Thackray v To
[2009] WADC 148
•18 SEPTEMBER 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: THACKRAY -v- TO [2009] WADC 148
CORAM: BOWDEN DCJ
HEARD: 3-4 AUGUST 2009
DELIVERED : 18 SEPTEMBER 2009
FILE NO/S: CIV 1028 of 2008
BETWEEN: ANDREW THACKRAY
Plaintiff
AND
VAN THIEU TO
Defendant
Catchwords:
Damages - Personal injury - Motor vehicle collision - Quantum only - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Judgment in favour of the plaintiff for $155,749.30
Representation:
Counsel:
Plaintiff: Mr K J Bradford
Defendant: Mr P R Momber
Solicitors:
Plaintiff: Bradford & Co
Defendant: Peter Momber
Case(s) referred to in judgment(s):
De Blank v Stemberger [2000] WASCA 358
Hendrie v Rusli [2000] WASCA 249
Medlin v State Government Insurance Commission [1995] HCA 5; (1994 ‑ 1995) 182 CLR 1
Redken Laboratories (Aust) Pty Ltd v Docker & Anor [2000] NSWCA 100
Thrackray v Hardcastle, unreported; DCt of WA; Library No D990106; 28 April 1999
BOWDEN DCJ: The plaintiff sues for damages arising out of a motor vehicle accident occurring on 14 January 2003 ("the accident"). Liability for negligence has been admitted and the trial proceeded on the question of quantum of damages.
The onus is on the plaintiff to establish his claim on the balance of probabilities.
A brief statement of the plaintiff's contentions
At the date of the accident the plaintiff suffered from a pre‑existing back injury.
He says the accident aggravated this condition and caused additional injuries and claims it was not until approximately May 2007 that he returned to his pre‑accident level of pain.
He contends medication will be required for the rest of his life and he permanently lost part of his capacity to perform domestic chores, suffers sexual dysfunction and an increased disability to his back. He seeks damages for pain and suffering, past gratuitous services and interest thereon together with the cost of future gratuitous services, past medical expenses and damages for future pharmaceutical expenses.
In addition he contends he was unable to perform, to his level of satisfaction, his duties as general manager of GRD Kirfield Limited (Kirfield) and shortly after the accident obtained lower paid employment. Accordingly, he seeks damages for economic loss from that date until 30 June 2007, (after which his income has reached pre‑accident levels), loss of past superannuation and interest thereon.
A brief statement of the defendant's contention
The defendant admits her negligence caused the accident.
She says there is no objective pathology of any "new injury" or aggravation of the pre‑existing injury and says the accident was so small in scale that, if injury was caused, it was unlikely to be significant.
The defendant claims the effect of this accident upon the plaintiff's overall condition was minor.
Evidence presented at trial
At the trial I heard oral evidence from the plaintiff, Dr Dean, Mr Slinger and Professor Stokes. I received, by consent, a booklet of medical reports (Exhibit 1), and financial documents (Exhibit 2). Two surveillance videos (Exhibit 3) and an additional report from Mr Slinger were tendered (Exhibit 4).
A summary of the evidence
The plaintiff
The plaintiff is currently 60, being born on 22 July 1949 in England where he studied mechanical and electrical engineering completed an instrument technician apprenticeship and worked for about four years (T5).
He arrived in Australia in 1973 and has an excellent work record. He says he has never been dismissed or without work. Whilst in Australia he studied mechanical and production engineering and obtained a diploma in accounting (T6‑7).
Over the years he has been employed by approximately 14 separate employers in a variety of positions including assistant production manager, production manager, divisional manager and general manager. At the date of the accident, he was general manager of Kirfield, a position held since 2000. He is currently general manager, western region of RCR Construction and Maintenance Pty Ltd (RCR), having joined that company in May 2006.
Regrettably, the plaintiff has a long history of back difficulties, including four operations.
In approximately 1972/1973, he hurt his back at work and whilst not taking any days off work, received physiotherapy and chiropractic treatment.
In 1985 he consulted Dr Hardcastle due to pain along the spine in his lower central back (L5 ‑ S1) (T7‑8).
On 26 September 1991 a Hartshill rectangle fusion procedure was performed by Dr Hardcastle. It appears this operation was not successful and the pain in the lower part of the spine worsened and he commenced to suffer numbness at the top of the left buttock (T8‑9). Unfortunately, whilst convalescing, a wound infection developed, which required further surgery.
He continued to experience pain down the lower part of his spine and left leg. This was treated with injections and daily painkillers.
On 26 March 1992 he underwent a Graf procedure involving the insertion of four pedicle screws in the spine. During this procedure he suffered damage to the nerve root which caused foot drop on his left side.
Foot drop is paralysis of the ability to elevate the foot because of weakness or paralysis of the muscles located in the anterior aspect of the lower leg compartment (Professor Stokes, Exhibit 1, p 56).
In addition to foot drop he continued to suffer back pain.
On 7 April 1992 surgery was performed to realign the Graf screws by their removal and reinsertion. This did not result in any improvement in the foot drop and he has worn callipers ever since. Even after this surgery there was no improvement in his pain (T11).
