Pollard v Simpson
[2013] QDC 212
•27 September 2013
DISTRICT COURT OF QUEENSLAND
CITATION:
Pollard v Simpson & Anor [2013] QDC 212
PARTIES:
Christine Mary Pollard
(Plaintiff)
v
John Frederick Simpson
(First Defendant)
&
AAI Limited ABN 48 005 297 807
(Second Defendant)
FILE NO/S:
106/11
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court in Mackay
DELIVERED ON:
27 September 2013
DELIVERED AT:
Brisbane
HEARING DATE:
19 - 21 August 2013
JUDGE:
Kingham DCJ
ORDERS:
1. I will hear from the parties about the form of orders which will give effect to my decision, including the discounted award for future economic loss and the calculation of interest.
2. Unless the parties submit for a different order within 7 days, the second defendant must pay the plaintiff’s costs of and incidental to these proceedings, assessed on the standard basis, if not agreed.
3. Unless agreed orders are provided by the parties beforehand, the matter is listed for mention on Wednesday, 16 October 2013 at 9:30am.
CATCHWORDS:
CIVIL – MOTOR VEHICLE ACCIDENT – ASSESSMENT OF QUANTUM – where liability was admitted – where the plaintiff sustained a similar injury during an earlier accident - where the plaintiff owned and operated two businesses prior to the accident – where the plaintiff is now unable to work as many hours as she had prior to the accident – whether the plaintiff’s current capacity to work has diminished – whether economic consequences flow to the plaintiff from that diminution – whether any award for economic loss should be reduced because of the pre-existing injury.
Civil Liability Regulation 2003 (Qld).
Husher v Husher & Anor (1999) 197 CLR 138, applied.
COUNSEL:
Mr J.J. Wiltshire for the Plaintiff.
Mr R.D. Green for the Defendants.
SOLICITORS:
Shine Lawyers for the Plaintiff.
Grant & Simpson Lawyers for the Defendants.
Mrs Pollard was injured on 11 November 2009, when a motor vehicle driven by Mr Simpson collided with the rear of the vehicle she was driving. Mrs Pollard’s vehicle was stationary and she had indicated her intention to turn right when the collision occurred. Mr Simpson’s liability for the collision is admitted.
The trial was concerned only with what award of damages should be made to Mrs Pollard. The parties agreed on some of the items claimed by Mrs Pollard, the most important being the amount that should be awarded as general damages for pain, suffering and loss of amenity.
Mrs Pollard sustained a generalised musculoligamentous injury, or a soft tissue injury to the cervical spine. Mrs Pollard also aggravated pre-existing degenerative changes in the cervical spine, which were caused by an earlier accident.[1]
[1] Exhibit 2.2 – Report of Dr. Allan E. Cook, 12/03/11.
Although there is some dispute about her future needs, the parties agreed that she should be awarded $9,800 in general damages, the figure arrived at applying ISV9 under the Civil Liability Regulation 2003 (Qld).
The primary area of contest involved the calculation of damages for past and future economic loss. Mrs Pollard is unable to work as many hours as she did prior to the accident, although the defence case is that she is capable of more than she is doing.
The assessment of damages for economic loss is complicated by two factors. Firstly, prior to the accident, Mrs Pollard and her husband operated two businesses. Mrs Pollard worked in both. Mr Pollard has since passed away. One of the businesses was winding down before the accident and has since ceased trading.
Secondly, she had been involved in a strikingly similar collision in July 1994, sustained the same type of injury and, afterwards, was found to have a degenerative condition. The parties do not agree whether her condition was stable at the time of the later injury or whether the award for future economic loss should be discounted to account for the possibility that her capacity to work would have been affected, in any case, by her pre-existing condition.
To determine her award for past and future economic loss, the court must first determine the extent to which Mrs Pollard’s earning capacity has been diminished and then assess the economic consequences that flow from that.[2] It must also determine whether her award should be reduced because of her pre-existing condition.
[2] Husher v Husher & Anor (1999) 197 CLR 138, 143[7] per Gleeson CJ, Gummow, Kirby & Hayne JJ.
The parties have not agreed on a number of the items claimed as past expenditure or as future expenses. Some amounts are in dispute because the parties do not agree about what domestic assistance Mrs Pollard did or will require. For other amounts relating to past or future treatment, their disagreement is whether they are reasonable and necessary expenses.
The issues are:
(a) What award should be made for past and future economic loss:
(i) What is Mrs Pollard’s current working capacity?
(ii) What economic consequences flow to Mrs Pollard from the diminution in her working capacity?
(iii) Should Mrs Pollard’s award for economic loss be reduced because she had a pre-existing degenerative condition?
(b) What amount should be awarded as special damages for Mrs Pollard’s past expenses?
(c) What amount should be allowed for future assistance and for treatment of Mrs Pollard’s injuries or symptoms?
(a) What award should be made for past and future economic loss?
(i) What is Mrs Pollard’s current capacity to work?
