Strodder v Le
[2000] QSC 239
•27 June 2000
SUPREME COURT OF QUEENSLAND
File No 1099 of 1998
[2000] QSC 239
BETWEEN:
EDWARD CHARLES STRODDER
Plaintiff
AND:
MINH NGOI LE
First Defendant
AND:
NRMA INSURANCE LTD
Second Defendant
MOYNIHAN J – REASONS FOR JUDGMENT
DELIVERED ON: | 27 June 2000 |
HEARING DATES: | 24, 31 January – 4 February, 7, 21 & 22 February 2000 |
ORDER: | Judgment for the plaintiff against the defendant for $2,491,030.11. |
CATCHWORDS: | DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – REMOTENESS AND CAUSATION – PRE-ACCIDENT CONDITION OF PLAINTIFF – plaintiff/passenger injured whilst travelling in motor vehicle – whether accident caused injuries or whether injuries were a manifestation of plaintiff’s pre-existing condition from previous motor vehicle accidents. DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – assessment of special damages, pain, suffering and loss of amenities, past and future gratuitous care, past and future economic loss. |
COUNSEL: | Mr JA Griffin QC with Mr GR Mullins for the Plaintiff. Mr SC Williams QC with Mr MJ Burns for the Second Defendant. |
SOLICITORS: | Quinn & Scattini with Phillips & Erlewine for the Plaintiff. Hunt & Hunt Lawyers for the Second Defendant. |
The plaintiff sues to recover damages for injuries he suffered in a motor vehicle collision which occurred on 27 December 1995. Liability is admitted. Damages are in issue. The crucial consideration is the causal relationship between the collision of 27 December 1995 and the plaintiff’s subsequent complaints and disabilities, particularly relating to disabling back and neck pain. This consideration arises in the context of the plaintiff being involved in a number of traumatic incidents involving his back prior to 27 December 1995.
The plaintiff was born on 2 December 1957 and is a US citizen. By 1995 he was working as a real estate broker (realtor) in Marin County near San Francisco in California. He was successful but there is argument about the measure of his success. The plaintiff came to Queensland in late December 1995 to holiday at Noosa Heads. He was travelling to Noosa as a front seat passenger wearing a lap sash seatbelt when another vehicle pulled out from the shoulder of the road ahead and commenced a u-turn across the path of the vehicle in which the plaintiff was travelling and a collision occurred.
The plaintiff’s vehicle was travelling at around about 100 kilometres per hour. Immediately the driver saw what the other was doing he braked leaving skid marks some 20 feet and came to a halt “virtually on impact”. There was obviously a substantial impact. It was angled with the front passenger side of the plaintiff’s vehicle, striking the front driver’s side door of the other vehicle. Although he was wearing a seatbelt the plaintiff was thrown about in the collision. It is appears from his injuries that his face and left shoulder came into contact with the interior of the vehicle with considerable force. He seems to have been thrown against the left-hand side of the vehicle. It is, however, difficult to form any more precise conclusion as to what occurred to the plaintiff in the collision.
The driver of the plaintiff’s vehicle got out almost immediately following the collision. The plaintiff was extricated from the vehicle some time later, immobilised, placed on a stretcher, put in an ambulance and taken to the Nambour Hospital. He was examined but declined admission and went to Noosa to stay with friends as planned.
It is convenient to deal with some general matters at this stage before returning to the collision and its aftermath. Exhibits 2 and 2A are a collection of medical reports and related documents. Many of the latter were questionnaires of varying degrees of elaborateness completed before or after a consultation or a procedure. Many were completed by the plaintiff. Such documents are the prime source of evidence about the plaintiff’s injuries and their effect on him.
The case was conducted on terms that if the relevant doctor or treatment provider was not called to give evidence the documents were admitted on the basis that, had the authors been called, their evidence would have been that the history recorded by them was as stated by the plaintiff at the time of the interview. In each case the medical opinion of those persons was received pursuant to s 92 of the Evidence Act 1977. Any documents not falling within the categories of history or medical opinion were admitted by consent pursuant to s 92.
It is desirable that I say something about my evaluation of the plaintiff at this stage. The plaintiff was a motivated, active, able and sociable person, well regarded by an apparently wide circle of friends and acquaintances. He might fairly be described as an energetic proponent of the power of positive thought with a driven personality. He has applied all these characteristics in dealing with the various traumatic incidents in which he was involved and with his pain and disability. The history of the injury and back disability to be recounted has, however, taken its toll on all of these characteristics.
The plaintiff’s life has become racked by pain and plagued with disability. Since 1986 he has had innumerable visits to, assessments, treatments and interventions by a large number of doctors in various specialities and other health care professionals for back pain and associated problems. The plaintiff has had many hours of physical therapy either under supervision or self managed. He has had major surgery on a number of occasions although he was averse to surgery and preferred to exhaust less radical options until driven to major interventions. I do not think the plaintiff can be criticised for the course he has followed in seeking to deal with his problems in this way. He appears to have made his decisions after inquiry, careful consideration and on the basis of medical advice. This is not to suggest that the advice was unanimous or that another person in the plaintiff’s position could not reasonably have taken a different decision in particular instances. On the whole in my view the plaintiff has acted reasonably in the course he has followed in dealing with his injuries.
The plaintiff has suffered various complications from his treatment. He had, for example, a serious episode of deep veinous thrombosis following an operation, he has developed sexual function difficulties on account of another. He has used various devices in endeavours to relieve his pain and enhance his mobility either while recovering from surgery or generally. He has been on a heavy drug regime for a long time and developed an opiate dependency problem at one stage.
By 5 April 1994, Drs White and Lowden of SpineCare concurred that the plaintiff needed psychiatric support to help deal with his ongoing disabling and painful lower back condition. Prior to the collision in December 1995, he had painful degenerative changes and bulging discs at the L4/L5 and L5/S1 levels of his lumbar spine. Doctor White thought the plaintiff required fusion of joints in his lumbar spine to alleviate complaints which he attributed equally to motor vehicle collisions in January and August 1993.
The plaintiff’s expectations or hopes of a favourable outcome from treatment have almost always been disappointed, they were in any event, in all probability unrealistic. The plaintiff has great difficulty in accepting that he cannot, by the sheer exercise of will, restore himself to what he has come to regard as his normal level of functioning. Irrespective of any deterioration of his condition, his coping ability and his tolerance of his condition was and continues to be eroded by his continuing pain, disability and disappointed expectations. These outcomes are not simply a consequence of the December 1995 collision, but that event has become the focus of the plaintiff’s concerns as constituting the cause of his difficulties and this colours his view of events.
