Thornhill v Transport Accident Commission
[2019] VCC 699
•23 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-02735
| ANTHONY THORNHILL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 26 April 2019 | |
DATE OF JUDGMENT: | 23 May 2019 | |
CASE MAY BE CITED AS: | Thornhill v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 699 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – s93 – rear end collision – injury to the neck – Richards & Anor v Wylie – plaintiff continuing in employment and activities in relation to show horses – whether burden of proof satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr WR Middleton QC with Mr D Seeman | Robinson Gill |
| For the Defendant | Mr P Jens QC with Ms D Manova | Solicitor to the Transport Accident Commission |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s93(4)(d) of the Transport Accident Act 1986, (hereinafter referred to as “the Act”). In bringing this application, the plaintiff relies upon paragraph (a) of the definition of “serious injury” found in s93(17) of the Act. The injury relied upon is, in essence, one to the neck, with referred pain into the shoulders – see Transcript (hereinafter referred to as “T”) 5.
2 In relation to the injury relied upon, the plaintiff submits it was suffered in a motor vehicle collision which occurred on 14 February 2011 and occurred in Golden Square, a suburb of Bendigo. The vehicle which the plaintiff was driving had stopped when a car in front of him came to a halt suddenly. Another vehicle struck the rear of the plaintiff’s car, forcing it into the back of the vehicle ahead of it. The plaintiff’s car then went or rebounded into the vehicle behind, making contact again. This shall hereinafter be referred to as “the accident”. There is no argument but that the accident occurred or that the plaintiff sustained an injury in it. Counsel for the defendant, with some reluctance, used terminology such as “a range case” and “an old fashioned style whiplash injury” – see T9. Reliance upon any diminution in earning capacity certainly would be challenged.
3 Mr WR Middleton QC with Mr D Seeman of counsel appeared on behalf of the plaintiff. Mr P Jens QC with Ms D Manova of counsel appeared on behalf of the defendant. Whilst there was some confusion about affidavits, the plaintiff effectively adopted three affidavits as being true and correct, save for one minor alteration of no great consequence, and was cross-examined. The remainder of the evidence was documentary in nature and was tendered either by consent or without opposition.
(a) Factual background
4 The plaintiff is aged 53 years, he having been born in 1965. He resides in Koorainghat, New South Wales, which I understand to be a small town or area south of Taree. He lives with his ex-partner, with whom he continues to be on good terms, and their son, who is aged 19 years. The plaintiff grew up in country New South Wales and was educated to Year 10 level. He then attended a TAFE and obtained a certificate relating to green keeping on golf courses. Prior to the accident, he worked principally in the construction and building industry, with a focus on sports fields and facilities. At the time of the accident, he was living in Victoria, whilst working as a project manager for McMahons Pty Ltd, an entity that specialises in such matters as golf course, race track and sports field construction. At the time of the accident, the work that he was performing involved the creation of a new oval at the principal cricket and football ground in Bendigo. Immediately before the accident, he was assisting with a smaller project at Torquay. He had rented a property at Lara, near Geelong, and was living there. In approximately 2000, the plaintiff had purchased a 10 acre property near Taree, this being where he now lives. Apart from the plaintiff residing there, the property is used for the breeding of horses known as “warm bloods”. They compete in dressage and similar events at shows and the like.
(b) The plaintiff as a witness
5 I found the plaintiff to be a credible and impressive witness. I note that Professor Stephen Davis, neurologist, who examined the plaintiff at the request of both the plaintiff’s solicitors and the defendant, described him as being pleasant and cooperative, these remarks being made on two occasions. Mr Rodney Simm, orthopaedic surgeon, also examining on behalf of both parties, stated that the plaintiff presented in a pleasant and cooperative manner. As with Professor Davis, Mr Simm saw the plaintiff on two occasions and expressed that opinion on each of them. Associate Professor N Paoletti, consultant psychiatrist, who also examined on behalf of both parties, employed similar wording – a pleasant and cooperative man. Mr David Brownbill, consultant neurosurgeon, who saw the plaintiff at the request of his solicitors, referred to him as being straightforward, alert and cooperative without embellishment. Dr John Owen, consultant orthopaedic surgeon, who examined the plaintiff at the request of the defendant, similarly described him as a cooperative man. Dr Mark Lazarus, eye specialist (the plaintiff is not pursuing a problem in relation to his vision as part of this application), described the plaintiff as having a pleasant personality and being a cooperative man.
