| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TAN -v- GREENAL [2002] WADC 153 CORAM : MACKNAY DCJ HEARD : 4 & 5 JUNE 2002 DELIVERED : 25 JULY 2002 FILE NO/S : CIV 880 of 2001 BETWEEN : MARK JEREMIAH TAN Plaintiff
AND
ROBERT DONALD GREENAL
Defendant
Catchwords: Damage - Assessment - Plaintiff 22 year old sales consultant at time of accident - multiple soft tissue injuries, broken rib and post traumatic stress disorder - Total award of damages $38,349
Legislation: Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3C
Result: Plaintiff entitled to judgment for $38,349
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Representation:
Counsel:
Plaintiff : Mr T L Lampropolous
Defendant : Mr P R Momber
Solicitors:
Plaintiff : Simon Walters
Defendant : P R Momber
Case(s) referred to in judgment(s):
Kandic v Kandic, unreported; DCt of WA; Library No 5208; 20 December 1996
Case(s) also cited:
Nil
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Introduction 1 The plaintiff is aged 26 years, having been born on 15 January 1976. 2 On 13 December 1998 the plaintiff, then a 22 year old telephone sales consultant and part-time university student, claims to have been injured when a car of which he was the driver was involved in a collision with another motor vehicle then being driven by the defendant. 3 A passenger in the plaintiff's vehicle, his 16 year old male cousin, was killed in the accident. 4 The accident caused injuries alleged by the plaintiff include soft tissue injuries to the cervical thoracic and lumbar spine and the chest, a fractured rib, abrasions or lacerations and nervous shock, and he claims damages based on an allegation of negligence on the part of the defendant. 5 The defendant admits that he was negligent but denies that the plaintiff was injured or is entitled to the damage claimed or any damage.
Plaintiff 6 The plaintiff was born in Singapore and came to live in this country in 1987, at age 11 years, with his mother and three sisters, after his father had died. 7 The plaintiff completed his secondary education at the end of 1993 and in 1994 commenced study for a bachelor of commerce degree at Curtin University. 8 The plaintiff said that he was enrolled as a full time student in the 1995 academic year, but in 1996 studied part-time and also did some casual, part-time work of various kinds. 9 In September 1998 the plaintiff said he began full time work as a sales consultant with Tele Choice, but continued to study part-time. 10 The plaintiff initially said that he had one year of part-time study remaining to complete his degree at the end of the 1998 academic year, and was thus in a position to attain his degree at the end of 1999. 11 Although his degree on completion would qualify him to be a valuer the plaintiff said that he had not wished to work as such but rather had
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intended to pursue a career in shopping centre and other asset management, and had planned to seek employment of that kind in the eastern states, most probably Sydney, from where the institutional funds chiefly operated. 12 His departure would likely have been in mid 2000, the plaintiff said. 13 As stated, the accident occurred on 13 December 1998. 14 The plaintiff said that he had swerved to avoid the defendant's oncoming vehicle, which was skidding down hill into his lane, but his vehicle was still struck, to the front and left hand side. 15 As a result of the collision the plaintiff said that his head hit the steering wheel, his lower back was twisted, he sustained a very sore chest and was later found to have a cracked rib, and he received cuts to his left arm, left upper leg, head and face. Glass also penetrated the skin of his face. 16 After the accident the plaintiff said that he saw his cousin, then still conscious, was bleeding from the head, but although an ambulance arrived he was not able to be removed from the plaintiff's vehicle until cutting equipment was brought up. 17 The plaintiff remained at the scene for over 30 minutes. 18 Both the plaintiff and his cousin were taken to the local hospital in an ambulance, the plaintiff said, but his cousin was then taken on to Royal Perth Hospital. 19 The plaintiff said that he remained in hospital overnight and in the early hours of the following morning he was told by his uncle that his cousin had died. 20 His cousin had been like a younger brother to him, the plaintiff said. 21 After the accident the plaintiff travelled to Singapore to attend at and participate in his cousin's funeral, he said, and remained up there for two or three weeks, in the course of that time seeing two doctors, one of whom ascertained that he had a broken rib, whilst he also received muscle relaxation therapy and was given Valium as he had not been sleeping. 22 Prior to going to Singapore the plaintiff had seen a general practitioner, Dr Kulaendra.
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23 On his return and attendance on his employer the plaintiff said that he was informed his job had been lost as it had been necessary to replace him over the Christmas period.
