Sebastian Waugh v Thomas Kelleher
[2011] ACTSC 37
•11 March 2011
SEBASTIAN WAUGH V THOMAS KELLEHER
[2011] ACTSC 37 (11 March 2011)
DAMAGES – personal injury – motor vehicle collision – fracture of L1 vertebra – 20% to 30% loss of anterior height of L1 vertebra – no issue of principle
No. SC 606 of 2007
Judge: Master Harper
Supreme Court of the ACT
Date: 11 March 2011
IN THE SUPREME COURT OF THE )
) No. SC 606 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:SEBASTIAN WAUGH
Plaintiff
AND:THOMAS KELLEHER
Defendant
ORDER
Judge: Master Harper
Date: 11 March 2011
Place: Canberra
THE COURT ORDERS THAT:
the plaintiff’s damages be assessed at $566,300.00.
This is an action for damages for personal injury arising out of a motor vehicle collision. The collision occurred at Chisholm on 11 December 2004. The plaintiff was in the front passenger seat of a car driven by the defendant which was involved in a head-on collision. The parties are agreed that the defendant was negligent and that the plaintiff was contributorily negligent. The plaintiff’s negligence arose from his knowledge of the defendant’s level of intoxication. The parties have agreed on a percentage reduction for contributory negligence, but it is a term of that agreement that the court is not to be told of the percentage until after I have arrived at my decision on the assessment of damages.
The plaintiff’s case
The plaintiff was born in January 1985. He was nineteen when the accident happened and is now twenty-six. He lives in a rented townhouse in a suburb of Newcastle, NSW, with his de facto wife and two sons aged eight and five.
The plaintiff has three sisters who live in the Canberra area. He has never known his father, who left his mother when the plaintiff was very young. The plaintiff’s mother brought him up until he was fourteen, when she died in a scuba-diving accident. By that time the plaintiff was living with his mother and one of his sisters on a five-acre block of land south of Queanbeyan. He had been at school in Canberra until then. He was in Year 9 at Calwell High School. After his mother’s death he had no way of getting to school and stopped going. He helped his sister looking after the horses on their block of land, and did some work for neighbours on their properties.
He met his present partner when he was fifteen, and the following year she moved in with him. They lived on the block until early 2002, when they moved to live with another of his sisters in a house at Richardson. His partner’s father moved into the house at the same time. His elder son was born in the following month. His mother left some money which formed the basis of a trust fund administered by his sister, who provided him with money from time to time.
Soon after his elder son’s birth he obtained work as a labourer with a roofing contractor at Mitchell. He worked there for about six months but was put off because the employer had no further work for him.
He was then out of work for about eight months, when he got a job with a car dealer at Fyshwick as a detailer. When he had been working there about five months, he suffered a fracture to the right wrist in a motorcycle accident. His dirt bike collided with a kangaroo and he fell off. He was unable to work for about two months. He attended the fracture clinic at Canberra Hospital during this period. When he was able to go back to work, he attended the car yard but found that his job had been filled.
During this period he and his partner and son moved for a time to a government flat at Oaks Estate and subsequently to a house at Oxley. He did not work during the next ten months or so leading up to his car accident although he said he applied unsuccessfully for employment.
In the collision, the plaintiff suffered a crush fracture of the first lumbar vertebra. He recalled in his evidence severe pain in the low back. He could not feel his legs and feared that he might never walk again. He was taken to Canberra Hospital where he spent three days. He was discharged with a back brace, which he described as an aluminium frame with a neck piece, foam and straps. The brace was very restrictive and the plaintiff was unable to do anything for himself in the early stages. He wore the brace for about three months, and was house-bound during that period, unable to do anything for himself. He needed assistance from his partner in the bathroom and with dressing. For the first two or three months after he came home he wore only bed clothes. After that, he needed help getting dressed and was unable to do his usual share of the housework.
The plaintiff’s partner was pregnant at the time of the car accident, and the second son was born in July 2005. By the end of the year the relationship was becoming increasingly difficult. The plaintiff was not working and there was not enough money to pay the household bills. In January 2006 the plaintiff’s partner moved to Newcastle to stay with her mother. The plaintiff conceded that he had become very moody and that there had been a number of fights between the couple.
In the following month, the plaintiff found a job with a wholesale butcher at Fyshwick. The work involved heavy lifting and caused him back pain. At about this time the plaintiff moved to live with another sister at Narrabundah. After work he would come home and lie down for two or three hours, flat on his back, for pain relief. He slept poorly.
After about four weeks he left that job and found employment as a cook at a McDonald’s outlet, also at Fyshwick. He left that job after about a month. He was out of work for about three weeks after that, until he found another job with a furniture removalist. This was a short-term job and came to an end after three weeks. The plaintiff was then out of work for a few weeks. A friend introduced him to subcontract home and office cleaning work, which he engaged in for about five months until December 2006.