6 In short, the plaintiff appears to have made a favourable impression upon examining specialists. Similarly, he made a very favourable impression upon me. I regard him as being a straightforward and honest witness and I accept his evidence without hesitation or reservation.
(c) The state of the plaintiff’s health prior to the accident
7 The plaintiff had suffered from such things as indigestion and high cholesterol prior to the accident, the latter being controlled by diet and the former by medication called Pariet. He was not on any other medication. He had undergone tendon surgery to the right hand and sustained a fracture of the left scaphoid, though it was not suggested that such things are of any great impact in the present case. The plaintiff had no history of neck or back problems.
(d) The injury, its treatment and diagnosis
8 As stated, the accident occurred on 14 February 2011. The plaintiff was seen at the Bendigo Hospital on that day. He was treated with analgesia and an immobilising collar. This was subsequently removed. The plaintiff was discharged with the diagnosis of sternal bruising/neck and back strain and was advised to take analgesia and rest. He returned on the following day when a CT angiogram and an audiogram were performed, these being normal. Contusion of the right lung was reported, but there was good lung volume noted. The plaintiff was again discharged.
9 As stated, at the time of the accident, the plaintiff was renting accommodation at Lara. Accordingly, the first general practitioner whom he saw appears to have been Dr Vi Nguyen at the Lara Medical Centre on 22 February 2011. The plaintiff was diagnosed Panadeine Forte, Panadol and Voltaren and certified unfit for work.
10 The plaintiff was seen by Dr Eithne Cronin at the same clinic on 4 March 2011. That doctor saw him again on 10 March 2011, when chest discomfort arising from impact with the steering wheel was improving, but neck pain seems to have been playing a larger role. It was described as the reason for the visit. The plaintiff was prescribed Panadeine Forte and Voltaren. The plaintiff attended regularly upon Mr Philip Warne, clinical masseur, at the Corio Bay Sports Medicine Centre. The plaintiff also had some vision problems, but there was little emphasis placed upon this in the present application – see T6.
11 In any event, the plaintiff returned to his employment after an absence of some six to eight weeks, although suffering some ongoing symptoms. Ultimately, he determined to return to New South Wales in an endeavour to find some lighter work. His next general practitioner was Dr Chris Lenkic in Taree. On 19 January 2013, Dr Lenkic referred the plaintiff to a physiotherapist. The letter of referral includes a history of the accident and the observation that the plaintiff had had ongoing neck and predominantly right shoulder pain since. There was tenderness through the right trapezius and right paravertebral muscles and a reasonable amount of tension and tenderness on palpation. The physiotherapist who saw the plaintiff would appear to have been Mr Christopher Klass. His consultation notes contain many abbreviations and are not easy to read. However, the history obtained refers to the plaintiff as having received physiotherapy since the accident. There is reference to him suffering from constant pain in the neck and headache, with such pain being rated at 7 out of 10 when aggravation has occurred. The pain had been worse since the plaintiff moved up from Melbourne and was aggravated by such things as lifting, shovelling and reaching.
12 The clinical records of Access Healthcare in Taree were placed in evidence by the defendant. These indicate that the plaintiff was not a regular attendee in relation to neck and head complaints, but was seen as follows. The plaintiff was seen by Dr Ping Jiang on 5 December 2012, complaining of right shoulder and neck pain and referring to the accident. He also mentioned headaches which he had suffered since the accident if he was doing hard labouring work and the possibility of a whiplash injury was raised. On 16 November 2015, the plaintiff was prescribed Mobic capsules, and later prescribed Panadeine Forte on 12 April 2016, although what this was for is not spelled out.
13 When seen by Dr Fu Wen Chong on 29 September 2016, the plaintiff presented for a general check-up and it was recorded that he had been neglecting his health for some time. On 17 November 2016, he presented to the same doctor with severe neck pain radiating to the shoulders. The plaintiff saw Dr Chong again on 4 May 2017, complaining of worsening pain in the neck and shoulder with headaches, there again being reference to the motor vehicle accident. Dr Chong referred the plaintiff for x‑rays, which appear to have been performed on 15 May. The x‑ray of the cervical spine showed some disc degeneration at C5-6 and some minor narrowing. Because of the plaintiff’s chronic headaches, an MRI of the brain was carried out approximately three days later, the result being that the study was within normal limits. Following the radiological investigations, the plaintiff again saw Dr Chong on 25 May 2017, it being suggested at this consultation that there should be conservative management of his condition. Subsequent visits to this clinic were for reasons un-associated with the plaintiff’s neck or shoulder symptoms.
