Walters v Bella and AAI Limited

[2014] QDC 68

DISTRICT COURT OF QUEENSLAND

CITATION:

Walters v Bella & AAI Limited [2014] QDC 68

PARTIES:

JAMES REDELL WALTERS
(Plaintiff)

v

BEVAN JOHN BELLA
(First Defendant)

AND

AAI LIMITED ABN48 005 297 807

TRADING AS SUNCORP INSURANCE
(Second Defendant)

FILE NO:

72 of 2013

DIVISION:

District Court

PROCEEDING:

Civil

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

4 April 2014

DELIVERED AT:

Cairns

HEARING DATE:

20, 21 March 2014

JUDGE:

Harrison DCJ

ORDER:

Judgment for the Plaintiff against the Defendants for the sum of $480,281.42

CATCHWORDS:

MOTOR VEHICLE ACCIDENT – ASSESSMENT OF DAMAGES – PHYSICAL INJURIES AND PSYCHOLOGICAL INJURIES – PAST AND FUTURE ECONOMIC LOSS – whether the plaintiff failed to mitigate damages by not promptly seeking treatment recommended by a psychiatrist

COUNSEL:

M Horvath for the plaintiff
R S Ashton for the defendants

SOLICITORS:

Michael Cooper, Solicitor, for the plaintiff  Moray and Agnew for the defendants

Introduction

1. The plaintiff was born on 30 June 1972.  On 19 January 2011, he sustained a number of injuries in a truck accident near the Bakers Creek Bridge on the Bruce Highway south of Mackay.

1. Liability has been admitted and this matter proceeded on quantum before me on 20 March 2014, with submissions being heard on 21 March 2014.

1. As a result of the injuries sustained in the accident, the plaintiff successfully made an application for compensation under the Workers Compensation and Rehabilitation Act 2003 (Qld).[1]

   [1]            WorkCover file Ex 10.

1. By virtue of s 5 of the Civil Liability Act 2003 (Qld) the Act does not apply in relation to the assessment of damages which must be assessed in accordance with common law principles.

Previous injuries

1. The plaintiff sustained an injury to his lower back during the course of his employment with VAE Railway Systems Pty Ltd (“VAE”) at Mackay on 18 July 1995. 

1. His statutory claim was referred by WorkCover to Dr Lewis, an Orthopaedic Surgeon, who provided a report dated 22 July 1997.[2]

   [2]            Report Dr Lewis part of Ex 4.

1. He diagnosed the plaintiff as suffering from an internal disc derangement or alternatively derangements of the thoracolumbar spine.

1. He recommended an MRI, but provided his assessment for statutory purposes to WorkCover prior to the receipt of the MRI.  He assessed a permanent partial disability of 10% under the Workers Compensation Board table of injuries as at January 1996 under code 4118.

1. In the meantime, the plaintiff’s general practitioner had referred him to Dr Rosato, a Neurosurgeon, who, in his report of 6 October 1997[3], confirmed that he had seen MRI scans of the thoracic and lumbar spines taken on 1 October 1997.

   [3]            Report Dr Rosato part of Ex 4.

1. He said:

“The only abnormality demonstrated in this gentleman’s thoraco-lumbar spine is some loss of signal intensity from the disc at the L5 S1 junction where there is also a posterior bulge of the disc on the right side which extends towards the right lateral recess which may be significant if there is indeed right radicular symptoms or findings of radiculopathy and these are not present.  Some of the disc spaces in the lower thoracic spine appear a little narrow with some end plate irregularity which may be a previous Sheuermann’s disease.

I do not think there is an argument in favour of any surgery in this gentleman and I would anticipate on medical grounds that he should make a full recovery”.

1. I note from the WorkCover file that he injured his back moving a section of rail.  The plaintiff confirmed that he did try some further labouring work after he left VAE, but was unable to do so because his back was sore.[4]

   [4] Quantum statement Ex 23 [13].

1. Thereafter he worked, and worked quite consistently, as a truck driver for a number of employers up to the time of the subject accident.[5]

   [5] Ibid [14].

1. The plaintiff made a common law claim in respect of the incident at VAE and he said that this settled for $120,000.00 (presumably clear of any refund due to WorkCover).[6]

   [6] Ibid [31].