24 As he did not have a job the plaintiff said that he returned to full time study for the first semester of the 1999 academic year. 25 Although he initially said that he had not been able to cope with that the plaintiff later said that he had achieved passes in all four units studied, although one had been a conditional pass. 26 The plaintiff said that he continued to think about the accident and began to regularly smoke or eat cannabis so as to "numb things". 27 He also lost interest in meeting people and forming new relationships, was habitually in a "foul mood", and experienced morbid thoughts and palpitations, the plaintiff said. 28 Dr Kulaendra referred him to a psychiatrist, Dr De Tissera and he had attended on that doctor, the plaintiff said, but had not followed the treatment up as he had not been able to see the benefit of it and did not then wish to discuss his thoughts. 29 One of the units completed at the end of the first semester was property management, the plaintiff said, and he then applied for and obtained employment with a property consultant, Warren Tucker. 30 That employment, which commenced in August 1999, involved both leasing and assistance with a feasibility study then being carried out, and the plaintiff was seconded to the Fini Group for the latter purpose, he said. 31 The plaintiff continued with his study on a part-time basis during the second semester in 1999, he said, and attempted two units, with a pass in one. 32 Although the plaintiff said that he then had six units to complete his degree at the end of 1999, he later said that his studies were suspended in 2000, or that he attempted two units and passed one and in 2001 studied only one unit part-time, which was sufficient for him to complete his degree at the end of the first semester. 33 In the meantime, and in March 2000 the plaintiff said that he has been formally engaged by the Fini Group as an employee in the role of group project coordinator.
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34 The plaintiff said that in March 2001 he was then made redundant by the Fini Group but immediately obtained employment with his present employer, Byvan (WA) Pty Ltd, as a retail lease negotiator.
35 That work involved the management of shopping centres for investors and small investment funds, the plaintiff said, and of eight or nine leasing executives in this State he was the youngest involved in shopping centres. 36 The plaintiff said that since the accident he had not been able to sit for too long at meetings as he then experienced pain in the mid chest and mid rib area. If a meeting lasted more than an hour the plaintiff said that he would take breaks and walk around. 37 He also experienced neck pains which radiated into the head with headaches improved by massage, the plaintiff said. If he walked too long he said he experienced pain in the lower back. 38 Those injuries restricted him, the plaintiff said, in the sense that he was not able to attend too many meetings in the one day and when driving a long distance found it necessary to take multiple breaks, which lost time. 39 The plaintiff said that he required 3-5 years experience as a graduate in property work and he then hoped to work in Sydney or Melbourne with an institutional fund. 40 His plan was to seek such employment next year, the plaintiff said, and he believed that he would be able to earn in such employment approximately $80,000 per annum together with allowances and a bonus. 41 In March 2000 the plaintiff had seen another psychiatrist, Dr Morton. 42 The plaintiff said that he initially had not taken that doctor's advice but subsequently, in about September 2001, had done so and had ceased his cannabis use and commenced on the medication Cipramil. 43 He had not however followed a recommendation to undertake cognitive behavioural therapy, as his solicitor informed him it would not be paid for by the insurer, the plaintiff said. 44 He later said he had been financially fully committed after buying a house and could not afford that treatment. 45 The plaintiff said that he still took Cipramil daily, slept quite well if he did not think about things, and had better mood, but still experienced
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anxiety attacks which could last two or three hours, and be accompanied by palpitations, although those were better controlled with the medication and the avoidance of negative thoughts. 46 He did wish to undertake the cognitive behavioural therapy, the plaintiff said, in order to cease use of the Cipramil. 47 In cross-examination the plaintiff acknowledged that prior to the accident he had attempted about 22 units and had failed 10-12, results he considered were due to lack of application on his part. 48 Following the accident, and whilst in Singapore, he agreed he had been involved in a further motor vehicle accident, but said he had not been injured in it. 49 On his return from Singapore, and on being told of the loss of his job, the plaintiff said he initially sought other work by contact with other mobile telephone companies and by checking the newspaper over 2/3 weekends and telephoning a number of people on each occasion, and then by continuing job applications through the year. He agreed he had not sought casual work of the kind previously done by him when a full time student. 50 The plaintiff had lost eight months work as a result of the accident, he said, and claimed he had not been able to work for that period.
