Tristan Baxter v Hyunkeun Song and Insurance Australia Limited trading as NRMA Insurance

[2014] ACTMC 7

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Tristan Baxter v Hyunkeun Song & Insurance Australia Limited trading as NRMA Insurance

Citation:

[2014] ACTMC 7

Hearing Date(s):

22 & 23 May, 25 &26 September 2014

DecisionDate:

27 November 2014

Before:

Magistrate Morrison

Decision:

The plaintiff’s application is dismissed.

Category:

Principal Judgment

Catchwords:

CIVIL LAW – claim for damages for personal injury – assessment of damages – no point of principle

Legislation:

Cases:

Parties:

Civil Law (Wrongs) Act 2002 (ACT)

Griffiths v Kerkemeyer (1977) 139 CLR 161

Tristan Baxter (plaintiff)

Hyukeun Song (first defendant)
Insurance Australia Limited Trading as NRMA Insurance (second defendant)

Representation:

Counsel

Mr S Pilkinton SC (plaintiff)

Mr J Pappas (defendant)

Solicitors

Blumers Lawyers (plaintiff)

HWL Ebsworth (defendant)

File Number(s):

CS 706 of 2013

CS715 of 2013

MAGISTRATE MORRISON:

1. Amanda Jane Nitschke and Tristan Baxter were passengers in a motor vehicle which was involved in a collision while travelling along the Tuggeranong Parkway on 30 August 2012.  Liability is admitted.  The contest before me has been about the extent of the plaintiffs’ injuries and the effect of them – past, present and future.  With the consent of all parties, the claims of both plaintiffs were heard together on the basis that evidence received on each claim could be considered in connection with the other to the extent that it was relevant.

1. The claims are however separate and these reasons deal with the claim of the plaintiff Baxter.

1. The medical evidence in his case is as follows:

a.    Medical reports obtained by the plaintiff from Dr Le Leu, occupational physician dated 27 April 2013 and 14 June 2013.

b.    A medical report obtained by the plaintiff from Dr Burgess, orthopaedic surgeon, dated 21 October 2013.  Dr Burgess also gave oral evidence.

c.    Medical reports obtained by the defendants from Dr McBurnie, consultant occupational physician dated 18 January 2013 and 31 March 2014. 

1. The other evidence in the case of the plaintiff Baxter comprises his oral testimony and that of a Mr Paul Muscatt, and some other documentary evidence.  Mr Baxter was extensively cross-examined.  I do not propose to attempt to summarise the whole of the evidence in the case.  My decision on his claim naturally results from the factual findings I make which are in turn materially affected by the conclusions I reach about the reliability of his evidence and so it is necessary for me to make some observations about that testimony.

1. Mr Baxter is 30 years of age.  He completed year 10 at school.  He said that he was not very good academically – something he attributed to dyslexia.  After completing school he worked as a cement renderer, brickie’s labourer, roof tiler, insulation filler and landscaper labourer.  He also said that he had worked as an apprentice chef but it appears that there was no formal apprenticeship as such.  Immediately pre-accident he was working with a company called Capital Fine Print – essentially doing manual labour by way of stacking papers and the like. 

1. There are some preliminary comments to be made about my assessment of the plaintiff Baxter.  The job history described earlier is commensurate with my own assessment of the abilities of the plaintiff Baxter gleaned from his time in the witness box.  It is apparent that he does not have a high level of academic ability and that he is not a sophisticated person.  It was equally apparent that he was not familiar with the procedures around the giving of evidence and that he was uncomfortable in the witness box.  I have reminded myself that one ought not too readily infer that such discomfort results from untruthfulness.

1. Mr Baxter was subject to very robust cross examination over a lengthy period. Mr Pappas for the defendants was highly critical of the testimony of Mr Baxter for a number of reasons and it is convenient to focus on those criticisms.

1. I do not accept that the criticisms of the plaintiff Baxter are valid to the extent that they call into question his testimony that he suffers from dyslexia or that they suggest that the time he took in the witness box to review and mark a document was not reflective of the reading and comprehension difficulties he suffers as a result of his condition.  Further I do not accept the criticisms of Mr Baxter are valid to the extent that they suggest that the nature of the motor vehicle collision was such that it could not have caused injuries to the extent of those of which he complains.  Each of those things could have been the subject of expert medical evidence in the defence case but they were not.  In the absence of such medical evidence I reject the criticisms of Mr Baxter based on the matters to which I have just referred. 