Mrs Pollard and her husband established two businesses: a fencing contract business known as West Coast Fencing and a service station and rural supplies business known as Valley Rural Services. At the time of the accident, Mrs Pollard estimated she worked around 70 hours a week across the two businesses. West Coast Fencing is no longer operating. Mrs Pollard continues to work in the Valley Rural Services business but says she is unable to sustain more than 20 hours a week because of her injuries from this collision.
As well as Mrs Pollard’s evidence, the court heard from orthopaedic surgeons and occupational therapists about her condition and capacities. Both surgeons assessed her impairment by reference to the American Medical Association Guides to the Evaluation of Permanent Impairment (5thed). Dr Cook, the orthopaedic surgeon called by Mrs Pollard, assessed her level of impairment at DRE Category II at 8%.[3] This reflected the extent to which Mr Pollard is restricted in her activities, the frequency of her pain and her inability to work for more than 3.5 hours at a time without pain.[4]
[3] Exhibit 2.5 – Report of Dr. Allan E. Cook, 26/02/13, p 8.
[4] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-95[27]-[29].
Dr Halliday, called by the defendant, agreed her injury was a DRE Category II. However, he assessed Ms Pollard’s impairment at 6%, because there are many activities in which she is not restricted. He put her impairment in the mid-range for that category. [5]
[5] Exhibit 2.3 – Report of Dr. Brett Halliday, 1/06/11, p 6.
They also differed on the extent to which her current impairment was attributable to her pre-existing condition, a topic to which I will return.
I prefer the evidence of Dr Cook about Mrs Pollard’s current impairment to that given by Dr Halliday. Dr Halliday was unable to identify an orthopaedic pathology to explain Mrs Pollard’s inability to work more than 3.5 hours in a stretch. There was no other evidence that he said he could act upon in giving his opinion.[6]
[6] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-96[8] – [17].
Dr Cook assessed her impairment relying, in part, on what Mrs Pollard told him she was capable of doing. He noted she operated her own business and might be expected to work longer hours if she could.[7] That assumes a factual finding the court must determine. For reasons expressed at [24] – [25], I accept Mrs Pollard’s evidence about her current condition is honest. Dr Cook’s assessment assumes that finding, Dr Halliday’s does not.
[7] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-95[21]-[27].
Further, Dr Cook said his opinion reflected the history given by Mrs Pollard. In his experience, a person who has had a similar previous injury, even with a good level of recovery, will experience more severe symptoms from the second injury than might otherwise be expected.[8] Dr Halliday agreed with that proposition.[9] This tends to support Mrs Pollard’s evidence that she is more severely affected than the condition might suggest she should be.
[8] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-96[43] – 1-97[1].
[9] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-98[9] – [15].
Before moving from the surgeons’ evidence, I will refer to their opinions about an incident in October 2010.[10] Mrs Pollard said her husband was driving her to a chiropractic appointment in Mackay when she experienced severe pain and seemed to pass out. As she awoke in the car she said she heard her husband screaming into the phone that he needed an ambulance.[11] She was admitted to hospital and diagnosed with acute severe tauticollis. The progress notes recorded her presenting condition as severe neck pain worsening for over a week. Neither surgeon could identify a physiological reason for this event which related to her injury.[12] Dr Cook proposed that it might have something to do with the position of her neck at the time of the collision, but Dr Halliday was not confident there was a connection with the accident. Ultimately, it did not affect their opinions about her level of impairment.
[10] Exhibit 2.1 – X-Ray Report of Queensland X Ray, 27/10/2010.
[11] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-65[32] – [35].
[12] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-101[8] - 1-101[5].
Both parties called occupational therapists who assessed Mrs Pollard’s work capacity. They agreed she was no longer fit for the physical demands of the previous fencing business and that she was best suited to administrative work. Both noted her reports of pain with maintaining static postures and sitting. This reduced her options for employment as travelling any distance to work would be difficult. Although administrative or sedentary duties were most appropriate, they agreed she would need to change her posture frequently. This is something she can do in her own business.
Ms Hague, called by Mrs Pollard, considered the need for limited hours and frequent change in position and posture would make her less competitive in the labour market. Ms Jones, called by the defendant, did not consider this to be an issue, given her status as the owner of the business. She was unable to comment on Mrs Pollard’s prospects of securing appropriate employment if she sold the business, unless she relocated to a larger commercial centre.[13]
[13] Transcript of Proceedings, District Court at Mackay, 20/08/13, 2-82[31] – [38].
As with the orthopaedic surgeons, a point of difference between Ms Hague and Ms Jones was whether they accepted Mrs Pollard’s reports that she cannot work more than 3.5 hours at a time without pain. Ms Hague agreed that Mrs Pollard was safe to work longer hours, by which I understood her to mean that her physical health would not be compromised by longer hours, although Mrs Pollard would experience pain from doing so. Ms Hague said that she also considered whether working longer hours was sustainable. She accepted that Mrs Pollard had found a level of work that enabled her to maintain both employment and a level of activity in the home.[14]
[14] Transcript of Proceedings, District Court at Mackay, 20/08/13, 2-82[15] – [21].