Medical 51 Dr Kulaendra saw the plaintiff on 16 December 1998, and has seen him from time to time since then. 52 When seen the plaintiff was complaining of severe neck and mid back pain, multiple abrasions, a stiff neck with headaches and chest wall pain and was very upset over the accident, the doctor said. 53 In a report of 12 January 1999 Dr Kulaendra said: "It is my opinion he will not be able to work for a full two weeks at least. I am concerned over his depression and feeling of guilt at his cousin's death and the attendant grief over the bereavement." 54 In March 1999 the plaintiff had not been keen to see a psychiatrist, the doctor said, but in June 1999 he had agreed to that course.
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55 Dr Kulaendra said that he did not think the plaintiff would have required more time off work than the period stated in his report, from the point of view of his physical injury.
56 The plaintiff would largely recover from that physical injury, which was largely soft tissue, the doctor said, and in a year it should be behind him. 57 On the other hand the plaintiff's psychological injury could take five or ten years to settle completely or might be with him all of his life, in the doctor's view. 58 Dr Kulaendra said it was unlikely that the plaintiff's cannabis use following the accident had had an effect on the course of the psychological injury. 59 In his report of 30 May 2002 the doctor stated that the plaintiff would need some form of ongoing psychological/psychiatric support and the cognitive behaviour therapy, with further costs for counselling sessions for a period of two years and assistance with gym work to promote back mobility. 60 Dr Kent, an anaesthetist in practice as a pain specialist, saw the plaintiff in September 2000 and reported at that time that the plaintiff's chest and back pain may be related to rib injury which could require an injection. 61 According to a subsequent report the plaintiff later received lumbar facet joint and thorax injections, with good results. 62 In evidence the doctor said that the plaintiff needed to reduce weight and to exercise and if that was done he may well obviate the need for any further intervention. 63 The plaintiff's back pain may resolve if those things were done, the doctor said. 64 Dr Kent said that he anticipated the plaintiff's chest pain would remain. 65 In his report of 20 May 2002 Dr Kent stated that he did not anticipate any future work incapacity as a result of the plaintiff's injuries, did not believe that the plaintiff was restricted from competing in the open work force, and considered that his injuries could be classified as being of mild to moderate severity.
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66 Dr Morton first saw the plaintiff in March 2000, and subsequently reported that in his view the plaintiff had symptoms of post traumatic stress disorder.
67 The doctor further stated that those had not compromised the plaintiff's work capacity. 68 In evidence the doctor said he had initially prescribed an anti-depressant serantonin booster, Aropax. 69 The plaintiff was subsequently prescribed Cipramil, the doctor said, and would probably need to take that until the end of 2002, and to then try and come off it. 70 In a report of May 2002 Dr Morton also stated: "[The plaintiff] does, however, have a chronic low level of anxiety and some of which (sic) is related to his experience in the accident, however, this does not impinge on his life. He works full time and this disorder is minor at best. As for my previous recommendation for cognitive behavioural therapy. Suitably, if it would be of use to [the plaintiff] in teaching him skills to cope with anxiety in a psychological way, this can be done on either an individual or group basis and initially I would recommend an assessment by a psychologist who is skilled in cognitive behavioural techniques." 71 In the same report the doctor said that the plaintiff's symptoms had undergone significant improvement, which he attributed to Cipramil and "also importantly, he is no longer using marijuana". 72 The reports of four other doctors were admitted without the necessity for those doctors to be called, together with a report as to the plaintiff's post accident treatment at the Armadale-Kelmscott hospital. 73 The psychiatrist who saw the plaintiff in September 1999, Dr T De Tissera, in a report of May 2000, said the plaintiff had cancelled a subsequent appointment and then not appeared at the next, and had as a result not been seen by the doctor again. 74 A diagnosis of an adjustment reaction with symptoms of post traumatic stress disorder and an unresolved grief reaction had been made at the initial appointment, the doctor stated.
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75 At the time the plaintiff was working 10 hours a day as a property consultant, and there were no restrictions to the quality of work that he could perform, in the doctor's view, the plaintiff's employment capacity not having been impaired by the accident.