The plaintiff made occasional trips to Newcastle to see his partner and the children. He said that they were trying to work on their relationship, while the plaintiff earned money and saved up for a bond so that they could rent a house. For much of the period the plaintiff shared accommodation with the friend he worked with as a cleaner.
The plaintiff’s partner’s father is a painter by trade. He was working at the time for a painting firm in Newcastle. He spoke to the principal of the firm and arranged for the plaintiff to take up an apprenticeship as a painter. The plaintiff moved to Newcastle in December 2006. He started work. His partner’s father was a leading hand and was able to supervise the plaintiff. The plaintiff enrolled in a painting course with a technical college. In January 2007, he and his partner and the children moved into a rented unit or townhouse.
The plaintiff was able to cope with the work, which involved some lifting and carrying, as well as painting, using brushes and ladders. He was mostly involved in painting houses internally and externally, as part of a crew of three. His partner’s father accommodated him so that he was able to avoid heavy lifting and could take rest breaks from time to time.
He passed his first year at college, and moved into his second year as an apprentice at the beginning of 2008. His evidence was that he was unable to make much contribution to the housework because of back pain at the end of the working day. He was, however, able to engage in fishing from time to time, and in riding his off-road motorbike. This was something he had always enjoyed. He said that riding his bike caused a lot of back pain and he would pay for it for a couple of days afterwards. He would ride for thirty to forty minutes at a time, at a track at an old rifle range some distance west of Newcastle. The track offered the opportunity for jumps over bumps.
In March 2008 the plaintiff’s partner’s parents separated. Her father returned to Canberra, leaving both the family home and his employment. The new leading hand was not prepared to allow the plaintiff any special treatment. He was required to carry heavy paint drums, ladders and other equipment, and was not given breaks between tasks. He found the work caused his back to be much more painful. When he got home he would have to lie down for a couple of hours. He took non-prescription anti-inflammatory and analgesic medication.
In mid-June 2008 the plaintiff successfully applied for a loan from a moneylending company secured against his expected damages in the present action. By the time of the hearing he had borrowed a substantial amount for the family to live on. As one would expect, the interest rate is a great deal higher than, for example, home mortgage interest rates.
On 30 June 2008 the plaintiff fell from the third step of a stepladder during the course of his work, in wet conditions. He hurt his knee. He was off work for three days. He denied any injury of any significance to his back in that incident. At the end of September 2008 the plaintiff resigned. The reason he gave in his evidence was that his new supervisor was not as lenient as his partner’s father had been. The work was causing him increased back pain and he “just couldn’t keep on top of it”. This caused him frustration and he became short-tempered. He withdrew from engagement with his partner and children. This led to a brief separation in early 2009 when his partner again moved in with her mother for a time.
The plaintiff’s evidence was that he thereafter continued to look for lighter work, for example at a supermarket or service station on a part-time basis, but without any success. He was informed by Centrelink that he was not eligible for unemployment benefits because of his claim in the present action. His partner received Centrelink benefits. The plaintiff said that he stayed at home and looked for jobs but did nothing much else. He occasionally rode his dirt bike or went fishing.
He conceded that he had not seen a doctor for treatment for his back injuries since his discharge from hospital a few days after his car accident.
During the period when the plaintiff was working as a cleaning contractor he obtained an Australian Business Number. I infer that he lodged Business Activity Statements and paid Goods and Services Tax as assessed. He conceded that he had never lodged a personal income tax return until 2008 when he presumably lodged one for the 2006-2007 financial year. His employment before that had been sporadic. Often he had been paid in cash. He had probably rarely if ever earned enough income to require the payment of income tax at the end of any financial year. He was served by the defendant’s solicitors with a subpoena to produce all of his financial records, but responded that he had no relevant documents.
The plaintiff conceded in cross-examination that, in the course of his motorbike riding, he had ridden over jumps where the front wheel had come off the ground, and had probably ridden over jumps where both wheels had come off the ground, landing back on the ground. By the time of the hearing he was still occasionally engaging in motorbike riding and had been riding his motorbike the weekend before he gave his evidence, when he had jumped the bike about a foot off the ground a couple of times.
The plaintiff has never held a driver’s licence for a motor vehicle. He failed the driving test a couple of times. He frankly admitted that he regularly drove the family car, which is registered in his partner’s name. He had in fact driven from Newcastle to Canberra for the hearing. He was accompanied by his wife, who has a licence, but he said that she did not like driving in wet weather. It bothered him to drive without a licence but it had to be done.
The plaintiff’s intention, he said, was ultimately to complete his apprenticeship and technical college course, and to become qualified as a tradesman painter.
The plaintiff agreed that by the time of the hearing he was cooking a lot more than he had during 2007. He found it easier to do, and he had more time available because he was not working. By the time of the hearing he prepared lunch and dinner on occasion and helped around the house, for example with vacuum cleaning of the carpets.
