Reason v Schmidt
[1990] TASSC 146
•23 October 1990
Serial No B69/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Reason v Schmidt [1990] TASSC 146; B69/1990
PARTIES: REASON, Harry James
v
SCHMIDT, Maxine Sheree
FILE NO/S: 592/1984
DELIVERED ON: 23 October 1990
JUDGMENT OF: Cox J
Judgment Number: B69/1990
Number of paragraphs: 23
Serial No B69/1990
List "B"
File No 592/1984
HARRY JAMES REASON v MAXINE SHEREE SCHMIDT
REASONS FOR JUDGMENT COX J
23 October 1990
This is an assessment of damages for what is commonly called a whiplash injury sustained by the plaintiff in a motor vehicle accident which occurred on 8 August 1983. The plaintiff was driving his wife's car at the time and was struck from behind and pushed into a car in front of him. He complained of cervical pain and was taken by ambulance to the Royal Hobart Hospital where he was kept under observation for about five hours before being discharged into the care of his wife. He is a butcher by occupation and he returned to his shop the following day, but because of continuing pain in his head, neck and indeed his entire body, was unable to remain there and stayed home for the next four days.
Although then aged 55 years, he had a wife and a family of five children living at home dependent upon him and so he felt he had no option but to resume work notwithstanding his pain and discomfort. He was the proprietor of his business which was run as a partnership between himself and his wife although her role was minor being confined to effecting a few deliveries, and for several years he had employed a part time assistant. He consulted a general practitioner on 16 August 1983 still complaining of pain in the neck and shoulders, and was found to be tender over the entire cervical spine. A fortnight later Dr Salter noted:
"Cervical region is certainly better but still pain and tenderness around C6–7 region particularly when looking up and lifting arms. Range of movement is satisfactory. No nocturnal pain. See if not getting better."
The Motor Accidents Insurance Board paid him a "self–employed allowance" of $735.36 for the period 15 August 1983 to 7 September 1983. He next consulted a general practitioner, Dr Salter's partner, Dr O'Halloran, in March 1984 when he complained of pain, his neck and upper thoracic spine being tender from C7 to T4. He was treated with an anti–inflammatory drug. In early May 1984 Dr O'Halloran found him unchanged and gave him a certificate of unfitness for work for two weeks, referring him to an orthopaedic surgeon. The plaintiff did not wish to retain that surgeon, so he was referred to neurosurgeon Mr G P Duffy in June 1984 after x–rays and physiotherapy. The x–rays showed pre–existing osteo–arthritis in the cervical spine.
On 20 June 1984 Mr Duffy performed an anterior cervical fusion of C5–6 and C6–7 noting his post–operative recovery as good except for spasm in the trapezius muscles which required injections. When seen on 14 August 1984 there was minimal restriction of neck movement and Mr Duffy certified him as fit to return to light duties. Between 12 June 1984 and 12 August 1984 the Motor Accidents Insurance Board paid him $2,136.06 disability allowance. For about five weeks after Dr O'Halloran's first certificate he received some form of social security benefit.
Mr Duffy next saw him on 13 November 1984 when he noted that the plaintiff was doing his full work as a butcher, but was noticing some discomfort in his neck if he was lifting heavy carcases of meat down from a hook.
Examination showed minimal restriction of neck movements. The arms were neurologically normal. On 4 December 1984 Mr Duffy saw him again and recorded that the patient had been lifting a 100 kilogram carcase the previous week when he felt a pinch in his neck. Since that time he had noticed that with lifting heavy carcases he was getting increased discomfort in his neck. X–rays showed sound fusion and he was advised to avoid lifting heavy weights. The plaintiff disputed that he had attempted to lift such a heavy carcase, and I think it likely that there was some misunderstanding by Mr Duffy of the weight involved. On 11 December 1984 Mr Duffy found he was symptom–free so long as he did not lift heavy weights. On the history given him, Mr Duffy attributed the plaintiff's neck and arm symptoms to the motor vehicle accident. Although degenerative changes were present on x–rays taken shortly after the accident, the plaintiff claimed they had not given rise to any symptoms prior thereto and Mr Duffy opined that they would not have given rise to symptoms had he not injured his neck in the accident. I so find.
Mr Duffy saw the plaintiff again on 12 September 1985 at the request of his solicitors. He said he was, generally speaking, managing well but he still noticed discomfort in his neck with normal activities and found he was unable to lift heavy weights because of neck pain. He was getting no significant symptoms in his arms. Examination showed mild restriction of neck movements with some slight discomfort. Neurologically the arms and legs were normal. Mr Duffy expressed the opinion that the plaintiff was fit to undertake his work as a butcher, save that he was not fit for heavy work such as lifting carcases. In the context of a one–man butcher's shop, it was therefore necessary, in his view, for the plaintiff to employ someone to do this work.
