Peter Warr v Lap Yan Sun
[2013] ACTSC 222
•12 November 2013
PETER WARR v LAP YAN SUN
[2013] ACTSC 222 (12 November 2013)
DAMAGES – personal injury – motor vehicle collision – whiplash injury to neck – pre-existing asymptomatic degenerative changes in cervical spine – impingement on C7 nerve root – plaintiff university professor aged 65 at trial – also engaged in consultancy work in Southeast Asia requiring travel – extent of impairment of earning capacity – whether collision a cause of continuing pain and other symptoms – no issue of principle.
No. SC 664 of 2008
Master Harper
Supreme Court of the ACT
Date: 12 November 2013
IN THE SUPREME COURT OF THE )
) No. SC 664 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: PETER WARR
Plaintiff
AND: LAP YAN SUN
Defendant
ORDER
Judge: Master Harper
Date: 12 November 2013
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the sum of $316,500.00.
The plaintiff’s costs be paid by the defendant.
The costs order is not to take effect for 14 days from the publication of these reasons.
This is a claim for damages for personal injury arising out of a motor vehicle collision. Liability is admitted, and the action comes before the Court for the assessment of damages. The collision took place on 10 February 2007. The plaintiff was driving to Canberra Stadium to watch a Brumbies rugby match. Because of the negligence of the defendant, he did not get there. The defendant’s vehicle and his vehicle collided on Haydon Drive, Bruce. It was, by all accounts, an impact of some severity. The plaintiff’s vehicle was damaged beyond repair.
The plaintiff’s evidence
The plaintiff was born in May 1947. He was 59 at the time of the collision. He is now 66. He was born in Sydney. He is a married man with three children, still living at home. He is a Professor of Agricultural Economics at the Australian National University, and the head of a department within that University. His wife is of Thai lineage and is herself an economist, working in the Commonwealth Public Service. Their sons were born in 1995 and 2001 and their daughter in 2004. They live in the Canberra suburb of Yarralumla, and have a weekender thousand acre property on the Murrumbidgee River some one and a half hours’ drive south of Canberra where they spend their leisure time. The property has a cabin but no electricity and is for their enjoyment and relaxation, not for any commercial return.
As a departmental head at the Australian National University the plaintiff has, and had, administrative responsibilities as well as his involvement in teaching and research. The University encourages him to involve himself in research projects in South-East Asia. For this purpose he is permitted 52 days a year leave from his University commitments. He is not required to account to the University for any income he earns during that time but is entitled to receive that for his own benefit.
I accept that he is an academic figure of some international renown in his field. There is no compulsory retiring age for his position within the University.
The plaintiff’s case is that if it had not been for the car accident, he would have retired from his employment with the University at the age of 65, and concentrated on overseas consultancy work to generate his income. His injuries have precluded that. Post-accident, his intention is to continue to work at the University, with a reduced focus on overseas consultancy work, to his financial detriment.
Although there is no pre-accident radiological evidence, it is common ground, and I accept, that the plaintiff had degeneration of the cervical spine but that it was asymptomatic.
The plaintiff did not notice any symptoms immediately after the car accident but within less than two weeks he had become aware of neck and left shoulder pain. He saw his general practitioner and was referred for x-rays and physiotherapy.
The plaintiff’s evidence that he had had no neck problems before the collision was unchallenged.
Physiotherapy provided temporary relief from pain. The physiotherapist taught the plaintiff some exercises to strengthen his neck. He has been doing these daily since then, taking about five minutes a day.
The plaintiff’s working pattern before the injury was that he would arrive at the University at about 10:00 am and get home at about 6:00 pm. After dinner he would go back to his office at about 9:00 pm, and work for another two or three hours. He worked a total of five days a week in this way, without any difficulty. He was engaged in teaching, research and administration. His work was highly computer-intensive.
The University encouraged staff in his position to find and engage in research opportunities overseas. He was permitted 52 days’ leave a year for this purpose. His earnings were his own. The University system was that he was expected to submit applications for leave in advance of overseas travel, and to submit a return annually, summarising his overseas travel and research. He conceded that he had not been fully compliant with this requirement, and that he was not a person who kept reliable time records. His understanding was that travel had to be approved in advance for insurance purposes. He undertook overseas work for a number of organisations including the World Bank, the Asian Development Bank, the UN Food and Agriculture Organisation, the Economic and Social Commission for Asia and the Pacific, and the Economic Research Institute for ASEAN and East Asia. A particular trip would normally begin with a telephone enquiry as to his availability, and an indication of the nature of the research work which was required. His most common destinations were Thailand, Indonesia and the Philippines.