In September 1995 further surgery was performed removing the Graf screws and the Hartshill rectangle. This resulted in little improvement to his pain but some psychological improvement in his condition. Notwithstanding these back difficulties he maintained his employment throughout (T11).
As a result of the procedures relating to the Graf screws he commenced proceedings against Dr Hardcastle. They were resolved by a judgment of this Court in his favour delivered on 28 April 1999 (Thrackray v Hardcastle, Williams DCJ, unreported; DCt of WA; Library No D990106; 28 April 1999). That judgment included an award of $142,638 for future loss of earning capacity on the basis that although his likelihood of suffering future economic loss was not great, there was a small prospect that he may not be able to work to age 65 and an allowance of 30 per cent of his earning capacity between the ages of 55 to 65 was made (T79).
In 2000 he obtained employment as general manager of Kirfield, a small engineering company generally employing between 45 to 60 people and on occasions as many as 125. He described that position as intense. His total income package, including benefits was approximately $180,000 per annum (T14‑15).
The accident occurred whilst he was employed by Kirfield.
The position of the plaintiff immediately prior to the accident of 14 January 2003
In oral evidence Mr Slinger confirmed when he reviewed the plaintiff in October 1997 he was suffering from lower back pain adjacent to the surgical scar which was located immediately above the buttocks in the midline, persistent numbness below the knee on the left side, weakness of the foot, and pain about the ankle more so the left than the right. He confirmed the plaintiff had pain in both legs. (T90) Mr Slinger's report of 16 October 1997, (Exhibit 1 p 37 ‑ 46) provides more detail of the plaintiff's complaints at that time.
Irrespective of the plaintiff's circumstances in 1997 the only evidence of his condition immediately prior to the accident was given by the plaintiff who said he suffered pain down the lower part of his back and foot drop in his left leg. This condition was managed by medication and he was taking on average four Panadeine Forte tablets per day, occasionally as many as eight. He said he had not consulted any specialists or orthopaedic surgeons between 1999 and the date of the accident. (T11‑12, 16, 18)
The January 2003 accident
On 14 January 2003 the plaintiff was driving his wife's vehicle and was stopped at a red light at the intersection of Lord and Newcastle Streets. He heard the squealing of tyres and looked in his rear vision mirror and saw a Rav4 braking. He pushed his foot hard down on the brake, pushed back into the seat and braced himself against the steering wheel. It took about 15 seconds before the impact occurred and his wife's vehicle was pushed some 3 metres into the intersection. He said both his seatbelt and handbrake were on and his body did not strike the steering wheel or any of the windows. (T15‑16)
After impact he alighted from the vehicle and examined the damage, noting the tow bar had been pushed down and there was some smudged paint from the Rav4 on the rear tailgate. The Rav4 had penetration damage, caused by the towbar, to the front fender and the lower radiator area.
He explained his body probably did move as a result of the impact saying: "I was probably shunted forward", "I believed that I moved forward" ''and "I am sure there was a small movement and I would've come back." (T67‑68)
That afternoon at around midday he felt pain. He said in evidence in chief he visited the doctor the next day. (T17) He agreed in cross‑examination that he did not see a doctor until two days later. (T71)
He claimed after the accident his back pain increased. He had pain across the belt line on the top of the buttocks. He described this as a new gnawing pain. It was ongoing and persistent. He was unable to obtain a comfortable night's sleep, was becoming tired and fatigued and was taking six to eight Panadeine Forte tablets daily.
He underwent an MRI scan which showed no structural damage, however his symptoms remained. He said prior to the accident he suffered pain down the lower part of his back and foot drop in his left leg and after the accident suffered more pain to the lower part of the back and a new pain further up across the top of buttocks along the belt line and pain radiating down the right and left legs. (T18, 77)
He contended it wasn't until about 2007 that, with the help of Dr Dean, he was able to control the pain. (T26) By that time he had undergone a number of facet joint injections which did not seem to provide any substantive relief. With the help of medication he was able to increase his levels of concentration and was able to return to somewhere near his pre accident position being able to do some, but not all, things he was previously unable to do. (T27)
He claimed, after the earlier operations to his back, he did not do any housework at all, however from 1995 until 2003 he gradually increased the amount he was doing (T81), and was helping around the house prior to the accident. (T29) When asked if he currently did anything around the house he replied "not much". He quantified his pre‑accident handyman activities as taking four to five hours each week. He said he might now do half an hour per week. (T30) Under cross‑examination that increased to "maybe an hour". (T80) He said his mother‑in‑law moved into the house about three years ago and now performed those tasks. (T30) After the accident he found it very difficult to do things like vacuuming, pool maintenance and the dishes and found anything involving either repetition or leaning forward for extended periods caused him difficulties. (T29)
He told the court prior to the accident he would mow his lawn and attend to pool maintenance. In evidence‑in‑chief he said he no longer does his lawns, under cross‑examination he agreed he occasionally did them. (T30, T82)
When asked about his sexual activity he replied it was "very limited," and he was "not having any". Prior to the accident he claimed he was sexually active two or three times a month. (T30)
He told the court the consumption of alcohol whilst on medication caused cramps down his leg. He was able to walk about 1 kilometre but unable to sit for long periods of time. (T31)
He confirmed his current medication consists of OxyContin, Lyrica and Mobic in the morning and evening and Nortriptyline (Allegron) and laxatives in the evening. He also takes half an aspirin in the morning. (T26)
Dr Dean's report of 1 October 2008 (Exhibit I, p 27) advises OxyContin is an opioid painkiller closely related to morphine, its purpose being pain control. Lyrica is both an anti‑epilepsy and anti‑nerve pain drug and used to decrease abnormal nerve excitability and control nerve pain. Mobic is a non‑steroid anti‑inflammatory drug to reduce inflammation which is stimulating pain receptors in tissues. Nortriptyline is an antidepressant used to assist the reduction of perceived pain.