1. There is also an x-ray report included in the records of the Springwood Wellness Centre dated 7 August 2006. [7]

   [7]            Part of Ex 5.

1. It would appear that he presented to his then doctor with lower back and spinal pain and the reference to the lumbar spine in that report is as follows:

“The alignment of the vertebral bodies is good.  The disc spaces appear normal.  There is no evidence of spondylolisthesis.  Sacroiliac joints and hip joints appear normal.”

1. The plaintiff also sustained an injury to his left shoulder on 16 April 2008.  WorkCover subsequently issued a notice of assessment under the Workers Compensation and Rehabilitation Act 2003 (Qld) assessing the degree of permanent impairment as 7% for “left shoulder bursitis” with a work related impairment of 5.6%.[8]  The plaintiff accepted the lump sum offer of $12,743.85 and did not appear to make any common law claim.[9]

   [8]            Notice of assessment part of Ex 6.

   [9] Quantum statement Ex 23 [37].

1. The plaintiff also sustained an injury to his right hand which was cut by a grinder when he was 16 years of age.  He said that he lost some feeling in his right hand as a result of that, but that that was not causing him much grief other than the fact that his hand could get sore during the colder months.[10]  It was not possible to obtain any documentation in relation to that injury.

   [10] Ibid [19].

Credibility of the plaintiff

1. The plaintiff has always been passionate about motor vehicles. When he was much younger he was involved in drag racing and competed regularly in burnouts prior to the subject accident.

1. When cross-examined, particularly when he was shown a series of photographs and competition records, it was clear that he had participated in at least one more burnout competition after the accident than what he said in his quantum statement.[11]

   [11]          Quantum statement Ex 23 [68-72].

1. It was clear from his evidence that the actual driving in the burnout competitions was not something which was prevented by the injuries sustained in the subject accident. When asked about the stress on his shoulders, knees and the body generally when doing burnouts he said that this was not a problem because he used his hands when driving for that purpose.[12]

   [12]          T1-23 l 5-15.

1. His real difficulty involved the changing of tyres. Apparently, a set of tyres is destroyed during each burnout drive. There could be four drives in a competition. The plaintiff gave evidence that with his knee injuries he found it very difficult to change the tyres because of the squatting and the stress on his knees.[13]

   [13]          T1-23 l 18-45.

1. Dr Gillett, an Orthopaedic Surgeon, confirmed in evidence that it would have been painful for him to undertake that task because of the squatting involved.[14]

   [14]          T1-55 l 15-45.

1. It was submitted on the behalf of the defendants that I should draw an adverse inference as to his credit generally becauce of the discrepancies between what he said in the quantum statement and what he said in evidence about these matters.

1. The plaintiff is a man of limited education who gave his evidence quite openly. He appeared to me to be doing his best to answer all of the questions and the discrepancies in relation to the burnouts were not particularly critical in this case.

1. It was not as though he was mistaken in terms of what he could or could not do, and what he said about the limitations placed on him by the injuries, insofar as they related to participating in burnouts, was supported by the medical evidence.

1. I accept the plaintiff as a credible witness.

Injuries sustained in the subject accident

1. It would appear that there were two collisions in the accident. The plaintiff stopped his truck behind another truck before being hit from behind by a third truck which forced him into the back of the first truck.[15]

   [15]          Account provided to Dr Unwin, Report of Dr Unwin Ex 12.

1. The damage to the truck operated by him particularly to the front was quite extensive.[16]

   [16]          Photographs in newspaper article Ex 7.

1. The plaintiff was trapped in the front of the vehicle for some time after the accident.  His legs were entrapped by the steering wheel after the steering column and the driver’s side door had crushed inwards.  The door had to be cut away to free his legs and it was noted that he had a piece of metal from the door sticking into his right leg.[17]

   [17]          Ambulance Report Ex 8.

1. He was taken to the Mackay Base Hospital. where there were original concerns about headaches which lead to CT scans of the head and the neck and also about his right calf where he had the penetrating injury.  This was attended to.[18]

   [18]          Records of Mackay Base Hospital Ex 9.

