Sutton v Cook
[2008] WADC 134
•9 SEPTEMBER 2008
SUTTON -v- COOK [2008] WADC 134
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 134 | |
| Case No: | CIV:1907/2007 | 26 AUGUST 2008 | |
| Coram: | STEVENSON DCJ | 9/09/08 | |
| PERTH | |||
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for plaintiff in sum of $31,193.10 | ||
| PDF Version |
| Parties: | CRAIG PATRICK SUTTON MICHAEL EDWARD COOK |
Catchwords: | Damages Negligence Motor vehicle accident Personal injuries Assessment of damages Mild soft tissue strain injury to cervical spine and right upper arm and shoulder Headaches Adjustment disorder Exacerbation of pre-existing work related injury Plaintiff 41-year-old self-employed taxi truck driver |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 |
Case References: | Den Hoedt v Barwick [2006] WASCA 196 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Southgate v Waterford (1990) 21 NSWLR 427 Sutton v Crestworld Pty Ltd t/as Medcalf Transport [2001] WADC 107 Watts v Rake (1960) 108 CLR 158 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MICHAEL EDWARD COOK
Defendant
Catchwords:
Damages - Negligence - Motor vehicle accident - Personal injuries - Assessment of damages - Mild soft tissue strain injury to cervical spine and right upper arm and shoulder - Headaches - Adjustment disorder - Exacerbation of pre-existing work related injury - Plaintiff 41-year-old self-employed taxi truck driver
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Judgment for plaintiff in sum of $31,193.10
(Page 2)
Representation:
Counsel:
Plaintiff : Mr D R Clyne
Defendant : Ms K R Wood
Solicitors:
Plaintiff : Simon Walters
Defendant : Lavan Legal
Case(s) referred to in judgment(s):
Den Hoedt v Barwick [2006] WASCA 196
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Southgate v Waterford (1990) 21 NSWLR 427
Sutton v Crestworld Pty Ltd t/as Medcalf Transport [2001] WADC 107
Watts v Rake (1960) 108 CLR 158
(Page 3)
- STEVENSON DCJ:
Introduction
1 The plaintiff is aged 41 years, having been born on 21 June 1967.
2 On 28 April 2006 the plaintiff was driving his delivery truck on Canning Highway, Como. While he was slowing down on the approach to the Kwinana Freeway entry lane his vehicle was rear-ended by the defendant's car. The defendant admits his negligent driving caused the accident. The matter is therefore one for assessment of damages only.
3 The plaintiff's claimed injuries include soft tissue injuries to the cervical spine, right shoulder, left knee, left upper arm and left shoulder which the plaintiff alleges caused various symptoms. As a result of the injuries and resultant symptoms the plaintiff received medical treatment including physiotherapy, an MRI scan and acupuncture. He was also prescribed bed rest, home exercises, and anti-inflammatory and analgesic medication.
4 As a result of the injuries caused by the accident, the plaintiff claims general damages, damages for past loss of earnings, future economic loss, past special damages and future medical expenses. The claim for loss of superannuation benefits has been abandoned because the plaintiff is self-employed. There is no claim for gratuitous services.
5 The defendant does not admit the plaintiff suffered the alleged injuries or symptoms, or loss and damage, as a result of the motor vehicle accident. The defendant pleads that if the plaintiff suffered the injuries and symptoms, then they were caused by unrelated injuries and disabilities arising out of the plaintiff's work related accident on 25 August 1997. Further or alternatively, the defendant says if the plaintiff's alleged injuries or symptoms occurred, they were caused by his ongoing work as a taxi truck driver since the motor vehicle accident on 28 April 2006.
6 It follows that the Court must consider the plaintiff's physical health and work capacity as it existed prior to the motor vehicle accident on 28 April 2006, and then determine to what extent the injuries and symptoms suffered as a result of that accident are in fact attributable to that accident and not the earlier accident or his ongoing work as a taxi truck driver. Or, as the plaintiff put it in his opening submissions, the principal issue for determination is to identify the nature and extent of the
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- impact of the motor vehicle accident on the plaintiff's pre-existing disabilities.
The motor vehicle accident on 28 April 2006
7 At about 10.30 am on 28 April 2006 the plaintiff was driving his Mitsubishi Canter taxi truck, registration number 1AEE-122, in the course of his employment as a subcontractor to freight companies. At the time he was self-employed and traded under the registered business name of "Sutty's Transport".
8 The plaintiff had completed a delivery from an Osborne Park warehouse to Curtin University and was travelling on Canning Highway as he approached the intersection to the southbound lane of Kwinana Freeway. The intersection was controlled by a give way sign. He was looking right to see if it was necessary to give way to oncoming traffic and as he was doing so he was slowing down. In evidence the plaintiff described the situation as follows:
"I was slowing down and proceeding, I had my head turned pretty hard out my right window to look back over my shoulder, so to speak, or leaning forward and my head screwed around to do a final check on traffic."
9 The plaintiff's vehicle was then struck from behind by the defendant's vehicle. The plaintiff said:
"Just as I was just coming to a final halt there was an almighty bang, crash behind me and it shook the whole truck pretty bad."
10 The plaintiff said there was no warning and that after the impact he was "quite shocked".
11 The plaintiff described the front of the defendant's vehicle as "buried" under the back of his truck. The plaintiff went to some length to emphasise the seriousness of the accident. For example, he said he thought the collision would have killed the defendant driver, and that it was not possible to tell what sort of car the defendant was driving because of the damage. In any event the defendant used the plaintiff's mobile to telephone the RAC and his insurance company. The cost of repairs to the plaintiff's vehicle was $900.
12 After the accident the plaintiff continued his trip to Bibra Lake and did two further jobs before going home. The plaintiff says he had a hot shower because he felt sore, tender and stiff between the shoulders and
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- that the following day he saw a general practitioner for his injuries. In examination-in-chief the plaintiff explained the effect the accident had on him at the time as follows (T 14):
"And, now, prior to you getting home how had you felt physically? - Pretty shaken up, pretty - a bit wobbly. I mean, straight after the accident I was pretty wobbly. I was jelly in the legs and that. Yeah, I was just taking it easy. They only gave me a couple more jobs as I remember it. It wasn’t a real big long day and, yeah, I was starting to feel a bit tender and a bit sore here and there in general; stiff neck again, shoulders, in between my shoulders, down my back. Yeah, just as the day progressed I've started to get tender again and went home and had a hot shower, try and loosen up.
And so how did you feel the next day? - The next day I was feeling sore enough I actually went to see my doctor. I was feeling headaches, pain, stiffness and, yeah, went to see my doctor who wasn't available at the time."
13 The plaintiff completed Year 10 at school and except for the sequelae from his work related accident on 25 August 1997 has always been in full-time employment. After leaving school he was spare parts manager at a motorcycle shop (three years). He then set up a removalist franchise business in Melbourne and completed a course to become a qualified furniture removalist (4½ years). On returning to Perth he worked for Cleanaway (10 months) and then again at the original motorcycle business where he was "basically running the store" (four years). He then worked for Metcalfe Transport until his 1997 work related injury after which he was out of the workforce for about 4½ years.
14 About eight months after settlement of his common law action in respect of the work related accident on 25 August 1997 the plaintiff purchased a Mitsubishi Canter 3½ tonne delivery truck in January 2002 and commenced work for Quick Swift Transport. He completely ceased his medication and although he had a few days off initially, he increased his workload until he was doing regular trips to mine sites near Kalgoorlie and Laverton.