14 The plaintiff has also been seen for medico-legal purposes. Professor Stephen Davis, neurologist, examined the plaintiff at the request of both the plaintiff and the defendant, originally reporting on 13 April 2015. Professor Davis recorded the various symptoms and problems from which the plaintiff was suffering. These included that pressure in the plaintiff’s neck and head disturbed his sleep most nights. Professor Davis diagnosed a jolting, whiplash-type injury to the cervical spine, apart from the impact to the chest. Whilst the plaintiff had made a generally good recovery, he continued to suffer from aching and discomfort, related particularly to his activity level, and there was some impairment of cervical spine movement. The plaintiff also complained that an activity that put pressure on his arms and neck could bring on severe headaches. The plaintiff had reduced the playing of contact sports with his son and was careful with lifting. Professor Davis was of the view that, from a neurological viewpoint, there was a generally good prognosis.
15 Professor Davis reported again on 14 December 2018, although this seems to have been solely to the plaintiff’s solicitors. Upon examination, the plaintiff still had reduced cervical mobility, particularly in relation to turning to the right. If the plaintiff had to look to the right, he tended to have to twist his whole body. He was still suffering from muscle soreness. The plaintiff informed Professor Davis that he was still bothered by “massive headaches”, Professor Davis noting that there was no pre-accident history of migraine. The plaintiff again complained of disturbed sleep most nights. Professor Davis diagnosed a jolting, whiplash-type injury to the cervical spine.
16 Professor Davis stated that, whilst the plaintiff had made a generally good recovery, there was aching and discomfort, related particularly to his activity level. There was some impairment of cervical spine movement, it being noted that the plaintiff also complained of pain in the shoulder regions. Professor Davis thought that the plaintiff’s headaches followed a migraine pattern and were not specifically related to the accident from a physical viewpoint, but could be the result of psychological factors. Professor Davis thought that the plaintiff’s condition had stabilised. The plaintiff was able to conduct suitable, but modified, employment and there had been some impact upon personal and recreational pursuits. There was a generally good prognosis from the neurological viewpoint. Professor Davis was prepared to make a percentage assessment of impairment of the cervical spine, an ingredient of which is permanence.
17 Mr Rodney Simm, orthopaedic surgeon, also examined the plaintiff at the request of both parties. An impairment assessment pursuant to the AMA Guides again seems to have been a significant reason for this assessment. In any event, Mr Simm, having taken a comprehensive history, noted that the plaintiff had had several courses of physiotherapy and was taking over-the-counter medication on an as needs basis, such medication being Nurofen in relation to the neck and shoulder girdle pain from which he suffers. On some days, the plaintiff could take up to six Nurofen. The plaintiff had also had regular massage treatments and was performing such things as stretching exercises. He experienced pain and soreness in the neck, shoulders and chest each day.
18 Mr Simm referred to the plaintiff having suffered an acceleration extension injury of the cervical spine, with persistent cervical symptoms and headaches, consistent with the diagnosis of a whiplash syndrome. He also referred to a possible soft tissue injury to the shoulder girdles. Mr Simm was prepared to make an assessment of permanent impairment pursuant to the AMA Guides, also observing that the plaintiff’s condition was stable and not likely to change in the foreseeable future. He expected the plaintiff to continue with the described symptoms in both the short-term and long-term, with no change anticipated. He also referred to the fact that the plaintiff was unable to go back and play regular golf and his capacity to participate in his son’s football activities was reduced.
19 Mr Simm examined the plaintiff again on 15 November 2018, on this occasion reporting only to the plaintiff’s solicitors. Mr Simm reported that the plaintiff had ongoing problems with his neck and shoulder girdle pain, with no period of recovery since the previous examination. He noted that the plaintiff essentially now worked in a non-physical role, as shall be discussed. This had resulted in some improvement in the frequency of the severe headaches and some reduction in the chronic neck and shoulder girdle pain. In the previous year, the plaintiff had been concerned by persistent pain. He was taking over-the-counter medication, on average on alternate days, and may take up to four tablets of either Nurofen or Panadol. The plaintiff still had fluctuating neck and shoulder girdle pain, with limited movement of the head and neck. He was still having severe headaches from time to time.