From time to time the plaintiff also attended conferences in other parts of the world, including the United States and Europe. The University paid his expenses for these conferences but he received no remuneration.
His evidence was that it was common for him to engage, as part of a research project, in fieldwork. This involved internal travel to research stations, to work, for example on developing new crop varieties, and developing pest resistance in crops. Generally the rural roads were much rougher than city roads in those countries, which he said caused him considerable neck discomfort, particularly coming immediately after a long-haul flight from Australia. His assessment was that he spent about a third of his time in the field, and the balance in one of the major cities. The typical duration of a working trip was a week to ten days on the consultancy project, with some further days taking the opportunity to work with colleagues in the same country. The plaintiff generally tried to finish the written work associated with the project before he returned to Australia, so that he could get back to his regular University work immediately on return.
He would then render an invoice, which was generally converted from US dollars and paid direct into his bank account in Canberra, an account in his own name but which was used in practical terms as a joint account with his wife. Her salary as a Public Servant was paid fortnightly into that account also.
During the course of the hearing an issue arose about whether the plaintiff’s overseas earnings were assessable for Australian income tax purposes. His evidence was that he had been led to believe that the income was tax free and that he was not required to include it in his Australian tax return. This impression was undoubtedly fostered by correspondence from some of these international bodies, it seems because the income was tax-exempt to United States taxpayers. The plaintiff did not include any of this income in his tax returns over the years. The issue raised its head in conferences between senior counsel and the plaintiff in the course of preparation for trial. Senior counsel expressed his understanding that the overseas-earned income of an Australian taxpayer was generally taxable in Australia. He recommended that the plaintiff check this with his accountants. The plaintiff did so. His previous understanding was, in the view of the accountants, incorrect. The plaintiff’s evidence was that so far as he was aware, his Australian colleagues had been under the same misapprehension. He received advice from the accountants that he should lodge amended returns for the previous two financial years, 2008-09 and 2009-10. He did so, and received amended Notices of Assessment requiring the payment of additional tax with interest, but no penalties. His evidence was that he was advised by the accountants that the system permitted a taxpayer to lodge amended returns, but going back only two years. On that understanding he had not attempted to bring to the attention of the Tax Office any overseas income for earlier years. The plaintiff had earned such income since before the car accident, and, I infer, probably for many years earlier.
Whilst I generally accepted the plaintiff as a witness of truth, and accepted evidence of doctors who had seen him to the effect that he had not sought to amplify or exaggerate his symptoms, I thought that his interpretation of the advice he had received from the accountants was somewhat self-serving. I find it extremely difficult to accept that he did not realise that it would have been, and no doubt remains, open to him to make an approach to the Tax Office, with his accountants, and to make a disclosure of the overseas income he had earned over the years and had not included in his tax returns. I gained the strong impression that the plaintiff was not motivated to take any further steps in that regard, on the basis that it was unlikely that the Tax Office would take any initiative towards investigating it, and that to make a full disclosure might cost him a lot of money.
This leaves me with an uncomfortable feeling that, whilst the plaintiff might be utterly honest and reliable about his injuries, symptoms and the severity of his neck pain, his evidence might be less reliable where it was about financial issues which might have an effect on his financial position. I did not obtain the impression that the plaintiff had given, or would give, consciously false information to experts, still less false evidence. I have given considerable reflection to whether I should express this misgiving in these reasons, which will be in the public domain and might be read as reflecting adversely on a man who is of the highest repute in his field, well beyond the borders of Australia. I have come to the conclusion that it is incumbent on me to express my reasons fully in a case of this kind which depends so heavily on the evidence of the plaintiff as to matters for which corroboration is not always available, and as to which he was challenged in cross-examination.
The plaintiff’s evidence is that since his injury, he has continued to cope with his University work in Canberra, and that he has continued to engage in consultancy work but to a lesser extent. His main problem with the consultancy work has been with the effect of long-haul air travel on his neck. He generally flies economy, which is, as he said, what the client will pay for. The flight from Sydney to Bangkok is nine hours. He uses a neck pillow or cushion which he has bought for the purpose but he still finds that he has a painful neck during the flight, and after arriving at his destination. Handling his luggage at the airport is also a problem for him.