Ms Jones was less inclined to accept that Mrs Pollard was not capable of longer work hours. She had observed other people with similar pain levels being able to work longer hours.[15]
[15] Transcript of Proceedings, District Court at Mackay, 20/08/13, 2-81[42] – [45].
That may be so, but it is Mrs Pollard’s situation that the court is concerned with. An assessment based to some extent on the subjective experience of pain is unavoidable. Both Ms Jones and Ms Hague expressed the view that pain can only be measured subjectively and different patients will experience pain differently.[16] I have also had regard to Dr Cook’s evidence about the experience of symptoms from a second similar injury being more severe than might be expected. Both occupational therapists considered Mrs Pollard was consistent in her presentation and had no reason to doubt her self-reported pain.
[16] Transcript of Proceedings, District Court at Mackay, 20/08/13, 2-82[32]-[34] & 2-83[40] – [43].
Mrs Pollard gave evidence that she has been a physically active and hard worker during her adult years. Bill Smith, a witness to whom I will return shortly, first encountered Mrs Pollard after she had recovered from the first collision. She was standing on the back of a truck shovelling blue metal and powder into a mixer, a hard physical task he was not used to seeing a woman undertaking.[17] Her return to physical labour after the first collision suggests she is well motivated to work and not prone to exaggerating her symptoms.
[17] Transcript of Proceedings, District Court at Mackay, 20/08/13, 2-57[32] – [37].
Mrs Pollard and her husband demonstrated an admirable level of industry and enterprise in establishing two businesses, one of which Mrs Pollard has maintained since the accident. She impressed me as a woman committed to her business, which is her only source of income. I accept that she would work longer hours if she could sustain that. I am satisfied on the balance of probabilities that Mrs Pollard is not fit to work more than 20 hours per week and then only in a sedentary occupation such as an administrative role, provided she had capacity to frequently change her posture, position or activity.
What economic consequences flow to Mrs Pollard from the diminution in her working capacity? (ii)
The first business that Mr and Mrs Pollard established was called West Coast Fencing. Initially they lived in and operated this business in Western Australia, before moving to Finch Hatton, near Mackay, where they continued to operate the business.
It supplied fencing services on a contract basis to the Department of Housing. Mr Bill Smith, the departmental manager with whom they dealt, then moved to BMA - a large mining venture operating in the region. Mr Smith brought West Coast Fencing in as a subcontractor for their fencing work. In April 2010, after Mr Smith had left BMA and a large fencing contract for BMA in Dysart was complete, the business effectively ceased trading.
The second business, Valley Rural Services, was comprised of a service station and rural supplies store. Mrs Pollard said they bought this business largely for the land and infrastructure. When they bought it, the business was run down. Its facilities included a large shed. Mr and Mrs Pollard used the shed to manufacture fencing panels. This was necessary because their prior supplier of fencing materials could not guarantee supply at the level required for West Coast Fencing to perform its Dysart contract for BMA. Valley Rural Services billed West Coast Fencing for the fencing materials. It also engaged contractors and billed West Coast Fencing for their work. In this way, the two businesses were inter-related.
Mrs Pollard engaged an accountant, Mr Thompson, who prepared a number of reports about the businesses. He considered how Mrs Pollard’s loss might best be calculated given she had owned two businesses, one no longer operating, which were to some extent connected. In his report of 13 October 2011, Mr Thompson calculated loss on three scenarios through which he sought to place a value on her labour in the businesses.[18]
[18] Exhibit 4.1 – Report of Mr. Mark Thompson CA, 13/10/11, p 3.
Scenario 1 assumed that, but for the accident, Mrs Pollard would have continued to operate both businesses until retirement. On that basis, he calculated past economic loss to 31 October 2011 at $93,067 and future economic loss at $442,641.
In scenario 2 he assumed that Mrs Pollard would have continued to operate Valley Rural Services until retirement but West Coast Fencing would have ceased operating on 30 June 2011. This took account of the evidence that the business was winding down at about the time of the accident and that Mr Pollard passed away in 2011. On that basis, he calculated past economic loss to 31 October 2011 at $86,022 and future economic loss at $228,154.
Scenario 3 assumed Mrs Pollard would have continued to operate Valley Rural Services until retirement but West Coast Fencing would have ceased operating at the completion of the Dysart contract in April 2010. On that basis, he calculated past economic loss to 31 October 2011 at $62,311 and future economic loss at $228,154.
Mr Benjamin, an accountant engaged by the defendant, raised a number of concerns, either with the methodology used by Mr Thompson or with the information on which it was based.
Shortly before the trial, Mr Thompson and Mr Benjamin met and prepared a Joint Statement for the court.[19] In it, they recorded their agreement on the methodology for assessing Mrs Pollard’s economic loss and, subject to two reservations by Mr Benjamin, they agreed on the calculation of past and future economic loss.
[19] Exhibit 9 – Joint Statement of Experts to the Court, Mr Mark Thompson CA & Mr Stuart Benjamin CA, 16/08/13.
