Villet v BOSCH - [2006] WADC 8

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: VILLET -v- BOSCH [2006] WADC 8

CORAM: HH JACKSON DCJ

HEARD: 710 JUNE 2005

DELIVERED : 30 JANUARY 2006

FILE NO/S: CIV 2826 of 2002

BETWEEN: PIERS ALISTAIR VILLET
Plaintiff
AND
OLE LEO EVERT BOSCH
Defendant

Catchwords:

Assessment of damages - Motor vehicle accident in Northern Territory - Liability agreed at 85 15 for plaintiff - Vehicle registered and insured in Western Australia - Applicable law

Legislation:

NT Motor Accidents (Compensation) Act 1998

Result:

Damages assessed at $257,306 after apportionment

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos and Mr M J Bateman
Defendant: Mr M A McAuliffe

Solicitors:

Plaintiff: Batemans
Defendant: Dibbs Barker Gosling

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

Breavington v Godleman (1988) 169 CLR 41
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Wayte v Wayte [2005] WADC 192

Case(s) also cited:

Nil

HH JACKSON DCJ:

Background

The plaintiff was in 1998 an English resident aged 22. He travelled to Australia and whilst in the Northern Territory acquired a 1978 Toyota van. The vehicle was registered 9FJ 543 and in respect of third party insurance the driver was compulsorily insured in Western Australia.
On 20 September 1998 he was travelling south along Stuart Highway towards Alice Springs. At the relevant time the defendant was driving and the plaintiff a passenger. An accident occurred when the van left the road and over‑turned and the plaintiff suffered injuries. He was not wearing a seat belt.
The question which now arises is one of assessment of damages. It is agreed that the defendant is 85 per cent liable in negligence therefore. The plaintiff's injury and loss and the defendant's responses, as set out in the amended papers for the judge, had been very much simplified by the close of evidence.

Applicable Law

The plaintiff sued in Western Australia. The defendant filed an unconditional appearance. No issue is taken as to jurisdiction.
The law of the place where the accident occurred governs the substantive law to be applied wherever the action is brought. Therefore assessment of damages is governed by Northern Territory law. It is agreed that that is governed by the common law as then modified by the Motor Accidents (Compensation) Act 1998 s 5.
There is a question however as to the proper construction thereof. By s 5 as it was on the relevant date:
"5.ABOLITION OF CERTAIN COMMON LAW RIGHTS
(1)An action for damages shall not lie in the Territory –
…
(b)in respect of an injury to a person who, at the time of the accident was not a resident of the Territory ‑
(i)for non‑economic loss in excess of the amount from time to time prescribed for the purposes of section 17; or
(ii)for future loss except at discounted present values,
in or as the result of an accident that occurred in the Territory.
(2)In subsection (1)(b) –
(a) 'non‑economic loss' means –
(i)pain and suffering;
(ii)loss of amenities of life;
(iii)loss of expectation of life; or
(iv)disfigurement; and
(b) 'future loss' means –
(i)future economic loss;
(ii)future loss of earning capacity; or
(iii)future expenditure on needs resulting from the injury,
… ".
By Section 17:
"(3)In this section 'prescribed amount', in relation to a payment, means 208 times average weekly earnings at the time the payment is made."
I am informed that the maximum relevant figure is $210,011.20. It is to be noted that that is not a maximum which is scaled back relevant to any notion of a worst case.
By Section 4
"discounted present values" means the calculation at a six per cent discount rate of the present value of future losses or payments by the use of an actuarial multiplier".
The plaintiff argues that as the provisions of s 5 are limited to actions that "lie in the (Northern) Territory" where an action is brought outside that Territory, the provision has no effect and that accordingly the common law survives. That, he argues, follows because otherwise the phrase "in the Territory" in the opening line of s 5(1) is unnecessary. The law of Western Australia is, of course, not the law of the place where the wrong occurred and is therefore inapplicable: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. There being no relevant Western Australian statutory provisions dealing with the position, the common law, he argues, applies.
The plaintiff argues that on the proper construction of s 5 therefore neither the maximum prescribed in s 17(3) nor the statutory six per cent discount rate on future loss applies.
The defendant argues that there would be no point in the Northern Territory legislature establishing a regime by which a different regime applies to the assessment on damages arising from a motor accident occurring in the Northern Territory depending simply on whether the claim is brought in the Northern Territory or elsewhere.
Not only that, however, Mr McAuliffe argues that the principles set out in Breavington v Godleman (1988) 169 CLR 41 and John Pfeiffer Pty Ltd v Rogerson (supra) require that this court apply to the assessment of damages the same substantive rules as would be applied in a court of the Northern Territory. I agree: See Breavington v Godleman at 167 per Toohey J and at 139 per Deane J. See also Wilson and Gaudron JJ especially at 98. The issue is not settled simply by a construction of the Northern Territory statute itself standing alone, but by application thereof in the context of wider choice of law principles.
This conclusion is consistent with the decision of Martino DCJ in Wayte v Wayte [2005] WADC 192 which was drawn to my attention subsequent to argument in this matter.
In the result I find s 5 of the Northern Territory act governs the assessment of damages in the present matter.

