Pulford v Williams
[2004] TASSC 22
•25 March 2004
[2004] TASSC 22
CITATION: Pulford v Williams [2004] TASSC 22
PARTIES: PULFORD, Damian
v
WILLIAMS, Brendan Michael
WILLIAMS, Adam
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 361/2002
DELIVERED ON: 25 March 2004
DELIVERED AT: Launceston
HEARING DATES: 18 – 21 and 25 November 2003
JUDGMENT OF: Slicer J
CATCHWORDS:
Damages - Measure and remoteness of damages in actions for tort - measure of damages - personal injury - method of assessment - Generally.
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; (1968) 41 ALJR 327; Martin v Howard 67/1983, considered.
Aust Dig Damages [32]
REPRESENTATION:
Counsel:
Plaintiff: J E Green
Defendants: P L Jackson
Solicitors:
Plaintiff: John Green
Defendants: Jackson & Tremayne
Judgment Number: [2004] TASSC 22
Number of Paragraphs: 38
Serial No 22/2003
File No 361/2002
DAMIAN PULFORD v BRENDAN MICHAEL WILLIAMS
and ADAM WILLIAMS
REASONS FOR JUDGMENT SLICER J
25 March 2004
This assessment of damages follows an admission of liability made on 5 September 2002. In his particulars of claim, the plaintiff seeks an award of an amount of $345,940.
Circumstances of injury
The plaintiff was involved, as a passenger, in a motor vehicle accident which occurred on 12 December 2001. He was admitted to hospital suffering from injuries to the shoulder, neck, ribs and buttocks. He was discharged on 13 December 2001.
Background of plaintiff
The plaintiff is aged 39. He left school at the age of 15. On leaving school, he worked in various occupations until 1999. In that year he resigned from his employment because of what he perceived to be an unfair assessment of child support payments made following his marital break-up in the preceding year. He then received social security payments until November 2001 when he obtained casual work during the fruit picking season with some expectation for ongoing seasonal employment. The plaintiff has no formal qualifications. He has worked as a driveway attendant, auto dismantler, and in the areas of fishing boat maintenance and the manufacture of plastic extrusions. Before the accident, he was able to live a physically active life which included boating, diving, and motor cycle riding.
He claims that he has not been offered employment since the accident, although the evidence suggests that he has made only perfunctory attempts to do so. In the course of his evidence, he varied his claim that he had not been offered work to one that the work offered was beyond his physical capability. He has undertaken some community work arranged by Centrelink through its New Start program. Shortly before the hearing of this assessment, he was further assessed by Advanced Personnel Management, a consultant to Centrelink, but the outcome of that assessment was not known at the time he gave his evidence. Mr Pulford is currently living in a relationship and says that he assists his present partner in a minor way in the work associated with a small farming property outside Hobart.
Medical history and treatment
The plaintiff was admitted to hospital on 12 December 2001 and discharged the following day. He attended his then general practitioner on some ten occasions between January and July 2002, at which time, dissatisfied with progress or, at least, the effects of medication, he changed his medical adviser. He presented to Dr Ridgers with fractured ribs, stiffness to the spine, and an effusion within the left shoulder joint. Dr Ridgers referred his patient to Mr Turner, an orthopaedic surgeon, for review in January 2002. Mr Turner found a disc herniation at C5/6, with a possible tear of the posterior annulus, a finding confirmed by an MRI scan. Dr Ridgers noted a gradual deterioration of the left bicep muscle, presumably as a result of lessened use due to the spine and shoulder injury. At issue between the medical practitioners is the opinion of the general practitioners that the plaintiff also suffered from a degree of asymmetry involving the tendon reflexes. Mr Pulford underwent treatment with the medications Tramena and Neurontin, with Panadene forte used as a supplementary measure for pain relief. At the time of the last consultation, Dr Ridgers held the opinion that his patient "was making subtle improvement" and that he was "approaching a point where he would be able to participate in part time duties" although such might be restricted because of his educational background and narrowly based work experience.
In October 2002, the plaintiff consulted Dr Chapman as his general practitioner. On the advice of Dr Oberoi, a specialist in pain medicine, the plaintiff was referred to Dr George for further treatment. His reason for changing his general practitioner was not made clear, although the Court accepts that, in part, he was not completely satisfied with the side-effects of his existing drug regime, although he had not obtained treatment or assessment before seeing Dr Oberoi for pain relief. He presented to Dr Oberoi with the symptoms of:
— flu;
— suboccipital/occipital neck and left shoulder;
— continuous headaches;
— pain in right hip;
— disturbed sleep.