I turn again to the 27 December 1995 collision and its consequences. The plaintiff’s case is that he suffered the following injuries as a consequence of that collision:
1. Acute damage to the discs and apophoyesal joints particularly at the C2/C3 level of the spine necessitating a fusion of the cervical spine at C2/C3 and C3/C4; the C4/C6 levels are likely to require fusion in the future. The plaintiff’s cervical spine is the cause of disabling cervicogenic headache and facial pain, the condition is likely to be permanent
2. Aggravation and further tearing of the discs at L4/L5 and L5/S1 of the spine resulting in a laparoscopic anterior discectomy, a caudal epidural block and a two level anterior fusion to the lumbar spine.
3. An injury to the left shoulder requiring arthroscopic debridement and decompression.
4. An injury to the face causing buckling of the nasal septum requiring a straightening of the nose as well as correction of the nasal septum and cartilage.
5. Traumatic injury to the sacro-iliac joint requiring fusion of the joint.
6. Post traumatic stress disorder and depression.
7. The prolonged use of a walker following operations on the plaintiff’s lumbar spine has led to degeneration, pain and consequent disability in the plaintiff’s right elbow. These complaints seem to have been effectively dealt with by an operation on 5 November 1997.
Items 1, 2 and 5 are particularly contentious.
The plaintiff’s case is that he is permanently disabled as a consequence of these injuries and is unemployable.
As I have said the plaintiff was extricated from the crashed vehicle and taken to the Nambour Hospital by ambulance. He complained of headache, pain in his lower back, neck and chest and numbness to the right side of his body. He was tender in his upper cervical and lower lumbar spine. A lumbar sacral spine x-ray identified numerous osteophytes but there was no fracture. The plaintiff declined admission and went to Noosa to stay with friends.
At Noosa the plaintiff was in considerable pain and great distress. He took pain killers. On 29 December 1995 he was examined by Dr Carter, a general practitioner, a friend of the person the plaintiff was staying with at Noosa and an acquaintance of the plaintiff. Doctor Carter was holidaying at Noosa. The plaintiff was complaining of pain in the right and left shoulders, neck, face, lower back and thoracic region of the back. Doctor Carter’s impression was of soft tissue contusion, especially to the chest, secondary to the effect of the seatbelt. He prescribed medication and recommended rest. The plaintiff sought accommodation where a spa was available for his therapeutic use.
The plaintiff saw Mirte Craig, a psychologist at Noosa on a number of occasions, the first being on 4 January 1997. She found him to be highly anxious, very confused, depressed, lonely, stiff in his movement and in much pain. There were indications of Post Traumatic Stress Disorder with extreme anxiety and some phobic responses.
On 3 January 1996, Dr Carter arranged for the plaintiff to see Dr John Fraser, an orthopaedic surgeon in Brisbane. This was the only occasion on which Dr Fraser saw the plaintiff. On the drive to Brisbane and on subsequent occasions, the plaintiff was uncomfortable both on account of his physical condition and because of a phobic reaction to oncoming traffic.
The plaintiff complained to Dr Fraser of:
1. Neck pain and stiffness.
2. Low back pain and buttock pain.
3. Difficulty breathing and right chest pain.
4. Painful left shoulder.
5. A right foot injury.
6. Pain in thoracic spine.
7. A blow to the right side of the forehead with severe right sided headache.
8. Intermittent blurring of vision.
The plaintiff complained of constant pain in his lumbar spine extending to the buttocks and both legs. As far as his feet, symptoms on the right were worse than on the left. There were no neurological symptoms.
Doctor Fraser thought that the plaintiff had suffered multiple contusions and strains as a consequence of the collision and prescribed heat, rest, analgesics, anti-inflammatories and physiotherapy.
An x-ray report by Dr Earwaker of 3 January 1996 reported a slight narrowing of the L4/L5 disc space. Doctor Earwaker considered the remainder of the disc spaces were normal and the vertebral bodies and neutralities was intact. There was no evidence of fracture.
The plaintiff’s pain and distress continued. On 5 January 1996 he complained to Dr Carter of continuing neck, back, forehead and face pain and on 7 January, a headache, low and mid back pain and was suffering from psychological difficulties which Dr Carter thought were due to Post Traumatic Stress Disorder.
The plaintiff was understandably anxious to return to the United States and did so on 15 January 1996. Before dealing with the events which followed his return however, it is necessary to deal with pre 27 December 1995 events and their consequences. The account which follows is not exhaustive. I do not intend to canvass the whole of the relevant history but to refer to some aspects of it to illustrate the basis of my conclusions.
Counsel provided extensive chronologies with their written submissions. These are far more comprehensive than the account which follows. The chronologies were of assistance in determining the case and producing these reasons. By and large the occurrence of the events the chronologies canvass, as distinct from the inferences to be drawn from those events and the implications they have for the outcome of the case, are not particularly controversial.
Prior to the collision of 27 December 1995, the plaintiff had been injured in and compensated for three motor vehicle collisions and had a separate episode of disabling back pain.
On 15 June 1986, the plaintiff was involved in head-on collision while wearing a seatbelt and travelling in a motor vehicle travelling at 20-30 miles per hour. He consulted a medical doctor complaining of “severe pain over his neck, upper and lower back and occasional headache”. Examination evidenced severe muscle spasm over his cervical, thoracic and lumbar spine. X-rays of those areas were, however, unremarkable.
The plaintiff was treated by a chiropractic doctor and embarked on physical therapy. He returned to work on light duties at the end of June but was unable to continue his work. He was on full disability from 15 August to 1 October 1986 and cleared to return to full duties at the beginning of November.
At the time of this collision the plaintiff was engaged in renovating or restoring properties, car detailing and bar tending work. He was advised to reduce his physical work activities, particularly car detailing which involved a lot of arm and hand work which placed stress on his back.
On 28 May 1991, the plaintiff consulted Dr Lamberti, a chiropractic doctor for treatment of back pain apparently attributable to his use of a new office chair, stress and cold weather. He complained of stiffness and tension in the area of his thoracic spine. On 28 May, Dr Lamberti conducted a complete physical examination and took x-rays. She treated the plaintiff with a regime of chiropractic adjustments, EMS and ultrasound. Doctor Lamberti saw him 17 times during 1991 and six or seven times during 1992. I note that the plaintiff commenced to work as a realtor with Frank Howard Allen during 1991. This particular complaint, which related to the plaintiff’s thoracic spine, seems to have resolved.
On 12 January 1993, the plaintiff was involved in a second motor vehicle collision. A vehicle backed out of a driveway and struck the left rear of the plaintiff’s vehicle causing it to spin out of control. He was spun to the right laterally, his arm went through the steering wheel and he was thrown out of his seat although he was wearing a seatbelt.
The plaintiff consulted Dr Lamberti at the time of the consultation following this event. He complained that:
“the pain in my back has got increasingly worse, I cannot sleep soundly or sit comfortably in any position. My movements are limited and the pain is chronic. My sports activities are minimal or non-existent.”
He went on to describe suffering from severe and prolonged headaches.