1. He has suffered a number of long term injuries as a result of the accident.  Dr Wallace, an Orthopaedic Surgeon, in his report of 8 November 2012, diagnosed him as suffering from a neck injury, an injury to the left knee and an injury to the right knee all sustained in the subject accident.

1. He noted that, as at the time of the examination (30 October 2012), the plaintiff continued to have posterior cervical spinal pain with restriction of motion and continued occipital headaches. 

1. He noted that the plaintiff experienced such pain when driving and when rotating his head in traffic.  Further, sustained postures aggravated his neck pain.  He referred to a CT scan dated 19 January 2011, which confirmed that no significant abnormality was identified nor was there any bony injury or any nerve root compression. 

1. He described the injury to the neck as an acceleration/deceleration injury to the cervical spine which he assessed as representing a 3% whole of person impairment.

1. He referred to MRI scans of both knees taken on 17 March 2011, which confirmed bilateral chondromalacia patella with no other ligament injury or internal derangement.  He noted that the plaintiff continued to have trouble with both knees particularly when climbing.  He also noted that he also had experienced a number of falls and was concerned about falling off the trays of trucks.  He also noted that the plaintiff’s knees ached with prolonged sitting.  On examination of the right knee he noted that there was no effusion, but that there was patellofemorial pain on compression.  He did, however, have a full range of motion in the right knee with no ligamentous instability. 

1. Examination of the left knee revealed good quadriceps tone and no effusion.  He had patellofemorial pain on compression and there was also some medial joint line pain.  He had grade II – III medial collateral ligament instability and a positive drop back with an increased drawer.  Pivot shift sign was negative. 

1. He assessed the injury to the left knee as representing a 10% whole of person impairment and the injury to the right knee as a 2% whole of person impairment.  He also noted that the right calf laceration had healed. 

1. The plaintiff was also seen by Dr Gillett on 22 February 2013, and he provided a report that same day,[19] as well as two supplementary reports dated 22 January 2014 and 29 January 2014.[20]

   [19]          Ex 13.

   [20]          Ex 13.

1. The plaintiff informed Dr Gillett of his earlier lower back injury and explained to him that he felt that the symptoms of that injury had been aggravated by the subject incident.[21]  He also informed Dr Gillett of the earlier left shoulder injury.[22]  Dr Gillett concluded that it was possible that aggravation of the pre-existing pathology in the lumbar spine had occurred with the mechanism of the accident. He provided a 0% assessment under DRE category 1 attributing the bulk of the issues with the lumbar spine to the pre-existing pathology. 

   [21]          Ex 13 p 3.

   [22]          Ex 13 p 3.

1. The plaintiff did give evidence that he experienced back pain more frequently after the subject accident than he had prior to the accident.[23]  I accept his evidence in that regard, and I accept that there has been some aggravation of the pre-existing lower back condition in the subject accident.

   [23] Quantum statement Ex 23 [61].

1. This lower back pain does not appear to have been discussed with Dr Wallace, but I accept Dr Gillett’s opinion in that regard.

1. Dr Gillett noted that the plaintiff complained of pain in the paravertebral area of the neck bilaterally and there was global restriction of movement of the neck by approximately a quarter in each direction.  He also noted there was some guarding associated with movement of the neck and restriction of motion.  He also noted that there was not any neurological deficit in the upper limb.  He also noted that the plaintiff was complaining of headaches and how looking up and down caused him pain.  He went on to assess the injury to the neck at 5% whole of person impairment.

1. The plaintiff complained to Dr Gillett of pain in both knees, particularly in the anterior aspects of both knees. He also complained that they clicked and cracked at times and they also swelled. He also complained that squatting, kneeling and climbing were problematic and that he felt a little unstable at times. He also complained that he felt insecure when climbing around a load on a vehicle.

1. He also complained of pain in the area of the scarring in the scar particularly if that area was bumped and also complained of a numb sensation in that area.

1. Dr Gillett referred to an MRI report of 17 March 2011, which confirmed no ligamentous or meniscus injury, but chondromalacia of both patellae.