Dr Oberoi's assessment, based on the presentation, was that of "pain score (analogue) 4/10 occasionally rising to 7-8/10". Adoption of the assessment of Dr Oberoi depends on acceptance of the accuracy of the plaintiff's presentation and self-description and resolution of the differences concerning his psychiatric condition and whether such condition was either inherent or pre-existing and the degree, if any, of exacerbation by the accident, but those matters will be dealt with separately.
Dr Oberoi then arranged for a facet block procedure to be carried out. The procedure was temporarily advantageous, but has not enabled the plaintiff to resume a normal pain free life. Since then, he has continued with attendances on his general practitioner and treatment with medication. He is likely to require management for some, but not significant, time into the future.
Lifestyle and general capacity
The evidence comprised in surveillance tapes obtained by the defendants significantly contradicts the version given by the plaintiff. Some of his evidence is internally inconsistent and there has been a tendency to exaggerate the effects of injury. Some of that tendency can be attributed to his general psychological make-up identified before the accident. Some of it can be attributed to the effects of pain and a feeling of "helplessness". There is often present a process of reconstruction in such circumstances which is not tantamount to fabrication and in this case no finding of mendaciousness is made. Nevertheless, the plaintiff is required to establish his case and here I am not satisfied as to the accuracy of his evidence without corroboration or compelling reason. The Court does not accept that there has been no improvement, nor that his physical impairment has been as significant as claimed. It also does not accept his claimed reason for ceasing to see Dr Ridgers or terminating his involvement with Dr Oberoi. He has greater capacity for physical activity than claimed and is more capable of assisting in the farm related tasks than he concedes. However, the Court accepts that he continues to experience pain and discomfort, difficulties in sleeping, and continues to take medication. The evidence suggests continued improvement in the feeling of depression and a lessening of pain. Permanent physical impairment is unlikely. An award of $20,000 is made to compensate the plaintiff for pain, suffering and loss of amenity. The award takes into account the exacerbation of his mental stress and trauma associated with the accident.
Occupational assessment
The plaintiff has been examined by Dr Jones, a physician/rheumatologist, Dr Sharman, an occupational specialist, Dr Stewart, a neurosurgeon, and Mr Turner, an orthopaedic surgeon. While there are differences of opinion between the examining practitioners, none conclude that the plaintiff is permanently incapacitated for future employment.
Dr Jones first examined the plaintiff in November 2002. He believed the ongoing effect of the accident to be:
(1)post-traumatic shoulder damage, most likely arthritic in nature;
(2)cervical pain possibly caused by damage to the C1/2 facet joint;
(3)left C5/6 disc injury which is well on the way to recovery;
(4)right hip pain likely to be a consequence of soft tissue damage.
He believes that the shoulder injury is likely to cause ongoing problems. He did not believe that the plaintiff would be able to perform hard manual labour in the future, but would be able to undertake work of a lighter nature. Acknowledging the problems inherent to prediction, he suggested that the plaintiff "has a 10 per cent whole person loss", although he added that "the duration of the impairment is difficult to assess in this case".
Mr Turner, who had examined Mr Pulford on 8 January 2002, confirmed the presence of soft tissue injury to the cervical spine and disc herniation which resulted from the accident, although he observed the onset of degenerative change. Dr Stuart, a consultant neurosurgeon retained by the defendant, had the advantage of viewing the surveillance videotapes of the plaintiff taken on 22 July, 25 – 26 August, and 4 – 5 November 2003, which showed free movement, normal gait, and active upper body movement in the loading and unloading of bales of hay. His examinations of Mr Pulford were conducted on 20 January and 20 July 2003. Following his examination of 22 July, he gave as his opinion that:
"In his present capacity, I consider that Mr Pulford is unable to work. In my opinion, the main impediment for such return to work is the persistence of his pain and the presence of significant depressive symptoms. I am unable to indicate for how long this inability to work will continue, as this will be dependent upon the success or otherwise of any proposed facet blocks and any treatment for his depressive state.
