Van Haltren v Tatton - [2011] WADC 61

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: VAN HALTREN -v- TATTON [2011] WADC 61

CORAM: FENBURY DCJ

HEARD: 14-15 FEBRUARY 2011

DELIVERED : 15 APRIL 2011

FILE NO/S: CIV 494 of 2010

BETWEEN: STANILAUS CHRISTOPHER VAN HALTREN
Plaintiff
AND
SIDNEY MICHAEL TATTON
Defendant

Catchwords:

Damages for personal injury - Turns on own facts

Legislation:

Nil

Result:

Damages assessed at $10,533

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr D R Sands

Solicitors:

Plaintiff: Simon Walters
Defendant: Talbot Olivier

Case(s) referred to in judgment(s):

Nil

FENBURY DCJ: Mr Van Haltren was injured whilst travelling as a passenger in a bus on 31 January 2009.
He was sitting in a seat near and facing towards the front when, somehow, the bus suddenly decelerated, perhaps hitting a kerb, causing him to fall forward out of his seat and land awkwardly on his left knee and hand.
Liability for negligence has been admitted.
The incident was recorded on film and played during the hearing.
It is Mr Van Haltren's case that the fall caused him soft tissue injury but, more significantly, it took away his independence and self‑confidence such that his quality of life has been and will be adversely affected and, given his age and health, will be permanently so affected.
Thus counsel asserts that Mr Van Haltren's injury, as a percentage of a worst case statutory amount, is greater than 5.5%.
On behalf of the defendant it is put that given the pre‑existing health issues Mr Van Haltren suffered, although there may have been accident caused exacerbations, these settled within 12 months or so and he has now regained his pre‑accident level of health.
Similarly for Mr Van Haltren's claim for gratuitous services and care, it is submitted on his behalf that the amount of care received and required at an agreed rate of $20 per hour exceeds $6,000.
This is also disputed on behalf of the defendant.

Mr Van Haltren's evidence

Mr Van Haltren was born in 1936 in India. He arrived in Australia in 1971 thereafter pursuing a career as a shunter with the railways. He was made redundant in 1996 aged 60.
During his employment, Mr Van Haltren suffered at least two serious accidents in the workplace. These caused injury to his back, neck, right knee and shoulder. He also suffered a motor vehicle accident in 2001 which caused 'whiplash' symptoms but in respect of which no claim was made.
After he retired and prior to the accident the subject of this litigation, Mr Van Haltren had a number of health problems including diabetes, heart problems, chronic obstructive airways disease and sleep apnoea. He also had some symptoms of joint pain. He had bodily aches and pains such that he took high doses of powerful analgesia, variously estimated at '5 – 6' or '6 – 7' Panadeine Forte per day.
In addition to this, Mr Van Haltren was overweight and did no exercise.
Nevertheless, Mr Van Haltren maintained that prior to the accident he led a reasonably active life for his age, was independent, and often ventured out alone using public transport.
At the time of the accident Mr Van Haltren was travelling on a bus facing forward sitting in the front row on the right‑hand side, on the aisle. His wife was sitting opposite him but on a longitudinal seat.
Somehow or rather the bus hit a kerb turning left, according to Mr Van Haltren and he fell forward off the seat onto his knee and hurt his left side. He said the bus bumped twice. He said his legs got caught under the seat on the left‑hand side and that his left hand was injured. Other people helped him up. He noticed that he had a skinned knuckle and finger on his left hand.
The incident was filmed and the film is exhibited. It does not look like a particularly violent or dramatic incident but what needs to be borne in mind, I think, is that Mr Van Haltren was a large man, tall, overweight, and he was 73 years of age.
Mr Van Haltren said that he continued on his journey to the Belmont Forum and got some bandaids for his minor knuckle injury and then caught a taxi home. The next day he attended upon his general practitioner, Dr Salvaris who referred him for physiotherapy and x‑rays which did not reveal any fractures.
Mr Van Haltren said he spent the next few weeks with painful symptoms and feeling very sluggish. He increased his already substantial intake of strong painkillers. He said that at the time he was taking two Panadeine Fortes a day and now he takes four or five, or even five or six. He said that he started taking increasing quantities of tablets approximately two months after the motor vehicle accident. This was mainly for his back and hand symptoms. He said his left hand was painfully stiff. He said he did not have pain in his left hand prior to the accident.
As a result of the accident, Mr Van Haltren maintained that he has residual disability. He says he takes much longer to do things. He feels pain going up his arm and shoulder. He cannot do the same amount of cooking, gardening, cleaning, pruning, pool cleaning, vacuuming and sweeping as he used to do. He says that his wife cannot help him because she has had a heart attack.
As a generalisation, Mr Van Haltren said that he does not carry out these activities anymore because of pain, because he has given up and because the 'inclination is not there'. He said he tried to do these things after the accident but he was unable to continue to do so and stopped. He carried out these activities some six or seven months after the motor vehicle accident. He said he had problems with endurance. He cannot engage in these activities, when he tries to, for very long, because of pain and stiffness. He does not travel by public transport anymore. He takes a taxi. He says his social life has become non‑existent. He does not do anything like the things he used to do. He hardly does anything.
In cross‑examination, Mr Van Haltren said that he was now taking six Panadeine Forte per day. He said he has been taking more and more over time. He said that he used to take only one or two Panamax but now he takes up to six Panadeine Forte.
There were occasions when Mr Van Haltren was difficult to follow in his evidence. He tended to mumble and lose oral momentum.
There was no doubt in my mind that he was an elderly gentleman who honestly believes that the accident has severely impacted upon his life.

