Scuderi v Raskurasingham
[2017] ACTSC 41
•24 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Scuderi v Raskurasingham |
Citation: | [2017] ACTSC 41 |
Hearing Date(s): | 28 October 2016 |
DecisionDate: | 24 February 2017 |
Before: | Mossop J |
Decision: | Appeal allowed and judgment sum varied – see [72] |
Catchwords: | APPEAL AND NEW TRIALAppeal from Magistrates Court – Assessment of damages from motor vehicle accident – No challenge to finding that plaintiff’s evidence unreliable – Challenge to adequacy of award for numerous heads of damage – no issue of principle |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) Court Procedures Rules 2006 (ACT) Magistrates Court Act 1930 (ACT) |
Cases Cited: | Baxter v Insurance Australia Ltd [2015] ACTSC 273 Davies v Grgic [2006] ACTSC 14 De Marco v Italo-Australian Club (ACT) Ltd [2010) ACTSC 28 Dennis v Australian Capital Territory [2005] ACTSC 118 Eames v Shane [2012] ACTSC 116 Franklins Ltd v Burns; Burns v Franklins Ltd [2005] NSWCA 54 Klobucar v The Queen [2014] ACTCA 6 Planet Fisheries v La Rosa (1968) 119 CLR 118 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 Sutherland Shire Council v Major [2015] NSWCA 243 Tsueneaki v Stewart [2013] ACTCA 34 Urbaniak Bak v Prail [2014] ACTSC 171 |
Parties: | Vince Scuderi (Appellant) Nadarajah Raskurasingham (First Respondent) Insurance Australia Limited t/a NRMA Insurance (Second Respondent) |
Representation: | Counsel Mr D Jenkins (Appellant) Mr J Turnbull SC (Respondents) |
| Solicitors Howes Kaye Halpin (Appellant) Moray & Agnew (Respondent) | |
File Number(s): | ACTCA 103 of 2015 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Dingwall Date of Decision: 30 October 2015 Case Title: Scuderi v Raskurasingham & anor Citation: CS 122 of 2015 |
MOSSOP J:
Introduction
This is an appeal from a judgment of the Magistrates Court given on 30 October 2015. The Magistrate was dealing with an assessment of damages arising out of a motor-vehicle accident which occurred on 18 May 2010. The hearing of the claim took place over three days in June 2014. The magistrate ordered that judgment be entered in favour of the plaintiff in the sum of $30,880. The appellant, who was the plaintiff below, has appealed from that decision.
The appeal is brought as of right under s 274 of the Magistrates Court Act 1930 (ACT). Such an appeal is by way of rehearing. The relevant principles to be applied are set out in Urbaniak Bak v Prail [2014] ACTSC 171 at [51]-[54]. Having regard to the delay between a hearing of the case and the magistrate’s decision I need to approach the appeal in the light of the principles summarised in Klobucar v The Queen [2014] ACTCA 6 at [25].
For convenience I will refer to the appellant as the plaintiff and the respondents as the defendants.
The plaintiff claimed that as a result of the motor vehicle accident he had been unable to take up employment at a restaurant where he would have earned in excess of $1000 per week. A significant issue at trial turned upon whether or not he had in fact been employed in that position prior to or on the day of the accident. There was also a significant issue about the extent of injuries which he had suffered having regard to the difficulties encountered by the expert retained by the defendants in assessing the plaintiff and the failure by the plaintiff to disclose his earlier history of injuries. The magistrate’s assessment of the case was significantly influenced by his conclusion that the plaintiff’s evidence was unreliable, a conclusion which was not challenged on appeal.
Grounds of appeal
The grounds of appeal that were pressed at the hearing of the appeal alleged that the magistrate erred in the following respects:
i. Omitting from the judgment amount of damages the sum of money paid by the Respondents insurer, on behalf of the Respondent, to the Appellant, being $4,909.00, on account of out of pocket expenses incurred by the Appellant as a consequence of injuries suffered as a result of the Respondent’s negligence.
ii. Awarding manifestly inadequate general damages to the Appellant.
iii. Finding that the Appellant’s injury was for a closed period of no more than about 18 months
iv. Assessing general damages (and interest), past out of pocket expenses (and interest thereon), future out of pocket expenses, past economic loss (and interest thereon), future economic, and past and future domestic assistance damages by failing to give any weight or by giving insufficient weight to the evidence of:
the Appellant’s lay witnesses;
the Appellant’s treating doctors;
Dr McNicol and Dr Stubbs;
the Centrelink Job Capacity Assessment
v. Finding that there was no evidence as to what employment might have been available to the appellant for the period of his residual capacity for work.
vi. Failing to give proper weight to the evidence that the appellant was picking up supplies relating to his employment or potential employment on the day of the accident and, as a consequence, making an inadequate award for economic loss.
vii. Discounting the award made for past economic loss and awarding a buffer based upon a finding it was improbable that employment would be available to the Appellant that would meet his residual capacity for work as assessed by the Centrelink Job Capacity Assessment
viii. Preferring the evidence of Mr Kazanc Senior over that of the Appellant and Mr Shukru Kazanc (“Mr Kazanc Junior”) in relation to the Appellant’s employment at the Turkish Pide House in Jamison;
ix. Failing to properly consider the evidence of Vivien Schraeder [sic] in relation to the domestic assistance the Appellant required, and, as a consequence, made an inadequate award for gratuitous assistance.
The plaintiff contended that although the magistrate’s significant delay in delivering judgment does not give rise to a suspicion of error in all of the findings it does mean that additional scrutiny is warranted where there has been a failure to give specific and satisfactory reasons in relation to accepting or rejecting evidence which is of importance in the appeal.
The decision below
The claim arose out of an accident on 18 May 2010. The plaintiff had come to a stop at the intersection of Erindale Drive and Ashley drive, Monash in the Australian Capital Territory when the car driven by the defendant collided with the rear of the plaintiff’s vehicle.
The hearing took place on 2, 3 and 4 June 2014. In addition to the plaintiff himself, the following lay witnesses were called in the plaintiff’s case
(a)Mehmet Kazanc (“Mr Kazanc Senior”) — a chef at the Turkish Pide House;
(b)Vivian Schrader — the plaintiff’s friend and carer;
(c)Sam Al Hassan — the plaintiff’s friend who assisted him at the scene of the collision; and
(d)Shukru Kazanc (“Mr Kazanc Junior) — the manager of the Turkish Pide House.
The only lay witness called by the defendant was the defendant himself.