In my opinion, the prognosis in the short term is poor and in the long term is uncertain."
However, in the same report he continued:
"to be of the opinion that Mr Pulford may experience a full recovery in time. However, this opinion obviously has to be modified in the light of his lack of improvement to date, approximately two years after his accident … in addition to the increase in his depressive symptoms."
He remained firm in his opinion that there was "no evidence of a significant neurological deficit".
Dr Stuart had suggested that any difference of prognosis between himself and Dr Jones might be resolved by reference to an assessment by an occupational physician. The physician, Dr Sharman, reviewed the plaintiff on 1 September 2003. His report includes the following:
"opinion:
Mr Pulford has ongoing problems with his left shoulder, neck and right hip consequent on a motor vehicle accident on the 12th December 2001. I am not sure of the exact nature of the injury to his right hip as there is no imaging evidence available.
He has sustained an injury to his cervical spine and the imaging evidence suggested he has a C5/6 disc injury, although there is some suggestion that he may have had injury to the posterior elements of the upper cervical spine.
He also has continuing dysfunction of the right shoulder with restricted range of movement, as well as spasm of some of the muscles in the left shoulder and neck contributing to his persistent headaches.
His injuries were complicated by the development of a significant depressive illness and post traumatic stress disorder.
These ongoing problems significantly affect his work capacity.
…
At this stage I believe Mr Pulford remains partially incapacitated for employment in that he can undertake light physical work on a part‑time basis. He is not fit however for work involving heavy lifting ie more than about 5 or 10 kilograms, any overhead work with his left arm or any activities that require a good range of neck movement or prolonged periods of static neck postures. I do not believe therefore that at this stage he could perform fruit picking or any labouring jobs such that he has previously performed on any ongoing basis. At this stage it is probably too early to say that his current incapacity is permanent, although there is a significant prospect that that will be the case. He is awaiting further treatment on his neck and I believe there is the prospect that with some specialised physiotherapy that there may be some improvement in the range of movement of his cervical spine and shoulder.
In relation to Dr George's report, I comment as follows:‑
Dr George confirms the development of a depressive illness, post traumatic stress disorder and cannabis dependence as a consequence of his motor vehicle accident. I did not obtain a history of his marijuana use so cannot comment further, except to say that Dr George's opinion, as a specialist psychiatrist, is the best available information about this aspect of Mr Pulford's health. I would accept that the psychiatric conditions, as outlined by Dr George, impact on his fitness to work and further reduce his capacity to work. These have a particular effect on his ability to travel in vehicles to and from workplaces as well as contributing to his physical incapacity and capacity to cope with workplace demands in general.
…In summary therefore I believe Mr Pulford has sustained significant injuries in the motor vehicle accident and has significant ongoing problems with neck, shoulder and right hip pain. I do not believe he could return to any of his previous types of employment although he may be able to resume limited non physically demanding employment if such work can be identified.
I trust this report assists with your assessment of the situation."
Dr Sharman had not been afforded the advantage of seeing the x-rays or MRI scans taken of the plaintiff and was required to ground some of his conclusions on assumptions based on the history and description of symptoms provided by the plaintiff. He was, however, firm in his opinion that the plaintiff would continue to suffer a degree of impairment. He referred to research demonstrating that neuropathic pain can continue after the physiological cause has ceased and that although the precise mechanism is not clearly understood, it operates as if there was a conditioned response.
Both Dr Stuart and Dr Sharman had access to the videotape of the conducted surveillance. The opinion of Dr Sharman was little affected, with his overall comment, being:
"… that while it is inadvisable for Mr Pulford to be engaged in such activities, it is not necessarily inconsistent with the results of my assessment and certainly does not demonstrate that he can undertake heavy physical work on any ongoing basis, as the loading and unloading of bales of hay that he performed only involved a few minutes.
It does not therefore alter the opinion I previously expressed."
Dr Stuart attached greater significance to the events depicted in the surveillance tapes, stating:
"I should make the comment that the video does not exclude the above activities aggravating his pain. However, it reinforces my opinion that there was no physical impairment to Mr Pulford returning to work and that the main impediment to return to work was significant depression and persistent pain."
He believed that the surveillance tape showed no abnormality of gait, neck or shoulder movement, adding:
"The surveillance video depicts Mr Pulford lifting and throwing bales of hay, which would weigh considerably more than 10kg. Accordingly, I believe that Mr Pulford's incapacity is less than Dr Sharman's assessment."