The next time Mr Duffy saw the plaintiff was in November 1987. The plaintiff told him he had been managing fairly well in the two intervening years, but in the previous two months he had had to increase the heavy work he was doing as a butcher as his assistant was away with the Army Reserve. The plaintiff was complaining of aching pain in the centre of the lower part of his neck and between his shoulder blades, and he had some discomfort in his arms at night time. On examination he was tender about the C7 level and between his shoulder blades. There was some restriction of neck movement with discomfort. On 18 November 1987 Mr Duffy injected the tender areas with Depo–Medral and Marcain and performed a cervical manipulation. He still considered him fit to continue work as a butcher so long as he did not lift heavy carcases.
In February 1988 Mr Duffy performed another nerve block and cervical manipulation. The plaintiff had noticed further aching pain in his neck if he carried heavy weights. He said he was avoiding carrying heavy carcases, but even lighter weights were causing him some trouble. Mr Duffy saw him again on 19 June 1989 at his solicitors' request. He told him that he still suffered from some discomfort, mainly between the shoulder blades, and was having no symptoms in his arms. On examination, his neck movements were full. He complained of some discomfort on palpation of the thoracic spine. Power and tone in the arms were normal. By this stage cardiac problems had arisen, and for that reason alone Mr Duffy was of the view that the plaintiff was not fit to undertake the full duties of a butcher. But for that, as far as his neck was concerned, he was capable of undertaking butchery work with the reservation about lifting heavy weights.
There is no doubt in my mind that the plaintiff has sustained, in the motor vehicle accident, a whiplash injury of moderate severity which is continuing to cause some discomfort and which has imposed some restrictions upon his earning ability. What is by no means clear is whether it has caused any significant economic loss.
The plaintiff is now 62 years of age. He has been a butcher since he was 13 years old. Until his retirement late last year after heart surgery, he had been the proprietor of the Terminus Butchery in Liverpool Street, Hobart for about 25 years and had operated it for seven years or more prior thereto as an employee when it was owned by Richardsons Meat Industries Limited. He said it was a very personal kind of business, but it is clear from the profit and loss accounts produced at the trial, and from other evidence, that it has been an ailing small business for several years. It is situated on the Eastern end of the City. The residential population has dwindled as has the number of commercial enterprises conducted there, and the closure of the passenger rail service to the nearby railway terminus and change of direction in the one–way traffic flow have, the plaintiff concedes, had deleterious effects upon the business.
In 1976 the plaintiff had another car accident injuring his knee and his lower back. In late 1977, as the result of patella femoral osteo–arthritis, his knee cap was removed by Mr W. B. Law who, in a report dated 6 September 1978, recorded that the plaintiff
"...tells me that he is handicapped in regard to work and I think I can understand this. He cannot kneel on it, he is not as agile as he used to be and in fact he says he is much slower in getting about the shop. I would accept this, and I do know that he has had to put on I think one, if not two, men to help him".
Mr Law said of the degenerative changes he had found then in the plaintiff's lumbar spine that it would not surprise him that every now and then his back should "play up", and that lifting heavy carcases was not likely to help his lower back. Furthermore he said:
"I would think as he got older (say at about the age of 55 years) subconsciously he would be trying to avoid too much heavy lifting and that in time he might well quite apart from the car accident (the subject of this action), have had to seek assistance because he could not do everything because of his back."
The financial records produced by the plaintiff are somewhat sparse. In the financial years ending 30 June 1980, 1981, 1982, 1983 and 1984 the profit and loss account prepared by his accountant shows the payment of wages of $4,352.00, $7,540.00, $7,540.00 (sic), $2,590.00 and $3,374.00 respectively. In the first of these years, his eldest son was working for him, but then commenced working on the Eastern Shore in the same trade. The figures clearly show that the plaintiff did not, prior to the accident, run a one–man operation, but that he did procure assistance from time to time. Since 1984, the profit and loss accounts for the years ending 30 June 1985, 1986 and 1987 reveal no wages being paid at all and no profit and loss accounts were placed in evidence for the last three years. Evidence of surveillance by a private enquiry agent in some of those years, however, shows that assistants were often present. The plaintiff said that his son had given him a considerable amount of his own time free. Friends also rendered assistance in carrying meat around the shop, and delivery men were also obliging.
Although I accept that the plaintiff has suffered pain and discomfort as the result of the whiplash injury, I am not persuaded on the balance of probabilities that (apart from those occasions when he was paid allowances by the Motor Accidents Insurance Board) he has sustained any economic loss therefrom. He is, according to Dr O'Halloran, a stoical man and that is to be admired. He has not allowed the discomfort to interfere with his attendance at his place of business. Surveillance revealed that during late May 1984 when the holder of a certificate of unfitness for work from Dr O'Halloran and the recipient of some kind of social security benefits, he nonetheless attended his shop for several days in succession and carried out many of his normal duties. I do not hold that against him as showing dishonesty so far as the social security payments are concerned. He rationalised his receipt of benefits on the basis that he still had to pay others to do work he could not do and claimed that he was really only "pottering about". Within three weeks, Mr Duffy had performed the cervical fusion so it is clear that he was not malingering. Nevertheless this episode reveals his determination to carry on regardless. Even now, having passed the business over to his son, finally acknowledging that his heart troubles render him incapable of continuing to run the business, he frequently attends and works in the shop for no wages, his reward being some free meat and the opportunity to see his old customers. I am unable to make a finding that as the result of the accident (apart from the occasions of hospitalisation, etc. I have mentioned) he has incurred any additional expense in employing assistants to do the heavy work he cannot or should not do.
