Roe, Alexander Neville v Carins, Anthea Joan
[1998] TASSC 154
•9 December 1998
154/1998
PARTIES: ROE, Alexander Neville
v
CARINS, Anthea Joan
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 144/1994
DELIVERED: 9 December 1998
HEARING DATE/S: 7, 9, 12 - 15, 19, 21, 22 October 1998
JUDGMENT OF: Cox CJ
CATCHWORDS:
Damages -Particular awards of general damages - Tasmania - Chronic musculoskeletal pain in neck, thoracic and lumbar spine - Insomnia - Psychological sequelae - Changed personality - Lost earning capacity as commercial traveller - Award of $403,213 (including $65,000 for pain, etc and $220,000 for future economic loss).
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Plaintiff: G L Jones
Defendant: A M Quinn
Solicitors:
Plaintiff: Douglas & Collins
Defendant: Dobson Mitchell & Allport
Judgment category classification:
Court Computer Code:
Judgment ID Number: 154/1998
Number of pages: 12
Serial No 154/1998
File No 144/1994
ALEXANDER NEVILLE ROE v ANTHEA JOAN CARINS
REASONS FOR JUDGMENT COX CJ
9 December 1998
The plaintiff sues the defendant for damages for personal injuries sustained by him in a motor vehicle accident which occurred near Launceston on Sunday, 19 December 1993, at the junction of Ecclestone Road and Stephensdale Drive. At about 9.45 that morning, the plaintiff, accompanied by his wife, was driving a red Mazda sedan east along Ecclestone Road towards the West Tamar Highway intending to travel to Forster Street, Invermay to attend a church service. His home was situated a few kilometres further west along Ecclestone Road. As he approached the junction of Stephensdale Drive which runs off to the right, or south, of Ecclestone Road, he observed the defendant's vehicle reach the T-junction and pause for a short time. At first he could see only the front of that vehicle and it was stationary or nearly stationary, but as he came closer to the junction, the defendant's vehicle moved slowly out on to Ecclestone Road in a turn to the right ahead of him. The plaintiff immediately applied his brakes and his car started to skid. He managed to steer it to the left, hoping to avoid a collision, but realising that there was insufficient room between the front of the other vehicle and the left hand side of Ecclestone Road, he swung his car to the right in an endeavour to pass behind it on the wrong side of the road. He was unable to avoid a collision, the front of his car striking the other on the front passenger side quarter panel. The plaintiff's own vehicle then rolled over, its roof scraping along the road surface before it righted itself and came to a halt on the southern side of the road some metres past the junction facing in a northerly direction. The collision occurred in the vicinity of the intersection of the imaginary centre lines of each road, but a little to the north of the centre line of Ecclestone Road, ie, on to the plaintiff's correct side of the road.
As the plaintiff's car slid along the road on its roof, the plaintiff's head and right shoulder protruded from the vehicle and he sustained injury to both. An ambulance was summoned and took both him and his wife to the Launceston General Hospital about twenty minutes after the collision. The police arrived about twenty minutes later and Constable Newman took some perfunctory details of the scene and made a brief sketch. Later that day he took a statement from each of the plaintiff and his wife and some other witnesses, including the defendant's passenger.
The plaintiff gave evidence that as he was approaching the scene of the collision, his speed was in the order of 70 kilometres per hour. There is a sign erected approximately 45 metres to the west of the junction limiting speed east of it to 70 kilometres per hour, and to the west of the sign the limit is 100 kilometres per hour. Ecclestone Road, in this area, heads down hill. A driver sitting in his car in Stephensdale Drive at its junction with Ecclestone Road would have a view up that road well beyond the speed sign, but there were at the time two bushy trees on the left of such driver which would partly obscure the line of sight. The plaintiff claims that very shortly after the accident the defendant alighted from her car and called out to him, "I'm terribly sorry, I couldn't see you. My passenger's face was in the way." This claim is recorded in the statement taken by Constable Newman from the plaintiff that day. The plaintiff said that when the defendant's vehicle moved out into Ecclestone Road "I was right on top of the other car … I just could not, just could not avoid that, no matter how hard I tried steering."
His evidence in respect of the collision was corroborated by his wife. She said she saw the other vehicle at the T-junction stationary at first, but that it then moved out into Ecclestone Road, proceeding very slowly until it was in the middle of that road protruding into their carriageway. Her husband braked hard and their vehicle, which was travelling on the left hand side of the road just prior to impact, turned inwards slightly to the right. They were travelling at a normal speed on their way to church and were under no time constraints. After the collision, her husband sat on a culvert near their car and she went to the defendant's car to ascertain if she was alright. The plaintiff's wife denied telling the defendant that they were in a hurry to get to church as they had prizes to deliver for a Sunday School breakup. She agreed that she did have such prizes in the car and had been asked to deliver them to a fellow church goer.