Plaintiff's evidence

The plaintiff was born in South Africa on 7 December 1975 and his family emigrated to England in April 1977. In 1992 he completed his secondary education with the following General Certificate Secondary Education results: Two A's in craft design and technology and art, B in geography and C's in English, maths and French. He had failed history and obtained a D in general science. He described himself as then and subsequently involved in a number of sports and as one of the best sportsmen in the school.
After taking advice, he enrolled at Bournemouth University in environmental sciences. After completing the first year he left the course after commencing second year: "The course just wasn't for me". It was scientifically based and he could not cope.
He travelled for most of 1994 and later did some labouring and unskilled work. In 1995 – 1996 he did a course in tourism. In 1996 he enrolled in a one year furniture design and making course at Rycotewood College which he completed in July 1977 (exhibit 2). He said he enjoyed it and knew he should have done it after finishing secondary education, but he was pressured at the time "to do something more academic". He then worked full time at what he described as "some manual work … at a manor house … doing DIY and bits of carpentry and gardening" to gain money to spend a year travelling. Asked why he had not done furniture making and design at that time he said: "Salisbury's quite a small town and I didn't want to be seen as transient or unstable because I only worked for five or six months to raise some funds." He had not wanted to enter an apprenticeship on that basis.
In June 1998 he travelled overseas reaching Australia in August, the accident occurring in September.
In evidence he said he thought he recalled seeing the defendant asleep at the wheel, "one bit of two people holding a big sheet over me to keep the sun off" and then waking or returning to consciousness two or three days later in hospital.
He was held at Alice Springs Hospital for about a week suffering severe low back pain and was immobilised. He had a CT scan and x‑rays and was administered morphine.
Reports from the Alice Springs Hospital were tendered by consent (exhibits 1(1), 1(2) and 1(5)). The report from Alice Springs Hospital reports a Glasgow Coma Score, a test of the patient's level of alertness, on admission of 15, the most alert but the plaintiff did not recall anything of his admission. There were fractures to the plaintiff's spine in the upper lumbar (L1/L3) area.
He was then flown by Royal Flying Doctor Service to the spinal unit at Royal Adelaide Hospital on 26 September where he remained until 9 October. During that time he was further x‑rayed and had an MRI scan. It was noticed also that his left index finger had been broken and that was placed in a cast. No head injury assessment or treatment was given during the plaintiff's hospitalisation.
Reports from the Royal Adelaide Hospital were tendered by consent (exhibits 1(3), 1(4) and 1(7)).
He was discharged to a flat in Adelaide for two months in the care of his mother. A physiotherapy report is exhibit 1(6).
He did back stretching and mobility exercises.
He started standing for periods. His mother cooked his meals, and did his laundry and domestic chores. He estimated her services as being provided for five to six hours per day. His mother returned to England just before Christmas 1998.
He then lived in Melbourne with a friend for about six months during which he built up fitness and rehabilitated his spine. For the first month or two his friend helped with domestic chores, cooking and cleaning for an hour or two daily. He still suffered back pain and discomfort when standing for too long. Playing tennis caused a lot of pain. He attended a chiropractor.
He did not wish to have to fly back to England sitting down so soon after the accident. He worked in Australia at night part‑time as a restaurant waiter and for the Arthritis Foundation using his work‑permit. He tried banana picking in northern Australia but after about two hours found it far too heavy. He spent about a month in Cairns and saw other cities, travelling by car, sharing driving.
In September 2000 Mr Carvell the English orthopaedic surgeon he latter consulted reported:
"He reported to have had a mild post‑traumatic stress syndrome and of being depressed and somewhat anxious for which he sought treatment in Melbourne. This was associated with poor concentration, depression, anxiety and dizziness. He was seen as an outpatient on two occasions and his condition gradually resolved. He continued to travel to New Zealand and eventually to the United States for two months on the way home."
He returned to England in September 1999. On return to his home he was unable to find carpentry work, shop‑fitting or kitchen fitting and went onto Social Security Job Seekers Allowance. He was unable to find suitable work in Salisbury and spent some months working about 20 hours per week part‑time in London before deciding he could not handle the work. During that time he commuted by car between Salisbury and London also working part‑time in Salisbury at a youth club. He still suffered with significant back pain and discomfort but was getting fitter. He described the work as:
" ‑ Working with machinery, power tools, shifting wood around and also a bit of design work which didn't work too well because of my concentration and short‑term memory.
How did the work affect your back?‑‑‑At the end of each day I was staying with a friend in London and I would be getting the train back and the pain would be so bad that every time I got back I would be either taking Solpadeine painkillers and or lying on my back at the end of the day. It caused a lot of pain, yes."
After six months he ceased because of these problems and started working part‑time for Wiltshire County Council in youth work.
He said that he was finding it hard to concentrate and had memory problems. One consequence was that whereas he had been an avid reader before the accident he has not read a book since.
In August 2000 he did a one‑week course in tennis coaching receiving accreditation as "an associate instructor" (exhibit 3). He described this as one of the highest ranking qualifications you can get as a tennis coach. He also utilised that in the youth work job he had. A friend who is a tennis coach introduced some clients, some of whom were good players. He did this for one or two hours per week in the evenings for a few months earning ₤5 Sterling per hour. He suffered back pain in struggling to keep up for an hour.
He then obtained work with Shaftesbury Housing Association (or "Ashleigh House") part‑time commencing from June 2001 whilst continuing part‑time with Wiltshire County Council: See exhibit 1(8). In March 2002 he commenced full‑time office based work with Shaftesbury Housing Association as a senior support worker for homeless people (exhibit 5). Asked about that work he said:
"‑ I found it quite emotionally draining and somewhat depressing really. Some people were there, you know, real cases of being homeless, but then there was some – it was working with drug addicts and alcoholics; all sorts of people with different backgrounds; mental health; learning disabilities".
He gave up that work on a full‑time basis and obtained employment part‑time with that and part‑time with Inspire Ltd looking after the welfare concerns of adults with learning difficulties (exhibits 6 and 7).
A few months later he started full‑time with Inspire Ltd at first 30 hours per week and now 34 to 38 hours per week together with one or two evening sleepovers, making up a total of between 40 and 50 hours (exhibit 1(9)).
He said he would "love" to be doing carpentry work but does not, simply because of the back pain it causes.
On his return to England a general practitioner referred him to an orthopaedic surgeon, Mr Carvell, who advised of the problems such as stiffness a spinal fusion could cause. The plaintiff saw a physiotherapist, firstly privately which was expensive, then free through the National Health Service. At present, with an improved income, he sees a private physiotherapist when he has pain onset. He continues with fitness and stability and mobility exercises.
Wearing a back brace, he plays tennis for up to an hour and cycles. He also swims once or twice per week. He no longer does canoeing or surfing because they cause considerable low back pain. When pain is bad at the end of the day or during sleep, about once or twice weekly or more often if pain is bad, he takes Solpadeine or Nurofen, both non‑prescription medications.
He wakes during the night and is stiff in the mornings. Extended standing can cause pain. Sitting is less of a problem, and driving a vehicle for extended periods causes a good deal of pain. His memory and concentration have not recovered.
Under cross‑examination he agreed that many employers seeking employees for carpentry and furniture making seek persons with a City and Guilds apprenticeship background. He was unclear about the length or conditions that would involve. He had not enquired because he said his qualification was superior and he wanted to go straight to work. He described his qualification as an elite one. He accepted also that while qualified he had not yet the experience sought by many employers but blamed that on the effects of the accident. He agreed that normally a person with his qualifications from Rycotewood College would enter an apprenticeship for about a year before working alone.
He walks for about two miles regularly for 30 minutes to an hour.
He was asked about sitting for an extended period and said he had to adjust sitting positions and occasionally to stand. After an hour or two of standing, pain commenced to set in. When it was pointed out that he had been sitting still in court for two hours, he said he had been shifting in his seat. Thereafter he did stand a few times during and after his evidence.
From time to time he has used sleeping tablets to sleep, to alleviate back discomfort.
He described his social life as normal but with pain by the end of the night.
He can travel in vehicles for more than two hours although again pain is bad. Since the accident he had travelled to South Africa twice.
He has since the accident done a little light carpentry work of his own as a hobby.
In September 2000 the plaintiff mentioned to Mr Carvell the issue of short term memory loss and concentration difficulties. In evidence he said the problems had worsened for a year or two thereafter. He denied that these problems were evident in his study results and had predated the accident. Mr Carvell referred him to a neuro‑surgeon Mr Katifi. He also saw a consultant neuro‑radiologist Dr J Millar, and a neuro‑psychologist, Dr N North, for testing. It had been suggested to him that he keep lists of things, which he does. He agreed that he is able to perform normal day to day activities.
In April 2005 Mr Carvell asked him to complete the Oswestry Disability Index: See exhibit 9D being report of Mr Carvell dated 3 May 2005.
The plaintiff's responses indicated that while pain is bad his use of pain‑killing medications resolves the problem, so that he can care for himself and lift heavy weights although these sometimes produce pain. He could lift heavy pieces of wood or furniture although with some pain resulting.

Mr J E Carvell

An orthopaedic surgeon of more than 20 years experience, Mr Carvell gave evidence by video‑link from England. He first saw the plaintiff in April 2000. He had been provided with various earlier medical reports. His reports commence with a report dated 27 September 2000 (exhibit 9).
The report of 27 September 2000 is long and comprehensive as are those that followed. After scrutinizing the various medical reports with which he was supplied, Mr Carvell concluded that, as a consequence of the accident, the plaintiff had sustained the following injuries:
"1.A vertebral body fracture of the 1st and 3rd lumbar vertebrae with fractures of the transverse processes of the right 1st, 2nd and 3rd vertebrae and the left 1st vertebra. He had no neurological deficit. The fractures were deemed to be unstable by virtue of the CT scan that was undertaken and he was, therefore, treated with full spinal precautions.
2.In addition he sustained a fracture of the left index finger … a fracture of the metacarpal approximately 1cm proximal to the metacarpophalangeal joint."
The plaintiff had in the accident:
"Sustained injuries to the upper lumbar spine involving the first three lumbar vertebrae … in the form of a crushing injury affecting mainly the first and the third lumbar vertebrae with a minor fracture on the second lumbar vertebrae affecting one of the lateral elements of that vertebra. He also sustained a fracture to the left index finger and … it transpires that he probably has had a head injury as a consequence … .
The current complaints that he had … included poor concentration and … mid‑lumbar region throbbing ache at the end of a working day".
He thought he might require future physiotherapy to help regain core stability, that is, strength in the supporting muscles of the anterior abdominal wall and the spine in order to help support his body, and secondly, to help with stiffness and suppleness in order to improve overall comfort and ability to function.
Core stability is "extremely important because that will also support the rest of the lumbar spine, not just the area that was injured."
In addition the plaintiff might require pain control medications either on the National Health Service system or over the counter.
Mr Carvell noted in September 2000 under the head of "current complaints and activities of daily living":
"Mr Villet states that his concentration has remained poor since the accident, but he is not depressed and has not had any further residual signs of a post‑traumatic head injury syndrome since those that he had in the immediate post accident period. … his left hand still hurts when canoeing or if it gets cold when surfing. … his neck stiffens first thing in the morning and can grate a little when rotating from side to side. … he gets discomfort between his shoulder blades … towards the end of the working day, when standing at work, he tends to experience a throbbing ache in the mid‑lumbar region. … his sleep pattern was poor in February but has been much improved of late. He tended to wake with pain first thing in the morning. In general found that his symptoms were eased by lying down. He used Paramol 1189 with Dihydrocodeine 2 tablets at night to help ease his symptoms. He has not required any medication in the last two weeks. His weight is steady and his appetite good. Mr Villet can walk comfortably. He can run but it can lead to discomfort in his back. … his back aches at the end of the day when standing for any length of time. Mr Villet can sit comfortably although has to continue to try to correct his posture to remain comfortable.
Mr Villet finds that driving for periods of up to three quarters of an hour can lead to an ache in his back. He generally gets out after driving for one to one and a half hours to exercise himself".