1. In relation to the left knee, he noted that he had patellofemoral crepitus bilaterally and grade 2 laxity of the medial collateral ligament and grade 1 laxity of the posterior cruciate ligament to clinical testing with a negative pivot shift sign of the left knee.

1. He went on to assess the left knee as representing a 29% impairment of the left lower limb which equated to a 12% loss of whole person function.

1. He assessed the right knee injury as representing a 5% whole of limb impairment which equated to a 2% whole of person function.

1. He also allowed an additional 2% whole of person impairment for the scarring associated with the injury to the right calf. Dr Wallace did not deal with the scarring, but I note that what the plaintiff told Dr Gillett was consistent with what he said in evidence[24] and I accept Dr Gillett’s assessment in that regard.

   [24] Quantum statement Ex 23 [65].

1. It is also clear that he sustained a graze to his head in the accident, but there does not appear to be any long term sequelae in relation to that[25] .

   [25] Ibid [58].

Psychological injury

1. The plaintiff also claims for psychological injury sustained in the subject accident and relies on a report from Dr Unwin[26], a psychiatrist, whom he saw on 30 October 2012.

   [26]          Ex 12.

1. Dr Unwin diagnosed a moderate post traumatic stress disorder and what he described as specific phobias (travel) stemming from the subject accident.

1. He provided a PIRS assessment of 5%.

1. Dr Unwin summarised the signs and symptoms of the post traumatic stress disorder as follows:

1. Re-experiencing the traumatic event

2. Avoiding reminders of the trauma (try not to think about it - excessive    working and activity)

3. Increased anxiety and emotional arousal[27] .

[27] Ex 12 [47].

1. He summarised the matters relevant to re-experiencing the traumatic event as follows:

a. Intrusive, upsetting memories of the event

b. Flashbacks (acting or feeling that the event is happening again)

c. Nightmares (either of the event or other frightening things). Occurred     initially.

d. Feelings of intense distress when reminded of the trauma (Positive)

e. Intense physical reactions to reminders of the event (e.g. pounding heart,           rapid breathing, muscle tension, sweating)[28].

[28] Ex 12 [48].

1. He summarised the avoidance and numbing symptoms as follows:

a. Avoiding activities, places, thoughts, or feelings that remind you of the trauma (No longer enjoys/participates in racing or dragging cars)

b. Inability to remember important aspects of the trauma (Your client gave the      following example – his boss and mechanic was standing in front of him and       the boss said something smart and your client said in black humour, ‘yeah I       love you too Jonesy.’ He evidently also let out a bid scream when they      separated the truck and got the steel out of his leg. He has no memory of this)

c. Loss of interest in activities and life in general e.g. drag racing, burnouts

d. Feeling detached from others and emotionally numb. Your client covers this      with excessive activity, work and mindless activity (example of over       compensation).[29]

[29] Ex 12 [49].

1. He summarised the increased anxiety and emotional arousal as follows:

a. Difficulty falling or staying asleep. He avers that he only has 3 hours per            night)

b. Irritability or outbursts of anger (He acknowledges his anger)

c. Difficulty concentrating (negative),

d. Hypervigilance (on constant “red alert”) (Your client is on constant alert –         always looking behind him especially in traffic)

e. Feeling jumpy and easily startled (negative)[30].

[30] Ex 12 [50].

1. He also noted other symptoms of post traumatic stress disorder including anger and irritability, feeling alienated and alone and that he just liked working and being on his own and physical aches and pains.[31]

   [31] Ex 12 [51].

1. The psychological injury has to be looked at in the light of what the plaintiff described as a meltdown in 2010, causing him to take about three and a half months off work.  He said that he saw his general practitioner Dr Rowles, at Moranbah, about this and was prescribed the antidepressant Cipramil. He continued to take Cipramil even after he returned to work and was still taking it at the time of the accident.[32].

   [32] Quantum statement Ex 23 [38].

1. It does appear, however, that the post traumatic stress disorder, as diagnosed by Dr Unwin, clearly relates to the subject accident.

General damages

1. For practical purposes there is not much difference between the overall assessments of Dr Wallace and Dr Gillett.  I accept what Dr Gillett said about the aggravation of the lower back symptoms and I accept his assessment of 2% whole of person because of the scarring in relation to the penetrating injury to the right calf.