Some calculations were presented by a chartered accountant in support of a claim to loss of profits in the seven years since the accident amounting to $20,534.00. They were based on the plaintiff's actual percentage profit on gross sales for the year ending 30 June 1983 and comparison was made with business bench marks for butcheries with a similar turn–over prepared by the Financial Management Resource Centre of the University of New England. Projections were made as to what profits such businesses would be likely thereafter to engender. No allowance was made for the idiosyncrasies of this business and I derived no assistance from the evidence. I am unable to say what the plaintiff's progressively deteriorating profits are due to.
I have mentioned the development of cardiac problems in the plaintiff. In May 1989 he was diagnosed as having a narrowed coronary artery. He underwent angioplasty in Adelaide, and in December of that year returned to Adelaide for a coronary by–pass operation. Although Mr Nicholson, the specialist who now has responsibility for him, said he considered that by the end of March 1990 the plaintiff would have made a complete recovery and that apart from heavy lifting he could have carried on in his business as a butcher, that view was not shared by either Mr Law nor Dr O'Halloran who both thought his heart condition rendered him unfit for work. Whatever the better opinion may be, the plaintiff has accepted that he should not carry on his business any longer. I am unable to find that the whiplash injury has precipitated that decision or been an effective cause of his ceasing to earn an income.
The plaintiff and his wife live on a 6 acre property at Acton Road. They moved there from Howrah about two years before the accident. The plaintiff's injuries have, I find, caused a reduction in his enjoyment of the country lifestyle he had adopted (subject to his pre–existing restrictions such as the knee cap injury). He is less able to mow lawns, cultivate his vegetable garden, exercise his dogs and do a variety of chores hitherto done by him. He has not lost all ability to do these things, but if he does them for too long, he suffers pain. Generally his enjoyment of life has been lessened and he is less patient and tolerant, which occasionally leads to tension in the family. For his pain and suffering and loss of the amenities of life, I award the sum of $12,500.00.
The plaintiff and his wife have had an interest in greyhounds for many years. Throughout the 1970s, they raced greyhounds and the plaintiff was one of the top half dozen trainers in the State. Some of his greyhounds won substantial prizes, but very little evidence of a detailed kind was adduced to demonstrate the level of success that he had had. When they moved to Acton Road they decided to concentrate on breeding. They had one bitch and two dogs from her first litter. These dogs were not very successful and were put down before the second litter arrived. Of the second litter, two further dogs won some low grade races and were considered by the plaintiff and his wife to have the potential to advance to higher grades. Mrs Reason, however, was unable to devote the necessary time to them at the time of the plaintiff's operation and convalescence in 1984 and they were sold. The bitch produced no further litters and about five years ago they took possession of another breeding bitch which has produced one litter only. They procured two further bitches, but breeding from them was not successful. When asked what bearing the accident had on her ability to successfully breed greyhounds, the plaintiff's wife said she could not really answer, but that had her husband not had the accident, she probably would have persevered more.
I am prepared to accept that the plaintiff's injury did restrict his contribution to the hobby he and his wife enjoyed of rearing and racing greyhounds when the opportunity arose. But whether, but for the accident, they would have won more races or bred more successful progeny is totally speculative. The claim for pecuniary loss in respect of racing and breeding greyhounds has not been made out.
Claims of $950.00 for hospitalisation at St. Helens Hospital, $67.00 for Dr Michelle Duffy and $27.20 for Dr O'Halloran have been established and will be added to the general damages. Pharmaceutical expenses of $4.30 per week were claimed, but the evidence was sparse to support the claim. Having regard to the fact that the same medication alleviates symptoms in his knee, I think a sum of $1,000.00 would be a reasonable allowance in respect of this item, and a sum of $300.00 for travelling expenses to date. As to the future, the plaintiff's heart condition is what now requires regular visits to his doctor.
There remains a claim under the Griffiths v Kerkemeyer principle. While the plaintiff was convalescing after surgery, I accept that he needed nursing by his wife for five to six hours per day. She has continued to provide services around the property which, but for the accident, he probably would have provided. This could amount to a further five to six hours per week, but it has now largely been superseded by the disabilities attendant upon his heart condition. Allowing $7.00 as a reasonable hourly rate and adopting a broad brush approach, I allow $3,000.00 in respect of this claim.
The plaintiff will have judgment for $17,844.20, made up as follows:
General damages for pain and suffering $12,500.00
St Helens Hospital 950.00
Dr Duffy 67.00
Dr O'Halloran 27.20
Pharmaceutical expenses 1,000.00
Travelling expenses 300.00
Griffiths v Kerkemeyer component _3,000.00
$17,844.20
The plaintiff will retain the benefits paid to him by the Motor Accidents Insurance Board.
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