Expert medical evidence was in the form of medical reports prepared by Dr David McNicol, orthopaedic surgeon, and from Dr Geoffrey Stubbs, orthopaedic surgeon. Each of the doctors had prepared three reports. The first two of Dr McNicol’s reports was prepared at the request of the plaintiff’s solicitors but the third was prepared at the request of the defendant solicitors. Each of the reports of Dr Stubbs were prepared at the request of the defendant’s solicitors. Dr McNicol was called to give oral evidence by the plaintiff and was cross examined. Dr Stubbs was called by the defendants and was cross examined.
1255 pages of documents were also tended in two folders. These largely comprised the plaintiff’s past medical records. At the conclusion of the hearing on 4 June 2014 his Honour reserved his decision. He delivered it on 30 October 2015.
His Honour’s reasons extended over some 219 paragraphs. The general structure of the judgment was to set out and analyse the evidence given by each of the lay witnesses and then describe and assess the medical evidence. The medical evidence comprised the documentary evidence of the plaintiff’s treating doctors as well as the medico-legal evidence provided by Dr McNicol and Dr Stubbs.
His Honour then returned to assess general damages. His assessment of general damages extended over 19 paragraphs. Because the evidence of the medical practitioners was, in this case, largely dependent upon what they were told by the plaintiff, his Honour’s assessment of general damages involved his findings in relation to the reliability of the evidence given by the plaintiff of his experience of pain, its severity and its impact on his enjoyment of life. Importantly, his Honour made the following adverse finding about the plaintiff’s evidence and the reliability of his reports to doctors:
189. Accordingly, the Court must make an assessment as to the truthfulness and reliability of the plaintiff’s evidence. In this plaintiff’s case, I am satisfied that he was a generally unreliable witness who gave false or misleading evidence and who was prone to a great deal of exaggeration. Being conscious that this is a serious finding to make, I have set out in great detail the plaintiff’s oral evidence and the content of documents either recording statements previously made by him, authored by him or signed by him.
190. In reaching this conclusion, I have had regard to the plaintiff’s demeanour in the witness box, a number of instances of evasion and prevarication, and instances of his failure to be entirely frank. In addition, I have had regard to his clear untruthfulness when asked by Dr McNicol to recount any past accidents and injuries. I do not consider it necessary that I detail each instance of the matters to which I referred. In my view, they are readily discernible from my recounting of the plaintiff’s evidence above, and particularly his cross examination, and the history of his attendances on medical practitioners. Counsel for the defendants detailed many of the matters submitted as adversely affecting the plaintiff’s credibility and submissions. I consider that all the criticisms made are valid.
191. Accordingly, unless an aspect of the plaintiff’s evidence is corroborated by other credit worthy evidence, I do not accept it.
He then examined the medical evidence which he considered was reliable to the extent that it was not entirely reliant upon the plaintiff’s own subjective complaints of pain. He also considered the evidence of lay witnesses as to their observations of the plaintiff and the severity of the collision. His Honour gave no weight to the opinions expressed by treating doctors in reports and notes because the plaintiff failed to make them aware of his pre-existing injuries and complaints of pain and previous accidents. He recorded that both Dr Stubbs and Dr McNicol agreed that the plaintiff had probably suffered an aggravation of his pre-existing injuries as a result of the accident. Those pre-existing injuries were “multilevel cervical spondylosis, multilevel facet joint arthritis and lumbar spondylosis and probably some rotator cuff pathology in his right shoulder”. He turned to address whether the aggravation of the plaintiff’s pre-existing symptomatic conditions was for a discreet period or was continuing. He identified that Dr McNicol was unable to say whether or not the symptomology ever returned to pre-accident levels because there was no available medical history of the plaintiff’s spine prior to the accident. His Honour noted Dr Stubbs’ comment that it was hard to assess because there were no medical records to use as a baseline, no knowledge of the plaintiff’s complaints and medical findings resulting from previous accidents and the plaintiff was not a good historian.
His Honour noted (at [196]) that the plaintiff bore the onus of proof and that the unsatisfactory evidence resulted from the plaintiff’s “lack of cooperation, pervasiveness, exaggeration and mendacity”. His Honour then reasoned as follows.
(a)He accepted the defendant’s evidence, which he considered to be reliable, that the collision occurred at a “slow speed”. The plaintiff’s vehicle was stationary and was struck by “a small four-wheel-drive vehicle” travelling at about 10 km/h. The plaintiff’s vehicle would have been jolted forward suddenly resulting in a whiplash effect to the plaintiff. The fact that the plaintiff’s vehicle was written off was carefully assessed, resulting in the conclusion that the fact that it was written off was an insufficient basis to infer that the collision was more severe than described by the defendant. He gave no weight to the plaintiff’s exaggerated description of the collision “particularly his assertions as to speed and the presence of a bull bar on a large four-wheel drive vehicle”.
(b)His Honour next contrasted the evidence of the plaintiff that he started to feel pain immediately and that on the day after the accident he had been unable to get out of bed, later modified to finding it very hard to get out of bed, with the fact that on the evening of the accident and the following day he attended a licensed club to play poker and in fact attended licensed clubs to play poker on identified days throughout the balance of May and June 2010. His Honour concluded that the attendance at clubs following the accident led him to find that the level of increased pain caused by the aggravation was “modest” as described by Dr Stubbs and Dr McNicol.
(c)His Honour next analysed the pattern of the plaintiff’s attendance upon medical practitioners. He identified that the plaintiff’s attendance upon Dr Lee led to no medical treatment because on the first two occasions (20 May 2010, 16 June 2010) x-rays were ordered but not carried out and on the third occasion (19 August 2010) the purpose of the consultation was to have Dr Lee complete a medical report form to support the plaintiff’s motor accident claim. After that it was only on 21 December 2010, after the motor accident claim had been lodged, that the plaintiff attended a different doctor, Dr Dhaimat. There were then numerous consultations with Dr Dhaimat and referrals for diagnostic procedures. His Honour found that “it is impossible to determine whether, by that stage, [the plaintiff] was being treated for the aggravation of his pre-existing conditions or for their natural progression, the effects of aggravation having come to an end”. His Honour concluded that Dr Dhaimat thought he was treating injuries sustained in the accident because the plaintiff had failed to disclose to him his earlier accidents and symptoms associated with his neck, lower back and right shoulder. However, it is relevant to note that in the seven months prior to consulting with Dr Dhaimat (between May and December 2010) the plaintiff had only sought chiropractic treatment, and his Honour considered that was because the plaintiff “did not feel the need to” seek other medical treatment.