The plaintiff said he took additional OxyContin if experiencing more pain. (T26)
Plaintiff's employment subsequent to the accident.
Shortly after the accident he resigned as general manager of Kirfield (5 March 2003). He had found other work before he resigned and commenced with Tenix Defence Pty Ltd on 10 March 2003 (Exhibit 2 p 97), having accepted their offer of employment on 17 February 2003 after refusing an earlier offer. (T19)
He described the Tenix position as involving no real responsibility and more of an administrative role (T19). He remained there until about August 2004 when he joined Ausco, leaving in April 2006, and commenced his current employment with RCR in May 2006 (T25‑27). He was originally employed as operations manager later being promoted to general manager, western region. (T28)
As general manager he is responsible for profit, cost control and management of a business with a turnover of $140 million. He said he enjoyed the growth of the company which started off employing six persons and currently had a payroll of about 1,500 (T28). His salary had progressed from $180,000 to its current level of $284,775 (T29, Exhibit 2, p 213).
Dr Dean
Dr Dean specialises in oncology medicine and pain reduction.
He first saw the plaintiff in September 2004 and has seen him regularly since.
Dr Dean advised it took eight to nine months to make the plaintiff's pain manageable. He said since May 2005 there had been a fairly stable mix of medication. Painkillers made the plaintiff's life manageable and although significant progress was slowly made he was pleasantly surprised by the consistency with which pain was managed with the current medication. He confirmed the plaintiff could sit for reasonably long periods of time and had an ongoing impairment but was suitable for employment in a sedentary occupation. (T34-35)
Dr Dean told the court the plaintiff complained of suffering erectile dysfunction for at least six months prior to May 2004. Erectile dysfunction could be a side effect of pain medication. He said erectile dysfunction was common for persons suffering back pain and more common to those taking certain medications. He said the combination would make the position worse. (T34)
He agreed he was not an expert on sexual dysfunction however his expertise included a working knowledge of medications and their use. Although he could not identify any specific drug that would cause erectile dysfunction, he was aware that certain drugs can cause it.
He confirmed Panadeine Forte can contribute to erectile dysfunction, although it didn't happen very often, and he didn't think it was causative of the plaintiff's erectile dysfunction. (T34, 37‑41)
He agreed such dysfunction could be caused by the psychological sequelae of physical injury, psychological effect or drugs (T37‑ 41). His evidence was the erectile dysfunction follows on from the accident (Exhibit 1, p 25, 29).
He agreed that there was no "traumatic evidence of pathology" from the accident asserting this was not surprising as you could not get abnormal imaging for soft tissue or ligamentous injury. (T48, T59‑60)
His treatment of the plaintiff was based on the history, examination and x‑ray findings. That history, his examination findings, the complaint of pain, the evidence of increased analgesic consumption and Professor Stokes' opinion that the plaintiff suffered significant ligamentous injury all contributed to his conclusion that the symptoms were caused by the accident. (T55–59)
His report of 1 October 2008 (Exhibit 1, p 27 ‑ 30 at 28) indicates that on 31 August 2005 the plaintiff's medication was changed to Lyrica 150 milligrams, Mobic 7.5 milligrams and Nortriptyline 50/75 milligrams. In addition he had been taking 10 milligrams of OxyContin since 30 May 2005. On the subsequent six occasions that Dr Dean saw the plaintiff he described his condition as stable. On 14 May 2007 OxyContin was increased from 10 milligrams to 40 milligrams. The plaintiff currently remains on that mix of medication.
Mr Slinger
Mr Slinger is an orthopaedic surgeon.
His report of 2 May 2007 (Exhibit 1, p 57) concluded the plaintiff suffered a soft tissue injury which increased symptoms present prior to that accident. However, the use of more effective and stronger medication meant the plaintiff was able to maintain the activities he was performing prior to the accident. He said although there was no additional pathology, there had been a significant further injury to the lumbar spine superimposed on pre‑existing symptoms and aggravation from the accident had continued to the present and was likely to be a permanent.
Mr Slinger opinion (Exhibit 4) did not change after being shown the surveillance footage (Exhibit 3).