He concludes by restating his belief that:
"… there was no physical impairment to Mr Pulford returning to work and the main impediment in returning to work was significant depression and persistent pain"
but that he:
"had no physical explanation for the persistence of his pain."
The differences of opinion are ones of emphasis and degree and in part reflect an assessment of the account provided by the plaintiff. There is common ground that the plaintiff experiences pain and has, as yet, not developed the resources to properly cope with its effect. There is common ground that he has been physically impaired, but differences in prognosis. There is agreement that he cannot return to hard physical labour, but difference as to the nature and degree of future work capacity. All examiners accept that the physical symptoms are interdependent with his psychological make-up and state.
Psychiatric assessment
Following examination by Dr Oberoi, the plaintiff was referred, in the words of Dr Oberoi, to Dr George:
"… for his psycho-social issues, anxiety, stress issues and substance abuse."
Dr George saw him on 11 April 2003 and his report of the meeting and subsequent visit states:
"Mr Pulford was referred to me by Dr G Oberoi, Pain Specialist, on 11 April 2003 for assessment of his psychological state and marihuana use.
He complained of chronic pain as described by Dr G Jones and he was not gaining any pain control through the medications prescribed by his treating doctors or from the facet joint injections.
He complained of depression and inability to cope with his disability. He was using marihuana to control his pain and to relax. He was treated with appropriate medications for his pain and depression."
In a follow up report as to the use of, and dependence on, marihuana, he gave as his opinion:
"With regard to your enquiry about Mr Pulford's cannabis dependence I do not believe that it has any relevance to his capacity to work. His use of cannabis had escalated because he had been using it to control his pain, but the pain medication has helped to reduce the pain, and hence he told me that he has reduced his marihuana use."
Consideration of the ultimate diagnosis and prognosis of Dr George requires review of the medical history of the patient and an assessment of whether the consequence stated by Dr George is attributable to the accident. The plaintiff has regularly used marihuana over some 25 years. In December 1997, Mr Pulford was admitted to the Royal Hobart Hospital following a period of emotional and psychological distress. He was assessed as being depressed with suicidal tendencies and complained of a series of headaches over a lengthy period. After further examination and treatment, the resident psychiatrist formulated the following diagnostic criteria:
Axis 1Personality disorder indicating depression and anxiety through factors of problems associated with phase of life, interpersonal relationship and work
Axis 2Personality ‑ nil
3 Discomfort or pain ‑ deferred
4 Environmental factors ‑ loss
5 Global Assessment of Functioning ‑ Scale 60 (reasonable).
That assessment can be compared with that made by Dr George following his examinations of the plaintiff between April and July 2003, namely:
Axis 1 Depression
Post Traumatic Stress Disorder
Cannabis Dependence
2 None
3 Chronic pain condition
4 Grief reaction ‑ death of father and mother a year ago
5 Global assessment of Functioning Scale 40
The defendants take issue with the diagnosis of post-traumatic stress disorder. Dr George had concluded that:
"All these symptoms started following the motor vehicle accident. He has difficulty in travelling in a car. He gets panic symptoms and experiences flashbacks. He is angry and frustrated because of the loss of quality of life.
He was emotionally dependent on his father and mother-in-law. Through their deaths he felt that everyone had abandoned him."