Mr Carvell's findings on clinical examination were as follows:
"On review on this occasion Mr Villet stood 6'1" tall and weighs approximately 15 stone. He remains well muscled and fit. He was able to hop, squat, stand on each leg independently, stand on tiptoe and heel rock without difficulty. When standing erect, movements of the lumbar spine were somewhat restricted with a hand to floor distance of 22 cms. Which is an improvement over the movement that he had in April. Lateral flexion allowed his hands to pass to both knees and was uncomfortable on the left paravertebral muscles when bending to the right. He had an ache in the lower lumbar spine on full extension. He had an ache in the mid‑lumbar spine on full rotation when standing but he had no compression pain from compression on the vertex from above downwards when standing erect. Rotational movements of the spine when sitting were reportedly uncomfortable in the mid lumbar region. He had a full range of cervical spinal movement which was painless. He had some slight paravertebral muscle tenderness at the level of the 2^nd and 3^rd lumbar vertebrae on the left. The spine was non‑tender in the midline. He had no tension signs in the sciatic or femoral nerve when examined prone and supine. There was less tension in the hamstrings when lying supine. … .
A review of his left hand, noting that he was right hand dominant, indicated that he had a slight angular deformity at the distal end of the metacarpal to the index finger approximately 1 cm from the metacarpophalangeal joint. This was reportedly slightly tender but otherwise he was able to perform a full grasp and grip with full power in both hands. He had no neurological problems and no obvious weakness in his left hand."
In summarising his opinion, Mr Carvell added:
"It is unclear whether or not Mr Villet has sustained a severe head injury. From his history it would suggest that he had a significant pre and post‑traumatic amnesia which at first would indicate that he had been rendered unconscious and was such as to indicate that he had a moderate head injury.
However, there is nothing in the medical records that have been provided to indicate that he did indeed have a head injury. Mr Villet has complained of symptoms of a mild post traumatic head injury syndrome with dizziness, loss of concentration, and headaches for which he had received treatment in Melbourne, although there again there is no indication that in fact treatment was received.
In the absence of any skull x‑rays, … . I feel that this should be the subject of a specialist report by a Neurosurgeon. Mr Villet claims that he has still been having problems with his concentration but he is not now clinically depressed and … an opinion of both a Neurosurgeon and Neurologist familiar with the post‑traumatic head injury syndrome and a Clinical Psychologist should be sought.
Mr Villet was qualified at the date of the accident as a furniture maker and designer.
He has not been rendered unfit for such work and he is able to undertake this work, albeit with some discomfort at the end of the day. Mr Villet is also capable of working with young children, work which he is undertaking on a part‑time basis.
I consider that the injuries that Mr Villet has sustained as far as his left hand is concerned are unlikely to compromise him severely in any of his activities in the future.
As far as the injury to the lumbar spine is concerned, he may well have intermittent backache. Only 10 per cent of patients with the type of fracture that Mr Villet sustained develop secondary problems of instability and I would consider that at this stage his spine is stabilised and that he is unlikely to have symptoms from late instability in the future. The effects of the accident on the lumbar spine has been to disrupt the disc between the 3^rd and 2^nd lumbar vertebrae and there was some evidence of protrusion of this disc into the spinal canal at the time the CT examination was undertaken on the 20^th September 1998. This disc may, therefore, go on to degenerate in later years and be responsible for intermittent pain and discomfort. This may already account for some of the discomfort that he experiences during his work as a furniture maker.
Mr Villet has had a pre‑existing condition called a spondylolisthesis associated with a defect in the pars interarticularis and a very slight forward shift of one vertebra on the other between the 5^th lumbar and 1^st sacral segments. There is a degree of retrolisthesis of the 4^thlumbar on the 5^thlumbar vertebra and it is likely, therefore, that some of the symptoms that he experiences in the lower lumbar spine relate to early disc degeneration. At present there is nothing to suggest that he is having any form of root irritation or tension signs in the lower limbs as a consequence.
Mr Villet is at risk from problems in this area in the future, possibly in his mid 30's to his early 40's with increasing lower lumbar backache referred to the backs of his thighs as far as his knees. It is likely, however, that at this stage the lumbar spine will have stabilised and that any symptoms would have to be treated on their merit. I would say, therefore, that as far as any future disability is concerned in relation to his back, only 50 per cent could be attributable to the injuries that he sustained at the time of the accident and approximately 50 per cent to the pre‑existing condition of spondylolisthesis between L 5 and S 1.
In the future, Mr Villet may have to undergo physiotherapy, take pain relief or undergo other forms of pain control including the use of root canal injections or lumbar epidurals. … .
I feel that Mr Villet's best chances of avoiding any form of complication revolve around his ability to maintain his overall level of fitness, spinal strength and mobility. It is likely that spontaneous stabilisation of the spine will take place in any event.
If Mr Villet were to be incapacitated from work, it is likely the periods of incapacity will be short-lived of possibly a week or two. If he were to undergo surgical correction of any problem that he had, it is likely that the most significant operation would be that of a spinal fusion for which he would be incapacitated from work for a period of at least nine months. The fusion, however, is more likely to be related to the pre‑existing condition rather than to the condition of his spine directly resulting from the accident that occurred in September 1998.
Given that Mr Villet is a keen all‑round sportsman, continues to surf, canoe, to run and to play tennis, he is likely, therefore, to maintain a fairly strong back.
He will, nevertheless, never be able to reach the same standards or level of attainment that he has in the past particularly in the field of tennis, and he is always likely to have discomfort in his back after such physical activity. He will be unlikely to resume the pastime of rock climbing since it is unlikely that he will have sufficient confidence in his back to allow him to do so. He is likely to find travelling more difficult with the passage of time, particularly if he wishes to travel with a back‑pack. He may find that he is forced to travel more conventional in the future. He has, nevertheless, travelled extensively since the accident and I suspect will probably be able to do so in a similar vein for the next 5 ‑ 7 years but by his mid 30's he may find it more increasingly difficult to do so.
It is impossible to tell for precisely how long Mr Villet will maintain his overall level of fitness to allow him to continue to canoe and surf and to play tennis.. I suspect the sport that he would have to give up would be surfing, followed by canoeing and, lastly, tennis. I would anticipate he will be able to play tennis into his mid if not late 30's with reasonable skill although with his existing levels of discomfort at the end of a game. It is likely that Mr Villet will be able to continue to swim and cycle to maintain his overall level of fitness without too much discomfort in his back. I do not think he will be compromised in his ability to work as a result of his head injury or the injury to his left hand.
I consider that Mr Villet's condition has now stabilised following the accident as far as his head, hand and back are concerned. He has regained a degree of spinal mobility following a course of physiotherapy this year, has stretched his hamstring muscles and has a better understanding of back care and posture."
Supplementary reports are dated 28 September 2000, 14 December 2001, 7 June 2003 and 3 May 2005.
Additional radiological, physiotherapy and neurological referrals were made and shortly before trial Mr Carvell supplied a comprehensive report (exhibit 9D). He deferred to Mr Katifi on the question of any head injury. The plaintiff's continuing complaints included upper lumbar spinal stiffness and discomfort first thing every morning, upper lumbar spinal stiffness and discomfort the day after undertaking such sporting activities as cycling and tennis, or helping with laundry washing at home, periodic pain in the index finger of his left hand if overworked, ie, playing the guitar for more than 40 minutes and after cycling, and occasional discomfort in the cervical spine first thing in the morning.
The plaintiff stated that he had had an increase in his symptoms of discomfort during the last year. He stated that he was unable to find a comfortable position in which to sleep.
He was stiff first thing in the morning and took approximately three quarters of an hour to get going, using the exercises, stretches and core stability work that he had been taught by the physiotherapist. He also stated that he had neck ache approximately seven out of 30 days in the month, first thing in the morning, the neck ache and backache always going together.
He was comfortable walking, but unable to run without experiencing discomfort in his back, which lasts for approximately 15 minutes. However, "he could run in an emergency if he had to."
He had no difficulty negotiating stairs, steps and ladders. He had variable discomfort, depending on his activity at the time when on his feet. He was comfortable generally moving about but if static then he could stand comfortably for up to an hour before he experienced discomfort in his back. He began to experience discomfort in his low back after sitting for periods of more than an hour but was able to get up and down from a chair comfortably.
He said that he got discomfort in his back after driving for more than 40 minutes and used a rolled towel to try and maintain his comfort.
Standing at the kitchen sink and leaning over to do the washing up could cause backache, as did helping with washing laundry. He could carry and shop but did not carry excessively heavy shopping as this tended to lead to backache. He stated that he could walk as far as he wished, and had walked for periods of up to an hour and a half without discomfort. He could cycle comfortably for two hours, but experienced backache which lasted for approximately two days thereafter. He undertook cycling approximately once a week. He was aware of discomfort in the knuckle of the index finger of his left hand after cycling, which passes off by the next day.
"Mr Villet stated that he has not played tennis for several months but played approximately once a week throughout last summer, for periods of up to 45 minutes at a time. He stated that he is comfortable for the first 30 minutes and then begins to experience backache thereafter. He stated that it takes approximately 48 hours for the back pain to settle … ."
He had tried surfing but within an hour experienced backache in the lumbar spine which lasted for approximately three days. He had not gone hiking, camping or canoeing and, as a result of his experiences when surfing and running, felt that he would not use either of these activities to keep fit in the future.
As to his employment:
"Mr Villet stated that he is able to cope with the work, although he does find that his concentration lapses at times. He stated that 50 per cent of his work is undertaken standing and 50 per cent sitting. Tasks at work involve assisting 'clients' with working, shopping, and writing reports on their progress. The work essentially involves helping people to regain social skills and guiding them to independent living.
Mr Villet had been undertaking some casual woodwork (he informed me that he has made a small coffee table and a mirror) on behalf of friends and colleagues in his own garage but has not undertaken any commissions for the last year. He is not even undertaking any casual work in the garage to keep his hand in at present. He stated that this was now only a hobby and he can only undertake the activity for up to two hours at a time. The work involved the use of power tools including a router, electric two handed power drills, cross‑cut saw machine as a bench saw, and planing. Mr Villet stated he could only work with these tools for a limited period due to mid lumbar backache."
As to medication, the plaintiff informed Mr Carvell that he continued to take Solpadeine, a combined paracetamol, codeine and caffeine preparation, approximately once or twice a month at night for pain but was not taking any other medication.
Mr Villet stated that he felt depressed about his situation at the age of 30, living at home with his mother, earning approximately ₤7 Sterling per hour. He would like to retrain but felt "stuck in a 'catch 22' situation due to the lack of concentration and short term memory problems."
After clinical examination and after reviewing the radiological evidence, Mr Carvell summarised his conclusions:
"In my opinion, Mr Villet has recovered from the injury to his left hand apart from the intermittent discomfort. He has no functional disability. As far as his lumbar spine is concerned, his condition has stabilised. … He continues to have symptoms in the lumbar spine at the site of the spinal trauma. … He has required additional sessions of physiotherapy since interview in 2003 and has now been referred for a Healthy Living programme, which has been organised by his general practitioner. Mr Villet is still having some discomfort in his cervical spine but has lost the discomfort in the dorsal spine and is not having any symptoms referable to the spondylolysis at the L5/S1 level in the lumbar spine. … It is hoped that now he is on the Healthy Living programme the need for (physiotherapy) sessions will diminish, and that he will develop enough back strength and stability, coupled with swimming, which he finds comfortable, in order to keep his discomfort to a minimum. Mr Villet, nevertheless, may continue to get discomfort in his back after such activities as cycling and playing tennis. However, I anticipate that he would be able to continue to play tennis into his late 30s, acknowledging that he may have backache from time to time but I do not think it will be severe enough to prevent him from playing if he wishes. Mr Villet may well continue to have discomfort in his back from time to time after other physical activities, such as running and cycling, but he will not be prevented physically from running if he wishes to, or to continue cycling in the future.
Mr Villet has continued to find indulging in more athletic pursuits, such as surfing, has been responsible for back pain. Mr Villet may feel that he is not able to surf in the future although there is no physical reason why he could not do so, although he may anticipate the extent of the pain he has suffered most recently. Mr Villet has found that his ability to travel has been curtailed by the effects of the accident on his back and, as outlined previously, it is unlikely that he will be able to back‑pack in the future or to carry a heavy rucksack without experiencing pain and discomfort. Mr Villet will be able to travel, however, but will probably need to use other means of travel in the future. He will not be prevented from driving or walking, flying or running, nor using public transport, although this may lead to back ache from time to time.
As far as work is concerned, Mr Villet is able to cope, from the physical point of view, with the work that he is currently undertaking and I see no reason why he cannot pursue this type of work in the future and should be able to undertake such work in the future, which does not involve excessive sitting, lifting or standing, as these are likely to lead to discomfort. There is no reason, however, why he will not be able to continue his present work which involves much less physical activity, until he retires. I also believe that, on the balance of probabilities, Mr Villet could undertake light furniture making in the future, if he wished. …
Mr Villet's range of movement has not improved in the last two years. His current symptoms are related to the fractures of the upper lumbar spine and not to the area of spondylolysis at the lower lumbar spine. Mr Villet has therefore seen an amelioration of the effects of the spondylolysis on his back in the last 2 years. However, I remain of the opinion that Mr Villet is at risk from having symptoms from the spondylolysis in the future as a result of the relative stiffness superimposed upon the upper lumbar spine following the fractures sustained in the index accident concerned in this report. This will put additional strain on the more mobile parts of the lumbar spine below the fractures at the 4‑5^th lumbar and 1^st sacral levels.
Pain is a common symptom following thoraco‑lumbar fractures. The precise source of pain is often difficult to determine, and is often a combination of bony and soft tissue problems. In Mr Villet's case, he is not showing signs of late instability. However, there has been gross disruption of the disc between the 2^nd and 3^rd lumbar vertebrae, with alteration in the signal pattern of the disc on an MRI scan undertaken in 2001. It is entirely possible, on the balance of probabilities, that the disruption to the disc may be responsible for further symptoms in the future. … In my opinion, Mr Villet will continue to have intermittent backache of the intensity he is having at present, that it may require pain relief from time to time but will not prevent him from undertaking his own personal care. He may experience problems with sitting, standing and lifting, and will continue to have discomfort at night with the occasional need for analgesia.
It will not have any significant effect on his sex life, although he may have some difficulty with travelling in the future, over prolonged distances. In my opinion, his back problems can be managed conservatively and it is unlikely that he will require surgery in the future. The group of patients exhibiting moderate disability using the Oswestry Disability Index can usually be managed by conservative means. If Mr Villet were to undergo spinal surgery in the future it would very much depend upon the particular problem and where it arose at the time, and what was required for its treatment.
If Mr Villet was to undergo surgery for any reason, this might limit his ability to undertake work as a cabinet maker thereafter.
There are many causes of back pain. Mr Villet has sustained significant trauma to the lumbar spine which is commonly associated with long term pain but, in my opinion, his spine is stable and he is not likely to be significantly disabled by it.
He has a concomitant condition in the lumbosacral area of a spondylolysis which has been exacerbated on a temporary basis by the index accident concerned in the report and the effects of which appear to have subsided at present. He nevertheless runs the risk of having further symptoms in this area in the future and I would attribute 40 per cent of any additional episodes of back pain that he may have in the future to the presence of the pre‑existing condition and 60 per cent to the effects of the index accident that occurred on 20 September 1998.
It is acknowledged that between 70 and 80 per cent of the westernised population does experience back pain at some stage in their lives but spondylolysis occurs in only 15 per cent of the population. It is a condition commonly brought to light by trauma, as in Mr Villet's case.
Mr Villet will be able to continue in gainful employment, although may be limited to a degree in the type of work that he can undertake comfortably, which should involve his being able to maintain general mobility and avoid prolonged sitting, standing or lifting. He will be able to continue his present employment without difficulty as far as the physical effects of the accident on his back are concerned. In my opinion, he will be able to continue with light carpentry if he wishes in the future. He will be able to continue many of his athletic pursuits including swimming, cycling and walking indefinitely, but may find that he has to abandon such games as tennis by his late 30s/early 40s. He may be able to continue surfing physically for another 3 to 5 years, although he will experience discomfort for several days thereafter. Mr Villet may continue to experience intermittent discomfort in his left hand but this will not deteriorate to limit hand function. Mr Villet may continue to get discomfort in his cervical spine intermittently for the rest of his life. He is at risk of earlier degeneration in his neck by 10 years over and above that which he might have expected in the normal course of his life, ie. at age 50 rather than at age 60. This is unlikely to affect his ability to work, or his current lifestyle, but may require intermittent help from a physiotherapist in the future."