In his report of the 17 February 2009 (Exhibit 1, p 59 at 62) he described the plaintiff's lower back pain as being intermittent, associated with cramping discomfort in the thighs, and controlled by medication without which the pain was severe. He said the pain was immediately above the surgical scar radiating distally to the lumbosacral junction and to either side of the midline.
The pain was aggravated by sitting for longer than 30 minutes, standing in a flexed position such as when washing dishes or cleaning teeth, walking for more than 500 metres and lifting more than 15 kilograms. Mr Slinger was aware the plaintiff had erectile dysfunction and lacked spontaneous erections during the day or on awakening. He said the injuries should not affect the plaintiff's retirement age, or capacity to be fully employed however he should avoid lifting, repetitive bending, static positions, travelling across bumpy roads and the like (ibid at 61).
I note that Mr Slinger's report of 16 October 1997 (Exhibit 1, p37 ‑ 46) prepared after seeing the plaintiff on 13 October 1997 said the sexual activity of the plaintiff had decreased to four or five times a year because of severe pain experienced during intercourse (ibid at 42).
Mr Slinger agreed there were no objective findings other than pre‑existing drop foot injury. (T89) He did not know the plaintiff's body movements at the time of impact other than he was shunted forward. He knew in these types of collisions there was a flexion/extension injury. He said a soft tissue injury could occur as a result of a flexion/extension type injury as that type of movement can be unexpected, unguarded and could result in a greater range of motion than normally sustained. Mr Slinger said patients usually did not know what body movements occurred in a accident unless, for example, they hit their head or struck their knees. (T91‑92)
Professor Stokes
Professor Stokes is a professor of neurosurgery.
He first saw the plaintiff in 1993. When he saw him in 2003 he thought his injury was related to a facet joint disturbance at L5/S1 (report, Exhibit 1, p 70).
Professor Stokes administered a number of facet joint injections, some resulting in improvement described as 50 to 80 per cent and, at least in the short term, the pain seemed to drop to its pre‑accident position. However, in October 2003 the plaintiff described his pain, on the wholly objective pain scale, as 8 out of 10. By December 2003 Professor Stokes thought the plaintiff was not helped by facet joint injections (22 December 2003, Exhibit 1, p 78) and in March 2004 was of the opinion that despite the plaintiff's long standing pre‑existing back condition the accident had prompted the current degree of disturbance with the back function (10 March 2004, Exhibit 1, p 79).
As he was not able to make any significant progress with the symptoms he referred the plaintiff to Dr Dean. He concluded the most logical cause of the current symptoms was a ligamentous injury particularly in light of previous procedures to stabilise the spine by the insertion of hardware and the subsequent removal of that hardware resulting in the stabilisation no longer being as effective. (T 96‑97)
In his report of 6 April 2006 (Exhibit 1, p 82-83) he stated the plaintiff already had a significant permanent disability in his lumbar spine which the accident made more asymptomatic, although he found it difficult to place a value on this. Notwithstanding those difficulties Professor Stokes believed that the increase in disability produced by the accident was 15 per cent (19 June 2006, Exhibit 1, p 84). He considered the plaintiff's back pain had increased by approximately 30 per cent as a result of the accident (ibid at 83 ‑ 85).
He concluded the plaintiff had suffered a significant ligamentous injury to the back which had been the site of previous major spinal surgery (ibid at 85 – 86).
Dr Blake
Dr Blake was not called as a witness. His medical reports are contained in Exhibit 1 (p 10 ‑ 24).
The history obtained was the day following the accident the plaintiff woke with pain extending from the left buttock into the left thigh as far as the knee (4 February 2003, Exhibit 1, p 18). At least, initially, facet joint injections gave considerable relief (6 August 2003, Exhibit 1, p 13).
Dr Blake became increasingly pessimistic about the long term prognosis and estimated the accident was responsible for about one‑third of the current disability or 12 per cent of the normal function of the spine (13 September 2004, Exhibit 1, p 14 at p 18).
In his report of 9 May 2006 he stated the injuries were an aggravation of a pre‑existing injury and the plaintiff had lost 12 per cent of the normal function of the spine on account of the accident (Exhibit 1, p 19). In a latter report he agreed with Professor Stokes' assessment of the permanent disability sustained (3 August 2006, Exhibit 1, p 24).
Dr Nulsen
Dr Nulsen was not called as a witness. Her medical report and the surgery's "Patient Medical History" are contained in Exhibit 1 (p 92 and p 87 ‑ 91).
She first saw the plaintiff in relation to this accident on 16 January 2003 and reported the day after the accident he was complaining of neck stiffness and lower back pain extending to his left buttock and sleep disturbance. He was seen by a different doctor from the surgery on 22 January 2003 with complaints of insomnia and low back pain and thereafter managed by specialists.
Surveillance videos
Two surveillance videos were tendered (Exhibit 3.1 and Exhibit 3.2). These showed the plaintiff, inter alia, sitting in his car, carrying shopping, pushing a shopping trolley, placing what appeared to be a piece of plywood in the vehicle, lifting fertiliser bags from a trolley into his vehicle, refuelling his vehicle, appearing to place air into the car tyres whilst in a crouched position, bending and filling what appeared to be a small 5 litre container of fuel, carrying small items, unloading the contents of the boot, walking and driving.