(d)So far as the chiropractic treatment was concerned, that treatment had not been advised by a medical practitioner. The medical records produced by the chiropractor were limited and did not disclose exactly what treatment was given and for what condition. The treatment was described as either “adjustment” or “spinal adjustment”. His Honour was therefore not satisfied on the balance of probabilities that the treatment was given for any aggravation of the plaintiff’s pre-existing conditions.
(e)His Honour then addressed the plaintiff’s submission that, in assessing general damages, weight should be given to the observations of the plaintiff by lay witnesses. He described the evidence comparing the plaintiff’s presentation before and after the accident, that of Ms Schrader, Mr Al Hassan, Mr Kazanc Senior and Mr Kazanc Junior, as being “quite vague” and mostly recounting the plaintiff’s complaints of pain and the observations as to difficulties the plaintiff seemed to be having in his movements following the accident. In Ms Schrader’s case his Honour referred to the evidence she gave as to how she found the plaintiff physically and emotionally when she first saw him a week or two after the accident. His Honour accepted that the evidence of the witnesses was “consistent with an aggravation of the plaintiff’s pre-existing symptomatic conditions” but that they did not support a finding that the aggravation continued beyond a closed period.
His Honour’s conclusion (at [204]) was as follows:
204. I am satisfied that the plaintiff suffered an aggravation of pre-existing symptomatic conditions of his neck, back and right shoulder. On the evidence before me, I am satisfied that the aggravation lasted only for a closed period. That period has been made impossible to determine due to the plaintiff’s untruthfulness regarding his pre-existing symptoms. Doing the best I am able, I find that the period of aggravation was probably for a period of no more than about 18 months. I assess general damages in the sum of $15,000 which is all in respect of the past. I allow interest on that sum of $3,275.00 rounded up.
The period of 18 months corresponded to the period from the accident in May 2010 until November 2011.
In relation to past and future economic loss his Honour’s reasoning was as follows:
(a)The claim was for $979 net per week up until the date of hearing being the amount that he would have earned as the manager of the Turkish Pide House in Jamison.
(b)His Honour stated that he did not accept the plaintiff’s evidence except where it was corroborated by other reliable evidence.
(c)In relation to the evidence of Mr Kazanc Junior which “apparently corroborated” the evidence of the plaintiff his Honour said:
However, his evidence is inconsistent with that of Mr Kazanc Senior, who testified that, although he and the plaintiff had discussed the prospect of the plaintiff working at the restaurant, nothing had been finalised before the plaintiff was involved in the accident and, thereafter, he had not returned to the restaurant seeking work. He was very firm in saying that there had been no discussion about how much the plaintiff would be paid if he did commence employment at the restaurant. In view of the fact that all discussions concerning the plaintiff’s possible employment took place between he and Mr Kazanc Senior, I prefer the evidence of Mr Kazanc Senior on this aspect to that of the son, who was first asked to recall the relevant events the day before he gave evidence, four years after the events, and whose evidence I find not to be creditworthy.
(d)His Honour also referred to other evidence which in his Honour’s view brought into question whether the plaintiff was indeed employed as he alleged namely:
(i)that he was not paid for the day and a half he allegedly worked;
(ii)that even though employed as manager he was driving in Wanniassa in the late afternoon or early evening in search of salami or pastrami at a time when a manager would be expected to be at the restaurant particularly when the other manager, Mr Kazanc Junior, was not going to be there.
(iii)the “highly suspicious circumstances” in which the plaintiff obtained the signature of Mr Kazanc Senior to two documents relating to the plaintiffs alleged employment which Mr Kazanc Senior had given evidence were incorrect.
(e)His Honour then concluded that he was not satisfied that the plaintiff was employed on the day of the accident “nor that it was ever in prospect that he would earn $1250 per week”.
(f)Notwithstanding that finding his Honour considered that he was still required to make an assessment based on the plaintiff’s loss of capacity to earn income due to the aggravation of his pre-existing symptomatic injuries. In doing so his Honour had regard to the Centrelink Job Capacity Assessment Report which had been prepared in February 2010 and upon which the decision of the Commonwealth to grant a disability benefit was based. That report found that the plaintiff had a residual work capacity of 0 to 7 hours per week. His Honour also relied upon Dr Stubbs’s assessment in August 2011 that the plaintiff’s incapacity for work was largely attributable to his pre-existing conditions but that one fifth could be attributable to the aggravation by the subject accident. His Honour’s conclusion was expressed as follows:
210. Bearing in mind that at the time of the accident the plaintiff was receiving a disability benefit, was assessed as having a residual capacity for work of up to seven hours a week and that there is no evidence as to what employment might have been available to him for such a limited period each week, I consider it appropriate to make an award in the nature of a buffer for his lost chance of obtaining some work. I allow $3,500.00, together with interest in the sum of $1,720.00.
In relation to out-of-pocket expenses his Honour identified that the plaintiff claimed $5,903.30 for past out-of-pocket expenses and, although parties agreed that the amount had been expended by or on behalf of the plaintiff, there was a dispute as to whether or not the need for treatment arose as a result of the aggravation of the plaintiff’s pre-existing conditions. His Honour indicated that he had made his assessment on the basis of a closed period of aggravation and excluded the chiropractic treatment. His Honour allowed an amount of $2,000 for the past with no allowance for the future.
In relation to the plaintiff’s Griffiths v Kerkemeyer claim his Honour identified that the claim was based on the services provided to him by Ms Schrader. His Honour referred to the fact that the plaintiff’s evidence was “vague as to how much time Ms Schrader spent each day providing [the] services”. He then referred to the evidence of Ms Schrader, who he considered to be “a truthful and reliable witness”, that:
(a)any assistance she gave to the plaintiff was given in her own home during one of the plaintiff’s frequent almost daily visits;
(b)rather than assisting in showering, Ms Schrader simply insisted that he shower himself and sometimes would shave his head and help him put on his shirt;
(c)she would make provision for him in the meals that she was cooking for the family;
(d)occasionally she would massage the right side of his body to help relieve pain;
(e)occasionally she washed his clothes;
(f)she estimated that she spent about 40 minutes helping the plaintiff in these ways when he came to her home.
On occasions when she accompanied him to the chemist or a doctor she did not do so as a result of any incapacity on the part of the plaintiff to attend on his own.
His Honour’s conclusion was:
217. Bearing in mind my finding of a closed period of aggravation and my inability to determine the end of that period or when Ms Schrader commenced to provide assistance to the plaintiff, I consider a reasonable amount to allow for past loss of capacity to perform domestic activities is $3500.00 I allow interest on that sum of $1,885.00. I make no allowance for the future.