In Mr Carvell's view the plaintiff will be able to continue in his current work and could do light furniture making in future if he so wished.
However, he will have problems with work involving excessive lifting and bending. "He would need to work at a light, easy bench where he could stand upright rather than in a semi‑fixed or bent position."
Nonetheless Mr Carvell described the plaintiff as a very fit young man who should keep himself as fit and supple as possible to mitigate, although he cannot eliminate, the degenerative processes of aging. These are inevitable, the spine being a very vulnerable area. There may be increasing stiffness at the fracture site especially with forceful or repetitive backward stretching of the back as in tennis. Ongoing physiotherapy and analgesia as required is likely but the possibility of injections and epidurals has receded.
Cross‑examined it became clear that Mr Carvell had not been informed of the result of the Alice Springs Glasgow Coma score result.
Mr Carvell agreed that the plaintiff's spondylolisthesis symptoms could have resulted from earlier trauma such as a rugby incident as well as being possibly developmental and could be aggravated by other sporting activity.
Carpentry might trigger symptoms in the lower spine due to its heavy nature even without the accident, as with degeneration over time the spine becomes vulnerable.
He had seen reports of the plaintiff's psychological state. Back pain additionally is often associated with depression and anxiety. Post‑traumatic head injury is also commonly associated with dizziness and poor concentration. Mr Carvell saw no reason to doubt the plaintiff's veracity. However, the plaintiff is not depressed and had not had further signs of post‑traumatic head injury syndrome. Such states tend to settle over three, four or five years after injury.
At present the level of interference with the plaintiff's day to day life in relatively mild. He has recovered extremely well from quite a serous accident. Some pain for the rest of his life is indicated. He could otherwise have undertaken more heavy furniture manufacture albeit that would itself have exposed him to the risk of low back pain.