15 In early 2003 the plaintiff commenced employment with CTI Transport and initially had a tyre delivery run which involved him manually loading and unloading the tyres. The plaintiff said he then
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- commenced delivering electrical cable where the majority of the loads were palletised and therefore did not involve any lifting.
16 In the period between 2002 and the accident on 28 April 2006 the plaintiff described his physical symptoms as (T 12):
"I was still suffering a bit there as I was sort of, you know, building myself up. But by the time I'd got past all the tyre deliveries and was quite happily, you know, working long hours; a lot of the pains and aches had subsided; headaches were very – well, they pretty well didn't really exist. Only if I pushed myself too hard I might go home a little bit sore here or there but a hot shower usually sorted that out, fix that up, made it good."
17 The day after the accident the plaintiff saw Dr Wright who prescribed painkillers and physiotherapy. The plaintiff says he attended physiotherapy for about a month. However, it seems he ceased physiotherapy treatment on becoming aware that the insurer had stopped paying for the treatment and because he had started having time off at CTI Transport the work was slowing down because it was being allocated to other vehicles.
18 The plaintiff said in the month following the accident that he suffered predominantly right shoulder pain and pain across the top of his shoulders and back. In respect to his symptoms objection was made quite properly in the course of the plaintiff's evidence to any evidence concerning the lower back because no such injury or symptomology is pleaded by the plaintiff in his statement of claim. Consistent with the plaintiff's pleaded claim, the plaintiff in his evidence attributed the injuries and symptoms following the accident to the upper part of his back, although on one occasion he did describe the pain as being from his neck down to his waist which he then qualified as from the neck to the base of his ribs (T 23).
19 The plaintiff also said that in the first couple of months after the accident he had headaches "most of the day just about every day of the week", although the intensity would alter.
20 After the accident on 28 April 2006 the plaintiff said he started to "struggle" with his work and that he started to have early days and refused to do certain types of work that involved physical lifting. Because he was being asked to "standby" he approached an alternative employer, Foxnet Taxi Trucks and started working for them about six months after the
(Page 7)
- accident. He described the work at Foxnet as "more user-friendly orientated". He said he managed initially a lot better, but said (T 19):
"As time has gone on the symptoms have flare ups. They haven't got really any better. A lot of sleepless nights, a lot of dead arms."
22 The plaintiff estimated his gross income had decreased since joining Foxnet because at CTI Transport it was on average about $3,500 plus GST a fortnight, whereas at Foxnet it is about $2,200. In his evidence he estimated that the decrease was about $700-$800 per fortnight. The defendant's analysis of the plaintiff's financial records discloses that for the period 4 July 2004 to 23 April 2006 the plaintiff's invoice average per fortnight at CTI Transport was $3,038.39. From the date of the accident to 11 February 2007 the average was $2,980.34. The plaintiff then started at Foxnet Taxi Trucks and the average for the period 28 February 2007 to 30 June 2008 was $3,125.69. When considering these calculations the elapse of time and increased costs must be borne in mind. The plaintiff is concerned about the viability of his business due to increasing running costs and his perception that Foxnet are not offering him work that is available. The plaintiff estimated he had missed 40-50 days off work since the accident (precise records were not produced).
23 The plaintiff maintained he still suffers headaches all the time and tension in his neck. He described the headaches as at the base of his skull, up the back of the skull, in the temples and sometimes burning sensations in his eyes. He says he takes three to five "over the counter painkillers" daily and that he has just been prescribed Prozac. He also occasionally experiences sharp shooting pains down his forearms, the right arm mainly.
24 The plaintiff described his pre-accident activities as spending time with his two children including using a boat most weekends (he said he had to sell it for financial reasons but also maintained it was "just too hard to get off and on trailers"). Other activities the plaintiff used to do but is no longer able to do include firewood hunting, go-kart riding, joyriding in old cars, fishing and in particular working on the construction of a house on a property at Toodyay.
(Page 8)
25 In cross-examination the plaintiff maintained he did not have any significant symptoms prior to the motor vehicle accident and he minimised any headaches or muscle tension from his work activity. He maintained "the busier I stayed, the more active I stayed, the better I felt". Notwithstanding this, the plaintiff confirmed that he had a right shoulder injection for specific pain prior to the accident. He was uncertain about an attendance at Royal Perth Hospital in 2004 for symptoms in his right arm allegedly caused by computer use.
26 The plaintiff maintained in cross-examination that since purchasing his delivery truck in January 2002 and starting work again that he was able to work without any side effects or loss of time as a result of the injuries suffered in his work related accident up until the motor vehicle accident. He says he "got headaches pretty well within a day or so" of the accident. Later he changed his general practitioner and started seeing Dr Toufexis. At that time his main complaints were headaches, neck tenderness and soreness but he maintained the headaches and neck pain were the worst part of it.
27 The plaintiff was cross-examined in relation to when he first noticed tingling in his arms. He said it was two or three months after the accident that he first started to notice these symptoms in his left arm. Professor Mastaglia recorded that the plaintiff told him that it was a few weeks after the accident. The plaintiff had never had any problem with his left arm previously. His right arm was affected in the work related accident and he became reliant on his left arm. He said he would have mentioned the tingling in his left arm to Dr Toufexis as soon as it occurred. It was then put to the plaintiff that he first mentioned "intermittent tingling in his right hand" and occasional left-sided symptoms to Dr Toufexis in May 2007. He accepted when he saw Dr Baskaranathan on 14 March 2007 that there had been no reference to any left arm symptoms. At that time he accepted that he reported right-sided muscular aches in his neck and pre-existing right shoulder pain. He accepted that he would have mentioned to Dr Goodheart in July 2007 and February 2008 that he was suffering ongoing low back pain and discomfort.
28 The plaintiff said he first started suffering psychological problems three or four months after the accident once he started taking time off work and losing work opportunities because he noticed his income had dropped. His evidence was (T 37):
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- "…once I realised I wasn't happy any more and my health had been compromised and my wellbeing was in the creek. 110 per cent I gave on my house up in Toodyay. That was disappearing. I wasn't happy to go up there any more because it started making me sad to see what I was having troubles with, and prior to that I was pretty happy with what I was doing. Prior to this accident I was getting on with it."
29 The plaintiff said he suffered severe psychiatric problems due to his work related accident and he described it as "one hell of a rollercoaster".
30 In cross-examination the plaintiff said currently he was only able to work on average 3-3½ days a week. He did not produce any written record to prove this, although he had made notes. The plaintiff was taken through his financial records and tax returns. The plaintiff accepted that increasing costs was causing him concern about the financial viability of his business, although he continued to maintain that because he was taking time off, although there was plenty of work, he was "being pushed to the gutter to hang and dry, as a result of too much time off". When challenged that there is no documentary proof that he had suffered the claimed loss of $60,000 for past economic loss the plaintiff referred to a number of things including increased costs and difficulty with approaching Foxnet with respect to his workload and that the loss was directly due to time off and being unable to work due to injuries suffered as a result of the accident. The plaintiff was also challenged about his apparent lack of time to arrange for repairs to be done to his truck, notwithstanding the time off from work.