In summary his Honour’s assessment of damages leading to the judgment which he ordered be entered was as follows:
General damages
$15,000
Interest on general damages
$3,275
Past economic loss
$3,500
Interest on past economic loss
$1,720
Past out-of-pocket expenses
$2,000
Past Griffiths v Kerkemeyer
$3,500
Interest on past Griffiths v Kerkemeyer
$1,885
Total
$30,880.00
Findings relevant to general damages
The plaintiff’s grounds of appeal, as elaborated in his written submissions, challenge a number of matters relevant to the assessment of general damages.
First he challenged the finding at [194] of the judgment (referred to at [14] above) that the plaintiff’s pre-existing conditions included “probably some rotor cuff pathology in his right shoulder”. The plaintiff submitted that the accident caused new pathology to the plaintiff’s right shoulder.
The evidence on this point was as follows.
(a)The plaintiff gave oral evidence of experiencing pain in the right shoulder immediately after the accident: Judgment [10];
(b)In oral evidence the plaintiff said that a couple of days after the accident he reported to Dr Lee pain so severe that he “couldn’t even get out of bed” and described the pain as being all over his body, particularly in his neck, back, shoulder and chest: Judgment [13];
(c)Dr Lee’s notes upon his consultation on 20 May 2010 are difficult to decipher but whatever he was told did not lead him to seek any x-ray or other imaging of the plaintiff’s shoulder. Although the Motor Accident Medical Report dated 19 August 2010 prepared by Dr Lee is also difficult to read it appears to confine the clinical findings to “neck pain and headache and back pain. No other evidence of injury or fracture”.
(d)Dr Dhaimat’s progress notes from his consultation on 21 December 2010 include: “Had neck and back pains since the accident. states pins and needles right hand. Sore right hip and shoulder. Complains of Right shoulder, neck and back pains.” The clinical notes of Dr Dhaimat contain no subsequent reference to right shoulder pain notwithstanding that the plaintiff saw him on 28 December 2010, 5 January 2011, 13 April 2011, 20 April 2011, 29 April 2011, 19 May 2011, 25 May 2011, 15 June 2011, 22 June 2011 and 20 July 2011 and in a number of those consultations complaints appear to have been made of neck and back pains and investigations and referrals directed to those issues.
(e)In his first report of 3 August 2011 Dr Stubbs made a number of observations consistent with less than the full cooperation by the plaintiff including his reticence to answer questions. The history of the injury taken did not record any complaint of pain in the right shoulder or any detail of a seatbelt injury. The physical examination recorded that in the upper limbs the plaintiff was unwilling to move his arms freely and did not appear to involve a detailed examination of the right shoulder.
(f)Dr McNicol’s first report (4 March 2013) recorded under the heading “current status” some matters in relation to the plaintiff’s right arm/shoulder which were clearly matters of history rather than the plaintiff’s current complaint, as follows:
Mr Scuderi had bruising and tenderness about his right shoulder and anterior chest wall following the motor vehicle accident. This continued with pain referral into his upper arm associated with his shoulder pain. He also had reduced range of movement in his right shoulder.
(g)In so far as this recorded matters of history it must be assessed in the light of his Honour’s conclusions about the reliability of the plaintiff’s reporting having regard to his untruthful denial of previous accidents.
(h)Later in the report Dr McNicol recorded that there was “evidence of wasting of the supraspinatus muscle to the right shoulder” and that he had limited movement of his right shoulder compared with the left side. In addition to the loss of movement, the plaintiff’s positive pain response with internal rotation was consistent with rotator cuff pathology. He included in his diagnosis “A probable rotator cuff pathology right shoulder (possibly associated with a seatbelt injury).” He expressed the opinion that the plaintiff “should undergo further investigation of his right shoulder by way of plain X-ray and an MRI arthrogram. He may require referral to an orthopaedic shoulder specialist depending on findings.”
(i)The second report of Dr McNicol dated 17 April 2013 involved a commentary on Dr Stubbs’ assessment of 3 August 2011. It did not address right shoulder pathology. It did however note some difference in reflexes as between the right and left sides of the body consistent with the plaintiff’s previous stroke.
(j)The second report of Dr Stubbs (5 February 2013) involved some refinement of the history of the injury but still no report by the plaintiff to Dr Stubbs of right shoulder pain at the time of the injury. The report contained further comments about the reticence of the plaintiff to answer questions. No specific investigation of the right shoulder was recorded, consistent with the main focus being upon cervical and lumbar spine pain. The diagnosis was of lumbar and cervical degenerative spondylosis.
(k)The third report of Dr Stubbs (3 October 2013) specifically recorded the results of a clinical examination of the plaintiff’s shoulder which showed a reduced range of movement and “a mild wasting in the supraspinatus and infraspinatus”. The doctor then recorded:
However, at the end of the completion when I watched Mr Scuderi get dressed he pulled on his polo shirt quite easily by raising both hands well above his head.
Mr Scuderi’s clinical examination remains difficult, it is hard to get a full assessment of just what he can do though clearly he can do better than in the formal examination (witnessed by his ease of pulling on a polo shirt).
(l)He recorded that Dr McNicol’s examination conducted for the purposes of his March 2013 report agreed with his own in terms of wasting of the supraspinatus muscle although Dr McNicol recorded a reduced range of movement. Dr Stubbs diagnosis was:
He has pre-existing cervical lumbar spondylosis and probably some rotator cuff disease in the right shoulder, all of which are common conditions at age 63. His general health is also poor including the previous cerebral vascular accident.
(m)The third report of Dr McNicol (11 November 2013) identified his diagnosis as including “[p]robably rotator cuff pathology right shoulder.” In relation to prognosis he said: “Right shoulder. In my opinion the prognosis is guarded in the short-term but after further investigation and/or treatment the prognosis may be improved.” In dealing with the relationship between the plaintiff’s claimed disabilities and the subject accident specific reference was made to pre-existing cervical and lumbar spondylosis but no reference was made to right shoulder injury. Dr McNicol also specifically agreed with the summary from Dr Stubbs’ report (3 August) that any aggravation of the plaintiff’s pre-existing condition was “very modest”.
(n)The oral evidence of Dr McNicol included:
MR JENKINS:… You referred in your first report to sciatica and to a shoulder pathology as your diagnosis-the probable rotator cuff pathology in the right shoulder. That’s page 7 of your first report?---That’s correct.
That you had made a finding or an assessment that that was likely caused by the motor vehicle accident in 2010-those things?---Yes.
…
Dr McNicol, with the additional material that you have been provided for your third report, did it change the opinion that you expressed in your first report about the causes of Mr Scuderi sciatica or right shoulder pathology?---No.