The plaintiff’s partner and her father gave evidence generally consistent with and supportive of the plaintiff’s case, notwithstanding vigorous cross-examination.
Counsel for the defendant called an investigator who had been to the area where the plaintiff had engaged in off-road motorcycle riding. The investigator had ridden a motorcycle around the area, taking video film with a camera as he did so. There had been very heavy rain in the days leading up to his visit and the ground was very wet, with pools of water. Taking this into account, the area shown was generally consistent with the evidence given by the plaintiff and his partner about this activity.
The Medical Evidence
Although the plaintiff has had no medical treatment since a few days after the car accident, he has been seen by a number of specialists for the purpose of giving opinion evidence. Reports were tendered in the plaintiff’s case of Dr Paul Darveniza, a Sydney neurologist; Dr Ron Brooder, an Albury neurologist; Dr Alan Searle, a Sydney orthopaedic surgeon; Dr Peter Conrad, a Sydney general surgeon with considerable experience in orthopaedics; and Dr Wayne Reid, a neuropsychologist. All but Dr Reid gave oral evidence by telephone.
Counsel for the defendant tendered reports by Dr Virginia Pascall, a Sydney occupational physician, and Dr David Bornstein, a Sydney orthopaedic surgeon. Dr Pascall attended court and gave oral evidence.
Dr Darveniza saw the plaintiff twice, in August 2007 and October 2008. On each occasion he obtained a history and conducted a physical examination. His opinion in 2007 was that the plaintiff had sustained a crush fracture of the first lumbar vertebra in a serious motor vehicle accident, leaving him with chronic back pain which limited him physically. The accident had happened more than two years earlier and the condition should be considered permanent. Dr Darveniza did not think that any treatment would be helpful apart from a home-based physical program and analgesics as required. Over the long term, the fracture would put abnormal stresses on the plaintiff’s spine causing an increased risk of degenerative change, especially at the levels immediately above and below the fracture. However, the injury was unlikely to shorten the plaintiff’s expected working life provided that he avoided heavy lifting, bending and stooping.
When Dr Darveniza saw the plaintiff on the second occasion he noted little change in his condition. He said that the injury would have been acutely painful for about eight weeks or more until the fracture healed, and that continuing back stiffness following such a fracture was not uncommon, perhaps due to injury to various ligaments around the fracture site.
In his oral evidence he added that the facet joints behind the vertebrae would have been put out of alignment by the abnormality of the anatomy. On examination of the plaintiff he had found muscle spasm consistent with his diagnosis. He explained that the paraspinal muscles run the full length of the spine in an interlocking fashion, keeping the spine erect. Spasm of these muscles occurs involuntarily to prevent pain and discomfort. Painting would be an unsuitable career for someone with such an injury, considering the need to lift and carry heavy paint tins, and to adopt awkward positions to paint eaves and corners. He described painting as “a pretty heavy job” and thought that the plaintiff would be well advised to seek more sedentary employment. He was likely to deteriorate as he got older. He would not get any better and might develop secondary degeneration of the facet joints and costo-vertebral joints at T12 leading to chronic pain.
In cross-examination Dr Darveniza was told about the plaintiff’s motorcycle riding, including jumping over bumps. He thought this ill-advised, though not likely to put as much stress on the back as a day’s painting. He thought that the plaintiff was, by the time of the trial, capable of full-time work provided that it did not include the physical activities he had mentioned.
Dr Brooder saw the plaintiff in October 2007. It is unclear to me why the plaintiff’s solicitors thought it necessary to qualify two neurologists. Dr Brooder came to generally the same conclusions as Dr Darveniza.
It was at Dr Brooder’s suggestion that the plaintiff was referred for a neuropsychological assessment. Dr Brooder was concerned, given a history of retrograde and anterograde amnesia, that the plaintiff might have suffered a closed head injury. The psychologist, Dr Reid, conducted appropriate testing and concluded that it was difficult to attribute the plaintiff’s subtle cognitive deficits to any brain injury at the time of the car accident. He found that the plaintiff was of low average intellectual ability. He had suffered a mild to moderate head injury from which he seemed to have generally recovered. He had poor literacy skills and a low level of intellectual functioning. Dr Reid thought that if he could not continue with manual or labouring work because of his back injury, his future employment options would be extremely limited.
Dr Searle saw the plaintiff in August 2008. He described the plaintiff’s fracture as a seatbelt fracture. The fracture had united but with significant compression of the anterior cortex. The continuing symptoms were persistent and permanent, causing a moderately severe degree of disability. The plaintiff was in Dr Searle’s view permanently unfit for work which required prolonged sitting or standing, lifting or repeated bending, twisting movements of the trunk, or regular travel for moderate to long distances. There would probably be no change in his condition for some time, but his symptoms and disability would gradually increase later in life as degenerative changes supervened at the injured level, which would progress steadily. He thought that the plaintiff had probably also suffered a ligament strain at the lumbo-sacral junction, saying that this commonly happened with fractures at a higher level. This would add only a minor contribution to the plaintiff’s symptoms and disability and probably would not change. A short course of physiotherapy might help the plaintiff to learn a set of back exercises which he could manage himself.