A medical summary prepared by his then attorney for the purpose of pursuing a claim for damages and apparently reflecting the views of Dr Lamberti, described the plaintiff’s injuries on this occasion as “severe” and itemised:
1. Acute traumatic sacro-iliac sprain.
2. Acute traumatic lumbar sprain.
3. Myogenic headaches.
4. Sciatica; and
5. Cervical strain.
The plaintiff was treated by Dr Lamberti and with acupuncture; he tried a number of different beds. His symptoms of lower back and bilateral leg pain persisted notwithstanding treatment. An MRI scan of 19 February 1993 revealed a central protrusion of degenerated L4/L5 discs with annular tearing and depression of the ventral thecal sac together with a central protrusion of a degenerated L5/S1 disc together with peripheral annular tearing.
The plaintiff “wasn’t getting the relief [he] was after” and requested Dr Lamberti to refer him to a spine clinic for further attention; Doctor Lamberti referred him to SpineCare. SpineCare is a multidisciplinary group of practitioners specialising in dealing with spinal injury. The plaintiff has remained, with varying degrees of intensity, under the care of and treatment by various members of the group up to the time of the trial and in all probability will continue to do so. His principal treating doctor initially was Dr White, latterly Dr Goldthwaite. Each, however, acted in close consultation and collaboration with the other and with other members of the group whose particular expertise was relevant to the various aspects of the plaintiff’s condition and treatment from time to time.
The plaintiff attended SpineCare for the first time on 29 April 1993. For the purpose of the consultation he completed a questionnaire. He complained of neck pain as bothersome “half the time” and rated the intensity as 8 out of 10. It prevented a range of activities. The plaintiff complained of aching and stabbing pain in his buttocks, down both legs to above the knee with 75 percent attributed to lower back pain and 25 percent to leg pain. He was receiving treatment three times a week from Dr Lamberti. His back pain was about the same as before the treatment commenced. His leg pain was much worse. Physical therapy, including cervicothoracic and lumbar stabilisation training and cervical and thoracic home programs were prescribed and followed by the plaintiff.
On 4 June 1993, the plaintiff indicated that he had 75 percent low back pain and 25 percent leg pain. The pain was “aching from approximately the belt line through the buttocks and the top of both legs” with an intensity of 7 out of 10. The back pain continued to interfere substantially with the plaintiff’s activities of daily living. The plaintiff continued with physical therapy including cervicothoracic stabilisation training and cervical home program.
On 9 July 1993 the plaintiff indicated low back pain including buttock pain half of the time which was “slightly bothersome”. He had not had any neck pain in the preceding week. He continued with physical therapy.
In a questionnaire of 13 August 1993, the plaintiff indicated aching buttock pain radiating to the top of his legs. He had “75% low back pain and 25% leg pain” at a level of 5 out of 10. He suffered such pain often and that he found it “bothersome”. He had not suffered from any neck pain in the preceding week. On that date he had a lumbar caudal epidural block to relieve his pain. He was to have that procedure a number of times but it failed to give him more than transient relief.
On 27 August 1993, the plaintiff was involved in a third motor vehicle collision. He was sitting in his stationary vehicle wearing a seatbelt when the vehicle was struck from behind. The plaintiff gave a history of lurching forward and striking his left hand on the dashboard and then his right shoulder hit something. He suffered injuries to his wrist and shoulder. He also complained of having injured his lower back and immediately sought attention from the Marin Orthopaedic Rehabilitation Center. The plaintiff’s lower back pain was aggravated and this continued over the following months.
The plaintiff continued with physical therapy, following his program independently after the last of a series of visits to his physical therapist on 12 September 1993.
On 14 September 1993, the plaintiff reported new and different bilateral leg pain following the August accident. He had low back and buttock pain all the time and leg pain often. In February 1994 the plaintiff was complaining of increased lower back pain and he made complaints of neck pain on occasion during this time. On other occasions (a majority) he made no complaint of neck pain or reported he was free of it. Complaints of back pain, however, persisted through the period.
The plaintiff travelled to Australia with a group in November 1993 for the Melbourne Cup and sightseeing. He repeated the visit in the following year. He apparently coped with these trips without undue stress.
During 1994 the plaintiff continued to attend at SpineCare and with physical therapy. On his visits to SpineCare he indicated various experiences of back pain, buttock pain and leg pain. Attempts at skiing increased his back pain.
On 5 April 1994, the plaintiff complained of low back and buttock pain and aching pain down the legs. He indicated a scale of seven or eight out of 10, the back and buttock pain was “very often” to “all the time and was extremely bothersome”. Possible surgical options were considered and, as I indicated earlier, Drs White and Lowden thought psychiatric support was indicated to help the plaintiff deal with his ongoing pain and disability. On 22 April, the plaintiff had his third lumbar caudal block.
The plaintiff continued to suffer back pain. He had another caudal epidural block, surgery and other options were discussed and psychiatric evaluation considered. In June 1994, the plaintiff had a lumbar discogram. He was complaining of pain in the lumbar spine, buttocks and neck and discussed surgery on his lower spine to relieve his pain.
On 25 July 1994, the plaintiff complained of lower back, buttock and “slightly bothersome neck pain”. He subsequently saw Dr Schofferman, a pain management specialist, and Dr Moskowitz, a psychiatrist. He indicated an increased pain intensity of nine out of ten with a 75 percent low back pain and 25 percent leg pain that occurred all the time which he found “extremely bothersome” and which restricted his daily living activities. The condition had failed to respond to conservative remedies. He was prescribed Prozac.
The plaintiff continued to be troubled by his back and to undertake treatment. On 19 June 1995, he consulted Dr DeLong on referral from Dr Lamberti. The plaintiff told Dr DeLong, a specialist in spine and joint disorders, that he experienced severe low back pain as a result of the two motor vehicle accidents which occurred in January 1993 and August 1993 and said that his low back pain was becoming progressively severe. He had constant low back pain radiating into the buttocks and occasionally going into the back of the legs, that the pain was worse if he sat for 10 minutes or stood for 30 minutes, it was worse with bending or twisting, and that he avoided all forms of forward flexion.
The plaintiff told Dr DeLong that he was only working part-time and that he could engage in none of his former recreational activities. He discussed with Dr DeLong ways of avoiding surgery, including use of a body jacket - which the plaintiff did not favour - exercise, intradiscal injection and a specific “closed” procedure in which Dr Zucherman of St Mary’s Spine Center specialised.
On 11 December 1995, the plaintiff saw Dr White. The plaintiff’s evidence was this was to discuss a flare up of his back condition and his forthcoming visit to Australia. The plaintiff told Dr White that he was there at the request of his attorney to clarify some issues relating to pending litigation in respect of the 1993 accidents. He felt that he was getting somewhat better, at least with coping, until the second accident. He had received over 100 physical therapy treatments, was taking a range of medications, including a narcotic, and was worse off since his previous attendance on 25 July 1994.