There is similarity between the assessment made in 1997 and that by Dr George in 2003 which weakens the claim that all of the present symptoms flow from the accident. Further, the diagnosis depends, in part, on the presentation by the patient of history and symptoms. I do not accept, for reasons elsewhere stated, that the plaintiff has experienced "flashbacks" as recounted by Dr George. The accounts of "flashbacks" appear late in accounts given to other treating and medical practitioners, and even if a product of genuine confabulation, do not constitute a valid grounding for diagnosis. Dr George, in the course of his evidence, was provided with additional material, namely the divorce and subsequent sense of grievance and reaction to the child support assessment. In response, he quite fairly conceded that a more appropriate diagnosis would be one of "reactive adjustment disorder", a more transient condition. That diagnosis was consistent with that made by Dr Sale, a consulting psychiatrist retained by the defendants. No "flashback" episodes were reported to Dr Sale who, in his evidence, took into account the 1992 admission to hospital and the assessment then made. The criteria employed by Dr Sale is as relevantly stated in the text Diagnosis of Statistical Medicine, DSM, IV, which relevantly states, at 309.81:
"AThe person has been exposed to a traumatic event in which both of the following were present:
(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2) the person's response involved intense fear helplessness, or horror. …
BThe traumatic event is persistently reexperienced in one (or more) of the following ways:
(1) recurrent and intrusive distressing recollections of the event, including images thoughts or perceptions. …
(2) recurrent distressing dreams of the event. …
(3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). …
(4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
(5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
CPersistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
(1) efforts to avoid thoughts, feelings, or conversations associated with the trauma
(2) efforts to avoid activities, places, or people that arouse recollections of the trauma
(3) inability to recall an important aspect of the trauma
(4) markedly diminished interest or participation in significant activities
(5) feeling of detachment or estrangement from others
(6) restricted range of affect (eg, unable to have loving feelings)
(7) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span)
DPersistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:
(1) difficulty falling or staying asleep
(2) irritability or outbursts of anger
(3) difficulty concentrating
(4) hypervigilance
(5) exaggerated startle response
EDuration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.
FThe disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Specify if:
Acute: if duration of symptoms is less than 3 months
Chronic: if duration of symptoms is 3 months or more
Specify if:
With Delayed Onset: if onset of symptoms is at least 6 months after the stressor."
In my opinion his conclusion that the plaintiff was not suffering from a post-traumatic stress disorder was correct, and not warranted by the symptoms as presented. His assessment using the same criteria as Drs Ashley and George was:
Axis 1 Within normal parameters.
2 Sleeping with physical pain, no nightmares or flashbacks reported. No diagnostic criteria.
3 Some elements of avoidance such as motor vehicle travel and change to life but no diagnostic criteria.
4 Discomfort in sleep but no mental trauma, with irritability and outburst of anger.
Criteria 4 is consistent with the conduct of the plaintiff towards the end of his treatment by Dr George. Dr George reported in his advice to the plaintiff's solicitors by letter of 26 August 2003:
"He was referred to a Clinical Psychologist, Mr Robert Davis, for the treatment and management of his Post Traumatic Stress Disorder from the motor vehicle accident. On 2 July 2003 he consulted me and he appeared visibly upset and distressed, and blamed MAIB for treating him 'badly'. So he decided to cease all his treatment, including the medications. He also advised me that he will not be keeping anymore of his appointments with me. I was concerned about his mental state and so contacted his General Practitioner, Dr Jane Chapman, and advised about the urgency of him continuing with the treatment. I haven't heard from Mr Pulford or his doctor since 2 July 2003."
Frustration and reaction to the time required to complete a claim for damages is an inevitable consequence of a complex process.
Dr Sale reached a diagnosis of "adjustment disorder" which has many criteria possessed by the term "reactive depression". To a large extent there is conformity between the opinion of Dr George and Dr Sale and the diagnosis earlier reached by Dr Ashley. In either case, the condition is transient and the conclusion reached, consistent with the medical evidence, is that the psychological or psychiatric condition, although exacerbated by the sequelae of the accident, including the length of these proceedings, was pre-existing and not a direct consequence of the accident. Its likely duration is not a matter which will inhibit any return to employment. Some component has been allowed in the award of general damages, but not for any assessment of future economic loss.
Past economic loss
The taxable income of the plaintiff for the period 1994 to 1999, was:
| 1994 | $14,555 |
| 1995 | $13,635 |
| 1996 | $32,247 |
| 1997 | $29,370 |
| 1998 | $28,265 |
| 1999 | $26,134 |
As previously stated, he resigned from his employment in 1999 following his dispute as to the child support assessment. He obtained employment with a fruit producer, J W Kirkwood, on 12 November and earned a gross sum of $1,077 between that date and 12 December, the date of the accident. He was employed, on a casual basis, at a rate of $12.90 per hour. Since then he has received several security benefits through Centrelink. Any award for past economic loss will be subject to statutory deduction and those figures can be calculated by counsel if there is need for any recalculation.