The defendant's passenger, her sister Mrs Clarke, gave evidence that when the defendant reached the intersection, the vehicle slowed to a crawl ¾ she did not think it completely stopped ¾ and that the defendant looked to both right and left before pulling out on to Ecclestone Road very slowly. Mrs Clarke did not claim to have looked to the left herself. When her sister's vehicle was about "the centre of the road if there's an imaginary centre line", Mrs Clarke looked to her left and saw the plaintiff's vehicle coming towards them. She immediately cried out, "Anthea. Stop. Look" and the defendant thereupon applied the brakes, the front of her vehicle being a little over the centre line by the time it came to a halt. Thereafter Mrs Clarke looked at the floor, anticipating a collision. She said she believed the plaintiff was travelling at a speed greater than the 70 kilometre per hour limit, but as her opportunity for observation was so limited and she was in an apprehensive state, I place no reliance on her evidence of the plaintiff's speed. She said she observed her sister talking to the plaintiff's wife after the collision, but did not hear the terms of the conversation.
The defendant said she approached the junction in second gear, slowing to about 2 kilometres per hour, looked right and left and saw nothing on the roadway. She said she had a clear view of between 50 and 80 metres to the crest of the hill. I find, having regard to the photographs put in evidence, that the crest is considerably further back and that had she looked, the defendant could have seen the road surface to her left for 100 metres, if not more. Having satisfied herself that there was nothing coming, she proceeded out into Ecclestone Road and was about in the middle of the road when her sister called out. She then saw the plaintiff's vehicle for the first time about opposite the 70 kilometre per hour sign about 45 - 50 metres away and she then applied her brakes. She claimed the plaintiff was "fishtailing" out of control from the sign onwards and described a series of movements by his car which caused it to cross the imaginary centre line several times, as opposed to the plaintiff's evidence that his vehicle veered to the left in one movement and then to the right in another. She gave evidence of a conversation with the plaintiff's wife to the effect that they were running late for church and had prizes to be delivered and said she could not recall speaking to the plaintiff. In cross-examination when it was specifically put to her, she denied having apologised and said she could not see because her passenger's face was in the way. I found her evidence very unsatisfactory. She accused the plaintiff of high speed, of being out of control and of "careering" around the road. Although she claimed that she had several seconds after first seeing his car and before the collision to ruminate upon whether to go forward or back and to decide on doing neither, I find that she only had his vehicle under observation for a very brief period of time, that his vehicle did not execute a series of movements to left and right and that, naturally enough, she was in a state of agitation immediately prior to the collision. Much of her evidence was based on reconstruction. Armed with knowledge that the investigating police officer had recorded skid marks of 31 metres left by the plaintiff and 4 metres by her own car, she used this to bolster her claims of the plaintiff's excessive speed. Typical of her attitude was her statement in cross-examination:
"… all I can say is that I felt that there was excessive speed involved which contributed to a car being out of control and the fact that there was 31 metres left on the road and 4 metres from my stationary car, I feel convinced and satisfied that that is the case. … I feel I did not cause this accident."
The police investigation was conducted poorly. The officer measured skid marks of 31 metres, apparently from the plaintiff's vehicle, and 4 metres, apparently from that of the defendant, and recorded them on a sketch. Only one skid mark was recorded on it as that left by the plaintiff, while three were recorded on it as having been left by the defendant. The sketch does not purport to be to scale and does not reveal the beginning and end of the skid marks in relation to the 70 kilometre per hour sign, the supposed point of collision or any other topographical feature. Distances were not measured by a tape, but merely paced. The officer had no memory of what he had observed other than what could be gleaned from what he had recorded. About the only memory he purported to have was that the car had ended up on its roof, which was demonstrably incorrect. His sketch of the plaintiff's skid mark (or marks), however, belies the defendant's contention of a series of movements to left and right and crossing the centre line. It shows a single unbroken crescent shaped curve from the left hand half of the road to its extreme left, which then extends back towards the centre of the road. This is consistent with the plaintiff's version.
The defendant called a consultant engineer who, on the basis of a number of assumptions, calculated that the plaintiff's speed at the commencement of a reaction time consequent upon appreciating the emergency facing him, was 106.4 kilometres per hour. Among the assumptions were the fact that the plaintiff had left skid marks of 31 metres, that his reaction time was standard and that the coefficient of friction of the road surface as measured by him in 1996 was the same as at the time of the accident. He summarised the material needed to determine the plaintiff's speed as follows:
"In order to be able to do that I had to have the following facts. First of all, the final repose of both vehicles; the point of impact of both vehicles working on the assumption that the vehicle driven by Mrs Carins was stationary; the length of skidmarks which were available from the police report and in order to summarise those things in what we call an energy balance to come up with an initial speed at the start of skidmarks I needed to know the frictional resistance of the road for locked wheels, the wheels being locked to create those skidmarks. I also needed the intrusion distances, front collision intrusion of the vehicle driven by Mr Roe, the damage exacted on the vehicle by Mrs Carins and the rotation and movement post-impact of both vehicles on our road surface. I have data or methods available to me to then derive speeds at certain points of travel of Mr Roe's vehicle."