The plaintiff has developed a pattern of attending at a private hospital in Bangkok for foreigners. He explained that the provision of medical services to foreigners has become a large industry in Thailand. He would usually go to the hospital once or twice on a trip to Bangkok. He finds that he is treated without delay by a doctor and a physiotherapist. Sometimes he will be referred to a specialist who will see him on the same day. The hospital is open until late at night, which is convenient to the plaintiff who has work commitments during the day. He finds that the physiotherapy provides relief from his symptoms, using massage therapy and sometimes ultrasound. A visit to the hospital generally costs him, after conversion to Australian dollars, about $55.00 to $60.00.
On some occasions the plaintiff has upgraded to business class at his own expense. This might cost $800.00 each way. He finds that if he travels business class he is slightly more comfortable and has slightly less neck pain on arrival, but still some neck pain.
The plaintiff’s oral evidence was that he was probably averaging only about half the time out of Australia each year as he had been undertaking before the accident.
There were some occasions before the injury where the plaintiff declined an offer of a trip overseas for a consultancy project because he was otherwise committed. Since the accident he had refused offers a few times a year. He tended not to mention his neck pain because he thought that this might result in fewer offers in the future. In late 2011 he received an offer from an economic adviser working for the government of Kuwait. He said that he would not be interested if it involved a lot of travel, and the matter was not taken further. It would have been lucrative for him and would have given him work past retirement at the University but it would have involved a lot of travel to Kuwait and back.
In April 2012, he was approached by ANU Enterprise, an agency of the Australian National University, which was developing a bid for a tender to AusAid. He was asked whether he would be interested in being economics co-ordinator for the bid. He told the questioner that he had a neck problem which affected travel. The project was expected to take a minimum of three and perhaps up to nine years of intermittent work and would have involved travel to a number of overseas destinations. Like the Kuwait project, it would have been likely to take him well beyond retirement from his University appointment. His evidence was that if it had not been for his neck pain he would have accepted the position, and he still regretted that he had had to miss the opportunity.
Prior to the car accident his intention had been to retire at age 65 and to move into full-time consulting work, which he expected would increase his income. There is, he said, no longer any retirement age for a tenured academic. He could in theory continue as a professor well beyond that age, and following the injury, his intention was to continue longer at the University than he otherwise would have, perhaps through to about 2015.
The plaintiff suffered from headaches during the early period after the collision, but these had resolved long before trial. He continued, however, to have restriction of neck movement, particularly rotation to the left, which caused him some difficulties in reverse parking.
Prior to the accident he regularly played with his children, for example cricket in the park, and rugby-related activities, but found that he could no longer engage in physical activity of that kind because of neck pain. After the accident he had a lot of trouble getting to sleep, and tended to wake during the night with neck pain. In his words, marital relations had tapered off radically since his injury. He was unable to do as much around the house, and now avoided lawnmowing and cleaning roof gutters.
The plaintiff said that he went almost every weekend to his weekend cabin on the Murrumbidgee River south of Canberra. Before the accident he used to spray for weed control, using a knapsack-style sprayer. The block is some 400 hectares of hilly land, and he found himself unable to do the spraying himself after his injury. He has since engaged a certified contractor who sprays three or four times a year, at a cost to the plaintiff of between $1,000.00 and $2,000.00 a year. The contractor also does road repairs and other odd jobs.
It was put to the plaintiff during cross-examination that he had refused to sign authorities prepared by the defendant’s solicitors and sent to his solicitors, giving permission to the various overseas agencies for which he had done consulting work to verify payment details. He conceded that he had instructed his solicitors to reply accordingly, after receiving their advice that he was not obliged by the processes of the court to do so. I do not see this as aimed at hiding anything, but rather as a reflection of his frustration at that time with what he saw as part of a deliberate process by the defendant’s insurer and its solicitors to badger him for what he saw as unnecessary additional information. This is not to say that his perception was correct, or that anything done on behalf of the defendant by way of preparation for trial was unnecessary or unreasonable, but it does provide some explanation for his apparent recalcitrance.
After extensive cross-examination, counsel for the parties agreed that the plaintiff had made five overseas trips during 2005, six during 2006, seven during 2007, seven during 2008, seven during 2009, eight during 2010 and seven during 2011. He had made two further trips during the first four months of 2012.
The plaintiff agreed that prior to the car accident he had sought treatment for a prostate problem, and that this had tended to interfere with the quality of his sleep before the accident and since, causing a need to relieve himself during the night a couple of times. Since the accident the plaintiff had developed carpal tunnel syndrome in the left forearm, diagnosed in 2010. He did not know whether it was causally associated with the car accident or not. It had got worse over time and was at a point by trial where he had decided to have surgery on the left wrist. It was a further factor interfering with his sleep at night. There were some similar symptoms in the right hand but much less pronounced.