(o)In cross examination he was asked whether a rotator cuff injury was a sort of injury one would expect from seatbelt trauma and he answered “yes”. He was asked how much force he thought would have to be involved to create an injury to the rotator cuff. His answer was that by the age of 60 years the degenerative changes in the rotator cuff tendons would mean that they were more likely to be injured by a lesser-force accident than somebody in their twenties, thirties, forties or fifties. As a consequence he said “I believe that this man could have sustained a rotator cuff injury from the sash of the seatbelt at the time of his accident”. The transcript then continues:
But at this stage we still don’t know whether he in fact has got any specific pathology there do we?---No, he needs to have investigations to confirm or deny that.
I think you raised that back in early 2013?---Yes. I mean one can make a pretty good clinical assessment and guess at it but it is always nice to have it corroborated by some form of investigation, particularly if there’s the prospect of some sort of intervention that might fix it.
(p)In re-examination he was asked whether the plaintiff’s physical conditions were due to the accident and he said:
My answer to that then, knowing what I know now about this man’s past history, that my answer would be that this man’s incapacity for work on the balance of probabilities was not due entirely to the accident of 18 May 2010.
Was it due in part?---It could have been due in part, yes, due to an exacerbation of his pre-existing problems, and I might add what appears to be at least a new problem with respect to his right shoulder.
It is apparent that the right shoulder complaint was not the significant area of dispute between the medical experts. The evidence of Dr McNicol from his first report and reaffirmed in his oral evidence was that the plaintiff suffered from probable rotator cuff pathology in the right shoulder “possibly associated with a seatbelt injury”. The report of Dr Stubbs was to the effect that the evidence of right shoulder pathology was not uncommon in a man of the plaintiff’s age. The contemporaneous documentation does not involve any complaint of contemporaneous onset of right shoulder pain or disability. Rather it is only by December 2010 that there is a complaint of right shoulder pain to Dr Dhaimat.
In my view the evidence established that the plaintiff did suffer from right-shoulder pathology at the time that he was examined by Dr McNicol and Dr Stubbs. It also demonstrated that it was possible that this right shoulder pathology was caused by or aggravated by the effect of the seatbelt during the accident. The nature of the shoulder pathology might have been further investigated as a result of the recommendations made by Dr McNicol in his report of 4 March 2013 but for reasons which were unexplained this was not done. It is not however possible to say that the plaintiff had proved that the shoulder pathology that he was suffering from at the time of his examination by Dr McNicol was, on the balance of probabilities, caused or aggravated by the motor vehicle accident. In my view, having regard to the fact that the plaintiff did not establish that the probable right shoulder pathology was caused in the accident his Honour did not err in finding that it pre-existed the subject accident. That conclusion was not inconsistent with the possibility suggested by the timing of the plaintiff’s complaints to Dr Dhaimat, that the pathology had existed prior to the accident but had only become symptomatic as a result of its natural progression at sometime following the accident.
The plaintiff next contended that his Honour erred in finding that the plaintiff’s injuries were for a closed period. He submitted that his Honour had:
(a)failed to properly give weight to medical records which corroborated the plaintiff’s evidence of pain, its severity and its impact on his enjoyment of life;
(b)drawn erroneous inferences from the expert medical evidence;
(c)made an erroneous finding about the speed of the defendant’s vehicle at the time of the accident;
(d)failed to give weight to the lay evidence of complaints of pain since the accident
In relation to medical records ((a) above), the attendance upon Dr Lee within 48 hours of the 2010 collision and the subsequent visits to Dr Lee are (as pointed out at [15](c) above) of limited utility as it appears that, apart from recording some contemporaneous complaints, the doctor provided no treatment because the plaintiff failed to undertake the radiological investigations for which he was given referrals.
A general submission was made that the plaintiff’s available medical history indicated that the plaintiff’s pre-existing back and neck conditions had reached a new baseline and that this should have been significant in not finding that the aggravation of his condition was for a closed period. No particular part of the substantial volume of medical records was identified as supporting this proposition. While the summary of aspects of the medical history provided in the judgment (at [134]) could, if taken at its most favourable to the plaintiff, be characterised as consistent with “a new baseline” the evidence did not compel the conclusion of stability of his conditions. I do not consider that, in the light of the expert evidence from Dr Stubbs and Dr McNicol that the plaintiff has demonstrated error in the approach taken by the magistrate.
In relation to erroneous inferences drawn from the medical evidence ((b) above) the magistrate is said to have erred in not having regard to “the new pathology of the right [shoulder] rotator cuff”. As pointed out above (at [28]) I do not accept that his Honour erred in failing to find new rotator cuff pathology.
The plaintiff submitted that the magistrate erred in relying upon the apparent agreement between Dr Stubbs and Dr McNicol that any aggravation of the pre-existing pathologies was “very modest” because, although Dr McNicol’s third report does contain words to that effect, they were subsequently qualified by his oral evidence and because his third report did not deal with the right shoulder or sciatica. This submission is based on the contention that the plaintiff’s right shoulder condition and sciatica were caused by the accident. Dr McNicol said in re-examination that on the balance of probabilities the sciatica was not caused by the accident. I have found above that his Honour did not err in failing to find that the right shoulder injury was caused or aggravated by the accident. Therefore I do not accept that his Honour erred in relying upon the agreement between the experts.
Ultimately his Honour found that because of the unreliability of the plaintiff’s evidence the plaintiff had not discharged the onus to prove that causally-related injuries continued for a period of more than 18 months. Having regard to the limited medical evidence available, the lack of imaging studies and the difficulties for the plaintiff in proving causation having regard to his underlying conditions, the conclusion was one that was reasonably open to his Honour and I do not consider that the matters referred to by the plaintiff warrant interfering with that conclusion.
The other evidence referred to by the plaintiff is the evidence as to the speed and severity of the collision (item (c) above). The plaintiff made various submissions about whether the defendant’s vehicle was travelling faster than the 10 km/h which his Honour found that it was and hence whether his Honour was correct in concluding that the collision was “no more severe than that described by [the defendant]”: Judgment [197]. The plaintiff pointed to:
(a)the speed limit on the road being 80 km/h;
(b)the defendant attempting to travel through the intersection where the collision occurred without stopping;
(c)the defendant looking away for at least a couple of seconds or up to four or five seconds
(d)the defendant’s evidence that the left turn he was approaching was not a sharp turn and that he was not able to say how fast he may have been able to travel through the intersection if the plaintiff’s vehicle had proceeded through the intersection before him.