20 The diagnosis of Mr Simm was again of an acceleration extension injury of the cervical spine with persistent cervical symptoms and headaches consistent with the diagnosis of a whiplash syndrome. He thought that the persistent symptoms may relate to unresolved aggravation of early C5-6 cervical intervertebral disc degeneration evident on the recent plain x‑rays. The bilateral shoulder girdle pain could be explained on the basis of referred pain from the cervical injury. Mr Simm considered the injuries to be stabilised and likely to continue. The plaintiff was coping with his present work. He had been able to ride horses and had participated in some dressage competitions, although there is also a reference to some restrictions in this regard.
21 Associate Professor N Paoletti, consultant psychiatrist, examined the plaintiff at the request of both parties. I appreciate that the plaintiff relies upon paragraph (a) of the definition in this case, but psychological or psychiatric consequences can be of relevance – see Richards & Anor v Wylie (2001) VR 79 and the very recent decision of Jovceva v Transport Accident Commission [2019] VSCA 105. Further, matters of history and descriptions of symptoms also have the potential to be useful. Associate Professor Paoletti took a history of the plaintiff being anxious as a driver, having vivid flashbacks, hyperventilating and becoming irritable when in pain and the like. He also quoted the plaintiff as saying that he does not get a full night’s sleep, because his neck and body aches. Associate Professor Paoletti was also concentrating upon performing an Evaluation of Psychiatric Impairment. He considered the prognostic outlook to be static for the foreseeable future, diagnosing the plaintiff as suffering from an Unspecified Anxiety Disorder and a Chronic Unspecified Adjustment Disorder.
22 The plaintiff had also been assessed by Dr Mark Lazarus, eye specialist. There is no substantial reliance upon the consequences of any eye injury or impairment in this application. Suffice to say that Dr Lazarus diagnosed that field loss and convergence insufficiency had been caused by the accident. A more recent report from Dr Lazarus does not take matters much further. I shall not take the eye injury into account.
23 Mr David Brownbill, consultant neurosurgeon, saw the plaintiff at the request of his solicitors on 9 May 2017, reporting approximately one month later. Mr Brownbill considered that the plaintiff had sustained soft tissue injuries to structures around the cervical spine, with likely damage to the C5-6 intervertebral disc space, perhaps based on pre‑existing degenerative changes. He also considered that the headaches described by the plaintiff may have been cervicogenic or post-concussional in nature. He regarded the plaintiff’s injury as stabilised, and with no apparent psychological component.
24 Dr John Owen, consultant orthopaedic surgeon, examined the plaintiff at the request of the defendant on 23 October 2018. Dr Owen noted that the plaintiff’s current symptoms were neck pain and episodic quite severe headaches. Upon examination, Dr Owen noted that the plaintiff’s cervical spine movements were quite limited, although there was no neurological loss in the upper limbs.
25 In relation to any pre‑existing injuries, Dr Owen was of the view that none would have caused any restriction of his domestic, employment or leisure activities. He considered that, in the accident, the plaintiff suffered an acceleration/deceleration injury to the cervical spine, which has left him with residual symptoms. He described the plaintiff as essentially suffering from neck pain and stiffness, along with episodic severe headaches. Dr Owen thought that the headaches may be related to the neck problems, also stating that he was not an expert in relation to this particular area of medicine.
26 Dr Owen considered that the injury to the cervical spine had left the plaintiff with “permanent residuals” in the form of pain that is provoked by activity and loss of movement of the cervical spine. He did not expect there to be any change in relation to interference with the plaintiff’s domestic, employment and leisure activities. He repeated that the plaintiff came across as a very straightforward individual who made no attempt to exaggerate his disability and that there were no inconsistencies.
27 In relation to diagnosis, and leaving to one side the plaintiff’s migraine-type headaches, there is not a great deal of difference between the various opinions. Whether it be described as a jolting, whiplash-type injury to the cervical spine (Professor Davis); an acceleration extension injury to the cervical spine with persistent cervical symptoms and headaches consistent with the diagnosis of a whiplash syndrome (Mr Simm); a soft tissue injury to structures around the cervical spine with likely damage to the C5-6 intervertebral disc (Mr Brownbill); or an acceleration/deceleration injury to the cervical spine with resultant neck pain and stiffness (Dr Owen), the ultimate resultant diagnosis seems to me to be much the same, albeit with varying wording.