The plaintiff did not show any obvious or apparent restrictions in any of those activities. This is not surprising as he had not claimed to be restricted in any of those activities.
Findings on credibility
I find the evidence of Professor Stokes, Mr Slinger and Dr Dean honest and reliable. I find their evidence frank, credible and objective. I accept there were no objective symptoms of pathology from the accident and necessarily their treatment regimes and opinions are reached on the basis that they are provided with honest and accurate information.
As to the plaintiff, I found his evidence generally to be credible and honest.
I accept there were inconsistencies. His evidence‑in‑chief referred to visiting the doctor the day following the accident. (T17) Under cross‑examination he agreed he hadn't seen the doctor for two days. (T71) His evidence‑in‑chief referred to experiencing pain around about midday on the afternoon of the accident. (T19) Dr Nulson's and Dr Blake's reports refer to pain being experienced the following day (Exhibit 1, p 92 and p 10). I accept these are inconsistencies. They establish a lack of precision in the plaintiff's evidence however considering the time elapsed since the accident and the number of doctors seen by the plaintiff they do not cause me any concern in assessing his credibility.
I do not rely on the contents of either Dr Suther's report of 4 September 2006, or Dr Alexeeff's report, which were both put to the plaintiff in cross‑examination, referring to his recollection of developing pain at the scene. The plaintiff was not asked if he said this to either doctor and neither report was tendered, nor were the doctors called to give evidence (T72‑‑73).
I do not accept his evidence‑in‑chief that he no longer mows his lawn. I found his evidence, when cross‑examined, relating to the filling of the small fuel container seen on the surveillance video and whether that fuel was later used for the lawn mower and whether he currently mowed his lawns to be evasive and unpersuasive. (T30, 82, 83) I note Mr Slinger's report of 2 May 2007 (Exhibit 1 p52 at 53) says he was not prevented from mowing the lawn and under cross‑examination he admitted to occasionally mowing it. (T82)
For reasons explained in [111] – [135] of this judgment I am not satisfied the accident and/or injuries were the cause or a cause of his change of employment. At no stage during evidence‑in‑chief did he mention he was in the process of negotiating a new position or looking to change employment before the accident. This shows a lack of frankness on his part and does not reflect well on his credit. He was not prepared to reveal, in evidence‑in‑chief, matters clearly material to the issues. He was prepared to omit matters of relevance to present his case in the most advantages light and when challenged, particularly over the "lawn mowing" and "fuel container" issues, was evasive in his answers.
Notwithstanding these reservations they do not lead me to conclude that I cannot believe anything he said.
The burden of proof is on the plaintiff on the balance of probabilities and I am entitled to accept or reject his evidence in part or in full. Notwithstanding adverse findings on specific issues, I do accept his evidence in relation to his pre‑existing back complaint, the effect of the accident in aggravating that complaint and the creation of new areas of pain in his body.
Findings of fact — the injuries sustained in the accident and there duration
It is not disputed the plaintiff has undergone a number of previous procedures relating to his spine. Efforts had been made to stabilise the spine by the use of both a Hartshill rectangle and Graf screws. These efforts were not successful and both devices were removed.
I accept Professor Stokes' evidence that prior to the accident the plaintiff suffered from a longstanding pre‑existing back condition which resulted in a significant permanent disability in his lumbar spine (Exhibit I, p 79 - 83).
I accept the plaintiff's evidence as to the extent of his pain/disability immediately prior to the accident and its control by the use of medication. (T12)
I accept the accident caused the vehicle the plaintiff was driving to be pushed approximately 3 metres into the intersection and he suffered a flexion/extension injury to his back.
I accept Professor Stokes' evidence that a significant ligamentous injury was caused to the back, which had been the site of previous major spinal surgery and this injury produced the ongoing symptoms (Exhibit 1, pp 79, 83, 85). This is supported by Mr Slinger who concluded the plaintiff suffered a soft tissue injury which increased the symptoms present prior to the accident (Exhibit 1, p 57), an injury Mr Slinger described as "a significant further injury to the lumbar spine superimposed over a pre‑existing symptoms"(Exhibit 1, p85 – 86). I accept Professor Stokes' evidence that the accident made the plaintiff's lumbar spine more asymptomatic resulting in an increase in back pain and making the back more difficult to manage (Exhibit 1, p 83).
I accept the plaintiff's evidence that the accident resulted in an aggravation of his pre‑existing injuries and created new area of pain in his body.
More specifically, in relation to the pre‑existing injuries, the plaintiff experienced increased pain in the lower back and more numbness in the left leg. Further, a new site of pain developed across the top of his buttocks and belt line with pain radiating down into the right and left legs (T18, 77).
It is clear from the reports of Mr Slinger (3 June 1995, Exhibit 1, pp 32 ‑ 36 at 34, 16 October 1997, Exhibit 1, p 37 – 46 at 42) the plaintiff had some time previously experienced difficulties in both lower limbs, however there is no evidence to establish immediately prior to the accident he was experiencing pain radiating down both legs.