The plaintiff submitted the more reasonable inference was that the defendant was travelling at a speed greater than 10 km an hour and that a more sound estimation would have been 25 km/h. The plaintiff says that there was no evidentiary basis for the finding that the Suzuki Vitara driven by the defendant was a “small four-wheel-drive”. Further the plaintiff points to the features of the damage to the vehicle suggesting an impact of considerable force consistent with a greater speed then found by his Honour.
The decision by his Honour at [197] was expressly based on his acceptance of the defendant’s evidence. He identified the defendant as a witness who he found to be “credible and reliable”. The magistrate assessed in some detail the significance of the extent of damage to the vehicle. His Honour concluded in the circumstances that it was not necessarily indicative of a higher speed collision. I see no reason to depart from his Honour’s approach or conclusion. That there was no evidence as to whether a Suzuki Vitara was a small four-wheel-drive as opposed to a four-wheel-drive of some different size does not affect this conclusion. His Honour may not have been entitled to take a judicial notice of the size of a Suzuki Vitara but that does not affect his entitlement to reach the conclusion that he did. If anything, assuming the four-wheel-drive to be a small one would be favourable to the plaintiff because it would tend to emphasise the significance of the extent of damage caused to the plaintiff’s vehicle and hence be more consistent with a higher speed collision.
Finally the plaintiff pointed to the evidence provided by Ms Schrader, Mr Al Hassan, Mr Kazanc Junior and Mr Kazanc Senior. The plaintiff submitted that his Honour was wrong in saying that the evidence did not support a finding that the aggravation continued beyond a closed period because it was “quite vague” and relied substantially on the plaintiff’s complaints of pain and the witnesses’ observations of the plaintiff.
The plaintiff referred in detail to the evidence of each of these witnesses. In particular he noted that the magistrate had accepted that Ms Schrader was a “truthful and reliable witness”: Judgment [216]. This evidence provided a basis for saying that the plaintiff’s condition had worsened subsequent to the date of the accident and that he remained almost up until the date of the trial in a condition that was worse than he had been prior to the accident. In the light of the expert medical evidence and the unreliability of the plaintiff’s evidence, this evidence, while consistent with the plaintiff suffering ongoing impediments, did not determine the question of causation, nor was it evidence inconsistent with a conclusion that any aggravation of the plaintiff’s condition caused by the accident would be resolved at the end of 18 months.
Taking all these factors together I do not consider that they demonstrate that his Honour erred in his characterisation of the severity of the plaintiff's injuries or his conclusion as to the aggravation of the plaintiff’s condition being only within a closed period. For similar reasons I am not satisfied that the evidence of Ms Schrader that she was, shortly prior to the trial, attempting to wean the plaintiff off her assistance demonstrates an error on the magistrate’s part in finding the closed period was limited to no more than 18 months. In the context of the other evidence in the case, while the evidence was consistent with the plaintiff needing or desiring ongoing assistance, the evidence did not demonstrated that his Honour was wrong in relation to the period during which the causal effect of the accident continued.
Inadequate general damages
The plaintiff submitted that even if there was no error in relation to his Honour’s finding that the plaintiff suffered consequences of the accident during a closed period of no more than 18 months the award of general damages was inadequate. Counsel for the plaintiff pointed to s 99 (1) of the Civil Law (Wrongs) Act 2002 (ACT) which permits the court to take into account earlier decisions of courts in deciding damages for non-economic loss. His Honour did not expressly refer to any earlier cases when deciding the question of general damages.
The plaintiff referred to the awards of general damages in four cases: Eames v Shane [2012] ACTSC 116, De Marco v Italo-Australian Club (ACT) Ltd [2010) ACTSC 28, Davies v Grgic [2006] ACTSC 14; Dennis v Australian Capital Territory [2005] ACTSC 118.
As I pointed out in Baxter v Insurance Australia Ltd [2015] ACTSC 273 at [26], s 99 is a facultative provision designed to overcome the decision in Planet Fisheries v La Rosa (1968) 119 CLR 118. It does not compel a trial judge to set out a comparative analysis of comparable cases. The plaintiff’s submissions accept this proposition but contend that by reference to the cases referred to, his Honour’s award was inadequate.
An appellate court should not interfere with an assessment of general damages for personal injury simply because it would have awarded a different figure if it had tried the case of first instance. Where an assessment is made and it has not been shown that the trial judge acted on any error of principal or misapprehension of the facts the appellate court will only interfere if it is satisfied that the charge made a “wholly erroneous estimate” of the damages suffered: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 369; Sutherland Shire Council v Major [2015] NSWCA 243 at [40]. The assessment of general damages is neither scientific nor normative: Franklins Ltd v Burns; Burns v Franklins Ltd [2005] NSWCA 54 at [52]. It relies very heavily on the impression made by the plaintiff on the finder of fact: Tsueneaki v Stewart [2013] ACTCA 34 at [30]; Baxter v Insurance Australia Ltd [2015] ACTSC 273 at [32].
Conscious of the constraints dictated by the authorities I consider that in this case the award of damages should be interfered with. The reason for that is that the award appears to me to be inconsistent with other aspects of the decision, in particular, the award of damages for past economic loss and for Griffiths v Kerkemeyer damages. The award of those two categories of damages (which I address in more detail at [54]–[60] and [64]–[70] ] below) could only be justified if there was in fact an impairment of the plaintiff’s working capacity as a consequence of the aggravation of his underlying back and neck condition and the generation of a need for domestic care as a consequence of the aggravation of his condition. In my view the award of general damages of $15,000 is inconsistent with such findings. Whilst, clearly, his Honour’s assessment of general damages was significantly influenced by his view of the unreliability of the plaintiff’s evidence, having regard to the other findings that he made, an award of $15,000 was too low to be consistent with his findings in relation to the other components of damages to which I have referred. In my view that award should be set aside and substituted with an award of $25,000 which is sufficient to recognise an interference with domestic and work life over a closed period but also the inability of the plaintiff to establish facts warranting a greater award.
Past economic loss — challenge to finding as to employment at the time of accident
The plaintiff submitted that the Magistrate erred in finding that the plaintiff was not employed at the time of the 2010 motor vehicle accident and that it was never in prospect that he would earn $1250 per week. The plaintiff submitted that this finding was largely based on the Magistrate’s erroneous conclusion that the evidence of Mr Kazanc Senior and Mr Kazanc Junior was contradictory and that Mr Kazanc Senior’s evidence was to be preferred to Mr Kazanc Junior’s.
The plaintiff’s written submissions contained an analysis of various aspects of the evidence of Mr Kazanc Senior and Mr Kazanc Junior demonstrating that on a number of matters related to the plaintiff’s employment at the time of the accident the evidence of the two men was consistent.