The medical evidence
Senior counsel for the plaintiff tendered a report by his general practitioner,
Dr Shihoff, prepared in August 2008. Dr Shihoff diagnosed post-whiplash aggravation of osteoarthritis of the facet joints in the cervical spine, with trauma to surrounding ligaments and other soft tissue, compromising the neural exit pathway at the C7 level. The symptoms at the time of the report had continued for more than a year, and in those circumstances Dr Shihoff predicted that his neck pain was likely to flare periodically, and to wax and wane. He said that in his experience the plaintiff was a person who usually played down his symptoms.
All of the other medical evidence came from specialists qualified for the case. Dr Brooder, a neurologist practising in Albury, saw the plaintiff twice, in December 2008 and April 2012, and gave oral evidence. He accepted that the plaintiff had been free of neck symptoms prior to the car accident, although radiological investigations had demonstrated mild multi-level degenerative cervical spondylosis with small anterior osteophytes and degenerative changes within the facet joints from the C4 to the C7 level, with minimal posterior intervertebral disc bulges at C5-6 and C6-7. These changes predated the accident but had only become symptomatic some weeks after the accident. The reported symptoms were consistent with aggravation to the degenerative changes in the cervical spine, particularly at the C6-7 level on the left, associated with the development of a painful left C7 radiculopathy. There was some prospect that his pain would improve with further treatment, but Dr Brooder thought it likely that he would remain subject to neck and shoulder girdle pain to some degree indefinitely, having regard to the fact that his pain had persisted for some two years. Accordingly his long-term prognosis was guarded.
When Dr Brooder saw the plaintiff for the second time in 2012, he had developed intermittent numbness and tingling in both hands, the left being more affected. This had been diagnosed by the plaintiff’s doctors as caused by severe bilateral carpal tunnel syndrome. The prognosis for this syndrome was somewhat more favourable than for the neck and shoulder, with a reasonable prospect that improvement would follow decompressive surgery to the left median nerve at the wrist. In Dr Brooder’s view the carpal tunnel syndrome was unrelated to the car accident.
The neck and shoulder symptoms had continued over the period at much the same level. The plaintiff had reported that these symptoms were worsened by his travel to Southeast Asia. The plaintiff had by the time of Dr Brooder’s second report complained of persistent pain in the neck and shoulder for more than five years, with no improvement despite prolonged conservative treatment. This was due to aggravation of underlying degenerative changes in the cervical spine, and the development of left C7 radiculopathy. It remained most likely that the plaintiff would suffer from pain and associated disability to some degree indefinitely.
Dr Brooder explained in his oral evidence that the C7 radiculopathy was a term for irritation of a nerve root, initially causing pain along the distribution of the nerve, developing into sensory disturbance with further pressure on the nerve root, and, with sufficient pressure, weakening of surrounding muscles leading to motor dysfunction. The plaintiff’s condition was by the time of trial limited to pain and perhaps sensory disturbance. It was possible to have radiculopathy without sensory disturbance, and this had been the plaintiff’s position in the earlier period after his injury. He said that radiculopathy and carpal tunnel syndrome could occur at the same time in a patient. They were totally independent of each other and clinically easily distinguished.
Dr Brooder said that whilst it was not possible to be certain, in his opinion it was far more likely that not that the plaintiff would not have developed neck pain if it had not been for the car accident.
The plaintiff was referred by his solicitors in October 2010 to Dr Leon Le Leu, a Canberra occupational physician. He diagnosed a whiplash injury with a component of exacerbation of pre-existing but asymptomatic cervical spondylosis. He was also suffering from carpal tunnel syndrome, worse on the left side, but this was unlikely to have been caused by the car accident.
Dr Le Leu quoted from a text on the duration of symptoms following a whiplash injury. He said that most patients recovered well, with mild symptoms resolving within six months. On average, more severe injuries without disc involvement resolved in 21 months. Injuries to patients with existing degenerative changes resolved on average within 30 months. After two years, 42% of patients had recovered completely, 15% were still suffering mild discomfort and 43% had significant discomfort affecting their work. He said that the plaintiff was in the group with degenerative changes. He still had significant symptoms beyond 30 months and was likely to form part of the group of continuing significant discomfort. Dr Le Leu did not give oral evidence.