28 The plaintiff has suffered a whiplash-type soft tissue injury to the cervical spine, possibly involving some aggravation of pre‑existing, but asymptomatic, degenerative changes. What can be said about his severe headaches which occur from time to time is that they did not exist prior to the accident. As stated by Mr Brownbill, they may be cervicogenic or post-concussional in nature. Mr Simm described the persistent cervical symptoms and headaches as being consistent with the diagnosis of a whiplash syndrome. There are other views. However, on balance, I favour the view that the headaches are consequential upon the accident.
29 If there has been aggravation of a pre‑existing condition, namely degenerative changes in the cervical spine, there is no suggestion that such changes were previously symptomatic. I do not regard this as a case where there is a need to assess the amount of increase in symptoms, because previously none existed.
30 Insofar as there are any psychological or psychiatric consequences of injury, these will only be taken into account in the manner referred to in Richards v Wylie. I am of the view that the primary impairment is one within the meaning of paragraph (a) of the definition and that was the way in which the case was presented. However, as discussed in Richards v Wylie, resultant mental or behavioural disturbances flowing from the physical injury can be considered. In the witness box, the plaintiff did not strike me as suffering from overt mental or behavioural disturbances or disorders. He has had no psychiatric or psychological treatment. It may be, as stated by Associate Professor Paoletti, that he has an unspecified anxiety disorder or adjustment disorder. This will be borne in mind, but I am not of the view that the consequences flowing therefrom play any significant role in the plaintiff’s overall condition.
31 I am also satisfied that the consequences of the injury are long-term within the meaning of the Act. Professor Davis has described the plaintiff’s condition as being stabilised and made an impairment evaluation. Mr Simm expressed the opinion that the plaintiff’s injuries have stabilised and that his condition is likely to continue. The symptoms are stable and entrenched and his condition is not likely to change in the foreseeable future. Mr Brownbill has described the plaintiff’s condition as stabilised and expected no deterioration from a neurosurgical point of view. Dr Owen has stated that the injury to the plaintiff’s cervical spine has left him “with permanent residuals”. He did not expect that there would be any changes to such things as interference with the plaintiff’s domestic, employment and leisure activities.
(e) Other developments since the injury
32 Following the accident, the plaintiff was absent from employment for a period of approximately six weeks, with a further two weeks absence shortly thereafter. Overall, the plaintiff’s return to work with McMahons Pty Ltd was not successful and, in his affidavit of 21 March 2019, he has described the problems which he had with neck pain and the like when performing excavation work and similar duties. Accordingly, he ceased that employment on a date which is not entirely clear, but would appear to be in September 2011. He returned to New South Wales and worked briefly in a couple of employments before commencing permanent employment with an entity called Mid Coast Road Services. Thereafter he was employed as a greenkeeper by Great Lakes Council in Forster, New South Wales, this apparently following some traffic control work with local councils.
33 Ultimately, in December 2016, the plaintiff obtained a job with MidCoast Council as a team leader, his work being related to the management of parks, gardens and sports fields. There is not a great deal of physical work related to this. The plaintiff now has some 22 people under his supervision and most of his time is spent in an office.
34 The plaintiff has also continued with the breeding and showing of “warm blood” horses. He competes from time to time, but the main concentration of his business is on the breeding of such horses. I would refer to T56 and following pages. One particularly good horse which he bred was then given to an outstanding rider, who had been an Olympian, to train and ride. Whilst the plaintiff obtains some money from this, his employment remains very much his principal source of income. He is obviously very interested in the breeding side of his hobby and, as stated, has ridden at shows on occasions, but not on his top quality horses.
Ruling
35 I am satisfied that the plaintiff has discharged the burden of proof in this matter. I have come to that conclusion for the following reasons, which are not listed in order of importance or significance.
(a) In applications of this nature, the credit of the plaintiff is usually important. As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] VR 439 at [448]:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance …”
This observation has been referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and Haidar v Transport Accident Commission [2016] VSCA 182. As earlier stated, I do not doubt or question the plaintiff’s credibility and indeed accept him as a reliable and impressive witness. Indeed, he has made a favourable impression upon essentially every medical examiner. I accept his oral evidence and what he has sworn in his affidavits.