Mrs Gwen Van Haltren

Mrs Gwen Van Haltren was called to give evidence on behalf of her husband. Mrs Van Haltren gave a coherent account of events. She said she and Mr Van Haltren had been married for 50 years and had four children.
After the accident, Mrs Van Haltren said that her husband could not do anything without pain. She said he used to do everything but now he could not and as time has gone on, he has got worse and worse. He now lies in bed all day. She tries to get him up but he will not get up.
Mrs Van Haltren said that she was unable to do significant housework herself because of serious health problems including a heart attack and a stroke. She had relied upon Mr Van Haltren to do these things but now he does nothing.
Mrs Van Haltren said that she rubs Voltaren anti‑inflammatory cream into her husband which she did not do before. She does this every day. She said she massaged him for about half an hour a day for at least the past year.
Mrs Van Haltren said that her husband could not put on his clothes or shoes without assistance. She helped him for a few months, she said, shopping once per week. He used to go shopping and on outings two or three times a week but that this has now stopped. She and her husband used to go to the casino quite frequently but they no longer do so.
She said, with some dramatic emphasis, that 'Stanley has lost interest in everything'.
In cross‑examination, Mrs Van Haltren said that prior to the accident her husband's diabetes and sleep apnoea were under control. She did not seem to be aware of her husband's rate of consumption of analgesics prior to the accident. She confirmed that Mr Van Haltren was taking 6 to 8 Panadeine Forte per day and she now keeps some record of this. She said that prior to the accident, for some years, her husband used to take two Panadeine Forte per day.
She described her husband as being 'ten times worse now'. She said he has not reverted to what he was like prior to the accident. She emphatically disagreed that Mr Van Haltren had returned to his pre‑accident state of health by about January 2010.

Mr Van Haltren's daughter – Belinda De Andrade

The final witness from the family was Mr Van Haltren's daughter, Belinda De Andrade.
Mrs De Andrade was the practice manager of a Perth radiological clinic. She said that the accident produced physical and emotional change in her father. He was not able to do as much general housework, gardening, pruning and swimming pool maintenance as before. She said that he did all of these things prior to the accident. Her parents lived on a quarter acre block and he coped. She said that prior to the accident her father used to do domestic duties but also used to go out and travel on the bus and train alone but he will not do this anymore. He now only travels by taxi or with a lift. Basically, she said that he had lost self‑confidence.
Mrs De Andrade said that since the accident she had occasionally done vacuuming and tending to the pool and doing mopping and cleaning and general maintenance. It is she who sometimes takes her parents out on shopping trips.
Mrs De Andrade said that she did about 6 to 8 hours of work per week for her parents. This involved general housework, changing beds and washing and matters of that kind. She said the hours have reduced but in the first 12 to 18 months she said it was much busier in that regard than it is at the time of trial. She felt that 6 to 8 hours per week was a reasonable estimate of the combined effort put in but that she 'never kept a log'.
In cross‑examination, Mrs De Andrade confirmed her father had suffered from chronic obstructive pulmonary disease for many years. She agreed that he was slowing down prior to the accident but that the accident had increased the rate of this. She said that her mother cannot vacuum at all and that her father can only do so to a very minor extent.
Mrs De Andrade did not know much about her father's situation in 2003. She agreed that her father had continued to slow down since the accident. She made the point that whatever had been the level of her father's capability prior to the accident, it did not prevent him from looking after himself and the house but that now, since the accident, it was a 'real struggle'. She said that she had noticed her father had 'declined more in the last two years'.
It was Mrs De Andrade's view that the accident created an 'incredible catalyst' for her father and that he stopped being able to do whatever he used to do.
Mrs De Andrade did not agree with the opinion of her father's general practitioner, Dr Salvaris, that her father had returned to his pre‑accident state within about 12 months of the accident which was by early 2010.
She said that her father's taking of Panadeine Forte 'increased quite dramatically' after the accident.
Significantly, Mrs De Andrade did not know that her father was taking 6 to 8 Panadeine Forte per day prior to the accident.
The theme of the evidence of family members and Mr Van Haltren about the effect the accident had on him was that although he had significant pre‑accident health issues and disabilities, he coped, but that since the accident he has 'dropped his bundle', lost all self‑confidence, and appears unable to do anything.

