Watts & Watts v Fenton No. DCCIV-00-270

MALCOLM WATTS & PENELOPE ANN WATTS v LESLEY ANNE FENTON
[2001] SADC 45

Judge Vanstone
Civil

The first and second plaintiffs claim damages for personal injuries sustained by the first plaintiff in a motor vehicle accident which occurred on 16 December 1997 at Hove. At the outset of the trial both liability and quantum of damages were in dispute however, a good way into the hearing, Mr A. Ward, counsel for the defendant, advised me that liability was now admitted. The first plaintiff is 44 years old. In essence his claim is that he suffered injuries to his neck and back in the accident, which injuries have caused him physical disability and ongoing economic loss in the business of cabinet making, in which he and his wife are partners. The second plaintiff, who is the wife of the first plaintiff, claims damages arising out of the accident in the nature of loss of consortium and damages pursuant to Section 34 of the Wrongs Act 1936 for the impairment of the participation of her husband in the business. The major issues in the case relate to the fact that it is undisputed that prior to the accident the first plaintiff (whom I shall call simply “the plaintiff”) suffered from a degenerative back condition and that that has contributed to his current condition and further that in the years leading up to the accident the plaintiffs’ business was a loss making concern and therefore the issue of economic loss is not straight-forward.
It is important to understand the nature of the traffic accident in which the plaintiff was involved. I accept the plaintiff’s evidence as to the collision. I prefer it to the defendant’s evidence. I consider that she had a poor memory of the occasion. What follows is based upon the plaintiff’s account. On 16 December 1997 at about 5 pm the plaintiff was driving his Toyota Hi-ace van on Brighton Road at Hove approaching a level crossing. He was travelling south. South bound traffic was at that time forced to stop because of an oncoming train. The plaintiff said he drew to a halt some ten feet behind a Nissan Bluebird sedan. He was stationary for about 15 seconds when he noticed a motor cycle travel at speed from behind his right side, passing him. The driver was plainly attempting to catch a green light for vehicles turning right into The Crescent, which road runs alongside the railway line. He was then hit from the rear by the defendant’s Ford Telstar. The impact forced him into the car in front. A moment later he was conscious of a second impact by the Telstar and he again hit the Bluebird. The Bluebird suffered little damage, but that may have been because it had a towbar which made contact with part of the chassis of the plaintiff’s vehicle. There was damage to the front of the plaintiff’s van and to the rear, but he too had a towbar and the damage to the defendant’s vehicle was much more significant. The Telstar had a chrome bullbar on the front which was pushed back into its bonnet and the grill and front fender were damaged and the radiator displaced. The drivers of the Bluebird and the Telstar were uninjured. It is clear the defendant’s Telstar was travelling very slowly when the impacts occurred.
After exchanging particulars with the defendant the plaintiff travelled on to his original destination which was a job in the Brighton area. By the time he reached that worksite he was aware of tightness in his neck and aching in his shoulders. He was able to complete his work that day satisfactorily.
The plaintiff said that the next morning he felt markedly worse, the pain having become more acute and now extending down his back towards his right leg. He took some digesics and anti-inflammatory medication which happened to be in the house and returned to the job at Brighton. During the day his condition deteriorated but he took further medication and continued with his work. In the next few days his back pain remained constant but the neck pain increased and on 22 December 1997 he saw his general practitioner Dr Boggiano. Treatment was and continues to be by way of anti-inflammatory and pain killing medication including oral morphine, and physiotherapy, with the plaintiff having been encouraged to undertake swimming and gym work. His evidence was that his painful neck and back and the limitations imposed by those conditions have become permanent.
Three orthopaedic surgeons gave evidence before me, Mr Christopher Cain being called by the plaintiffs and Messrs Orso Osti and Glen Maguire for the defendant. There was a great deal of common ground between them, including as to the condition of plaintiff’s neck and back. It was agreed that the plaintiff had a developmental (and subsequently degenerative) condition of osteochondrosis, which is characterised by weakness in the cartilage and end plates of the vertebrae. The thoracic and thoraco-lumbar spine were affected. That was complicated by dehydration of the lumbosacral disc and a protrusion of the lower thoracic disc. Each surgeon found that the chondrosis was symptomatic prior to the accident.