On this occasion the plaintiff was complaining of 75 percent low back pain and 25 percent buttock and posterior thigh pain bilaterally worse on the right than the left. He complained of gradual worsening of his condition requiring him to cut back on the number of hours he worked and rated the pain at nine out of ten.
On examination his lumbar spine motion seemed somewhat pain inhibited. Dr White diagnosed internal disc disruption at L4/L5 and L5/S1 and could offer no solution other than fusion. The plaintiff postponed a decision wishing to see if there were any new less invasive options for his care. Doctors White and Barrick wrote to the plaintiff’s lawyer on 11 December recommending spinal fusion, attributing his complaints to the 1993 accidents and apportioning contribution equally between them.
The plaintiff’s account and that of his friends and associates about his health and activities from 1986 and particularly during 1993, 1994 and 1995 have to be viewed in the light of the history which has just been outlined. It may be true that during this period the plaintiff visited Australia, holidayed in Mexico, ended one relationship and formed another, which has continued, engaged in physical activities, for example, attempted water skiing and I think golf.
In part the account of the extent and vigour of the plaintiff’s activities is overstated. I think these characteristics were less than they are now said to be, in the context of the trial. There were restrictions on the plaintiff’s work and recreational activities in varying degrees throughout the period because of his back pain. In part it was not in the plaintiff’s interest that his friends, particularly his work colleagues, appreciate the extent of his disability, others had limited opportunities to make observations. In part the plaintiff’s positive thinking and belief that his efforts would restore him to his full activities, masked the severity of his condition and restrictions on activities.
It is convenient to now deal with the plaintiff’s injuries in terms of the number of discreet headings. I acknowledge that the picture is more complex than this approach suggests. The plaintiff is to be compensated for the overall consequences of the December 1995 collision and they may (indeed probably will) be greater than the sum total of individual components. Moreover, the plaintiff’s pre-accident history cuts both ways. On the one hand there is the question of the extent to which his current disabilities are attributable to events other than that of December 1995. On the other hand those events may have made him more vulnerable to the consequences of that collision than would have otherwise been the case. I will deal with the less controversial injuries first.
The Left Shoulder: There were some signs of degenerative changes in the plaintiff’s left shoulder prior to the 1995 collision and he faced the prospect of it becoming symptomatic at some stage.
The probability is that the plaintiff’s left shoulder was thrown against the side of the vehicle in the 27 December collision. He saw Dr Stuart on 17 January 1996, after he had returned to the United States. Doctor Stuart’s initial impression was a probable rotator cuff tear of the left shoulder, cervical strain, lumbar strain and closed chest contusion. On a follow up visit on 29 January, physical therapy was started. The shoulder did not improve and on 11 March 1996, Dr Stuart carried out arthroscopic surgery under general anaesthetic effecting debridement and subacromial decompression. After the surgery the plaintiff was totally disabled for six weeks, partially disabled for a further six weeks and underwent rigorous physical therapy. By 6 May 1996, the pain associated with the shoulder dramatically decreased and a full range of movement had been restored. Dr Stuart anticipated a full recovery and no additional medical treatment in respect of the shoulder.
The Face: In an examination on 19 March 1996, Dr Emery found that the plaintiff had asymmetry of his nose with deflection of the bones to the right and a lot of distortion and irregularity of the nasal septum, with buckling at the base of the nose where it joined the upper lip. This was no doubt a consequence of his face coming into contact with some part of the vehicle in the collision of 27 December. On 25 March, Dr Emery successfully operated to correct the damage and did not anticipate that any further treatment would be needed.
Lumbar Spine: As I have already said, by 27 December 1995 the plaintiff had degenerate and abnormal L4/L5 and L5/S1 spinal discs. It may be accepted that the collision of 27 December 1995 adversely affected this segment of the plaintiff’s spine and may have made the discs more unstable. The collision may well have been the “last straw”, so far as the plaintiff’s ability to cope with his lumbar pain was concerned. In my view, however, it was by then virtually inevitable that the plaintiff would have had a lumbar fusion in any event.
The plaintiff consulted Dr Cushing of the Mill Valley Medical Group on 1 March 1996. It was noted that in the collision of 27 December 1995 he suffered an injury to his spine with several discs involved but no particular pain at first but was beginning to feel pain down his right leg. On the occasion of the consultation he was wearing a back brace and slowly improving. His lumbar spine was tender with no recent neurological signs.
On 2 May 1996, the plaintiff saw Dr White of SpineCare. His primary complaint was right foot pain and leg pain radiating from the back into the right buttock and down his right leg. This was “unlike any symptom he had before”, previously he had only low back pain and no leg pain. He had tried chiropractics, corsets, canes, a TENS unit and medication but these had failed to relieve his pain. Sacro-iliac provocative tests carried out by Dr White were negative and the doctor found those joints were not tender.
The plaintiff was averse to major surgical intervention in respect of his lumbar spine. On 26 July 1996, he sought a second opinion (to that of SpineCare) from Dr Hu at the Medical Center at the University of California about a fusion and with respect to the method of fusion. Dr Hu noted that it was not reasonable for the plaintiff to expect a 100 percent recovery and that he needed to understand that.
The plaintiff elected for less intrusive procedures. On 11 September 1996, Dr Derby performed an intradiscal neurotomy at L4/L5 and L5/S1 and carried out caudal epidural blocks on 4 October.
On 15 October 1996, Dr Zucherman of St Mary’s Spine Center carried out a laparoscopic anterior discectomy in an endeavour to relieve the plaintiff’s lumbar spine related pain. On 23 December, Dr Zucherman carried out a caudal epidural block and on 28 January 1997, a lumbar facet block. By 17 April 1997, if not earlier, it was clear that the discecotomy of 15 October 1996 had exacerbated rather than relieved the pain and disability associated with the plaintiff’s degenerate L4/L5 and L5/S1 discs.
The plaintiff accepted the proposal by Drs White and Goldthwaite of SpineCare to effect a fusion. On 23 July 1997, Dr Goldthwaite effected a two level anterior fusions at the two disc levels referred to. This operation was successful, fusion was effected and when the plaintiff recovered from the operation, pain attributable to his lumbar spine substantially diminished.
Sacro-iliac Joint: To recover damages for this aspect of his condition the plaintiff must establish traumatic injury to the sacro-iliac joint in the collision of 27 December 1995. The plaintiff’s case at trial initially was that his knees and/or shins came into contact with the dashboard in the collision. The plaintiff’s final submissions were to the effect that the specific mechanism of the plaintiff’s knees or shins coming into contact with the dashboard was not a pre condition to the 27 December causing sacro-iliac joint injury which could have effected by some other mechanism.