31 In cross-examination the plaintiff said his current restrictions which prevented him from performing his work were the result of headaches, migraines, sleepless nights, and shooting pains. He described the shooting pains as random, usually down the inside of the back of his right shoulder. He acknowledged his lower back caused pain occasionally. He accepted that he did get "pins" in his lower spine and that this was as a result of his work related injuries. He gave examples of how he managed the way he did his work to overcome the restrictions caused by this injury.
Professor F L Mastaglia
32 Professor Mastaglia is a consultant neurologist. He reviewed the plaintiff on 6 May 2008 and reported his findings the same day. Professor Mastaglia obtained a history from the plaintiff, examined him and considered previous investigations including in particular two MRI scans
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- of the plaintiff's cervical spine taken on 28 October 1998 and 28 March 2007.
33 Professor Mastaglia's neurological examination of the upper limbs showed no visible muscular atrophy although there was some reduction in muscle strength. In his opinion the MRI scan of 28 October 1998 showed evidence of C5/6 and C6/7 central disc herniations.
34 In evidence-in-chief Professor Mastaglia said these abnormalities were more severe in the second scan performed in March 2007 than in the first. He said the same two discs were protruding in the second scan on 28 March 2007 but that at the C6/7 level it was not only protruding but had extended into the intervertebral foramina (the openings through which the spinal nerve roots exit the spine on their way to the upper limbs). As a result, in his opinion, the disc was not only protruding but had extended to the sides and was now pressing on the nerves going into the upper limbs. In his opinion this explained the plaintiff's impairment of sensation in both upper limbs. He said the C7 spinal nerve roots are responsible for sensation in the low part of the forearm extending on to the back of the hand, the back of the thumb and index finger and that the sensations which might be expected included pain, tingling, pins and needles and at a more advanced stage, actual impairment of sensation.
35 According to the history obtained by Professor Mastaglia, the plaintiff told him that "within a few weeks" of the motor vehicle accident he experienced the gradual onset of numbness in the left arm and hand which increased progressively in severity and still persists. Based on what he was told by the plaintiff, Professor Mastaglia, in his report, attributed "the left upper limb injury with associated C6 (sic) spinal nerve root involvement and development of a mild ulna neuropathy at the elbow" to the motor vehicle accident.
36 In cross-examination it was put to Professor Mastaglia that the left arm symptoms were not noted in historical medical evidence until May 2007 (as opposed to a few weeks after the accident). If this was right, Professor Mastaglia in evidence said it was "controversial or debatable" that the left arm symptoms could be attributed to the accident. He accepted that the longer the time interval between the accident and the onset of the symptoms then the more difficult it was to be certain about the role of the accident. But he still maintained it could not necessarily be ruled out as a contributor.
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37 In his report of 6 May 2008 Professor Mastaglia's diagnosis was that as a result of the motor vehicle accident the plaintiff suffered an aggravation of his previous neck injury, aggravation of the previous right shoulder and upper limb injury with C6/7 cervical nerve root involvement, the left upper limb injury (already mentioned) and a back injury with aggravation of the previous L5/S1 fusion and onset of thoracic back pain. The latter injury and symptomology is not relied upon by the plaintiff as part of his claim.
38 In cross-examination Professor Mastaglia accepted it was possible that the plaintiff's herniations demonstrated on the MRI scans were likely to get worse (degenerate) due to the progression of time and the plaintiff's heavy workload. He accepted his diagnosis and prognosis opinions are to a large extent based on the subjective history obtained from the plaintiff as to his symptomology and work circumstances.
39 In his report Professor Mastaglia expressed the opinion that the plaintiff had the following residual disabilities as a result of the motor vehicle accident injuries:
"(a) Neck (and associated headaches) 15% (10% being attributable to current accident)
(b) Right shoulder and upper limb 10% (5% being attributable to current accident)
(c) Left upper limb/hand 7.5% (all current accident)
(d) Back 10% (5% being attributable to current accident)
(e) Depression and associated psychological symptoms 20% (10% being attributable to current accident)."
40 In re-examination Professor Mastaglia was asked by counsel for the plaintiff whether progression of time or the trauma from the motor vehicle accident was more likely to have caused the adverse changes. Professor Mastaglia's response was "I think the trauma". As to the possibility of future deterioration, Professor Mastaglia said during cross-examination that this could occur spontaneously as a result of the normal activities of daily living and working.
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41 Professor Mastaglia's prognosis was that the plaintiff would continue to require the use of analgesic and anti-inflammatory medication, would need to be reviewed periodically by his general practitioner and might also need to be referred to a pain specialist. He thought there was considerable doubt that the plaintiff would be able to continue with his current work in the foreseeable future. He considered it important the plaintiff avoid activities involving any heavy lifting, repetitive bending, twisting or repetitive head turning. For these reasons he was of the opinion that the plaintiff's ability to compete in the open workforce would be substantially impaired.
Mr Michael Alexeeff
42 Mr Alexeeff is a consultant orthopaedic surgeon. He reviewed the plaintiff on 3 August 2007 and 1 August 2008 at the request of the defendant and prepared reports dated 9 August 2007 and 4 August 2008. On both occasions Mr Alexeeff obtained a history and examined the plaintiff.
43 Mr Alexeeff also reviewed the plaintiff's radiographic investigations, including the two MRI scans of the plaintiff's cervical spine obtained on 28 October 1998 and 28 March 2007.
44 In his 2007 report Mr Alexeeff said on "viewing the two scans, there did not appear to have been a significant interval change which likely meant that the changes were old. There certainly did not appear to be any neural impingement". In examination-in-chief he maintained this view: he "did not think there was much difference. Both scans showed evidence of degenerative disc disease ... there had previously been a small disc protrusion which was still present and I didn't think there was any significant neural impingement, meaning there's no pressure on any of the nerves, including the spinal cord". Referring to the plaintiff's documented pathology his opinion was that there was no particular difference: "It had not got worse and it had not got better".
45 During cross-examination Mr Alexeeff maintained there had not been any significant change disclosed by the second MRI scan where the disc had bulged. He noted:
"There's scar tissue around it holding it there. So there has to be a force disruptive enough to tear what's already established. In a significant event one would have expected a big disc protrusion."
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46 He did not agree with Professor Mastaglia's interpretation of the second MRI scan to the effect that at the C6/7 level there was nerve impingement. Mr Alexeeff said although the symptomology from nerve damage at the C7 level was variable it was responsible for the triceps reflex and also the motor segment of the long flexor and extensor muscles of the hand thereby causing effects in the hands. The plaintiff has not pleaded that he suffered any hand symptoms.
47 Mr Alexeeff said that degenerative change is due to wear and tear and that although "the accident may have aggravated changes that were there, it clearly wasn't responsible for them and there was no evidence there had been any significant bone injury". So the effect of the accident, in his opinion, was that it could only have been one of aggravation and of a soft tissue nature.
48 Mr Alexeeff expressed the opinion that because there had been no sign of neural involvement he assumed the symptomology was related to time and wear. In his opinion the accident "probably has had a minimal effect" and because it was a soft tissue injury it was "self-limiting". He did not regard the motor vehicle accident as "a basis for defining any residual disability". He expected the pathological effects in the plaintiff's soft tissue to have settled within a matter of weeks after the accident. He does not believe the plaintiff will require any further medical treatment as a result of the motor vehicle accident.