There was a weak attempt by Mr Ward to discredit the plaintiff on the basis that he had deliberately kept back from the specialists the full extent of his difficulties arising from the degenerative condition prior to the accident. I do not accept that the plaintiff was other than genuine, either in his evidence about this or when relating to the doctors details of his condition before the accident or since. That is not to say he could recall each and every difficulty he experienced. It is clear from the evidence of the plaintiff’s current general practitioner, Dr Stokes, that before the accident there were occasional visits to members of Dr Stokes’ practice in quest of prescriptions for anti-inflammatories or digesic medication to address pain arising from work exertions. These were mainly subsequent to 1995 when the plaintiff suffered and recovered from the effects of an assault upon him at Mount Compass. In fact in the medical reports of both Mr Osti and Mr Cain there is reference to odd problems (of short duration) having been experienced both before and after 1995. It seems to me that the history given was in accordance with what can be gleaned from the practice notes to which Dr Stokes referred. Plainly from the time of his late adolescence the plaintiff has suffered occasional problems with his neck and back consistent with his developmental condition and the physical demands of his vocation. Accordingly this is not a case where a previously asymptomatic degenerative condition was rendered symptomatic by collision trauma. Rather the chondrosis was causing some problems in terms of pain and was likely to continue to do so. Mr Osti said that osteochondrosis is one of the few structural abnormalities which are associated with a high risk of pain.
I am satisfied that the plaintiff’s condition is such that he is now impeded in performing some of the heavier aspects of his cabinet-making work by reason partly of decreased mobility in his neck and back but mainly because of marked pain suffered either at the time of such exertion or as a sequel to it. That pain principally affects the three parts of his spine, but particularly the base of the neck, and sometimes extends into his left shoulder and into his right leg. Further I am satisfied that although the deterioration of his pre-existing condition would have at some, unspecified, time meant that he would in any event have reached this state (assuming he had continued in his occupation) the accident trauma has brought forward or accelerated that deterioration, and has done so to a significant extent. In terms of what is the predominant factor operating upon the plaintiff’s current condition, I accept the opinions of Mr Osti and Mr Cain that it is his pre-existing condition.
In this context it is pertinent to note that all three surgeons would have expected the effects of the collision to have subsided over time. Not only did that not occur but in August 2000 Mr Watts complained to Mr Osti of a deterioration in the preceding few months. In my view this fact reinforces the opinion that the accident was no more than a catalyst and the extent of its contribution to the plaintiff’s condition as a physical cause has decreased over time.
In terms of future treatment all three specialists are agreed that surgery is not indicated now and is not likely to be in the future. They similarly agree that physiotherapy has not achieved anything and should be stopped. Mr Cain advised the plaintiff of that in December 1998. There is a need for regular exercise in the form preferably of swimming or in a gymnasium. In addition I find the plaintiff will need various medications on an ongoing basis.
I turn to describe the plaintiff’s work history. As mentioned he is a well qualified cabinet-maker, and I accept that he is an extremely good tradesman. He completed his apprenticeship in about 1976 at Macrob Furniture Company and after leaving that firm worked in several other businesses both making built-in furniture and kitchen fixtures but also, occasionally, custom making items of furniture in a more traditional manner. The plaintiff completed various certificate courses in this period and I am satisfied that he could turn his hand to any aspect of his trade.
In about 1982 he started work on his own account, setting up a partnership with his wife. Business was brisk. Initially he worked from home but later he leased a workshop at Lonsdale from which he worked for about eight years leading up to his final move to Mount Compass. The plaintiff said these were profitable years. He occasionally employed a workman at Lonsdale but it was difficult to find good tradesman. The work consisted mainly of renovations of old kitchens, occasionally making new ones, and also other work of a one off nature which came in. The plaintiff said he worked long hours.