In cross-examination, Dr Searle agreed that he had not been informed by the plaintiff of his off-road motorcycling. He thought that it would be foolish of the plaintiff to engage in jumping over bumps on a motorbike. He would expect that to cause him pain. He described the injury at the lumbo-sacral junction, in conjunction with a fracture at L1, as a very common double injury. He said that it was difficult for patients to pinpoint the precise location of backache or back pain. It was difficult to differentiate and such assessments were generally unreliable. The double injury occurred because the lumbar spine moves more or less as a unit. When a fracture occurs at the upper end, the lower end commonly also suffers an injury at the lumbo-sacral junction.
Dr Conrad examined the plaintiff three times: in November 2006, June 2007 and October 2008. He thought that the injury would probably shorten the plaintiff’s working life by about five years. However, the history he was given was not completely accurate. The plaintiff told him on the first occasion that he was very severely limited in his ability to ride a motorcycle, and on the second occasion that he no longer did so. This is inconsistent with the plaintiff’s oral evidence.
By the time of the third consultation, the plaintiff had just given up his employment as a painter. Dr Conrad thought that he might be fit for part-time cleaning work or even for work as an apprentice painter with some restrictions as to prolonged sitting or standing, heavy lifting and bending. He thought that the plaintiff might benefit from a structured rehabilitation program.
In his oral evidence, Dr Conrad explained that the moderate paravertebral spasms he had found on physical examination of the plaintiff were due to an involuntary reaction to back pain and were not able to be feigned. He also explained that the reduced anterior height of the L1 vertebra caused more pressure to be imposed on the vertebrae immediately above and below it, and the surrounding ligaments, causing pain which would increase over time. The condition tended to be progressive, getting worse as the spine was put out of alignment. The plaintiff’s complaint that his pain was worse in cold weather was consistent with common observation although the link had not been scientifically established. Dr Conrad used a ruler on an x-ray of the plaintiff’s lumbar spine to measure the degree of the fracture at 30%.
Dr Bornstein saw the plaintiff in January 2008. He said that the fracture would have caused the plaintiff pain and would have taken at least six to eight weeks to heal. It was possible that continuing complaints of discomfort arose from the facet joints. Dr Bornstein did not have the benefit of any x-rays or CT scans. He thought that the plaintiff had reached a static position in relation to his continuing symptoms of discomfort, which appeared to be related to the car accident. When Dr Bornstein saw him he was working as an apprentice painter and was in the doctor’s view fit to do so. The continuing symptoms were apparently affecting his life away from the workplace, for example around the house with his children. There was no active treatment for rehabilitation likely to improve his condition and he was likely to be left with his then residual symptoms.
All of the medical opinion I have summarised thus far is generally consistent. There is some inconsistency as to percentage loss of anterior height of the L1 vertebra but the disagreement is within a fairly narrow range. There is general agreement as to the severity of the fracture, and the symptoms and disabilities such a fracture would be expected to produce.
Dr Pascall came to some different conclusions. She saw the plaintiff twice, in June 2007 and February 2009. She reported at great length (17 pages and 12 pages) to the defendant’s solicitors. She expressed the opinion in her first report that the plaintiff “was already, at the time of the accident, quite dysfunctional and most probably depressed because of the uselessness of his life.” No other doctor arrived at this diagnosis. I am not sure that Dr Pascall as an occupational physician has the requisite training or experience to support the opinion, which one would expect to hear from a psychiatrist or psychologist. There appears to me but flimsy evidence to support it.
Dr Pascall said that the plaintiff’s pain and disability in mid-2007 was not because of the fractured vertebra, which would have been well healed by then, but because of lack of muscular strength caused by a long period of comparative inactivity while his back was in a brace. This would have caused his muscles to deteriorate significantly in their capacity to undertake normal tasks. She accepted that the plaintiff suffered from significant depression for twelve to eighteen months after the accident, which had resolved by the time she saw him. She noted that by the time of the car accident in December 2004, the plaintiff was still unable to work because of the fractured wrist a year earlier. She seems to have based this on a statement by the plaintiff when she took his history that he could not hold anything with his right hand. It seems to me likely that there was some misunderstanding between the plaintiff and Dr Pascall about this. I suspect that the plaintiff, when he gave this history, was talking about an earlier time soon after the fracture, rather than the entire period until December 2004.
Dr Pascall thought that the plaintiff in mid-2007 was capable of full-time work as an apprentice painter, subject to restrictions as to lifting, carrying and bending, which could be removed if he were to undergo an appropriate muscle strengthening program. There is no evidence that any arrangements were ever made for the plaintiff to undertake such a program. I accept that if he had done so, it would probably have helped with his recovery process, but it seems only to have been discussed by doctors providing expert opinion reports to solicitors for the purpose of the case. It was never put to him, through his general practitioner or in any other way, as a recommendation for a program which he might undertake in practical terms.