49 In cross-examination Mr Alexeeff was asked to explain what happens to degenerative change when it gets aggravated. His expert opinion was that the patient's symptomology and condition would revert to what it was before the new insult or trauma. Mr Alexeeff noted "curiously" that the plaintiff's functional capacity had in fact probably improved in the time interval between the two MRIs. He considered this was well documented. However, he accepted in cross-examination that the plaintiff's existing symptomology and the extent of his degenerative change "may have been aggravated" by the motor vehicle accident.
50 In cross-examination Mr Alexeeff opined that degeneration can also progress from trauma but that in his opinion although trauma can bring about premature change, the trauma would not affect the rate of degenerative change. He expressed the opinion that in the absence of a major injury "over a matter of weeks one would have expected symptoms from the accident to dissipate". In expressing this view, he took into account the speed of impact, the type of vehicle that was being driven, whether the plaintiff was seat-belted or not, what happened after the
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- accident, and what treatments were undertaken. Having regard to these matters he still maintained in cross-examination that "the effects of the accident were minimal".
51 In his report of 9 August 2007 Mr Alexeeff diagnosed the plaintiff as having:
(1) a degenerative spondylopathy cervical spine which he regarded as stable;
(2) a right shoulder rotator cuff disease with right AC joint degenerative arthropathy; and
(3) chronic left elbow lateral epicondylitis.
52 None of these symptoms he attributed to the motor vehicle accident, although he accepted it may have aggravated the plaintiff's pre-existing pathology. But because the plaintiff did not sustain any major musculo-skeletal injury he considered that the effects of such aggravation would likely to have been short-lived.
53 Mr Alexeeff regarded the plaintiff's future working capacity as in all probability being determined by the rate of the progression of the existing pre-accident pathology in his right shoulder. Mr Alexeeff in his report of 4 August 2008 confirmed his previous diagnosis and opinion but noted that the left elbow had settled, that the plaintiff now also suffered from mechanical low back pain (not pleaded by the plaintiff as being caused by the motor vehicle accident) and that otherwise the diagnoses remained unchanged. In summary, consistent with his oral evidence Mr Alexeeff said:
"It is possible that pre-existing cervical and lumbar degenerative spondylopathy was exacerbated with the natural history of such exacerbation being of a self-limiting nature. As such, I am hard pressed to define any residual disability as a result of the motor vehicle accident."
Dr Nicholas Toufexis
54 Dr Toufexis is the plaintiff's current general practitioner. He first saw the plaintiff on 13 November 2006, several months after the accident. He prepared seven reports at the request of the defendant, the first being dated 11 January 2007 and the last on 19 August 2008. During this period he obtained a medical history of the plaintiff's symptoms. In his report of 11 January 2007 he described the plaintiff's present condition as one of "ongoing pain in the right paraspinal cervical spine, with flare of pain to
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- the occipital area with the pain being up to 3 out of 10 in severity. The pain is constant with occasional flares to 7 out of 10 severity". He noted the plaintiff said at that time that he took occasional days off work when there was a flare up of his condition. His opinion at that time was that the plaintiff would be best served with an exercise program arranged by a physiotherapist. He noted the plaintiff had been self-referring to a physiotherapist for weekly sessions previously.
55 In his report of 19 August 2008 Dr Toufexis recorded the plaintiff's current complaints as cervico-genic headaches (three to four a week, though can last up to several days at each period of time), cervical pain (there most of the time and worse when moving his neck repetitively, i.e. turning), intermittent numbness of both his left and right upper limbs, affecting mainly from the wrist distally on both hands (the latter symptom only apparent since January 2008) and a depressed mood (fluctuating and related to chronic pain, financial difficulties and impending court case). Dr Toufexis' opinion is that the plaintiff sustained injuries of cervico-genic headaches, cervical spine soft tissue injury, mild ulna neuropathy bilaterally and an adjustment disorder, and that in his opinion the neck injuries may be the result of an aggravation of the plaintiff's previous work related injury on 25 August 1997.
56 Dr Toufexis suggested future treatment should consist of a structured exercise program subject to his work commitments, flare up of symptomology and the use of antidepressants. He also considered the plaintiff may need to see a neurosurgeon/rheumatologist or a pain specialist for further treatment. He estimated the plaintiff's cost of further treatment as consisting of paracetamol ($10 per month), exercise program ($700), psychiatry review every two months ($250 each session for two years) and general practitioner review monthly ($55 per session) and bi-monthly antidepressant medication for two years ($50 per month).
57 In examination-in-chief Dr Toufexis confirmed that when he reviewed the plaintiff on 30 May 2007 he complained of tingling in his right hand (which he had not mentioned much previously) and in particular that over the previous month he had, for the first time complained of, some minor symptoms on the left side. Dr Toufexis attributed the left elbow complaint to a local cause, perhaps a pressure effect at the wrist or the elbow, but not related to the motor vehicle accident. In cross-examination Dr Toufexis confirmed he had prescribed the plaintiff Prozac (fluoxetine) although he was unsure how long this would continue because the plaintiff has "always stated that he is not much of a pill taker". Dr Toufexis confirmed the plaintiff's recent mood
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- had certainly been more agitated and he had been more angry and depressed as the trial date approached.
Dr Martyn Flahive
58 Dr Flahive is a consultant occupational physician. He reviewed the plaintiff on 14 April 2008 and 1 August 2008 and prepared two reports for the defendant dated 15 April 2008 and 7 August 2008. Dr Flahive obtained a history, reviewed various investigations and examined the plaintiff.
59 In his second report Dr Flahive noted the plaintiff continued to report constant headaches on both sides of his temple and around the base of his skull for which he took analgesic medication. He noted there was continued complaint of neck pain and tenseness in the muscles around the back of the neck, over the shoulders and into the middle of the back and under the arms. The plaintiff also reported numbness of his right arm in addition to an aching and stabbing pain in his right shoulder. He said he also had symptoms in his left arm and has constant numbness over the little finger and ulna border of the left hand, almost the same as the right hand. He reported his whole arm becomes numb three to four times a week, but said it comes right when he rubs it.
60 Dr Flahive said in his opinion the plaintiff:
"… may well have sustained a mild soft tissue strain injury to his neck as a result of the subject motor vehicle crash. However, I would have expected the effects of this crash to have been fairly minor and the effects to have been relatively temporary … therefore I remain of the opinion that [the plaintiff] does not have any residual disability relating to his 28 April 2006 motor vehicle crash."
61 As to the 28 March 2007 MRI scan Dr Flahive said in examination-in-chief that:
"This showed some disease which is expected for his age. And there was a C5/6 disc protrusion, which was notably more conspicuous than on the previous examination in addition to some further changes at C6/7 … I didn't think that the disc protrusion at the C5/6 level was significant; there was no evidence that it had significantly increased in time. It is probably more related to the age related changes. And
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- symptomatically, I didn't think it would be relevant, given that there was no evidence of significant nerve re-impingement."
62 In cross-examination he elaborated that there was at C6/7 some mild narrowing in the posterior elements but that there was "no evidence of the disc impinging on the nerve root" and so he felt that, on balance, it was unlikely to be the cause of the plaintiff's symptoms, even though he agreed with Professor Mastaglia's opinion that there had been some narrowing of the foramen on the right side. Dr Flahive maintained the disc degeneration was an "age related constitutional issue" and that disc degeneration was a continuous process which would continue over time as part of the normal ageing related process. He agreed the motor vehicle accident possibly exacerbated the plaintiff's existing symptomology but said the effects would not have been substantial in comparison to the normal age related degenerative change and the result of the heavy lifting undertaken by the plaintiff in the course of his work duties.