The plaintiff identified the difference between the evidence of Mr Kazanc Senior that, although future employment had been discussed, it had not been finalised at the date of the accident and that of Mr Kazanc Junior who said that the plaintiff had been employed at the time of the accident having commenced employment on 17 May 2010. The plaintiff identified a number of matters which counsel submitted should lead to a finding, consistent with Mr Kazanc Junior’s evidence, that the plaintiff had been employed at the time of the accident. They were:
(e)that the failure of the plaintiff to request payment for the one-and-a-half days which he had worked, and neither Mr Kazanc Junior nor Mr Kazanc Senior volunteering payment, did not necessarily give rise to an inference that there was no employment but was explicable for other reasons;
(f)that the apparent inconsistency highlighted in his Honour’s reasons (at [115]) between the evidence of Mr Kazanc Junior and Mr Kazanc Senior as to whether the purpose of the plaintiff’s expedition to Erindale was the collection of “salami or pastrami” on the one hand or some other form of stock on the other was not a significant one;
(g)that the magistrate should not have rejected Mr Kazanc Junior’s evidence on that basis that Mr Kazanc Junior was only asked for the first time about the events in question on the day before giving evidence, some four years after those events occurred, since matters may remain fresh in the memory of people for years and in this case the matter was significant because a well-known employee had been unable to return to work because of a car accident.
The plaintiff therefore submitted that a finding of employment on the day of the accident should be made because:
(h)the plaintiff had been previously employed;
(i)he had been undertaking trial work in the lead up to the 2010 accident;
(j)he had at least discussed the terms of his employment broadly with Mr Kazanc Junior and Mr Kazanc Senior;
(k)he was running an errand to collect stock for the store at the time of the accident;
(l)a finding of employment would be consistent with his physical capacity as identified in the expert evidence.
As a consequence the plaintiff submitted that damages should have been calculated to take into account the loss of wages from the job that he had at the time of the accident in the amount of $979 net per week.
The plaintiff is correctly identifying that the evidence of Mr Kazanc Junior was largely consistent with that of Mr Kazanc Senior except on the important point as to whether there had merely been discussions of future employment or whether the plaintiff had actually commenced on the Monday before the Tuesday when the accident occurred.
His Honour had to resolve a conflict between the evidence principally of Mr Kazanc Senior and Mr Kazanc Junior. He did so in favour of the oral evidence of Mr Kazanc Senior for reasons which he fully exposed and which are summarised at [18] above. Those reasons involved a rational assessment of the evidence. While it might have been open to his Honour, as the trial judge, to have reached a different result, I am not satisfied that there is any error in having reached the conclusion that he did for the reasons that he did.
Past economic loss — appropriateness of closed period
The plaintiff submitted that past economic loss should be extended to the date of the hearing and further calculated beyond that or if a closed period is appropriate it should be for the period of 47 months. This period was a period up until April 2014 when Ms Schrader gave evidence that she had begun to wean the plaintiff of domestic assistance. For the reasons given above (at [29]-[40]) I do not consider that his Honour erred in failing to find past economic loss over a 47-month period.
Past economic loss — capacity for full-time work
The plaintiff submitted that if his Honour relied upon the Centrelink Job Assessment Report in order to reach the conclusion that it was never in prospect that the plaintiff would earn $1250 as manager of the Turkish Pide House restaurant then his Honour was in error. The plaintiff submitted that the Centrelink Job Assessment Report needed to be considered in the context of a number of matters:
(a)The fact of the plaintiff’s good recovery from a stroke;
(b)The fact that the work capacity assessment was based upon “significantly reduced mobility and physical abilities” whereas Dr Stubbs had agreed with the proposition that the plaintiff could have returned to managerial style work which was not physically taxing.
(c)The fact that the magistrate had found that the plaintiff had been working in the weeks and months prior to the accident on a voluntary basis: Judgment [120]. Counsel for the plaintiff pointed to the apparently inconsistent finding made in the course of assessing Mr Al Hassan’s evidence that “… the plaintiff was unable to work from the time he had his stroke in 2008 until at the earliest the day before [the] subject accident”.
There was clearly a stark contrast between the assessment made for the purposes of Centrelink three months prior to the accident and the case propounded by the plaintiff. Having accepted the evidence of Mr Kazanc Senior over Mr Kazanc Junior, and then having assessed the plaintiff’s evidence to be unreliable except where appropriately corroborated, his Honour was left with the job-capacity assessment and the evidence provided by the plaintiff’s long-term friend, Mr Kazanc Senior, that Mr Kazanc Senior had discussed with the plaintiff the prospect of the plaintiff returning to work at some stage in the future. I do not consider that the general answer given by Dr Stubbs to the proposition that the plaintiff may be able to work in a managerial capacity was sufficient, in the light of the evidence of Mr Kazanc Senior, to compel a conclusion that he had a residual capacity greater than seven hours per week. Further his Honour’s approach is consistent with his finding that only a small component of the difficulties which the plaintiff faced were the result of an aggravation of his condition as a consequence of the accident.
His Honour’s award was based on a loss of chance of obtaining some work. His Honours assessment also took into account the evidence of Dr Stubbs from his August 2011 report that the plaintiff’s incapacity for work was largely attributable to his pre-existing conditions but that one fifth could be attributable to the aggravation by the subject accident. The 2011 report of Dr Stubbs was for the purposes of a whole person impairment assessment, an exercise which is not essential for a claim in the ACT. He suggested that “if he is in DRE Category II than a deduction in the region of 80% should be made and the actual neck impairment for the motor vehicle accident is 1 or, at worst, 2% Whole Person Impairment”.
The reference to the Centrelink assessment as well as the evidence of Dr Stubbs indicates that the amount for past economic loss was assessed by reference to some combination of:
(a)a minimal work capacity which existed prior to the accident (the Centrelink assessment);
(b)by reference to a modest change in a limited work capacity that existed prior to the accident (the Stubbs evidence).
Had the plaintiff then been able to obtain employment for seven hours a week at $25 an hour then his earnings over the period of 18 months would have been a gross amount of $13,650. Thus, if considering only element an award based on the Centrelink assessment the award reflects a 25% chance of obtaining such employment. Consideration of the evidence of Dr Stubbs would suggest that only a small reduction in impairment and hence of work capacity was caused by the accident as opposed to the underlying conditions. It might be used to quantify an award of damages if a work capacity greater than the Centrelink assessment of 0 to 7 hours was adopted.