The agreed methodology was to refer Mrs Pollard’s loss to the actual costs incurred to replace those duties that she is no longer able to perform in Valley Rural Services. Although the reported labour costs in the 2008, 2009 and 2010 financial years did not demonstrate an increase in costs for that business in the post-accident period, Mrs Pollard said there were significant labour costs in development and renovation of the infrastructure of the business and other labour was engaged in making fencing panels for West Coast Fencing. When the labour costs for those activities were removed, an increase in shop labour costs was apparent for the financial year in which the accident occurred and in the years since.[20]
[20] Exhibit 4.6 – Report of Mr. Mark Thompson CA, 15/08/13, p 153.
This brings me to Mr Benjamin’s first reservation: that accepting the calculated loss depended on the court accepting Mrs Pollard’s evidence allocating labour costs as between shop and other activities. Mrs Pollard gave evidence about her instructions to Mr Thompson in this regard. She also explained that the structure of the businesses and the way in which costs were allocated between the two, was determined on the advice of their accountant. Further, as a business subject to the regime administered by the Queensland Building Services Authority, Mrs Pollard understood the financial resources of West Coast Fencing could be frozen if there was a dispute about their work or compliance with their obligations. For this reason it made sense to her to put some of the value of the West Coast Fencing business into Valley Rural Services.
Counsel for Mrs Pollard argued I should accept that the increase in labour costs is due to her inability to devote more time to the business because of the accident, not for some other reason. Neither accountant was able to identify any other reason for the increased labour costs.[21] Mrs Pollard said her husband had played no role in the shop aspect of Valley Rural Services and there is no other evidence to suggest that he did.
[21] Transcript of Proceedings, District Court at Brisbane, 20/08/13, 2-43[40] – 2-44[21].
The increase in labour is largely explained by the involvement of two administrative staff. This is consistent with Mrs Pollard’s evidence that she had to take them away from console operations and train them in accounts and data entry as she could no longer sit at the computer for long periods. Their time then had to be replaced by other console operators. Mrs Pollard said she will work the console when she is there, if needed. However, her role is now focussed more on customer relations and supervision.
Mrs Pollard has shown she has a strong work ethic. She also has a powerful motive as its owner to maximise the profitability of her business. I have found Mrs Pollard to be an honest and reliable witness on other matters. I have no basis to doubt her credibility or reliability in this regard.
Based on that methodology, and acting on Mrs Pollard’s allocation of labour costs across different functions, Mr Thompson and Mr Benjamin agreed that past economic loss to 31 August 2013 would be $87,574 and future economic loss would be $214,113.
Mr Thompson noted that this assessment was in line with his figures for scenario 3. Although calculated in a different way, it sought to assess the loss based on the only scenario that has been realised: that Mrs Pollard continued to operate Valley Rural Services but that West Coast Fencing ceased in April 2010.
Mr Benjamin’s second reservation was that there could be no financial loss in respect of labour unless the business was profitable. He did not consider he had enough information to draw a conclusion about the profitability of the respective businesses.
Mr Thompson agreed the profitability of the distinct businesses could not be established with certainty but relied on the analysis in his original report that the combined business operations between 2007 and 2010 earned substantial profits. He drew comfort that his analysis of the business information was sound because of the similarity in the outcome of the calculations using his original methodology on scenario 3 and the agreed alternative methodology.
I accept that it is not necessary to demonstrate a profit in every trading year for there to be a financial loss in respect of labour. I am satisfied, on Mr Thompson’s analysis, that the business was financially viable.
The calculation for both past and future economic loss agreed in the Joint Statement did not seek to include any loss attributable to the cessation of West Coast Fencing’s operations. Nevertheless, counsel for Mrs Pollard has asked the court to accept that there was a reasonable prospect that West Coast Fencing would have continued beyond Mr Pollard’s passing and indefinitely into the future. Although West Coast Fencing lost the BMA work after the Dysart contract ended, Mrs Pollard gave evidence that she was approached by a BMA representative in February 2011 to resume fencing work, but she could not do so because of her injuries. Assuming West Coast Fencing would have continued but for the collision, counsel sought an award for past economic loss of $124,000 and $266,000 for future economic loss.
I am not satisfied that it is appropriate to make any award other than the amount agreed between the experts applying the alternate methodology agreed in their Joint Statement. Both accountants maintained that was the appropriate approach given West Coast Fencing had ceased operations before the collision. Neither considered there was a basis for making an award referable to that business.[22]
[22] Transcript of Proceedings, District Court at Mackay, 20/08/13, 2-47[35] – [37] & 2-49[33] – [38].
West Coast Fencing’s position as a subcontractor to BMA was somewhat fragile. Their arrangement was not documented and it appeared to be reliant upon Mr Smith’s insistence that the head contractor, with whom BMA had contracted, deal through West Coast Fencing. Mr Smith gave evidence about his experience with West Coast Fencing and Mrs Pollard in particular. He was impressed by the quality of their work and their reliability, when he was with the Department of Housing. At BMA he was dissatisfied with the fencing work done by its head contractor. He ensured that this work was undertaken by West Coast Fencing instead.[23]
[23] Transcript of Proceedings, District Court at Mackay, 20/08/13, 2-58[43] – [46].