As to the data in respect of the damage, it appears he had observed only photographs of the two vehicles, those of the plaintiff's vehicle having been taken in a scrap yard several years after the event and admittedly after much of it had been removed. I do not mean to be critical of him for he could only work with the materials he was given; but there are a number of matters which cast doubt on the conclusions he reached. I am not satisfied that the length of the skid marks is anything more than a rough approximation. A 10 per cent error in overestimation would reduce his calculation of the speed by 5 per cent. This rule of thumb applies to other factors, especially the calculation of the coefficient of friction. In fact, the engineer's assumption that the road surface was the same as when he made tests to arrive at this factor was erroneous. The road in question had been resurfaced some time after the accident and before his tests. It was approximately twelve years old at the time of the accident and would have had a coefficient of friction significantly lower than that applied in the ultimate calculation which, allowing for this factor alone, could have been reduced by about 12.5 per cent. The inadequacy of the police investigation casts doubts on some of his other assumptions. The plaintiff may have been travelling at more than 70 kilometres per hour before reaching the sign and upon reaching it may have still been in excess of it by a small margin, but it has not been established that his speed was significant or that in any way it amounted to a particular of negligence which contributed to the accident.
Where his evidence and that of his wife conflicts with that of the defendant, I prefer the plaintiff's and his wife's. I am satisfied that they were not running late for church and had not sped up to ensure that they could deliver the prizes before the service began. They had ample time to reach their destination. Possibly after the accident the plaintiff's wife may have expressed concern about the non-delivery of the prizes due to the condition of the vehicle and of her husband, but I do not accept the defendant's evidence of what the plaintiff's wife said in respect of running late. I accept the plaintiff's evidence that the defendant did say to him that she had not seen him because her passenger's head was in the way.
The defendant created the dangerous situation by driving out on to a T-junction and not giving way to the plaintiff, who was lawfully approaching at a reasonable speed. She failed to see him, not because he was a long distance up the road out of her sight and only came into collision with her because he was travelling at high speed, but because she either did not look to her left properly or did not look at all. Having intruded on to the roadway and having given every indication of intruding yet further into his part of the carriageway, she left him no time or room to manoeuvre so as to avoid a collision. In my view she was solely responsible for the collision.
The plaintiff was born on 24 November 1952 and is now therefore 46 years of age. The immediate injuries sustained in the accident were to his scalp and shoulder, as those parts of his body were scraped along the ground as the car slid on its roof on the road before righting itself. It must have been a particularly unpleasant and frightening experience and it was to cause the plaintiff nightmares about the accident, as well as flashbacks. He was treated at the Launceston General Hospital in the Accident and Emergency Section. Glass was pulled from his scalp and shoulder and they received dressings. He was in a lot of pain and was unable to swallow. After about four hours he was discharged into the care of his wife, who is a trained nurse. Over the next few days he remained in bed most of the time. He said he was in a lot of pain, was bruised everywhere, suffered a continuous headache and could not sleep. Skin had been ripped off his head and shoulders and both were constantly stinging. Pain killers gave him no relief. Two days after the accident he returned to the hospital to have further glass removed from his shoulder. On the third day he went to his general practitioner, Dr Venter, who referred him to a physiotherapist. She saw him two to three times per week for the next three months, giving him laser and heat treatment on the spine, neck and shoulder. In January 1994, he was referred to an orthopaedic specialist, Dr Butarac.
In March 1994, the plaintiff and his wife moved to the outskirts of Hobart, his wife taking up a position at Calvary Hospital. In the months prior to the move, the plaintiff continued to suffer severe headaches, pain and grating noises in his neck and deep joint pain in his right shoulder, which interfered with his sleep. He also had pain in the left shoulder at the acromioclavicular joint. An abrasion to his right hand healed after several months. He also suffered pain between the shoulder blades and generally felt very sore in all these areas.
Shortly before the accident, the plaintiff had applied for a job with Noel's Printing in Launceston as a sales representative. Some time in February 1994 the proprietor, Mr Bolst, telephoned the plaintiff and offered him the job. The plaintiff's understanding of the arrangement was that he was to receive a salary of $30,000 per annum and $150 per week car allowance. In addition, he was to be paid commission on any profits, although the arrangement about this was not firm. Mr Bolst was said by the plaintiff to know that he was moving shortly to Hobart and, hoping to expand his operations there, was content that the plaintiff should do so. The plaintiff started work enthusiastically on or about 10 February 1994, but soon found the work tiring and stressful, as he continued to suffer pain. After he had worked for Noel's Printing for only seventeen working days, the arrangement was terminated. At the time the plaintiff claimed he was not physically capable of continuing the work. He has not worked since.