The first specific reference to contact between the plaintiff’s knees or shins and the dashboard seems to have been to Dr Goldthwaite of SpineCare on 8 January 1999. In his account to Dr Goldthwaite the plaintiff refers to his knees having been bruised by contact with the dashboard.
Doctor Donner, a leading specialist in the field of sacro-iliac disorder, was called by the plaintiff. He first examined the plaintiff on 8 June 1999. His evidence was to the effect that trauma was the major cause of sacro-iliac dysfunction. A lumbar fusion, it will be recalled the plaintiff had one on 23 July 1997, could however cause sacro-iliac disruption without it but disruption was more usual when the joints had been weakened by previous trauma.
Doctor Donner gave evidence that sufferers of chronic intractable sacro-iliac joint related pain syndrome typically describe pain that begins in the buttock region with radiation into the extremity which includes a variety of distributions, including groin pain as well as pain that radiates below the knee to the ankle. It is sometimes associated with neurologic deficit pain, foot drop and weakness of the extensor hallucis longus muscle.
Diagnosis of sacro-iliac joint pain syndrome is, Dr Donner said, often confused with lumbar spine pathology. Thorough evaluation of both the sacro-iliac joint and the lumbar spine needs to be undertaken in order to identify the specific pain generators.
There can be a quiescent period between trauma and the onset of sacro-iliac symptoms and they tend to wax and wane, settling down to the asymptomatic and then stirring up. Doctor Donner did not accept the proposition that “substantial force” is required to disrupt the sacro-iliac joints saying that many such injuries were more subtle with mechanisms beyond the direct transmission of force to the joint.
The plaintiff complained to Dr Fraser in January 1996 of injury to his foot in the December collision. Doctor Donner concurred with a proposition that it was “reasonable to assume” that this occurred during impact if the plaintiff braced himself or that the energy was transmitted through the vehicle and through the floorboards, on which the plaintiff’s feet were resting, to the sacro-iliac joint.
Against this background I turn to the pre December 1995 history of the plaintiff’s sacro-iliac joint. X-rays of the lumbar sacral spine taken as a consequence of the accident of 16 June 1986, revealed the sacrum to be intact and the sacro-iliac joints apparently normal. As a consequence of that accident the plaintiff complained of severe pain over his neck, upper and lower back and evidence severe muscle spasm over his cervical, thoracic and lumbar spine.
As a consequence of the accident of 12 January 1993, the plaintiff was said, in the medical summary prepared by his lawyer, to have suffered an acute traumatic sacro-iliac sprain. On 19 February he gave Dr Parker a history of low back and bilateral leg pain and thereafter on a number of occasions gave descriptions of pain consistent with Dr Donner’s typical characteristics of chronic intractable sacro-iliac joint related pain syndrome. That consistency is however not conclusive that the pain was caused by a damaged sacro-iliac joint.
On 2 May 1996, the plaintiff was examined by Dr White of SpineCare for the first time since the December 1995 collision. Doctor White reported that the plaintiff’s hips showed a full range of movement, that a sacro-iliac provocative test was negative and that the joints themselves were not tender. There is, however, evidence that reliable diagnosis of sacro-iliac joint dysfunction and pain syndrome diagnosis was primarily based on sacro-iliac joint blocks as well as by eliminating other pain generators using discography and facet blocks and this had not been carried out. The failure of Dr White’s test to provide a response is not conclusive and may be explicable but if the plaintiff had suffered sacro-iliac joint damage in the December 1995 collision it is a curious outcome.
On 29 April 1997, x-rays of the plaintiff’s sacrum coccyx were normal. On 19 November 1998, Dr Savala thought that the sacro-iliac joints were not playing a significant role in the plaintiff’s ongoing low back complaint. On 15 January 1999, Dr Savala of the SpineCare group, in the context of a sacro-iliac bilateral joint block, concluded that pain was coming from SI joints or from a placebo response.
On 9 June 1999, Dr Donner carried out bilateral sacro-iliac joint fusions, he considered it a successful operation. The joint will, however, never be totally asymptomatic although there should be improvement in pain levels and function. The plaintiff’s capacity to stand, walk, lift and sit will be limited and he may still suffer pain inhibiting or precluding his working.
During the surgery Dr Donner found a joint surface which did not look normal but which he thought did not fall into the category of being degenerate although the appearance was consistent with trauma and could have been an early manifestation of degeneration.
I am not persuaded the plaintiff’s sacro-iliac joint problems were a consequence of trauma inflicted in the 27 December 1995 collision and am unable on the evidence to reach any conclusion as to whether it played any, and if so what, role in them.
It may be that the plaintiff was subject to forces in the December 1995 collision capable of injuring his sacro-iliac joint. I am not, however, persuaded his shins or knees struck the dashboard and consideration of whether other mechanisms were involved is essentially speculative or retrospective reconstruction to explain presumed sacro-iliac trauma.
Prior to December 1995, the plaintiff had a history of insult if not injury to his sacro-iliac joint and on the occasion of Dr Donner’s operation, he saw the abnormality appearance referred to earlier. From time to time the plaintiff had reported symptoms consistent with sacro-iliac pain syndrome. There is evidence that a lumbar fusion could cause sacro-iliac disruption even without pre-existing trauma, although that made the joint more susceptible.
As I have said, it may be that Dr White’s failure to elicit a response and the late identification of sacro-iliac joint generated pain are capable of explanation on one of the basis canvassed earlier. That explanation would be more attractive if the evidence otherwise that the plaintiff’s sacro-iliac joint was subject to traumatic force in the collision of 27 December was stronger than I view it as being.
Whilst the considerations just canvassed may not be sufficiently strong to lead to a conclusion of injury or degeneration in the sacro-iliac joint prior to December 1995, they bear with some force on whether a positive finding that the condition of the plaintiff’s sacro-iliac joint was a consequence of trauma suffered in that accident should be made.
Cervical Spine: As I have said, the plaintiff’s case is that the 27 December 1995 collision caused acute damage to the discs and apophoyesal joints at the C2/C3 and adjacent level of his cervical spine. On 30 March 1998, Dr Goldthwaite of SpineCare carried out an anterior cervical discectomy and decompression on C2/C3, C3/C4 with anterior cervical interbody fusion and plate fixation and it will probably be necessary to repeat that procedure at the C4/C5/C6 levels. As a consequence of the injury to his cervical spine, the plaintiff has developed disabling cervicogenic headache, face, neck and jaw pain.
The major issues on this aspect of the claim are whether the plaintiff’s cervical spine was degenerate and symptomatic prior to the 27 December 1995 collision which did no more than accelerate the inevitable or whether the collision is the cause of all the problems attributable to the plaintiff’s cervical spine.
Following the 12 January 1993 collision, the plaintiff suffered cervical strain and complained of neck pain, the last recorded complaint of this seems to have been on 29 April 1993. Complaints of “slightly bothersome neck pain” are recorded on 25 June and 25 July 1994. On 12 October 1994, Dr Cushing treated the plaintiff for right sided headache which was a complaint consistent with but not necessarily indicative of cervical degeneration. Between May 1993 and December 1995 there are a number of occasions where it is recorded that the plaintiff had no neck pain.