I find the plaintiff increased his medication from an average of four to six to eight Panadeine Forte and underwent a series of facet joint injections, some of which provided pain relief. The pain continued and increased in severity and subsequently he was referred to Dr Dean who eventually stabilised and managed the pain by medication.
I accept Dr Dean's evidence that since about May 2005 the plaintiff had been on a fairly stable mixture of medication and it took sometime to make significant progress (T34‑35). Examination of the reports reveals the combination of medication in their current doses has being taken by the plaintiff since May 2007 (Exhibit 1, p 28).
As to the extent and duration of the injuries I accept the plaintiff's evidence that by 2007 he was able to control his pain by medication. As a result he was able to return to somewhere near his pre‑accident position. This is supported by Dr Dean who said the pain has been managed with the current medication concoction (T35) and Mr Slinger's evidence that by May 2007 the pain had reached a tolerable situation compared to that which existed prior to the accident by using stronger and more effective medication. (Exhibit 1, p 54, 57)
I am satisfied from the date of the accident until May 2007 the plaintiff suffered increased pain and exasperation of his pre‑existing back injury and additional pain in new areas of his back radiating into both legs.
I find that since May 2007, with the assistance of medication, his pain is more or less back to the pre‑accident state.
General damages
The Motor Vehicle (Third Party Insurance) Act 1943 limits the amount awarded for non-pecuniary loss. The present limit is $327,000.
A court may award general damages for non-pecuniary loss such as pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.
The task the Court must undertake is to assess the plaintiff's case as a percentage of the most extreme case: Hendrie v Rusli [2000] WASCA 249, De Blank v Stemberger [2000] WASCA 358 and accordingly general damages must be assessed as a percentage of the worst case and calculated in accordance with s 3C(5) of the Motor Vehicle (Third Party Insurance) Act 1943.
I have found the plaintiff, since approximately May 2007, has returned to more or less his pre‑existing condition, although I have accepted that between the date of the accident and May 2007 the plaintiff's pain was more severe.
I find from the accident until May 2007 the plaintiff suffered sleep disturbance resulting in fatigue and irritability, depression and anxiety, loss of confidence and restrictions in his ability to perform domestic chores.
I accept he suffered increased pain at the site of his old injuries and additional pain at new sites and underwent a series of facet joint injections, physiotherapy, MRI scans and medical consultations. I accept the accident increased the severity of his existing back disability. It took some time to stabilise his medical regime.
However, he did not requiring surgery. He does not currently suffer from difficulties with concentration or accident related fatigue and has remained in full‑time employment throughout. He has been promoted to his current position which clearly involves considerable responsibilities. His future treatment consists of continuing on current medication.
The evidence relating to his sexual dysfunctional was incomplete. His evidence was "he didn't have any sexual activities'', and the activities were "''very limited". (T30) There were no further details. He said before the accident his sexual activities were "reasonably regular as in two or three times a month". (T30)
There is no evidence he followed the suggestion of Dr Dean to attend the Keogh Reproduction Institute (T40, Exhibit 1, p 30). Mr Slinger's report (17 February 2009, Exhibit 1 p 60) refers to Viagra being unsuccessfully trialled. Therefore, although I accept sexual dysfunction follows on from the accident (Dr Dean, Exhibit 1 p 25 ‑ 29) I am not able to quantify precisely the extent and duration of those difficulties. I do, however, take them into account in my overall assessment.
Clearly the major difficulty suffered was the aggravation of the pre‑existing injury and the additional pain to a new area of his back together with the pain radiating into both legs. Dr Dean said the plaintiff had ongoing impairment (T35). Mr Singer said the "aggravation of the pre-existing injury" was likely to be permanent. Dr Stokes said the plaintiff suffered a "significant ligamentous injury of the lumbar spine". This must be put into the context that the plaintiff already had a significant pre‑existing permanent disability to his back and suffered from foot drop to his left foot.
In Dr Blake's opinion the total permanent loss of normal function of the spine in terms of the second schedule of the Workers Compensation and Rehabilitation Act was 35 per cent (Exhibit 1, p 18). That figure relates to the total loss of function from both accident and non‑accident causes. Professor Stokes does not proffer an opinion as to the total permanent loss of normal function of the plaintiff's spine. Professor Stokes and Dr Blake agree the increase in disability of the back produced by the accident was 15 per cent (Professor Stokes, 19 June 2006, Exhibit 1, p 84; Dr Blake, 3 August 2006, Exhibit 1, p 21 at 24).
My task is not to ascertain a loss of function by reference to the workers compensation and rehabilitation second schedule rather to assess the overall disability caused by the accident as a percentage of the worst case and calculate that in accordance with the Motor Vehicle (Third Party Insurance) Act 1943.
I assess the plaintiff's overall disability as 12.5 per cent of the worst case and allow a sum of $24,375 for general damages (after deduction for the threshold).