Mr Bolst gave evidence that the arrangement was for a base salary of $30,000 per annum, but he was not clear whether the car allowance was included in it. Such an allowance had not been paid initially, but it was made up in a later pay envelope when the arrangement was terminated. Mr Bolst claimed that he agreed to pay the plaintiff 5 per cent - 10 per cent commission (he could not remember which) on sales exceeding $40,000 per month. He said he knew the plaintiff was planning to go to Hobart, but did not anticipate that this would happen for several months and that when the plaintiff told him, after having worked for only about three weeks, that he was going imminently, they both agreed that the arrangement was unworkable and terminated it amicably. Mr Bolst was not conscious of the plaintiff' having any physical pain or difficulty in carrying out his work.
To the extent that there is a conflict between these two witnesses, I prefer the evidence of Mr Bolst. That does not, however, impact significantly on the plaintiff's credibility. At about the same time he was examined on behalf of the defendant by Mr E D McIntyre, orthopaedic surgeon, who reported on 24 February 1994, that is about one week before the end of the job at Noel's Printing, that "two weeks ago [he] started a new job which will necessitate his moving to Hobart in about a fortnight's time. He is managing his job reasonably well, but he has had some ongoing symptoms." Mr McIntyre anticipated a good recovery. There may well have been some misunderstanding between Mr Bolst and the plaintiff as to how soon he would move to Hobart and I find that the move was the reason for their parting company. However, the plaintiff's condition, about which both he and his medical advisers were initially optimistic, did inhibit his working capacity and it continued to deteriorate.
At first the plaintiff lived for some months at Seven Mile Beach and consulted Dr Ridgers, a general practitioner. He later moved to Sorell. His symptoms got much worse and he was referred to an orthopaedic specialist, Mr Field, and also to Rehabilitation Tasmania where he participated in a physiotherapy programme for some six months. He was assessed for pain management and medication and tried a number of different drugs, to no satisfactory effect. Many of them led to fluid retention, gastric problems and mental confusion.
The plaintiff has seen a great many specialists, most of whom were called on the trial. They record a history, which he confirmed in his own evidence, of being, prior to the accident, a physically very fit man, tall and well built. He carried out a fitness programme in the privacy of his own home gymnasium on most nights and ran two to three kilometres each day, as well as exercising on a push bike. All of these activities he performed without difficulty and he had no musculoskeletal symptoms before the accident.
He presented three days after the accident to Dr Venter with headache and dizziness and complaints of neck stiffness and grating noises with rotation of the head. Examination findings were as follows:
A deep abrasion 10 centimetres x 12 centimetres long over the right shoulder, infected and requiring dressing.
A small superficial abrasion 2 centimetres x 2 centimetres over the left elbow, with a full range of joint movement.
The right hand showing a 1 centimetre x 1 centimetre abrasion over the fourth metacarpal joint, with no swelling and a good grip strength.
Abrasions over the parietal and occipital bones of the scalp. These were superficial but with some hair loss.
Mild limitation of neck movement in all directions.
Tenderness over the upper thoracic vertebrae.
Tenderness over the right acromioclavicular joint, but with a full range of movement. There was a complaint of shoulder weakness on lifting. His ongoing symptoms were pain in both shoulders, particularly over the right acromioclavicular joint and pain over the upper thoracic spine.
From December 1993 to March 1994, he attended physiotherapy, went swimming and took non-steroidal and anti-inflammatory drugs to relieve pain. Over this time he felt that he was improving. He saw Mr McIntyre in late February 1994. At this consultation his complaints were neck pain and some restriction of neck movement and upper thoracic back pain extending down to the lower back area. He had a full range of movement of the cervical spine with no local tenderness and a full range of movement of all joints in the upper limbs, with tenderness on pressure over the left acromioclavicular joint. The lumbar spine showed a full range of movement, but tenderness over the L5 - S1 area, normal straight leg raising and no neurological deficit in upper or lower limbs. X-rays taken at this time showed mild narrowing of the C6 - 7 intervetebral disc and a narrow sclerotic fifth lumbar disc with an anterior osteophyte, but no other significant abnormality. Neither Dr Venter nor Mr McIntyre commented in their earlier reports on any anxiety, depression or any changes in personality or behaviour. The plaintiff told Dr McLaine-Cross that by March 1994 he had started to improve and had returned to work. On his return to work, the following symptoms became evident. He reported increased fatigue, exacerbation of pain in the neck, shoulders and thoracolumbar spine and headache. He felt stressed and he was short tempered, irritable and aggressive. He had poor memory and concentration and with any prolonged standing for more than 15 minutes at a time, he developed paraesthesia and numbness in the left leg, which was eased by lying down. Following the accident, he developed changes in his sleep pattern. Prior to the accident he had slept normally. He quickly got to sleep and then had uninterrupted sleep until waking in the morning. He had been a snorer all his married life. He did not suffer from fatigue and he described himself as being a very energetic person. In the early weeks after the accident, he had disrupted sleep due to musculoskeletal pain over the neck, thoracic and lumbar spine and over both shoulders and reported waking several times during the night with numbness in the arms and in the fourth and fifth fingers of both hands. The numbness in the arms would usually be relieved by a change in posture within about five minutes. At this time he had constant daytime fatigue and apart from the localised musculoskeletal pain over the neck and thoracic spine and shoulders, also a generalised aching all over. He had also felt anxiety in driving past the intersection each day until his move to Hobart and had intrusive thoughts about the accident throughout the day. He found it very difficult to talk about the accident and became emotional whenever he had to do this.