The medical evidence

Evidence was adduced on behalf of Mr Van Haltren from two medical practitioners, being Dr Salvaris, Mr Van Haltren's treating general practitioner and Professor Mastaglia, a consultant neurologist to whom Mr Van Haltren was referred by his solicitor for a medico‑legal review.
There is a stark contrast in the degree of familiarity each of these practitioners had with Mr Van Haltren. Dr Salvaris had been the treating general practitioner for 16 years. Professor Mastaglia saw Mr Van Haltren once only, which was on 13 April 2010, being 10 months prior to trial and 15 months post‑accident.
It is significant, and surprising in my view that Professor Mastaglia was not provided with any medical reports or other material from Dr Salvaris, neither notes nor any briefing in the letter of request for a review and report!
Neither was Professor Mastaglia provided with the x‑ray of the lumbosacral spine taken post‑accident nor a bone scan with SPECT/CT, both taken or carried out on 11 February 2009.
Unsurprisingly, Professor Mastaglia could not recall the consultation that he had with Mr Van Haltren when he was giving evidence and speaking to the only report he wrote, being exhibit 2, dated 13 April 2010.
I shall refer to the evidence of Dr Salvaris first.

Dr Salvaris

Dr James Salvaris kept meticulous typed notes, some of which were provided in evidence. In his report of 10 January 2010 he included excerpts of the notes he had previously taken about Mr Van Haltren's treatment. He recorded Mr Van Haltren as having a sore left ring finger and left wrist, sore left side of the knee area and that his lower back pain had been made worse. This was the result of a consultation on 3 February 2009. His examination notes were as follows and said:
Healing grazes to left fourth and fifth fingers. Finger of both hands does NOT fully extend but both are the same flexion – is the same.
When flexes fingers, hurts but finger bones are NOT swollen and can full flex and extend fingers of left hand.
Left wrist movement good, easy but only bit sore and can feel click in left wrist.
Lumbar spine bit tender over lower supraspinous processes but abduction NOT painful. Flexion bit painful but nothing severe.
Dr Salvaris' view was that Mr Van Haltren had 'strained wrist, strained lumbar spine, shock from bus accident. Finger should come back to normal'.
Significantly, under 'current symptomology', Dr Salvaris states in his report of 10 January 2010:
This man is now back to his pre‑accident status with ongoing chronic lower lumbar spine pain from his long‑term lumbar spine degenerative osteoarthritis.
Later, he stated:
I feel he is back to his pre‑accident status and can do work around the house but his lower lumbar back pain affects his ability anyway.
And also, significantly:
This man as I stated above is retired and does NOT do much work, he is overweight, he does NOT do a lot of exercise or enough exercise even though he has been told many times especially in regards to his diabetes.
On 3 March 2009, a month post‑accident, Dr Salvaris recorded:
Back is coming good. NOT as stiff as it was, half gone.
His record of a consultation on 18 March 2009, significantly, was:
Tuesday last week moved concrete tub full of sand and moved into around [sic] and immediately ok but had felt the strain. Chest started to hurt the following day. NOT severe, just slight.
Saturday and Sunday just gone did NOT leave the bed resting. Did not feel good. Pain the same.
In a later description in the same notes he recorded:
Atypical chest pain over the last week since moving heavy tub.
On 24 March 2009, Dr Salvaris recorded:
Lower back still sore.
Wants more Panadeine Forte.
By 28 April 2009 the following appears:
Lower back has improved. Gone back to normal now.
The final relevant entry was dated 27 September 2009 (eight months post‑accident) where this appeared:
Bus occupant injured in traffic accident. Resolved on 27 September 2009.
The final reference in Dr Salvaris' notes relates to a copy of a radiology result dated 11 February 2009 (two weeks after the accident) which was a report prepared by Dr David Price which contained the following comment:
1.Mild s‑shaped thoracolumbar scoliosis