Dr Pascall also thought that the plaintiff should be given some psychological counselling to help with his anxiety levels. He was fearful of further injury.
Dr Pascall said that in the long term, degenerative changes in the area of the L1 vertebra were likely to develop, because of the deformity of the vertebra and the change in direction of forces. The plaintiff was likely to be in his forties before he started to feel such effects, in the form of backache and stiffness. This might be postponed until his fifties if he maintained good strength of his back and core muscles.
Dr Pascall accepted that the plaintiff was honest in his description of symptoms and disabilities, and that he did not attempt to exaggerate or magnify the symptoms or the incapacity.
When Dr Pascall next saw the plaintiff, in February 2009, she found on physical examination tenderness at the L5-S1 level. She had found no muscle guarding during her first consultation, but found a degree of muscle guarding on the second occasion, suggestive of new injury or new pathology, still at the inflammatory stage. Any tenderness at the original fracture site had disappeared. She thought that he might have suffered a fresh injury during 2008. She thought that he was magnifying his symptoms, either consciously or unconsciously.
Dr Pascall renewed her recommendation that the plaintiff be treated by a muscle strengthening program, possibly commencing with a hydrotherapy program. She accepted that he had sudden acute pain in the low back on turning, which she related to muscular irritation and possibly a facet joint dysfunction through tight and weak muscles. She described this as a mechanical problem and not a problem caused by the fractured vertebra. These symptoms could be resolved if the plaintiff had sufficient core muscle stability in the lumbar spine. She said that she had seen men undertake such a program, working intensively on their core muscles and achieving years without complaint and a physical capacity greater than prior to their injuries. She accepted that the plaintiff did not have the focus on achieving physical excellence she had seen in those men, and that it was unlikely, even with a strengthening program, that he would achieve his pre-accident capacity. He was more likely to remain with some degree of pain and aggravation in circumstances of prolonged activity or in cold weather.
When Dr Pascall prepared her report in February 2009, she was unaware that the plaintiff had fallen from a stepladder at work during 2008. When this was put to her in cross-examination, she accepted that he might have injured his back at the L5-S1 level on that occasion. This would be consistent with her findings on physical examination some seven months later. It was equally consistent with the cumulative effect of the plaintiff’s work as an apprentice painter during 2008, but Dr Pascall preferred the stepladder fall as the explanation, having regard to its timing.
In cross-examination, Dr Pascall did not accept that a compression fracture at L1 could have caused damage at the L5-S1 level. She did not accept that when she saw the plaintiff in 2009 he was experiencing pain associated with his 2004 injury.
Dr Pascall measured the loss of anterior height of the L1 vertebra from the x-rays at 23%. A report by a radiologist at Maitland in October 2007 reported from an MRI scan that the vertebra had lost about 20% of normal height but there is no evidence that the radiologist carried out any measurement, and the evidence is that x-rays are preferable to MRI scans for such a measurement. Dr Darveniza in his first report recorded a height loss of 30% but did not measure this accurately. Dr Brooder referred in his report to a CT scan report of 11 December 2004 which reported a height loss of 25%. His own opinion was that the height loss was 25% to 30%. He had measured the degree of loss on the CT scan with a ruler and arrived at a reduction of about one-quarter which he expressed as 25%. Dr Searle seems to have accepted the figure of 20% from a radiological report. He thought he had probably measured it himself but could not recall specifically. He said that having seen hundreds of such fractures on x-ray in his time, he could estimate reasonably accurately, and had probably done so in arriving at his figure of about 20%.
Dr Conrad measured the degree of compression at 30% using a ruler on an x-ray. He made reference to a scale used by medical practitioners, the DRE scale, which is apparently used as a formula to calculate a percentage whole person impairment based on measurable criteria. For classification purposes lines are drawn at 25% and 50%. A compression fracture causing loss of height of more than 50% is taken to equate to a higher whole person impairment than one between 25% and 50%, and a loss of height less than 25% is taken to correspond to a lesser whole person impairment percentage again.
Counsel for the defendant sought to make something of the evidence of some of the experts that the loss of height was less than 25%. Dr Conrad disagreed that a fracture causing loss of height of less than 25% could be described as a minimal fracture. As he explained, this simply placed the fracture in a particular DRE classification, used, for example, in Workcover injury assessments in New South Wales for work injuries.
On the significance of the percentage height reduction, I prefer the evidence of the neurologists and surgeons to that of Dr Pascall. I was impressed by Dr Conrad’s evidence as to how he went about the measurement and am persuaded that his measurement of just on 30% is most likely to have been accurate. Having said that, I am not persuaded that, for the assessment of damages under the general law, there is any basis for drawing a distinction between fractures which cause a little more than 25% compression and those which cause a little less. Each case must be looked at on its own facts and its own merits.