When the head contractor changed, so did West Coast Fencing’s position. The new contractor rejected its quote and, around this time, Mr Smith left BMA. Although Mrs Pollard gave evidence of a subsequent approach by BMA, there is scant evidence about what was offered or why her injuries prevented West Coast Fencing from responding.[24] There was no evidence from BMA on this point either.
[24] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-49[25] – [46].
As well as the uncertainty inherent in West Coast Fencing’s contractual arrangements with BMA, there was a downturn in the mining sector. Although Mr Pollard’s involvement in the business had reduced considerably well before the accident, he was its QBSA nominee. Mrs Pollard would have had to explore other options for ensuring the company had a suitably qualified nominee to satisfy building industry regulation requirements, once Mr Pollard passed away.
It is to her credit that Mrs Pollard was candid in her evidence that she could not say, definitively, that West Coast Fencing could have been revived, although she said she would like to believe that she would have been able to keep it going.[25]
[25] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-51[14] – [16].
I am not satisfied there is sufficient evidence of a real prospect that West Coast Fencing would have been revived, but for the collision, to justify any increase in the amount calculated by the accountants. Mrs Pollard’s award will be based on the amounts calculated for past and future economic loss as agreed in the Joint Statement: for past economic loss, $87,574, and for future economic loss, $214,113.
(iii) Should Mrs Pollard’s award be discounted because of her pre-existing degenerative disease?
Mrs Pollard was in a very similar car accident in July 1994 and sustained the same type of injury as the one inflicted in the second car accident. In their reports, the experts adopted differing approaches to the contribution attributable to the existing condition. Dr Cook said his assessment of 8% should be reduced by the assessment of her impairment from the first injury by the former Orthopaedic Assessment Tribunal.[26] That assessment, in February 1996, was a 2% loss of bodily function.[27] This reduced his assessment of the second injury to 6%.
[26] Exhibit 2.5 – Report of Dr. Allan E. Cook, 26/02/13, p 8.
[27] Exhibit 2.11 – Report of Medical Assessment Tribunal, 15/02/1996, p 2.
Dr Halliday attributed 50% to the existing condition, reducing his assessment from 6% to 3%.[28] The parties’ agreed on the award for general damages, however, their assessments are relevant to whether Mrs Pollard’s award for economic loss should be reduced.
[28] Exhibit 2.3 – Report of Dr. Brett Halliday, 1/06/11, p 6.
The surgeons agreed that it is extremely difficult to predict when symptoms from a pre-existing degenerative condition of the cervical spine would have emerged. If Mrs Pollard was completely asymptomatic at the time of the accident, both surgeons thought she could have continued with her occupations until the end of her 50s before experiencing significant symptoms. They expected those symptoms would worsen over time but that she could have continued to work until retirement in her early 60s. If she was not completely asymptomatic, they agreed that time frame would be attenuated, depending on the degree of symptoms experienced.[29]
[29] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-76[24] – 1-77[25].
Where they disagreed was whether Mrs Pollard’s condition was stable at the time of the second collision. Dr Cook considered it was, Dr Halliday considered Mrs Pollard had been presenting with symptomatic cervical spondylosis with occasional flare ups which required treatment in the years preceding the collision. The conflicting opinions were given having regard to the records of Mrs Pollard’s attendances on her general practitioner, a chiropractor and a physiotherapist between the first and second collisions.
Starting with the records of the general practitioner[30], there were 4 entries of potential relevance. As Dr Hopkins was not called as a witness, the surgeons had access only to the notes made by the GP.
[30] Exhibit 3.1 – Records of Mater Hospital.
The first entry was on 31 July 2000 when Mrs Pollard was prescribed panadeine and valium and a diagnosis of wry neck was recorded. The surgeons advised the court that wry neck is a term more often used in paediatrics and is no longer in general use. It describes a painful spasm of the muscles in the neck that tends to cause the head to flex to the side of the spasm.[31]
[31] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-101[18] – [37].
There was a second entry on 27 March 2001, which also recorded wry neck, when Mrs Pollard was prescribed valium. The diagnosis may be wrongly recorded, given the GP ordered X-Rays of Mrs Pollard’s left foot and referred her to Dr Mark Shaw in relation to a painful toe. Mrs Pollard could not recall consulting her GP about neck pain at this time.[32] I accept that this visit related to an issue with Mrs Pollard’s foot, not to a neck condition.
[32] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-69[35] – [43].
On 26 June 2001, a third entry indicates she was prescribed Panadeine Forte for neck pain. The final potentially relevant entry was in February 2008, when she was prescribed Celebrex for recurring headaches. Mrs Pollard said this was unrelated to her neck injury. She was concerned this was a recurrence of a condition she had been treated for when she was 20 years old, when it was suspected she had suffered a stroke.[33] I accept Mrs Pollard’s evidence about this visit.
[33] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-66[8] – [10].
The GP clinical records also included Mrs Pollard’s prescription history. It seems she was prescribed analgesics in July 2000, March 2001, June and December 2002, January, February and November 2003 and March 2004. There were other prescriptions but they did not appear to relate directly to neck pain. I have stated my reason for considering the March 2001 prescription also did not relate to neck pain.