2.Spondylotic change at the L5/S1 level
3.Age appropriate degeneration as described
No acute insult demonstrated.
In his evidence, Dr Salvaris said that he felt during the first year that Mr Van Haltren's symptomology had been aggravated but that this resolved thereafter.
In cross‑examination Dr Salvaris confirmed that his opinion was that after 12 months following the accident, Mr Van Haltren had returned to his pre‑accident state.
Dr Salvaris agreed that over the 16 years he had been Mr Van Haltren's GP, he had been slowing down throughout that period, was less active, and did not pay enough attention to his diet and the need for exercise. He agreed that Mr Van Haltren, prior to the accident, was suffering from a pre‑existing degenerative arthritis in his cervical spine. He also spoke of the hospitalisation of Mr Van Haltren following his return from a trip to India when he had had an 'infective exacerbation of his chronic obstructive airways disease and secondary heart failure'. He said that Mr Van Haltren had suffered this event a number of times.
I note that Dr Salvaris was not cross-examined, nor gave opinion concerning whether Mr Van Haltren was suffering from depression. Further, there is no claim that Mr Van Haltren suffered from depression. There is no medical evidence on the topic at all.
In short Dr Salvaris' opinion was that post‑accident Mr Van Haltren's condition was aggravated but that it has abated and returned to its pre‑accident state. He agreed that Mr Van Haltren has been slowing down over the years and that he took high dosages of Panadeine Forte before and after the accident. He said that he had always taken Panadeine Forte.
Obviously Mr Van Haltren's GP of 16 years is not supportive of a proposition that Mr Van Haltren has residual disability following his fall in the bus.

Professor Mastaglia

Mr Van Haltren's case relies heavily on the evidence of Professor Mastaglia. I have already highlighted the surprising absence of any relevant information being provided to Professor Mastaglia a consultant neurologist, engaged for medico‑legal purposes. In my view, the absence of any such information about the extensive medical history of Mr Van Haltren (although of course Mr Van Haltren and his wife were able to provide a potted history) and the absence of x-ray and bone scan information, placed Professor Mastaglia at a disadvantage such that it is problematic how much weight can be given to his evidence. This is especially so in the light of the lack of support from the treating GP.
Professor Mastaglia's report dated 13 April 2010 was exhibit 2. I note that in the section entitled 'previous history' there is no reference to Mr Van Haltren suffering from chronic pulmonary airways disease.
Professor Mastaglia describes Mr Van Haltren being moderately restricted in all directions of neck movements.
Under the heading 'diagnosis' Professor Mastaglia's view is that Mr Van Haltren suffered an aggravation of pre-existing cervical and lumbar sacral spinal problems and that 'he has been left with persisting pain and restriction of movement in these areas which is more severe than he had prior to the accident'.
This is obviously an opinion based upon the views of Mr Van Haltren and his wife and, as I have indicated, it is not supported by the evidence of the treating GP. This difficulty seemed to permeate the professor's evidence. He couched much of his opinion in tentative language. He spoke of impressions, probabilities, and 'might well be's' in his evidence‑in‑chief and seemed sometimes discomforted about a lack of information about Mr Van Haltren's medical history. For example, at ts 66 when asked what he understood was the extent of Mr Van Haltren's pre‑existing arthritis in his neck and low back he said:
The impression I formed on the basis of what Mr Van Haltren and his wife told me was that this had been reasonably substantial in the past, that there had been a previous history to the neck and low back in the early 2000's, and although I did not have the opportunity to see his x‑rays of the neck and back at that time I assumed that the most likely problem as I put it in my report was degenerative arthritis of the neck and the back.