63 In summary, Dr Flahive did not accept the plaintiff's left elbow ulna nerve irritation could be related to the motor vehicle accident. He attributed it to the heavy manual labour work that the plaintiff had done since the accident.
Dr S Baskaranathan
64 Dr Baskaranathan is a consultant rheumatologist and physician in pain medicine. He assessed the plaintiff at the request of Dr Toufexis and prepared medical reports dated 14 March 2007, 31 May 2007 and 18 August 2008.
65 In his report of 14 March 2007 Dr Baskaranathan noted his review of the plaintiff's cervical spine x-rays revealed discogenic degenerative changes at C5/6 and C6/7 level. He noted the changes were somewhat milder at the C4/5 level. In his report to the plaintiff's solicitors dated 31 May 2007 Dr Baskaranathan considered that the plaintiff had suffered a soft tissue injury of a musculo-ligamentous nature to his cervico-thoracic spine which aggravated pre-existing degenerative disease which he thought was confirmed by the MRI examination.
66 His neurological examination of the plaintiff revealed some weakness in the right upper limb, particularly resisted extension at the wrist, raising the possibility of C7 nerve root involvement. In May 2007 he regarded the plaintiff as only partially fit for work. In his report of 18 August 2008 Dr Baskaranathan noted the plaintiff recounted ongoing neck ache, back ache, bilateral arm ache and discomfort in the right
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- sternoclavicular joint. He also noted the plaintiff complained of right arm numbness and tingling which predated the motor vehicle accident but was aggravated and continued unchanged. He also noted the plaintiff complained of left arm pins and needles which resulted in his left forearm and hand "going dead" which occurred each night and could wake him up at least twice. Finally he noted complaints of low back pain and early morning stiffness and symptoms of dysphasia (sic).
67 In his opinion the plaintiff suffered an aggravation of pre-existing degenerative disease in the cervico-thoracic spine and an aggravation of his previous right shoulder and upper limb injury. He also referred to aggravation of the plaintiff's L5/S1 fusion leading to mechanical low back pain (not pleaded or relied upon by the plaintiff) and a significant psychological component to his symptoms and disability. He considers the plaintiff is "significantly incapacitated with respect to his work as a taxi truck operator" but that he has a capacity for a light type of work in a more sedentary occupation however it is likely he will be required to retire prematurely from the workforce "as a result of the accident injuries". Dr Baskaranathan considered the plaintiff had sustained a 10 per cent loss of the full efficient use of the cervical spine and an equivalent loss of the full efficient use of his thoraco-lumbar spine (the latter is not relevant to the claim) and a 5 per cent loss of the full efficient use of his left upper limb and hand. He classified the plaintiff's neck, back and upper limb symptoms as of "moderate severity" and the symptoms of his left upper limb as of "mild severity".
Dr Andrew Marsden
68 Dr Marsden is an occupational physician who reviewed the plaintiff in relation to his work related injury on 25 August 1997. He also reviewed the plaintiff on 30 June 2008 after the motor vehicle accident.
69 Dr Marsden considered the plaintiff suffered non-specific soft tissue sprain injuries to his cervical spine and lumbosacral spine and associated soft tissue structures, and a right shoulder disruption injury affecting the sternoclavicular joint as a result of his work related injury in 1997. These injuries and his ongoing symptomology caused Dr Marsden in his report of 6 July 2000 to express the opinion that the plaintiff had suffered a 5 per cent permanent loss of efficient function of his right arm at or above the elbow under item 13 to Sch II of the Workers Compensation Act and a 5 per cent loss of efficient function of his cervical spine and associated structures under item 36B to Sch II. He also considered he had a 24 per cent loss of efficient function of his lumbosacral spine with a fusion at one
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- level and that in combination he was "permanently unfit to work as a truck driver, forklift driver or furniture removalist".
70 At that time Dr Marsden expressed the opinion that the plaintiff had reached the stage where he should start to look at alternative working roles which did not involve heavy lifting or carrying. In his opinion it was important the plaintiff be able to sit, stand and walk within his own reasonable time frame. He did not, then, regard him as totally and permanently incapacitated from all forms of work.
71 Dr Marsden was therefore surprised when he reviewed the plaintiff on 30 June 2008 in relation to the motor vehicle accident. He did not regard the left arm and hand symptoms, associated with the ulna nerve, to be related to the motor vehicle accident. Instead in his opinion it was more likely to be some form of ulna nerve neuropraxia that truck operators get from leaning their right arm on the door rail. On review he considered the plaintiff had a "very negative outlook" common to plaintiffs approaching a trial.
72 In summary Dr Marsden was of the opinion that the plaintiff suffered:
"… some soft tissue injury aggravating his previous neck and arm problems, and to some extent aggravating his lower back, but I would not be convinced that he has significant problems now in either area directly related to this motor vehicle accident. He has similar percentage loss of efficient function as in my previous 2001 report apart from the mild problem associated with his left hand now. I simply do not understand the whole arm numbness that he describes in either arm, and it doesn't have a medical or neurological basis. I have recommended he continues to work in his truck delivery role and negotiate some form of settlement of his claim. He is fit for full-time work in this area with appropriate sensible care with his manual handling and general operating of the truck."
73 In his oral evidence Dr Marsden did not consider the plaintiff was suffering from any ongoing physical effects from the motor vehicle accident and said that he could continue performing his current work which he had performed for about six years.
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Dr Ross Goodheart
74 Dr Goodheart, a consultant neurologist, reviewed the plaintiff on 9 July 2007 after he was referred by his general practitioner for further evaluation of his neurological symptoms. He also saw the plaintiff on 5 February 2008 and prepared a report on the same day. In his opinion the plaintiff "sustained a significant exacerbation of his pre-existing cervical and thoracolumbar symptoms" as a result of the motor vehicle accident and remains "significantly impaired in relation to his pre-accident occupation as a taxi truck operator". In his opinion the plaintiff should be restricted to duties of a light nature for the foreseeable future and that as a result of the motor vehicle accident he has "sustained a permanent 10 per cent loss of the full efficient function of the cervical spine" which takes into account his accompanying soft tissue symptoms in the upper limbs and accompanying muscle contraction headaches. This opinion was also expressed on the basis that it took into account the plaintiff's pre-existing cervical disability from his work related injury in 1997.
75 In cross-examination Dr Goodheart confirmed he was not able to find a significant bone injury that required intervention and he did not find a significant nerve irritation that would require specific intervention. Notwithstanding he was asked on three occasions, Dr Goodheart did not provide a direct response to the defendant's counsel's question of whether the left arm symptoms could be related to the motor vehicle accident in view of the time which had elapsed after the accident and before the plaintiff raised the complaint. It was apparent from Dr Goodheart's evidence in cross-examination that he relied heavily on what the plaintiff had told him about his symptoms and work capacity to form his opinion.