The solicitors for the defendant qualified a Sydney occupational physician,
Dr Virginal Pascall, as an expert witness. Dr Pascall saw the plaintiff twice, in May 2009 and August 2011. In her first report she arrived at a diagnosis that the plaintiff had sustained a whiplash associated disorder. She did not accept that the plaintiff suffered from impingement or irritation of the C7 nerve root. She thought that the most likely cause of the plaintiff’s neck pain was irritation of an arthritic facet joint, perhaps accompanied by some ligamentous strain or tear at the time of the injury. This had probably resolved and it was more the aggravation of degenerative changes in the facet joint at mid-cervical level that was causing the plaintiff’s symptoms. She found tenderness at C6-7 but suspected that this had been of longer duration than only since the car accident. She accepted that the plaintiff had made no attempt to amplify his symptoms. He was clear, succinct and definite, and a convincing historian.
She recorded as part of the history she took from the plaintiff his statement that his neck pain was at a level of about 80% of what it had been in the months immediately after the injury.
Dr Pascall was satisfied that the slow evolution of symptoms after the accident was consistent with the injury being an aggravation of degenerative facet joints in the cervical spine. She said it would have required some time for the inflammation to build up around and in the facet joint. This would account for the period between the car accident and the plaintiff noticing the irritation. She said that he was a busy person who did not have time to feel distressed and unable to do his work, so that minor physical complaints were likely to be ignored or suppressed. The fact that he noticed the neck pain a week or ten days after the accident was consistent with the pain by then having become sufficiently intrusive to attract his attention. She thought that over time, the aggravation would subside further and cease, although the affected area might be subject to further irritation in the future. She thought that the restrictions he described were only slightly more than she would have considered reasonable for a man of his age. It was possible that he would continue to suffer niggling neck pain indefinitely, but she would not see this as caused by the car accident. Episodes of pain were the natural course of a degenerative spinal condition.
In her second report in September 2011, Dr Pascall noted that he had developed carpal tunnel syndrome in the left hand. She expressed scepticism about the plaintiff’s complaints related to his overseas work. She accepted that he experienced increased neck pain periodically, associated with long flights. Somewhat surprisingly for an expert medical witness, she apparently made some enquiries through her “professional network” and was informed that a professor of agricultural economics dealing with crop growing in Southeast Asia did not go into the field, but worked in the main centres and had research assistants deal with fieldwork. She deduced from the history she had obtained from the plaintiff that he was focused on macroeconomic issues, and expressed the opinion that there was no reason for him, at this stage of his career, to be undertaking work in the microeconomic field. She said that she had examined ANU documents which had been sent to her by the solicitors and noted that he had only ever nominated capital cities in Thailand, Laos and Indonesia as his destinations when applying for leave from the University. She concluded that she very much doubted that the plaintiff had lost any income based on inability to accept consulting work in physically demanding locations. She said that he did not need to accept all the work that was available. Because of his reputation and experience he could pick and choose the more favourable offers, and reject those entailing physical hardship. She suspected that he was working to his full capacity undertaking the more comfortable jobs and had no financial need to undertake the less comfortable ones. She noted that he flew to Asia economy class. His neck problems would be greatly reduced if he flew business class, but, as she put it, he chose not to.
Her prognosis was that the plaintiff’s degenerative cervical spine would continue to degenerate, which might increase his level of pain over time. She did not expect him to improve substantially.
She expressly disagreed with Dr Brooder’s opinion that the plaintiff was suffering from a C7 radiculopathy.
She agreed that the carpal tunnel syndrome was unrelated to the car accident.
In a subsequent report, Dr Pascall stated that at the plaintiff’s level he would be provided with funding that would allow him to travel business class for overseas business purposes. She had the impression that he chose to fly economy so that he could provide tickets for his family. This was not put to the plaintiff in cross-examination and appears to me well outside Dr Pascall’s area of expertise.
Dr Pascall expressed the view that, five years after the accident and with the plaintiff five years older, it would not be reasonable to suppose that he would not have had any symptoms in his neck through the natural ageing progress, having regard to the extent of degeneration and his general fitness. Accordingly, she said that his present level of symptomatology was not a consequence of the motor vehicle accident. He would have been expected to improve over the five years but this had not happened and he had in fact deteriorated. This was because of the degeneration and not the car accident. Inconsistently with her first report, Dr Pascall said that assuming that the inflammatory changes had taken 24 hours to 48 hours to occur, this was well outside the time period of an aggravation caused by the car accident and might have been caused by his work. In her opinion, the plaintiff’s symptoms by 2012 were solely caused by his progressive degenerative process, and were not caused by the car accident. It was possible that the accident had not caused his symptoms to arise in the first place and that all along the sole cause of his problems had been the degenerative changes in the neck.