Mr H A Katifi

Mr H A Katifi , an English consultant neurologist, was called by the plaintiff and gave evidence by video link. He had seen the plaintiff twice and had referred him to Dr North. His reports dated 4 November 2003, 22 January 2004 and 1 May 2004 are exhibit 19. His conclusion was that the plaintiff had suffered in the accident a head injury in the mild to moderate range, the main result of which was residual, long term reduced concentration span and an effect on short term and, to a lesser extent, long term memory which would impact on his job performance and might reduce his work efficiency. He also mentioned a small risk of post‑traumatic epilepsy.
Under cross‑examination, Mr Katifi was asked:
"What I'd like to put to you is that we have seen no evidence at all that there was any bruising or contusion to the head of Mr Villet at the time of the accident. We know from the documented records that he had a GCS of 15 when he arrived at Alice Springs Hospital? ‑‑‑ Yes.
There was no record of any abnormal neurological signs at all. No neurological signs were reported to the hospital at all, either at Alice Springs Hospital where he spent the first week or so or subsequently at Adelaide Hospital and there's no record of any headache being expressed by Mr Villet when he was in either hospital. Now, given the absence of those pieces of evidence, does that not give rise to some doubt, on your part, as to whether or not a head injury was actually sustained?‑‑‑No … let's just take the scenario that this patient was thrown out of the vehicle and sustained multiple injuries. He had no memory of what happened. He lost consciousness, let's say, for three minutes, four minutes, and then he regained consciousness. By the time he was seen in the hospital centre, which would, I would assume, have been probably up to an hour later … when the emergency service have arrived, they have seen somebody who was conscious, but he was unconscious for two, three minutes, four minutes, five minutes, depending on what time; we would not have record of that. What they have seen is somebody who can converse … injured and in pain is taken to the local hospital. The Glasgow Coma score is to assess the patient is conscious and orientated, it doesn't mean that they had not sustained concussion an hour before.
…
At the scene of the accident, he recalls two people standing over him holding a sheet to protect him from the sun. That is his only recollection? ‑‑‑ Right.
There is no further recollection as to his journey to the hospital? ‑‑‑ No.
Certainly, he has given no evidence to that effect? — Right.
And he has no memory of being seen after the accident in the emergency department of the hospital? ‑‑‑ No.
His evidence is that he recalls waking up two days later? ‑‑‑ Yes. Well, patients after a head injury, a mild head injury, mild to moderate head injury, would have sometimes gaps in memory for an immediate period after the accident, but there isn't a continuous memory for the immediate period. So what I've established from my examination of Mr Villet is that he had a continuous memory from two days onwards and then therefore, the so‑called post‑traumatic amnesia, the period of memory loss immediately after the accident, is two days. But one would accept that during those two days, he may have some islands of preserved memory. That may be one example of this brief island of preserved memory.
In terms of the cause of that loss of memory in part for that two‑day period, doctor, is it not the case that that equally could have been affected by the pain from what was quite severe injury at L1 to L3; medical treatment administered, and I think we heard some evidence of morphine was mentioned; the general trauma and stress and upset that here he is, flown to hospital being treated in an emergency situation? They could all impair his memory of events? ‑‑‑ Correct. Not in terms of having – some aspects of the memory, at least the transfer to the hospital immediately things happened must indicate that his head must have sustained a trauma of some sort".
Based on the Glasgow Coma Score reading, he rated the head injury as mild. On a rating of 1 to 10 he would put it at 2. There was no neurological sign, some mild contusion of a kind which does not lead to immediate complaint of symptoms but may later lead to problems with variable subsequent improvement over time.
Mr Katifi's understanding of the plaintiff's history was that he had had an "ability to do his job previously and to plan things and then suddenly things go to pieces because he can't concentrate and carry on his work."
It became clear in cross‑examination that Mr Katifi's understanding had been that prior to travelling abroad and the accident, the plaintiff had been "working in the furniture capacity to a certain extent" and that subsequent to his return to England he coped with his work with youth and the homeless whilst nonetheless suffering concentration and memory problems. It is also clear that to some extent also Mr Katifi was influenced by Dr North's assessment. His own "mini‑medical test" assessed the plaintiff as appearing to be normal, whereas Dr North reported severe interference with concentration and memory. Mr Katifi accepted that:
"This psychometric test may exaggerate some aspect depending on the mood of the person, whether he was in pain from something else or whether he was worried about some other aspects of his injuries. There are lots of factors that could influence the performance of the person on the psychometric test.
Anxiety and depression?‑‑‑ Anxiety and depression exactly, although these are supposedly tested at the same time and Dr North referred to the fact there wasn't a significant depressive or anxiety evidence in the assessments."
He agreed that a full examination on those issues, rather than a simple enquiry of the plaintiff, would have added weight to the assessment and that analysis of the plaintiff's academic record likewise would add weight to the IQ assessment.
He was asked:
"So, doctor, if it is then given that there are some deficiencies at whatever level one determines them, the deficiencies in the psychometric testing. But there is some question over whether or not Mr Villet's performance in his work has truly been affected by memory and concentration but there is this doubt about just the degree of the injury sustained in the accident because of such issues as the GCS at 15, the lack of headache, the two‑year delay in reporting it to anyone that he is having memory and concentration difficulties. Does that perhaps suggest to you that whilst you may be of the view he has a brain injury, it is very much at the mild end of the spectrum? ‑‑‑ I think I agreed earlier that the head injury is at the mild end of the spectrum and this is the sort of head injury that is the most difficult to assess in terms of the cognitive impairment. You may have a very high-flying executive who sustains a mild head injury and is unable to return to the previous capacity of work and yet … he may pass lots of the psychometric tests. You could have also another example of Mr Villet where things are also on the mild end. The impact of mild head injury is always coloured and influenced by the emotional side, psychological reaction to the accident, all of those influence the cognitive functions. So it is very hard to decide how much of it is trauma sustained by the brain as opposed to the psychological reaction as well that influenced that. I don't think a psychological test would clearly analyse this which ever way.
I think we have the objective evidence that we've got a trauma sustained to the brain. There is a hemosiderin there. We've got an amnesia before the moment of impact which could not have happened without an injury and we've got the post‑traumatic amnesia. The Glasgow Coma Score, yes, was 15, so this was a mild head injury, but I wouldn't accept that a mild head injury would cause problem(s) in planning and concentration. It may improve if you clear all the injuries he's had. If you take all that and said, 'These are all clear', then you could probably come down to – as to how much of the trauma to the brain sustained would impact on his day‑to‑day. It's an extremely difficult thing to assess.
In terms of putting one further factor in, the impact of the legal process, the medico‑legal issues, does that perhaps have an impact upon how he portrays himself? ‑‑‑ It's a common knowledge that these are important factors. All the medical literature refers to it, in the mild head injuries specifically.
If we then move onto the stage where this matter is resolve(d), compensation has been paid – Mr Villet has to get on with his normal life – is there a prospect that his symptoms will diminish in their impact? ‑‑‑ Well, I'm suspecting they would. Hopefully his anxiety and distress level of all this would be lifted and therefore would improve. You could – if something is upsetting even a person without a head injury you will find that they can't concentrate and do the work properly. So if you remove all those aspects it's clear that things will improve, but that doesn't (mean) that he will necessarily be a hundred per cent.
Yes, quite? ‑‑‑ But he will find strategies to cope with, you know, with what is left."
The report of Dr Miller, a neuro‑radiologist, dated 7 January 2004 was tendered as exhibit 10.