76 Dr De Tissera also noted that the plaintiff was attending "university in his final year", and had "had to interrupt his kick boxing but had started this once again in July 1999". 77 The doctor also saw the plaintiff in May 2002 and provided a further report. 78 Two other doctors saw the plaintiff for the purpose of medico legal review, whilst another provided a radiological report. 79 Dr Harper, an occupational physician, saw the plaintiff three times at the request of his solicitor and provided reports on each occasion, in the last of which he said that in his view the plaintiff had a mild residual disability. 80 Dr Fitch, a sports physician and practitioner in medico legal medicine, saw the plaintiff at the request of his solicitor twice, and reported on each occasion. 81 In his first report of August 2001 the doctor reported that the plaintiff said that he largely overcome his post traumatic stress disorder and did not consider he had any need for further treatment. 82 The doctor agreed that it was apparent that the plaintiff no longer had a psychological disability. 83 Although Dr Fitch said he considered there had been multi level lumbar disc involvement in the plaintiff's back injury, he also stated he was not of the view that the plaintiff's future work capacity had been compromised. 84 In May 2002 however Dr Fitch reported that the plaintiff remained anxious, and in addition to the physical symptoms and findings previously reported the condition of post traumatic stress disorder with anxiety ought be added to the plaintiff's injuries. His future work capacity was not however changed, according to the doctor's report.
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Damages
85 Apart from non-pecuniary loss the plaintiff formally claimed past and future loss of economic capacity with a resultant loss of superannuation, interest on past loss, and future medical expenses. 86 Prior to a consideration of the particular items claimed I ought make some broad findings. 87 In regard to the plaintiff's academic position at the date of the accident, and as appears above, the plaintiff's evidence was not supported by any documentary or other evidence, and in some respects was contradictory. 88 Counsel for the plaintiff accepted in closing that the plaintiff's evidence was not able to be fully reconciled but suggested the plaintiff had simply been confused at times. 89 However, that the plaintiff's initial evidence, that at the end of 1998 he was in a position to complete his degree by a successful completion of part-time study in 1999, was not simply a momentary lapse can be seen by his other evidence that his pre-accident intention had been to depart this State with a degree in mid-2000, and the schedule of loss dated 4 June 2002 handed up by counsel, which repeats that statement. 90 The statement is not able to be reconciled with the plaintiff's evidence as to what he actually did by way of study following the accident, relative to the progress towards completion said to have been made, whilst his evidence also contained a contradiction as to what the plaintiff did, if anything, in the year 2000. 91 The question to which the issue relates is of both general and particular importance, because other than any damage flowing from the loss of his job the plaintiff's claim for past economic loss revolves around his assertion that completion of his degree was delayed by the accident. 92 If the plaintiff's initial statement was correct, then there was no such delay given the academic progress claimed by him in 1999. 93 I felt that the plaintiff's evidence was at least careless and without a necessary regard for accuracy at times, and I would not rely on that evidence in relation to this issue. 94 The onus is on the plaintiff to establish on the balance of probabilities that he sustained any loss claimed and in the absence of other
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evidence I would find the plaintiff has failed to establish the accident was the cause of any delay in completion of his university degree. 95 In particular I am not able to determine on the evidence what the plaintiff needed to do to complete his degree at the date of the accident, when he in fact did those things after it, and why he adopted any particular course. 96 In any event, given the view of Dr De Tissera as to the absence of effect on the employment capacity of the plaintiff brought about by his psychological injury in 1999, and that of Dr Morton as to the position later, I would not find that such was causative of any delay in completion of the plaintiff's degree. 97 The heads of damage, and my findings in relation to the same, are then as follows:
Non-pecuniary loss 98 The maximum amount that might be allowed under this head is at present $240,000. 99 The method of assessment of the loss must be in accordance with the Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3C, and I set out my understanding of the correct approach to such an assessment in Kandic v Kandic, unreported; DCt of WA; Library No 5208; 20 December 1996 and would generally follow that here. 100 The plaintiff's present position is that approximately 3½ years after the accident he does have some residual physical symptoms, together with the psychological deficit caused by the accident and the death of his cousin. 101 I accept Dr Kulaendra's view that the plaintiff's symptoms from his physical injuries should resolve in a year. 102 Dr Kent as stated said that the plaintiff needed to lose weight. 103 Counsel, however, submitted that the onus was on the defendant to show that the plaintiff would be able to do that, a proposition with which I do not agree, in circumstances where the relevant medical evidence was led on behalf of the plaintiff, without there being any suggestion in it, or from the plaintiff in his own evidence, that he would have any difficulty in compliance.
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104 In regard to the plaintiff's present psychological difficulty, I accept the evidence of the specialist psychiatrist who has seen the plaintiff over an extended period, Dr Morton, whose view, as appears, is that the plaintiff has a chronic low level of anxiety, minor in its degree of severity, but which will require the plaintiff to remain on his medication until the end of the year, as well as that of Dr De Tissera.