After his arrival in the south of the State, he began to attend a gymnasium and to swim regularly in the pool there. It was his practice to drive his wife from Sorell to Calvary Hospital, attend the gymnasium for up to two hours most working days, return home for a rest and then drive back to town to pick his wife up from the hospital at the conclusion of her work each day. In May 1996, while at the locker room preparing for a swim, he developed severe acute lumbosacral back pain. This was so bad he had to lie flat on the back seat of the car while his wife drove him home. For about four days he was bed bound and unable to use the toilet. He had loss of feeling in the left leg and spent about three weeks in bed with the pain. When Dr McLaine-Cross saw him in October 1997, his musculoskeletal symptoms were continuing without significant change and he was suffering from insomnia. He claimed to wake frequently during the night, often with numbness in the arms. His snoring continued, but was worse than it was before. Each day he felt tired and fell asleep easily during the day. Initially he put on weight, but by dieting reduced his body weight to 15 stone. His wife confirmed that he was constantly tired during the day, with poor concentration and memory, emotional lability, poor tolerance of frustration and stress and outbursts of anger. He became stiff and sore after driving for about 25 kilometres and on longer journeys became very uncomfortable. He had a strong sense of resentment and feeling of injustice at the apparent change on the part of the defendant from one of being apologetic to putting the blame on him for the accident by virtue of her allegations of speed and lack of control of his car, and also felt a sense of resentment at the Motor Accidents Insurance Board, which at some stage ceased to make payments of his disability allowance. He is a man of strong religious conviction, being a member of a Pentecostal Church. Prior to the accident, his involvement in church activities was very extensive, his time being given frequently throughout the week to conduct counselling sessions, in addition to regular Sunday worship.
In Dr McLaine-Cross' opinion, although the plaintiff had some mild degenerative radiological changes in the lower cervical and thoracic spine prior to the accident, he had no symptoms related to these changes prior to it. Initially the musculoskeletal symptoms improved, but following his return to work in March 1994 they exacerbated and he became troubled by a combination of neuro-psychiatric symptoms including increasing fatigue, poor memory and concentration and irritability, short temper and aggression. At this time he first developed neurological symptoms in the right lower leg with prolonged standing in one position. This suggested to Dr McLaine-Cross that there was damage done to the lumbosacral spine causing nerve root irritation. He summed up his pathogenesis in this way:
"Firstly he sustained injuries to the cervical, thoracic and lumbo sacral spine. You will note that at this time he was waking at night with numbness in the arms radiating into the fourth and fifth fingers of the hands. These symptoms were relieved by changing position. As these symptoms were not present prior to the accident, I think it is reasonable to assume that they were a consequence of brachial plexus compression or irritation of the C7 nerve root on exit from the lower cervical spine. Likewise the fact that he was getting numbness and paraesthesia in the left leg after prolonged standing for more than fifteen minutes in one position that was eased by lying down suggests that he sustained an injury to the L5 - S1 disc causing intermittent nerve root compression. I would point out that none of these neurological symptoms were present prior to the accident. Nor are they the type of symptoms that are likely to be due to non-organic factors. They are typical symptoms of nerve root or nerve plexus compression eased by change in position and posture.
I believe that his symptoms of nightmares, intrusive thoughts about the accident and his emotional reactions to driving past the site of the collision and some of his other symptoms of irritability, poor tolerance of frustration and aggressive behaviour are consistent with a post traumatic stress disorder and I believe that he has this problem.
I also believe that many of these symptoms were due to sleep deprivation. I think that the cause of the sleep deprivation was his continued musculoskeletal symptoms but also anxiety, reactive depression and the post traumatic stress disorder.
…In summary, I believe that the evidence strongly supports him sustaining injuries to the neck, thoracic and lumbo sacral spine as a consequence of the accident. Despite the fact that some mild radiological changes were present prior to the accident, I don't believe that his symptoms can be attributable to these pre-existing degenerative changes. As well as his musculoskeletal symptoms, I believe that post traumatic stress disorder and a sleep deprivation syndrome have contributed to his neuropsychiatric symptoms. All of these are a direct consequence of the accident."
Dr McLaine-Cross did not anticipate any significant improvement in the plaintiff's condition and thought his ability to undertake employment of any type was severely affected by the combination of problems he had outlined. He did not see that there was any realistic prospect of his being able to return to paid employment.