1. Both clearly accept that there was a whiplash type injury to the neck, and there is little difference between their assessments at 3% whole of person and 5% whole of person respectively.

1. Their assessments for the right knee are the same. There is little difference between their assessments at 12% whole of person and 10% whole of person in respect of the left knee injury.

1. I also accept Dr Unwin’s assessment in relation to the post traumatic stress disorder and travel phobias. The plaintiff is now 41 almost 42 years of age. I have also taken into account the impact these injuries have had on the plaintiff’s ability to pursue his hobbies and interests associated with motor sport.

1. I assess general damages in this case at $ 70, 000.

1. I have not allowed any interest on the pre-trial component because the plaintiff did receive a lump sum payment from WorkCover of $ 40, 960.25 which will form part of the statutory charge to WorkCover.[33]

   [33]          Printout part of Ex 10.

Past economic loss

1. The plaintiff was off work completely and in receipt of periodic benefits from WorkCover from the date of the accident until 1 June 2011.

1. During that period, he received $ 19,268.55 net in periodic payments from WorkCover and the tax paid by WorkCover (the Fox v Wood component) was $ 5,747.00. [34]

   [34]          WorkCover printout part of Ex 10.

1. In fixing the appropriate rate of weekly benefit WorkCover would have had regard to his earnings over a period of time leading up to the accident.

1. At the time of the accident, the plaintiff was working for Hart’s Transport and had been with them since May 2010. The WorkCover payments were made at the rate of $ 1,210.75 net per week. Normally, that WorkCover rate is calculated at about 85% of the normal weekly earnings.

1. In his quantum statement he describes how he had spent sometime working as a “subcontractor” prior to the accident. This later changed to a straight wages situation.

1. At the time of the accident he was averaging $ 1,820.81 per week before tax under this arrangement[35].

   [35] Quantum statement Ex 23 [87].

1. The plaintiff has claimed an effective earning capacity, as of the date of the accident, of $ 1,350.00 net per week. Having regard to the level of gross income and also after allowing for the fact that there is some reduction in the figure adopted by WorkCover that does appear to be a reasonable starting point.

1. He was absent from employment with Hart’s Transport for a total of 19 weeks and I allow $ 1,350.00 net per week for 19 weeks namely $25,650.00.

1. He then continued on with Hart’s Transport and went back onto wages. For the 2011-2012 financial year he averaged $ 1,039.34 net per week.

1. He finished working for Hart’s Transport on 4 March 2013, but concedes that he may well have been dismissed if he did not resign then. As he explained the matter he agreed to give someone else a lift in one of their trucks even though he was told he could not and when this came to light he resigned[36].

   [36] Quantum statement Ex 23 [93].

1. As was the case right throughout his career as a driver he was able to find other work relatively quickly, in this case through a friend who operated PGL Truckin which contracted with Linfox.[37]

   [37] Ibid [96].

1. He worked for this company from 14 April to 20 October 2013. On my calculations he received $22,124.00 net which over a 27 week period averaged out at $ 819.41 net per week[38].

   [38]          Pay details from PGL Truckin Ex 19.

1. I have not made any allowance for any losses from 4 March 2013 to 14 April 2013, because of the circumstances surrounding his resignation from Hart’s Transport. Had he not decided to give the person the lift he probably could have continued on with Hart’s Transport.

1. The work with PGL Truckin involved carting dirt around the Brisbane area. He found it particularly difficult because he had to use the clutch and accelerator a lot causing problems with both knees. He also experienced difficulties with the stress of constantly driving a truck loaded with dirt around the city area.[39]

   [39] Quantum statement Ex 23 [97].

1. At times, he was also required to climb up on top of the truck because a tarpaulin was used to cover the load. This too caused difficulties.[40]

   [40] Ibid [98].

1. Further, he was involved in four accidents during the time he worked for PGL Truckin, three of which were in their trucks and one of which was when he was driving his own car.[41] These incidents were all triggers of the type described in the report of Dr Unwin and it is not surprising that he started looking for other work.

   [41] Ibid [99-105].