It is clear enough that up to December 1995, the plaintiff’s lumbar spine was the major cause of pain and disability although his sacro-iliac joints may have contributed.
On 2 May 1996, Dr White reviewed the x-rays taken by Dr Earwaker on 3 January. He noted signs of degeneration at the C3/C4, C4/C5 and C5/C6 levels. These appearances were not commented on by Dr Earwaker, probably indicating he considered them to be in the normal range for a person of the plaintiff’s age and lifestyle. That reflects the view of Drs White and Goldthwaite. The changes were “fairly parallel” to the result of an MRI scan performed by Dr Fritz on 5 March 1997 – “fairly parallel” reflects that x-rays and MRI scans are not directly comparable.
It is important to note that neither of these tests indicated degeneration at the C2/C3 level and there is no other evidence establishing degeneration there. Doctor Goldthwaite’s investigation establishes that joint to be the major source of the plaintiff’s disabling headaches.
I am satisfied that the plaintiff’s C2/C3 and C3/C4 discs and the apophoyesal joints were injured in the collision of 27 December 1995. It is these injuries which led to the surgery carried out by Dr Goldthwaite on 30 March 1998 and to which found the prospect that the procedure may have to be repeated at the C4/C5/C6 levels and cause of the plaintiff’s disabling pain and headaches.
The plaintiff had degenerative signs within normal limits at the levels below C2/C3 which may have been symptomatic from time to time and which may have become symptomatic in the future because of trauma or the aging process. It is not possible to say when these symptoms may have been manifest and as to their effect on the plaintiff. I am not, however, persuaded that the plaintiff would in any event have developed cervical degeneration or symptoms of comparable severity to those he developed as a consequence of the December 1995 collision or that its effect was to accelerate what was otherwise going to occur in any event.
The plaintiff’s neck pain, headaches and facial pain and the prospect of further fusion are a direct consequence of the damage to his cervical discs and of the pressure placed on the other discs of his cervical spine by the injury and subsequent fusion.
The consequences are seriously and permanently disabling. They restrict the plaintiff’s physical capacities, his ability to concentrate, he cannot sit and drive or work at a desk, engage in many of the mundane activities of life or enjoy its amenities. While future fusion would be directed to improving his symptoms but, even if successful, it will impose additional functional restrictions on him.
Post Traumatic Stress Disorder and Depression: There is no doubt that the plaintiff suffered an acute onset of stress disorder and depression immediately following the collision of December 1995. He saw a psychologist at Noosa on four occasions for treatment before returning to the United States. When he left his condition had not stabilised but was thought likely it would persist for some time. On an ongoing basis, however there are difficulties in disentangling the consequences of the December 1995 collision from events and consequences unrelated to it.
In the context of his association with SpineCare, the plaintiff was treated by Dr Hines, a specialist in psychiatry and pain management. This involved counselling and the use of drugs over a number of years.
On 5 March 1998, Dr Hines recorded that the plaintiff said he felt better overall and since he had discontinued a specific drug. He was, however, having headaches on a daily basis and Dr Goldthwaite was investigating their possible cerviocogenic origin. Doctor Hines noted that the plaintiff was becoming considerably more depressed and he started a course of anti-depressant medication.
On 12 March, the plaintiff was complaining of a significant amount of emotional distress, particularly a depressed mood. Doctor Hines thought the symptoms were consistent with a depressive disorder and that the plaintiff’s emotional distress was directly related to his injuries and pain. He thought that if the emotional symptoms went unchecked they would continue to aggravate pain levels and decrease the plaintiff’s level of daily functioning, ultimately influencing the rate and quality of recovery. It was advisable that the plaintiff participate in a Cognitive Behaviour Pain Management Program in order to help him manage his pain. Doctor Rosales was to administer the program and Dr Rosales is a co-signatory with Dr Hines to the report of the 12 March. Through no fault of his own the plaintiff has not yet done the pain management course but it seems appropriate he do so when he is able.
On 13 March 1999, the plaintiff was still depressed and Dr Hines reverted to a treatment plan involving the use of long-acting opioid medication about which the plaintiff had reservations because of his experience of opiate dependency.
By the time of the trial, from Dr Hines perspective, the most significant factors in managing the plaintiff were ongoing neck pain and increasing depression. Doctor Hines considered that the plaintiff’s pain management position was a difficult one. The optimum overall course of treatment was to help the plaintiff accept his limitations and adapt to them but this was difficult given the complexity of the plaintiff’s condition, the length of time for which he had been suffering and his personality type.
The situation was further complicated, Dr Hines thought, by the plaintiff’s “ambivalent attitude” towards medication to which he was “philosophically opposed”, although Dr Hines thought that drugs were a useful, if not necessary, tool in treating him. The plaintiff may have “hit bottom” in terms of recognising his disability and limitations and was having somewhat of “an epiphany” regarding the need to modify his lifestyle and change the way he approached things but this was not a certainty. Doctor Hines thought that in some ways his intervention with the plaintiff “was only beginning”.
To sum up, the plaintiff’s damages fall to be assessed on the following basis. He suffered acute damage to the discs and apophoyesal joints at the C2/C3 and C3/C4 level leading the fusion of 30 March 1998 with the prospect of further fusion. The cervical injury is the cause of disabling cervicogenic headache and pain. Further fusion may relieve the symptoms but will restrict function. The condition of the plaintiff’s cervical spine permanently and seriously restricts the plaintiff’s capacity to earn income and enjoy the amenities of life.
The damages awarded in respect of the plaintiff’s cervical spine have to be discounted to reflect the possible onset of symptoms in his cervical spine in any event. It is, however, improbable that this outcome would have approached the consequences of the 27 December 1995 collision or have required surgical intervention and may well have been manageable and not restricted function to any significant extent.
It may be that the collision exacerbated the consequences of the degeneration of the plaintiff’s lumbar spine at the L4/L5 and L5/S1 levels but it is difficult to quantify this outcome which, in the overall scheme of things in relation to the plaintiff’s lumbar spine, was relatively minor.
On the view I take of the evidence, the lumbar fusions effected on 27 July 1997 were virtually inevitable prior to 27 December 1995 and it would in any event have taken six months for the plaintiff to recover from them. The operation has largely relieved the plaintiff’s lumbar spine symptoms with a minimal effect on function. I am also of the view that the plaintiff would probably in any event undergone the intradiscal radio frequency neurotomy carried out by Dr Derby on 11 September 1996 and undertaken the discectomy carried out by Dr Zucherman on 15 October of that year with the subsequent epidural and facet block before accepting the inevitability of fusion. The difficulty with the plaintiff’s right elbow appears to be directly related to the discectomy and not to the 27 December 1995 collision.