Dr Pascall gave oral evidence by telephone.
In her final report and in her oral evidence she appears to have misread her 2009 note, and recalled, incorrectly, that the plaintiff had told her that he was 80% better when she saw him than he had been immediately after the collision. She appeared to rely on this in arriving at her opinion that the continuing symptoms were due to the degenerative condition and not the collision. In fact it is clear from her first report that what the plaintiff told her was that his symptoms were at a level 80% of what they had been earlier, meaning that he was 20% better than he had been.
The accounting evidence
The plaintiff relied on an economic loss report prepared in January 2011 and a short supplementary report in May 2012 by Mr Geoff Davis of Macquarie Reporting Services. Mr Davis is a certified practising accountant with a degree in Economics and a Master’s degree in Commerce. Mr Davis has been preparing reports and giving evidence as to loss of earnings and earning capacity in personal injury litigation for more than twenty years. He was not required for cross-examination. He had been asked to make a number of assumptions, and provided with copies of the plaintiff’s tax returns for the previous 10 years. The plaintiff’s salary from the ANU was some $93,000.00 in 2002, and rose by reasonably regular increments over the years. In the year of the accident, 2007-2008, his salary had grown to $143,000.00, and in the last full financial year before trial, 2010-2011, was $172,000.00. As I have previously mentioned, the plaintiff did not declare his consulting income until 2011, when he lodged, through his accountants, amended returns for 2008-2009 and 2009-2010. In those years he declared additional consulting income of $31,000.00 and $7,000.00. In his 2010-2011 return he declared consulting earnings of $25,000.00.
Mr Davis, based on the assumptions he was asked to make, calculated the plaintiff’s loss of earnings up to mid-April 2010 at $280,000.00. He calculated the present value at that time of the plaintiff’s loss of earning capacity for the future at $248,000.00 to $332,000.00, depending upon whether the plaintiff ceased to work for reward at age 70 or 75. He calculated the cost of paid assistance consequent on the plaintiff’s injury, at his home and his rural property, at $2,800.00 for the past and $4,500.00 for the future.
The defendant’s solicitors qualified a chartered accountant, Mr Richard Ivey, a principal in the Wellington (NSW) office of the firm WHK Ivey. Mr Ivey prepared three reports for the defendant’s solicitors, based upon assumptions he was asked to make. His figures were much more modest than those arrived at by Mr Davis. Mr Ivey calculated the plaintiff’s past loss of earnings at $33,000.00 after tax and his future loss within a range of $24,000.00 to $45,000.00. He worked out the expenses for the past at $1,400.00, and the present value of the future probable expenses at $2,00.00.
Both of the accountants prepared very lengthy reports. There is no challenge to either of the accountants as to methodology or arithmetic. The challenge is as to the assumptions they were asked to make.
Accountants are by training, and in some cases perhaps by nature, inclined to precision in the calculation of figures. Both accountants provided lengthy and detailed reports, showing the reasoning by which they arrived at their final figures. My difficulty is that I am by no means satisfied on the evidence that a precise approach is appropriate or possible in this case. As to what the plaintiff’s earnings might have been from the date of the accident to the date of judgment, there is a considerable degree of speculation as to how much work he might have been offered, and to what extent the impact of his injuries upon him had led to a reduction in the amount he would have earned after tax if the accident had not occurred. The position for the future is even more speculative. The plaintiff is now 66. He might or might not by now have retired from his chair at the ANU to devote himself full-time to overseas consultancy work. I do not reject his evidence of his intention in that regard, but I am not satisfied that he would have retired as a professor by now. At best I can say that there was some likelihood that he might have done so. The correct approach in the assessment of damages to future matters of this kind is to take account of that likelihood: it is not necessary for the plaintiff to establish on the balance of probabilities that he would have done so.
The position as to the future is if anything even more speculative. I accept that there is no longer a retiring age for a University professor. The plaintiff might or might not have worked on in that capacity to date and into the future. He might have decided to retire completely from the workforce at age 70, or might have continued on for a few more years. It would, I have no doubt, have been available to him to reduce his consultancy workload without risk that he would lose all of it, and it seems likely to me that he would have done so, if he had kept on with consulting work, after the age of 70.
It is, in those circumstances, inappropriate to treat the calculation of past loss and, even more so, of future loss, as a mathematical exercise. I have found the reports of both of the accountants of some assistance but I see it as quite inappropriate to accept one party’s figures or the other’s. It is rather a matter of discretion and judgment for me to arrive at figures which will properly compensate the plaintiff for his impaired earning capacity, past and future.