105 In the circumstances I would assess the sum of $30,000 as the appropriate proportion of the maximum amount. 106 The amount that the plaintiff is entitled to under this head is then that sum less $12,000, and I allow $18,000.
Past loss of economic capacity 107 The plaintiff was, I would find, incapacitated from carrying out his pre-accident employment for a short period, as a result of his physical and psychological symptoms, the latter probably being more significant, and I accept the evidence of Dr Kulaendra in that respect. 108 During the relevant period the plaintiff also of course returned to Singapore, in order to attend his cousin's funeral, and in my view that ought be regarded as being pursuant to a need which arose from the accident and the plaintiff's psychological injury, in the circumstances. 109 The effect of those matters was that the plaintiff lost his pre-accident employment. 110 The plaintiff did not engage in remunerative employment again until August 1999, when he commenced with Warren Tucker, but did continue with his studies. 111 I accept that the plaintiff did seek other employment of the kind in which he was engaged at the time of the accident, in the manner described, but was not successful. 112 The plaintiff's temporary loss of economic capacity was therefore, in my view, causative of a loss of income which extended beyond that period. 113 As to the extent of that loss the defendant put before me a statement and time sheets from the plaintiff's former employer.
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114 Although the latter indicate that the plaintiff did not work full-time for the whole of the period covered by the same, such indicate he did work full-time immediately prior to and at the time of the accident, and that is supported by the employer's statement that a five day week was worked.
115 No enquiry was made of the plaintiff as to the reason for any change in his hours. 116 The evidence is rather unsatisfactory but given the above I would find the plaintiff was engaged in full-time employment at the date of the accident and ought have his loss assessed on that basis. 117 Given the fluctuations in income revealed by the time sheets, however, I would adopt the last wage paid as an appropriate basis for assessment, that being $361.07 net, with weekly superannuation of $26.74. 118 The plaintiff did not seek any part-time casual work of the kind formerly done by him during this period, although there was no reason why he could not have done that, and in the circumstances I would not find the brief loss of economic capacity was causative of a loss equivalent to the whole of the pre-accident wage for the whole period up to August 1999. 119 This was a loss which survived a regaining of full economic capacity, and was brought about by failure to find alternative employment, and to the extent that there was no search there was no loss. 120 In some previous years the plaintiff had earned about $60 per week gross, according to his tax returns, and that would seem a reasonable measure. 121 Some allowance ought be made for a delay in finding such work, and for taxation, and I would reduce the loss by $40 per week for half of the relevant period. 122 I would not reduce the superannuation component beyond a deduction of 30 per cent for expenses and the like, given the broad nature of the assessment, and would not make any further deduction for contingencies. 123 The period claimed of 33 weeks was not disputed.
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124 An application of the above results in a figure of $11,255 for loss of wages and $618 for loss of superannuation, a total of $11,873.
Interest on past loss of economic capacity 125 The loss commenced on 14 December 1998 and the full amount of the loss had accrued by 1 August 1999, and interest at 6 per cent per annum ought be allowed from the middle of that period, 9 April 1999, to judgment. 126 An amount of $2,344 is then derived.
Future loss of economic capacity 127 It follows from the above that I am not of the view that the plaintiff has suffered any loss under this head, and counsel in effect conceded that was the case in his closing address.
Future medical expenses 128 Dr Kulaendra's views as to there being a need for assistance in relation to gymnasium work to promote back mobility find some support from Dr Fitch, although pilates and swimming are the particular forms of exercise recommended by him. 129 I will allow the sum of $2,000 suggested by Dr Kulaendra. 130 In relation to the plaintiff's psychological injury the medication Cipramil comes at a cost of $22 per month and I allow that to the end of the year, $132 then being the allowance. 131 So far as the cognitive behavioural therapy is concerned, Dr De Tissera shares Dr Morton's view that this would be warranted, although neither provided an estimate of cost. 132 Two estimates were provided, and I allow the lower, provided by Dr Harper, of $4,000. 133 The allowance under this head is then $6,132.
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134 In summary:
Non-pecuniary loss $18,000.00 Past loss of economic capacity $11,873.00 Interest on past loss of economic capacity $ 2,344.00 Future loss of economic capacity - Future medical expenses $ 6,132.00 $38,349.00 135 The plaintiff is entitled to judgment in the sum of $38,349. |