Professor Mastaglia was then asked how this aggravation can occur and he referred to the history he had obtained, and described a fall which appeared to me to be more severe than that depicted in the surveillance film. He obtained a history that:
It was sudden and unexpected and a fall from the bus seat for which he was not prepared and landing against the seat and on the floor of the bus … (ts 67).
In cross‑examination Professor Mastaglia admitted that he knew nothing of Mr Van Haltren having suffered from heart problems nor obstructive airways disease.
He also appears to have believed that Mr Van Haltren was taking far fewer Panadeine Forte than he was.
Professor Mastaglia agreed that Dr Salvaris' view that Mr Van Haltren had returned to his pre‑accident condition by April 2010 was inconsistent with what Mr and Mrs Van Haltren had told him. Professor Mastaglia's 'perception' was that Mr Van Haltren's pain level 'was still greater than had been, as evidenced by the fact that he was still needing to take greater doses of Panadeine Forte than he had previously'.
At ts 76 Professor Mastaglia admitted that, in effect, he made no objective findings relating to Mr Van Haltren's neck and back 'because he had no idea of how my findings compared with findings immediately before the accident'. Professor Mastaglia frequently referred to the difficulty he had in knowing what Mr Van Haltren's situation or condition was pre‑accident. He found restrictions of movement in various areas but was unable to say whether they were fresh developments. As he put it at ts 77:
What I had to take into account was the reported – the report that the level of pain certainly in the neck and the back were still greater than it had been prior to the accident and that there had been an ongoing requirement for higher does of pain relieving medications than he had been taking previously.'
At ts 78 when it was put to him that his conclusions on causation and degree were based on what Mr and Mrs Van Haltren had told him he said:
'Yes, that was my assessment of – of the component of the neck and back disability and pain that could reasonably be attributable to the accident in my opinion as opposed to what had pre‑existed before.'
He then suggested that his assessment of disability was modest because he had made an effort to isolate residual disabilities as distinct from assessment of the level of overall disability.
When it was put to him that his opinion did not fit with that of long treating GP, Dr Salvaris, where Dr Salvaris had said that Mr Van Haltren was 'back to his pre‑accident status, and that he could do work around the house but his lower lumbar back pain affects his ability anyway', Professor Mastaglia replied:
I can't comment on that. I would of course be interested to know if Dr Salvaris had made a note of, for example, the dose of Panadeine Forte that the gentleman was requiring at the time he saw him and how that compared with the dose that he'd been on before the accident.' (ts 78)
Of course Dr Salvaris' evidence was that by mid‑2010 Mr Van Haltren's intake of Panadeine Forte was roughly equivalent to what it had been before the accident.