Past loss of earning capacity, superannuation and interest thereon
The plaintiff contends the injuries suffered in the accident caused him to resign from Kirfield and obtain lower paid employment initially with Tenix, subsequently with Ausco and then with his current employer RCR. He claims he suffered economic loss over five financial years after which his income exceeded what he would have earned had he remained at Kirfield . The parties have agreed his income would have increased by 6 per cent for the three years following the accident and by 3 per cent for the subsequent two years had he remained at Kirfield. (T100)
He claims $188,768.40 for past loss of earning capacity, $36,810 for interest on those past losses, $28,315.26 for past loss of superannuation and $5,521.47 for interest on past loss of superannuation. The defendant does not dispute these figures however says the plaintiff did not sustain those losses as a result of the accident and/or injuries received.
I do not accept the plaintiff's evidence that his resignation from Kirfield was a result of the accident and/or injuries.
On his own evidence he found the position as general manager of Kirfield intense and involving considerable responsibility.
In evidence-in-chief he asserted his pain levels increased after the accident causing his concentration to decrease to low levels. He became tired and fatigued due to sleep disturbance and, although he enjoyed his work, didn't enjoy trying to control the pain. He claimed some key work performance indicators were falling down a bit and didn't feel he was doing his job efficiently or effectively. He claims he was not achieving as much, became depressed, and could not fulfil his work role and was disappointed in his work outcome. (T16‑19)
When asked how he felt about his future with Kirfield he replied:
"I did not feel comfortable. I didn't feel that I was performing my job in accordance with what my duties were. I in fact looked around to try and find something that was less accountable, less responsible and to get a job where I didn't have to deal with the pressures of making sure that everybody had a job, profit, bottom line those things. (T18)
What did you decide to do in relation to your employment at Kirfield? ‑ I discussed it with my wife and said that I felt that we should – I should look for something less – less responsible, if you like, less accountable and I'd look for alternative employment with a lesser role until I could get myself balanced out, I guess. (T19)
… I guess I was pretty depressed in as much as I, I couldn't really fulfil my job as being a general manager – it's like having a family – it – it's just a big extension. You're responsible for people's health and wellbeing, their job, their income, where are we going to get their next job to come from, to earn enough profit to pay the wages. It's a big job." (T19)
The effect of the plaintiff's evidence (T16‑19) was the accident occurred, it had an effect on him which lead to a reduction in work performance, he had discussions with his wife and then looked around for something less responsible and less accountable and found employment with Tenix.
Under cross‑examination he said the accident was a contributing factor in terminating his employment, maintaining he couldn't do justice to the job, and he was getting tired because of the pain and could not focus and concentrate. (T73)
He agreed during the performance review (which he believed to be pre‑accident) there had been discussions about some issues on a job site however he said these were standard discussion. (T74)
There was absolutely no mention or suggestion in evidence‑in‑chief that prior to the accident he had already commenced negotiating for a new position. It only emerged in cross‑examination that he met a recruiter, in early Jan 2003, appointed by Tenix. After this was revealed he agreed with the cross examiner's proposition that he had "already entered into the process of negotiating with others for a new position" (T75) before the accident.
By his own evidence he had already entered into the process of negotiating for a new position before the accident. (T75)
As indicated this only emerged in cross‑examination and is completely contrary to his evidence‑in‑chief which clearly conveyed the impression the difficulties experienced and the desire for a less responsible position occurred as a result of the symptoms caused by the accident. At no stage during evidence‑in‑chief did he mention he was in the process of negotiating a new position or looking for other work before the accident occurred.
This is a telling blow to the credibility of the plaintiff. It does not lead me to conclude that I cannot believe everything he has said, however on the issue as to whether his past economic loss is caused or contributed to by the accident I find against him.
The plaintiff referred to Medlin v State Government Insurance Commission [1995] HCA 5; (1994 ‑ 1995) 182 CLR 1 at 6 and its application in Redken Laboratories (Aust) Pty Ltd v Docker & Anor [2000] NSWCA 100 and Ballesteros v Chidlow & Anor [2005] QSC 280.
The law is undoubtedly as stated in Medlin, and as was observed by Deane, Dawson, Toohey and Gaudron JJ at p 6:
"For the purposes of the law of negligence, the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience."
In Medlin the plaintiff sustained injury in a motor vehicle accident. He returned to work and believed that he was not performing at the high level he thought desirable, although there were no complaints from his employer. Consequently he resigned and in due course pursed a claim for loss of earning capacity. In dealing with this issue their Honours said at p 6:
"The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision."
The High Court concluded the decision to take early retirement to devote more time to research was a product of the injury sustained in the motor vehicle accident.
In Ballesteros v Chidlow & Anor (supra) the plaintiff had been an energetic woman in good health prior to the motor vehicle accident. The accident caused her difficulties including inability to sleep and constant headaches and she resigned. The court found it was common sense to conclude she would not have resigned if the accident had not occurred and accepted the injuries sustained in the accident were the cause in the relevant sense of her resignation.
In Redken Laboratories (Aust) Pty Ltd v Docker & Anor (supra) Ms Docker suffered injuries and sometime after the accident resigned from her employment. On appeal the trial Judges finding, that as a matter of common sense and experience the injury caused her to resign notwithstanding she lost her capacity to deal harmoniously with others and felt her fellow employees had betrayed her trust and were apparently indifferent to her suffering, was upheld. Sheller JA, Davies AJA concluded she resigned because, for reasons all the result of the accident, she found work intolerable. (Sheller JA at [34]).