1. He did obtain some work with UBE Transport commencing in early November 2013. He produced his bank records which show his net receipts from that company as follows [42]

   [42]          Bank records Ex 20.

7 November 2013  $ 1,430.00

14 November 2013  $ 1,054.00

21 November 2013  $ 1,270.00

28 November 2013  $ 832.00

Total  $ 4, 586.00

1. Over a four week period his earning averaged $ 1, 144.00 net per week.

1. He left that employment because the work ran out, but he also experienced a fall when he tripped on a chain when attempting to tie down the load on the side of a trailer.[43] He needed to take a number of pain killers after that incident.

   [43] Quantum statement Ex 23 [107].

1. After that he did one trip, for a company called Galmack, from Brisbane to Emerald and received $ 636.00 net.[44]

   [44]          Payslip from Galmack Ex 21.

1. He then obtained another four days work through one of the contractors associated with UBE Transport and received $ 1,274.00 cash. This work finished on 20 December 2013.[45]

   [45] Quantum statement Ex 23 [109].

1. He has not been able to obtain any employment since then.

1. One of his difficulties involves the driving of cab-over trucks. He explained that a cab-over truck is one that is basically flat at the front, as opposed to a more conventional truck which has a large bonnet at the front. He was driving a cab-over truck at the time of the subject accident, and he has grave concerns about driving such trucks now because of the lack of leg room, and because of the reminders he has of the subject accident.

1. When he has made inquiries about positions available in more recent times he has not been prepared to apply for any position involving a cab-over truck. Further, he has found it is increasingly difficult to obtain other truck driving work once he discloses the fact that he has had the subject accident and the injuries sustained in that accident.

1. Clearly, his knee injuries severely limit the type of work that he can do. He experiences real difficulties if he has to drive in built up areas where there are constant gear changes affecting the left leg and constant acceleration affecting the right.

1. Further, he is limited in terms of the extent that he can move around a load and the extent that he can tie down a load. He also has difficulties if he has to regularly get in and out of the vehicle. Ideally, he might be more suited to more long distance hauls where he can frequently use cruise control.[46]

   [46]          Quantum statement Ex 23  [110-116].

1. Had it not been for the serious injuries sustained in this accident, it seems clear to me, that he would still have regular employment as a truck driver consistent with his history going back to 1997-1998. He was still capable late last year of obtaining a position which paid in excess of $1,100.00 net per week and I have allowed a further $1,100.00 net per week for 15 weeks from 20 December 2013, when he ceased his last position to the date of judgment, namely 4 April 2014. That results in an additional allowance of $16,500.00 making the total allowance for past economic loss $42,150.00.

1. I have allowed 9% for the past loss of superannuation benefits, namely $3,793.50.

1. In relation to interest, he received $19,268.55 in periodic payments from WorkCover, so, I have allowed interest on $22,881.45 at 5% for 3.2 years, namely $3,661.04.

1. The amount I have allowed for the subsequent period since he last ceased work is less than the amount that I did allow for the earlier period. The higher starting point reflected the subcontract situation with Hart’s Transport. Clearly, the plaintiff was not happy with the subcontract arrangement and always wanted to have that changed back to wages.[47] The allowance for the subsequent period appears to me to reflect more accurately his pre-accident earning capacity as a wage earner as opposed to a subcontractor.

   [47]          Evidence of plaintiff T1-63 to T1-64.

Future economic loss

1. It is clear that the plaintiff has always been a stoic character. He totally changed his work career after his lower back injury. He pursued truck driving and avoided any work involving heavy lifting. Clearly the injury to the left knee in particular as well as the injury to the other knee and to the neck have had a further significant impact on his earning capacity. One other matter which needs to be considered is the whole question of what Dr Unwin described as travel phobias. The concerns that the plaintiff has when driving trucks in traffic, and also his concerns about driving a cab-over truck, all stem from these phobias which appear to be related to his post traumatic stress disorder.

1. In paragraph 56(e) of his report in response to a question about any recommended treatment Dr Unwin said

“he should have proper clinical assessment and management by a clinical    psychiatrist – guided imagery/desensitisation.

He should see the psychiatrist weekly for a month and monthly for six months.