(b)In his affidavit of 21 March 2019, the plaintiff has sworn that he has pain in the neck that is always there, but varies in intensity. Even leaving to one side his severe headaches, the plaintiff has aching pain in the neck and in both shoulders. As was said by the Court of Appeal in Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
As stated, the plaintiff has sworn that he has neck pain that is always there, whilst varying in intensity, and that he takes painkilling medication in the form of tablets, sometimes in quite large numbers, on a regular basis.
(c)As set out above, one aspect of his pain upon which the plaintiff has placed particular emphasis is interference with his sleep. He can wake up to three times a night due to neck pain and finds it hard to get back to sleep for a period thereafter. In Haden Engineering v McKinnon (2010) 31 VR 1, Maxwell P stated as follows:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”
(d)There are also psychological or psychiatric consequences which, as set out in Richards v Wylie, can be taken into account, even if they do not play a dominant role. Associate Professor Paoletti is the only consultant psychiatrist from whom evidence has been obtained. He has taken a history of such things as the anxiety which the plaintiff feels when driving or as a passenger, vivid flashbacks, increased anxiety in traffic, a decrease in concentration and the like. As stated, Associate Professor Paoletti diagnosed an anxiety disorder and a chronic adjustment disorder. These are conditions which, whilst not being predominant, are consequences which can be taken into account.
(e)Counsel for the plaintiff argued that the plaintiff has suffered some diminution in earning capacity and that this was a factor which could be taken into account. Reference was made to Petkovski v Galletti [1994] 1 VR 436 (in which decision there is reference to other cases, such as Ninkovic v Pajvancek [1991] 2 VR 427). I accept that there are occupations and fields of endeavour which are now closed to the plaintiff as a consequence of the accident.
To Mr Simm, examining on behalf of both parties, the plaintiff stated that the manual work which he was performing immediately prior to the accident was more lucrative than the work in which he had subsequently been involved and he did not believe that he could go back to that pre‑injury manual work. Mr Simm concluded that the plaintiff’s injuries have permanently incapacitated him for sustained heavy manual physical work. I appreciate that Mr Brownbill came to a different conclusion, but, and with all due respect to Mr Brownbill, he does not seem to have enquired into the plaintiff’s pre‑injury duties to the same extent as some other examiners.
Dr Owen, examining on behalf of the defendant, expressed the view that the plaintiff had modified his work and recreation so as to cope with his disability. In relation to the plaintiff’s neck problem, Dr Owen referred to interference with the plaintiff’s domestic, employment and leisure activities. He also referred to the plaintiff’s history, which he obviously accepted, that, when he returned to work with his pre‑injury employer, he struggled under pressure, but kept working as a project manager, trying to avoid any physical work. Dr Owen noted that the plaintiff’s present employment was essentially an office job. Professor Davis, examining on behalf of both parties, referred to the plaintiff as working effectively in a modified employment pattern, but having difficulties with more physically demanding work.
As stated, I accept that there are areas of employment, including employment in which the plaintiff was previously engaged, that are now closed to him. Leaving to one side losses associated with his horse breeding and the like activities, it is apparent from the summary of the plaintiff’s taxation returns, which was put in evidence, that, apart from a reduction in the number of areas of employment in which the plaintiff can participate, there also has been an actual drop in income. The plaintiff’s gross income from exertion in the 2010/11 financial year was $99,589. The highest amount which he has earned from exertion since has been $76,159. I take these matters relating to employment capacity into account.
(f)The injury has also resulted in interference with the plaintiff’s every day and sporting activities. Heavy farm work is now beyond him and he has to pay for others to do certain aspects of such work. The plaintiff had been a keen sportsman and he has sworn that it was “very special” to him to be able to teach his son aspects of football and rugby. He now has to modify such activities. He has reduced the number of horses that he breaks in and trains by himself. Previously he used to be able to deal with other people’s horses in addition to his own and receive some money for his endeavours.
Prior to the accident he was “a very keen golfer” – see the plaintiff’s affidavit of 21 March 2019. Whereas he used to play with friends approximately once a fortnight, he now only plays once or twice a year. After the accident, he found that, as a result of playing, he developed a “really painful” neck and headaches. He has now given up golf, other than on special occasions.
36 Bearing in mind all of the above, as stated, I find that the plaintiff has discharged the burden of proof.
Conclusion
37 The plaintiff is successful. He has discharged the burden of proof. Leave is granted to him to bring proceedings. I shall hear the parties as to any ancillary orders that are required.
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