Dr N North

Dr N North, a consultant clinical psychologist, saw the plaintiff in April 2004 for the purpose of undertaking an assessment of cognitive functioning at the request of Dr Katifi . His report of 19 April 2004 is exhibit 11. He had been asked to assess the plaintiff's memory.
He reported:
"On interview, Mr Villet told me that he forgets information that he has been told and, in particular, conversations. He estimated that on 8 occasions out of 10 he will forget that entire conversations have taken place. He described his concentration as being easily distracted and tells me that he has great trouble concentrating on tasks.
On interview, Mr Villet described his mood as being fairly stable and felt that he was not depressed. He did describe a significant loss of self‑esteem however. He denied any nightmares or flashbacks to the accident but told me that he had become a very nervous passenger and does not like travelling in this capacity. He prefers to drive as he has control of the vehicle in which he is travelling.
Mr Villet told me that he was currently taking homeopathic remedies for his memory and concentration problems and took Panadol whenever he needed to for pain.
He reported that he attended school near Romsey at Embley Park and achieved 6 GCSEs at Grade C and above. He then took a BTEC qualification in Tourism Management and following this he started a degree in Environmental Protection. He did not however complete this qualification. He then undertook a BTEC in Furniture Design and Making and was working in this capacity at the time of his accident. Following the accident, however, he found that he could not cope with the physical demands of this type of work, as he had injured his back. Currently he works with the homeless as well as people with learning disabilities.
Formal psychometric testing revealed that he has an estimated premorbid IQ of 110, which places him at the 74th percentile. One would expect his test results to cluster around this percentile mark and any score below the 50th percentile would be considered as an indicator of impairment in this area of cognitive function.
On a test of long‑term verbal memory (Logical Memory Test) he scored at the 8th percentile for the immediate recall version of the test and the 19th percentile for the delayed recall version of the test. These scores suggest that he has an impairment in long‑term verbal memory.
On a test of short‑term verbal memory (Digit Span Test) he scored at the 43th percentile for the forward version of the test and the 26th percentile for the backward version of the test. These test results indicate an impairment in short‑term verbal memory and working memory. His test scores on the Digit Span Test and the Logical Memory Test indicate a significant impairment of both short‑term and long‑term verbal memory.
On a test of visuo‑constructive function (Rey Osterrieth Complex Figure Test) he scored at the 100th percentile for the copy version of the test and the 40th percentile for the recall version of the test. His score for the copy version indicates no evidence of impairment and his score on the recall version indicates a mild impairment in the area of long‑term visual memory.
On a test of attention and concentration (Digit Symbol Test) he scored at the 5th percentile which indicates a marked impairment of attention and concentration.
On the tests of executive functions (Word Fluency Test, Similarities Test and the Wisconsin Card Sorting Test) he scored in a range that does not indicate any impairment. He scored at the 50th percentile for Word Fluency, the 84thpercentile for Similarities and in the grossly normal range for the Wisconsin Card Sorting Test.
The cognitive assessment therefore reveals that Mr Villet has experienced impairments in short‑term and long‑term verbal memory, long‑term visual memory and attention and concentration. A range of other cognitive functions are unimpaired and these include the ability to reason abstractly, word fluency and the utilisation of error information to correct performance.
Mr Villet clearly sustained a head injury as a result of his accident of the 20^th September 1998. He appears to have suffered cognitive problems as a result of this accident. He is currently not experiencing mood disorders such as anxiety, depression or Post Traumatic Stress Disorder but he is troubled with a specific phobia for travelling as a passenger in a motor vehicle, although he does not currently avoid this activity."
Giving oral evidence, Dr North explained the nature of his various tests. Certain additional information such as family, medical, employment and schooling background information was, he agreed, not available to him but would have been helpful. This seems to have been because of the limited nature of the referral he was given.
He also agreed that his expertise did not extend to diagnosing the causation of cognitive dysfunction. His opinion as to the plaintiff having suffered head injury was information he had been given by the referring specialist.
He further agreed that depression and anxiety may be the cause of cognitive dysfunction. His inquiry as to that had been limited to a simple inquiry of the plaintiff. Nor had there been any repetition of the tests to confirm results or any request for further tests.

Mr S S Gubbay

The defendant called Mr S S Gubbay, a Perth based neurologist, who had not seen the plaintiff but who had reviewed various earlier reports and reported thereon on 5 July 2004: exhibit 16 ‑ and on 14 March 2005 and 18 March 2005 (exhibit 17).
Although the plaintiff suffered some retrograde amnesia and post‑traumatic amnesia in respect to the two days following the accident, his mental state had been noted as functioning normally even shortly after the accident. In this case, there was a Glasgow Coma score of 15 and no objective signs of neurological impairment on examination.
He had not suffered extended unconsciousness. His amnesia might be the result of shock or pain or painkilling narcotic drugs or psychological factors. He had suffered mild to moderate concussion with mild (or very mild) head injury resulting. Except with very severe head injuries, which may worsen over the first 48 hours or so, the worst symptoms are found at the start followed by improvement over time. The rate of improvement depends on the severity of injury. Neck pain is not relevant to brain injury.
If the plaintiff's memory and concentration had not improved over two or three years, this would be "an extraordinarily unusual situation". The finding of hemosiderin staining by the radiological report confirmed previous bleeding in the brain which might well have been at the time of the accident.
As for Dr North's report results, the discrepancy between a relatively high verbal score and a relatively low memory score, if accurate, may have been congenitally determined or the result of psychological factors in effect at the time of testing. Anxiety and depression could mask the results.
Mr Gubbay was asked to comment on a brief verbal summary of the plaintiff's academic and study history in light of Dr North's findings. He responded:
"What you have described has been I think a below‑average level of achievement in the general population. This could be motivational, because he said this course was not for him and he didn't like that, and so on, but he had – from what you tell me – three separate attempts at a career requiring tertiary education and none of them have really succeeded. I would have thought that to me a 74 percentile in terms of intellectual function is hard to reconcile with that. It's more that it might be reconcilable with the fact that he has never possibly had good memory or concentration powers, but I am trying to look at both sides of the question. Is it the lack of motivation or is a below‑average concentration and memory function that has caused that type of repeated change of direction?"
Whereas Mr Katifi described a mild to moderate head injury, Mr Gubbay described any such injury as "very close to mild", about 1 to 1.5 out of 10 on a scale of seriousness of head injury. He would have anticipated that the plaintiff would have made "a very reasonable recovery and be able to carry out his activities of daily living without any real problem." That is consistent with his post accident history. There is about a two percent possibility of post‑traumatic epilepsy, but that is diminishing.

He agreed that in this case he may have been better placed to assess problems such as memory or concentration loss had he had personal contact with the plaintiff.

Mr M Viljoen

The report of Mr M Viljoen dated 26 January 2005 was tendered by the defendant and was admitted under s 79C of the Evidence Act by consent as exhibit 18. Mr Viljoen assessed the plaintiff as to his capacity "to return to his former occupation of furniture make" and necessary steps, treatment or cost thereof, or alternatively to other work. A variety of assessment methods were used and medical reports provided on behalf of the plaintiff for this purpose.
Mr Viljoen then set out at length the plaintiff's reports of various matters:
"Mr Villet was contacted and spoken to two days after the FCE. He reported his lumbar back to be fine. He also reported that he had been quite still the day after the test and had a level 5 pain the whole day in his lumbar back."
The report ends with the following:
"Conclusion
The following observations and comments are based on Mr Villet's self‑reporting and the results of the assessment.
Mr Villet suffered a lumbar back injury in a motor vehicle accident on 20/09/1996. Despite extensive conservative treatment attempts Mr Villet has failed to regain sufficient lumbar back function for him to return to his chosen profession of carpenter or have a normal active life.
Mr Villet is still reporting symptoms of discomfort and pain from his lumbar back and he has a reduced functional capacity thereof. He reported that his most uncomfortable position was when he was required to bend forward in a stooped position for any extended period of time.
Mr Villet is not awaiting any further medical treatments or investigations for his lumbar back.
Mr Villet has been unable to return to his previous role of Carpenter and Furniture Maker for longer than one 6 month period due to the reduced functional capacity of his lumbar back. He reported that this was largely due to his inability to work stooped over his workbench or on the floor and continuously lift, push and pull heavy timber.
Mr Villet's current functional capacity is not sufficient for him to work as a carpenter or furniture maker without a degree of risk of increased pain or injury.
The impact of the injury has extended into Mr Villet's 'out of work' environment. He has reported being unable to return to his previous levels of physical activities, which included surfing, swimming, and playing tennis. He has reported financial concerns due to the changes in income he has had since the accident.
Mr Villet reported that he had been thinking about future plans, and expressed some interest in possibly studying Alternative Therapies in the future but was concerned about his ability to concentrate and his short term memory.
Recommendations
1.        Mr Villet's current functional abilities are not of sufficient capacity to allow him to work as a carpenter or furniture maker. Mr Villet still experiences pain on any activities involving excessive stooping or lifting. Any such manoeuvres increase the discomfort in Mr Villet's back and needs occasional physiotherapy treatment.
2.        Although there is an extensive history of conservative treatment, it is felt that Mr Villet will still benefit from additional work specific rehabilitation to improve on his current level of muskulo‑skeletal fitness and to improve his functional abilities.
3.        Rehabilitation should focus on strengthening and mobility of the lumbar back, trunk and abdominal musculature as well as the core‑stabilizer musculature.
4.        We would recommend that Mr Villet attend a course of work specific rehabilitation programme to see if he will benefit from such a rehabilitation programme and if he will be able to make a gradual return to activities related in a carpenter and furniture maker or any other light to medium heavy work.
5.        If Mr Villet's condition persists after the work specific rehabilitation programme, we would recommend further independent specialist investigation into his ongoing symptoms in his back 7 years after the accident."
The defendant says that Mr Viljoen's report is based upon factual propositions not sustained in the evidence and that its conclusions are therefore not sustained.