Factual findings
I have already said that I found the plaintiff a truthful and reliable witness, subject only to my misgivings on the question of disclosure of past consultancy earnings to the Tax Office. I generally but not entirely agree with Dr Pascall as to the plaintiff’s reliability as a historian. By the time of trial he was giving evidence about events of five years earlier, and it would be unusual for a witness relying solely on memory to give totally accurate evidence about dates and periods of time, and probably even about severity of pain at particular times. I generally prefer, as I do in this case, contemporaneous written records such as clinical notes of doctors and hospitals, and employment and bank records, where these are available.
It is human nature to remember some things in a selective way, and I think that the plaintiff probably did this, although I do not suggest other than subconsciously. I am sure he believes that his consulting work dropped off after the accident, and that consequently his earnings from consultancy work also fell away. It is not easy to plot this in time or dollar terms from the written records.
Having said that, I am satisfied that the plaintiff continues to suffer from neck pain and left arm pain, tingling and pins and needles. I am satisfied that these vary in intensity but to an extent are always there and even when at a less severe level they are a continuing nuisance to him at least, interfering with many of his work and other activities.
I accept that there are some household duties he can no longer attend to, and that there are a number of pleasurable activities no longer open to him, in particular playing and engaging in sporting activities with his children, reducing his enjoyment of life.
There is no inconsistency in the medical evidence on the plaintiff’s side. The medical issue is between the plaintiff’s doctors and Dr Pascall. I prefer the plaintiff’s doctors. Dr Pascall seems to have seen her task almost as that of a forensic investigator rather than purely an independent medical practitioner. No doubt to some extent this follows from the requests made of her by the solicitors for the defendant. But she has displayed a tendency to go well beyond her field of expertise, for example making enquiries of an unidentified acquaintance who is an academic agricultural economist, and making assumptions apparently based on her own experience (not as an occupational physician) about resources available to University professors. A further example is that I accept the plaintiff’s evidence that the overseas bodies for whom he has undertaken consultancy work generally offer the task with economy air travel paid for. Dr Pascall, as I understand her evidence, advances the proposition that he must have opted to travel economy class rather than business class for some personal benefit related to travel for members of his family. There is no basis for such an assumption. No such proposition was put to the plaintiff in his own evidence. This causes me some concern as to whether Dr Pascall’s opinion as to medical matters has been infected by assumptions she has made and information she has gleaned which go beyond the assumptions she has been asked to make and are inconsistent with the other evidence in the case.
As to the radiculopathy issue, I prefer the evidence of Dr Brooder, a practising neurologist, to that of Dr Pascall. The issue is one squarely within Dr Brooder’s field of expertise, and in any event I found his evidence more persuasive as a matter of logical reasoning.
As to causation, I accept the evidence of the plaintiff’s doctors that the motor vehicle collision was a cause, and probably the continuing major cause, of the plaintiff’s pain and other symptoms. He was symptom-free before the accident. There is no evidence of any other incident which, absent the accident, might have caused his degenerative condition to become symptomatic. As to the future, it is of course possible that the plaintiff might fall victim to some such traumatic incident, but I see this as a neutral factor. Quite apart from the fact that there is no evidence that such a possibility is a high one, if such an incident happens in the future it seems likely that it would aggravate the plaintiff’s present condition, but the car accident would remain a cause of the continuing symptoms after the aggravation.
It defies reason that a previously asymptomatic plaintiff would develop the symptoms this plaintiff has, but that a point would have been reached at some arbitrary time when his continuing symptoms were no longer to be blamed upon the accident but solely upon the degenerative state of his cervical spine.
I repeat that I am satisfied that the motor vehicle collision is at least a cause, and almost certainly the major cause, of the plaintiff’s symptoms since the accident and continuing.
Damages
As to general damages, I am satisfied that the plaintiff has suffered a serious diminution in his enjoyment of life, and a degree of permanent neck pain and symptoms in his left arm. Senior counsel for the plaintiff seeks an award of general damages of $80,000.000 to $100,000.00. Counsel for the defendant concedes that if I were to make the findings of fact which I have made, an award of $70,000.00 to $80,000.00 would be appropriate. I accept Dr Shihoff’s evidence that in his long experience as the plaintiff’s general practitioner, the plaintiff is a man who generally plays down his symptoms. It seems to me that an appropriate award of general damages for pain and suffering and loss of enjoyment of life is $90,000.00.
I apportion that amount equally between the past and the future. The past component attracts interest at the rate applicable under the general law of 4% per annum. The past component should be seen as notionally spread over the period from the accident to date, but more heavily weighted toward the first twelve months. For interest I award $7,000.00.