I accept Dr Pascall’s evidence that the plaintiff has a lower pain threshold than the average person, and that he does not cope well with pain.
Findings of fact and consideration of the issues
Three lay witnesses gave evidence in the plaintiff’s case: the plaintiff himself, his partner and her father. The partner’s father was not seriously challenged in cross-examination. He was patently a witness of truth and I accept his evidence.
Counsel for the defendant did not submit that the plaintiff was an intentionally untruthful witness, but he did submit that the plaintiff “gilded the lily”, somewhat exaggerating the extent of his pain and other disabilities. There was some merit in the criticism. An example can be found in the plaintiff’s less than full and frank history to the doctors about his motorcycle riding after the car accident.
It is the common experience of judicial officers in personal injury actions that plaintiffs have a tendency to put their best foot forward, particularly when giving evidence in chief. The present plaintiff, I am sure, overplayed his hand in the witness box to some extent, whether consciously or unconsciously. In aspects of his evidence such as the attribution of a rating of the level of his pain between one and ten, and the number of hours spent by his partner and other family members in providing services to him, there was an element of exaggeration which may well have been subconscious.
Counsel for the defendant mounted an attack on the plaintiff’s credibility based on what he submitted was an inconsistency between the plaintiff’s evidence at trial about his memory of the period immediately before the accident, and the aftermath, and a statement he had made to an investigator in September 2005 in which he descended to some detail about the period in question. Counsel for the defendant also sought to make something of hospital records as to the plaintiff’s level of consciousness after his admission. The interpretation of these records was explained by Dr Brooder in his oral evidence. I am satisfied that when the plaintiff gave evidence, he was doing his best to remember the events. His credibility was not undermined by the challenge.
My assessment of the plaintiff’s level of intelligence, from observation of his oral evidence, was consistent with that of the neuropsychologist, Dr Reid. The plaintiff comes across as a man of below average intelligence. I formed the view that he was generally doing his best to answer honestly and truthfully the questions which were put to him, subject to some level of exaggeration about the severity of his symptoms and the effect of his injuries on him.
It may be said of the plaintiff that he is a man prepared to take advantage of legislative benefits, the court system and the law generally when it is to his advantage, whilst ignoring his legal obligations when it does not suit his purpose. Examples of the former are driving a motor vehicle without a licence and failing to lodge income tax returns. The criticism is justified but does not affect my assessment of the credibility of his evidence before me.
The plaintiff had a sketchy work history before the car accident. It seems to me more likely than not that he had recovered sufficiently from his wrist fracture to get back to some form of employment after a couple of months, but that he was content to remain on sickness benefits while he continued to have doctors’ certificates supporting the payment of those benefits.
I accept that the car accident injuries resulted in him being unable to work for several months. It seems reasonable in all of the circumstances to assess him as unable to engage in employment from the date of the car accident for twelve months. This is not to say that his damages are to be assessed on the basis that he would have exercised his earning capacity for the whole of that twelve months if it had not been for the car accident. He was not working when the accident happened. He may well have been content to remain on social security benefits while he continued to receive them.
He found employment in February 2006, some fourteen months after the accident. This was at a time when his partner had left him and moved to Newcastle with the children. He frankly said that he got then work to earn money to save for a bond so that he and his partner and the children could move into rented accommodation. He worked in Canberra for most of 2006. He seems a man who is motivated to work when he needs the money though not necessarily when he does not.
He moved to Newcastle in December 2006 and worked for nearly two years as an apprentice painter. He resigned soon after he had negotiated his finance company loan. He did not work again after September 2008. His efforts at obtaining employment since then seem to have been desultory. It is unsurprising that they have been unsuccessful. I am satisfied that the plaintiff retained some working capacity after the end of September 2008 and that he has effectively chosen not to exercise it because he and the family have been able to live on the loan funds, supplemented by his partner’s social security payments, pending the outcome of this case. I think that he could have found work in the Newcastle region of a similar nature to the work he engaged in in Canberra during 2006, if he had looked hard enough in the Newcastle region. Because of his back pain, his employment may well have had a similar pattern of short periods in employment, with periods between jobs.
These factors, as to the plaintiff’s motivation to complete an apprenticeship and qualify as a tradesman and indeed his motivation to work at all unless he needs to, are factors to be taken into account in a general way in assessing damages for his loss of earning capacity for the future also.
I generally accept the evidence of the plaintiff’s partner subject to a similar reservation about some degree of exaggeration, particularly in relation to the plaintiff’s contribution to the housework before the car accident, and her estimate of the number of hours she has had to spend in providing him with care and performing other household activities.
As to the medical evidence, in the first place it is noteworthy that the plaintiff has had no medical treatment since he was able to relinquish his back brace a few months after the accident. I accept that this has been in part because of a mindset against going to the doctor, in part because of lack of funds, and in part because he has been able to manage his back pain generally with medication available from a chemist without prescription. Nevertheless the fact that he has not required treatment other than medication and some massaging by his partner for the last five years is some reflection of the severity of his symptoms.