General damages

Damages are to be assessed in a common law way although up to a maximum beyond that realistically open here.
Essentially, the plaintiff's claim centres on the consequences of the spinal fractures suffered in the accident and on the alleged consequences of any head injury. As to the spinal problems the defendant's position is that general damages are to be assessed in respect of a very mild head injury with modest, if any, consequential loss of memory and concentration, and in respect of an initially severe back injury which has largely recovered and now causes ongoing back pain from time to time but does not prevent a reasonably normal lifestyle and which requires some vocational adjustment.
The defendant accepted Mr Carvell's evidence as very significant whilst stressing that Mr Carvell had found the plaintiff able to do light furniture making (only) but that a significant part of his back symptoms can be attributed to a pre‑existing how back spondylolisthesis which is especially a concern in some sporting contexts.
As to the spondylolisthesis, Mr Carvell said that 15 per cent of the population suffer this but some without apparent symptoms or restrictions but that often it is trauma which renders the condition symptomatic. If so, that is compensable to the plaintiff.
The plaintiff argues that there is no evidence of any of the plaintiff's present back symptoms being attributable to the spondylolisthesis but that even if there were it would therefore be compensable.
The plaintiff accepts that the head injury is at the mild end of a mild to moderate range. Mr Lampropolous said when giving evidence the plaintiff did not exhibit confusion or loss of memory or contradict himself, although he gave evidence of memory and concentration difficulties including with reading. That, he says, is consistent with the expert evidence of Mr Gubbay, Mr Katifi and Dr North.
Mr Lampropoulos pointed to the following comment in Mr Gubbay's report of 5 July 2004 (exhibit 16A):
"Taking everything into consideration, I do believe that there has been a significant impairment of recent memory and concentration which is partly exacerbated by his physically impaired state."
The same connection between post‑traumatic head syndrome and resulting depression and anxiety is made by Mr Carvell.
As to the head injury claim, the defendant argues that the claimed loss of memory and concentration seems not to have impeded his employment progress since his move to social welfare types of work, that the evidence as to those issues does not confirm Dr North's test results, that the inquiries made by Dr North were inadequate in their scope and nature, and that consequently, and that there has been no adequate proof of the extent to which anxiety or depression may have masked cognitive function and thus the extent to which the latter can be attributed to the accident. There is no claim for damages based on anxiety or depression themselves. There had been no objective or independent evidence that any loss of memory or concentration had impacted on the plaintiff's ability to live a normal life. Any effect was of minor impairment. I agree that was my impression given the time he was in the witness box and his answers to the questions asked.
A number of points need to be noted. The plaintiff did not complain of memory and concentration problems until well after the accident. The original statement of claim dated November 2002 did not mention them. In speaking to Dr North in April 2004 the plaintiff told Dr North that on eight occasions out of 10, he would forget entire conversations and that he had difficulty concentrating and completing tasks. In giving evidence, the plaintiff however, apparently had no such difficulties. Indeed, over the extended course of his evidence he displayed powers of concentration and memory which seemed normal for a young fit male. There is also the issue of his pre‑accident powers in these respects given his academic and work history.
The defence pleads that any disabilities that the plaintiff suffers may be the result of various prior accidents and injuries.
In 1990 he suffered a laceration to the back in a skateboarding accident without ongoing symptoms.
In 1993 he suffered low back symptoms from a spondylolisthesis at L5/S1 and retrolisthesis at L4/5 for about a year, but treatment by an osteopath solved the problem.
In 1994 he fractured his right foot without ongoing symptoms.
In 1995 the plaintiff suffered a blow to the back of the head when a set of drums weighing two or three kilograms fell on him. He suffered a laceration requiring three stitches.
In 1997 it seems there was a right shoulder problem but the plaintiff could not recall details.
I am not satisfied that any of these events has produced ongoing symptoms, injuries or disabilities.
In respect of the spinal injuries and their consequences I accept the evidence of Mr Carvell. The plaintiff suffered significant spinal fractures leading to a period of hospitalisation and a significant recovery period of some months since when he has had ongoing back pain symptoms reflecting his activities both work and private. Those symptoms are not disabling but are restricting and ongoing although now modest and spasmodic. To a significant degree they are the result of a pre‑existing spondylolisthesis which has been rendered symptomatic but which was subject to being rendered symptomatic by a wide range of factors.
He is and is likely to remain restricted in his work, private, and sporting life. He no doubt suffered not merely pain but anxiety and mood depression for a period as a result. He also suffered a fracture of a finger which readily healed.
As to his claim of head injury and consequential problems of memory and concentration, I prefer the evidence of Mr Gubbay.
I find the plaintiff did suffer mild head injury with some pre and post‑traumatic amnesia but I am not satisfied that any difficulties of memory and concentration are other than relatively minor and unsubstantiated in extent and causation.
On that basis I assess general damages prior to apportionment in the sum of $65,000.

Past loss of earnings

The defendant's position is that neither the spinal injuries nor any head injury seriously prevents the plaintiff from working as he chooses except in heavy manual work, nor coping day to day and also that in any event, the plaintiff has not established that barring the accident, he would have followed his travelling by pursuing a career in cabinet and furniture making. Starting with no better than average academic results at school, he tried various career paths finishing with a 12 month course in furniture and cabinet making, but then for unconvincing reasons, did not pursue it in practice and later travelled overseas.
It appears that the plaintiff's non‑carpentry employment has been at rates varying between approximately ₤5 Sterling and ₤7.20 Sterling per hour gross.
The plaintiff produced copies of a number of recent job advertisements for carpentry vacancies published in respect to his local area:
It appears that current hourly rates for qualified and experienced carpenters and kitchen fitters in his geographical area are between ₤12 Sterling and ₤25 Sterling gross on a self‑employed basis.
Mr C P Jones, a self‑employed builder and friend of the plaintiff's father, gave evidence that currently a self employed carpenter charged £18.20 Sterling per hour or in 2002, £15 to £16 Sterling per hour, and an employee with the plaintiff's qualifications and experience would in 2002 have earned about £12 Sterling per hour or more. Self‑employed, the plaintiff would, he thought, by 2004 have been earning £16 Sterling per hour or more, or as an employee, £14 Sterling per hour. Conditions have been buoyant for three or four years. Two letters he had written are exhibit 14. He confirmed that self‑employed tradesmen do not receive annual leave, sick leave, or paid public holidays and are dependent on the availability of work, and supply their own tools, transport, insurance and other overheads.
The defendant also tendered the reports of Mr J A Rollings, an employment consultant, dated 4 May 2005 (save for pars 4(c) and 6(h)) and 27 May 2005 by consent. Mr Rollings, has considerable experience in preparing reports for use as evidence in court proceedings. He had prepared a report (exhibit 15) on the basis of information supplied on behalf of the plaintiff. He had concluded that the plaintiff's furniture design and making qualification was equivalent to, or slightly above, a vocational A Level qualification for university entry.
Based on official national earnings statistics for early 2004 and on information from a government employment service in Salisbury, he prepared figures showing a range of typical gross earnings by carpenters in the Wiltshire area in median terms for the highest and lowest 10 percentiles. After the plaintiff had acquired adequate practical experience, Mr Rollings thought an appropriate potential earning figure of £379 Sterling per week was appropriate, based on a salary of £13 Sterling per hour gross as a full-time employed carpenter. He did not have direct involvement with the construction industry and had not met the plaintiff. The figures reflect part‑time and casual, as well as full‑time employees and a range of experience. Economic mobility to London could inflate the plaintiff's earnings but typically involve longer hours and increased expenses.
Mr Rollings was asked to report on the plaintiff's employment opportunities, his qualification and pre‑accident potential to find work as a carpenter or furniture maker in Wiltshire and the surrounding area. The report is based on documentary sources and not on personal contact. His summary and conclusions are as follows:
"a)Mr Villet was injured in a road traffic accident in Australia in September 1998. At the date of the accident he had a BTEC craft qualification in carpentry at a fairly high level.
b)With the qualification he had a strong chance of gaining employment as a carpenter in construction in the area of Wiltshire, but a much less strong chance of finding work as a furniture maker.
c)Initial earnings as a carpenter in construction would have been, at today's rates, £219 net per week (AS$535). This level of pay would have increased rapidly after gain 2 or 3 years' experience.
d)Median levels of pay for carpenters in Wiltshire are estimated as £344 gross per week, approximately £265 net per week (AS$647).
e)Median levels of pay for carpenters nationally in Great Britain are £379 gross per week (AS$703).
f)Lastly, if Mr Villet had worked very hard indeed, following the work around the country, perhaps establishing himself with one of the larger construction companies, his earnings might have risen to around £520 gross per week, approximately £383 net per week (AS$934).
g)I have insufficient evidence to comment on which pay rate was the most likely outcome, although I note that he had decided to study carpentry as a design subject rather than construction. This might suggest that his inclination was for the softer side of carpentry, and therefore the highest pay rate would have been an unlikely outcome.
Similarly, I have insufficient evidence to comment on Mr Villet's residual earnings capacity, if any. I have found a peculiarity in a Wiltshire newspaper web site. In June 2001 there is reference to an, 'athletic friend, tennis coach Piers Villet'. Both first and surname are unusual, and it would seem improbable that there are two men so named in Wiltshire, a sparsely populated country. I find it difficult to imagine a disability that would prevent a man working in carpentry, yet allow work as a tennis coach."
In the second report Mr Rollings added a supplementary note that:
"For the avoidance of confusion, I confirm that Mr Villet's Certificate of Continuing Education in Design (Crafts) would have given him the ability, and provided him adequate certification, to practice carpentry in the United Kingdom."
The defendant does not concede that the plaintiff would have worked in carpentry or furniture making but for the accident. If that was the case there would have been a period in which he would have lacked but gradually gained experience.
The defendant pointed out that Mr Rollings had looked for but not been able to find evidence of available work in furniture making as distinct from carpentry generally at least in the Wiltshire region.
Given the uncertainty as to the plaintiff's probable employment future in the absence of the accident, the defendant argues that loss of earnings should be assessed on the basis of a loss of chance.
The defendant would then place the plaintiff in the median earning range, once such a career had been embarked upon and experience gained.
The evidence was limited to the earnings of carpenters not that of furniture designers and makers.
Mr S J Davis, certified chartered accountant, had provided details of United Kingdom income tax rates for 2004 ‑ 2005 prepared by others but in common use (exhibit 12). Using Australian terminology and an exchange rate of 43 pence Sterling to $1 Australian which I assume, the position can be summarised thus. There is a taxable earnings threshold of ₤4,745 Sterling above which the next bracket of £2,020 Sterling attracts tax of 10 per cent, then the next ₤29,380 Sterling attracts 22 per cent. Taxable income in excess of ₤31,401 Sterling attracts tax of 40 per cent.
In addition, there is payable the National Insurance Contribution, a deduction made directly from salary on earnings above £91 Sterling per week at the rate of 11 per cent up to £610 Sterling per week and thereafter an additional one per cent.
Mr Davis compiled a list of the plaintiff's actual earnings between 21 September 1999 and 10 June 2005 based on employer generated records, adding in income the plaintiff could have earned in England at £5 Sterling per hour during his two visits to South Africa, but did not.
He also prepared notional schedules of earnings by an employed carpenter during that period assuming a 40 hour working week and an earning rate in one case of £25 Sterling per hour and in the other case £14.50 Sterling per hour in present terms and deducting income tax and national insurance contributions there from. Those three schedules are exhibit 13.
By Mr Davis' calculations, a person earning in 2004‑2005 £297 Sterling per week would have deducted there from £40.59 Sterling in income tax and £22.33 Sterling in national insurance contributions, leaving net income of £234.08 Sterling per week. At £580 Sterling per week, the net weekly income would be £423.68.
Of course, his calculation of actual earnings depended on the accuracy of the plaintiff's instructions. These did not include any amount for tennis coaching.
Nor had he informed himself as to the actual earnings of English cabinet‑makers or carpenters at the relevant times. His figures assumed 48 weeks employment and four weeks paid annual leave in each year. By contrast, in the calculation of the plaintiff's actual earnings, the period during which the plaintiff had been in South Africa had been calculated on a 30 hour week.
Sick Leave is largely determined by employers.
Assuming earnings at 10 June 2005 of £14.50 Sterling per hour (adjusted annually from 1999 in accordance with annual earnings increases) for 40 hours per week, after tax earnings would have amounted to:
21.09.99-       05.04.00              £ 9,822
06.04.00-       05.04.01              £ 18,812
06.04.01-       05.04.02              £ 19,469
06.04.02-       05.04.03              £ 20,393
06.04.0305.04.04              £ 21,061
06.04.04-       05.04.05              £ 22,014
06.04.05-       10.06.05              £   3,820
TOTAL:£115,391