Ballesteros and Redken are examples of the application of the Medlin principle. They are, however, factually different to this case. In the plaintiff's case he had already entered the process of negotiating for a new position before the accident. His lack of frankness in evidence‑in‑chief in not disclosing this fact causes me to doubt all of his evidence relating to his departure from Kirfield.
Applying the test specified by the High Court in Medlin, that is, whether as a matter of commonsense and experience there is a causal connection between the defendant's negligence and the plaintiff leaving his employment and consequentially suffering economic loss I am not satisfied there is such a causal connection.
I reach this conclusion primarily because:
(a)On his own evidence he found the Kirfield position "Intense" and a responsible and demanding position.
(b)As at the accident date he had been employed by Kirfield for approx three years and his employment history shows a number of occasions where he changed employment after periods of time of three years or less (i.e. Metcalfe Pumps, Allwood Furniture, Joyce Australia, Scanlen Engineering, Veem Engineering, Ausco, Tenix). As can be seen it is not uncommon for the plaintiff to change employment after periods of approximately three years.
(c)There had also been a performance review that raised some issues.
(d)Before the accident the plaintiff had already entered into the process of negotiations for a new position.
(e)I do not accept the plaintiff's evidence on this point.
Accordingly the plaintiff has not satisfied me his decision to move from Kirfield to lower paid positions at Tenix and elsewhere was in any way related to the accident.
I am not satisfied the accident and/or injuries was either the cause or a cause of the plaintiff leaving his position with Kirfield and am not satisfied the defendant's negligence as a matter of common sense and experience can properly be seen as having caused the economic loss claimed.
I therefore do not allow the plaintiff's claim for past loss of earning capacity or past loss of superannuation, or interest thereon.
Past and future gratuitous services
As to the plaintiff's claim for past gratuitous services, the evidence has been summarised by me at [35] – [37] and [81].
I have found the accident aggravated his pre‑existing injury and caused further injuries and as a result of these injuries I am satisfied his ability to perform domestic activities is restricted.
For reasons previously explained in this judgement [81] I do not accept he no longer mows the lawn.
However I am satisfied on the balance of probabilities the accident did reduce his ability, albeit in a minor way, to perform domestic activities and allow the claim for past gratuitous services.
I am satisfied this reduced ability continues notwithstanding I have found generally the plaintiff had recovered to his pre‑accident condition by May 2007. I accept his evidence asserting restrictions in performing activities like vacuuming, dishwashing and pool maintenance and am satisfied on the balance of probabilities the restriction to his domestic services has continued past May 2007. I accept this is likely to be a permanent restriction.
It is not necessary for me to determine the hours to allow for gratuitous services because it has been agreed by the parties that provided the plaintiff "proves that entitlement over an injury" a reasonable amount is two hours per week for both past and future losses at an hourly rate of $20 per hour. (T99) I accept this calculates to a past loss of 341 weeks or 682 hours at $20 per hour making a total of $13,640. Together with interest at 3 per cent for the 6.5 years, (an amount of $2,660) this equates to $16,300 for past gratuitous services which I allow.
Insofar as future services I accept the accident created a minor restriction on his ability to perform future domestic services. As the plaintiff has a life expectancy of 22 years the appropriate multiplier is 647. I allow this at the agreed two hours per week at $20 per hour resulting in $25,880. I reduce this by 20 per cent for contingencies and allow $20,704.
I have chosen 20 per cent for contingencies after considering the plaintiff's age and pre‑existing injuries.
Past medical and future medication expenses
It has been agreed that if the plaintiff established an injury caused by the accident "to the extent that he says" (T99) past medical expenses are $36,015.06. This is a somewhat curiously worded agreement. Although I have not accepted the injuries caused or contributed to his change of employment or have affected him as much as he would like to lead the Court to believe I accept the extent of the plaintiff's injuries are as he claims. Accordingly, I allow this agreed amount.
I accept Dr Dean's evidence the plaintiff's current and past medication requirements are a direct result of the accident (Exhibit 1, p 29) and Mr Slinger's evidence that the plaintiff has reached a tolerable situation compared to that which would exist by using stronger more efficient medication (Exhibit 1, p 54). I also accept the plaintiff's own evidence that medication was necessary to control his pain.
I find there is a need for future pharmaceuticals expenses. I accept Dr Dean's opinion that it's highly likely there will be a need to continue current medication for the rest of the plaintiffs' life, (Exhibit 1, p 29). The defendant advised she was not quarrelling with those expenses (T111) which were conditionally agreed in the amount of $58,355.30 (T99). I allow this sum.
Therefore the award that I make in favour of the plaintiff is:
Past loss of services $13,640.00
Interest on past loss of services $2,660.00
Future loss of services $20,704.00
General damages after deduction of threshold $24,375.00
Past medical expenses per workers' compensation
(agreed)$36,015.00
Damages for future pharmaceuticals (agreed) $58,355.30
Total$155,749.30
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