Mr Andrew Harper
76 Mr Harper is an occupational physician who reviewed the plaintiff on 12 December 2007 and 14 May 2008. In relation to the plaintiff's MRI scans Dr Harper noted in his report of 12 December 2007:
"An MRI of the cervical spine (28/03/07) reported degenerative disc disease at the C5/6 and C6/7 level. There was a small central disc protrusion at C5/6 which was reported to be more conspicuous than on previous examination. Changes at the C6/7 level appeared stable. Examination of the C2-C5 levels was normal. The disc protrusion at C5/6 was not reported to be causing nerve root impingement and the spinal canal dimensions remained within normal limits. The moderate disc
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- bulge at C6/7 extended into the foramina bilaterally and caused mild narrowing on the right, but there was no convincing evidence of nerve root impingement."
77 In his report of 15 May 2008 Dr Harper expressed the opinion that the plaintiff had suffered a mild to moderate residual disability of the cervical spine with mild disability of the left arm attributable to the motor vehicle accident. He attributed symptoms of depression to the motor vehicle accident. He described the initial injuries as mild.
78 In his opinion the plaintiff's work capacity would remain compromised for the foreseeable future and he considered the plaintiff was exceeding his current work capacity as a taxi truck driver because the plaintiff was incapacitated for manual labour and occupations such as removalist, mechanic or truck driver. He said he was capable of doing some driving but felt he would have difficulty working full-time in retail due to reduced tolerance of standing. He did not consider the motor vehicle accident itself would result in a need for the plaintiff to retire from a non-manual occupation. It was likely, being superimposed upon the pre-existing neck injury, that it would result in premature retirement from manual work. Dr Harper considered that the plaintiff would require follow-up with his family doctor ($800) and he may require psychological counselling to assist in adjustment to his disability ($2,000).
79 In cross-examination Dr Harper said he would "be looking for something other than the direct effect of the motor vehicle accident" if the period of no complaint following the accident in relation to the left arm symptoms was about 12 months. In his opinion the plaintiff's present symptoms were originally caused by the work accident but they have been aggravated by the car accident and therefore he did not attribute the current symptoms exclusively to the car accident. Dr Harper's opinion on the plaintiff's work capacity was heavily dependent on the plaintiff's description to him of the significant manual work he was doing prior to the accident six days a week and his description post-accident of the less hours on average and the change in his work capacity. He accepted he was relied on what the plaintiff had told him in this regard to form his opinion.
80 In cross-examination Dr Harper confirmed he had not identified aspects of the MRI 28 March 2007 scan which made him think that it was materially different from the earlier scan. He also expressed surprise that the plaintiff had been able to get back to work as actively as he reported following his work related injuries. Dr Harper said his "recovery was
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- impressive and I would not have expected him to have got back to such active work from the reports that I had read regarding the work accident".
81 In cross-examination Dr Harper said the work injury had left the plaintiff with a permanent injury to his neck which had increased his vulnerability to any further injury, and reduced his tolerance of physical work and his ability to endure or sustain physically challenging situations such as a rear end motor vehicle accident. In his opinion the plaintiff's neck symptoms were due to his bad neck which had been made more painful by the car accident.
Dr Nick De Felice
82 Dr De Felice is a consultant psychiatrist who reviewed the plaintiff at the request of the plaintiff's general practitioner on 1 May 2008. He obtained a detailed history from the plaintiff including that he could not do the lawn mowing or gardening as he did before the motor vehicle accident because it aggravated his pain, and that since the accident he would be sore after a half hour drive. Dr De Felice noted the plaintiff said he "felt quite depressed and that this got bad for four or five months up to a few months ago, though he was still very low".
83 Dr De Felice in his report of 1 May 2008 noted:
"I concluded that Mr Sutton experienced a number of depressive and anxiety symptoms in response to the stressor of his pain and limitations subsequent to the April 2006 MVA, and the associated stressors including being engaged in the medico-legal process and the financial concerns. I think that these symptoms are best labelled as an adjustment disorder with depressed and anxious mood. I note Mr Sutton's history of major depression but to date, although his depressive and anxiety symptoms have been considerable, I don't think they have yet reached the threshold for the diagnosis of a relapse of major depression."
84 Dr De Felice was also of the opinion that the plaintiff's psychiatric symptoms had not substantially affected his work capacity to date and that he remained from a psychiatric view point able to work on a full-time basis. He did not anticipate the plaintiff's future work capacity would be compromised by psychiatric symptoms referable to the motor vehicle accident. Similarly he did not think the plaintiff would need to retire prematurely from the workforce as a result of psychiatric symptoms subsequent to the motor vehicle accident. He "very strongly encouraged
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- finalisation as soon as possible to remove the stressor of the medico-legal process" on the plaintiff.
85 Dr De Felice was aware of the plaintiff's substantial improvement following settlement of his work related injury claim and considered this highlighted the plaintiff's degree of resilience and that this led to a more favourable prognosis. Taking these factors into account, he expressed the opinion that the plaintiff was likely to be left with a residual psychiatric disability in the order of 5 per cent from the motor vehicle accident which was likely to persist for at least a further two to three years. However if his pain was to fully resolve it is likely, according to Dr De Felice, that his psychiatric symptoms would "ameliorate substantially, and he would be left with no residual psychiatric disability". On the other hand, according to Dr De Felice, it was also possible that if his pain and limitations were to persist that this might perpetuate depressive symptoms and they could worsen.
86 In the circumstances Dr De Felice considered the plaintiff's current psychiatric symptoms represented a mild adjustment disorder. He thought the plaintiff was likely to need to continue antidepressive medication possibly for two to three years and he noted the cost of fluvoxamine 200 mg nocte on a private script is in the order of $60 per month. He also considered that the plaintiff might benefit from psychological treatment aimed at helping him with his symptoms of anxiety and depression and in the management of his chronic pain. He considered eight to ten appointments with a clinical psychologist might be necessary ($185 per appointment). He also considered that the plaintiff would require monthly appointments for 18 to 24 months with his general practitioner. Finally, subject to the plaintiff's prognosis, he said the plaintiff might need access to a consultant psychiatrist for 12 months then bimonthly appointments for a further 12 to 18 months depending on progress (cost of such appointments about $205-$275).
Findings of fact
87 On 25 August 1997 the plaintiff was injured in the course of his employment as a furniture removalist. The plaintiff injured his neck, right shoulder area and low back and as a consequence suffered a psychiatric injury. On 15 May 2001 Macknay DCJ in Sutton v Crestworld Pty Ltdt/as Medcalf Transport [2001] WADC 107 awarded the plaintiff damages in the sum of $484,735. In his reasons for decision Macknay DCJ said, relevantly:
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- "The plaintiff does have neck symptoms, although such are not on the evidence due to any disc protrusion, or sufficient to prevent him working, in due course at least. [159]
and,
…the plaintiff does have some restriction of use of the right shoulder and arm, and some symptoms there, those things should not prevent him from engaging in any gainful employment, although restricting the forms of employment open to him." [165]
88 I also note Macknay DCJ found that in:
"… assessing loss of economic capacity it must be recognised that the plaintiff was engaged in what was effectively manual labour at the time of the accident, and that he has undeniably totally lost the capacity to do his pre-accident work, and in fact has lost the capacity to be employed in any of the jobs that he had been in over the 15 or so years that he had been in the workforce prior to the accident." [168]
89 His Honour found that the plaintiff had been left with permanent disabilities as a result of his injuries from the work related accident and that at the end of an 18 month period the plaintiff should be regarded as having a retained earning capacity of 35 per cent.