It may be that the collision postponed the various interventions just canvassed somewhat but it is difficult to quantify this or to identify any adverse consequences of it occurring.
I am not prepared to conclude that the plaintiff’s sacro-iliac complaint and the consequent intervention by Dr Donner are a consequence of the collision of 27 December 1995 and he may have had sacro-iliac problems in any event.
The plaintiff is entitled to damages for the injuries he suffered to his left shoulder and to his face. It is difficult to apportion the plaintiff’s sexual dysfunction to any particular surgical episode but I have borne it in mind in assessing damages.
I have no doubt that the plaintiff suffered Post Traumatic Stress Disorder and depression as a consequence of the collision of 27 December 1995. The collision and its consequences had a significant impact because of characteristics of the plaintiff’s personality, of which I have spoken earlier, and because he was already struggling with coming to terms with his pre-existing lumbar spine and perhaps sacro-iliac pain and disability.
The defendant has to take the plaintiff as he finds him. It is, however, difficult to disentangle, much less quantify, the independent effect on the plaintiff’s personality or psyche of consequences unrelated to the collision of 27 December 1995 and those which are. I have no doubt, however, the collision has and will continue to contribute substantially to the plaintiff's depression and Post Traumatic Stress Disorder and diminish his ability to cope with his physical disabilities both those consequent on the collision and otherwise.
I am inclined to accept Dr Hines’s assessment of the plaintiff’s future, which seemed to me to carry the implication that there is some prospect, but far from certainty, that the plaintiff will adjust to his disabilities and pain better than he has been able to date but he is likely to continue to struggle. The collision contributes to that.
It is convenient to assess the plaintiff’s damages in terms of the applicable conventional heads of damages. The parties have reached agreement in respect of the following matters:
1. Those components of the plaintiff’s damages calculated in United States dollars are to be converted to Australian dollars at the exchange rate published in the Australian Financial Review on the day judgment is delivered.
2. Subject to the issue of causation, the defendants admit the payments set out in exhibit 46 were made, were reasonably incurred and related to the area of the body specified in the exhibit.
3. As between the parties, the plaintiff’s medical insurer only had the right to recover in respect of payment for conditions in respect of which causation had been established.
4. The interest rate on special damages was four percent and that those paid by the plaintiff as distinct from his medical insurer attracted an additional 16 percent.
5. So far as the provision of care and assistance is concerned $US16 per hour was appropriate when a professional provider is involved and $US14 per hour for voluntary care.
Pain, Suffering and Loss of Amenities: I will not repeat the conclusions canvassed earlier in these reasons in respect of the consequences of the 27 December 1995 collision. I have already adverted to the need to assess the plaintiff’s damages on the basis of the overall consequences of that collision and to the difficulties of disentangling its consequences from those caused by unrelated events.
As a consequence of the injuries suffered in that accident, the plaintiff has and will continue to have pain and suffering. His capacity to enjoy the amenities of life is diminished. He can no longer pursue his pre-accident recreational activities as he did. The plaintiff’s capacity to enjoy a personal relationship and social relations more generally is diminished.
I award $AU70,000 under this head and allow interest of two percent, $3,600.
Economic Loss: All things being equal, the probability is that the plaintiff would have continued with Frank Howard Allen, until his sixties although he may have moved to an administrative position towards the end of this time.
Prior to 27 December 1995, the plaintiff’s earning capacity was adversely affected by his back condition, particularly his lumbar spine. On a number of occasions prior to that date he had complained that his back condition affected his earning capacity. For example, on 29 March 1994, the plaintiff told Dr Lowden that he had modified his work environment so that he could work standing up and that while on the phone he spent a good deal of time lying on the floor. On 11 December 1995 he complained to Dr White that his gradually worsening condition was adversely affecting his working capacity. As well as the conditions which required them, the sheer volume of medical attendances, treatments and recovery time must have eaten into the plaintiff’s earning capacity as must his mental state as a consequence of dealing with his condition.
To the extent to which the plaintiff’s work capacity was restricted by his lumbar spine condition it would have been ameliorated by a fusion operation such as Dr Goldthwaite carried out on 23 July 1997. To the extent to which they related to sacro-iliac joint problems it would have been relieved by Dr Donner’s fusion of 9 June 1999. On the view I take of the evidence neither of those interventions nor the interventions of Drs Derby and Zucherman in 1996, or by Dr Stuart on the plaintiff’s right elbow in November 1997 were a consequence of the 1995 collision.
Those interventions and the thrombosis which developed following Dr Goldthwaite’s operation would have seriously compromised the plaintiff’s earning capacity for the best part of 12 months or more in any event. On the other hand, the disabling consequences of the injury to the plaintiff’s cervical spine do not seem to have operated to restrict his earning capacity until fairly late in the piece; this probably owes something to the other matters just referred to.
By the time of the trial the plaintiff had some residual capacity to work for himself at his own pace as and when he was able to do so but effectively he is and will continue to be commercially unemployable and is unlikely in the future to earn any significant income.
Not surprisingly the parties contend for different approaches for arriving at the value of the plaintiff’s lost earning capacity. The plaintiff contends for an approach which involves averaging the gross commission over four years of two realtors selected for the comparability of their earning capacity with the plaintiff’s. Thirty percent was deducted for business costs, the evidence established this as an appropriate percentage. Further deductions were then made for taxes and for the plaintiff’s actual earnings. The total pre trial loss calculated on this basis was $US453,168.60. This figure was then reduced by 12.5 percent reflecting the prospect of lumbar fusion in any event prior to the date of commencement of the trial.
For future loss of earnings the plaintiff used the calculation of pre trial earnings to arrive at a net weekly income of $US3,875. A 23 year multiplier was then applied to give a figure which, when discounted by 15 percent, for general contingency. Future economic loss was thus calculated at $US2,375,452.50.
The defendant’s approach was to average the plaintiff’s income for the 1994 and 1995 years then adjusting it upward for an increase in the median home price in Marin county. This calculation gave $US265,039 for past economic loss.
For future economic loss the defendants used the plaintiff’s past income to calculate a projected annual income loss of $US58,798 and calculated this to a loss at the end of the 2020 calendar year to $US793,076.
Each of these approaches can be legitimately criticised. The defendant, for example, challenged the plaintiff’s comparable income calculations on the basis that they were not supported or verified by any source documents. Moreover, however promising the plaintiff has been as a realtor, the “comparable” realtors had in any event moved ahead of the plaintiff in earnings; whether because they were not effected by his disabilities unrelated to the accident or for some other reason.
The plaintiff, on the other hand, criticised the average of the 1994/1995 years income used in the defendant’s calculations because the plaintiff’s income was substantially reduced as a consequence of his undergoing extensive physical therapy in that period, that the calculation did not reflect the particular characteristics in the Mill Valley region and they had brought to account deductions not related to the realtor business.