Dr E V R Ratcliff was the only psychiatrist called on the trial and gave his opinion as follows:
"My own opinion is now that Mr Roe has a Somatoform Pain Disorder, in that he has a level of pain and disability, which while based on physical injury, is now grossly in excess of that which might be expected from his injuries and the subsequent anatomical findings. The psychological enhancement of symptoms in such a disorder is unconsciously produced, that is, it does not represent malingering. …
It is necessary to comment on the diagnosis of Post-Traumatic Stress Disorder. At the time of writing [31 October 1997] Mr Roe does not describe symptoms consistent with that diagnosis, although this was clearly the case when he was examined by the two psychologists who have reported on his case, and Dr lan Sale, at the time when he examined him, accepted that there were residual features of this condition. Retrospectively, he underwent an experience which would have been sufficient to produce a Post-Traumatic Stress Disorder, and indeed he recalled some symptoms of that, particularly in vivid reminiscences and dreams of the incident, present for perhaps as long as a year afterwards. However, this pattern of symptoms has now significantly faded. The less specific features of Post-Traumatic Stress Disorder are explainable on other grounds, most particularly an Adjustment Disorder resulting from his pain, disability, and the current medico-legal proceedings. I accept that it is likely that he had an acute Post-Traumatic Stress Disorder, more prolonged than an Acute Stress Disorder, but the condition has now faded and does not form a significant component of his present disablement."
A year later, Dr Ratcliff reported:
"My diagnostic opinion remains the same. With subjective symptoms apparently constant over a year and described in substantially the same terms with suggestion of slight increase in intensity, I would consider that the prognosis is for the indefinite continuation of similar symptoms."
I accept the basic thrust of the above evidence. The defendant called evidence which did not really conflict with it, although the medical practitioners concerned expressed surprise at the fact that the plaintiff's injuries had failed to resolve. Mr McIntyre, for example, said that the plaintiff's symptomatology appeared to be out of all proportion to the doctor's findings on clinical examination but conceded that it was not uncommon for patients with chronic pain to complain of symptoms out of proportion to the clinical findings. He thought there was a functional overlay which led the plaintiff to unconsciously exaggerate his symptoms. Although the doctor thought the plaintiff capable of some work, he conceded that he could not be expected to carry products such as photocopiers, facsimile machines and the like and could have difficulty sitting or standing for extended periods. He did not address the question of any limitation on the plaintiff's effectiveness as a salesman due to his irritability and loss of outgoing personality. Dr Tim Stewart, specialist occupational physician opined that the plaintiff was now physically capable of undertaking work as a salesman, but could not do so for psychological problems which he thought were due to Post-Traumatic Stress Disorder.
In 1995, the plaintiff was referred to a psychologist, Mr Webb, who formed the opinion that he suffered from Post-Traumatic Stress Disorder with grief and depression as some of the major symptoms. Mr Webb saw him on only one occasion and suggested that he might benefit from a treatment modality called Eye Movement Desensitisation and Reprocessing or EMDR. He said the plaintiff indicated that he was not prepared to participate in any treatment involving relaxation therapy or hypnosis as this form of treatment was against his religious beliefs. Mr Webb made appointments for the plaintiff for EMDR treatment but the plaintiff telephoned and cancelled them. It was urged by counsel for the defendant that the plaintiff had been unreasonable in adopting this attitude and had thereby failed to mitigate his damage. However, EMDR is a relatively new technique designed essentially to desensitise the patient from the trauma of reliving an horrific experience. Mr Webb was unable to explain how precisely it worked and acknowledged that it was successful in only a proportion of cases. It was not shown by the defence that the plaintiff's failure to undergo that form of treatment has obviated any improvement in his condition that undergoing it would have made likely. In any event, I accept Dr Ratcliff's opinion that the plaintiff does not now suffer from Post-Traumatic Stress Disorder but rather a somataform pain disorder which EMDR does not generally assist in alleviating. Furthermore, the plaintiff's religiously based objection was to submitting to any form of hypnosis which he considered might involve a surrender of his own conscious will to another, a concept he regarded as repugnant to his spiritual integrity. Dr Ratcliff agreed that EMDR was a form of hypnosis and in those circumstances I consider that the plaintiff's attitude was a perfectly reasonable one to adopt.