90 On 22 January 2002 the plaintiff purchased a Mitsubishi Canter truck and commenced operating a business called "Sutty's Transport". Initially he worked for Quick Swift. He then commenced work with CTI Taxi Trucks doing deliveries which included a tyre run involving loading and unloading tyres manually and also trips to mine sites in the Kalgoorlie and Laverton area.
91 During this period of employment, which was after settlement of his previous claim and before the motor vehicle accident, the plaintiff was not totally asymptomatic and continued to experience some ongoing lower back and right upper limb symptoms due to his work injury. He occasionally took time off work due to his symptoms. However, the plaintiff completely ceased the medication regime that he was on at the time of the trial about six months after the trial.
92 On 28 April 2006 at about 10.30am the plaintiff was injured as a result a motor vehicle accident. The defendant's vehicle rear-ended the
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- plaintiff's truck as the plaintiff was slowing down on Canning Highway, Como on the approach to the Kwinana Freeway entry. The plaintiff was looking to his right to give way to oncoming traffic. The plaintiff's vehicle was not stationary at the time of the collision.
93 As a result of the collision the defendant's vehicle was substantially damaged. The rear of the plaintiff's truck suffered $900 damage. The plaintiff continued his work deliveries and did two further jobs in Bibra Lake before finishing work. That evening the plaintiff began to experience the onset of some symptoms as a result of injuries sustained in the motor vehicle accident.
94 Within the next few days the plaintiff attended a general practitioner and was prescribed aspirin and referred for physiotherapy. He was diagnosed as having suffered a soft tissue injury with symptoms of pain and stiffness in the neck, shoulders and lower back. After a period of time the plaintiff also began to experience headaches, sometimes of a migrainous nature.
95 As a result of a continuation of these symptoms from the motor vehicle accident the plaintiff experienced some difficulty in working full-time and lost some employment opportunities. This affected the distribution of work to him and the plaintiff decided to change employer. He then started contracting to Foxnet because he believed he was not being given sufficient work. The changeover was also made according to the plaintiff to reduce the physical nature of the type of work he was doing. It appears he made the change in February 2007 (p 107 – plaintiff's book of work records).
96 The plaintiff continued to operate his business and work for Foxnet, although his working hours were reduced for short periods due to headaches and neck pain. The plaintiff also experienced low back pain, before and after the motor vehicle accident, which was exacerbated by his work duties and the hours worked. This affected the plaintiff's work capacity but is not part of his pleaded claim as being attributable to the motor vehicle accident. Nevertheless, to the extent that the lower back symptoms have affected the plaintiff's ability to work this must be taken into account when considering the extent of the plaintiff's claimed incapacity.
97 Since the accident, the plaintiff has since the accident reported symptoms which he attributes to the motor vehicle accident particularly in respect of headaches, neck pain and right shoulder and upper limb pain.
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98 In addition, in about May 2007 the plaintiff made a complaint of left arm and hand symptoms and impairment. I have referred above to the differing medical opinions in respect of the plaintiff's complaint in this regard. Professor Mastagalia was initially of the view that this symptom was due to the motor vehicle accident based on the fact that he was told its onset occurred within weeks of the accident. However the medical record shows the plaintiff did not raise this symptom until May 2007. I am not persuaded on balance of probabilities that the plaintiff's left arm and hand symptomology can be attributed to, or is in any way related to, the injuries suffered as a result of the motor vehicle accident.
99 I am not persuaded by the medical opinion provided to me, that the plaintiff, as a result of the motor vehicle accident, has suffered an injury or further injury to his cervical spine of a magnitude which caused a further disc protrusion or herniation. I prefer the medical evidence that the MRI scan of the plaintiff's cervical spine of 28 March 2007 does not disclose any or any significant neural impingement, meaning there is no pressure on any of the nerves, including the spinal cord. Accordingly, I find that the evidence on the 2007 MRI scan shows "as expected" degeneration of the plaintiff's cervical spine consistent with his 1997 scan and the injuries received at that time from the work related accident. I prefer the medical evidence that the 2007 MRI scan does not disclose any additional or resultant damage to the plaintiff's cervical spine arising out of the motor vehicle accident.
100 The second MRI scan discloses the continuation of the plaintiff's degeneration which is to be expected in any person as a consequence of normal wear and tear. This had progressed as expected since the work related injury in 1997, and having regard to the heavy manual work the plaintiff has done since his work related accident and also after the motor vehicle accident itself, particularly when regard is had to the extent of his injuries in 1997. It is to the plaintiff's credit that he returned to the work force after his 1997 injury as soon as he did and he is fortunate that he has been able to work to the extent he has. However, as Dr Alexeeff said, the plaintiff must use his common sense and work with in the physical limitations and restraints he has as a result of his work related injury and the degeneration of his spine. In my view it is likely the plaintiff has contributed to the degeneration as a result of the heavy work load he has undertaken in the course of his employment since the finalisation of his work injury claim.
101 I am persuaded that there is an element of symptomology which the plaintiff suffers and will continue to experience which is a direct result of
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- the normal degenerative process which in his case has been affected by his work related injury. I am not persuaded that there is any increased degeneration arising out of the soft tissue injury suffered by the plaintiff as a result of the motor vehicle accident. I prefer the expert medical evidence to the effect that within a short period of time the soft tissue injury which the plaintiff suffered would have settled and his cervical spine returned to the state it was immediately prior to the accident. There is not, in my opinion, evidence which suggests on balance that there has been any bony injury or soft tissue injury to the extent that the plaintiff's pre-existing pathology has been irreversibly affected.
102 The plaintiff suffered some psychological injury as a consequence of the symptoms from the motor vehicle accident. I accept the evidence of Dr De Felice to the effect that the plaintiff has experienced some depressive and anxiety symptoms caused by the stresses and pain, and limitations subsequent to the motor vehicle accident, which is labelled as an adjustment disorder with depressed and anxious mood. From a psychiatric view point the plaintiff remains able to work on a full-time basis, but I would make some allowance for next six months in view of the medication required in this regard.
103 I also accept Dr De Felice's opinion that the plaintiff's future work capacity is unlikely to be compromised by future psychiatric symptoms referable to the motor vehicle accident or that he may need to retire prematurely from the workforce as a result. In my opinion the plaintiff's current psychiatric symptoms associated with these proceedings and his claim will ameliorate substantially in due course. In my view he will be left with no residual psychiatric disability which can be attributed to the motor vehicle accident.
104 It has not been established that the plaintiff's earnings have decreased since commencing work with Foxnet. I accept the plaintiff made the change of employer for sensible reasons and that these related, in part to his work capacity. Foxnet offers work which is less physically demanding and which is obviously more suited to the plaintiff given his pre-accident work capacity and physical condition. I do not accept that the change to Foxnet was consequent on or attributable to any injuries suffered as a result of the motor vehicle accident. I am not persuaded that the plaintiff has suffered any demonstrable loss as a result of his change to Foxnet which can be the subject of damages to be paid by the defendant. I accept that the costs of doing business in the taxi truck industry in recent times have made the plaintiff's business less profitable. The plaintiff's
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- financial stress associated with the conduct of his business cannot be laid at the feet of the defendant.
105 As a consequence of the motor vehicle accident the plaintiff suffered a soft tissue injury to his cervical spine and neck area. He did not sustain any major musculo-skeletal (bony) injury. I accept that the plaintiff's pre-existing cervical (and lumbar) degenerative spondylopathy was exacerbated as a result of injuries sustained in the motor vehicle accident. However, I find the injuries and symptomology attributable to the motor vehicle accident dissipated within six to twelve months and that thereafter any symptomology of this nature is unrelated to the motor vehicle accident.