In reaching his assessment his Honour said that there was “no evidence as to what employment might have been available to him for such a limited period each week”. Because of the manner in which the plaintiff ran his case, targeting full-time employment from the day prior to the accident, the issue was not explored in any detail in the evidence. In my view, for the purposes of assessing the value of a loss-of-chance, regard should have been had to the chance that if not employed on a full-time basis, having regard to the friendship with Mr Kazanc Senior, his discussions with Mr Kazanc Senior, his past employment at the Turkish Pide House and the fact that he had been undertaking work on a trial basis, there would have been at least a chance of him obtaining employment at that business in the period during which he was affected by the aggravation of his condition. In my view in those circumstances the award of $3500 failed to properly assess the loss of the plaintiff’s chance. Recognising the uncertainties surrounding the quantification of damages for future economic loss, that loss is appropriately assessed by way of a buffer. That buffer should be calculated as being the equivalent to a 50% chance that he would have obtained seven hours per week working at the restaurant in the period of 18 months after the accident. Such work was likely to have been paid in the range of $20–$25 per hour giving a range of $10,920–$13,650. 50% of that figure is $5,460–$6,825. No tax would be payable on this amount. Adopting the figure of $6,000 the relevant superannuation guarantee rate was during the relevant period 9%. This gives a total amount of $6,540. The exposure of the method by which the quantum of a buffer is arrived at should not obscure the fact that it is a buffer representing a loss of chance.
Interest on that amount at the rates provided in the Court Procedures Rules 2006 (ACT) from the middle of the closed period, that is from February 2011, gives a figure of $2,230.
Future economic loss
The plaintiff submitted that an award for future economic loss should be made to accommodate the period up until the latest anticipated age of retirement of 65. In the light of my conclusions above this aspect of the appeal must fail.
Out-of-pocket expenses
The plaintiff claimed that the magistrate erred in failing to include in his award of out-of-pocket expenses the amount of $4,663 paid by the NRMA on behalf the plaintiff in addition to the component of the agreed figure of $5,903.30 which he did in fact award. The defendants conceded that this was an amount which should have been included but which the second defendant had a statutory entitlement to be reimbursed. There was evidence of those payments before his Honour. In my view it is appropriate to add $4,663 to the judgment amount.
The plaintiff also submitted that the full amount of $5,903.30 should have been awarded because it was not appropriate to confine the period of damages to the closed period of 18 months. In the light of my conclusions above that submission must be rejected.
Griffiths v Kerkemeyer damages
His Honour accepted the evidence of Vivian Schrader, a friend of the plaintiff’s, who his Honour considered to be a truthful and reliable witness. His Honour’s reasons provided:
215. The plaintiff claimed, in his evidence, that between two weeks and four months (he was vague as to the exact period) after the accident he had received the assistance of Ms Schrader with dressing, showering, shaving, cooking, washing his clothes and ensuring that he took his medication. However, he was vague as to how much time Ms Schrader spent each day providing these services. The impression created by his evidence was that Ms Schrader provided the services in his home.
216. When Ms Schrader, whom I considered to be a truthful and reliable witness, gave evidence, it became clear that any assistance she gave the plaintiff was given in her own home during one of the plaintiff’s frequent, almost daily, visits. Rather than assisting in showering, she simply insisted that he shower himself and sometimes, after he had showered, she would shave his head and help him put on his shirt. She would make provision for him in the meals she was cooking for the family. Occasionally, she would massage the right side of his body to help relieve pain. Occasionally, she washed his clothes. She had to remind him frequently to take his medication because he was forgetful. She estimated that she would spend about 40 minutes helping the plaintiff in these ways when he came to her home. On occasions, she would accompany him, at his request, when he went to the chemist or consulted a doctor. However, she clearly did not accompany him on these occasions as a result of any incapacity on his part to attend on his own.
217. Bearing in mind my finding of a closed period of aggravation and my inability to determine the end of that period or when Ms Schrader commenced to provide assistance to the plaintiff, I consider a reasonable amount to allow for past loss of capacity to perform domestic activities is $3500.00 I allow interest on that sum of $1,885.00. I make no allowance for the future.
The significant aspects of his Honour’s reasoning are:
(a)his finding of a closed period of aggravation;
(b)his inability to determine the end of that period;
(c)his inability to determine when Ms Schrader commenced to provide assistance to the plaintiff.
The reference to his findings in relation to a closed period are those at [204] in which he found it impossible to determine the end of the closed period but then found on the balance of probabilities that it was no more than 18 months.
The reference to his inability to determine when the assistance commenced was a reference to what he said at [215] of his judgment that the plaintiff had claimed that Ms Schrader commenced providing assistance “between two weeks and four months (he was vague as to the exact period)”. His Honour made no reference to the evidence of Ms Schrader that she first saw the plaintiff “[a]bout a month or two after” the accident. Her subsequent evidence was that when she first saw him she made observations that his personal hygiene was shocking and the inference should be drawn that it was from that time that her assistance commenced.
The damages award is the equivalent of 152 hours of care that is about 1.94 hours per week over 18 months. Had an award been based upon 40 minutes of care per day (consistent with Ms Schrader’s evidence) five days per week (based upon the finding that the Schrader provided care “almost daily”) then the award would be for 260 hours of care at $23 per hour which would give a figure of $5,980. At a rate of 40 minutes per day five days per week the award was the equivalent of care for 45 weeks.
Therefore his Honour’s finding is really a conclusion that is significantly influenced by his Honour’s earlier conclusion in relation to the closed period. That is, the conclusion which flowed from the unreliability of the plaintiff’s evidence.
In the light of the evidence his Honour might have made a larger award of damages under this head. However, in the light of the unsatisfactory evidence of the plaintiff and the limitations upon the medical evidence, I am not satisfied that the plaintiff has demonstrated that there was an error in the approach adopted by his Honour.
Conclusion
Following from my conclusions set out above the judgment will be set aside and substituted with a judgment containing the following elements of damages.
General damages
$25,000
Interest on general damages
$4,750
Past economic loss
$6,540
Interest on past economic loss
$2,230
Past out-of-pocket expenses
$6,663
Past Griffiths v Kerkemeyer
$3,500
Interest on past Griffiths v Kerkemeyer
$1,885
Total
$50,568.00
Orders
The orders of the Court are:
1. The appeal is allowed and the judgment below set aside and substituted with the following: “Judgment be entered in favour of the plaintiff against the second defendant in the sum of $50,568.”
2. The respondents are to pay the costs of the appeal.
3. Order 2 does not take effect for a period of 14 days and if, within that period, any party notifies my associate that it wishes to be further heard in relation to costs, does not take effect until further order of the court.
| I certify that the preceding [72] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 24 February 2017 |
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