In 1990 the plaintiffs bought a property of about four acres at Mount Compass. The plaintiff described the move there as a “lifestyle decision”. The plaintiff and family members helped to build a factory there - essentially a large shed with certain facilities - and then the family home. The house was able to be lived in by 1992. Meanwhile the name of the partnership was changed to “Compass Kitchens.” The plaintiff has continued in that business since the move. Apart from a few occasions when he needed assistance for specific jobs he did not employ anyone to help him. He said work has been plentiful although the building recession of 1994 to 1996 affected his revenue. There was also a period in about 1996 when his energies were diverted into a particular project, being a pull-out shelf associated with microwave ovens, which the plaintiffs developed and marketed. Ultimately it was not the success that they had envisaged. Notwithstanding the plaintiff’s long hours of work in the business and his obvious skills, in each of the financial years ending 1990 to 1997 the business made losses. Oddly, the financial year during which the accident occurred was the first at Mount Compass when a profit was shown, but the evidence is that was mainly referable to the months June to December 1997 when a particular lucrative job was completed with the help of some casual labour. The following financial year (that ending June 1999) the business returned to being a loss-making enterprise. In the year ending June 2000 it did just better than breaking even. During this period the family survived on government assistance, but, a substantial asset in the form of the house and property was amassed.
I mentioned that after the accident the plaintiff returned to work. He did not take time away from work on account of his injuries but he used the Christmas break to recuperate to some extent. The evidence of both plaintiffs is that had Mrs Watts not assisted the plaintiff upon his resumption of work in January 1998, the business could not have continued. Mrs Watts had a little experience in a cabinet making business dating back to the period when she met the plaintiff and after the accident she worked under his close supervision in the workshop. Particularly she assisted with the heavier work. I was told that since that month she has worked full time in the workshop and on site with her husband, and that she works ten to twelve hours on average week days and a little less on weekends. Mrs Watts said that on rare occasions a day off on a weekend is taken. Whilst I do not necessarily accept that these hours are accurate I do accept that Mrs Watts has effectively increased her contribution to the partnership from twenty five to one hundred percent of the working week. The two daughters of the marriage, who are presently aged eighteen and sixteen years, perform most household chores including cooking.
I accept the plaintiff’s evidence that since the accident his work rate has dropped and he is now effectively unable to perform some tasks. But it can be seen that even with the addition of Mrs Watts’ labour - which must by now be at least semi-skilled - the business has still not become profitable. I do not accept that but for the accident it would have become so. I find that whether because of poor management, failure to control expenses, failure to take on an apprentice or other employee, or simply because the running of the business has more to do with lifestyle than income production, the enterprise was not - as has been suggested - on the verge of turning the corner at about the time of the accident. In my view an examination of the taxation returns of the partnership in the years 1990 to 2000 shows that the output of the year ending June 1998, producing as it did a nett profit of $25,570, was an aberration. My findings on this topic render unhelpful the evidence of the accountants Mr Holmes and Mr Clark, who made certain calculations of lost earnings post accident based on the rates of sales in the period leading up to the accident.
Furthermore, although I accept that in a year or perhaps eighteen months after the accident Mrs Watts’ assistance was essential if the business were to be kept alive, I find that her decision to continue in that role is a personal one as opposed to being dictated by the accident. Whilst I consider that it is reasonable to compensate for the restrictions to the plaintiff’s abilities which resulted in the unpaid work she performed for the benefit of the partnership in the post accident period when the plaintiff could have been expected to have been making a recovery and when it was reasonable to keep the business going, I do not consider that the defendant should be expected to be effectively subsidise a loss-making concern subsequent to that period of fluidity.
I turn now to the various heads of damages.
In my view the profits of the partnership have not been adversely affected by the plaintiff’s injuries due to the fact that the second plaintiff increased her labour contribution to the partnership to compensate for his restricted physical abilities. In my view it does not follow that there cannot be compensation for the diminished contribution of the plaintiff but I shall deal with that when I come to the second plaintiff’s claim.