The plaintiff had undertaken seasonal work in an orchard. He claimed in his evidence that on completion of his work with J W Kirkwood he intended to continue with seasonal work within the apple industry. His companion, Shane White, who has worked with the plaintiff at J W Kirkwood, gave evidence that he had worked at those premises between November 2001 and February 2002. Thereafter he had worked at the Tolpuddle Vineyard, on a piece-work basis, between March and May 2002. Mr White had obtained further seasonal work at Poulos Seafoods, completing the year strawberry picking on 21, 22 and 29 September. It is difficult to equate his claimed times of work, derived from diary entries, since he did not provide particulars of the amount earned. Further, he was paid by the amount picked, not by a daily rate. The days of work as provided by the witness were:
November 13
December 15
January 23
February 6
March 3
April 12
May 5
In May he said that he obtained seasonal work at Poulos Seafoods and thereafter at Salter's Select Strawberries for the following periods:
May 19
September 3
The total of the days worked (99) will be accepted as being comparable to that likely to have been worked by the plaintiff. No figures of differing "contract" or "piece-work" payments were provided, and for the purpose of assessment, the rate paid by J W Kirkwood will be treated as an equivalent. The rate paid by Kirkwoods was $12.90 per hour. The evidence of Mr White was that between 7 November and 12 December, he worked on 16 days which, accepting equivalence, provides a daily rate of $67.30 per day. Assuming in each year the plaintiff worked in terms identical to his colleague, he has been deprived of an approximate sum of $6,662. Allowing for an increased rate for the year 2003, the following amounts are awarded:
November 2001 – September 2002 $6,660 November 2002 – September 2003 $7,000 Total
$13,660
Future economic loss
Four factors govern this head of assessment, namely:
(1)future physical capacity;
(2)future psychological condition;
(3)employment options;
(4)methodology of assessment.
The basis for assessing future lost income in this case cannot be a matter of precise calculation. The problems caused by a rigid formulation discounted for "the so called vicissitudes of life" have been identified by Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 and require no repetition. This assessment is made on a basis as stated by Barwick CJ in Arthur Robinson (supra) at 660, namely:
"The assessment of the global sum of compensation is a matter of judgment, bearing in mind all the facts and circumstances. Whether this assessment be made by jury or by judge alone it is not, in my opinion, a matter of mathematical calculation. The use of the present value of future regular payments, in my view, is more likely to divert the mind from the elements which should go to affect the judgment of the proper sum that to assist the assessment of the fair compensation to be awarded."
The evidence does not permit precise calculation. The circumstances of this case are not dissimilar to those considered by the Full Court in Martin v Howard 67/1983. In his concurring judgment at 11, Cosgrove J, having referred to the method of assessment proffered by Gibbs J in Cullen v Trappell (1980) 146 CLR 1, namely the use of actuarial tables and interest rates, said:
"There is, therefore, nothing inherently wrong in the general approach of the learned trial judge"
continuing, at 13 - 14:
"In my opinion, the use of such a method of calculating the monetary value of lost earning capacity is limited to cases, such as Todorovic v Waller (supra), where the plaintiff is in a permanent position with a set retiring age and is rendered by his injuries either unemployable or restricted to activities which can be predicated with some certainty and which have a known market value. Even in such cases, as Aickin J said in Todorovic v Waller at p 524:-
'… it depends upon a number of factors, not merely unknown but unknowable (which make) precision impossible and a broad brush treatment inevitable.'
The 'broad brush treatment' was in fact not evident in that case but that was because the court was concentrating its attention on the dispute as to the rate of discount generally rather than on the particular case before it. In this case, the projection is for 40 years. Who can say what the retiring age will be in AD 2022? Or what social benefits will be received by the unemployed? Or what attitude the community will have towards margins for skills? Or the effect of robots and computerisation on employment prospects? Those difficulties arise perhaps in most cases, but they are acute in a case involving an itinerant, unskilled worker with no permanent place in the labour market, and with only a short pre-accident working history. I find the conclusion inescapable that the method of calculation adopted by his Honour had no basis in fact, and was unsuited to the resolution of the problem before him. This was an occasion for arriving at a round sum which gave to an experienced man of the law the most satisfaction and appearance of justice. If that process is criticized as 'intuitive' so be it. At the trial level there is often no available alternative."
(See also Hunt v Burns B27/1986, Cox J at 16; Marshall v Cnossen 41/1985.)