The plaintiff’s case is generally supported by all of the doctors whose reports are in evidence, with the exception of Dr Pascall. She has raised the possibility that the plaintiff injured his lower back at the L5-S1 level when he fell from the stepladder at work in June 2008, that this was an injury to a different part of his spine, and that it may have operated as a novus actus interveniens. I should immediately say that counsel for the defendant did not use that expression or refer to the related doctrine in his closing submissions. It was certainly not suggested by counsel that the plaintiff’s engagement in employment as an apprentice painter represented a failure to exercise reasonable care to avoid further injury.
It suffices to say that I prefer the evidence of Dr Searle, that it is not uncommon for a fracture at L1 to cause injury at the other end of the lumbar spine, at L5-S1, to that of Dr Pascall who rejected this as a possibility. There is nothing in any of the contemporary documentation which came into being following the plaintiff’s fall from the stepladder suggestive of a back injury. It would hardly be surprising if such a fall shook the plaintiff up generally and led to some short-term aggravation of his existing back injury, but there is nothing to suggest that the effect of the fall on his back was anything more than that. Accordingly I reject any suggestion that the plaintiff suffered a new injury in June 2008 which has since been responsible for some or all of his continuing low-back and related symptoms.
Dr Pascall may well be correct in her opinion that the nature of the plaintiff’s work as an apprentice painter, which involved carrying, lifting and bending, may have played a part in bring on or aggravating symptoms emanating from injury at the L5-S1 level, but that seems to me to have been foreseeable as a consequence of the back injury which the plaintiff suffered in the car accident.
I am accordingly satisfied that the plaintiff suffered a serious injury in the car accident in the form of a crush fracture of the L1 vertebra with loss of anterior height of between 20% and 30% accompanied by damage to the surrounding ligaments, muscles and other tissues. He was severely disabled for some months, and slowly recovered to a level where he could return to work, go fishing, and ride his motorbike over jumps on a dirt track. I accept, however, he has been left with a level of low-back pain, aggravated by physical activity, which has resulted in a reduction in his working capacity and his enjoyment of life. I am satisfied that he will not improve, but rather will deteriorate as degenerative changes in his lumbar spine become symptomatic, probably in something of the order of twenty years from now. I accept the opinion of Dr Conrad that his working life may be curtailed, perhaps by as much as five years, because of his lumbar fracture.
Damages
Senior counsel for the plaintiff put a figure on general damages during closing submissions of $150,000.00. Counsel for the defendant declined to suggest an amount. Having regard to my factual findings and my assessment of the severity of the plaintiff’s injury and its impact on him, I assess general damages at $120,000.00. Senior counsel for the plaintiff suggested that this should be apportioned equally between the past and the future. Counsel for the defendant did not submit to the contrary, and I adopt that apportionment. The past component carries interest at 4% per annum, spread over the period of just over six years since the accident, though weighted more heavily to the period of acute disability during the early months after the accident. I award $8,000.00 for interest on the past component of general damages.
The plaintiff’s treatment expenses to date are agreed at $3,471.30. That amount has been paid by the defendant’s insurer and there is no claim for interest. In the circumstances it seems to me that the correct approach is not to include it in the award of damages.
A claim is made for future treatment expenses, limited to medication including anti-inflammatory ointment, and physiotherapy. I am not satisfied that the plaintiff is likely to incur any expenditure for physiotherapy. I accept that he will continue to require non-prescription medication from time to time. This is likely to increase after some twenty years as the degeneration process increases his symptoms, but that is well into the future. The assessment of this aspect of his damages does not lend itself to a mathematical approach. For future treatment expenses I award $6,000.00.
The calculation of a figure for loss of earnings for the past involves a comparison between what the plaintiff would probably have earned if it had not been for the car accident, and what he has earned.
For the period of twelve months after the accident, adopting a figure of about $450.00 per week after tax, I award $24,000.00. This attracts interest spread over the first year and at the full commercial rate of 9% over the five years since. I award interest of $1,000.00 for the first year, and $10,800.00 for the period since then.
The plaintiff worked through most of 2006 but his work was interrupted, and he was limited in what he could do, because of his back injury. His loss for that year is not capable of precise quantification. I allow $5,000.00 for that year plus interest of $2,000.00.
There is no evidence of any loss of earnings during the plaintiff’s period of apprenticeship up to the end of September 2008. He has not worked since then, being a period of almost two and a half years. If he had worked for that period and earned an average of $600.00 per week net, which I am satisfied he could have earned but for his back injury, he might have earned during that period a net sum of $75,000.00. However, I am satisfied that he did not take adequate steps to mitigate his loss, and that he could have exercised his reduced earning capacity to earn during that period. I propose to allow $40,000.00 to compensate him for his loss of earning capacity during that period, plus interest of $10,000.00.