By the time of trial the plaintiff had incurred treatment expenses of $2,288.61, of which the defendant’s insurer had paid $589.69. The last of the payments by the insurer was in 2008 and I infer that no further payments have been made by the insurer since trial. I think it likely that the plaintiff will have incurred further expenses for treatment since trial. I allow $3,000.00 for past treatment expenses.
The portion of that paid by the plaintiff has been paid at a fairly regular rate over the years since the accident. The amounts paid by the plaintiff attract interest at the prescribed rate. In the absence of any submissions or calculations by counsel for either party, I award interest on the past treatment expenses paid by the plaintiff of $600.00.
As to future treatment expenses, the plaintiff puts a range of $3,500.00 to $5,000.00. Counsel for the defendant submits that a sufficient award would be $2,000.00. I note that the 3% multiplier for a man aged 66 to death is 629. It seems to me that a reasonable allowance would be $4,000.00.
For past loss of earnings, senior counsel for the plaintiff puts a range of $50,000.00 to $90,000.00. Counsel for the defendant concedes a figure of $39,000.00. It is, as I have said, a matter of judgment not really capable of precise mathematical calculation. I propose to award $65,000.00 for past loss of earnings.
That sum attracts interest which should be apportioned over the period since the cause of action arose, which I calculate at a rounded figure of $20,000.00.
For future economic loss, senior counsel puts a range of $100,000.00 to $130,000.00. Counsel for the defendant relies on Mr Ivey’s range of $71,000.00 to $96,000.00. Even more so than with past loss of earnings, the figure for the future is a matter of discretion and judgment. $100,000.00 seems justified on the evidence and I allow that amount.
The plaintiff seeks the amount he has paid for lawnmowing and work on his property. Whilst I accept that the plaintiff reasonably no longer mows the lawn, the evidence is that there were occasions before the accident when paid assistance was utilised in that regard. Similar considerations apply to the work that the plaintiff has paid for on his property, involving pest control spraying, road mending, fencing and similar tasks. The plaintiff seeks some $15,000.00 for the past. Counsel for the defendant has not included anything towards this in his figures. I am satisfied that some of this expenditure was reasonably caused by the car accident. I allow $8,000.00 plus interest of $2,000.00.
For the future, senior counsel for the plaintiff seeks $40,000.00. Again, counsel for the defendant has made no allowance. I take account of the fact that the plaintiff is now 66 and as he gets older will be increasingly likely to require assistance of this kind, and would have been regardless of the car accident. I allow $10,000.00 for future expenses in this category.
The plaintiff claims damages for the notional commercial cost of services provided by his wife and children. The hourly rate to be applied is agreed at $22.00. The plaintiff seeks $6,500.00 for the past and $18,000.00 for the future. The defendant concedes only some $1,400.00 for the past and $2,000.00 for the future. The plaintiff’s figures, it seems to me, are much too high. I am not satisfied that there is a great deal that his wife needs to do which she did not need to do before. To an extent what has happened is a rearrangement of tasks within the family. A notional allowance only is in my opinion justified. I allow $3,000.00 for the past, plus interest of $900.00, and a further $3,000.00 for the future.
The components of the award of damages are accordingly as follows:
General Damages $90,000.00 - interest on past component $7,000.00 Treatment Expenses - past $3,000.00 - interest $600.00 - future $4,000.00 Loss of earning capacity - past $65,000.00 - interest $20,000.00 - future $100,000.00 Spraying, mowing and the like - past $8,000.00 - interest $2,000.00 - future $10,000.00 Gratuitous services - past $3,000.00 - interest $900.00 - future $3,000.00 __________ $316,500.00
Upon consideration, that total seems to me to represent a proper reflection of the impact of the defendant’s negligence on the plaintiff. There will be judgment for the plaintiff for $316,500.00.
I order that the defendant pay the plaintiff’s costs. That order will not take effect for 14 days, in case either party wishes to make application for a different order. This can be done within the fourteen-day period by email to my associate with a copy to the other side.
I certify that the preceding seventy eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Harper.
Associate:
Date: 12 November 2013
Counsel for the plaintiff: Mr S H Pilkinton SC
Solicitors for the plaintiff: Maliganis Edwards Johnson
Counsel for the defendant: Mr R P Clynes
Solicitors for the defendant: Moray & Agnew
Date of hearing: 7, 8, 9, 10, 14 May 2012
Date of judgment: 12 November 2013
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