The plaintiff has not proven permanent incapacity. He is unable to return to hard physical labour. However, the evidence shows that he is able to perform physical tasks requiring the use of a chainsaw, lawn mower and general tasks around a small farm. He is able to drive a motor vehicle and move with reasonable facility. Pain management should enable him to perform tasks such as "drive way" service, maintenance, storemanship, and basic office duties, and the like.
He has not proven long term psychological or psychiatric impairment. His depression flows from reaction or from his adjustment disorder and will improve. Little significance attaches to this aspect of his cause.
Mr Pulford is restricted in his employment opportunities by his limited formal qualifications and skills. It may be that the retraining will enhance his employment prospects, but for the purpose of these proceedings, it is for him to show incapacity caused by his injuries received in the accident. The Court accepts that he will be unable to return to work including heavy manual labour, but not that he could perform work of a less physically demanding labour. It accepts that but for the accident the plaintiff would have been able to continue with seasonal work. It accepts that it ought take some little time for him to undertake retraining and obtain alternate work. Two methods produce a similar outcome. Assuming that he continued seasonal work, but that because of his injury he is precluded for some four years, his future economic loss would amount to some $28,000. Assuming that with retraining he can regain employment at a level approximate to his last full time employment in a less physically demanding area of work within the next twelve months, then his future loss is similar. A figure of $30,000 is awarded for future economic loss, a figure slightly discounted for contingencies.
Future superannuation
The plaintiff tendered at the hearing a series of calculations prepared by a consulting actuary based on assumptions of income ($22,728 gross per year) and a retirement age of 65. On those assumptions, the actuary calculated an expected retirement value of $185,414, discounted to a present payment of $30,559. However, the tendering of the calculations was subject to the following agreement of the parties that:
"The Court may treat as agreed facts:
1 That the calculations and conclusions contained in the report of Mr Brian Bendzulla dated 27 September 2002 are only relevant if it is found that, as a result of his injuries, the Plaintiff has no residual earning capacity so that the destruction of his earning capacity is both total and permanent, and that were it not for his injuries he would have earned, without interruption, a gross weekly wage of $437.08 until the age of 65.
2 The figures and calculations contained in Mr Bendzulla's report cannot be used for calculating any loss of potential superannuation end benefits if there is a finding that the Plaintiff's earning capacity is impaired, and such impairment of his earning capacity would have been productive of economic loss, to any lesser extent than is referred to in paragraph 1.
3 In particular, Mr Bendzulla's calculations and figures cannot be used as a basis for calculating any loss if it is found as a fact that, were it not for his injuries, the Plaintiff's future employment would probably have consisted of casual, part time and, or, intermittent periods of employment as opposed to continuous full time employment."
Given the findings, the calculations are of little use. The only means for assessing loss of superannuation is to calculate it at a rate of 9 per cent on the assessed future loss. The methodology is unsatisfactory and requires a "broad brush" approach. The calculation is $2,700.
Past medical expenses
These have been paid by the Motor Accidents Insurance Board.
Future medical expenses
A claim for $55,101 is made under this heading, quantified as a weekly expenditure of:
| Celebrix ‑ 1 capsule per day | $13.48 |
| Endone ‑ 1 – 4 per day | $21.00 |
| Epilim ‑ 1 per day | $8.90 |
| Oxcontin ‑ 1 – 3 per day | $36.60 |
| General practitioner ‑ 1 visit per month | $8.75 |
| Total | $88.73 |
The claim is one calculated to the age of 65, which, using the multiplying formula, amounts to $55,101. The claim is excessive. The condition of the plaintiff has improved and some of the psychological underlying perceptions of pain ought provide further improvement. The pathology as found by the medical advisers does not warrant a term of disablement or discomfort as claimed. An assessment made on a projected basis of five years is more than generous to the plaintiff's cause. Return to work may involve some level of pain and the award takes into account that possibility. In the event that the plaintiff undertakes a further successful facet block, the need for medication will be lessened and its projected cost offset by the cost of the procedure. A figure of $10,000 will be awarded.
Summary
Damages are awarded in the following amounts:
| Past economic loss | $13,660 |
| Future economic loss | $30,000 |
| Future superannuation | $2,700 |
| Future medical expenses | $10,000 |
| General damages | $20,000 |
| Total | $81,300 |
There ought be judgment for the plaintiff in the amount of $81,300.
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