In Australian currency that amounts to about $275,000.
Mr Lampropoulos says damages should be assessed on the basis that the plaintiff would have returned from travelling to work in the construction industry as a carpenter, during a period of boom conditions and not restricted to the Wiltshire area. During an initial period, say a year, his earnings would have been reduced by lack of experience but would have increased to say £S14.50 per hour currently. The defendant argues that that is, on the evidence, a subcontractors rate from which needs to be deducted expenses borne by such subcontractors, together with deductions for seasonal and economic fluctuations, illness and like issues.
The plaintiff currently earns £7.43 Sterling per hour for 34 hours or a little more.
In England both income tax and National Insurance Contribution are payable on earnings. Both are properly regarded as tax on income for the purposes of assessment of damages, although Mr Lampropoulos points out that in this case the plaintiff will not receive the benefit of his National Insurance Contributions as aged benefits in due course as would normally occur.
The plaintiff's submissions are that if he had not been injured in the motor vehicle accident he would have secured employment in carpentry/fitting in about September 1999; that he would not necessarily have limited his employment to the Wiltshire area; that he would have worked under an experienced tradesman for about 12 months and then worked unsupervised; that he would now be well experienced and be earning not less that £14.50 per hour as an employed carpenter/fitter or substantially more as a self‑employed carpenter/fitter; and that at the current equivalent of £14.40 per hour since 21 September 1999 the plaintiff would have earned £115,391 net; In fact the plaintiff earned the equivalent of £44,686 net; and accordingly, past loss of earnings amounted to £70,705 or $172,520.20;
The defendant argues that the evidence does not establish that the plaintiff has been precluded from work as a light furniture manufacturer. However, on the assumption that it does, the defendant argues that the plaintiff's earnings, once he had established himself, would have been approximately £344 gross (£265 net) per week were he employed in Wiltshire; or £379 gross (£289 net) per week were he economically mobile and able to take advantage of labour markets such as Bristol and Swindon. On the larger of these the plaintiff's notional earnings would have been £63,063; being £219 net per week, or £11,388 in the first two years while he established himself; and £289 net per week, or £51,675 in the subsequent 195 weeks to the conclusion of the trial. The defendant disputes the notional income attributed to the plaintiff during his visits to South Africa by Mr Davis and submits that the more appropriate notional income is the rate earned immediately prior to each visit.
On this basis, since the accident the plaintiff's actual and notional income was approximately £43,889, leaving a loss of £19,174.
In my view much depends upon assessment of the likelihood that but for the accident, the plaintiff would have returned to England, quickly found employment in the carpentry or furniture making area and remained permanently in that employment. I am by no means satisfied that that is established. Rather, given his pre‑accident history I would rate that as a 50 – 50 chance. His earnings in that event would not necessarily be easy to assess given the need to gain experience and to find and retain full employment and regional variations in earnings. I assess past economic loss prior to apportionment at $65,000.

Interest thereon

Interest thereon at half the past judgment six per cent rate for 5.75 years amounts to $11,210.

Loss of future earning capacity

The plaintiff's claim is put on the basis that he currently earns £7.42 per hour gross for 34 hours per week plus £30 for one to two sleep ins per week (or, excluding leave, an average of 1.5 sleep ins per week); amounting to average gross earnings of £297 or £235 net. On the basis that for a 40 hour week as a carpenter/fitter, at £14.50 per hour, he would be earning £580 per week gross, or £424 net; he claims a difference of £189. He claims loss of the difference until age 65. His future loss of earning capacity to 65 years of age on that basis is £147,853 or $360,755 (using the six per cent discount tables for 35.5 years).
At the time of trial the plaintiff's earnings were £246 gross (£216.10 net) per week. The defendant argues that on the basis of a notional income as a carpenter of £289 net per week his ongoing loss is £43 net per week. Applying the six per cent multiplier over 35.5 years (782) assuming an exchange rate of $1 being valued at 41 p, this amounts to $69,712.44.
Of course allowance has to be made for contingencies such as the uncertainties of maintaining full employment over time, injuries, accidents and sickness, including the impact of his pre‑existing back condition.
The plaintiff argues that a normal discount for contingencies of five per cent should be used. There are positive as well as negative possibilities to be considered. The defendant argues for a higher rate given the claim that the plaintiff makes for damages to be assessed on the basis of loss or carpentry or furniture making work and his sporting activities combined with pre‑existing spondylolisthesis.
Again however, assessment is complicated by the question of the chance that the plaintiff may not, other than for the accident, have pursued a career in carpentry or furniture making and continued in it full‑time to age 65. There is also a question of contingencies – positive and negative. Applying a similar 50 – 50 approach and a discount for contingencies I assess loss of future earning capacity at $150,000 prior to apportionment.

Future medical expenses

A figure of $5,000 is agreed.

Gratuitous services (past only)

In money terms the plaintiff claims under the head for 10 weeks (9 October 1998 to 18 December 1998) at five hours per day (350 hours in total) for assistance provided by his mother at $12 per hour; and four weeks at two hours per day (56 hours in total) provided by his friend. That amounts to $4,872.
Interest thereon at six per cent per annum of 6.4 years (since end January 1999) amounts to $1,871. That is a total of $6,743.
The defendant suggests an allowance of 2.5 hours per day from the discharge from hospital on 21 October 1998 reducing to 1.5 hours per day from 21 December 1998 until mid 1999 at a rate of $12 per hour, an amount which with interest is very close to that sought. I award, including interest, $6,500.
No claim is made for future gratuitous services.

Special damages

Special damages had been agreed and paid prior to trial.

Conclusions

For the foregoing reasons I assess damages, prior to apportionment as follows:
General damages  $65,000
Past loss of earnings  $65,000
Interest thereon   $11,213
Future loss of earnings   $150,000
Future medical expenses   $5,000
Gratuitous Services   $6,500
Total $302,713
Apportioned as agreed:    85 per cent          $257,306