Each of the exercises is useful but not determinative for a number of reasons. As I have said there are a number of legitimate criticisms of each approach. The plaintiff’s damages are to be assessed on a different view of the relationship between his disabilities and the December 1995 collision than contended for by either the plaintiff or the defendant. Determining the plaintiff’s economic loss is more a matter of judgment than of calculation.
I should add that in my view the submissions on the plaintiff do not give sufficient weight to the real estate market fluctuations, particularly the down side. As I have indicated the plaintiff had traits which contributed to his being a successful realtor. He certainly started well. The submissions on behalf of the plaintiff, however, require greater weight to these than on my assessment is justified.
I have earlier summarised the basis upon which the plaintiff’s damages are to be assessed. The plaintiff’s earning capacity up to trial was adversely affected by factors which were not a consequence of the collision of 27 December 1995. To disentangle these factors from those which are is not a simple task and is not something which can be done with precision. Moreover, the assessment has to take into account a number of variables, notably what may have happened in respect of the plaintiff’s cervical spine in any event.
By December 1995 the plaintiff’s earning capacity was already being adversely affected by the degeneration of his lumbar spine and perhaps by damage or degeneration to his sacro-iliac joints. He would, in any event, have had the interventions by Dr Derby and Dr Zucherman, probably with the same outcomes, before lumbar fusion as was carried out by Dr Goldthwaite. It was these interventions which led to the plaintiff’s thrombosis, disabling pain in the right elbow and which contributed to the plaintiff’s sexual functioning being effected. It was after the consequences of these various interventions and procedures had settled down, probably towards the end of November 1997 or the beginning of 1998, that pain and disability related to the plaintiff’s cervical spine appear to have come to the fore. Moreover, there were further interventions because of the plaintiff’s lumbar spine and sacro-iliac joint problems during 1998, including a partial re-section of the lumbar spine processes on 16 September 1998 and Dr Donner’s sacro-iliac fusion of 9 June 1999.
The considerations being those I have canvassed, I assess the value of diminishment of the plaintiff’s earning capacity from the date of the collision to the date of trial to be $US150,000 with interest at a rate of five percent for four years.
I turn to the future economic loss. The damage to the plaintiff’s cervical spine appears to be the predominant consideration in respect of his diminished future earning capacity. Apart from a general discount for the vicissitudes of life, any amount awarded needs to be discounted to reflect the prospect that there may have been some diminishment of earning capacity because of factors unrelated to the December 1995 collision and that the cervical spine may have become symptomatic in any event with adverse consequences for the plaintiff’s earning capacity. These considerations in my view found a discount of the order of 35 to 40 percent of what would otherwise be the plaintiff’s economic loss. For reasons identified earlier I do not regard that as a matter of calculation.
The evidence of the earnings of Donaldson and Witt, whose earning capacity was said to be comparable to the plaintiff’s for the purpose of past and future economic loss are to be approached with some caution because, as I have said, it is not supported by sourced documents. Moreover, neither of those persons were working under the difficulties the plaintiff was, for reasons which were unrelated to the December 1995 collision.
Doing the best I can in the circumstances, I assess the plaintiff’s damages for future economic loss to be $US1,000,000.00.
Gratuitous Care and Assistance – Past and Future: There is no doubt that since 27 December 1995, the plaintiff has needed care and required assistance in things he would have otherwise been able to do because of his back condition. Once again difficulty arises in determining the extent to which this is attributable to the December 1995 collision.
I accept that in the immediate aftermath of his return to the United States he received care and attention directly attributable to the December 1995 collision. That, however, became subsumed by the effect of his lumbar spine and perhaps sacro-iliac joint problem and their treatment probably by about the time the plaintiff consulted Dr White on 21 May 1996, although that is a fairly arbitrary determination. The care and assistance has largely been provided by Janna Cooper who the plaintiff had commenced dating in August of 1995. Miss Cooper met the plaintiff when he returned to the United States on 15 January 1996 and from that date provided him with gratuitous care and assistance. She moved in permanently with the plaintiff in June of 1996 and has continued to care for and assist him in respect of things that he his unable to do himself because of his disabilities. The plaintiff and Miss Cooper regard their relationship as permanent. Miss Cooper produced and gave evidence in support of the gratuitous care and assistance she has provided and anticipates she will provide into the future. The defendant submitted the schedule for the period from March 1996 to April 1998 (exhibit 15) should be preferred over another schedule (exhibit 14) on the basis that the latter was an estimate while the former was more contemporaneous and more detailed. Subject to that and the issue of attribution to the December 1995 collision, I did not understand this evidence to be particularly contentious.
I do not intend seeking to dissect the details of exhibits 14 and 15 in terms of care and assistance attributable to the consequences of the December 1995 collision and those which are not. So far as future gratuitous care is concerned, considerations comparable to those canvassed in respect of future economic loss arise.
I allow $15,000 for past care and interest at the rate two percent over four years. I allow $US120,000 for future gratuitous care.
Special Damages: The plaintiff is entitled to $AU5,920, with interest at four percent over 4 years in respect of all special damages incurred in Australia. These are clearly attributable to the collision. The damages under this head incurred in the United Sates are in exhibit 46. Applying the agreement about special damages set out earlier to my findings, I award special damages as follows:
Paid by the plaintiffPaid by the plaintiff’s medical insurer
Cervical $US 3,212.46 $US17,205.47
Psychological $US 600.00 -
General $US 3,000.00 $US 1,500.00
Shoulder $US 2,032.00 $US 4,541.98
Face $US 6,708.00 $US 1,991.64
$US25,552.46 $US25,239.09
Plus interest at 20 Plus interest at 4
percent for 4 years $US20,441.97 percent for 4 years $US 4,038.25
TOTAL$US45,994.43TOTAL$US29,277.34
(Exhibit 46)
Future Expenditure: The plaintiff is likely to require future cervical spine fusion at a cost of $US30,000.
It is not unreasonable on the evidence to allow $6 a week for 30 years for the cost of future medication and I award $US4,932 in respect of it.
Summary of Damages:
US dollars Australian dollars
Pain, Suffering and Loss of Amenities 41,510.00 70,000.00
Interest on Pre-Trial Component 2,134.80 3,600.00
Past Economic Loss 150,000.00 252,951.10
Interest 30,000.00 50,590.22
Future Economic Loss 1,000,000.00 1,686,340.64
Past Care 15,000.00 25,295.11
Interest 1,200.00 2,023.61
Future Care 120,000.00 202,360.88
Special Damages 78,331.80 132,094.10
plus $AU 6867.20 4072.25 6,867.20
Future Expenditure 34,932.00 58,907.25
TOTAL$US1,477,180.85 $AU2,491,030.11
*Australian Financial Review of 27 June 2000 $A/US = 59.3
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