The chiropractor’s records[34] show she was treated 21 times between 1999 and the date of the second accident: there were 3 visits in late 1999; 4 in 2000; 3 in 2004; 3 in 2005; 6 in 2006 and 2 in 2008. It seems to me that not all visits necessarily involved treatment of the neck injury, as there are numerous notations which indicate treatment of the lumbar (e.g. L5/S1) or thoracic (e.g. T12/14) spine. The chiropractor was not called to give evidence and no basis for interpreting the records was led by either party.
[34] Exhibit 3.2 – Records of Steve Buda Chiropractic.
Dr Halliday thought the chiropractic visits demonstrated Mrs Pollard had a pre-existing tendency to intermittent flare ups of symptomatology requiring treatment. Mrs Pollard said she experienced problems after the first car accident on and off for about 3 years but could not recall having any problems with her neck in the 5 years preceding her injury. She said she may have gone to the chiropractor for what she described as “maintenance” because she was doing heavy fencing work. Mrs Pollard’s uncontested evidence she was engaged in hard physical work for at least some of that period is corroborated by the evidence given by Mr Smith.[35] The nature of Mrs Pollard’s work could well explain some of the visits.
[35] Transcript of Proceedings, District Court at Mackay, 19-20/08/13, 1-32[8]-[9], 1-33[10]-[12] & 2-57[32] – [37].
Without expert guidance about how to interpret the notes, and in the absence of evidence from the chiropractor himself, I accept Dr Cook’s opinion that there is a real risk of being misled by the chiropractic record. To the extent, then, that there is any difference between the doctors’ evidence by reference to the visits to the chiropractor, I prefer the evidence of Dr Cook.
Dr Cook maintained his opinion that the symptoms from Mrs Pollard’s first injury in 1994 took some time to gradually settle and that, at the time of the second injury she was essentially asymptomatic.[36] Mrs Pollard’s visits to the GP in 2000, 2001, 2002 and 2008 did not change his opinion.[37] Nor did the prescription record, which he said showed her use dropped off to very little in the late 2000s, prior to her injury.[38] He accepted that she was experiencing some symptoms, but they were spasmodic or spaced well apart and may have related to some particular work or activity that aggravated her neck or middle lower back.[39]
[36] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-76[11] – [16].
[37] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-86[8] – [9].
[38] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-88[43] – 1-89[l 5].
[39] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-89[44] – [47].
Dr Halliday considered Mrs Pollard’s treatment history represented symptomatic cervical spondylosis.[40] The chiropractic record fortified his view.[41] I have already expressed the view I take of that evidence.
[40] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-78[23] – [36].
[41] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-84[19] – [22].
Dr Halliday assumed Mrs Pollard would not have presented to the GP every time she experienced symptoms. He said most people with symptomatic cervical spondylosis do not; they usually take a panadol, use a heat pack and perhaps explore other treatment such as chiropractic.[42]
[42] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-86[24] – [27].
Mrs Pollard’s evidence was that she could not recall experiencing neck pain in the 5 years before the accident.[43] Setting the chiropractic record to one side, because I have not tried to interpret it, there is nothing that directly contradicts her recollection. Mr Smith gave evidence that he observed her undertaking manual labour. He also saw her frequently in Dysart, once Mr Pollard was unable to travel because of the state of his health. That involved long drives, which also suggests that her condition was, then, not troubling her unduly. Mrs Pollard said she worked long hours across the two businesses and that has not been contested.
[43] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-29[43] – [45].
I accept Mrs Pollard’s evidence about the state of her symptoms from the first injury at the time of this second injury. I am satisfied that she was not experiencing symptoms at any level that prevented her from working hard and for long hours.
Nevertheless, I consider the award for future economic loss should be adjusted slightly. The doctors were agreed that, if she was asymptomatic at the time of the accident she could well have worked to the end of her 50s until she started to experience any symptoms of significance. The calculation of her loss to age 60, then, should not be adjusted. Thereafter, any amount attributed to economic loss from the age of 60 years should be reduced by 15%. That is an attempt to place some value on what the experts could not forecast with any level of certainty; the progressive increase in symptoms over time after she had reached the end of her 50s.
The award for past economic loss will be $87,594 as agreed in the Joint Statement. I will hear from the parties as to the figure for future economic loss, discounting the figure of $214, 113 agreed in the Joint Statement in the manner indicated in these reasons.
(b) What amount should be awarded as special damages for her past expenses?
The parties agreed on special damages of $1,100 for travelling expenses and $4,200 for hospital and doctors’ expenses. Mrs Pollard’s claim for $3,723.30 for medication is based on a calculation of 197 weeks from the date of the accident to the date of the trial at an average of $18.90 per week, based on pharmacy receipts.[44] Both Dr Halliday and Dr Cook considered the medication she used was appropriate treatment for her condition. That claim was not seriously contested and I will allow it. I will also allow the claim for physiotherapy expenses of $263.50.