Mr Van Haltren's left hand

Because of the attention paid in the evidence to issues concerning alleged injury to Mr Van Haltren's left hand it merits specific reference. Mr Van Haltren said he hurt his left hand in the fall and it is likely that he put it out to brace his fall and suffered a hyperextension injury. At ts 15 Mr Van Haltren said that the pain in the left hand 'has gone a bit severe', that it is stiffer and that 'usage is a bit less, much less'. He said that he could not use his hand as much or as freely as he used to.
He denied having any problems with his left hand before the accident whatsoever.
In cross‑examination it was put to Mr Van Haltren that in July 2005 he had seen Dr Salvaris because he was waking up in the morning with pins and needles in the fingers of both hands.
Mr Van Haltren could not recall this, which was a response he often gave in his evidence, which I accept, and which was obviously related to his age. Mr Van Haltren agreed that he had had significant problems with memory. He could not recall being diagnosed with bilateral carpal tunnel syndrome in 2005. Mr Van Haltren agreed that he had seen Dr Salvaris about his hands at that time. Mr Van Haltren agreed that he had had pre‑accident carpal tunnel wrist problems but his response was that the pain he suffered then was 'not pain like this that I'm having now' (ts 38). He conceded that he may have had symptoms in 2006 of numbness and tingling in his wrists but which did not wake him at night. He used to have these symptoms when he woke up in the morning.
Neither Mr Van Haltren's wife nor his daughter gave any significant evidence relating to Mr Van Haltren complaining about his hand, either before the accident or after.
Dr Salvaris mentioned Mr Van Haltren turned his left wrist in the fall and he noticed that there were healing grazes to the fourth and fifth fingers of his left hand. By 10 February symptoms of throbbing in the left hand fingers had eased off. Dr Salvaris did not mention anything about Mr Van Haltren's hand in his ensuing medical reports.
Dr Salvaris did not make any comment about the hand in his evidence‑in‑chief nor in cross‑examination.
Professor Mastaglia was examined at some length about Mr Van Haltren's left hand.
In his medical report dated 13 April 2010, Professor Mastaglia recorded Mr Van Haltren complaining of persisting pain in the left hand and lower forearm and that he had developed intermittent numbness of the left hand which occurred particularly at night.
On examination he reports this:
Examination of the left hand showed that there was mild weakness of the hypothenar and ventral interosseous muscles but no visible muscular atrophy. He experienced pain when gripping with the hand and was tender to pressure over the metacarpophalangeal and wrist joints. He had a positive Tinel's sign on pressing over the left ulnar nerve at the elbow and he also had a positive Phalen sign at the wrist indicating that there is median nerve compression in the carpal tunnel.'
Professor Mastaglia's diagnosis was
he also suffered an injury to the left hand as a result of the fall, aggravating his pre‑existing arthritis. He also has signs of an ulnar neuropathy and carpal tunnel syndrome at the wrist which may have been caused by or aggravated by the fall.
In his predictions for the future Professor Mastaglia said:
He will probably also need referral to a neurologist for an EMG and nerve conduction study on the left hand to determine the severity of the carpal tunnel syndrome and ulnar neuropathy. If the studies confirm that he has an ulnar neuropathy and median nerve compression in the carpal tunnel he may require a surgical decompression.
In his examination‑in‑chief Professor Mastaglia felt that Mr Van Haltren's wrist symptoms were more likely related to the accident 'as a result of putting out the hand to save himself, as it were, in a situation in which there might well be a hyperextension injury to the wrist' (ts 67). He was unaware of any pre‑existing difficulties.
Professor Mastaglia was a little unclear about whether he had asked Mr Van Haltren about previous wrist symptoms or not, there being no reference in his report, but he then felt that he had made written notes and a note to the effect, apparently, that he had previously forgotten to ask about previous symptoms but he then did so, and the answer was 'slight pain in both hands before the accident but not the numbness' (ts 68 – 69).
It became quite clear in the cross‑examination that Mr Van Haltren did suffer prior symptoms in his hand. In a report dated January 2006, Dr Savaris said:
Thank you for referring this man to me with symptoms in both hands. The numbness and tingling he experiences is when he wakes up and seems to be positional rather than true carpal tunnel compression. (ts 69)
Professor Mastaglia appeared to concede that his questioning was only on the period immediately prior to the bus accident, and he had perhaps not gone back far enough in his interrogations.
Professor Mastaglia said that it was possible the symptoms were caused by a peripheral neuropathy, related to diabetes and degeneration which would not be accident caused. Focussing on the issue of numbness as distinct from pain, Professor Mastaglia felt that numbness suggested a carpal tunnel problem rather than peripheral neuropathy which could have been a problem that was exacerbated by the accident. At ts 71 Professor Mastaglia conceded the uncertainties. He agreed he was not able to be certain whether the hand symptoms were from an ulnar neuropathy or carpal tunnel syndrome nor whether they were aggravated by the fall or not.
In my view Professor Mastaglia was really uncertain about the causation of the hand symptoms, and his evidence fell short of establishing, on the balance of probabilities, that the accident significantly caused or exacerbated hand symptoms of long standing. As a factor in the case I do not think the hand symptoms are of much significance.

Counsel's submissions

In submissions counsel for Mr Van Haltren said that he recognised the claim was not large but that the fact was Mr Van Haltren had had his 'independence in his mature years' taken from him, in effect, two years prematurely. This was said to be because Mr Van Haltren had 'dropped his bundle', which he did because of the 'extra pain'. Thus it is that it is said that the assessment of Mr Van Haltren's claim for non‑pecuniary loss as a percentage of the worst case scenario should exceed 5%.