I find that the plaintiff now lives in constant pain and suffers psychological stress in the form of a pain focused disorder. He has a background of working as a sales representative and was regarded by Mr Bolst, who had previous knowledge of him, as an able salesman, one who could "get his foot in the door". This, I took to mean, that he had the kind of personality which induced confidence in prospective customers, enabled him to establish appropriate contacts and led to success in making sales of the products he had to offer. With his current pain and limitations, his personality has lost those attributes and he is left with physical disabilities which further restrict his capacity to engage in any active career as a salesman or indeed in any other field of endeavour. While a conclusion of this long drawn out medico-legal ordeal, with a judgment in his favour, may help to reduce his focus on his pain and disabilities, the latter will not dissipate. Hopefully his distress will be diminished and he will be able to concentrate on the positive attributes he retains, but I find that he is, for all practical purposes, deprived by the accident of any future earning capacity and that he has suffered a very severe disruption to his enjoyment of the amenities of life. He can no longer engage in vigorous physical activity beyond his daily swim. He is restricted socially. He finds his participation in the life of his church restricted by his disabilities and personality and he is reduced to a very limited lifestyle in which he can drive short distances and undertake only a few household chores. He has lost his sense of purpose and his self esteem. It is to be hoped that he will regain both, but it will certainly take time. For his pain and suffering and loss of the amenities of life I award the sum of $65,000.
The plaintiff's economic loss is difficult to assess. He has no special training. He left school at the age of 16 and has been employed as a lathe operator, storeman and as a welder. At different times he has had a delivery business, a transport business, a carpet selling business and an advertising agency. Prior to the accident, he was in almost continuous employment since leaving school. In the late 1980s, he was engaged in an advertising business called Image Makers Media Services Pty Ltd, with a Mr Dawe who held a 48 per cent share in it and he and his wife owned the remaining 52 per cent. It was a unit trust and he and Mr Dawe were the active members of the business, the plaintiff's wife being a unit holder for taxation purposes only. The plaintiff and Mr Dawe drew weekly sums of $330 in 1989 and in 1992, these were increased to $420 per week. In addition, they had available to them, fully maintained cars and telephones paid for by the trust. Their drawings were debited to loan accounts. The business did not operate at a profit in the first couple of years and thereafter the losses were carried forward. It was never profitable and it ceased to trade in December 1992. The plaintiff was left owing it some $70,000 in drawings for his services which the company never made sufficient profit to meet.
After this unsuccessful venture, the plaintiff commenced another business on his own account, selling items of office equipment. The business was called Classic Business Machines. This too, was far from successful, the income received by him between November 1992 and 30 June 1993, being approximately $10,200, while between July 1993 and December 1993, when he ceased to operate it, his income was some $2,800. His counsel therefore sought to rely on his contractual arrangement with Noel's Printing as a basis for the assessment of economic loss, including superannuation. That provided for a base salary of $30,000 per annum, plus a car allowance which may well have been fully expended in attaining his income. In addition, Mr Bolst estimated that had the plaintiff stayed in his employ and had he been able to work to his pre-accident capacity, he would have earned another $1,000 per month at least. Particulars of past and future loss were therefore calculated as follows:
"Past lost earnings
| Gross weekly | $570.34 |
| Estimated commissions ($12,000.00 per annum) | 230.77 |
| 801.11 | |
| Less tax | 216.65 |
| Net weekly | $585.46 |
| 19/12/93 to 30/06/94 52 weeks x 584.46 net | $16,364.88 |
| 01/07/94 to 30/06/95 52 weeks x 584.46 net | 30,391.92 |
| 01/07/95 to 30/06/96 52 weeks x 584.46 net | 30,391.92 |
| 01/07/96 increase in tax $582.06 net | |
| 01/07/96 to 30/06/97 52 weeks x 582.06 net | 30,267.12 |
| 01/07/96 reduction in tax Payable of $1.60 per week | |
| 01/07/97 to 30/06/98 52 weeks x 583.66 net | 30,350.52 |
| 01/07/98 to 21/10/98 16 weeks x 583.66 net | 9,338.56 |
| $147,104.92 | |
| Less earnings received from Noel's Printing in Launceston | 1,717.00 |
| $145,387.92 | |
| Future lost earnings based upon his post accident earnings with Noel's Printing: | |
| Gross weekly | $570.34 |
| Add commissions | 230.77 |
| $801.11 | |
| Less tax (as at 21/10/98) | 217.45 |
Net weekly | $583.66 |
At the rate of $583.66 for nineteen years, assessing this with a multiplier of 527 using Luntz's Table 3D (3rd Ed at page 548), it amounts to $307,588.82."
In addition to this, an actuary calculated that had the plaintiff been in the employ of another who was under an obligation to provide employer superannuation contributions, the present value of those past and future contributions, if payable on retirement at age 65, would be $36,115, assuming a gross weekly wage of $570, or $29,528 on retirement at age 60. On a gross weekly wage of $480, the calculations were $29,956 (aged 65) and $24,479 (aged 60); on a wage of $465.20 per week gross, they were $28,943 and $23,649, respectively; and on a wage of $444.30 per week gross, they were $27,514 and $22,477, respectively. The three lower figures were taken from varying salaries payable under the Wholesale Trade Award, these being figures to which the plaintiff might have aspired had he sought work, other than on a commission basis, as an employed commercial traveller. The calculations for superannuation are, of course, dependent on the plaintiff retaining a job as the employee of another over an extended period of time. For several years, prior to the accident, he did not have that status and it appears from his recitation of the various businesses he conducted, that he was rarely in the employ of another. His personality seems to have inclined him to being his own boss, rather than working for another and in my view any allowance for potential superannuation should be significantly discounted for the contingency that he may never, or at least not for lengthy periods, have been the recipient of employer contributions.