[44] Exhibit 7 – Pharmacy Receipts.
The amounts in active contest relate to massage therapy and paid care.
Mrs Pollard has claimed $7,664 for massages provided by three masseurs, for which there are no receipts. The defendant contested this claim, both for the lack of evidence of expenditure and the reasonableness of the treatment from a therapeutic perspective.
Although there is no reason to reject Mrs Pollard’s account, her evidence was somewhat vague about the dates she was treated by each masseur and, in some respects, the frequency of the treatment. The frequency seemed to alter depending on the therapist, sometimes being provided weekly in lieu of rent. One of the masseurs gave evidence which, in broad terms, confirmed the evidence given by Mrs Pollard about the cost and frequency of the massages he gave her.
The defendant disputed the massage claim was reasonable and questioned whether the particular forms of therapy had any therapeutic benefit. Particular objection was made to any treatments that involved either hot stone massage or Reiki treatment. There is nothing in the objection to massage with hot stone, given the medical evidence that heat can provide symptomatic relief.
The Reiki treatment is a little different. There was limited evidence about the therapy or its benefits, although the masseur spoke of the therapy as relieving tension in the muscles and realigning energy flows.[45] As “reiki is about healing using that flow of energy”, it is not always necessary for the therapist to physically touch the patient in order to treat the ailment.[46] Nevertheless, the evidence establishes that Reiki does involve massage. To the extent that it involves physical massage, rather than any other form of spiritual or other healing, I accept it may be likened to other styles of massage and provide the same benefits.
[45] Transcript of Proceedings, District Court at Mackay, 20/08/13, 2-52[8] – [10].
[46] Transcript of Proceedings, District Court at Mackay, 20/08/13, 2-55[32] – [33] & 2-55[45] – 2-56[7].
Dr Halliday considered massage and physiotherapy would not improve the underlying condition. However, he did accept that it could provide short term relief of symptoms.[47] Dr Cook said physiotherapy and massage belonged to a suite of treatments that may alleviate symptoms. I have allowed a claim for the cost of medication that, likewise, can only provide short term relief from symptoms. It seems reasonable to make an allowance for other forms of treatment that, while not improving the condition, will assist Mrs Pollard to maintain her current level of activity.
[47] Transcript of Proceedings, District Court at Mackay, 20/08/13, 1-92[2] – [8].
Nevertheless, I am not convinced the defendant should be required to cover the full claim for past massage therapy. Some were given in lieu of rent and may have occurred more frequently for that reason. Others involve Reiki treatment that, on the masseur’s evidence, did not always involve physical massage.
I accept that a weekly or even fortnightly massage might be reasonable for a period after the accident and, from time to time that frequency might be required to deal with exacerbation of symptoms from over-exertion. I will allow the sum of $3,500, a little less than half of Mrs Pollard’s claim, which assumes massage therapy on a monthly rather than a fortnightly basis.
Mrs Pollard has also claimed an amount for paid care. Mrs Pollard gave evidence that she had difficulties in keeping on top of the housework immediately after the accident. As Mr Pollard was also injured at this time, Mrs Pollard hired a friend to complete the housework. The friend came to the house once a week for approximately 12 months, excluding a four week period during which Mrs Pollard was overseas.[48] There is evidence before the court that the cleaner was paid $50 for each of these estimated 48 visits, which represents a total expenditure of $2,400.[49] I will allow the sum of $2,400 as representing necessary paid care arranged by Mrs Pollard as a result of the accident.
[48] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-59[37] – [46].
[49] Exhibit 8 – Updated Statement of Loss & Damage, 14/08/13.
I have therefore allowed the following amounts as special damages:
§ Travelling expenses: $1,100.
§ Hospital / doctor’s expenses: $4,200.
§ Medication: $3,723.30.
§ Physiotherapy: $263.50.
§ Massage Therapy: $3,500.
§ Paid Care: $2,400.
§ Total: $15,186.80
(d) What award should be made for future expenses?
Consistent with the approach I have taken to the claim for past medication expenses, I will award $14,892 for future medication expenses. That award assumes Mrs Pollard will continue to use that medication at about the same rate. At age 53, her statistical life expectancy is 35.44 years. The multiplier on the 5% tables for 35 years is 876. The figure arrived at has been discounted by 15%, for the vicissitudes of life.
Mrs Pollard has claimed $18,615 for fortnightly massages at the current cost of $50 a massage. This utilises the same methodology as was adopted for the award for medication expenses. I will allow $9,300, slightly less than half the claim, to account for monthly rather than fortnightly treatment.
I will allow $600 for the TENS Unit, which Dr Cook recommended and which Dr Halliday accepted may provide some relief.[50]
[50] Exhibit 2.5 – Report of Dr. Allan E. Cook, 26/02/13, p 6. See also Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-92[24] – [28].
I make no award for the cost of facet joint blocks and radio-frequency nerve root ablation. Dr Cook only recommended this form of treatment if the pain was sufficiently localised that it indicated an injury to the facet joint which could be ameliorated by injections. On his examination, that form of treatment was not currently indicated. Dr Halliday agreed.[51]
[51] Transcript of Proceedings, District Court at Mackay, 19/08/13, 1-92[11] – [13].