1. Whilst I do reject the particular criticisms of the plaintiff Baxter to which I have just referred, and even though I have made generous allowance for the personal circumstances of Mr Baxter in assessing his evidence, I do find myself in general agreement with the submissions of Mr Pappas for the defendants when he says Mr Baxter was an unimpressive witness.

1. There were a number of aspects of the evidence of the plaintiff Baxter which lead me to that conclusion.  They include the following:

a.    The evidence of occasional debilitating back spasms is not supported by evidence of any observations to that effect by Ms Nitschke or by the former supervisor Mr Muscatt or by any reports to that effect by Mr Baxter to any medical practitioner.  In the circumstances the claim of such spasms seems highly unlikely.

b.    There was significant retreat by the plaintiff Baxter in his evidence about the time off work he took as a result of the accident.    

c.    Mr Baxter conceded under cross examination that the circumstances under which he came to leave his employment as a landscape labourer were not as he had originally described in his evidence in chief.

d.    What the plaintiff Baxter says about being prescribed heavy painkillers is not supported by other evidence as one would expect it to be

e.    The plaintiff Baxter did display behaviour associated with being evasive and self-serving in answering questions, including taking a long time before answering questions the nature of which did not strike me as requiring lengthy consideration.

1. As I have said I have made allowance for the particular personal circumstances of Mr Baxter as well as the usual factors such as the dimming of memory over time and the understandable desire of a plaintiff to see that their case is presented at its highest.  But even making allowance for those factors the conclusion I reach is that at times the plaintiff Baxter was not being entirely truthful and that at times he deliberately either exaggerated or understated his evidence according to his perception of what best suited his case.

1. Having reached that conclusion about the reliability generally of the testimony of Mr Baxter, I turn to the question of the nature and effects of his injuries.  Again I have not attempted to summarise the whole of the evidence, and move directly to my findings, but I do where necessary include reasons for rejecting evidence contrary to my findings.

1. I start by observing that the conclusion I have reached about the reliability of the plaintiff Baxter’s evidence presents some difficulties in assessing the true extent of the injuries suffered by him and the effects of them, especially against the background of the expert medical opinion relying heavily, as it usually does, on the history given by the plaintiff to the medical expert.  Having said that I acknowledge that whilst my conclusion about the plaintiff Baxter’s reliability necessarily affects my assessment of the evidence, it does not operate as any form of bar to recovery by him.

2. In relation to the medical evidence generally I do not accept the submissions of Mr Pappas that the long time since he has been in clinical practice is a basis for not accepting the evidence of Dr Burgess.  There is no suggestion of any change in clinical practice with which the doctor was not up to date and I cannot see that recent orthopaedic surgical experience is relevant for present purposes.  The doctor did however display a reluctance to countenance certain propositions put to him which did not inspire confidence in his objectivity.  In any event because I have concluded that the plaintiff Baxter was not entirely truthful that inevitably affects the reliability of the history upon which the doctor based his opinion and therefore my view of his expert evidence.      

1. The findings I make in relation to injuries suffered by the plaintiff Baxter, the impact of those injuries upon him and the prognosis are as follows:

a.    The plaintiff Baxter suffered a minor soft tissue injury to his neck causing stiffness and low-level neck and shoulder pain which settled within one week after the accident.

b.    The plaintiff Baxter also suffered a soft tissue injury to his back in the mid thoracic – upper lumbar area. No significant structural damage was caused. The degenerative changes in the spine shown on medical investigation are age related and not caused by the accident. 

c.    The effects of the soft tissue injury to the plaintiff Baxter’s back are that he has and continues to suffer occasional low level pain caused by prolonged sitting or by other activity which places significant stress on his back.  He had reported to Dr McBurnie at a second consultation in March of this year that his lumbar-thoracic pain had become constant but I reject that assertion as being an instance of his exaggeration.  

d.    The low level effects just described are likely to persist at more or less the same level into the future. 

e.    The plaintiff Baxter suffered some modest level of pain and discomfort in his post-accident employment with Capital Fine Print but did not suffer the debilitating back spasms he described in his evidence.  I have earlier given reasons for rejecting the evidence of debilitating back spasms.   