Findings

Non‑pecuniary loss

Given the complexity of Mr Van Haltren's pre‑accident medical history and the spread of his pre‑existing symptoms he must show the presence of separate identifiable accident caused residual disabilities in order to succeed in his claim for damages.
The theme of his claim under this head is that in one way or another, without specifically nominating a particular residual accident caused disability, Mr Van Haltren's life has changed for the worse. He has lost all his confidence. He has given up all his former activities and interests.
No particular injury is relied on. There is no evidence that Mr Van Haltren suffers depression or some other accident caused psychological reaction that could explain his lethargy or malaise.
It is a difficult proposition to assess a claim under this head based upon non‑specific factors and assertions; and especially so when the medical evidence is non‑existent. Furthermore, referring to the factors I mentioned including inadequate medical briefing, I am unable to give much weight to the views of Professor Mastaglia where they conflict with the evidence of the treating general practitioner, Dr Salvaris.
It follows that I am unable to accept the assertion Mr Van Haltren had significant ongoing accident caused symptoms for more than about 12 months after the accident. I do not think his loss is greater than 5% of a worst case scenario, at best, and thus, according to the provisions of the legislation, he would be entitled to 5% of $337,000 which equals $16,850. As this sum does not exceed the present amount of the threshold prescribed of $17,000 then he would receive no damages under this head.

Gratuitous services

In relation to the claim for gratuitous services counsel referred to Mrs Van Haltren's evidence that she rubbed medication into and massaged her husband and also dressed him, for at least 12 months after the accident, 'for at least half an hour at least once a day sometimes more'.
Counsel somehow morphed this into evidence of the provision of services of an hour a day every day for a year at $20 per hour which results in $7,300 'just for Mrs Van Haltren's' efforts.
Counsel then put that in relation to the services provided by 'the daughters' the court should accept that 'for at least 12 months and probably longer, 18 months to two years, the same, six to eight hours a week, and again, 365 hours per year, similarly, somewhere around $7,300', resulting in a claim for past gratuitous services of the order of $14,600. Counsel conceded that the calculation was 'an inexact science' and that it was a matter where the court 'would have to do a global amount', 'for something for those two years'.
Counsel for the defendant submitted that the evidence of Mrs Van Haltren, at its highest, was to the effect that she provided gratuitous services for a period of about 90 hours for massage and also for the application of massage and rubbing of medicines. It is put that by reference to the evidence the claim falls far short of the threshold under s 3B(6) and (7) of the Act which sets it at $6,000. Ninety hours at $20 per hour would only be $1,800.
In her evidence Mrs Van Haltren, in examination‑in‑chief, on spoke of rubbing her husband with Voltaren and ice. She used to rub his shoulders and his back. She did not do this before the accident. When asked how often she did it after the accident she said at ts 54: 'Practically every day for a lot – for quite a few months doing it. I can't give you specific times that I did'.
Later when asked for how long she was massaging her husband she said, again at ts 54, 'at least a year I think it would have been'.
When asked for how long she would on each occasion she said at ts 55, 'Yeah, it would be about half an hour I think – yes'.
Mrs Van Haltren also spoke of occasions when she assisted her husband to get dressed after the accident but that he had continued to try doing those things himself and he was able to do some of them. She said that she gave him this assistance for 'a few months'.
I accept the evidence of Mrs Van Haltren that she spent roughly half an hour a day, thus about three hours per week or 150 hours for the year at $20 = $3,000. So far as helping him get dressed for 'a few months' I make a global allowance for this assuming four months at, say, 2 hours per week = 32 hours x $20 = $640.
As I have said, it was the evidence of Mr Van Haltren's daughter, at ts 95 and following, that she and her sister provided something of the order of 6 ‑ 8 hours per week for a period of 12 to 18 months after the accident but that they 'never kept a log'. These services were provided for 'just their general houseworky stuff. Just doing their bits of cleaning, changing the bed linen you know, getting the washing off the line …'. The need of Mr Van Haltren diminished as he recovered 'but definitely in that first 12 to 18 months it was quite a solid regime'.
I accept Ms De Andrade's evidence about this and find that it is reasonable to accept that she and her sister provided gratuitous services of the order of six hours per week for 12 months which, at the agreed rate of $20 per hour, calculates at $6,240.
In my view an award of $9,880 for past gratuitous services would be appropriate. I would allow interest on that sum at the rate of 3% per annum.
In respect of future medical treatment there does not seem to me to be any medical support for an award under this head. I do not make any allowance. The difficulty is the lack of evidence on the extent to which Mr Van Haltren's need for medical treatment has been increased by the accident.
It follows that, in my view, an award of $9,880 plus interest at 3% should be made for past gratuitous services and Mr Van Haltren is entitled to judgment in that amount. Interest is calculated at $653.
I award Mr Van Haltren $10,533 damages.