This results in an award for past loss of earnings of $69,000.00 plus interest of $22,800.00.
The plaintiff claims a component for loss of superannuation benefits. If it had not been for the accident, the plaintiff might have worked as an employee, but he might also have spent some time in a self-employed capacity, as he did whilst working as a contract cleaner. Only time in employment would have attracted an employer’s superannuation contribution. For his losses in this regard, I allow $4,000.00 for the past.
The plaintiff makes a substantial claim for future loss of earnings. He is entitled to be compensated for the reduction in his earning capacity to the extent that it is likely to result in actual financial loss. The New South Wales award for a tradesman painter at the time of the hearing was $658.00 per week after tax, and senior counsel for the plaintiff submits that I should adopt this as a basis for the calculation of his capacity. This seems to me not unreasonable. It is quite likely that if it had not been for the car accident the plaintiff would have moved to Newcastle and completed a painting apprenticeship. By now he would be capable of earning an income of that order.
The plaintiff is 26 years of age. The present value of a regular loss of $1.00 per week to a male aged 26 is $1091.60 to age 60 and $1,169.90 to age 65 by reference to the Australian Life Table 1997-99. Thus the present value of a loss of $658.00 per week to those ages would lie within a range of $718,000.00 to $770,000.00. This may be taken to represent the range of a total loss of earning capacity to a man of 26 with that prior earning capacity.
It is not suggested that the plaintiff has suffered a total loss of earning capacity. In the first place, there is considerable doubt as to whether he would have exercised his full earning capacity even if he had not been injured. He had a sporadic earning history. One has the impression that he was prepared to work and earn money when he needed to but lacked motivation to do so when he did not need the money. He was in and out of work before the accident, and in and out of work after it. His award must be significantly discounted to recognise this.
Additionally, I am not satisfied that he has lost the whole of his working capacity. He was able to work after the accident for some two and a half years, on and off, with some help in protecting him from heavier tasks. He retains a capacity to engage in lighter work, though he lacks the intelligence, experience and training to earn money in most available sedentary jobs in the workforce. He has nevertheless established that he is able to find work. He is notionally obliged, so far as the assessment of his damages is concerned, to take such steps as are available to him to mitigate his loss.
It seems to me that a reasonable approach to the assessment of his damages for future earning loss is to treat him as having lost 40% of his earning capacity but to have retained 60% of it. This apportionment takes account of the usual reduction to reflect the vicissitudes of life.
I also factor in my acceptance of Dr Conrad’s view that his working life may well be cut short by perhaps five years because of his injury.
Balancing all of those factors, I propose to allow $300,000.00 for the future component of the plaintiff’s loss of earning capacity.
Taking into account that he might have exercised all or some of this capacity in employment, but might also have exercised some or most of it as self-employed, I allow $20,000.00 for loss of superannuation benefits for the future.
There is a claim for the notional commercial value of the care and services he has required, which have been provided by his partner and other family members, and for the value on the same basis of tasks he used to perform but can no longer attend to. As I have said, I thought that his evidence and that of his partner about the hours spent in this area was exaggerated. I adopt an hourly rate of $20.00 as the notional present cost of obtaining such services commercially. I am satisfied that the plaintiff required intensive provision of care and other services for some months after the accident, reducing until perhaps a year after the accident when his need reached a modest plateau. I accept that there remain some things he cannot do, or at least cannot do for the period which might reasonably be required of him, on a continuing basis, and that in another twenty years this is likely to get worse as degeneration sets in.
For past gratuitous care and services I allow $8,000.00. This attracts interest at commercial rates, for which I allow $3,500.00. For the future I allow $5,000.00.
The individual components of the award of damages are as follows:
General damages $120,000.00
- Interest on past component $8,000.00
Future treatment $6,000.00
Past loss of earnings $69,000.00
- Interest thereon $22,800.00
Past loss of superannuation benefits $4,000.00
Loss of earning capacity - future $300,000.00
Loss of superannuation benefits - future $20,000.00
Griffiths v Kerkemeyer – past $8,000.00
- Interest $3,500.00
- Future $5,000.00
Total$566,300.00
As I mentioned above, this is additional to the treatment expenses already paid by the defendant’s insurer.
On consideration, the total seems to me to represent an appropriate reflection of the damages suffered by the plaintiff as a result of the defendant’s negligence. The amount is to be reduced by a percentage agreed between the parties to reflect the contributory negligence of the plaintiff, of which I have not yet been informed.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date:
Counsel for the plaintiff: Mr R S McIlwaine SC and Mr J Pappas
Solicitors for the plaintiff: United Legal
Counsel for the defendant: Mr P D Ryan
Solicitors for the defendant: Moray and Agnew
Date of hearing: 26, 27, 28, 29 May, 6 and 7 July 2009
Date of judgment: 11 March 2011
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