of his age, education and skills. In all the circumstances and in weighing up these matters and doing the best one can in looking to the future I decline to "scale down" the claim for future loss for other contingencies. 118 Accordingly, the claim for loss of future earning capacity will be allowed in the sum of $64,700.
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Future superannuation benefits
119 $100 net per week equates to $140.52 gross per week (the difference between $760 gross ($590 net) as claimed and $619.48 gross for light process worker) I take the applicable contribution rate as being 9 per cent.. 120 The calculation is as follows: $140.52 gross per week x 9% = $12.65 per week. $12.65 x 647 (applicable multiplier) = $8,182.48 Less 30% (Jongen v CSR) = $5,727.74
Travelling allowance 121 The parties are agreed on the sum of $1,500 and this will be allowed.
Future medical expenses 122 The plaintiff submitted a schedule of whole of life future medical expenses totalling $13,220.00. The only evidence on this claim was from Dr Slavin who indicated that whilst the plaintiff's condition is stable he still has pain in the neck and some stiffness in the back. The plaintiff's evidence was that he is only attending his doctor now to renew his scripts. His current medication is Panadeine Forte for headaches as required, Celebrex (anti-inflammatory) 200 m x 2 per day and Amtriptolene (Endep) 50 m 1 per day. Dr Slavin's evidence was that the need for medication may continue for six months post trial. Substantially, however, the plaintiff's need for medication will depend upon the progress of his pre-existing arthritic condition in the neck. There was no evidence led as to the cost of scripts for medication or for cost of visits to a medical practitioner.' 123 Defence counsel acknowledges that some provision should be made for future medical expenses by way of a ball park figure. Doing the best I will allow $4,000 for future medical expenses.
Summary 124 In summary therefore damages will be allowed as follows:
General damages $ 24,000.00
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Past economic loss $ 24,920.40
Interest on past economic loss $ 2,736.26 Past superannuation $ 5,121.00 Loss of future earning capacity $ 64,700.00 Future superannuation $ 5,727.74 Travelling $ 1,500.00 Future medical expenses $ 4,000.00 Total $132,705.40
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