f.   To the extent that the expert evidence of Dr Burgess indicates the presence of a more serious injury, I reject that evidence for a range of reasons including that the doctor’s opinion was influenced at least in part by an exaggerated history taken from the plaintiff and that the doctor demonstrated what I would describe as a reluctance to turn his mind to reconsideration of his opinion based on an assumption that the plaintiff had been less than entirely candid with him.  For the same reasons I reject the evidence of Dr Burgess at to the possible eventual need for root decompression surgery.

g.    A consequence of the injuries described and their effects is that, whilst there is little that the plaintiff Baxter is prevented from doing as a result, a number of very strenuous physical activities are likely to be accompanied by some modest level of pain. I find that occasional physiotherapy has been and is likely to continue to be an effective treatment for the pain experienced by the plaintiff Baxter.

h.    I am not persuaded that a basis has been made out for an award of damages under either the principle in Griffiths v Kerkemeyer or under the extended basis in section 100 of the Civil Law (Wrongs) Act 2002. The evidence does not establish a need for relevant services to be provided to the plaintiff Baxter or that he has suffered any loss of capacity to provide relevant services to others.  To the extent that the more strenuous of his ordinary work around the home is more likely to be accompanied by pain that is part of his general damages award.

i.   Consistently with the finding just referred to, vigorous and/or prolonged sexual intercourse in some positions is likely to result in back pain.  The plaintiff Baxter gave evidence of acts of sexual intercourse of extraordinary duration pre-accident which he says had to be curtailed significantly after the accident.  Again I conclude that he has exaggerated but in any event in assessing damages I have made some allowance for reduced enjoyment of sexual intercourse.    

j.   The nature of the employment engaged in by the plaintiff Baxter before the accident is representative of the type of employment to which he is suited by his pre-accident education and abilities.  His pre-accident prospects of employment were limited to some extent by the dyslexia which he describes.  Some of the types of employment to which he is suited may involve physical activities sufficiently strenuous to cause pain because of the residual effects of his injury.  It is possible that some avenues of employment otherwise open to him by virtue of his pre-accident education and abilities may be effectively closed to him because the duties required are so strenuous that the accompanying pain is too great.  In assessing the likelihood of this possibility in the future I take into account the testimony of Ms Nitschke about the types of jobs for which she has been looking for the plaintiff Baxter.  I regard the scope of her enquiries in that area as relevant whether based on discussions with the plaintiff Baxter or her own observations of his abilities.  My overall assessment is that the likelihood of his injuries affecting future employment is small.  Nevertheless he is still a young man with many years of what would ordinarily be a normal period of working life ahead of him and he is entitled to be compensated for that risk.

k.     The plaintiff Baxter’s ability to effectively carry out the duties which would be involved in operating his own business despite the ongoing effects of his injury must also be seen as an unknown, although his intention to pursue the possibility of doing so is some indication of his own assessment of what he is capable of doing. 

l.   To the extent that the expert evidence of Dr Burgess suggests employment consequences different to the findings to which I have just referred I reject that evidence for the reasons given earlier.

m.   A submission was made about vocational re-training for the plaintiff Baxter but there was a lack of evidence from him about types of employment which he would be willing or able to undertake and the availability, nature and duration of any training required for any of them.    

n.    In the end result it is not possible to confidently assess the extent of the residual effects of injury on the plaintiff Baxter’s earning capacity, and hence I have adopted the approach of allowing a buffer.  Having said that, the starting point in my calculations has been that the plaintiff Baxter’s pre-accident employment prospects were rather limited in any event and in calculating the amount of a buffer I have taken into account the multiple contingencies associated with possible future employment for the plaintiff Baxter as well as the vicissitudes of life generally.

1. Having regard to those findings, my assessment of damages is as follows:

   a.General damages  $20,000.00

   b.Interest on past general damages (calculated on the basis of

   4% on $12,000 for 2 years and 3 months and adjusted for
   spread of past general damages since accident date)   $540.00

   c.Out of pocket expenses         (as claimed)   $3,316.90

   d.Future out of pocket expenses (analgesics, general medical

   practitioners expenses and some allowance for physiotherapy)     $3,000.00  

   e.Past loss of earnings (calculated on the basis of 3 lost

   shifts)              $388.50

f.Buffer for future economic loss   $5,000.00

TOTAL  $32,245.40

1. I therefore give judgement for the plaintiff Baxter against the second defendant in an amount of $32,245.40 for claim.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Morrison.

Associate: Gabrielle Munro

Date: 27 November 2014