The final item in dispute for future expenses is Mrs Pollard’s claim for future assistance. Both doctors accepted that Mrs Pollard would require assistance with heavier physical activities in her home and around her property.[52] Mrs Pollard’s needs were assessed by Occupational Therapists engaged by Mrs Pollard and the defendant. They differed in their recommendations.
[52] Exhibit 2.5 – Report of Dr. Allan E. Cook, 26/02/13, p 8; see also exhibit 2.7 – Report of Dr. Brett Halliday, 28/06/13, p 7.
Ms Hague, engaged by Mrs Pollard, assessed her needs at 5.42 hours, based on the level of assistance she is currently experiencing from relatives or friends. [53] She did what she could to allow for the presence of the daughter, who both contributed and benefited from this assistance, and endeavoured to determine a percentage of the domestic task that pertained only to Mrs Pollard.
[53] Exhibit 2.10 – Report of Ms. Rebecca Hague, 12/07/13, p 13[37].
Ms Jones, engaged by the defendant, assessed Mrs Pollards needs at 2 hours a fortnight for domestic assistance with two spring cleans of 8 hours per year. In arriving at that assessment, she excluded the daughter’s help with cooking and laundry and a friend’s assistance in grocery shopping. She grouped the remaining activities between those requiring regular assistance and those that were less frequently undertaken. She also considered there should be some allowance for pool cleaning, and recommended she purchase an automated pool cleaner at a cost of $700.[54]
[54] Exhibit 2.9 – Report of Ms. Addie Jones, 5/08/13, p 81.
At trial, counsel for Mrs Pollard sought and was granted leave to amend the claim for future assistance to claim the sum of $48,399. This is based on the cost of a fortnightly house clean at a rate of $130, and calculated using the same method and discount as was applied for other items of future expense.
The change in approach arose from a second report by Ms Hague, in which she stated that her assessment of 5.42 hours was conservative. Mrs Pollard had told her that, before the accident, she kept her home immaculate and cleaned it weekly but now only cleaned fortnightly. Ms Hague noted the cost of commercial cleaner was between $100 and $130 depending on the size of the house.[55]
[55] Exhibit 2.10 – Report of Ms. Rebecca Hague, 12/08/13, p 7[16].
In his final submissions, counsel for Mrs Pollard conceded the late amendment of the pleading may have resulted in an over-emphasis on the house cleaning activities at the expense of Mrs Pollard’s expressed need for assistance with heavier yard and garden care. He urged the court to accept the amount formulated on the basis of the cost of cleaning would provide her with an adequate award that she could allocate as she saw fit.
It should be observed that this approach would deliver a smaller award than if Ms Hague’s assessment of 5.42 hours per week was adopted. That would result in an award of more than $105,000. If Ms Jones’ assessment of 2 hours a week was accepted, the award would be in the order of $32,760.
Where there is a conflict between Ms Hague and Ms Jones, I prefer the evidence of Ms Hague. It was based on her observations of Mrs Pollard during functional testing, having regard to the reports of the orthopaedic surgeons, as well as Mrs Pollard’s report of what she is capable of doing. She accepted what Mrs Pollard told her. That does not reduce the value of her opinion. Ms Hague and Ms Jones agreed that Mrs Pollard’s physical presentation was consistent with the level of activity and pain that she reported.[56]
[56] Transcript of Proceedings, District Court at Mackay, 20/08/13, 2-93[1] – [10].
I consider Ms Jones’ assessment was influenced by her observation that other people with the same type of injury were capable of doing more than Mrs Pollard said she could do.[57] She said she took into account that Mrs Pollard had been able to travel overseas and could operate the ride on mower. Different people will experience the same condition differently. Dr Cook gave evidence of his observation, based on many years’ experience, that people who have a second injury of the same type can experience more severe symptoms than the nature of the injury would, of itself, suggest.
[57] Transcript of Proceedings, District Court at Mackay, 20/08/13, 2-81[42] – [45] & 2-93[18] – [23].
Mrs Pollard did not present as a person who would exaggerate her symptoms or downplay her capacities. She has worked hard all her adult life, including periods in physically demanding occupations. She recovered well enough from a previous injury to play a vital role in two small businesses, and to increase her contribution as her husband’s ability to work declined.
Given the way in which Mrs Pollard’s claim was reformulated, I will award the sum of $48,399 for future assistance. I have made no award for an automated pool cleaner, which was not part of Mrs Pollard’s claim.
The total award for future expenses is $73,191.00
Conclusion and orders
I have expressed my findings and the amounts I would award for the disputed items. I will hear from the parties about the form of orders which will give effect to my decision, including the discounted award for future economic loss and the calculation of interest.
Unless the parties submit for a different order within 7 days, the second defendant must pay the plaintiff’s costs of and incidental to these proceedings, assessed on the standard basis, if not agreed.
Unless agreed orders are provided by the parties beforehand, the matter is listed for mention on Wednesday, 16 October 2013 at 9:30am.
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