In terms of the plaintiff’s claim for lost earning capacity I have already found that the expert accountancy opinions put before me are not, on the facts as I have found them to be, relevant as a means of calculating to what extent the plaintiff’s accident injuries will lead to pecuniary loss. However, there is no doubt that the plaintiff’s earning capacity has been affected by his injuries. I accept his evidence that he now works more slowly than before and that he can now do less of the heavy work. It is necessary for someone to help him with some tasks. That would have been advisable in any event in view of his prior condition. If he chooses in the future to abandon his own business and look for work in his field as an employee he will be forced to reveal his medical history and that may cost him positions for which he would otherwise be well qualified. In this event there may be periods of unemployment. Judging by his work history this is unlikely but either way, I consider a substantial sum is justified and I award $35,000.
In assessing damages for non economic loss it is necessary, pursuant to s35A(1)(b) that I ascribe a numerical value between one and sixty to the plaintiff’s injuries. In doing so I have had regard to the ongoing pain, at times quite debilitating, to which the plaintiff has been subjected since the collision. I accept that it has pervaded his life. I conclude that a figure of six is appropriate. The relevant multiplier is agreed to be $1,550 and so the award under this head is $9,300.
There has been a good deal of argument on the question of special damages. I have been given a schedule setting out various special damages totalling $5,530.55, some of which has already been paid. Whilst I am not prepared to descend into minute detail in respect of them - and nor has there been evidence bearing on all of them - I am not prepared to allow visits to the physiotherapist after the end of 1998, when the plaintiff was clearly told by his treating surgeon that the therapy was achieving nothing. That message was reinforced at a later time by Messrs Osti and Maquire, but yet disregarded. In those circumstances and despite the fact that the plaintiff claimed some benefit from the physiotherapy, I do not consider that the defendant should pay for it. I deduct then the amount of $2,275 from the schedule total. In respect of the balance of the expenses I am satisfied they were reasonably and properly incurred. Special damages are fixed therefore at $3,255.
In relation to future medical expenses I am satisfied that there will be a need for occasional visits to the general practitioner and perhaps a reference back to the Flinders Medical Centre Pain Clinic, and certainly a need for medications. In addition I consider an allowance for pursuit of swimming or exercise regimes, properly supervised, is appropriate. For these items I fix an amount of $2,000.
As I mentioned the second plaintiff has brought a claim pursuant to s34 of the Wrongs Act 1936. In my view it is reasonable to award an amount to compensate the partners for the impairment of the plaintiff’s input into the business in the post accident period, which deficit the second plaintiff, as it happens, made good. Her contribution provides a guide in quantifying that impairment. Had the partnership been able to afford to employ someone to help during this period the rate payable would have been of the order of $400 per week gross. Allowing that it was reasonable to let the situation settle for say a year, and remembering that Mrs Watts was already contributing about one quarter of a working week to the partnership, and that during this period she had some income from social services, I consider a figure of $10,000 is appropriate.
The second plaintiff also claims an amount by way of loss of consortium, specifically asserting a loss of the “plaintiff’s society and service with respect to social, domestic and economic duties.” I have found it difficult to come to grips with this claim. Both plaintiffs testified that their relationship had become difficult at times after the accident because of the plaintiff’s mood changes, his shorter temper and the pressures of work, but in my view something more than this is required and I do not consider that this limb of the claim is made out.
It remains to consider interest. The only amount which I have awarded which attracts interest is the payment to the plaintiffs under s34 of the Wrongs Act. It has been agreed by counsel that I should use a figure of 6%, and so doing, I fix interest at $2,000.

A summary of my assessment of the quantum of damages is therefore as follows:

The first plaintiff

Non economic loss 9,300

Economic loss, future 35,000

Special damages 3,255

Future medical treatment 2,000

$49,555

The first and second plaintiffs

Past economic loss 10,000

Interest 2,000

$12,000

Therefore I enter judgment for the first plaintiff in the sum of $49,555. I note that an amount towards special damages has already been paid.
I enter judgment for the first and second plaintiffs in the sum of $12,000.
I shall hear the parties as to costs.

[2001] SADC 45

29 March 2001