Guided imagery usually takes 12 sessions conducted by a psychologist trained      in the method, and as outlined in the national standards for PTSD.

Unfortunately your client won’t take any other treatment. He wants to do it          himself and says ‘that’s the past – I have closed it off’. Unfortunately such an     attitude bodes ill of the future.”

1. This treatment was explored by counsel for the defendants in cross-examination and Dr Unwin indicated that it was now too late for any such treatment.[48] I understand that this was the first time that either party had heard any such suggestion.

   [48]          T1-82 l 5-15.

1. Whilst the psychical injuries clearly limit the type of trucking work available to the plaintiff, the phobias, if they can no longer be treated, will also have some impact on his earning capacity. This is particularly so with his inability to apply for positions involving cab-over trucks.

1. Counsel for the defendants argued that there should not be any allowance for the impact of the travel phobias because of his refusal to obtain treatment, such that he failed to mitigate his damage.

1. Dr Unwin made it clear that he was providing a report for medico-legal purposes, and was not providing the plaintiff with advice as such. Nowhere in the report did he say that problem in relation to the travel phobias could not be adequately treated unless such treatment was undertaken promptly. He said that it was not part of his brief to advise the plaintiff of these matters.[49]

   [49]          T1-82 l 38-40.

1. I note that the plaintiff’s solicitor did obtain some names from Dr Unwin as to who could administer the treatment and did make some inquiries about potential treatment to those practitioners. He said he did not receive any responses, nor did he follow that up.[50]

   [50]          Evidence of Mr Cooper T1-88 to T1-89.

1. Had the plaintiff made a conscious decision not to submit himself to treatment after having been told that there was a good prognosis that the treatment could be successful, providing it was undertaken promptly, then I would have had no hesitation in finding that he had failed to mitigate his damages.

1. In this case, however, that only became clear on trial and by that stage the opportunity for successful intervention had been lost.

1. In the circumstances, I am not prepared to make a finding that he did fail to mitigate his damages, and it seems to me that there should be allowance for the impact of the travel phobias on his earning capacity as well as for the obvious impact of the physical injuries.

1. I have already adopted a figure of $1,100.00 net per week as his pre-accident earning capacity, but for the injuries sustained in the accident. It is then necessary to assess his residual earning capacity.

1. His future is now very much uncertain because of the combination of his physical injuries and his psychological injuries. He will find work as a truck driver from time to time, but will have real difficulty finding alternative employment as and when different positions cease. As is clear from his work history, this is the type of industry where the availability of work varies from time to time such that different companies are not always in a position to hire full time. As he gets older it will become increasingly difficult for him to obtain work quickly as and when he loses any position for whatever reason. The range of truck driving positions open to him is now far more narrow than it was prior to the subject accident despite the restrictions associated with the lower back injury and, to a lesser extent, the shoulder injury.

1. Doing the best that I can, it seems to me that his residual earning capacity, after allowing for the neck and knee injuries and the psychological injuries, is about half what it would have been but for those injuries and that an appropriate starting point for future economic loss would be $550.00 net per week.

1. The plaintiff has made an additional claim for loss of opportunity associated with potential work in the mining industry. To this end he called his sister’s former partner John Leeson to give evidence about the type of money earned by dump truck drivers in open cut coal mines. Mr Leeson had worked in security at one of the mines and had managed to obtain employment himself as a dump truck driver and explained how people normally got that work by working firstly for a contractor at the mines before seeking a permanent position.[51]

   [51]          Evidence of Mr Leeson T1-71 to T1-76.

1. There was little evidence, however, that the plaintiff himself was ever going to seek that work. In his quantum statement, he said that he had thought about going to the mines and he knew that you needed to know someone to get a job there and that the best way to do that was by starting out working for a contractor.[52]

   [52] Quantum statement Ex 23 [117].

1. It does not appear as though he ever made any inquires about that work earlier, nor expressed any real interest in that type of work. The truck driving that he was doing did appear to suit his lifestyle. He was very active in burnouts and regularly attended competitions throughout northern New South Wales and Queensland. His truck driving gave him some flexibility in that regard, and he was able to base himself around Brisbane.