It is difficult to use the Noel's Printing figures as a base for any calculation of economic loss because of the extremely short time during which he was employed by that organisation. It is problematical how long the job would have lasted, as Mr Bolst's business was northern based and the plaintiff was, in any event, intending to move to the south. I have no evidence as to the plaintiff's prospects of similar employment in southern Tasmania, other than that of his undoubted pre-accident energy and that of Mr Bolst's assessment of his ability to "get his foot in the door".
The method of assessing damages for economic loss urged upon me is difficult of application, save in those cases:
"… 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 (1981) 150 CLR 401 at 459:
' … it depends upon a number of factors, not merely unknown but unknowable, [which make] precision impossible and a broad brush treatment inevitable'." (per Cosgrove J in Martin v Howard [1983] Tas R 188 at 211).
If one assumes that the plaintiff had the capacity to earn a living towards the top of the range of applicable salaries provided for in the Wholesale Trades Award, say, $480 gross per week, and further, that but for the accident, he would have utilised that capacity, the future loss of $410 net per week for nineteen years, with a multiplier of 527, produces a present value thereof of $216,070 and a loss in respect of superannuation amounting to a fraction under $30,000 if retirement came at age 65. I consider the higher figures based on his short career at Noel's Printing do not provide a safe basis for assessment and that a more realistic one is that of the Award with the retirement age at 65. I think it unlikely that he would, but for the accident, have retired at a lower age than 65. Applying a discount of 10 per cent for contingencies, this produces a figure of $194,463 for future economic loss and $27,000 for lost superannuation, although, as I have already remarked, I think it unlikely that the plaintiff would have been content to remain permanently in paid employment. Nevertheless, using the above figures as a more reliable guide than the Noel's Printing figures, which would produce figures similarly discounted for contingencies of $276,829 and $32,503, respectively, I adopt a broad brush approach and allow for future economic loss and the loss of potential past and future superannuation contributions, the sum of $220,000.
As to lost earnings to date, I will allow the sum of $102,013, claimed at page 11 of the plaintiff's particulars of claim dated 6 October 1998, such claim being predicated on an ability to earn $410 net per week. This is slightly generous as it makes no discount for the possibility that the plaintiff might have embarked on yet another unsuccessful business venture on his own account, but should be counterbalanced against any parsimony in discounting his future prospects of doing better than the Award wages which have been used as a guide in assessing compensation for future lost income.
The plaintiff is entitled to an allowance for future medical treatment from his general practitioner. I think visits to specialists will be rare. I shall assume something in the order of two visits per annum at $32 each to a general practitioner and one at $75 to a specialist every second year. This represents a weekly cost of $2. I allow $1,200.
He also takes Panadeine as medication. I accept that each packet costs $10.45 and lasts about one week when he uses it. To date, he has made no claim on the Motor Accidents Insurance Board, and he is entitled to reimbursement of this expense for the last five years. There are times when he does not need it and therefore does not use it. Doing the best I can, I allow $4,000 for the past and future cost of Panadeine.
The plaintiff uses natural foods and medication on a regular basis. His consumption of this type of material has increased, his wife estimates, by about $11 per week over what he used to purchase before the accident. I think some allowance ought to be made for this. I allow $6,000.
The plaintiff has maintained a regular exercise program, swimming at a Hobart gymnasium. It is undoubtedly necessary to his well being and compensation to some extent for his inability to undertake his pre-accident exercise which he was able to undertake at no cost. The present annual subscription is $525. It is reasonable to expect him to maintain membership for at least another fifteen to twenty years. I allow $5,000.
A claim has been made for travelling expenses to his gymnasium and his general practitioner. As he usually combines his daily swim with transporting his wife to work, there is no additional cost and the anticipated visits to the general practitioner are few in number. I do not think an allowance for travelling expenses is appropriate.
The plaintiff then should recover damages of $403,213, made up as follows:
Damages for pain, suffering and loss of amenities $65,000 Past economic loss $102,013 Future economic loss, including superannuation claim $220,000 Future medical needs $1,200 Pharmaceutical needs $4,000 Natural medicines $6,000 Gymnasium subscriptions $5,000 Total $403,213
All other special damages have been met by the Motor Accidents Insurance Board which has also paid a disability allowance to 1 October 1998 of $92,368.21 and was still continuing to do so when the matter was reserved. A deduction is appropriate, but as I do not know the precise figure, nor whether any allowance has already been made to accommodate the principle in Fox v Wood (1981) 148 CLR 438, I shall give the parties the opportunity to indicate the exact figure for which judgment should be entered.
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