106 In my opinion the plaintiff's right sternoclavicular joint and upper arm was also aggravated as a result of the motor vehicle accident.
107 In my view subject to resolution of the plaintiff's psychological injury within a period (I would allow six months), the plaintiff's ability to perform work of the nature he was undertaking immediately prior to the motor vehicle accident will be the same, subject to any ongoing degenerative change which is unrelated to the motor vehicle accident. I am not satisfied that the plaintiff's future working life will be affected or shortened as a consequence of any injury suffered as a result of the motor vehicle accident or as a result of the short term exacerbation of the plaintiff's pre-accident injuries.
108 In summary, the plaintiff sustained an aggravation of his previous work related injury from 1997 as a result of the motor vehicle accident on 28 April 2006. The plaintiff suffered, in particular, an exacerbation of his cervical spine and neck injuries, his previous right shoulder and upper limb injury and aggravation of his previous L5/S1 fusion back injury with onset of thoracic back pain (the latter not claimed by the plaintiff). However, such aggravation and exacerbation in respect of the claimed injuries ceased within six to twelve months.
109 I am not persuaded that the motor vehicle accident is the cause of any ongoing residual disability to the plaintiff's neck or right shoulder and upper limb. The injuries were mild, and apart from the psychiatric injury which resulted, have now abated.
110 The plaintiff contends that the defendant's approach to the issues is based on an approach which confuses scientific or medical causation with legal causation and relies on, inter alia, March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. I accept there only has to be a material
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- contribution as submitted by plaintiff's counsel but this case requires a factual determination of the extent of the plaintiff's injuries as a result of the motor vehicle accident and the resultant effect on the plaintiff. It is trite law that a tortfeasor must of course take his victim as he finds him: Watts v Rake (1960) 108 CLR 158. But I do not accept that the plaintiff has suffered more than a mild aggravation of the pre-existing injury of his cervical spine and right upper arm as a result of the accident. In my opinion, apart from the adjustment disorder, he has no current or ongoing symptomology that he did not have prior to the accident or which would not have resulted in any event from normal degenerative processes.
Plaintiff's claim general damages
111 The award of damages under this head is governed by the requirements of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. This section imposes limitations upon an award of damages for non-pecuniary loss and applies to the present case. The maximum amount of damages that may be awarded for non-pecuniary loss at present, and with effect from 1 July 2008, is $309,000. This amount may be awarded "only in a most extreme case". The proper approach and methodology required to be taken by the Court when applying s 3C of the Act is set out in Den Hoedt v Barwick [2006] WASCA 196. In that case their Honours adopted the approach described by Gleeson CJ, Kirby P and Meagher JA in Southgate v Waterford (1990) 21 NSWLR 427 at 440-441.
112 Applying this approach and the principles I am required to follow, in my opinion the plaintiff's injuries and symptoms can not be assessed at more than 8.5 per cent of a most extreme case, for example quadriplegia, which is clearly a most extreme case. In making my assessment I have considered the various heads of the definition of "non-pecuniary loss" in s 3C of the Act, and the plaintiff's evidence in this regard, and in particular the mental harm. This equates to $26,265. Section 3C(5) provides that if the amount of non-pecuniary loss is assessed to be more than Amount B but not more than Amount C, the amount of damages that is to be awarded is the excess of the amount so assessed over Amount B. The amount of Amount B is prescribed to be $15,500 and Amount C, $47,000. Therefore the Act fixes the amount of the plaintiff's award of damages for non-pecuniary loss at $10,765.
Past economic loss and interest
113 The plaintiff's amended schedule of loss dated 23 July 2008 contends that the plaintiff had to reduce his hours as a result of his accident injuries and as a result lost the opportunity to obtain business. The amount
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- claimed on a global basis is $60,000. The plaintiff's book of financial records (Exhibit 1) contains the plaintiff's tax returns which on analysis disclose the following information.
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114 As stated above, in my opinion, the aggravation and exacerbation of the plaintiff's pre-existing symptomology for the claimed injuries ceased within six to twelve months of the motor vehicle accident. I accept the plaintiff lost some time off work due to his accident related injuries although no precise records have been produced by the plaintiff in this regard. I accept that this may have affected his ability to win work opportunities from his employer at the relevant time. Some allowance must therefore be made to compensate the plaintiff for this loss. In my view, an appropriate award having regard to the plaintiff's financial records and the plaintiff's invoice average per fortnight (see the defendant's summary of the plaintiff's transport invoices dated August 2008) is $12,000 which equates to about two months off work on a full-time basis.
Diminished perimeter of employment – future loss of earning capacity
115 For the reasons stated above I am of the opinion that the plaintiff is not entitled to an award of damages for the claimed injuries except for the adjustment disorder with depressed and anxious mood. In my view, as the plaintiff if likely to continue on mediation for this psychiatric illness (although the medical evidence is that this in itself should not prevent him from being able to work) there is on balance the real possibility that he may in the next six months be unable to work due to this injury and the ongoing medication required to be taken. I would allow $3,000 (about two weeks' gross takings).
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116 I do not accept the plaintiff's written submissions that he is "no longer able to engage in activities which involve repetitive bending and lifting, prolonged sitting or standing … and use of the cervical spine, right shoulder …" as a result of injuries caused by the accident or at all.
117 The plaintiff has not persuaded me that he has suffered any future loss of earning capacity which can be attributed to his motor vehicle accident injuries. See Medlin v State Government Insurance Commission (1995) 182 CLR 1. In my view the plaintiff has a strong work ethic, which is of course to his credit, and he has the capacity to continue to work in his pre-accident job (if that is his desire) subject to the physical limitations he has a result of his work related accident.
Future medical treatment
118 The plaintiff claims a global amount of $20,000. This sum is based on the future "physiotherapy, acupuncture, general practitioner visits and continued consumption of analgesic and anti-inflammatory medication". In my view the plaintiff is entitled to an award which reflects the need for medication concerning the adjustment disorder for a period of about six months. An appropriate award is $2,000.
Plaintiff's special damages
119 The plaintiff filed a list of special damages dated 28 August 2008. The total amount claimed is $3,428.10 comprising expenditure on medication, physiotherapy, consulting Dr Goodheart ($1,065), MRI scan of 28 March 2007 ($1,195), and medical consultations with Dr Baskaranathan ($688) and Dr Toufexis ($324).
120 The amount of the expenditure is not disputed but the defendant does not admit liability to pay on the basis that the claimed amounts do not relate to injuries suffered as a result of the motor vehicle accident.
121 I am persuaded that the plaintiff is entitled to an award in respect of the special damages claimed on the basis that they were incurred and are consequent upon investigations arising out of injuries suffered from the motor vehicle accident. In my opinion they are reasonable and reflect treatment arising out of the exacerbation of the plaintiff's pre-existing work related injury. I would allow the claimed amount, $3,428.10.
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Conclusion
122 I would assess the plaintiff's damages as follows:
General damages $10,765.00
Past economic loss and interest $12,000.00
Future loss of earning capacity $3,000.00
Future medical treatment $2,000.00
Special damages $3,428.10
Total $31,193.10
123 The plaintiff is entitled to judgment against the defendant in the sum of $31,193.10.
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