1. Whilst mine work does pay exceptionally well as evidenced by Mr Leeson’s PAYG summary,[53] it does entail lengthy shifts at the one place. This does not appear to me to be proper case to make an additional allowance for the loss of any such opportunity.

   [53]          Ex 22.

1. Regard also needs to be had in the assessment of future economic loss to his pre-existing lower back and shoulder injuries. In one sense he had always adjusted his work, so as to try and accommodate the lower back injury, but it seems to me the discount for contingencies for the future should be higher than the normal discount. Normally, I would apply a discount of 15% but the pre-existing injuries justify a higher discount of 25%.

1. The plaintiff turns 42 on 30 June 2014 and in the circumstances I have allowed $550.00 net per week for 23 years on the 5% tables (multiplier 721.2) with a discount of 25% for contingencies i.e. $550 x 721.2 x 0.75 = $297,495.00.

1. I have allowed 11% for the future loss of superannuation benefits, namely $32,724.45.

Special damages

1. The special damages met by WorkCover total $6,088.78, and the Fox v Wood component is $5,747.00.[54] The plaintiff has made a claim for travel expenses and for medication expenses which are particularised in paragraphs 74-81 of the quantum statement. These claims were not disputed. I have rounded off the allowances for travel and medication expenses at $2,500.00 and I have allowed a further $321.65 being the refund due to Medicare.[55] Therefore, the total allowance for other special damages amounts to $2,821.65.

   [54]          Printout part of Ex 10.

   [55]          Letter from Medicare Ex 35.

1. I have allowed interest on $2,500.00 at 5% for 3.2 years namely $400.00.

Griffiths v Kerkemeyer damages

1. There is a claim for past care in relation to assistance provided by Stella Maree Bauer, his mother, who also gave evidence. It was not disputed that she did provide about one hundred hours of assistance and I have allowed one hundred hours at $25.00 per hour namely $2,500. I have allowed interest at 5% for 3.2 years namely $400.00.

1. There is a claim for future care, but it is not straight forward. Basically, he claims that his long term plan is to own his own property and he may need help from other people as and when he obtains that property. He may also need help should he attempt any further involvement in burnouts, particularly with the tyre changes.[56] The plaintiff did impress me as a fairly stoic person who would go about doing most things for himself. He has always adapted in the past and will continue to adapt in the future. He may purchase his own property and he may attempt to return to burnouts. Further, there could be times when he aggravates his knee injuries such that he requires short term assistance. I have allowed a global component of $5,000.00 to cater for these contingencies.

   [56]          Quantum statement Ex 23 [124-127].

Future recurring expenses

1. There seems little point in proceeding with the treatment recommended by Dr Unwin in view in what Dr Unwin said. It would seem, however, that he is going to need to see his general practitioner from time to time about stress related symptoms and may also have to purchase medication.

1. Similarly, there will be times where he needs to see his doctor as an when he aggravates the symptoms in the knees or in the neck. There will be times where he will have to purchase medication either for pain relief or for anti-inflammatory purposes.

1. In the circumstances, I allow a global amount of $7,500.00 for future recurring expenses. I note, by way of analogy, that that represents a fairly modest amount of approximately $7.50 per week for 40 years on the 5% tables.

Summary of assessment

1. In summary I assess the plaintiff’s damages as follows:

General damages   $70,000.00

Past economic loss  $42,150.00

Past loss of superannuation benefits  $3,793.50

Interest on past economic loss  $3,661.04

Future economic loss  $297,495.00

Future loss of superannuation benefits  $32,724.45

Special damages met by WorkCover  $6,088.78

Fox v Wood component   $5,747.00

Other special damages   $2,821.65

Interest on special damages  $400.00

Past Griffiths v Kerkemyer damages   $2,500.00

Interest on past Griffiths v Kerkemyer damages     $400.00

Future Griffiths v Kerkemyer damages   $5,000.00

Future recurring expenses   $7,500.00

Total   $480,281.42.

1. This figure obviously includes the statutory charge of $72,064.58 repayable to WorkCover.[57]

[57]          Printout part of Ex 10.

Orders

1. I give judgment for the plaintiff as against the defendants in the sum of $480,281.42.

1. I will hear the parties on costs.